Molenaar and Johnson
[2014] FamCA 306
FAMILY COURT OF AUSTRALIA
| MOLENAAR & JOHNSON | [2014] FamCA 306 |
| FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply – With whom the children spend time – Family Violence – Where the evidence shows violence perpetrated by the father against the mother and against a subsequent partner – Drug use – Where the father has a history of drug use – Where the father hasn’t complied with past orders for random drug testing – Where the father has threatened and attempted suicide – Where the father’s time with the children has been supervised at a contact centre – Risk – Whether the children are at an unacceptable risk in the father’s unsupervised care – Best interests of the children. |
| Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAB, 65DAC. |
| Cox & Pedrana (2013) 48 Fam LR 651. M v M (1986) 166 CLR 69. McCall & Clark (2009) FLC 93-405. MRR v GR (2010) 240 CLR 461. Vigano & Desmond (2012) 47 Fam LR 552. |
| APPLICANT: | Ms Molenaar |
| RESPONDENT: | Mr Johnson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 535 | of | 2011 |
| DATE DELIVERED: | 14 May 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 12, 13 and 15 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Cullen of Counsel |
| SOLICITOR FOR THE APPLICANT: | Journey Family Lawyers |
| FOR THE RESPONDENT: | Mr Johnson in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Richards of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
it is ordered by way of final order
All previous orders, directions and notations are hereby discharged.
That Z born … 2001, T born … 2003 and B born … 2004 (“the children”) live with the mother.
That the mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended) for the children with such issues to include but not be limited to:
(a) the children’s education;
(b) the children’s religious and cultural upbringing; and
(c) the children’s health.
That, except in the event of an emergency involving the children, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)the mother shall inform the father about the issue about which a decision which needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing;
(b) the mother shall give the father fourteen (14) days to respond;
(c)the mother shall consider the father’s views/response when coming to her decision;
(d)the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
That each party has responsibility for daily decisions about the day to day care, welfare and development of the children while in his or her care.
Until the father has provided six (6) consecutive drug test results pursuant to Clause (7) of this Order which each record the absence of a dilute urine sample and establish an abstinence of the use of illicit drugs, the children’s time with him shall remain supervised and shall occur at C Contact Centre or such other Contact Centre as may be agreed between the parties in writing.
In each twelve (12) month period commencing with the date of this Order:
(a)the mother shall, on six (6) occasions and no more frequently than once per calendar month, request the father to undergo a supervised drug screen or test for the presence of illicit substances and/or illegal drugs; and
(b)the mother’s request that the father undergo a supervised drug screen or test for the presence of illicit substances and/or illegal drugs shall be transmitted to him in writing via text message sent to his mobile telephone number; and
(c)the father shall, within twenty-four (24) hours of receiving a request to undergo a supervised drug screen or test for the presence of illicit substances and/or illegal drugs, attend upon a reputable pathologist and undertake the appropriate supervised testing to determine the absence of illicit substances and/or illegal drugs; and
(d)the father shall provide the mother with details of the results of the testing for the absence of illicit substances and/or illegal drugs, by text message sent to her mobile telephone number within twenty-four (24) hours of his receipt of the results; and
(e)the father shall provide the mother with a copy of the official results of the testing for the absence of illicit substances and/or illegal drugs issued by the pathologist who performed the testing, by sending a copy of this document to her by registered post directed to her residential address within twenty-four (24) hours of receiving the same.
In the event that the father complies with the terms of Clauses (6) and (7) of this Order, the children will thereafter spend time with him each Sunday from 9.00 am until 5.00 pm with changeovers to occur at C Contact Centre.
That unless otherwise agreed between the parties in writing, the father shall be responsible for meeting all the costs associated with:
(a) the supervision of the children’s time with him at a Contact Centre; and
(b) the changeovers facilitated by a Contact Centre.
That the father shall not consume any illicit substances for twenty-four (24) hours before or at any time the children are in his care.
The father is at liberty to have telephone communication with the children each Wednesday between 6.30 pm and 7.00 pm, and on occasions of the children’s birthdays at this time, by telephoning the children on a telephone number provided to him by the mother for this purpose.
In addition to the above, should the children express a wish or a view to have telephone communication or written communication with the father, the mother will use her best endeavours to facilitate a telephone call at any reasonable time and/or written communication between the children and the father.
During the time that the children are with either parent, the parents shall each:
(a)respect the privacy of the other and shall not question the children about the personal life of the other;
(b) speak of the other respectfully;
(c)not denigrate or insult the other in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;
(d)not attempt to discuss any issues in dispute between the parents with the children, nor allow a third party to do so;
(e)not attempt to discuss any adult issues with the children, nor allow a third party to do so.
The father is at liberty to communicate with the children by posting letters, cards and gifts to the children, addressed to the children, via the mother’s postal address, and the mother shall provide these items to the children.
That the father shall not discuss with any of the children anything concerning the allegations made in respect of Mr W’s interaction with T in 2008.
That the mother and father shall:
(a)keep the other informed at all times of their residential address, contact telephone number and an email address for use in communicating about the children and shall advise the other of any change to the same within twenty-four (24) hours of such change;
(b)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the children;
(c)inform the other as soon as is reasonably practicable of any serious medical condition, significant health issue or illness suffered by the children;
(d)keep the other informed of any school, educational facility or extra-curricular activity provider attended by any of the children.
That by this Order, the mother and father authorise any day care, school, educational facility or extra-curricular activity provider attended by the children to provide to each parent, at that parent’s request and cost, all information about the children’s educational progress and school related activities and copies of documents produced by the school about the children (including but not limited to school notices, report cards, and school photograph order forms).
The mother shall keep the father informed in writing of the contact details of any medical or health professionals who treat the children and advise the father in writing of any changes to these details as soon as is reasonably practicable.
That by this Order, the mother and father authorise any medical or other health professionals who treat the children to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the children’s attendance and treatment.
Within fourteen (14) days of the date of these Orders the father shall sign Passport Applications in relation to each of the children and in regards to the same:
(a)the mother shall post to the father the relevant documents within forty-eight (48) hours of the date of these Orders;
(b)the father shall return the signed Passport Applications within fourteen (14) days of the date of these Orders.
In the event the father fails or refuses or neglects to sign the Passport Applications a Registrar of the Family Court of Australia is, pursuant to s 106A of the Family Law Act 1975 (Cth), empowered to sign the Passport Applications on behalf of the father and such power shall be evoked by the mother filing an Affidavit setting out her attempts to have the father sign the Applications pursuant to these Orders.
The mother shall have possession of the children’s passports.
The mother is permitted to remove the children from the Commonwealth of Australia for the purposes of holiday travel for a period of not more than twenty-one (21) consecutive nights each calendar year provided that:
(a)travel to be only to countries which are signatory to the Hague Convention on the Civil Aspects of International Child Abduction; and
(b)she provide to the father no less than sixty (60) days’ notice in writing of such intention, with such notification to include details of the proposed destination, duration of stay and dates during which it is proposed the children shall be absent from Australia; and
(a)no less than thirty (30) days before the intended date of departure, she provide the father with:
(i)a copy of the return ticket evidencing the children’s departure from and proposed return to the Commonwealth of Australia; and
(ii)a copy of an itinerary detailing those places which the children will visit and the proposed accommodation where the children will be located during their time outside the Commonwealth of Australia; and
(b)no less than fourteen (14) days prior to travel the mother shall provide to the father a contact telephone number on which the children may be contacted during their time outside the Commonwealth of Australia.
That the operation of Clauses (6) and (8) of this Order shall be suspended during any period the children are out of the Commonwealth of Australia and shall resume on the first weekend after their return to the Commonwealth of Australia.
That until the father complies with Clauses (6) and (7) of this Order he shall be restrained and an injunction shall issue restraining him from attending at any school at which the children attend.
That upon the father complying with Clauses (6) and (7) of this Order and following the expiry of the Protection Order (number …) or any other Protection Order which names the mother as Aggrieved Spouse and the father as Respondent Spouse, and which names the children as persons protected, the father shall be at liberty to attend school functions and extra-curricular activities to which parents are ordinarily invited, including but not limited to, carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
In the event that the father attends at any school pursuant to Clause (26) of this Order:
(a)the father shall not approach or seek the attention of the mother or remain in her vicinity;
(b)the mother shall not approach the father or seek his attention or remain in his vicinity;
(c)the father shall not, without the mother’s written consent, remove the children from the school.
That the mother shall have leave to provide a copy of the Reasons for Judgment published on 14 May 2014 to C Contact Centre.
That in the event the father complies with Clauses (6) and (7) of this Order, he has liberty, at any time after 30 November 2015, to apply for Orders that the children spend additional time with him.
IT IS FURTHER ORDERED THAT
All outstanding applications are dismissed.
The Independent Children’s Lawyer is discharged.
After the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits be returned to the person or persons who tendered the same
IT IS NOTED that publication of this judgment by this Court under the pseudonym Molenaar & Johnson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 535 of 2011
| Ms Molenaar |
Applicant
And
| Mr Johnson |
Respondent
REASONS FOR JUDGMENT
These proceedings concern Z, born in 2001 (13 years), T, born in 2003 (10 years) and B, born in 2004 (9 years) (the children). They live with the mother, her partner and their half-sibling who is about four years of age.
Whilst the parties are in dispute about when they commenced cohabitation[1], little seems, to me, to turn upon this. The parties also dispute when they finally separated. The father asserts that this occurred in 2003 following which the parties participated in previous proceedings in the Court. In 2003, Orders were made for the older two children to spend time with the father every weekend.
[1]The mother asserts cohabitation commenced in about February 2001 whilst the father asserts the relationship began in 1999.
Given the fact of B’s birth, the parties obviously reconciled their relationship, at least to some extent, following the 2003 proceedings. The mother asserts that the parties separated finally in 2006. Irrespective of that which preceded it, the children have remained in the mother’s primary care since the 2006 separation.
In 2007, the parties agreed to a parenting plan which saw the children spend time with the father each alternate weekend from Saturday to Monday morning and overnight each alternate Wednesday.[2] This remained the position until Orders were made on 24 May 2011.
[2] Exhibit 1: Family Report dated 29 October 2012, paragraph 7.
The material establishes that the parties’ relationship was “unstable” and volatile from the beginning. Further, there were significant periods of time during which the parties did not cohabit. These matters are, I think, relevant to an overall assessment of their individual and joint incapacity to communicate effectively to the degree necessary to make joint decisions about the children.
Both parties have re-partnered. The mother commenced a relationship with her partner, Mr W in November 2007. The mother and Mr W have a child who was born in 2010.
The father has a daughter from a previous relationship. She is now aged about 17 years and lives interstate with her mother.[3] The father has been in a relationship with his current partner, Ms M, for approximately six and a half years.[4] The father and Ms M do not live together. Ms M lives with her daughter, now aged about seven years.
[3] Exhibit 1: Family Report dated 29 October 2012, paragraph 4.
[4] Exhibit 1: Family Report dated 29 October 2012, paragraph 3.
On 21 August 2012, the mother filed an Amended Initiating Application seeking sole parental responsibility, that the children live with her, and that the father’s time with the children be supervised at a Contact Centre, conditional upon negative results of tests for drug and alcohol abuse. The mother also sought to be able to travel internationally with the children, and that the father sign passport renewal applications to enable her to do so.
Previous Orders have regulated the children’s time with the father as follows:
a)on 17 May 2011, the Court ordered that the children have telephone communication with the father each Wednesday and Saturday at 7.00 pm;
b)on 24 May 2011, the Court ordered that, “subject to and conditional upon” the parties completing a Parenting Orders Program with Relationships Australia or another organisation that offered a similar program[5] and that all time the children spent with the father be under the supervision of one or both of the paternal grandparents,[6] the children live with the father:
i)from Saturday morning until before school Monday in week one; and
ii)from after school Wednesday to school Thursday in week two; and
iii)for half of the school holiday periods,
c)on 12 August 2011, the Court made Orders (“the August 2011 Order”) that the children spend time with the father each alternate weekend for up to two hours, supervised by C Contact Centre (“the Contact Centre”).
[5] Order made 24 May 2011, Clause 14.
[6] Order made 24 May 2011, Clause 19.
The 24 May 2011 Orders came after Mr A, a Family Consultant, gave oral evidence supporting such an Order.
In compliance with the Orders, the children have spent time with the father:
a)from May 2011 until August 2011: under the supervision of the paternal grandparents;
b)since August 2011: at the Contact Centre with time, on occasion, occurring away from the Contact Centre itself and including the paternal grandparents.
On 11 October 2012, the mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence (“the Notice”). The Notice contains assertions that the father is compromising the children’s safety and development via emotional manipulation, and that he has placed them at risk by exposing them to his alleged suicidality, drug “lifestyle” and episodes of family violence between him and his partner.
Competing Proposals
There is no dispute that the children will continue to live with the mother.
The issues in dispute between the parties are:
a)how parental responsibility for the children is to be allocated: the mother (supported by the Independent Children’s Lawyer) seeks sole parental responsibility for the major long term issues in relation to the children whilst the father seeks an order for equal shared parental responsibility;
b)the time the children will spend with the father: in very broad terms, the mother seeks[7] that this remain supervised until the father complies with a drug testing regime, whilst the father seeks that the children spend time with him from after school Friday until before school Monday each alternate weekend, overnight each alternate Wednesday, on special occasions and for half of the school holidays.[8]
[7]Amended Application filed 21 August 2012; Exhibit 1: Family Report dated 29 October 2012, paragraph 16.
[8] Response filed 25 May 2011.
It is clear that the father continues to hold the hope of working toward a position where the children live equally with each parent on a week about basis.[9]
[9]Exhibit 1: Family Report dated 29 October 2012, paragraph 18; Affidavit of Dr D filed 24 April 2012, report dated 23 April 2012, page 5.
The Independent Children’s Lawyer proposes that the children initially spend supervised time with the father “off-site” and then, in the event that he complies with a specified pathology testing regime, unsupervised time for five hours each week.
I have concluded that little weight can be placed upon the father’s evidence unless it is corroborated. I do so because, for example, he swore[10] he had never been in a relationship with someone named Ms M. This is clearly untrue: he told the Family Report Writer that “he and his current partner Ms [M] have been in a relationship for five and a half years”. Further, Domestic Violence Reports record incidents between the father and Ms M in which Ms M referred to the father as her ex-partner.[11]
[10] At paragraph 82 of an affidavit filed by leave on 24 May 2011.
[11] Exhibit 2.
It is also clear that the father deliberately minimised the extent of his past behaviours to Dr D during his first interview with him – to the extent that it was so “highly sanitised” that, after perusing documents provided by the Independent Children’s Lawyer, Dr D requested the opportunity to review the father further.
The father’s second interview with Dr D was “not all that useful in clarifying matters, the principal issue being [the father’s] self-defeating gross denial of events … recorded in the clinical notes”. I accept Dr D’s evidence that, when challenged on these matters, the father presented a variety of explanations about how the notes were in error or attempted to divert their discussion to the mother’s problems and how unfairly he had been treated.
I further accept Dr D’s evidence that “some of his denials and explanations were quite fanciful”. The example given by Dr D – at page 14 of his report – of the father’s attempts to explain away the contents of the clinical notes provides a clear demonstration of the extent to which the father is prepared to engage in deliberate falsehoods.
Principles
In these proceedings, being proceedings for a parenting order (s 64B of the Family Law Act 1975 (Cth) (the Act)) in relation to the children, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Act, make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration: s 60CA and s 65AA of the Act. [12]
[12] See for example: MRR v GR (2010) 240 CLR 461; Cox & Pedrana (2013) 48 Fam LR 651.
When making a parenting order I am bound to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them (“the presumption”): s 61DA of the Act. The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them: s 61DA(4) of the Act.
The presumption does not apply if the Court is satisfied that there are reasonable grounds to believe that either of the children’s parents have engaged in abuse of the children or another child or family violence[13]: s 61DA(2) of the Act.
[13] As defined in s 4(1) Family Law Act 1975 (Cth).
It is not in dispute that the mother suffered a broken nose in February 2006. The mother says the father assaulted her: the father said this happened when she fell over, drunk, after a Christmas party. Notes of the mother’s attendance at the E Medical Clinic on 20 February 2006 record her report that she “was assaulted by her partner the other day”. Observations that day of a small laceration to her nose and swelling resulted in a referral for X-ray which revealed an undisplaced fracture of her nasal bones. When reviewed at the Medical Clinic on 24 February 2006, she had a black eye. Notes of her attendance that day reveal that the medical practitioner she saw engaged in “long discussion - recurrent problems and advice on management re-further violence from partner.”[14]
[14] Exhibit 2.
I accept the mother’s account of this event. I conclude the father assaulted her and broke her nose. I am not persuaded by his account of the manner in which the injury was suffered. I consider it highly unlikely that the mother would have attended a Christmas party in February. I further accept that the contents of the contemporaneous notes by the medical practitioners reflect what the mother told them and what she told them was accurate and truthful.
I also accept the mother’s evidence that, during their relationship, the father was occasionally physically abusive to her after arguments about his drug use. I accept he threw her up against a wall when she was pregnant with the parties’ middle child. I also accept that, in May 2010, the father approached her at the children’s school (where both parties were attending a function) and whispered “you’re dead”.
It is not in dispute that the parties argued at a changeover in July 2010. The father said this happened because he refused to sign documents for the children’s passports unless the mother provided him with an itinerary and contact details for their proposed travel. I accept the mother’s evidence that, on this occasion, in the view and/or hearing range of the children, the father said words to the effect: “I am going to kill your fucking partner and you’d better tell him he is a dead man; you don’t know what I’m capable of doing to you and what I’m like.” I also accept that, after the mother responded to these comments by saying “I know exactly what you are and what you’re like”, the father said words to the effect that: “you’re all dead” and “watch out because I’m going to get you, you will be lucky to have your cars by the end of the week.”[15]
[15] Exhibit 2, page.
I do not accept the mother falsely reported this event to the Police in retaliation for the father’s refusal to sign paperwork necessary for the children’s passports. I do not accept the father’s denials of threats to blow up the mother’s house, car, partner and their (the mother and her partner’s) child.
I also take into account the father’s behaviour toward the Family Consultant – whose evidence I accept – who authored the Family Report: when asked to consider how he may have contributed to the parenting dispute, the father became “aggressive and confrontational”, started shouting at her and interrupted her whenever she attempted to speak.[16] Such reaction during an appointment which had, as its specific purpose, an assessment of the parties’ attitudes and behaviours lends significant credence to the mother’s account of the father’s aggressive and volatile behaviour during the relationship and the likely existence of such behaviours in the period after separation and during the father’s relationship with Ms M.
[16] Exhibit 1: Family Report dated 29 October 2012, paragraph 32.
Given the findings outlined above, I am satisfied that there are reasonable grounds to believe the father engaged in family violence. I am also satisfied that, during their relationship, he engaged in family violence toward the mother in the manner she alleges. I find that a reasonable person who was the recipient of this violence and the behaviours outlined above would fear for or be apprehensive about her personal wellbeing or safety. There is no doubt that the father’s actions amount to conduct toward the mother that caused her reasonably to fear for or reasonably be apprehensive about her personal safety.
It follows that the presumption it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply – “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the children] being the paramount consideration – see s 60CA; s 65AA).”[17]
[17] Cox & Pedrana (2013) 48 Fam LR 651, [19].
I must determine that which is in the children’s best interests, in terms of both the allocation of parental responsibility and the time they spend with the father, having regard to the considerations set out in s 60CC of the Act.
Benefit of a meaningful relationship with both parents
The Act does not define the term ‘meaningful relationship’ nor does it prescribe criteria on which the Court should rely to assess how the children’s parents have or should have a meaningful involvement in their lives. In McCall& Clark[18] the Full Court concluded[19] that the ‘preferred interpretation’ of ‘benefit to a child of a meaningful relationship’ is the ‘prospective approach’ – that is, the Court should consider and weigh the evidence at trial and determine how, if it is in the children’s best interests, orders can be framed to ensure they have a meaningful relationship with both of their parents.
[18] (2009) FLC 93-405.
[19] Ibid at [19].
The father agrees that the children will live primarily with the mother. In this circumstance, then, the Court must consider and determine whether there is a benefit to the children in having a meaningful relationship with the father, such finding not being dependent simply on a lack of danger of physical or psychological harm. If I determine that such benefit exists, then I must consider whether this benefit needs to ‘give way’ to the requirement to protect the children from physical or psychological harm.[20]
[20] Vigano & Desmond (2012) 47 Fam LR 552, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
I accept there is a benefit to the children in having a meaningful relationship with the father. They clearly enjoy spending time with him and their paternal grandparents. They interact well with him and have been observed to demonstrate behaviour which establishes they have an attachment to him. There is no dispute that the children love the father and want to spend time with him.
The real issue, therefore, is whether spending time with the father on an unsupervised basis would, at present, expose the children to an unacceptable risk of physical or psychological harm.[21]
[21] M v M (1986) 166 CLR 69.
The mother’s case proceeds on the basis that, until the father can demonstrate (via the production of ‘clean’ drug test results) abstinence from drug use, the degree of risk to the children in spending time with him is such that the time should remain supervised. The mother also asserts that, such is the father’s history of domestic violence within intimate relationships, the Court should proceed cautiously to ensure the children are not harmed by further exposure to the aftermath of such behaviour. The significant issues in the mother’s case may be reformulated thus: because of the matters alleged by the mother, does the father pose a risk to the children which can only be ameliorated via the imposition of supervision of their time with him until he has demonstrated the capacity to refrain from such behaviours?
On the father’s case, he poses no risk to the children sufficient to justify the continued imposition of supervision over their time with him.
Despite agreeing to an order that the children live with the mother, he raises, perhaps only inferentially now, the prospect that the mother’s partner presents, or at some earlier time has presented, a risk to the children. This alleged risk is based on an allegation, made in mid-2009, that Mr W had inappropriately touched T.
Whilst the resolution of an allegation of sexual abuse is “subservient and ancillary” to this Court’s determination of the parenting order which is in the children’s best interests,[22] it is, I think, in their best interests that I make specific findings about this matter given the father has continued to raise it.
[22] M v M (1988) 166 CLR 69.
On what basis is it alleged that Mr W posed or poses an unacceptable risk to the children?
The father alleged that, in late May 2009, Mr W inappropriately touched T. This assertion was based on T, then six years of age, ‘disclosing’ that Mr W “scratched” her with his fingernails on her vagina. According to details provided to the Department of Communities Child Safety and Disability Services (the Department), T told the paternal grandmother that, whilst she was in the bath, Mr W had “touched me down there”.
In early June 2009, the Department made inquiries with T’s school. These revealed she had no behavioural “issues”, had not spoken about sexually related topics and had not demonstrated sexualised behaviours.[23] Additional inquiries about Z revealed that, whilst she demonstrated some “attention/defiant” behaviours,[24] teachers had not observed her to engage in any sexually explicit behaviour.[25]
[23] Exhibit 2, page 60.
[24] Exhibit 2, page 38.
[25] Exhibit 2, page 60.
On 7 June 2009, staff at the local hospital contacted the Department when the paternal grandmother presented T with a request that she be medically examined. The paternal grandmother advised T told her that, while she was in the bath, Mr W washed her without a washer and “put his finger inside”. Whilst this event was alleged to have occurred on 11 May 2009, the paternal grandmother said T did not tell her about it until 29 May 2009. The hospital declined to undertake the requested examination unless directed to do so by the Police.[26]
[26] Exhibit 2, page 62.
The Police interviewed T on 8 June 2009. She made no disclosures of any offences or any concerning sexual incidents.[27] She told the interviewing Police Officer that, on one occasion whilst in the bath, Mr W used a face washer to clean her vagina and, in the course of doing so, scratched the inside of her leg with his fingernail. The child did not say he had inserted his finger into her vagina.[28]
[27] Exhibit 2, page 148.
[28] Exhibit 2, page 63.
I accept Mr W ceased bathing the children after the allegation was made.[29] The father did not allege otherwise and did not challenge Mr W’s evidence in this respect.
[29] Exhibit 1: Family Report dated 29 October 2012, paragraph 48.
Having investigated the allegation, the Police and the Department concluded that the incident was “accidental”. [30] I have reached the same conclusion.
[30] Exhibit 1: Family Report dated 29 October 2012, paragraph 25.
I accept the Family Consultant’s evidence that, during her interview with T, the child did not identify any concerns about her interaction with Mr W, named a number of good things about him and interacted with him in a positive manner.
Whilst the father told the Family Consultant, in October 2012, that he had been prepared to consider alternative explanations for T’s complaint,[31] he also said his concerns about this event had not been addressed “adequately” by those who had investigated.[32] He maintained this position despite:
a)being told by the Police Officer who interviewed T that certain described behaviours were within the “normal” range of behaviours of a child of her age; and
b)there being nothing to suggest that T had engaged in “sexualised” behaviours.
[31] Exhibit 1: Family Report dated 29 October 2012, paragraph 40.
[32] Exhibit 1: Family Report dated 29 October 2012, paragraph 42.
His current approach raises the possibility that, in the event the children’s time with him is unsupervised, he may seek to raise this issue with them, or at least T, again. This could not in any way be beneficial to the children. In order to ensure they are not subjected to such damaging discussion, I propose to order that the father refrain from discussing this 2009 issue with any of the children.
The father also referred to a complaint that, in early 2010, Mr W attempted to “force feed” Z some vegetables. This behaviour was alleged to be harmful to her and, according to the general thrust of the father’s case, abusive, at least to some degree. Whatever may be the view of the manner in which Mr W attempted to manage the child’s refusal to eat her vegetables on that occasion, it is clear the Family Consultant did not observe anything of concern in Z’s interaction with Mr W in October 2012.
I am not in any way persuaded on the evidence before me, that Mr W poses or has, at any time, posed a risk to T or the other children. On the evidence before me, I am not persuaded he has acted in an abusive manner toward them.
Will the children be at an unacceptable risk of harm if they spend unsupervised time with the father?
The mother alleges the children:
a)have witnessed domestic violence between the father and his partner (including seeing her slapped and have a black eye);
b)have been exposed to the risk of Police executing raids at residences inhabited by the father; and
c)have seen the father act aggressively and in a threatening manner toward her during changeover.
She also alleges the children have suffered, or are at risk of suffering, emotional harm from exposure to the father’s behaviour:
a)in crying whilst on the telephone with the children;
b)in telling the children that they will be going to his home soon;
c)in telling the children of the presents and other tangible things he has available for them at his home.
I am not persuaded that the risk of harm to the children from exposure to the behaviours outlined in paragraph 53 is such as to warrant the continued imposition of supervision over their time with the father. Whilst it may be preferable for the father to refrain from engaging in these behaviours because of the potential upset they may cause the children, I am not persuaded that occasional exposure to them is likely to cause the children lasting harm. Rather, the children will experience the father as the parent he is, with all of his foibles, weaknesses and strengths, in the same manner in which they will continue to know the mother as the parent she is, with all her foibles, weaknesses and strengths.
The remaining bases on which the mother relies for the proposition that the children will be at an unacceptable risk of harm if they spend unsupervised time with the father require close consideration.
Allegations of behaviours toward the mother
The father acknowledged in May 2011 that he can be very impulsive and has a short temper.[33] That was, I consider, clearly demonstrated by his behaviour during the Family Report interview in October 2012.
[33] Hospital notes 25 May 2011.
I accept that, during the currency of a Domestic Violence Order, the father attended at the children’s school in March 2013 and approached the mother whilst she was sitting in her car. I accept he pleaded with her to take him back and, when she declined to do so, became very angry and threatened her, saying that he was going to kill her. I further accept he grabbed a necklace from around her neck (causing it to break), attempted to remove the gold ring from her finger and took her mobile phone. I accept that the father later sent the mother a text stating that she was a “lying whore” and that, if she did not come to collect her mobile phone from his letterbox by 8.30 pm that evening, he was going to kill himself.
As a consequence of this behaviour – which I regard as threatening, attention-seeking, erratic and manipulative – Police attended at the father’s home later that evening, at which time he appeared ‘safe and well.’
Given this relatively recent behaviour, it is understandable that the mother is concerned the children may be harmed if they spend unsupervised time with the father and are similarly exposed – either personally or indirectly – to his threatening, manipulative and erratic behaviour.
I accept that, in about mid-July 2013, the father and Ms M attended the mother’s workplace and behaved in an intimidating fashion. After this behaviour, it is understandable that the mother has no trust in Ms M as a possible protective presence if the children spend unsupervised time with the father.
Allegations of risk of exposure to domestic violence between the father and Ms M
Whatever may be the current relationship between the father and Ms M, who was not a witness in this proceeding, the documentary evidence compels a conclusion that their relationship has been unstable, erratic, volatile and violent.
The father has behaved in a threatening and angry manner toward Ms M. By way of example:
a)in August 2010, after a verbal altercation with Ms M, the father hit her to the mouth area, got her into a headlock and brought her down to the floor. She suffered an abrasion to the right side of her jaw, bruising and a cut lip. Her child was in view or hearing range of the incident. A witness to this event corroborated Ms M’s assertion that the father threatened to kill her and break her legs. Ms M did not wish to make an assault complaint. When questioned by Police, the father initially denied he was at Ms M’s residence that day but then admitted that he was involved in some sort of physical altercation with her. The details he provided did not accord with those provided by Ms M. [34]
b)in about October 2010, the Police applied for and obtained a Protection Order in which Ms M was named as the aggrieved spouse and the father the respondent spouse – the Order expired in October 2012;
c)in February 2011, despite the existence of this Protection Order, the father went to Ms M’s home: he threatened to kill her by stabbing her with a knife and then left, taking her ATM card, driver’s licence and mobile phone. Ms M told the Police that she did not wish to make a complaint and was not fearful for her safety. Later interaction between Ms M and the Police revealed she was unwilling to assist them with further evidence to support what they believe to be a breach of the Domestic Violence Order;
d)on 21 July 2011, the father went to Ms M’s home, demanded to be let into the house, threatened to kick the door down, and smashed the fixed part of a sliding aluminium and glass window. Ms M’s then four year-old child was present, albeit in another room. On 3 August 2011, Ms M told Police she did not wish to make a complaint of wilful damage. At this stage, the Department concluded that Ms M’s child was at risk of harm should the violence continue;
e)on 1 March 2012, the father went to Ms M’s residence and, after arguing, the two physically struggled over a mobile phone. Whilst the father’s attendance was arguably in breach of the existing Protection Order, Ms M told the Police she did not want them involved: she said she had previously invited the father to her residence and given him a letter acknowledging this request;
f)on 15 April 2013, the father attended at Ms M’s residence and, having pushed his way through the back door, pushed her to the ground. Her child was present. He took her motor vehicle. I do not accept the father’s denials of this behaviour. Again, on 13 May 2013, the complaint made by Ms M was withdrawn.
[34] Exhibit 2, page 103.
The father has previously been charged with a breach of a Protection Order.[35]
[35] Exhibit 1: Family Report dated 29 October 2012, paragraph 78.
Given my conclusions that the father’s lack of veracity and his observed behaviour during the Family Report interview, I do not accept the father’s denials of aggressive and abusive behaviour toward Ms M.
The mother told the Family Consultant in October 2012 that the children had told her the Police had been called to intervene in domestic disputes between the father and Ms M.[36] Her evidence is supported by the children’s comments to the Family Consultant:
a)Z initially said that Ms M “always had black eyes” but later changed this statement to “always had black teeth until she got new teeth”. She said she did not see Ms M after the fights with the father because she (Z) was “always with granny and poppy when they fighted”; [37]
b)T remembered that the Police had attended at her father’s home “a few times”. She said her father and Ms M “fight a lot” and, on one occasion, Ms M called the Police: “we went to [Ms M’s daughter’s] room” when they arrived;[38]
c)B said Ms M and her father “sometimes” fight, but she did not remember if Police attended at the house.[39]
[36] Exhibit 1: Family Report dated 29 October 2012, paragraph 22.
[37] Exhibit 1: Family Report dated 29 October 2012, paragraph 60.
[38] Exhibit 1: Family Report dated 29 October 2012, paragraph 53.
[39] Exhibit 1: Family Report dated 29 October 2012, paragraph 67.
It is clear that a volatile and occasionally violent relationship has existed between the father and Ms M over a number of years. There have been occasions where, as a consequence of the actions of either and/or both of them, property has been damaged. The children have clearly been exposed to their behaviours including those which resulted in Police attendance.
Ongoing exposure to this type of behaviour will, I consider, be highly likely to be significantly detrimental to the children. Further, Ms M’s approach to the father’s behaviours – namely, to later withdraw her formal complaint to Police and ask that no further action be taken against him – suggests she is unlikely to be able to act protectively towards the children if they spend time with the father in her presence.
Even if the relationship between the father and Ms M has ended, the father’s erratic, abusive and violent behaviour toward the mother and Ms M during the existence of his intimate relationships with each of them leads me to conclude that there is a significant risk that the father will repeat this type of behaviour during future intimate relationships.
The father has been charged with assaulting a Police officer. I do not accept the explanation he offered to the Family Consultant: namely, that the charge was fabricated and came about because the Police officer was a friend of the mother’s family.[40] This explanation provides a further example of the father’s willingness to invent explanations which excuse his behaviour.
[40] Exhibit 1: Family Report dated 29 October 2012, paragraph 37.
Allegations of drug use and associated risk, including of exposure to the impact of Police raids
I accept the mother’s evidence she found syringes and syringe kits in the father’s car and plastic bags in his clothes during the relationship. I accept she saw drugs and drug paraphernalia in their home.
I take into account the contents of Police records[41] which state: “both [the father] and [Ms M] appear to be co-dependent in drug-related activities due to some level of illicit dependence and associated with those who are well entrenched in the drug dealing and supply of dangerous drugs within the greater Brisbane area and are likely to come into contact at times.”[42]
[41] Dated 27 June 2010.
[42] Exhibit 1: Family Report dated 29 October 2012, paragraph 78; Exhibit 2, page 110.
The father has a long standing history of illicit drug use. Relevant matters are set out chronologically below:
a)his criminal history commenced in August 1995 with a charge of supplying a dangerous drug;
b)in the period from August 1995 to July 2011 the father was dealt with for drug related offences on two occasions and for offences involving assault on three occasions – on one occasion he was sentenced to imprisonment for six weeks; [43]
[43] Exhibit 2.
c)on 9 May 2008, whilst in Police custody – as a result of having stolen a car whilst under the influence of the drug “Ice” – the father admitted to hospital staff that he had taken “Ice” twice intravenously the previous night. He was assessed as having agitation secondary to amphetamine use;
d)on 7 October 2009, after he was apprehended driving a car in which amphetamines were found, the father attended at the F Community Health Centre for drug diversion: he denied knowledge of the drugs and said that, whilst he had not consumed drugs at all in the previous 18 months, he took responsibility for possessing the drugs because the car belonged to his girlfriend; [44]
[44] Exhibit 2.
e)on 31 May 2010, Police executed a search warrant at the father’s residence and located a sharps container, a number of black boxes containing white powdery and/or crystal material, numerous clip-seal bags, a couple of sets of electronic scales and used syringes. The father denied that the drugs and syringes were his but admitted that the scales, cases and empty clip-seal bags belonged to him;
f)on 7 September 2010, during a hospital admission, the father reported using amphetamine intravenously the week before;
g)on 8 September 2010, the father spoke by telephone with staff from a hospital Acute Care Team, telling them he was using speed because it was “the only thing” that made him feel “relaxed”;
h)on 24 May 2011 the Court ordered the parties undergo random supervised urine drug and/or alcohol testing as requested by the Independent Children’s Lawyer – results were to be supplied within 24 hours of the request;[45]
i)on 25 May 2011, when at the hospital, the father told the treating practitioner he had used ‘speed’ four days ago and had previously used it for “self-medicating”;[46]
j)on 14 July 2011, the father attended at a Medical Centre requesting urine toxicology screen – despite this, he has not provided any results of this testing;
k)on 12 August 2011, the Court ordered both parents submit to urinalysis testing as required randomly by the Independent Children’s Lawyer;[47]
l)on 25 September 2011, the father attended a Medical Centre seeking multiple urine drug screening tests: whilst the pathology was requested (“urine drug screen x 6 at weekly intervals”), no test results have been provided by the father;
m)on 28 November 2011 the father was charged with possession of methylamphetamine after Police identified purchase of excessive amounts of precursor chemicals and restricted substances including pseudoephedrine;
n)on 12 December 2011 the father told Dr D, psychiatrist, he had used ‘speed’ “in the past” with the mother;
o)on 30 December 2011, Police executed a search warrant and discovered empty pseudoephedrine packets with the labels removed, used needles and syringes, filters, alco-wipes and clip-seal plastic bags with remnants at the father’s home. The father denied the items found were his but admitted he knew that other persons had used drugs at his home. In complete contrast to the information provided to Dr D about a week earlier, he told Police he last used methylamphetamine on 28 November 2011 – he remembered this particularly because he had attended at the Family Court that day;[48]
p)on 5 May 2012, Police executed a search warrant and located a set of electronic scales and a pair of scissors with green leafy material smelling strongly of cannabis in the father’s bedroom. He denied knowledge of these items but could not explain how they came to be there. Two visitors to the father’s house also denied any knowledge of the items. Police also found material believed to be cannabis and its remnants in the lounge room of the father’s house; and
q)in October 2012, the father was convicted of possession of a dangerous drug in the Magistrates Court.[49] He was also dealt with for a number of charges including a failure to properly dispose of a needle and syringe.
[45] Order made 24 May 2011, Clause 21.
[46] Exhibit 2.
[47] Order made 12 August 2011, Clause 5.
[48] Exhibit 2, page 53.
[49] Exhibit 2.
The father has maintained that his drug use is a thing of the past. The intention of orders that the parties undergo random testing for the presence of illicit substances was to determine whether this assertion is true or whether his drug use is ongoing and a matter which may place the children at risk if they spend unsupervised time with him.
The father failed to comply with all of the Independent Children’s Lawyer’s requests – made on: 13 July 2011; 19 September 2011; 14 November 2011; 10 February 2012; 26 April 2012; 9 July 2012; 21 August 2012; 29 January 2013, 5 March 2013, 23 April 2013 and 11 July 2013 – that he participate in drug screen testing.
He said he had failed to test because he was “stubborn” in circumstances where he considered that “nothing was being done” about Mr W.[50] As well as providing a good example of the deflective behaviour noted by the Family Consultant and Dr D, the father’s failure to comply with requests for testing – or to provide the results of any tests he has done – means I have no objective way of determining whether the father has been abstinent from drug use or not.
[50] Exhibit 1: Family Report dated 29 October 2012, paragraph 82.
The history outlined above and my assessment of the father’s veracity means that, in the absence of test results, I am not persuaded to accept his assertion that his drug use is in the past: more so given his different accounts to the Police and Dr D in December 2011.
In the context of the father’s past history of drug use, I conclude that it is more likely than not that the father failed to comply with the Independent Children’s Lawyer’s requests for drug testing because he knew there was a significant possibility such testing would demonstrate the presence, rather than the absence, of illicit substances.
It would have been so easy for the father to corroborate his assertion that his drug use is a thing of his past. Results which consistently showed the absence of illicit substances would have meant that the Court could have accepted his evidence about this – his drug use, established as a “thing of the past”, would have become a “non-issue”.
However, the absence of test results, combined with the matters outlined in paragraph 72 favour a conclusion that it is more likely than not the father continues to be involved with, and in an environment where, the consumption of illicit substances is on-going.
In case it is thought Ms M’s presence, if she is in a relationship with the father now, may guard against the risk the children may be exposed to illicit drug use or its consequences if they spend unsupervised time with the father, the evidence reveals that between August 2001 and March 2011, she was dealt with for drug-related offences on five occasions, the last in March 2011.[51]
[51] Exhibit 2.
I accept that, if the father continues to use illicit substances, this use is highly likely to significantly impair his capacity to be in charge of, and care for, the children. He has previously struggled to control impulsive behaviour which occurred at or around the time of his illicit drug use. This behaviour, including his problems in managing his outward expression of anger, has the real potential to place the children at risk if their time with him is unsupervised.
Without the benefit of pathology testing to confirm the father’s assertion that his drug use is a thing of the past, the matters summarised above compel me to conclude that the children will be at an unacceptable risk of exposure to the father’s erratic and impulsive behaviour and the possible consequences of the same if their time with him is unsupervised.
Until the father can establish that his drug use is, in fact, a “thing of the past”, concern for their safety and the impact on them of exposure to his behaviour and Police attendances at his home mandates a continuation of the imposition of supervision over their time with him.
Risk arising from the father’s previous threats to suicide
The mother also asserts that the children will be at an unacceptable risk of exposure to the father’s impulsive and potentially self-harming behaviour if they spend unsupervised time with him.
She relies, by way of example, on the events of 7 September 2010. On that day, an ambulance took the father to a local hospital after his parents discovered him with bleach, paracetamol and worming tablets lined up next to his bed. He reported that, after a fight with his girlfriend the day before, he felt like it had all “got too much,” had collected an array of substances with which to overdose – he fell asleep before carrying out his plan. He told staff that, because of the child, he did not wish to commit suicide, but admitted to a previous suicide attempt five weeks earlier where he tried to jump off a building, but then held on with his hands.[52] This behaviour also demonstrates an impulsivity which may place the children at risk of harm if their time with the father is unsupervised.
[52] Exhibit 2.
Further, on 25 May 2011 an ambulance took the father to hospital after an “intentional CO2 poisoning”.[53] When Police discovered the father asleep in his car, he told them that he attempted to gas himself – he thought the hose fell out of the window. He told the hospital he had had roughly 15 to 20 minutes of carbon dioxide poisoning and wanted to “hurt” his girlfriend so decided to try to gas himself. He denied suicidal ideation, saying that he never wanted to kill himself.
[53] Exhibit 2 – ‘Emergency Department – Patient Record’.
The father reported a history of intravenous methamphetamine use which he said was the consequence of influence from his girlfriend.[54] His presentation was assessed as “very similar” to his previous presentation – that is: “the collateral indicates that these actions revolve around getting his girlfriend to empathise with him.” Ms M confirmed the parties had argued and said she thought the father wanted to “make the point” to her. I do not accept the father’s account to the Family Consultant that he had fallen asleep in the car with the windows down after an argument with Ms M.[55]
[54] Exhibit 2.
[55] Exhibit 1: Family Report dated 29 October 2012, paragraph 38.
Despite the above, the father denied suicide attempts when he spoke with the Family Consultant in October 2012.
The mother told the Family Consultant that the father telephoned her on 24 July 2011 to advise that he was not willing to fight for the children and was going to kill himself.[56]
[56] Exhibit 1: Family Report dated 29 October 2012, paragraph 24.
In addition to the matters which occurred after separation, I accept that, during the parties’ relationship, the father threatened to harm himself on a number of occasions, held knives to his wrists, and threatened to jump off a bridge if the mother did not love him.
The mother told the Family Consultant in October 2012 she was concerned that “he might take the children with him”.[57] There is no indication in the material that the father is likely to do so: further, the children have previously spent unsupervised time in his care.
[57] Exhibit 1: Family Report dated 29 October 2012, paragraph 24.
Dr D, the psychiatrist who assessed the father on 12 December 2011, considered that the father’s behaviour represented “suicidal gestures” and attention-seeking to elicit sympathy.
Whilst I accept Dr D’s evidence, I also accept the Family Report Writer’s evidence that, without change, the father’s behaviour may place the children at risk. Exposure to behaviour which is designed to elicit sympathy or amounts to a “suicidal gesture” is highly likely to cause the children distress and confusion – at the very least.
For the reasons outlined above, I have concluded that, at present and particularly in the absence of drug testing results which demonstrate an on-going abstinence from illicit drug use and proof that the father has addressed his anger management issues, the children will be at an unacceptable risk of harm if their time with the father is unsupervised.
Can the unacceptable risk to the children be ameliorated by having their time with the father supervised by the paternal grandparents rather than at a Contact Centre?
The mother does not trust that the paternal grandparents would place the children’s interests and safety above the father’s interests. She relies on historical interactions as the basis for this belief.
First, she asserts that the paternal grandmother previously told her it was all right for the father to hit her (the mother). I accept that, during a discussion where the mother raised the father’s violence to her with the paternal grandmother, the paternal grandmother sought to justify and excuse the behaviour and to cast responsibility for the father’s actions onto the mother’s behaviour. I accept that, when the father broke her nose, the paternal grandmother talked the mother out of going to the Police, telling her it was an accident.
Secondly, in June 2009 the paternal grandparents deliberately lied to the mother, saying the father was away working when in fact he was in jail.
The paternal grandmother has never seen any drugs or accessories in the father’s possession. She has never seen any drug-influenced behaviour from him. However, she confirms that the mother previously told her that some of their fights occurred because the father had drugs.
I accept the paternal grandmother loves both the father and the children. However, I also conclude that she is likely to excuse the father’s behaviour. She may not necessarily recognise when it is appropriate for her to interfere with the interactions between the father and the children.
I also accept that the father does not fully ‘appraise’ his mother of his mental health or drug use issues. Consequently, I am not persuaded that the paternal grandmother has a full appreciation of the father’s behaviours which may pose a risk to the children.
Whilst I have concluded that the children will presently be at an unacceptable risk of harm if their time with the father is unsupervised, it is important to note that, in the event the father is able to demonstrate prolonged absence from illicit drug use such that the risk of exposure to his behaviours is lessened, the children clearly want the opportunity to spend increased time with him.
Whilst Z told the Family Consultant in October 2012 that going to the Contact Centre was “fun”, she also said she wanted to spend time at the father’s home – he told her he had decorated their bedrooms and had her books there.[58]
[58] Exhibit 1: Family Report dated 29 October 2012, paragraph 64.
T told the Family Consultant she enjoyed seeing the father at the Contact Centre and wanted to see him at his home. She did not express any concerns or worries about spending time there. She, too, knew the father was decorating their rooms and buying them new things. She said he told them he wanted to take them to Sydney to visit his older daughter.
B also told the Family Consultant she likes seeing the father and her paternal grandparents at the Contact Centre. While she thought it would be good to visit the father at his home and stay overnight, it would be okay spending time with him at the Contact Centre because she would still get to see him.
The children’s letters
The father told the Family Consultant in October 2012 that the children wanted to live with him and had written letters at the Contact Centre, to this effect, and wanted to write to the Court to this effect.[59] The father tendered a document written by each child entitled “my wish list”.[60] In these documents, each child expresses the desire to spend more time with the father and to visit him at his home. They also express a desire to spend more time with the paternal grandparents and to spend that time at their home.
[59] Exhibit 1: Family Report dated 29 October 2012, paragraph 44.
[60] Exhibit 4.
When T spoke with the Family Consultant, she said the father had asked the children if they wanted to write the letters and the paternal grandmother helped them with what to write.[61] She described the letters as being about what they (the children) wanted to do at their father’s home.
[61] Exhibit 1: Family Report dated 29 October 2012, paragraph 54.
Z said the father told them to write a letter at the Contact Centre – he and the paternal grandmother gave them ideas about where the father could take them – such as the beach – during their time with him. She initially said the father and paternal grandmother also gave her ideas about seeing the father for “a bit longer” – she changed her position to nominate her sisters as responsible for this idea and later said it was her idea.[62]
[62] Exhibit 1: Family Report dated 29 October 2012, paragraph 62.
B said the paternal grandmother was “helping me with what I should write down (and) how to spell the words.”[63]
[63] Exhibit 1: Family Report dated 29 October 2012, paragraph 68.
I consider that the father deliberately encouraged and manipulated the children to write the letters. I accept this may well have created “further stress” for the children.[64]
[64] Exhibit 1: Family Report dated 29 October 2012, paragraph 85.
The father tendered some pages from Z’s diary[65] in which she expresses a wish to spend more time with the father. She says she would like to spend the same time with him as with the mother. This “view” mirrors that held by the father. His actions, and to the extent that she was involved, those of the paternal grandmother, have further undermined the mother’s confidence that he will not expose the children to pressures to change their primary care arrangements in the future.
[65] Exhibit 5.
Whilst proper regard and weight must be accorded to the children’s views, the assessment of this must take into account the involvement of both the father and paternal grandmother in the creation of the documents received into evidence. Such is their influence that I am not persuaded to place significant weight on that which is recorded.
However, it is clear the children want to spend more time with the father and would like this to occur away from the Contact Centre. This desire can be accommodated once the father establishes an abstinence from illicit drug use.
Matters relevant to the assessment of those orders which are in the children’s best interests
The children are affectionate and comfortable with the mother and Mr W who are, I accept, appropriate with them. The two youngest children have a good relationship with Mr W and the oldest has a recently improved relationship with him.[66]
[66] Exhibit 1: Family Report dated 29 October 2012, paragraph 27.
The children love the father, have a close relationship with him and enjoy spending time with him at the Contact Centre.[67] They have a good relationship with the paternal grandparents and enjoy spending time with them at the Contact Centre.
[67] Exhibit 1: Family Report dated 29 October 2012, paragraph 30.
However, I accept the Family Report Writer’s assessment of the father as emotionally vulnerable and that there is a risk that the father emotionally manipulates the children to illicit their sympathy.
The father behaves appropriately enough toward the children in the confines of the Contact Centre. The children linger when it is time to leave, say they don’t want to leave and that the time with their father is not long enough. The interaction between the girls, their father and the paternal grandparents is positive and loving.
The father has previously assisted at the children’s school and interacted with their teachers. By virtue of her responsibility for their primary care, the mother has fully participated in decision making in relation to them and has spent significant time and communication with them.
The mother has borne the major responsibility for the financial support necessary to maintain the children. The father is unemployed and has made minimal contribution to the children’s financial support. The mother seeks, in this circumstance, that he pay all of the costs of ongoing supervision.
The children attend at a local State School. They also attend at after-school care with their younger half-sister.[68] Their most recent school records reveal excellent attendance and good participation. They have each received awards for behaviour ranging from “acceptable” to “outstanding”.[69]
[68] Exhibit 1: Family Report dated 29 October 2012, paragraphs 11 & 12.
[69] Exhibit 6.
Save for the father having previously had his licence suspended, there is no practical difficulty or expense which would prevent the children spending time with the father.
The father told the Family Consultant in October 2012 that the mother was not meeting the children’s developmental or physical needs. Such assertion is contradicted by their school reports and not otherwise supported by any independent evidence. I reject it. He was concerned about the manner in which the children were disciplined whilst in her care or in her household. None of the children made any complaint about this issue with the Family Consultant and there is nothing in the independent material to support such a contention – consequently, I reject this concern also.
After interviewing the father and reviewing the material, Dr D concluded the father had a personality disorder with “dependent, histrionic, narcissistic and antisocial features.” He considered that his significant substance abuse was “probably a reflection of personality”. Whilst this assessment may have consequences for the father’s future capacity to abstain from illicit drug use, the safety of the children is the paramount consideration.
Whilst the father identifies as aboriginal,[70] he did not provide any specific evidence as to the level of his active involvement within the indigenous community, or his plans to introduce the children to the members of his indigenous family he has met.
[70] Affidavit of Dr D filed 24 April 2012, report dated 23 April 2012, page 8.
On 1 February 2010 the father went to a Police Station to report his concerns about Mr W’s management of the children’s behaviour. He said he did not wish to return the children to the mother’s home that evening because of his fears for their safety. The children were observed to appear distressed whilst in their father’s care.
An entry dated 23 April 2010 records :
This matter “appears to be one of a number of reports that have been made by the [father] to Police and/or Department of child safety against the new partner of his ex-wife… The allegations in this instance are relatively minor. The credibility of the [father] is dubious given the previous unsubstantiated allegations. It is also noted that he is currently listed as wanted for questioning in regards to a number of stealing/fraud matters, and was located in March 2010 in possession of powder drugs (although it is noted that he claimed these did not belong to him).
In May 2010 the mother travelled to New Zealand leaving the children in Mr W’s care. When the father learned of this, he withheld the children, claiming that they were scared of returning.
The father told the Family Consultant in October 2012 the mother inappropriately withdrew one of the children from counselling, further withdrew her from tuition and enrolled her elsewhere.
The father and paternal grandmother arranged for the children to see Ms G, a clinical and educational psychologist (“psychologist”). She provided support over a six month period which ended in about October 2011. All of the children said they wanted to see their father more frequently and have more contact with him.
The father expressed concern that the matters raised by the mother represent an attempt to break the bond and connection he and the children have. I do not accept this.
The father’s own evidence makes it clear that, during the visits with the children at the Contact Centre, he tells them that they can call him any time they want and that, if they ask their mother, she “must” let them call him. He tells the girls he has clothes and belongings at his home which they will be able to play with – presumably there.
The mother complied with the Order that she attend and complete the Parenting Orders Program. She does not know whether the father has done the same.
Any family violence involving the child or a member of their family
In 2003, Police applied for a Protection Order naming the mother as the aggrieved spouse and the father as the respondent. [71] In about October 2010, the mother successfully sought a Protection Order against the father. This Order expired in October 2012.[72] After this, a further Protection Order, which expired on 3 October 2013, was made.
[71] Exhibit 1: Family Report dated 29 October 2012, paragraph 9.
[72] Exhibit 1: Family Report dated 29 October 2012, paragraph 9.
Documents produced pursuant to subpoena suggest that a Protection Order has also been made in Ms M’s favour. A Protection Order, which expired on 25 October 2012, was made.
Unsupervised time with the father would expose the children to the potential of a repeat of the father’s actions in threatening to harm the mother. It would also expose them to the potential of witnessing domestic violence between the father and his partner and being, in some way, exposed to the consequences of what is, I consider, an established history of intermittent drug use. In addition, as has previously been the case, the children would face the risk of exposure to the harm caused by the attendance of Police at their home in response to domestically violent situations.
There is no suggestion that the father has at any time physically harmed the children. However, given what I consider to be a highly reactive and aggressive response to challenges, the possibility of an uncontrolled reactionary response in the future cannot be discounted.
Such a risk would be likely to be heightened by any future drug use by the father whilst the children were in his care or at a time immediately before they came into his care.
I accept the general thrust of the Family Report Writer’s recommendation that the children should continue to spend time with the father in a supervised manner until he can establish an abstinence from illicit drug use and some modification to his occasionally aggressive and unpredictable behaviour.
Whilst ongoing supervision has limitations in terms of the restriction it imposes over the children’s ability to interact freely with the father, it will provide them with the regular opportunity to continue to maintain and develop an ongoing relationship with him until he has established an abstinence from illicit drug use and extinguished its likely impact upon his ability to control and regulate his behaviour.
Indefinite supervision
Neither the mother nor the Independent Children’s Lawyer sought that the children’s time with the father be supervised indefinitely. Rather, each sought the imposition of orders which would safeguard the children during their time with the father and which would, once he complied with a regime of drug testing, allow their time with him to occur without supervision.
I accept that it is in the children’s best interest if their time with the father can safely occur without supervision. However, for the reasons I have already expressed, I consider that, until the father demonstrates an abstinence from illicit drug use, via producing over a period of about 12 months, test results which confirm his assertion that his drug use is a thing of the past, the necessary imperative of protecting the children from an unacceptable risk of harm requires the continuation of supervision over their time with him.
The orders I intend to make will provide a mechanism by which the father can establish that he no longer uses illicit drugs. Should he be able to comply with the requirement imposed by these orders, the children’s time with him will occur on an unsupervised basis during the day.
I acknowledge that it is undesirable for the parties to be engaged in future litigation. I have, therefore, considered making a series of orders which would provide for the children to spend increasing amounts of time – in a graduated manner commonly seen in parenting applications – with the father should he comply with the orders and produce clear drug tests which establish the absence of illicit drug use. However, I have ultimately concluded that there is insufficient evidence before me upon which I could now be persuaded that, at some indeterminate date in the future, time with the father of a particular duration and/or frequency is in the children’s best interests.
For these reasons, I have specifically provided that, in the event the father provides test results which establish the absence of illicit drugs over a period of time, he have liberty to apply to seek orders that the children spend increased time with him.
Where should the supervised time take place and how should its cost be paid?
The mother asserts, because the father provides minimal financial support for the children, he should be responsible for the totality of the costs imposed by the Contact Centre. I am persuaded, given the evidence about the father’s promises to the children about the provision of material possessions, that if such an order were made he would be able to ensure the payment of the necessary costs.
The mother also seeks to change the Contact Centre from C Contact Centre to H Contact Centre. Her reason for this is that ‘whispered conversations’ occur between the father, the paternal grandmother and the children during supervised time – a matter which she is confident the rules applied by H Contact Centre would eliminate.
The mother relies on the fact that the father and paternal grandmother were able to have the children write the letters referred to above during the time at the current Contact Centre. That this happened supports, at least to some extent, the mother’s concerns about the lack of supervision – or, perhaps, that because of the period of time during which the staff have supervised the children’s time with the father, familiarity has resulted in a decrease in vigilance.
Whilst the mother’s concerns are legitimate, I must also take into account the reality that the children are familiar with the current Contact Centre, enjoy spending time with the father and paternal grandmother there and that it is more likely than not that there may be a delay in accessing a replacement Contact Centre. In the circumstances, I am not persuaded that a change of Contact Centre is in the children’s best interests.
I will, however, order that the mother be at liberty to provide a copy of these Reasons to the supervisors at C Contact Centre so as to provide context to her request that, irrespective of the timeframe over which it has occurred, supervision provided by that Centre continue to be vigilant.
Should the father be permitted to attend at the children’s schools?
The father has previously threatened the mother at the children’s schools. Counsel for the mother submitted that an order preventing the father from attending at the school would result in the children being protected from harm.
I accept this submission. I intend to order that, until the father has complied with the regime of testing I have determined is necessary before the children’s time with him can occur on an unsupervised basis, he be prohibited from attending at the children’s schools.
Parental Responsibility
If the Court makes an order that the parties are to share parental responsibility for the children and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to them, such order requires the decision to be made jointly by the parties: s 65DAC(2) of the Act.
In mid-2009 the mother went overseas for two weeks leaving the children in Mr W’s primary care. Neither she nor Mr W informed the father of this in circumstances where he had previously asked that the children spend time with him during the mother’s absence. When this information came to the father’s attention, he made a notification to the Department.
In about February 2010, the Department concluded the children were being exposed to a “consistent theme of parental dysfunction” which involved “animosity between the parents in terms of parental conflict, excessive discipline, custody issues and the children being exposed to this pattern of behaviour.”[73]
[73] Exhibit 2, page 43.
The mother told the Family Consultant in October 2012 that she could not exercise parental responsibility jointly with the father because of his previous threats and intimidation toward her.[74] The father told the Family Consultant that “the issues he has experienced with [the mother] refusing to communicate with him need to be addressed.”[75]
[74] Exhibit 1: Family Report dated 29 October 2012, paragraph 21.
[75] Exhibit 1: Family Report dated 29 October 2012, paragraph 45.
I accept that the father considers the mother has embarked upon a deliberate course of conduct designed to sever the bonds between him and the children. He regards the children as being exposed to much uncertainty and “negative manipulation” as a consequence of their mother’s actions. He considers the mother has acted in a “spiteful and damaging” way and has made false accusations about him so that his time with the children remains supervised. He considers she emotionally manipulates the children, causing them harm. He considers that her actions and accusations about his behaviour amount to a form of child abuse, neglect, domestic violence and harassment.
Given these views, it is highly improbable that the father and the mother will ever be able to communicate effectually or in a manner which would enable them to arrive at a joint decision about major long term issues relating to the children.
I accept the Family Consultant’s evidence that, during her interview with the father, he was evasive, attempted to control the process and provided a confusing and difficult account containing contradictory information. I also accept that he apportioned blame and responsibility onto others and expressed comments, as recorded in paragraph 82 of Exhibit 1, which suggested a limited capacity to engage in constructive communication and joint decision-making about the children.[76] Even absent his views about the mother, as outlined above, such behaviour would, of itself, make reaching a joint decision with him very difficult.
[76] Exhibit 1: Family Report dated 29 October 2012, paragraph 82.
The prospect of any future improvement in the parties’ ability to communicate appears extremely limited. The antipathy between them is now long-standing.
The mother has historically undertaken the majority of the children’s parenting. She has demonstrated her significant parenting capacity through her care of the children, attitude to them and resolve to ensure that, whilst they have an opportunity to continue their relationship with the father, they are protected from harm. They will remain living with her. In these circumstances, it is in the children’s best interests that the mother be placed in a position, solely, to make decisions about long term issues relevant to their care.
However, it is also in the children’s best interests that the father have an opportunity to express an opinion about decisions which need to be made about long term issues relevant to their care. For this reason, the order I make will require the mother to advise the father about a decision she intends to make, provide him with the opportunity to express an opinion and take his opinion into account. The decision, though, will be hers alone to make.
International Travel
The mother would like to be able to take the children on international holidays.
While part of this arises because Mr W’s children live in New Zealand, I have no doubt that she would also like the children to have the benefits of experiences that attend upon travel in a country other than Australia.
I accept that it is in the children’s best interests that they are permitted to travel outside of Australia for the purpose of a holiday. I am not persuaded that there is an unacceptable risk that the mother will not return them to Australia.
I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 14 May 2014.
Associate:
Date: 14 May 2014
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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Remedies
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