O'Keefe & O'Keefe

FAMILY COURT OF AUSTRALIA

O’KEEFE & O’KEEFE

[2009] FamCA 382

FAMILY LAW – CHILDREN – BEST INTERESTS – Family of six children – Children exposed to father’s violence during the course of the relationship between the mother and the father – Actual violence to some of the children – Finding made of a need to protect the children from physical or psychological harm from being subjected to or exposed to family violence by the father – Eldest child now 18 years – Orders made for the five younger children to live with the mother and for the three younger children to spend supervised time with the father with the second and third eldest attending if they wish – Authorities concerning long term supervision considered – Although final orders made provision made for the father to commence fresh proceedings after 18 months limited to a proposal by him that the children or any of them commence to spend unsupervised time with him having regard to the respective ages of the children the father’s genuine efforts to rehabilitate himself and his genuine desire to have a meaningful parenting role in the children’s lives – Consideration given to Maori culture in the children’s lives

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA

Moose & Moose (2008) FLC 93-375
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Ms O’Keefe

RESPONDENT:

Mr O’Keefe

FILE NUMBER:

BRC

12346

2007

DATE DELIVERED:

11 May 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

23, 24, 25, 26, 27 March and 9 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Pieterse

SOLICITOR FOR THE APPLICANT:

Family Law Doyle Keyworth & Harris

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Hogan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Adcock
Legal Aid Queensland

Orders

Children live with the mother

The children B born … August 1993, C born … April 1995, D born … June 1998, E and F (twins) born … December 1999 (the children) live with the mother.

Mother have sole parental responsibility for the children

The mother have sole parental responsibility for the children.

D, E and F

The mother ensure that D, E and F attend before and after school care on days when she is working or attending college; that she personally deliver D, E and F to before school care on all days on which they attend before school care; and that they be collected from after school care by a responsible adult on all days on which they attend after school care.
D, E and F spend supervised time with the father at either the Eight Mile Plains Contact Centre, or such other contact centre as may be able to be arranged by the father, on alternate weekends on either a Saturday or a Sunday, for two hours.
The father and the mother attend for such intake interviews as may be notified to them by the Eight Mile Plains Contact Centre, or such other contact centre as the father may be able to arrange, and keep the Eight Mile Plains Contact Centre or such other contact centre informed as to his and her contact details for the purpose of notification of appointments.

B and C

If B and/or C should express to the mother a desire to see the father she must ensure that they attend with D, E and F on such occasions as they wish.

Communication

The mother within 14 days establish a postal address at a post office box (the mother’s post office box address) to enable the father and members of his extended family to send letters, cards and gifts to the children, and notify the independent children’s lawyer of that address to enable her to provide it to the father.
The father within 14 days establish a postal address at a post office box (the father’s post office box address) to enable the father and members of his extended family to receive letters, cards and gifts from the children, and notify the independent children’s lawyer of that address to enable her to provide it to the mother.
The mother may open and read all written communications addressed to the children and received at the mother’s post office box address and if she considers any content to be inappropriate or to relate to adult issues forward the written communications to the independent children’s lawyer.
If the children wish to send letters, cards or gifts to the father or to members of his extended family, the mother facilitate that by assisting the children in that endeavour and by forwarding such by post to the father’s post office box address, provided that the mother may ensure by appropriate inspection that such communications do not reveal to the father the residential address of the mother and the children nor the name or locality of the children’s school or schools.
The mother, within 14 days of receipt by her of the children’s school reports, send copies to the father at the father’s post office box address, provided that, first, she may ensure that the copies, by appropriate deletion, do not reveal the name or locality of the children’s school or schools.
The mother must notify the independent children’s lawyer and Mr H, family consultant, or in his absence the person holding the position of Regional Manager, Child Dispute Services of any serious accident or medical emergency concerning any of the children.

Section 65L assistance

Pursuant to s 65L of the Family Law Act 1975 (Cth), Mr H, family consultant, or such other family consultant as may be nominated by the person holding the position of Regional Manager, Child Dispute Services, give the parties such assistance as reasonably they may request in relation to compliance with and the carrying out of these parenting orders.

All previous orders discharged

All previous orders concerning the children are discharged.

All other applications dismissed

All other applications concerning the children are dismissed.

Fresh proceedings

The father, after 18 months from the date of these orders, may institute fresh proceedings concerning the children, limited to any proposal by him that the children or any of them commence to spend unsupervised time with him.

Independent children’s lawyer not discharged for 12 months

The independent children’s lawyer not be discharged for 12 months.

Independent children’s lawyer to provide copy of orders and reasons to contact centre

The independent children’s lawyer as soon as practicable provide to the Eight Mile Plains Contact Centre, and such other contact centre as the father may request, a copy of these orders and a copy of the reasons for judgment.

NOTATION:

Otherwise than as contemplated by the express terms of order 16, it is not to be read so as to conflict with application of the principles in Rice v Asplund (1979) FLC 90-725 should there be a significant change in circumstances concerning the parties or the children.

IT IS NOTED that publication of this judgment under the pseudonym O’Keefe v O’Keefe is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BFC 12346/2007

MS O’KEEFE

Applicant

And

MR O’KEEFE

Respondent

REASONS FOR JUDGMENT

The parties, the children and the applications

Ms O’Keefe (the mother) and Mr O’Keefe (the father) have six children. They are a daughter A, born in May 1991, 18 years, a son B born in August 1993, 15½ years, a son C born in April 1995, 14 years, a daughter D born in June 1998, nearly 11 years, and sons E and F (twins) born in December 1999, 9½ years (the children).
The mother by amended initiating application filed on 10 December 2007 (original filed on 24 October 2007) seeks orders that the children live with her, she have sole parental responsibility for them and the children spend time with and communicate with the father as may be ordered by the Court.
The father by his amended response filed on 22 January 2008 (original filed on 1 November 2007) seeks orders that the children live with him, the parties have equal shared parental responsibility for them and the children spend time with and communicate with the mother as the parties may agree but failing agreement as set out in his amended response. However, in his trial affidavit, the father proposed instead that the children live with him, that “at least for the next 3 months” the children and he reside with his sister Ms G and her husband Mr G, he “be assisted in the care” of the children by Mr and Mrs G, the children spend time with the mother on alternate weekends from Friday afternoon until Sunday evening, spend time with each parent equally during the school holiday periods and other orders relating to several other matters to which presently I need not make specific reference.
The child A attained 18 years in May 2009. In the circumstances, it is not appropriate to make parenting orders concerning her.

The issues

The issues, as identified by the parties (see for example the father’s case document filed on 18 September 2008 and the mother’s case document filed on 19 March 2009) include:
·The effect on the mother and the children of what the mother describes as a significant history of family violence by the father
·Whether as a consequence the children are fearful of the father
·Whether the father is able to engage with the children without involving them in adult issues
·The parties’ respective parenting capacities, in particular from the mother’s perspective whether the father can provide the children with a safe physical and emotional environment and from the father’s perspective whether the mother can provide sufficient time for the children having regard to work and study pursuits and having regard to the number of children and her use of a carer to assist her
·The mother’s willingness and ability to encourage a close and continuing relationship between the children and the father.
The issues, as identified by Mr H, the family consultant engaged in the matter, who prepared the Children and Parents Issues Assessment, are:
·With which parent the children should live and accordingly what time they should spend with the other parent
·How the children best may maintain a relationship with each parent
·The exposure of the children to conflict and family violence and the impact this has had on the children
·The safety of the children from physical and emotional harm.
It is convenient to deal with these issues within the broader context of the statutory matters I am required to consider concerning the children’s best interests.

Background matters

The father is about 48 years. He is of Maori descent. The mother is about 41 years. She is of European descent. The parties met in Christchurch, New Zealand, in about October 1984, shortly before the mother’s seventeenth birthday, the father then being about 23 or 24 years. They married in Australia in August 1988, about two years after moving here together from New Zealand. They separated in October 2007 and were divorced in December 2008, becoming absolute in January 2009.
Since the parties’ separation the five younger children have lived with the mother. At separation, whilst A, the eldest child, had a bedroom in the parties’ home, it appears she would “go away and come back”. After the separation A did not live with the mother for about 6 or 7 months then began to live with the mother intermittently. At the time of the trial A had lived with the mother for about 5 months.
The father is a security officer. However at the time of the trial his security officer’s licence was under suspension related to an incident which the father described as his assisting a person under assault by another, with initial mistaken assessment as to the father’s involvement in the incident. At the time of the trial the father anticipated the restoration soon of his security officer’s licence. In the meantime, he has engaged in casual employment in the building industry.
The mother in the past has had employment in customer service. In recent times she has obtained a Certificate III in Business Administration, a Certificate III in Medical Administration and a Certificate in MYOB, all from a TAFE college. Presently she is pursuing a Business Management course full time.
The mother and the children live at an undisclosed address. The four younger children attend a local school or schools, undisclosed. B, the second eldest child, obtained his Year 10 Certificate in 2008. During Term 1 2009 he has been endeavouring to obtain an apprenticeship. Earlier this year he had an apprenticeship arranged but it did not progress. The mother said that unless B has arranged an apprenticeship by the commencement of Term 2 2009 he will return to school for Year 11. A is on a waiting list for a TAFE course.
On 24 March 2009, on the application of the mother’s Counsel, I approved that the mother need not during the course of these proceedings disclose the residential address of herself and the children nor the name or locality of the children’s school or schools and gave brief reasons for adopting that course.

Family violence orders

On 29 October 2007, soon after the separation, the mother obtained a temporary protection order against the father. On 4 December 2007, a protection order was made. However, on 29 January 2008 it was revoked and the temporary protection order reinstated. The basis for this occurrence was that on 4 December 2007 the father had attended court to defend the proceedings but by procedural error it was dealt with in his absence. For reasons which are unclear, that temporary protection order subsequently was withdrawn and substituted by a fresh temporary protection order which after a hearing on 24 September 2008 resulted in a further protection order made on 31 October 2008. On that date the father also was found guilty of three breach allegations relating to the initial temporary protection order. No conviction was recorded but the father was placed on 18 months probation. The father has appealed both the convictions and sentence in relation to the breaches and also the imposition of the current protection order. At the time of the trial the appeals were still pending. See exs 4 and 5.

Criminal charge father concerning the child A

In August 2007, the father pleaded guilty to a charge of assault occasioning bodily harm whilst armed/in company, in relation to which no conviction was recorded and he was released on his own recognizance of $200 to be of good behaviour for 12 months. See ex 4. The incident leading to the assault charge occurred on Easter Friday 2006 and concerned the father hitting A with a studded belt. The father described the incident as one of physical discipline of A in circumstances of her defiance of him. He said that although the belt was studded, the studs were round and “not pointy” and that he had not seen that the belt was buckled.

Criminal charge mother

In about 1992, the mother was dealt with in the District Court at Auckland relating to an incident concerning some clothing in the father’s sister’s caravan. No documentary evidence was offered at the trial, for better detail. The mother said that no conviction was recorded and she was “fined on the spot” $145, apparently set by the amount she had in her purse. It is unclear, despite the mother’s description that she was “fined on the spot”, whether the amount was a fine or restitution.

Orders concerning the children since the separation and history of time spent by the children with the father since the separation

On 12 November 2007, interim orders were made in the Federal Magistrates Court by Slack FM that the five younger children live with, spend time with and/or communicate with the mother and the father as agreed between them but failing agreement the children spend time with the father on alternate Saturdays from 8am until 7pm and otherwise live with the mother, for telephone communication with the father and other orders.
On 10 December 2007, further interim orders were made in the Federal Magistrates Court by Slack FM that the children (seemingly, again, only the five younger children) live with, spend time with and/or communicate with the mother and the father as agreed between them but failing agreement the children spend time with the father, supervised, at or by the Eight Mile Plains Contact Centre for three occasions of two hours fortnightly and subsequently for four hours on alternate Saturdays from 9am until 1pm with changeover at the contact centre, and otherwise live with the mother and other orders.
The regime set up by the interim orders made on 10 December 2007 was not successful. I will deal with this aspect of the matter in detail below. Briefly however, for present context, the Eight Mile Plains Contact Centre is run by Relationships Australia. The orders resulted in only two supervised visits at the Eight Mile Plains Contact Centre, 24 May 2008 and 19 July 2008, before Relationships Australia, by letter dated 21 July 2008, wrote to the father advising it was unable to offer further supervised visits because of the father’s alleged breach of the Service Agreement signed by him on 1 February 2008, notifying thus withdrawal of the service and requesting the father “not to present at any branch of Relationships Australia in the future”. See ex 3.
On 25 March 2008, Bell J made an order for telephone communication between the children and the father to occur on 27 March 2008 and listed for hearing on 31 March 2008 two contravention applications by the father against the mother.
On 31 March 2008, Barry J dismissed the father’s contravention applications.
On 19 June 2008, Day 1 of the Division 12A trial, I ordered by consent that the order made on 10 December 2007 in relation to time at the Eight Mile Plains Contact Centre be varied (as set out in the order) and further that the three younger children, D, E and F spend time with the father to be arranged and facilitated by Mr H, the family consultant engaged in the matter, pursuant to s 65L of the Family Law Act 1975 (Cth); and other orders, including that the mother arrange for C, the third eldest child, to attend with D, E and F if he should express the wish to do so; and that she use her best endeavours to have C attend with Mr H at Mr H’s request and to attend with D, E and F if that should be advised to her by Mr H.
Mr H provided a comprehensive report dated 17 February 2009 and an addendum report dated 5 March 2009 in relation to time the children spent with the father supervised by Mr H on 27 June 2008, 11 July 2008, 24 December 2008 and 25 February 2009.
C, D, E and F attended the first visit, 27 June 2008, which involved not only the father but also the paternal grandmother. According to Mr H’s report the visit was successful, including the father talking with the children about aspects of Maori culture. However at the end of the visit the father hugged the children and said to them “Give [A] and [B] a hug for me, and Mum as well”. Mr H pointed out to the father, after the visit, that it was not appropriate that he ask the children to pass on messages of affection to the mother on his behalf and recorded that the father had said to him to the effect that he “still considers himself to be married to and in a relationship with [the mother]”.
The second visit, 11 July 2008, was attended by C, D, E and F, and also by B. According to Mr H’s report, although the interaction between the father and the children was affectionate, friendly and jovial the father told B and C that it was their responsibility to “look after the other children” and that the father, for a period of about five or ten minutes, pointed out that the younger children had dirty hair and dirty clothes, and were untidy and dirty, referred also to C having dirty socks and hair, and said (apparently to B) “You haven’t been looking after them. It’s you and [C’s] job to look after them”. Mr H reported that the children were “noticeably quiet and uncomfortable” when the father was commenting negatively on their cleanliness and presentation, but that the visit ended well with the father and the children giving each other hugs and the father giving the children some money. Mr H said that after the visit he told the father that it was inappropriate for him to comment on what he saw as neglect of the children’s care. More positively, Mr H told the father that if could refrain from making such comments he would “support a move to having supervised visits at a contact centre”.

In relation to the third visit, 24 December 2008, C attended but only for the purpose of telling Mr H personally that he did not wish to see the father, giving Mr H the information that some 7 or 8 weeks earlier he had telephoned the father who immediately “went off, swearing and telling me what to do”. He told Mr H that the reason he did not wish to see the father was that he was “worried his father would be angry at him again”. The visit proceeded with D, E and F. Mr H observed that the father was less jovial than on previous visits but that the children enjoyed seeing him and openly said they were happy to see him. The father gave the children Christmas presents and at the end of the visit the father and the children hugged and farewelled each other affectionately.
In relation to the fourth visit, 25 February 2009, C arrived with D, E and F and said he wished to see the father. According to Mr H’s report the children were all pleased to see the father and greeted him warmly and had happy and positive interaction with him. The father talked to the children about his relatives in New Zealand and how many of them were going to come to Brisbane in the coming weeks to have a “big get together” and that they would stay on a farm and ride horses. Mr H said that after the visit the father expressed his view to Mr H (which he had previously expressed) that the mother was controlling the children and trying to prevent him from having contact with them and that he also “expressed some anger” that she had obtained a divorce.
Mr H said that about half an hour after the conclusion of the visit on 25 February 2009 the mother telephoned him and told him that the children had told her that during the visit the father had made a threat in relation to the mother’s “boyfriend”, that the father and his relatives were “coming to get him” and that this had occurred while they were all “up against the window”. Mr H explained that during the visit he had been out of earshot for only “approximately 20 seconds” and that during this time the father and the children had been “all located near to the window of the room, talking and looking out at the view”.
In Mr H’s Summary and Assessment in relation to the s 65L sessions (at the conclusion of his report dated 17 February 2009) he said that whilst overall the father had been cooperative he continued to hold very strong views about his family’s circumstances. He said that whilst the father accepted and acted on feedback about specific behaviours he appeared not to understand the concept of not exposing the children to his views on contentious issues or enmeshing them in adult disputes. Mr H said that the father appears to change his behaviour as he feels he has to in order to see the children rather than as he understands and accepts the principle behind the feedback, and that his underlying beliefs and attitudes “do not appear to have changed”. Mr H described B and C as “ambivalent” about contact with the father because of their experience of him as being, at times, angry and aggressive, describing the three younger children’s interaction in more positive terms. He cautioned however that if the children are further exposed to the father being angry and aggressive to others or if over time he should become angry or aggressive towards them they will “most likely become ambivalent about seeing him, as have [C] and [B]”.
Amongst other observations, Mr H concluded that if the services of a contact centre cannot be used “there seems no other way of providing the supervision needed”, explaining that it is “not possible for the Child Dispute Services of the Family Court to do so after final orders are made”.
It is convenient, having regard to Mr H’s observations during the s 65L process, to refer now in more detail to the regime of supervised time with the father the subject of the interim orders made by Slack FM on 10 December 2007.
The following, it appears, is an accurate summary of the parties’ intake and commencement history at the Eight Mile Plains Contact Centre:
·The father contacted the contact centre shortly after the orders made on 10 December 2007, indeed, before Christmas, and seemingly before E and F’s birthday in December 2007
·The father attended an intake interview on 1 February 2008, and signed the Service Agreement (ex 1, pp 425-8)
·The mother contacted the contact centre in early February 2008
·The mother attended an intake interview on 21 February 2008, and signed the Service Agreement (ex 1, pp 421-4)
·The contact centre, by letter dated 26 April 2008, offered a supervised visit on 4 May 2008, which the mother did not take up because she already had arrangements in place that weekend for the children (apparently, this date was offered as a casual vacancy because of a cancellation by another family and was not offered on the basis of the commencement date of the anticipated three fortnightly supervised visits)
·The contact centre, by letters dated 15 May 2008 to each of the parties, offered a “start date” of Saturday 24 May 2008 for fortnightly visits for the children to spend time with the father between 12.30pm and 2.30pm with the mother to drop the children off at 12 midday and collect the children at 3pm (ex 1, pp 419-20).
The following ensued:
·24 May 2008: first visit
·7 June 2008: no visit (cancelled by mother: see the case note ex 1, p 434)
·21 June 2008: no visit
·5 July 2008 no visit
·19 July 2008: second and final visit: letter 21 July 2008 (ex 3) sent to the father cancelling the service.
Personnel from the contact centre explained in oral evidence that whilst the third and fourth scheduled visits were also cancelled (that is, in addition to the second scheduled visit) there did not appear to be a case note recording the reason. The document styled “Client Summary Sheet” (ex 1, p 435) refers to case notes for each of the second and third scheduled visits on 7 June and 21 June 2008, however, no case note for 21 June 2008 was included in the evidence.
Personnel from the contact centre said that case notes are not made in relation to every visit, or every cancelled visit, but only when there has been some incident or event the staff wish to record. Thus, it would appear that the first visit on 24 May 2008 passed without incident.
A case note was prepared in relation to the second and final visit 19 July 2008 (ex 1, pp 432-3), by “M”, a supervisor, who at the trial verified the events recorded in it. Curiously the note is headed “19.7.2008” but bears the handwritten date at the end “7.6.2008”. This was not explored in cross examination, but would seem capable of explanation as error at the time of “M” initialling the case note (see eg ex 1, p 434) rather than the case note itself being fabricated. In summary, the case note refers to the father asking the children (D, E and F) where B was and referring to domestic violence proceedings which had been in court on the previous day. The case note includes that the father was told by “M” not to continue to question the children or to comment on court matters, at which he became agitated and was reminded that he had signed a Service Agreement in which he had agreed not to discuss court matters in front of the children. The case note includes reference to “heated interaction” and “heated discussion” and “the escalating volume” of the father’s voice. After reference to further events, including the father inviting the children to ask him questions (indeed, persisting that they do so) and being asked by one of the children why he had separated from the mother, there was other discussion leading to further intervention by “M”. It is recorded that the father again became agitated telling “M” “I am talking to my child”, at which again he began to speak to one of the children “about the court” and “why [B] had not attended” the visit. “M” recorded that after the visit had ended she spoke with the father away from the children and reiterated that if he began speaking in a way which she deemed inappropriate at the next visit she would terminate it, to which the father stated he would be answering his children if they asked him a question at subsequent visits, that they “had a right to know what their mother was doing to the family” and stated “You do what ever you want” before walking off.
The father, it must be made plain, disputes “M’s” version of the event, asserting that she has misinterpreted the event and misreported it, his own version being as put to “M” in his cross examination of her. The mother’s affidavit (par 75) records that “The children’s account of the situation [at the contact centre] was that dad was really angry and yelling and standing over the lady”, and that the children were “quite upset by what had happened”, the mother adding “Due to this event, all visits with the contact centre were cancelled and the option to resume there cancelled”. Thus, although the father disputes “M’s” version of what occurred on 19 July 2008, the fact remains that the Service Agreement signed by the father included the following, under the heading “Conduct of Supervised Visit”, and that based on it the contact centre has withdrawn its service:
·I will refrain from discussing inappropriate topics or commenting on the other parent, contact arrangements or other family law matters in front of my child(ren). …
·I will accept staff members’ guidance on appropriate topics of conversation with my child(ren). (original underscoring)
The Service Agreement also provided, under the subheading “Ground for discontinuing the visit and/or withdrawing the Service”, the following:
The Service reserves the right to withdraw the use of the Service temporarily or permanently:
·If a parent persists in discussing or commenting on the other parent, contact arrangements, or other family law issues when child(ren) are present.
·If a parent displays aggression or makes threats towards the other parent or displays any behaviour perceived as threatening or inappropriate towards children and staff at the Service. (original underscoring)
The letter 21 July 2008 to the father (ex 3) refers to “a number of breaches” of the Service Agreement by the father on 19 July 2008, and invokes these provisions of the Service Agreement as the basis for its withdrawal of the service.
I have mentioned that the letter 21 July 2008 concluded by requesting the father “not to present at any branch of Relationships Australia in the future”. Despite this, a further case note (ex 1, p 431) records that on 31 July 2008 the father presented at the Eight Mile Plains Contact Centre stating that although he was aware he was “not supposed to be attending” the (next) visit scheduled for 2 August 2008, nonetheless he asked if he could attend as he “wanted to see his child for his birthday”. (B’s birthday occurs in early August). The note concludes that the father then was contacted by the branch manager of the contact centre (this person later being identified in the evidence as “O”) and specifically “instructed” not to present again at the Eight Mile Plains Contact Centre.
“M”, in her oral evidence, explained that Relationships Australia has only one contact centre in Brisbane, being the one at Eight Mile Plains. She explained that the contact centre is not open Monday to Friday (except for small children on Friday afternoons); and on Saturdays and Sundays offers two sessions each day (one in the morning and one in the afternoon). There are “two areas” such that the contact centre is able to accommodate eight families each weekend for visits (and additionally has scope for changeovers for about nine families). She explained thus that if a family fails to attend a scheduled fortnightly visit, it is usually not possible to arrange “make up” time because the eight fortnightly sessions are usually scheduled well ahead for other families.
As to the period of delay between the interim orders made on 10 December 2007 and the first of the fortnightly visits offered to commence on 24 May 2008, “M” said that whilst for small families there is usually not a lengthy lead time, for larger families it is not unusual for there to be a lead time of “average five months” because of the need for space for larger families.
The father said that he had left a message of apology with a receptionist or secretary at the Eight Mile Plains Contact Centre in relation to the events of 19 July 2008. However, there seems no record of such and “M” said in her oral evidence that it had not been passed on to her. Importantly, however, “M” said that if a parent offered apology such may well be relevant to a decision to reinstate a family for visits, but that such a decision is not hers alone but one for the management of the contact centre, comprising three persons, the branch manager, the practice manager and herself, and that also, depending upon the circumstances, sometimes there is input from a child psychologist. “M” emphasized that there are no fixed criteria for reinstatement and matters are dealt with “case by case”.
“O”, who is the branch manager of the contact centre, also gave brief evidence. She recalled two occasions of meeting the father, on dates not noted or recalled. On the first occasion, she was called to the front counter because the father “would not disengage” with staff and was refusing to leave. On the second occasion, the staff called her “straight away”, on the father’s arrival, without engaging with him. On that occasion “O” described the father as “physically upset and angry”. “O” explained that as branch manager (or “venue manager”) she does not work when the “sessions” are on. Thus, it seems likely that these two occasions may have been before the start of the scheduled visits, when the father was endeavouring to have a start date ascertained.
The father said at the trial that apart from “M”, there was an “Asian lady” present when he was at the contact centre having visits with the children, whom he required to be called, the inference being that she would support his version of the events of 19 July 2008. The lady was identified as “T”. The independent children’s lawyer endeavoured to locate “T”, but was not able to. See affidavit Linda Adcock filed by leave on 9 April 2009.
In the result, at the time of the trial, A (now an adult) had not spent time with the father since the separation (although they had seen each other at one of the domestic violence hearings in August or September 2008); and the five other children had spent with him only the time at the contact centre, mentioned, that is 24 May 2008 and 19 July 2008, and also the time with Mr H, mentioned, that is 27 June, 11 July and 24 December 2008 and 25 February 2009.

Principles

Children’s best interests paramount

Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·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
·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
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.

Prior parenting plans

Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

Matters affecting weight are primarily for the trial judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The evidence

The mother relied on her own evidence, with no other witnesses.
The father relied on evidence by himself, his mother, the paternal grandmother, his sister Ms G, Mr R, a friend, who has known the father through a church group since January 2005 and Mr V, a pastor, who has known the father through the same church group and who has had involvement with the father, the mother and the children in relation to their attendance at the church. The paternal grandmother, the father’s sister, Mr R and Mr V were not required for cross examination.
The independent children’s lawyer relied on the Children and Parents Issues Assessment and the report and addendum report by Mr H, family consultant, to which reference has been made earlier; and reports by Dr N, psychiatrist, and Mr J, psychologist and family report writer. The independent children’s lawyer also adduced oral evidence, under subpoenae, from “M” and “O” from the Eight Mile Plains Contact Centre, to which reference has been made.
The parties relied also on several documentary exhibits being ex 1, comprising a two volume indexed and paginated bundle of documents selected from the documents produced pursuant to subpoenae, and other documents comprising exs 2-6.
It is not necessary to provide a summary of the affidavit and oral evidence. Largely, I will deal with the evidence which I consider to be the most relevant and helpful when dealing with the statutory matters which I must consider. It ought not be inferred, if the evidence of a particular witness, or part of the evidence of any witness, is not referred to that I have not had proper regard to all of it.

The expert evidence

It is useful at this point to refer to the conclusions of the family consultant, Mr H, and the two expert witnesses called by the independent children’s lawyer, Dr N and Mr N.

Mr H

Mr H’s Children and Parents Issues Assessment dated 12 March 2008 details his interviews with the children and the parents. Mr H’s conclusion, even at that early stage, was:
If the parents are not able to protect the children from witnessing or being involved in conflict, fights and violence the children will become more traumatised, become more anxious and their emotional and social development will be dramatically affected. The younger ones may begin to exhibit the emotional and behavioural problems [A] now has, and [B] is developing. (emphasis added)
I have referred already to Mr H’s subsequent report dated 17 February 2009 and addendum report dated 5 March 2009 as to his s 65L supervision of visits, including some of his observations at the conclusion of his report dated 17 February 2009 under the heading Summary and Assessment.

Dr N

Dr N provided a report dated 24 September 2008. He interviewed both the mother and the father, and was provided by the independent children’s lawyer with copies of the documents referred to at p 1 of his report.
Dr N reported on mental state examination that the mother was of probably average intelligence, no perceptual disturbance was noted and that with regard to her insight “it appeared that she displayed a somewhat concrete but reasonable understanding of her children’s feelings and needs” and it was “likely that she had a strong emotional attachment to the children”. As to “concrete”, Dr N said in his oral evidence this meant a “superficial”, rather than a “secondary and longer term” understanding. He noted “rather conflicting statements” by the mother in relation to the history he took at interview and also that the mother had admitted with regard to violence in the relationship towards her and possibly the children “I saw things and didn’t do anything about them, I kidded myself that it was all right”, observing that she appeared to be able to respond to these potential criticisms of her parenting in an appropriate and mature way without becoming overly defensive.
Under the subheading Opinion, Dr N said that the mother did not meet clear criteria for a psychiatric disorder at the time of review but it was likely that she had some Mixed Personality Traits. He expressed the opinion that the mother does not pose any significant risk of physical or emotional harm to the children at the time of review and appeared to be able to support the children in having a relationship with the father if she was convinced that this was a physically and emotionally safe process.
Dr N reported on mental state examination that the father was “often irritable” and tried to “control the interview content”. He observed that the father did not appear to have any psychotic symptoms, there was no evidence of any clinical disorder of thought and that no perceptual disturbance was noted. He said however that the father’s thoughts “revolved around his sadness that he was separated from his children and his irritation at his involvement in the Family Court matters and domestic violence matters” and that although the father reported feeling “a bit lost” he denied feeling pervasively depressed and had no thoughts about harming himself or other people. He said the father was of probably average intelligence. In relation to insight, Dr N noted that the father denied any violence between himself and the mother but admitted that some of his physical discipline measures with the children “might be regarded as inappropriate” and he felt “regretful” but stated that this may “be a cultural thing”. Dr N noted further that the father “seemed to have limited understanding” of why the Department of Child Safety and others might have concerns about his behaviour towards the children or why the children possibly might find him frightening.
Under the subheading Opinion, Dr N said that the father previously may have met criteria for some kind of depressive disorder but did not at the time of review and it appeared likely that he had some Narcissistic and Antisocial Personality Traits and that these “most likely reached the level of Personality Disorder”. He said that it seemed that the father was likely to be able to support the children in having a close relationship with the mother, but expressed the opinion:
There was significant evidence to suggest that he posed a potential physical and emotional risk to the children on the basis of the information available to me. (emphasis added)
This opinion, for context, needs to be read with the two paragraphs preceding it, wherein Dr N referred to “a convincing and persistent history of violence on his part towards the children”, and “significant conflict with the mother probably involving physical violence”. Dr N said that the history suggested that the father’s violent acts were “quite dysfunctional attempts by him to solve disciplinary problems with the children”, but that also the acts appeared to be “random, frightening and erratic in nature”. Significantly, Dr N also reported in his opinion:
The disciplinary style had also been unsuccessful in producing outcomes he wanted given that the oldest two children appeared to be getting into trouble with the police. This seemed typical of a coercive pattern of parenting often seen in domestically violent individuals. (emphasis added)
Under the subheading Recommendations, Dr N said that although he had not assessed the children and thus was hesitant in making any specific recommendations regarding them, nonetheless “The father does not appear to have been able to co-operate with a highly supervised contact regime” and that this “does not bode well for further contact between the father and the children”. He said in relation to collateral observation that the younger three children in particular have a significant attachment relationship with the father, that it might be detrimental to them if they are not able to develop this, but went on to say:
However there is little doubt that it will be even more detrimental to them if they cannot have safe predictable contact with the father that does not involve outbursts of emotion on his part.
Dr N recommended that the father undergo psychological therapy “aimed at managing and at improving his skills with regard to managing children and their behaviour” which he outlined as two separate processes of an anger management program for men and an appropriate parenting course including skills for dealing with the behaviour of teenagers. Dr N concluded:
I would recommend that the father continued to have only supervised contact and only under circumstances where it can be guaranteed that no further outbursts will occur on his part. This may require him to undertake the above interventions prior to further supervised contact with the children.
Should this process fail, consideration might have to be given to whether the children’s psychological and emotional development might in fact be better without his influence. (emphasis added)
Dr N said further of the children:
Whatever the involvement of the father in the children’s lives, they should be offered the opportunity to explore the Maori cultural heritage on his side of the family.
Under the subheading Recommendations, in relation to the mother Dr N recommended that she have “some sort of ongoing psychological therapy” to examine issues from her background and earlier life, the domestically violent marital relationship and her previous failings in terms of providing a safe environment for the children’s development, and that this intervention should focus on her developing skills to provide a safe and emotionally nurturing environment for the children in the future.

Mr J

Mr J, in a very detailed report dated 23 February 2009, comprising 48 closely typed pages, with extensive reference to collateral material including Dr N’s report, recommended that the mother have sole parental responsibility for the children, the father attend counselling (as detailed in the report at pars 9.12-9.14 set out below), the father spend time with D, E and F (and also C and B if they wish) only under supervision at the Eight Mile Plains Contact Centre if so allowed in the future with any further non-supervised time to be at the discretion of the mother.
Further (it being implicit in Mr J’s recommendations that the children live with the mother), he recommended that D, E and F attend before and after school care on days when the mother is working and be taken to the “before-school-care program” by the mother. Finally, he recommended that both parents complete a parenting program to further develop insights into their parenting.
At pars 9.12 – 9.14, Mr J said of the father:
It is my view that the father is in need of significant psychological support. At interview, he appeared despondent, perhaps to the point of low grade clinical depression (dysthymia). He has clearly had problems in controlling his anger in the past. He seems to accept that the marriage is over but he fails to understand that the three older children have anxiety with respect to seeing him. He states that he has participated in an anger management program. I found his comments at interview with respect to previous physical punishment that he has administered to the children to be less than encouraging. I am not convinced that [the father] fully appreciates the extent of harm caused by excessive physical discipline.
I think that given his level of personality dysfunction, it is going to take more than an anger management program for [the father] to display changes in his behaviour. In my view, he requires some long-term counselling to address issues pertaining to his narcissistic personality features and help him develop some insight in this regard. It should be noted that psychological counselling in the area of personality dysfunction is remarkably difficult. Also, his despondency at interview suggesting low grade depression (dysthymia) needs to be addressed. His mood state is likely to negatively impact on his ability to make decisions in the best interests of the children. Finally, his inability to manage anger and deal with authority in the past needs to be addressed through a program of cognitive behaviour therapy. I consider that psychological counselling will probably need to be longer-term rather than short-term. I consider that he will need at least twelve months of counselling before positive outcomes are achieved and realistic changes in behaviour and attitude are observed.
Given that there appears to be no available, suitable venue where [the father] could receive appropriate supervision at this time, it may be advisable for him to enter into a program of counselling with a psychologist or clinical social worker who is familiar with Family Court matters. The father, his lawyer or his counsellor could make representations on the father’s behalf to the Eight Mile Plains Contact Centre if satisfactory progress were made. Reports would need to indicate developing insight with respect to behaviours and beliefs that are self-absorbed and rigid, an understanding of the negative effects of discussing with the children Court matters and issues to do with the marital breakdown, and a complete determination not to denigrate the children’s mother. Progress would need to reflect a willingness to accept the authority of others and an ability to control anger. The mother’s address would need to be held on record with the Eight Mile Plains Contact Centre so that she could be advised by the centre if and when further supervised visits will be made available. (emphasis added)

Statutory matters concerning the children’s best interests

Section 60CC(2) - the primary considerations

The benefit to the children of having a meaningful relationship with both of their parents

The mother is the children’s primary carer, and as such, there is benefit to the children in having a meaningful relationship with her, although the father, in his submissions, referred to what he described as the mother’s “extreme paranoia” concerning him.
The benefit to the children of having a meaningful relationship with the father is presently a grey area. Mr J said the father has difficulty in relation to his ability to manage anger; and Dr N said that if a process of supervised time for the children with the father should fail “consideration might have to be given to whether the children’s psychological and emotional development might in fact be better without his influence”.

The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

The mother’s trial affidavit, pars 6-28, sets out an extensive history of violence by the father towards her, and of specific incidents of violence towards some of the children.
In relation to violence by the father to the children, I refer in particular to the incident of the father hitting A with a belt, in about 2004 or 2005, the subject of a criminal charge to which reference has been made already (par 21); to an incident also in about 2004 or 2005 (at which the mother was not present but which apparently was reported to the police) of the father hitting some of the children with the branch of a tree or stick (par 22); and further to evidence of the mother concerning the father “slapping [B] and [C] around the head or belting them if they played up, even on trivial things” (par 23).
In relation to violence by the father to the mother, her affidavit, at the paragraphs mentioned (pars 6-28), provides very specific detail of several incidents of concern, for example, in about 1985 the father punching the mother in the face which cut open her lip and caused bruising and swelling on her face (par 9); being “thrown around the room” and kicked and punched while A and B were present (par 16); swinging his arm at the mother to the point of breaking her sunglasses such that the rim pierced the skin surrounding her eye sockets requiring stitches, with A, B and C present (par 19); and, without intending to minimise the other severe incidents described by the mother, the final incident of violence by him against her on 1 October 2007 (par 28), which caused the mother to leave the marriage the following day 2 October 2007, the mother describing the father cornering her on a couch for over two hours and rushing at her with raised arms such that she was “cowering at the corner of the couch for those couple of hours” causing her to feel “dirty, degraded and humiliated” with threats which were “extremely loud” which in the mother’s view the children could hear (par 28 in relation to the incident, and par 29 in relation to her decision to leave the father and soon after file the application for a domestic violence protection order, referred to previously).
These extracts from the mother’s evidence are not intended to replace a full reading of it, which describes at least 14 discrete events between October 1984, when the parties met, and October 2007, when the parties separated, that being the period of 23 years.
Although the father denied most of the incidents described by the mother, in the witness box the mother presented, for the most part, as a truthful woman who had not exaggerated the experiences she described, and indeed as a woman very frightened of the father, even in the courtroom. Although in minor respects her evidence contained inconsistencies, largely it was compelling, and I accept it.
There is consistency in the opinions of the three expert witnesses in the case that there is a need to protect the children from physical or psychological harm from being subjected to or exposed to the father’s violence.
First, in a passage set out already (above, par 66) Mr H referred to the need to protect the children from witnessing or being involved in conflict, such that if that cannot be done they will become “more traumatised”, “more anxious”, and “their emotional and social development will be dramatically affected”.
Secondly, Mr J, again in a passage already set out (above, par 80) said he is not convinced that the father “fully appreciates the extent of harm caused by excessive physical discipline”, referred to the father’s “inability to manage anger and deal with authority in the past” and to the “negative effects of discussing with the children Court matters and issues to do with the marital breakdown”.
Thirdly, Dr N, again in a passage already set out (above, par 72) said that there was significant evidence to suggest that the father posed a potential physical and emotional risk to the children “on the basis of the information available to me”; and that the incidents of violence by the father to the children appeared to be “random, frightening and erratic” in nature, and seemed “typical of a coercive pattern of parenting often seen in domestically violent individuals”. Further, Dr N said that although it might be detrimental to the younger three children if they are not able to develop their significant attachment relationship with the father, nonetheless:
However there is little doubt that it will be even more detrimental to them if they cannot have safe predictable contact with the father that does not involve outbursts of emotion on his part.
In this vein, it is of concern that, even very recently, there is evidence of the father’s inability to control outbursts of emotion or demonstrations of anger in front of the children, as evidenced by the events at the Eight Mile Plains Contact Centre on 19 July 2008, to which I have made extensive reference already. In her oral evidence, “M”, the supervisor, said that on that occasion at the contact centre she observed the father as “flushed” and “red in the face and sweating”. Even more recently, Mr H referred to the occasion of his supervising a visit between the children and the father on 25 February 2009, and of a telephone call shortly afterwards from the mother telling him (at least on the mother’s evidence of what the children had told her) that the father had said to the children that his relatives were “coming to get” the mother’s “boyfriend”, in circumstances of Mr H describing a short absence of “approximately 20 seconds”. There is little reason to doubt the children’s evidence, as told to the mother, Mr H having recorded in his addendum report dated 5 March 2009 that the mother had told him the children had told her that this incident happened while they were “up against the window” (addendum report, par 7), in the light of Mr H’s own evidence that in the short period when he was “out of earshot”, “approximately 20 seconds”, he observed that the father and the children “were all located near to the window of the room, talking and looking out at the view” (addendum report, par 4). Thus, based on these two recent incidents, on 19 July 2008 and on 25 February 2009, there is evidence of the father’s recent inability to conduct himself appropriately when with the children. A matter of concern is that these two recent incidents occurred whilst the father was under supervision.

A, B and C, on the mother’s evidence, which I accept, have been subjected to actual violence by the father. Mr H’s Children and Parents Issues Assessment, 12 March 2008, records his observation of each of D, E and F being “frightened” and/or “scared” of the father, describing F as having “fights” between the parents “burned deeply into his memory”, such as to “dominate his memories of his family life”: see at pp 4-5.
I conclude, based on all of the evidence to which I have referred, that there is a need to protect the children from physical or psychological harm from being subjected to or exposed to family violence by the father, in particular, physical harm from his hitting them by way of physical discipline, and psychological harm as outlined by the expert evidence to which I have referred.
Dr N expressed the opinion that the mother does not pose any significant risk of physical or emotional harm to the children (above, par 70).

Section 60CC(3) – the additional considerations

Any views expressed by the children

Mr H reported that whilst D, E and F wish to continue seeing the father, and to maintain their relationship with him, B and C are “ambivalent”.
Mr J reported his interviews with the children at pars 6.1-6.5.14, and concluded at par 9.1 that the children are “hurt and confused” by the father’s behaviour.

The nature of the children’s relationships

It appears that the children have a strong attachment to the mother.
Mr H reported positive and happy interaction between D, E and F and the father.
Dr N (report, p 17) referred to collateral evidence of D, E and F “in particular” having a significant attachment relationship with the father.
The children’s maternal grandparents are deceased.
The paternal grandfather is deceased. The children’s only grandparent, the paternal grandmother, resides in Auckland.
There is little evidence as to the children’s relationship with either the members of the mother’s or the father’s extended families, in particular since the separation.
However, before the parties’ separation the paternal grandmother visited the family and the children on some occasions “for a few weeks” annually, and on other occasions “for up to a month at a time”, visiting also her other family in Australia being her three other sons (the father’s brothers) and their families as well as Ms G (the father’s sister) and her family.
The father’s sister, Ms G, provided an affidavit in which she said (par 9), that her home is occupied only by herself and her husband Mr G, and:
Our home is occupied only by myself and my husband. We have agreed to my brother [the father’s] request that he and the children take up temporary accommodation. We anticipate that this would be for a period of three months to allow [the father] to get on his own feet.
Thus, plainly Mr and Mrs G are supportive of the children.
The father’s three brothers all attended the trial on various days, to support the father, and no doubt the children.
The mother gave evidence that the children also have developed a relationship with a person (name withheld for protection) who is their carer on Wednesdays after school, on Friday nights overnight and each 4-6 weeks for a full weekend. The father was critical of the mother’s use of the carer, however, the mother gave credible evidence that her use of the carer is of benefit to the children and provides her also with necessary respite as the children’s primary carer.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

The father gave evidence as to his belief that the mother is unwilling to facilitate and encourage a close and continuing relationship between the children and him. There may well be substance in the father’s view, particularly as, despite the interim orders made on 10 December 2007, which included an order that the mother contact the Eight Mile Plains Contact Centre within seven days to arrange an intake interview, in breach of the order the mother delayed that until early February 2008; further, she declined the opportunity for the children to spend time with the father on 4 May 2008; and cancelled the visits scheduled for 7 June, 21 June and 5 July 2008. This is a matter of concern, particularly in light of the compulsion of the interim orders made on 10 December 2007.
The mother’s evidence is that she understands that D, E and F desire to see the father but “unless it is in a safe and controlled environment, I fear that the children’s safety will be put at risk if [the father] cannot address the problems which he faces” (affidavit, par 79).
Despite the mother’s view expressed in her evidence, the mother, at the trial, even in the witness box, plainly was terrified of the father, no doubt because of his past violence to her, described in her affidavit at pars 6-28, to which I have referred. Thus, it may be doubted that the mother genuinely has willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father. However, despite these observations, Dr N expressed the view that the mother “appeared to be able to support the children in having a relationship with the father if she was convinced that this was a physically and emotionally safe process” (above, par 70).
The father said in evidence that he would “do anything” to see the children; and Dr N said that “it seemed that the father was likely to be able to support the children in having a close relationship with the mother” (above, par 72).

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other child or person (including any grandparent or other relative of the children) with whom he or she has been living

This matter was not the subject of much evidence at the trial, save for observation that it might be detrimental for the children, particularly the younger three children, if they are not able to develop their significant attachment to the father.
It must be observed, however, that a move for the children away from the mother, so that they live with the father, as he seeks, would be to remove the children from the mother, being the person who is their primary carer; and, at least in the short term, proposed as about three months, would have the result of the father and the children living in the home of Mr and Mrs G, the father’s sister and brother in law, with them assisting the father in the children’s care, with a subsequent move then for them after about three months.
Such a move would have the effect also of interrupting the children’s developed relationship with the carer the mother engages for the children, in circumstances in which the children have become accustomed to that arrangement.
Also, it would appear, having regard to the locations of the mother’s and Ms G’s residences, such a move would also necessitate a change of schools for the children.

Practical difficulty and expense

This matter did not assume significance at the trial.

The parties’ capacities to provide for the children’s needs, including emotional and intellectual needs

I have referred to the father’s criticism, during one of the visits supervised by Mr H, of the children being “untidy and dirty”, and having “dirty hair and dirty clothes”. The mother needs to address this.
I have referred also to the mother’s use of a carer, to supplement her own care of the children. However, the evidence as to this use is that it is for necessary respite. Its frequency and duration is not remarkable. Further, the mother’s use of the carer, on the evidence, is routine and not random and the children enjoy it.
There is disturbing evidence as to absenteeism from school and persistent truancy by B, with C more recently following B’s example. As mentioned, however, the mother said that B obtained his Year 10 Certificate in 2008, in Term 1 2009 has been endeavouring to obtain an apprenticeship and would return to school by the commencement of Term 2 2009 if an apprenticeship had not been arranged.
I have referred also to the expert evidence concerning impact of the father’s anger on the children’s emotions.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant

I have referred to the circumstance that the father is of Maori descent.
Mr H said that during one of the visits between the father and the children under his s 65L supervision, the father talked with the children about aspects of Maori culture and on another occasion talked to the children about his relatives in New Zealand and how many of them were going to come to Brisbane to have a “big get together” and would stay on a farm and ride horses.
Further, I have referred to the evidence of Dr N that whatever may be the involvement of the father in the children’s lives, they should be offered the opportunity “to explore the Maori cultural heritage on his [the father’s] side of the family”.
Potentially, unless the children have a meaningful and ongoing relationship with the father, this aspect of their cultural development may suffer.
Otherwise, the children’s maturity, sex, lifestyle and background was not of much focus at the trial, the primary focus being on their physical and emotional safety.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

The evidence is clear that both of the parents love the children, and wish to parent them.
The father, however, has the difficulties to which I have referred.
The mother, it would appear, is discharging her responsibilities of parenthood to the best of her ability, assisted by the carer, to whom I have referred.
The mother, it appears, earnestly is interested in the children’s education and schooling. However, there is disturbing evidence of regular truancy by B, and more recently, truancy by C. The children’s attendance at school requires vigilant supervision by the mother.

Any family violence involving the children or a member of the children’s family

This matter is dealt with sufficiently already.

Any family violence order that applies to the children or a member of the children’s family, if a final order or contested

This matter is dealt with sufficiently already.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children

The history of the matter indicates that there is no order that would be least likely to lead to the institution of further proceedings in relation to the children.

Any other fact or circumstance that the court thinks is relevant

Expert evidence as to the need to supervise any time the children spend with the father

Mr H referred to the provision of the “supervision needed” for the children to spend time with the father. I have referred to the difficulties which ensued in relation to the children spending supervised time with the father at the Eight Mile Plains Contact Centre; and to Mr H’s evidence that if the service of a contact centre cannot be used “there seems no other way of providing the supervision needed” because it is “not possible for the Child Dispute Services of the Family Court to do so after final orders are made” (above, par 30).
Dr N recommended that the father continue to have “only supervised contact” with the children and “only under circumstances where it can be guaranteed that no further outbursts will occur on his part” (above, par 75).
Mr J recommended that D, E and F, and also B and C “if they wish”, spend time with the father “only under supervision”, with any further non-supervised time “to be at the discretion of the mother” (above, par 78).

Expert evidence as to the father’s need for psychological intervention and steps taken by the father towards this

Dr N’s evidence that the father’s supervised time with the children be “only under circumstances where it can be guaranteed that no further outbursts will occur on his part” contemplated that “this may require” the father to undertake the interventions Dr N recommended even “prior to” the children spending supervised time with the father (above, par 75). Further, there is also Mr J’s evidence that the father “is in need of significant psychological support”, and of the need for the father to seek “longer-term” rather than “short-term” therapeutic psychological counselling, because of his “inability to manage anger and deal with authority in the past”, which “needs to be addressed through a program of cognitive behaviour therapy” (above, par 80).
In this regard, the father gave evidence, which I accept, that he has completed a Triple P parenting course (father’s affidavit, par 133, and ex 6); attended an anger management course (father’s affidavit, par 132, and annexure TDO3); and, through his former probation officer, and his current probation officer, he is to embark upon the “Move” program, which may be likely to include psychological intervention (father’s affidavit, par 134, and his oral evidence 9 April 2009).
However, none of these, plainly, fits the description of the type of intervention which Mr J described.

The authorities as to long term supervision

The authorities as to long term supervision are clear in providing that whilst conceptually and in practical terms such may be undesirable, always the children’s best interests is the paramount consideration, such that in cases where the choice is between supervised time between a child and a parent, as opposed to there being no time, there are occasions on which, particularly if there is an established relationship between a child and a parent to be preserved, supervised time should be favoured, even if the order be for long term supervision: see, eg, Moose & Moose (2008) FLC 93-375 per Boland J at [118]-[119]. In that case, her Honour observed (at [120]) that the trial judge’s reasons omitted consideration of the family consultant’s oral evidence, the recommendations of the independent children’s lawyer and discussion of the practical long term effects on the children of an indefinite order for supervision at a contact centre. That is not the case here. All three experts in the case, including the family consultant, favour an order for supervision, as do the recommendations of the independent children’s lawyer provided in written submissions. Whilst there is no evidence as to the practical long term effects on the children of an indefinite order for supervision at a contact centre, I have mentioned already that in some cases where the choice is between supervised time and no time, but there is an established relationship to be preserved, on such occasions there is scope for supervised time, even if long term, to be favoured.

Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

It is necessary to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long‑term issues in relation to the children and to spend time with and communicate with the children and has facilitated or failed to facilitate the other parent participating in making decisions about major long‑term issues in relation to the children and spending time with and communicating with the children and has fulfilled or failed to fulfil the parental obligation to maintain the children.
It is not necessary to revisit the evidence. Largely, it shows that the mother and the father have endeavoured to fulfil their responsibilities as parents, however, the father has the difficulties to which I have referred.

Discussion and conclusions

Parental responsibility

The history of family violence by the father, addressed already, negates the presumption that the parties should have equal shared parental responsibility for the children.
Mr J expressed the view that the mother should have sole parental responsibility for the children.
Having regard to all of the evidence, I accept that view, am satisfied that it is in the children’s best interests and will so order.

Equal time/substantial and significant time

The negation of the presumption that it is in the children’s best interests for the parties to have equal shared parental responsibility for them has the effect that I am not compelled by statute to consider whether an equal time order is in the children’s best interests and reasonably practicable nor whether a substantial and significant time order is in the children’s best interests and reasonably practicable. However, although not compelled, I have considered these matters.

The children’s best interests for their living arrangements, spending time with each parent and other matters

It is significant that there has been an extensive and prolonged history of family violence by the father affecting the mother and the children.
Further, as I have found, there is a need to protect the children from physical or psychological harm from being subjected to or exposed to family violence by the father, in particular, physical harm from his hitting them by way of physical discipline, and psychological harm as outlined by the expert evidence to which I have referred.
It is significant also that even in the supervised environment of the Eight Mile Plains Contact Centre and of the s 65L supervision in the Child Dispute Services section of the Court, the father has not as yet demonstrated an ability to conduct himself appropriately in front of the children or in conversation with them.
It is significant also however that at least the three younger children, D, E and F desire to see the father, and, when with him, at least in the supervised environment of the Child Dispute Services section of the Court, have had happy and jovial interaction with him.
In relation to B and C, it is significant that although, on the evidence, they are ambivalent towards the father, each willingly has attended either the contact centre and/or the visits with Mr H, and that C further attended with Mr H on 25 February 2009, even after saying to Mr H on 24 December 2008 that he did not wish to attend.
Thus, there is strong reason to conclude that, in the children’s best interests, all possible efforts be made for B, C, D, E and F to maintain and continue to develop a meaningful relationship with the father, to the extent that such may be possible.
The independent children’s lawyer submitted that there should be final orders that the mother have sole parental responsibility; the children live with the mother; D, E and F spend time with the father, only under supervision, at the Eight Mile Plains Contact Centre, or such other contact centre as may be available; the father attend psychological counselling for a period of at least 12 months; the mother keep the Eight Mile Plains Contact Centre, or such other contact centre as may be available, appraised of her contact details; and that when D, E and F attend before or after school care they be taken by the mother personally to the before school care program. The independent children’s lawyer’s submissions did not propose any order in relation to B or C spending time with the father.
The mother’s submissions largely echoed those of the independent children’s lawyer, however, with the significant difference of urging that D, E and F not spend supervised time with the father until he had undertaken the course of counselling recommended by Mr J; the further significant difference of urging that if the father not be permitted to re-enter a contact centre program he spend no time with the children; and the minor difference, expressly, that there be no orders concerning B or C spending time with the father.

The father submitted that final orders as proposed by him would be in the children’s best interests because it is a serious matter for there to be no contact between children and a father; the lack of success of the interim orders was because of the mother’s “extreme paranoia”, which had caused deterioration in the relationship between the children and the father; the mother was not fulfilling her responsibility as a parent because of the extreme absenteeism from school by B and C, and also A before them; the male children “need guidance from their dad”; the mother has changed residences several times since the separation; and the mother uses a carer for the children.
Having regard to all the statutory matters I am required to consider, including the principles and objects underlying the Act as it relates to children, the evidence, and the submissions of the parties and the independent children’s lawyer, I conclude that the children’s best interests will be met by orders that the five younger children B, C, D, E and F live with the mother; that D, E and F spend supervised time with the father, to which I will refer in more detail below; there be provision for B and C to attend if they wish (as recommended by Mr J); and that the mother personally deliver D, E and F to before school care.
As to the mechanism of the supervision, Mr H made clear that upon the making of final orders the Child Dispute Services section of the Court cannot offer supervision within the Court.
It will be necessary, therefore, that in order for the father to spend supervised time with the children, either he must persuade the Eight Mile Plains Contact Centre, or alternatively another contact centre, at intake, to accept him to spend supervised time with the children. This may be difficult for him, but in the children’s best interests, it must be attempted. Indeed, “M”, the supervisor at the Eight Mile Plains Contact Centre, to whom I have referred, said that if a parent made an apology, that may be relevant to a decision to reinstate a family for visits, and that matters are dealt with “case by case”.
As to frequency of the supervised time, the recent history would indicate that the same framework should be attempted as provided in the interim orders made on 10 December 2007, that is, two hours fortnightly.
I am conscious of the authorities concerning the undesirability of a final order for supervision at a contact centre. However, the children’s best interests must prevail, where, for whatever reason, unsupervised time with a parent is not in children’s best interests, but on the evidence there is a worthwhile relationship between children and the parent such that long term supervision is more in the children’s best interests than the alternative of a reality of children not spending time with a parent with whom the children desire to spend time and, in this particular case, a parent with whom at least the children D, E and F are strongly attached.
In this particular case, whilst I will make a final order for supervision, it will not necessarily be indefinite, as I propose to include an order that the father, after 18 months, may institute fresh proceedings concerning the children, limited to any proposal by him that the children or any of them commence to spend unsupervised time with him. I will add a notation that otherwise as expressly contemplated by that provision, the principles in Rice v Asplund (1979) FLC 90-725 not be affected.
In my view, rather than an indefinite order, such is in the children’s best interests, having regard to the respective ages of the children, the evidence as to the father’s genuine efforts to rehabilitate himself by the courses he has attended to date and the “Move” course he is proposing to attend and his genuine desire to have a meaningful parenting role in the children’s lives, which to me was demonstrably evident during the trial.
I have considered a shorter (say 12 months) or longer (say 2 years) period, however, I have decided upon 18 months because such period would give the father time also to pursue a course of therapeutic psychological counselling, as Mr J has advised him, to be “at least twelve months” of counselling “before positive outcomes are achieved and realistic changes in behaviour and attitude” are likely to be observed.
In her oral evidence, the mother expressed willingness to establish a post office box address to enable the father and members of his extended family to send letters, cards and gifts to the children. The orders I propose to make include that she facilitate this, and that similarly, the father establish a post office box address for the father and members of his extended family to receive letters, cards and gifts. However, having regard to the father’s inability to refrain from engaging the children in adult issues, to which evidence I have previously referred, it is appropriate in my view that the mother have the opportunity to have a supervisory role in relation to communications to the children, including that she forward any inappropriate material to the independent children’s lawyer; and a supervisory role also (having regard to the children’s ages) in relation to communications from the children to ensure they do not disclose the residential address of the mother and the children nor the name or locality of the children’s school or schools, and the orders will reflect this.
It is appropriate that the father be provided with copies of the children’s school reports, provided that appropriate deletion be made so as not to reveal the name or location of the children’s school or schools, and that there be a mechanism for the father to be notified of any serious accident or medical emergency concerning any of the children. Orders will be made to reflect these matters.
The history of the matter indicates also that, in the children’s best interests, whilst the Child Dispute Services section of the Court is not able to accommodate supervision of time the children spend with the father, it is appropriate, nonetheless, that I order that under s 65L a family consultant give the parties such assistance as reasonably they may request in relation to compliance with and the carrying out of the orders, and I will so order.
Usually, upon the making of final orders, an independent children’s lawyer is discharged, there being no proceedings on foot in which such appointment should continue. However, in the particular circumstances of this case, as has often been done, I will order that the independent children’s lawyer not be discharged for 12 months.
Finally, as I have mentioned, the orders will include that after the period of 18 months the father be at liberty to institute fresh proceedings limited to a proposal that the children commence to spend unsupervised time with him. However, plainly enough, unless he is able to show that the ordered supervised time has been successful, there may be little point for him in that exercise.
Overall, I have considered, as I am required to do, whether it may be preferable to make the order least likely to lead to the institution of further proceedings in relation to the children. However, having considered that, this is not a case in which such would be in the children’s best interests.
I have taken into account also the expert evidence, to which I have referred, that the children should be given the opportunity to explore their Maori cultural heritage. During the children’s supervised time with the father, he can further this with them.
I have considered Mr J’s recommendation (above, par 78) that the mother have a discretion to arrange or allow in the future that the children spend non-supervised time with the father. However, I am not persuaded that such would be in the children’s best interests. First, on the mother’s evidence, she would not have the ability, presently, to be confident as to the children’s physical and emotional safety if the children were to spend unsupervised time with him. Secondly, the history of the matter is such that the Court should determine if and when in the future it may be in the children’s best interests for them to commence to spend unsupervised time with the father.
Dr N and Mr J have both recommended that both of the parents seek the assistance of available parenting programs and/or counselling. I do not propose to make any orders about that, such inclusion in orders being more appropriate in interim rather than final orders. However, the parties are encouraged, in the children’s best interests, to attend the courses advised by Dr N and Mr J, if they have not already done so.
Finally, in my view the case is one in which it is appropriate that the Eight Mile Plains Contact Centre, and any other contact centre which may be involved with the father and the children, be provided by the independent children’s lawyer with a copy of the orders and a copy of the reasons for judgment, and I will so order.

I certify that the preceding one hundred and seventy three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:

Date:

[2009] FamCA 382

11 May 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Jurisdiction

Procedural Fairness