Muller and Preston

[2016] FamCA 607

FAMILY COURT OF AUSTRALIA

MULLER & PRESTON [2016] FamCA 607

FAMILY LAW – CHILDREN – Final – Undefended hearing - With whom a child spends time – Where the father has not complied with relevant Orders and trial directions – Where the father has not filed documents since the end of 2014 – Where the children suffer from health conditions and have high-level care needs – Where the children have a close relationship with their mother – Where the children have no relationship with their father – Where the children refuse to have a relationship with their father – Where there is evidence the father continues to abuse alcohol and engage in aggressive behaviour – Where the father presents an unacceptable risk of harm to the children in his unsupervised care.    

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
SCVG & KLD (2014) FLC 93-582

APPLICANT: Ms Muller

RESPONDENT: Mr Preston

INDEPENDENT CHILDREN’S LAWYER: Ms Boughton

FILE NUMBER: BRC 8715 of 2012

DATE DELIVERED: 27 July 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 7 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A. Frizelle

SOLICITOR FOR THE APPLICANT: Power & Cartwright Solicitors

THE RESPONDENT: No appearance by or on behalf of the father

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr M. McAuley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boughton Legal

Orders

1. That B born … 2001, C born … 2004 and D born … 2006, (“the children”) live with the mother.

2. That the mother have sole parental responsibility for the children.

3. That the father spend no time with the children.

4. That the father be at liberty to communicate with the children in response to a communication from the child/ren.

5. That the father be restrained and an injunction hereby issues restraining the father from attending the mother’s place of residence and any school attended by the children without the prior written consent of the mother.

6. That the mother and father use their best endeavours to keep the other parent informed of their residential address, contact telephone number and email address from time to time and advise the other parent of any change to same within seven (7) days of such change.

7. That the mother use her best endeavours to notify the father within seven (7) days of the children suffering any serious illness or injury.

8. That the mother use her best endeavours to keep the father informed at least twice a year as to the children’s progress in their education and provide to him copies of any school reports.

9. That the parties refrain from denigrating the other party and/or their respective families in front of the children and not expose the children to any other person doing so.

10. That the appointment of the Independent Children’s Lawyer be discharged.

Note: The form of the Order is subject to the entry of the Order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Muller & Preston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8715 of 2012

Ms Muller

Applicant

And

Mr Preston

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This hearing is proceeding in the absence of the father.

2. The parties to these proceedings are Ms Muller  (“the mother”) and Mr Preston (“the father”).

3. The mother seeks a parenting order in relation to three children, B born in 2001, C born in 2004 and D born in 2006 (“the children”).  There is a fourth child of the relationship, E born in 2000, who is not the subject of any Order in these proceedings.

4. The mother, in her Further Amended Initiating Application filed 5 July 2016, sought the following orders (as further amended by leave):

   a)That B, C and D (“the children”) live with the mother;

   b)That the mother have sole parental responsibility for the children;

   c)That the children spend time and communicate with the father as follows:

   i)With B and C at F Contact Centre, for two hours supervised each fortnight with the father to be responsible for the costs of same;

   ii)With D only in accordance with any recommendations made by the child’s treating psychologist and otherwise, no time; and

   iii)By internet, email, Skype and any other such form of online communication as may be reasonably requested by the children each Saturday at 6.00 pm with the father to initiate such communication and the mother to facilitate same;

   d)That the father not be permitted to attend the mother’s place of residence and is not to attend any school attended by any of the children;

   e)That the mother and father use their best endeavours to keep the other parent informed of their residential address and contact telephone number from time to time and are to advise the other parent of any change to same within seven days of such change;

   f)That the mother is to notify the father within seven days of the children suffering any serious illness or injury; and

   g)That the parties shall refrain from denigrating the other party and/or their respective families in front of the children and shall not expose the children to any other person doing so.

5. The father engaged in these proceedings until late 2014 and sought the following specific orders in his Amended Response filed 28 October 2014:

   a)That the mother and father have shared parental responsibility;

   b)That B, C and D live with the mother;

   c)That E live with the father;

   d)That the father spend time and communicate with B, C and D as agreed between the parties but failing agreement for four hours each Saturday, by telephone or Skype at least once per week and on Christmas Day and each of the children’s birthdays for four hours; and

   e)That the mother spend time with and communicate with E as agreed between the parties;

   as well as other general orders in relation to the father being allowed access to information relating to the children from their school and medical practitioners.

6. Despite numerous procedural Orders since that time, the father has failed to appear or comply with those Orders. The father was advised by post and email of this hearing and that it would proceed as an undefended matter if he failed to appear.

7. The child E, who is currently 16 years old, has been self-placed and living independently since 2015 and the mother does not seek any order in relation to E.

8. The Independent Children’s Lawyer sought the following orders in the Outline of Case document filed 1 July 2016:

   a)That B, C and D (“the children”) live with the mother;

   b)That the mother have sole parental responsibility for the children in respect of all major long term issues;

   c)That the father is not to attend at the mother’s place of residence and is not to attend any school attended by any of the children;

   d)That the mother and father are to use their best endeavours to keep the other parent informed of their residential address and contact telephone number from time to time and are to advise the other parent of any change to same within seven days of such change;

   e)That the mother is to notify the father within seven days of any of the children suffering any serious illness or injury; and

   f)That the mother shall not denigrate the father and/or his family to or in the hearing or presence of the children.

9. The Independent Children’s Lawyer did not initially seek an order precluding the father from spending time with the children although silence on that issue was intended to reflect that position. Ultimately, the Independent Children’s Lawyer sought an order that the father spend no time with the children.

Relevant background facts

1. The mother and father commenced their relationship in 1998, were married in 2010 and separated on a final basis on 18 March 2011.

2. The children of the relationship suffer from specific health conditions and have high care needs.

3. B suffers from Attention Deficit Hyperactivity Disorder (“ADHD”), Left Horner Syndrome and a Pervasive Developmental Disorder (not otherwise specified).

4. C suffers from severe anxiety and was recently diagnosed with Post Traumatic Stress Disorder.  On 10 November 2014, C was hospitalised after attempting suicide by way of ingesting medication.  C also suffers from food allergies, obsessive compulsive traits and urinary frequency.

5. D suffers from Autism Spectrum Disorder (“ASD”), Pervasive Developmental Delay, generalised anxiety and ADHD.

6. There has been a history of family violence between the parties and the children. Protection Orders naming the mother as the protected person were made in 1999, 2002, 2004, 2011 and 2015. As a result of an assault of E by the father on 19 March 2011, the parties separated and the mother and children thereafter spent five months living in a refuge. The mother contends that she has been subjected to significant physical violence from the father. The children have been a witness to such violence. The father has been found guilty of breaching protection Orders in 2000, 2001, 2004, 2011 and 2012.

7. In 2012 E was voluntarily placed in the care of the Director-General of the Department of Communities, Child Safety and Disability Services after he assaulted B. E spent nine months living with the maternal grandfather and then with the father until 30 May 2015. E returned to the mother’s care after he was assaulted by the father. This placement broke down as a consequence of E’s drug use and refusal to comply with the mother’s house rules. On 11 February 2016, the Department withdrew its involvement with E given his age and that he was extremely resistant to their intervention. It was noted he was then living with his girlfriend at G Town and attending a flexible learning centre located in H Town. The mother has not had any contact with E since that time.

8. On 2 June 2016, the father was convicted of assault occasioning bodily harm for punching E in the face in February 2016 and was sentenced to six months’ imprisonment wholly suspended for two years.  The father was further convicted of assaulting the mother on 27 June 2016 and sentenced to 12 months’ probation on 1 July 2016.  On that day, the Police took out a protection Order on behalf of the mother with the father being the respondent, the mother being the aggrieved and the children, B, C, D and E being persons named by the Order.  That Order is in place until 1 July 2017.

9. The mother remarried in 2015. She and her husband, Mr Muller, live with the children in rented accommodation in H Town. She and Mr Muller have known each other since school and had been in a relationship for about four years prior to marriage. Mr Muller has five children to previous relationships. He is in receipt of a disability support pension and a carer’s pension in relation to D. The mother is a full time mother and receives a parenting payment.

10. B is currently home schooled and is achieving at a high standard in her academic studies and is settled and in a routine. C attends H Town School where he is in grade six. D attends H Town School and is currently in grade four.

11. D has been seeing a psychologist, Mr I, for a number of years. D has been assessed as having a heightened fear and anxiety response to seeing the father at this time.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer (see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637) The Court is not required to make findings of fact on every factual dispute raised by the parties (Baghti & Baghti [2015] FamCAFC 71).

2. Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:

   a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)Parents should agree about the future parenting of their children;

   e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

5. Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In applying the primary considerations the Court is to give greater weight to the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

7. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

8. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

9. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination (Banks & Banks (2015) FLC 93-637).

Father’s involvement in the proceedings

1. On 8 June 2016, I made an Order, at paragraph 5, that if the father did not comply with previous Orders made in relation to filing a Notice of Address for Service and updating material and did not comply with the trial directions made on 26 September 2014, being paragraphs 9, 10, 12 and 13, then the matter was to proceed as an undefended hearing on 7 July 2016.

2. The father attended upon Ms J at K Psychology on 16 May 2015 for interviews to enable Ms J to prepare a family report.  The father saw B, C and D on that day but has otherwise spent no time with the children since the last supervised visit on 7 March 2014.

3. The father failed to comply with Orders made by this Court on 20 April, 26 April and 8 June 2016 and has filed no material in these proceedings since 10 December 2014.

4. The father made no appearance at the trial of this matter on 7 July 2016 nor was there any appearance on his behalf.  The trial therefore proceeded as an undefended hearing pursuant to the 8 June 2016 Order.

Evidence from family report writer

1. Ms J prepared a family report dated 16 May 2015. I note the following matters arising from her interview with the father:

   16.      …

   iii. [Mr Preston] acknowledges that he has no relationship with [B], [C] and [D] …

   …

   19. [Mr Preston] did express some lack of insight into the severity of his domestic abuse in the past, with little remorse. He did however indicate that he had been predominantly sober over the preceding couple of months, and had no binge drinking episodes since the final separation from [Ms Muller] in 2011.

   …

   27. [Mr Preston] confessed that he was previously a binge drinker but that he had not binged since the 2011 separation and that he had not consumed alcohol for the last couple of months. …

   …

   29.… Consideration to role model behaviour is imperative to productive parenting, particularly as [E] draws nearer to driving age and in light of an incident recently where [E] stole [Mr Preston’s] car, took it for a joy ride with a friend, and crashed the car …

   …

2. In relation to her interviews and observations involving the children I note:

   …

   73. As the conversation with the children went on, we spoke more and more on [Mr Preston]. [B] and [C] indicated that they would spend a little time with him under observation but [D] still refused. …

   …

   75. The conversation between [Mr Preston] and [B] and [C] flowed well and while they had not seen each other for some time, there was only a little hesitation in the room. …

   76. … [C] indicated that he would be happy to see his father as he is not that scared. [C] was more concerned that [Mr Muller] and [Ms Muller] would be upset with him for wanting to see [Mr Preston]. It is imperative that [C] be able to explore a relationship with [Mr Preston] as he has expressed this interest, and that any future relationship between [C] and [Mr Preston] not be hampered by other parties unless a legitimate concern for [C’s] safety arises. It is unlikely that this would occur within the restrictions of a supervised visitation arrangement. It is further likely that [Mr Preston’s] relationship with [B] may also develop if [B] draws confidence form [C’s] positive interactions with his father.

3. Ms J made the following recommendations:

   79. Firstly, I cannot recommend any unsupervised, unregulated, unplanned or extended visits between [Mr Preston] and [B], [C] and [D] at this time. This would overwhelm the children and would be potentially detrimental to the long term relationship that [Mr Preston] is seeking with the children.

   80. It is recommended that all interactions between [Mr Preston] and his children first be undertaken through Integration Therapy sessions with a local psychologist, …

   …

   83.It is … recommended that supervised visitation be arranged initially between [C] and [Mr Preston] …

   84. … that this arrangement be offered to [B] and [D] when they feel they would like to approach visitation with [Mr Preston]. This should be arranged under the guidance of the attending psychologist, [Mr I].

   …

   88. … It is important for [Mr Preston] to accept and acknowledge that relationships marred by violence and family breakdown take considerable time to heal, and that this must be done in a slow manner, and an emotionally and physically safe environment, …

   89. … Providing [Mr Preston] with an opportunity to prove to the family that he is capable of forming non-violent relationships with family members, places the responsibility upon his shoulders to show that he is genuine in his desire to have these relationships. …

   …

   95. I recommend that [Mr Preston] seek regular treatment with a psychologist to learn appropriate interaction skills for [B], [C] and [D], …

   (errors in original)

1. A number of documents were tendered by consent and which I have perused.  I note in particular:

   [Queensland Police records]

   a)27 June 2015 - the father took C from hospital. The mother attended at his home to retrieve C and a heated verbal argument ensued. The father was grossly intoxicated and refused to return C. The father grabbed the mother on the breast and buttocks and threw punches at witnesses. The police intervened to assist C to be returned to his mother. This altercation occurred in front of C. The Police obtained a protection Order in favour of the mother as a result. The father also was a respondent to another protection Order in favour of another ex-partner which was still current at that time.

   b)12 January 2016 – the Police attended a caravan park where the father and his partner of four months were living. The father and his partner had been drinking all day and ended up in a physical altercation. The father was the aggrieved on this occasion.

   c)16 January 2016 – the Police attended a park in L Town in response to a call regarding a disturbance involving the father and his partner who had been living in a tent in the park for two nights as a result of being evicted from the caravan park. The father admitted to having been drinking and pushing his partner and to their raising their voices.  Neither sought further assistance from Police.

   d)27 February 2016 – the Police responded to a complaint by the father’s partner that after she and the father had been drinking, the father had assaulted her. The respondent was happy for his partner to leave as long as she did not take his alcohol.  

   [Department of Communities, Child Safety and Disability Services – report from Complex Care Interaction]

   e)This report highlights the father’s ongoing issues with alcohol abuse as at mid-2015.

Discussion and findings

1. The children have a close relationship with their mother and currently have no relationship with the father. The children have a close relationship with Mr Muller whom they refer to as ‘dad’.

2. The father has a long and ongoing problem with alcohol abuse. He assaulted the mother most recently in June 2015 and a further protection Order was made in her favour. He has a history of breaching such Orders. The father has been convicted of assaulting E in 2015.

3. The children have been exposed to family violence between their father and mother for a significant portion of their lives and have a need to be protected from violence and exposure to violence.

4. While C expressed a wish to see and get to know his father during the family report interviews such a wish preceded the assault on his mother, in his presence, in June 2015. B agreed to see the father during the interviews but D refused. The mother contends that all three children now refuse to have any contact with the father and I accept that evidence. The mother nevertheless contends that she would support B and C spending time with the father if it were supervised.

5. The father has not participated in making decisions about the children despite the mother inviting his input. He has refused to make any financial contribution. This is particularly troubling given the many and varied health issues of the children and the additional costs required to have their needs attended to. The children are currently financially supported by the Australian taxpayer.

6. The children are having their physical and emotional needs met by the mother and Mr Muller.

7. There is no evidence that the father has undertaken the psychological intervention recommended by Ms J. The evidence certainly supports the finding, which I make, that he continues to abuse alcohol and engage in violence. His living circumstances appear to be chaotic.

8. I am satisfied that the father poses an unacceptable risk of harm to the children were he to spend unsupervised time with them.

9. Quite apart from the risk of harm from exposure to family violence, D has an ongoing fear and anxiety of the father which, given his autism, complicates any treatment. His anxiety has resulted in his soiling his pants at the mere mention of the father’s name. He continues treatment with his psychologist. Whether he can overcome that fear or anxiety is unclear but certainly at this time I am of the view that there is a risk of psychological harm to D were there to be any time with the father.

10. The Independent Children’s Lawyer urged me to make an Order that the father have no time with the children. The mother urged me to make an Order for supervised time for B and C as she submits that the father has historically complained that she has hindered his spending time with the children and she is concerned to ensure that in the future, the father will not be able to misrepresent the position when and if he sees the children. In this regard, I note that the contact centre in H Town where time was to be supervised pursuant to an earlier Order withdrew its services as a result of the father’s conviction of assaulting his son, E. The mother contends that the F Contact Centre will accommodate supervised time.

11. I am not currently satisfied that spending even supervised time with the father would be in the best interests of B or C. The father has failed to involve himself in these proceedings and the most recent evidence before me supports my finding that he continues to abuse alcohol and engage in violent acts.

12. While the Order I propose to make is a final Order, in the event the father undertook an intensive and long term therapy program to address his ongoing alcohol abuse and anger management issues and addressed the further issues recommended by Ms J, it may well be that he would be able to demonstrate a significant change in circumstances sufficient to warrant a further application.

13. At this point I do not consider the mother’s reasons to be sufficient to make a spend time with Order.  

14. Given the family violence, the presumption in relation to parental responsibility does not apply, and in any event, would not be in the best interests of the children.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 27 July 2016.

Associate: 

Date:  27 July 2016