PEDRONI & SCHANZ
[2020] FamCA 360
•14 May 2020
FAMILY COURT OF AUSTRALIA
| PEDRONI & SCHANZ | [2020] FamCA 360 |
| FAMILY LAW – CHILDREN – best interests – where the father seeks a change of residence and that the children live with him – where in the alternative the father seeks unsupervised time with the children – where the mother seeks that the children continue to live with her and spend no time with the father – where there is a current family violence intervention order between the parties – where there are multiple allegations of family violence perpetrated by the father against the mother – where the children have spent no time with the father since July 2015 – where it is not in the best interests of the children for the parents to have equal shared parental responsibility – where the father poses an unacceptable risk of physical or psychological harm to the children – order that the children live with the mother – order that the mother have sole parental responsibility – order that the children spend no time with the father. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN |
| Briginshaw v Briginshaw (1938) 60 CLR 336 M v M (1988) 166 CLR 69 Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 Mulvany & Lane (2009) FLC 93-404 |
| APPLICANT: | Mr Pedroni |
| RESPONDENT: | Ms Schanz |
| INDEPENDENT CHILDREN’S LAWYER: | Macgregor Barristers and Solicitors |
| FILE NUMBER: | MLC | 5615 | of | 2016 |
| DATE DELIVERED: | 14 May 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 26, 27, 28 and 29 August 2019 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Bennett |
| SOLICITOR FOR THE RESPONDENT: | Bowlen Dunstan and Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dr O’Brien |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Macgregor Barristers and Solicitors |
Orders
(1)That the mother have sole parental responsibility for making all decisions regarding the long-term care, welfare and development of the children Y born … 2007 and Z born … 2009 (“the children”).
(2)That the children live with the mother.
(3)That the children spend no time with the father.
(4)That the father be permitted to forward to the children at a postal address to be nominated by the mother within seven days, cards and gifts on the children’s birthdays and at Christmas.
(5)That the mother be and is hereby restrained from home-schooling the child Z.
(6)That the mother be permitted to provide to the children’s schools and treating health professionals copies of the family reports of Dr R dated 20 March 2017 and Ms K dated 30 August 2018.
(7)That the appointment of the Independent Children’s Lawyer be discharged in 30 days.
(8)That all extant applications be otherwise dismissed.
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 Pedroni & Schanz 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 MELBOURNE |
FILE NUMBER: MLC 5615 of 2016
| Mr Pedroni |
Applicant
And
| Ms Schanz |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant father, Mr Pedroni and the respondent mother, Ms Schanz, were in a relationship spanning approximately ten years. There are two children of the relationship, Y, aged 12 and Z, aged 10. The children live with the mother, who is their primary carer. The children have spent no time with the father since the parties’ separation in July 2015.
Each party attributes the conduct of the other as being the cause of the cessation of the children’s relationship with the father. The mother alleges that the father perpetrated physical, verbal and emotional abuse against her, and in the presence of the children. The mother further alleges the children have also been victims of the father’s violence. The mother alleges that the children do not wish to spend any time with the father or their half-siblings, B and C, his children from a previous relationship.
The father denies the allegations of family violence; it is his case that the mother has alienated him from the children.
At the hearing the father sought orders that he spend time with the children, initially on a supervised basis and culminating in unsupervised time each alternate weekend and half of school holidays. In the alternative, if the mother is found to have alienated him from the children, the father sought orders that the children live with him and spend time with the mother, and that he have sole parental responsibility.
The mother sought orders that the children live with her and spend no time with the father. Further, she sought an order that she have sole parental responsibility for the children.
The mother’s application was supported by the Independent Children’s Lawyer (“the ICL”).
On 13 June 2019, shortly prior to the commencement of the final hearing, a final intervention order was made against the father following a contested hearing in the Magistrates’ Court. The mother and the children are named as the affected family members on that order. The intervention order will expire on 12 June 2039 with respect to the mother, and as to the children, will expire upon each of them attaining the age of 18.
The hearing before me was conducted over four days. The father represented himself throughout, and the mother was represented by counsel. These are my Reasons for Judgment with respect to the parties’ competing applications.
Background
The father, Mr Pedroni, is aged 48 and lives in rental accommodation in Suburb H. He is engaged in full-time employment.
The father has two children from a previous relationship, B aged 18 and C aged 15. Both B and C live with the father. At the time of the hearing B was in Year 11. C has global development delay and autism and attends a special development school.
The mother is aged 47 years and is engaged in home duties. She deposes that she is in poor health, suffering from anxiety and depression as well as other health issues. The children live with the mother and she is their primary carer. The mother receives a parenting payment for both children and a carer’s allowance in respect of Z.
The mother has four children from previous relationships, Ms D and Mr E, both of whom are adults and live independently, F who is aged 17 years and lives with his paternal family interstate and G, who is aged 15 years and lives with his father. G spends time with the mother every third weekend and during school holidays.
The parties commenced their relationship in or around 2005, and separated on a final basis on 27 July 2015. The relationship was volatile and both parties acknowledge they separated on numerous occasions throughout that period. There is a dispute between the parties as to whether they cohabited during the relationship, it being the mother’s position that the parties always maintained separate households. Little turns on that issue in the determination of these proceedings.
Y is aged 12 and Z is aged 10 years. The father conceded during his oral evidence that the mother has been the children’s primary caregiver since their birth. At the time of the hearing both children attended J Primary School where Y was in Year 6 and Z was in Year 4.
The mother alleges that Z has some learning difficulties and experiences anxiety. Given Z’s difficulties the mother’s position was that she should be withdrawn from school and home schooled.
The mother alleged she was subjected to physical, verbal and emotional abuse perpetrated by the father, and often in the presence of the children. She also alleged that the father had issues with substance abuse throughout their relationship. The children have spent no time with the father since the parties’ separation in July 2015.
The father disputes the allegations of family violence made by the mother, although concedes that he did raise his voice on occasions when he argued with the mother and became frustrated.
Rather, the father alleges that the mother was physically violent towards him, as well as C, whilst Y and Z were present. He alleges that the mother has an “undiagnosed psychiatric or psychological condition” which impacts her ability to care for the children and support his relationship with them. The mother denies those allegations.
On 21 June 2016, the father filed an Initiating Application in the Federal Circuit Court of Australia seeking final parenting orders allowing him to spend time with the children each alternate weekend. The matter first came before the Court on 9 August 2016, and orders were made that day by consent. They provided for the father to send the children age appropriate gifts on special occasions and for the father to be able to send letters and cards to the children on no more than two occasions per month. Judge Riethmuller also made an order for the preparation of a family report.
The father sent a letter to the children dated 15 August 2016 in accordance with those orders (Exhibit ICL-2). The children were provided with the father’s letter, and the mother deposes that both Y and Z wrote replies to the father whilst at school which were forwarded to the father in September 2016 (Exhibit ICL-2). Both children expressed their hatred of the father in their letters to him and informed him that they did not wish to see him. The father has sent no further correspondence to the children since his receipt of their letters, although he has forwarded gifts to them on special occasions in accordance with the August 2016 orders.
On 28 March 2017, Judge Riethmuller transferred the proceedings to the Family Court of Australia. The matter came before me on 8 December 2017 and I made orders which provided, in substance, for the following:-
· No order for the father to spend time or communicate with Y and Z.
· The mother provide to the father and to the ICL copies of all paediatric, medical, psychological and like reports and assessments in relation to the children.
· The mother provide to the father and the ICL a list of all psychologists, psychiatrists, counsellors and other allied and like health professionals upon whom the children attend or have attended in the past two years.
· That pursuant to s 69ZW the Department of Health and Human Services (“DHHS”) prepare a report in relation to the child C and prepare an updated report with respect to Y and Z.
On 11 May 2018 the proceedings were set down for trial as a five day matter, commencing 29 October 2018. Orders were made providing for the preparation of the matter, including for the preparation of an updated family report.
The trial did not proceed on 29 October 2018. That day the parties sought interim orders by consent in accordance with the recommendations of the family consultant, Ms K. Orders were made by consent which provide that:-
· The father spend no time or communicate with Y and Z.
· The mother have sole parental responsibility for the children.
· The children live with the mother.
· The children (Y and Z) spend time with their siblings B and C once per month for two hours, with such time to be fully supervised by a professional contact service.
Two attempts were made for the supervised visits to occur with the L Contact Service. There was an attempted visit on 16 December 2018; the children refused to attend the visit. Another visit was organised for 18 January 2019. On that occasion both children cried and refused to get out of the car. As a result, the supervisor from the L Contact Service terminated the attempted visit.
The matter returned to Court on 24 May 2019 and was set down for a four day final hearing before me, commencing 26 August 2019.
At a contested hearing in the Magistrates’ Court on 13 June 2019, a final intervention order was made against the father for a period of 20 years, listing the mother, Y and Z as the affected family members. The intervention order will lapse on 12 June 2039 for the mother, and for the children upon them turning the age of 18.
On 1 August 2019 the father’s lawyers filed a Notice of Ceasing to Act. As a result, the father represented himself at the final hearing.
Material relied upon and orders sought
The father relied upon the following material:-
· Case Outline provided on 16 August 2019 (undated);
· Further Amended Initiating Application filed 21 June 2019;
· Affidavit of the father filed 21 June 2019;
· Affidavit of Ms M filed 4 June 2018
· Affidavit of Ms N filed 4 June 2018;
· Affidavit of Ms O filed 4 June 2018; and
· Exhibit F-1.
At the commencement of the trial, the father sought final orders in the terms of his further amended Initiating Application filed 21 June 2019 as follows:-
(3)That the children…spend supervised time with the Father at P Contact Service, Q Contact Service, or other location nominated by the Independent Children’s Lawyer.
(4)That after six sessions of supervised time, the children spend unsupervised time with their Father, progressing as follows:
(a)Each Saturday from 10:00am to 2:00pm for 2 occasions;
(b)Each Saturday from 10:00am to 4:00pm for 2 occasions;
(c)Each Saturday from 10:00am to 6:00pm for 2 occasions;
(d)Each alternate weekend from 10:00am Saturday to 10:00am Sunday for 2 occasions;
(e)Each alternate weekend from 10:00am Saturday to 4:00pm Sunday for 2 occasions;
(f)Thereafter:
(i)Each alternate weekend from the conclusion of school on Friday to the commencement of school of Monday;
(ii)For half of all holidays and special occasions.
(5)That all changeovers occur at the children’s school, or if not a school day, then at a supervised changeover service, or other public location as agreed.
(6)That the Mother facilitate [the children’s] regular attendance at their own personal psychologist or counsellor.
(7)That the parents are at liberty to provide a copy of the final orders to any family therapist, counsellor, paediatrician, psychologist, or other allied health practitioner upon whom the child(ren) attend.
IN THE ALTERNATIVE
(1)The children…attend family therapeutic counselling with the Father as nominated by the Independent Children’s Lawyer with a view to reunifying them with their Father.
(2)That the Father have sole parental responsibility for the children.
(3)That the children live with the Father.
(4)That the children spend time with the Mother as deemed appropriate by this Honourable Court.
(5)That the Mother forthwith enrol in and complete a Parenting Orders Program.
(6)Such further and other orders as the Court deems appropriate.
On the final day of the hearing, during closing submissions, the father submitted to the Court that he was seeking orders in the terms of his “alternative” scenario, as provided in his further amended Initiating Application; that is, he sought orders that the children live with him and that he have sole parental responsibility.
The mother relied upon the following material at the final hearing:-
· Case Outline dated 16 August 2019;
· Amended Response to Initiating Application filed 17 July 2019;
· Affidavit of the mother filed 17 July 2019;
· Family Report by Dr R dated 20 March 2017;
· Family Report by Ms K dated 30 August 2018; and
· Exhibits M-1 to M-4 inclusive.
The mother sought orders as provided in her amended Response to Initiating Application filed 17 July 2019 as follows:-
(1)The mother have sole parental responsibility for the children…
(2)The children live with the Mother.
(3)The children spend no time with the Father.
(4)The Father be restrained from making any further applications to this Court, or to the Federal Circuit Court of Australia in relation to the children.
(5)The Independent lawyer [sic] be discharged.
During final submissions, counsel for the mother confirmed that the application for an order restraining the father from making any further applications to this Court or the Federal Circuit Court of Australia, was not pressed.
The ICL relied upon the following material:-
· Outline of Case filed 22 August 2019;
· Family Report by Dr R dated 20 March 2017;
· Family Report by Ms K dated 30 August 2018;
· DHHS Response; and
· Exhibits ICL-1 to ICL-4 inclusive.
At the commencement of the hearing, the ICL proposed orders pursuant to the Outline of Case filed on 22 August 2019, which provided as follows:-
(1)That the children…live with their mother and she have sole parental responsibility for [the children].
(2)That there be no Order for the father to spend time and/or communicate with the children Y and Z.
(3)That the mother be restrained by injunction from home-schooling Z.
(4)That all extent [sic] applications be otherwise dismissed.
Whilst the mother opposed the order restraining her from home-schooling Z at the commencement of the hearing, during closing submissions counsel for the mother did not maintain that objection.
During final submissions, the ICL also sought orders permitting the father to post cards and gifts to the children on special occasions. Counsel for the mother conceded that if orders were to be made in those terms, the mother would procure a post office box to enable the father to send gifts to the children.
The issues
The issues in this matter as identified in the parties’ affidavit material, the expert reports and during the course of the hearing, may be summarised as follows:-
· The allocation of parental responsibility;
· Whether the children have been exposed to family violence;
· Whether the father poses a risk of physical or psychological harm to the children;
· Whether the mother has influenced the children’s attitudes and views towards the father;
· The parenting capacity of the mother and the father;
·The children’s developmental needs and views;
· With whom the children should live; and
· What time the children should spend with the other parent.
The hearing
As this is a parenting case, the Court must give effect to the principles enunciated in Division 12A of the Family Law Act 1975 (Cth) (“the Act”). Section 69ZN of the Act sets out the principles for conducting child-related proceedings which include:-
· That the Court consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;
· That the Court actively direct, control and manage the conduct of the proceedings;
· That the proceedings be conducted in a way that will safeguard-
(a)the child concerned from being subjected to or exposed to abuse, neglect or family violence; and
(b)the parties to the proceedings against family violence;
· That the proceedings are as far as possible to be conducted in a way that will promote cooperative and child-focussed parenting by the parties; and
· That the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.
The mother was represented by counsel throughout the final hearing. The father was self-represented. As a result, prior to the commencement of the hearing, I informed the parties that in accordance with the provisions of the Act I must have regard to the best interests of the children as the paramount consideration. Further, I informed the parties that in determining what is in the best interests of the children, I would have regard to the considerations set out in s 60CC of the Act and I drew the parties’ attention to those provisions.
I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each party had to cross-examine the witnesses.
On the first day of the hearing, counsel for the mother requested that the mother be able to observe the proceedings by video link from a separate court room to the one in which the father was to conduct his case. The father did not oppose that course. Given the allegations that the mother was a victim of significant family violence by the father and the final intervention order in place between the parties, arrangements were made for the mother to observe the proceedings from a separate court room.
Counsel for the ICL was helpful in the conduct of the proceedings. She agreed to cross-examine the mother first. That approach ensured that she could cover relevant issues, enabling the father to observe how questions were to be appropriately framed prior to the commencement of his own cross-examination of the mother.
The evidence
Findings are made on the balance of probabilities having regard to the evidence. In applying that standard, the Court must have regard to the nature and subject matter of the case and the gravity of the matters that are alleged (s 140 Evidence Act 1995 (Cth)). In what follows statements of fact constitute findings of fact.
The father’s evidence
The father gave evidence on the first two days of the hearing. He was cross-examined by counsel for the mother and counsel for the ICL. The cross-examination of the father focussed upon his criminal history, his alleged violence against the mother and the children and the intervention order proceedings.
Throughout his oral evidence, the father maintained that he had not been violent towards the mother. Rather, he sought to impress upon the Court that in fact it was the mother who had been physically and verbally violent towards him. That approach served only to highlight the father’s limited understanding and insight as to what constitutes family violence, his role in the parties’ volatile relationship and the impact of his behaviour upon the mother and the children. Where he conceded that there were physical altercations between he and the mother, the father sought to minimise his role in such disputes.
At times the father’s recall of events was vague and when directly challenged regarding his conduct, he was often evasive or non-responsive. My impression was that such approach by him was an endeavour to deflect attention from his own role in the conflict with the mother.
At paragraph 16 of her trial affidavit filed 17 July 2019, the mother deposes as to alleged incidents of violence perpetrated against her by the father during the course of the relationship. Those events span a period from 2009 to the time of separation in 2015.
At sub-paragraph (c) the mother deposes as to an occasion in 2012 where the father punched her in the mouth in G’s presence, splitting her lip. During the course of cross-examination by counsel for the mother, the father conceded that the mother sustained a split lip during an argument with him. When questioned as to how the mother sustained that injury the father’s response was that “she came into contact with a part of my body”; he could provide no further detail as to how the injury occurred. The father also conceded that the children were present at the time the mother sustained that injury.
The father’s evidence in relation to that incident was disingenuous. The mother sustained a significant facial injury during a dispute with the father, yet he could provide no detail as to how that injury was caused, save for the vague concession that she had come into contact with his body. The father took no responsibility for his role in causing the mother’s injury, instead seeking to minimise its seriousness. Having regard to that evidence, I am satisfied on the balance of probabilities that the mother sustained that injury as a result of the father’s actions as alleged by the mother.
In July 2012, the mother alleges that the father threatened to kill her and her son, Mr E. At paragraph 16(d) of her trial affidavit the mother deposes that as a result of those threats, she and the children were moved to secure accommodation in Suburb S. Whilst at that accommodation, the mother was notified that the front door of her unoccupied residence was open. As a result, the mother called the police who attended her home and found the father inside. Following that incident, the father was incarcerated for breaching the intervention order then in place to protect the mother.
Initially when the father was cross-examined regarding that event he denied the allegations, stating that he did not recall the details of the incident. Upon further questioning the father sought to minimise the seriousness of his behaviour. When pressed, the father conceded that he had entered the mother’s residence uninvited; it was his evidence that he intended to wait there for the mother to return. He stated that he found the door to the premises unlocked. Seemingly, in his mind, that the door was unlocked was an invitation for him to enter the property. The father confirmed that he was found inside the premises by the police. The father also conceded that at the time of his arrest he was drug-affected.
Notwithstanding those admissions, the father maintained his denial that he had threatened to kill the mother. The father also reiterated that he had never been physically violent towards the mother.
I found the father’s evidence in relation to those events to be implausible. That he would seek to justify his entry into the mother’s residence when there was a current intervention order against him is extraordinary.
The mother’s evidence is that at the time of that event, the father had committed acts of violence against her and that she was fearful of him. She alleges that the father had threatened to kill her, necessitating that she and the children be relocated to secure accommodation.
I am satisfied that the father’s actions in entering the mother’s home uninvited whilst drug affected and waiting for her to return is behaviour which, given the extant intervention order against him for the mother’s protection, was threatening and intimidating and in breach of that order. During his evidence the father demonstrated little insight or understanding as to the potential impact of that behaviour upon the mother or the children.
With respect to the alleged threats to kill the mother, the father maintained his denials. Rather, it was his position that any criminal charges against him for threats to kill related to threats made by him towards his former partner, Ms T and not the mother. The mother’s evidence as to the threats by the father was not challenged during her oral evidence.
Again, the father’s evidence with respect to those matters was unconvincing. Given the acknowledgement by the father that he had threatened his former partner, and the detailed allegations of the mother, which were unchallenged, I am satisfied on the balance of probabilities that the father did make threats as alleged by the mother.
The father’s evidence regarding the numerous intervention order proceedings was also concerning. The first family violence intervention order application made by the mother was in 2010 following a dispute as to when the father would return the children to the mother’s care.
At paragraph 24 of his trial affidavit the father deposed that he consented to that order so as to assist the mother’s application for housing. Later, at paragraph 168(a) of that affidavit the father acknowledged that there had been conflict between the parties arising over when he would return Y to the mother’s care. The father alleges that the mother bumped her head on the side of his car when removing Y from the vehicle; he maintained that was the source of her injuries.
At paragraph 16(b) of her trial affidavit in relation to that event, the mother deposed that when she inquired of the father when he would be returning Y to her, he responded “I’ll bring her back when I’m fucking ready”. The mother’s evidence is that she then attempted to remove Y from the father’s motor vehicle. She deposed that the father put his elbow against her throat and elbowed her in the face.
It was only during cross-examination that the father conceded that the mother applied for an intervention order due to her fear that he would not return Y to her care, and not in order to obtain housing as asserted by him. Upon further cross-examination, the father conceded that the mother sustained bruising as a result of the altercation between them, albeit he did not accept any responsibility for causing that bruising. That concession was made only reluctantly and I am satisfied that the father sought to diminish the seriousness of that incident and his role in the dispute. My impression was that the father sought to justify his actions and to deflect to the mother any responsibility for her injuries.
The father was also cross-examined in relation to an incident at the mother’s home, which occurred in about July 2011. The father alleged on that occasion that the mother had retained his mobile telephone and keys. The father’s response to that circumstance was to remove the fuses from the fuse-box at the mother’s home, causing the electricity to the property to be cut off and leaving the property in darkness. The father acknowledged that the children were in the home at the time. When asked as to the impact of his behaviour on the children, the father conceded that it “would not have been good”. The father appeared to have little awareness that his actions were likely to be frightening to the children and the mother. Again, the father demonstrated little insight or understanding as to the impact of his behaviour upon the mother and the children.
To his credit, the father conceded that he had verbally abused the mother and sent her abusive texts. He also acknowledged his issues with and history of using illicit substances and his convictions for possession of cocaine and methamphetamine and for trafficking amphetamine.
Nonetheless, when challenged as to his role in the altercations between the parties which resulted in intervention order proceedings, criminal charges against him and injury to the mother, the father’s response was to deny allegations as to his conduct or to minimise that conduct. The mother’s evidence with respect to those violent episodes was largely unchallenged. Accordingly, I am satisfied that the father has been less than frank with respect to those matters. I prefer the mother’s evidence with respect to those matters.
The father was also cross-examined as to his care of the children. The mother’s case is that the children have been left with C and B unsupervised when in the father’s care. The father denies that allegation. However, when pressed during cross-examination, the father acknowledged that he had left Z at home with C and B on one occasion when he was collecting take-away food.
The reports of the family consultants, Dr R and Ms K is that both children disclosed that the father has left them alone with their older half-siblings. There was no challenge to those experts in relation to the disclosures made to them by the children. Given the children’s reports to the family consultants, I am satisfied on the balance of probabilities that the father has left the children in the care of their older half-siblings. Having regard to those matters, I am satisfied that this is another example of the father being less than frank with the Court and failing to acknowledge and take responsibility for his behaviour.
Given C’s autism, the father’s conduct in leaving the children with him unattended is a matter of concern. Z alleges that C attempted to stab her with a carving knife. The father denied that allegation. Z also alleges that C attempted to set her on fire. Again, the father denies that allegation. However, during cross-examination, the father conceded that when C was aged approximately six years he did set a coat alight and that at the time Y was near the coat. Further, during cross-examination the father conceded that C had set fire to the children’s cubby house when they were inside. The father conceded that he was unaware that the cubby house had been set alight until the following day.
I am satisfied that the father’s evidence, which sought to down play those events, was likely influenced by his desire to protect C. However, in doing so, the father has failed in his duty to act protectively with respect to the children the subject of these proceedings. Having regard to the concessions eventually made by the father, I accept the evidence of both family consultants as to the children’s reports regarding C’s behaviour towards them. Further, I am satisfied that the father has sought to minimise those events and the impact of C’s behaviour upon the children. In so doing I am satisfied that the father has demonstrated little insight as to the impact of C’s behaviour upon the children.
The father was also challenged in relation to his own behaviour towards the children. For example, Z alleges that the father kicked her when wearing his work boots. The father concedes that he did kick Z, albeit that his position was that it was done in jest. The father denied the allegations that he had slapped Z’s face, pulled her hair or hit her in the back of the head.
The father was also questioned in relation to Y’s refusal to attend time with him in 2015. The father agreed that Y was refusing to spend time with him and that the mother and the father chased after her when she ran away. During cross-examination, the father conceded that he grabbed part of Y’s hair.
Following that incident, there were further intervention order proceedings in the Children’s Court. The father did not attend that hearing and orders were made in his absence.
My impression of the father throughout his evidence was that he sought at all times to paint himself in the most positive light. The father demonstrated little awareness as to the impact of his behaviour on the mother and the children. During his evidence the father confirmed that he weighs 96 kilograms and is approximately five foot 10 inches tall. In contrast, the mother was diminutive in stature. His evidence as to the physical altercations between he and the mother and his attempt to apportion all blame for those altercations upon the mother was implausible, particularly having regard to his powerful physical presence.
Further, I am satisfied that the father’s limited concessions that the mother was injured only when she came into contact with part of his body, that he grabbed Y’s hair when she was running away and kicked Z whilst wearing his work boots in jest was evidence designed to deflect and diminish the significance of the allegations that he has committed family violence.
Having regard to the weight of evidence as to the father’s acts of violence against the mother and the children, which includes the children’s reports to Dr R and Ms K, the reports from the DHHS and the mother’s own largely unchallenged account of the parties’ relationship, I am satisfied that the father’s evidence regarding those matters must be treated with caution.
The mother’s evidence
The mother gave evidence on the third day of the hearing. She was first cross-examined by counsel for the ICL. That approach was adopted to ensure that the father had the opportunity to observe how cross-examination is conducted prior to commencing his own cross-examination of the mother. Notwithstanding that approach, at the conclusion of the cross-examination by counsel for the ICL, the father elected not to cross-examine the mother. As a result, much of her evidence in relation to the allegations of family violence by the father was unchallenged.
Throughout cross-examination by the ICL, the mother impressed as a forthright and honest witness. She had a detailed recall of events, particularly with respect to the parties’ living arrangements during the period of their relationship. The mother was prepared to make concessions where appropriate to do so.
When giving her evidence in relation to the father’s conduct, the mother appeared anxious and fearful. It was my impression that the mother’s fear was genuine and based on her lived experiences during the relationship.
The mother’s evidence was that she was fearful for the children not only as a result of the father’s propensity for violence but also as a result of C’s behaviour. The mother’s evidence of her concerns for the children was compelling. I accept that evidence.
The mother was cross-examined in relation to affidavits sworn by her in support of the father in proceedings between him and his former partner. The mother deposed in her affidavits sworn 19 March 2008 and 22 March 2010 that the father was a good father, devoted to his children, takes good care of them and that she supported his application that C and B live with him (Exhibit F-1, pp 104 - 107).
The mother acknowledged that her evidence then regarding the father’s parenting capacity was contrary to her evidence in these proceedings. The mother conceded during cross-examination that the father had periods when he was a good father and that there were also periods when he was “a really crap dad”. She also acknowledged that at the time she swore those affidavits she supported the father, as she believed his former partner to be volatile and have issues with alcohol.
Throughout her evidence the mother was child-focussed. She impressed as an open and truthful witness.
Ms M
Ms M met the father in June 2013, when they became neighbours. On 3 June 2018 she swore an affidavit in support of the father, that affidavit filed 4 June 2018.
Ms M deposes as to her observations of the father and the mother with the children in the father’s household, and during a camping trip to V Town in 2015.
The mother sought to cross-examine Ms M in relation to her evidence. On the first day of the hearing the father informed the Court that Ms M would not be available for cross-examination. Accordingly, in circumstances where Ms M’s evidence is subject to challenge and she is not made available for cross-examination, I am satisfied that little weight can attach to that evidence.
Ms N
Ms N was in a relationship with the father for approximately one year between 2016 and 2017. She swore an affidavit on 1 June, 2018 in support of the father’s application, that affidavit filed 4 June 2018.
Ms N deposed as to her observations of the father’s care of B and C.
On the first day of the hearing the father informed the Court that Ms N was not available for cross-examination. Given that circumstance, coupled with the fact that Ms N has not observed the father with the children the subject of these proceedings, I am satisfied that little weight can attach to her evidence.
Ms O
Ms O is the father’s sister-in-law. She swore an affidavit on 22 May 2018 in support of the father’s application. Ms O deposed that she has known the father for an extensive period of time, having been in a relationship with his brother for a period of 23 years. Ms O deposed that she sees the father regularly as their children are close friends.
On the first day of the hearing the father informed the Court that Ms M was not available for cross-examination. In circumstances where the mother sought to challenge Ms O’s evidence in cross-examination and she is not available for her evidence to be tested, I am satisfied that little weight can attach to that evidence.
The expert witnesses
Dr R
Dr R is a family consultant appointed pursuant to orders made by Judge Riethmuller on 9 August 2016. Dr R prepared a family report in this matter dated 20 March 2017.
Dr R is a doctor of psychology (forensic). He has worked as a family consultant in the Family Court and Federal Circuit Court between 2012 and 2016. At the time of the preparation of the family report, Dr R was engaged as a Regulation 7 family consultant. There was no challenge to his professional qualifications.
Dr R interviewed the mother and the father on 14 March 2017. In addition that day, Dr R consulted with Y and Z. The family report prepared provides a detailed and thorough account of his interviews and observations of the parties and the children. It also provides a careful evaluation and assessment of the issues in this matter.
At the conclusion of the family report, Dr R made the following recommendations:-
· That the current living arrangements for the children remain in place for the foreseeable future;
· That should the Court determine there is some validity to the mother’s claims of long-standing domestic abuse, the children be prevented from spending time with the father in the absence of a professional supervisor;
· That the children may be at risk of psychological injury if the Court compels them to spend time with the father; and
· That the mother be granted sole parental responsibility for the children.
Dr R was cross-examined in relation to his report. The father’s cross-examination of Dr R focussed on the methodology used by him in preparing the report and also the issue of whether the children’s views had been influenced by the mother. During cross-examination by the father, Dr R confirmed that the documents read by him in the preparation of the family report were those identified at page 2 of that report.
When questioned as to his role in the proceedings, Dr R confirmed that it was a forensic role to analyse data and to try to establish a fact pattern. He confirmed that he endeavoured to collect data from interviews in order to put together a “cogent picture” of the relationships between the parties and the children. He confirmed that it was not his positon to advocate for anyone.
The father challenged Dr R, noting that the data available to him was limited. Dr R conceded, quite properly in my view, that there was a limitation in the data available to him as the assessment by him did not include observations between the father and the children. Nonetheless, Dr R confirmed that he was confident as to his assessment of the “fact pattern”.
Dr R confirmed his observations of the children at paragraph 41 of the family report. He there noted that the children:-
…appear to perceive [the father] as a volatile, aggressive, and overbearing presence. They present as quite fearful of him. Far from reporting warmth and a yearning to reconnect, they present as intent on avoiding him at all cost. One hypothesis for this would be that it is an artefact of a deliberate attempt to alienate by the respondent mother. However, this was not my clinical impression of these children upon consultation. They cited seemingly real experiences with their father. Their narrative was matched by their affective response. They were quite obviously uneasy on the day of the assessment. When given an opportunity to see their father in a controlled environment, they still did not give any sign that they wanted to engage with him (nor was there even ambivalence). Further, there was a general absence of other indicators that are commonly noted in alienation cases, such as the use of collective nouns (e.g., “we”), disproportionality in their stated positions and their life histories, and an unhealthy enmeshment with the residential parent. Collectively, all of this suggests that these children are not deliberately disaffected from their father; rather it seems more probable that they have been exposed to increasingly difficult actions from him over time which have created a wariness, and that this has been entrenched by the passage of time.
As to the presentation of the mother, Dr R observed at paragraph 43 that:-
[The mother] was demonstrably emotional when recalling past incidents of (alleged) abuse she suffered. That is, her affect matched her description. Her narrative was extremely detailed, including timeframes, behavioural descriptions, language used/exchanged, and context. Her allegations are buffered by a series of contacts with police and domestic violence support services.
Dr R’s observations of the mother accord with my own observations of her when giving evidence. I accept Dr R’s assessment of the mother.
As to his assessment of the father, Dr R confirmed the observations made by him at paragraph 44 of the family report. He there noted that:-
First, he has been involved with the criminal justice system on innumerable occasions, spanning over 20 years. Second, he has been charged with a range of different offence types, including crimes against the person, property offences and weapons offences, indicating a degree of criminal diversity. Third, his offences have, at times, been serious enough to warrant custodial sentences. Fourth, his presentation during interview was replete with omissions, minimisations and justifications, which collectively suggest he has little understanding of his own criminogenic needs. Fifth, he has continued to incur charges after the age of 30 years, which is more indicative of a life-course persistent offence pattern. Sixth, both of his former partners have alleged significant physical violence and harassment, with apparently quite consistent descriptions.
Dr R stated that the combination of all of those factors supported his recommendations. He observed that there was an overlap between the presentation of the children and the mother. He acknowledged that the children likely absorbed the mother’s anxiety. However, Dr R did not agree with the father’s proposition that the children’s language parroted that of the mother. He confirmed that it was his assessment that the children’s language was not contrived but that it was predicated on real experiences, noting that “the music matched the lyrics”. Further, Dr R confirmed that the language used by the children was not that of adults. It was Dr R’s assessment that the children’s presentation was consistent with traumatised children. I found Dr R’s description of the children’s presentation compelling and I accept that evidence.
The father further questioned Dr R as to whether the children recalled any violence by him towards the mother. Dr R responded that the children had their own lived experience of violence. Dr R confirmed that the children told him of their experience of violence at the hands of the father and that it was a cogent description.
Dr R confirmed that where he has contained quotations in the family report they are direct quotes from the subject. At paragraph 34 of the family report Dr R records Y’s report of her experience of the father as follows:-
Over the past he’s been very mean to us…he smacked me across the face… pulled me by the ear and hair.
At paragraph 35 of the family report, Y expressed similar concerns in relation to C whom she described as follows:-
…“he is just like our dad”, and that, “he punches is, [sic] tried to set us on fire…(by) chasing me with a lighter.”
I accept Dr R’s evidence in relation to the statements made by the children. I also accept Dr R’s assessment that the children have not been influenced by the mother and rather that those statements reflect their experience of the father.
As to the father, Dr R confirmed during his oral evidence that he observed the father’s account of his relationship with the mother to be replete with minimisations as well as omissions of information. That observation of the father is consistent with the manner in which he gave evidence to the Court in relation to his criminal history and alleged violent episodes. I accept Dr R’s assessment of the father.
The father questioned the focus of Dr R’s report on the allegations of family violence. Dr R responded by noting that the focus of the report was on issues of risk and that risk featured heavily in this matter, the principal risk to the children being the alleged violence by the father.
Dr R was also questioned regarding his assessment of the father’s transparency with respect to his previous conduct. Dr R confirmed during his oral evidence that the father’s account was “not unencumbered”, that it was not an immersive conversation with him; rather Dr R noted that the father’s discussion of his history had a guarded dimension. Dr R noted that in such discussions he preferred to see people talk openly regarding their misconduct, noting that such discussion provides an indication of what parties have learnt or how they have changed since such anti-social conduct occurred. Dr R noted that that quality was lacking in the father’s discussion of his previous anti-social behaviour. Dr R confirmed that it was his observation that the father was guarded and maintained a defensive posture when discussing his previous behaviour.
Again, that assessment accords with my own observations of the father when giving evidence, particularly in relation to the alleged violence by him towards the mother.
When questioned as to the mother’s presentation, Dr R observed her to provide a sincere account. He noted that she was able to provide many examples of the alleged violence. Again Dr R’s assessment of the mother accorded with my own impression of her evidence. I accept Dr R’s assessment of both the mother and the father.
Dr R confirmed during his oral evidence that his concerns for the children were two-fold; firstly their psychological distress and secondly, the risk to them of being caught in the parents’ animosity towards each other. Dr R confirmed that he observed the children to be shivering and wary and to display distress immediately at the prospect of seeing the father. He expressed concerns that the children had displayed long-term resistance to seeing their father and they would be likely to abscond were they forced to spend time with him. Indeed he noted that Z, who was then aged seven, had stated to him that she would run away if forced to spend time with the father. Based on those observations, it was Dr R’s assessment that he could not envisage how any arrangement for the father to spend time with the children would work. Further, he expressed concerns that there could be no certainty that the children would be physically or psychologically safe, were arrangements made for the children to spend time with the father.
Throughout his oral evidence, Dr R presented as a thoughtful and responsive witness. His responses to questions were considered and measured and I found his evidence to be both cogent and helpful. I found Dr R’s evidence, which I accept, to be of great assistance to the Court.
Ms K
Ms K prepared a further family report, pursuant to my orders made 11 May 2018. Ms K conducted interviews with the parties and the children over two consecutive days, 6 and 7 August 2018 and released her report on 30 August 2018.
Ms K has a Bachelor of Arts in Psychology and humanities, a Graduate Diploma in Psychology and a Masters in Counselling Psychology. She has previously been employed as a child counsellor, a mother and child program worker and a child protection worker. She has been a family consultant for the Federal Circuit Court of Australia and Family Court of Australia since 2013. There was no challenge to her professional qualifications.
The family report prepared by Ms K provides a comprehensive account of her interviews with the parties and the children. In addition, Ms K provides a detailed account of her interviews with B and C. Ms K’s report is a considered evaluation and assessment of the parties and the issues in this matter and she provides a series of recommendations at the conclusion of her report. Those recommendations include that:-
· The children live primarily with the mother and that the Court give consideration to granting her sole parental responsibility.
· The mother be restrained from home-schooling Z and from attending Z’s school in the role of parent support.
· The mother attend parent education and support designed to assist parents to manage problematic behaviour in children.
· The mother attend personal counselling for parent education on understanding the impact of personal anxiety and exposure to parental anxiety on children’s emotional wellbeing and developmental progress.
· That B and C participate in supervised contact with Y and Z four times per year.
· That the father spend no time with the children and if Y and Z are spending supervised time with B and C the father’s ability to send cards to the children at Christmas and birthdays be suspended.
· That the family reports of both Ms K and Dr R be released to the children’s school and any counselling services involved with the family.
Ms K was cross-examined by both the father and counsel for the mother. Again, the father’s cross-examination of Ms K principally focussed upon the proposition that the children had been alienated from him by the mother. The father also invited Ms K to consider and respond to the proposition that the children would be better served in the long term if they were removed from the mother’s care to live with him, given his contention that the mother has alienated the children.
Ms K confirmed her assessment that the children had likely been exposed to the mother’s anxieties which may have influenced their presentation and response to the father. Nonetheless, Ms K confirmed that it was her assessment that to change the children’s residence as sought by the father would likely cause them harm. Ms K expanded upon those views at paragraph 82 of the family report where she stated:-
…[the father’s] application that if it is found that [the mother’s] behaviour has influenced the children to resist spending time with him, that they should be made to live primarily with him, raises concerns that he has limited insight to the risk of psychological and emotional harm such parenting changes are likely to pose towards the children. Z was aged 6 years and Y was aged nearly 8 years when they last spent time with their father. Over the past three years, [the mother] has been the children’s sole care-giver and prior to this, both parents’ accounts are that [the mother] was the children’s primary care-giver. Even without the alleged influence of being exposed to negative adult views about him, it is unlikely that the children would have any memories of their father providing care for them. Their experience of being removed from their mother’s care and placed in the primary care of their father could only be one of fear and distress. Such a decision would undoubtedly cause significant short-term psychological and emotional harm to the children, and in the long term would significantly increase the risk of the children experiencing negative outcomes across a range of life domains.
In addition to those primary concerns raised as to the impact upon the children of removal from the mother’s care, Ms K also gave oral evidence that were such orders to be made, there would be limited support services to assist the children in such a transition. She noted that there are limited low-cost counselling services which would be able to support and facilitate the children’s transition to the father’s care. She confirmed that the absence of such support serves only to reinforce her view as to the risks inherent in the father’s proposal that the children live with him. I accept that evidence.
When questioned as to the difference in the children’s presentation with her in 2018 as compared to their presentation as described in Dr R’s report in 2017, Ms K confirmed that the period of time that had elapsed from when the children last spent time with the father (as compared with the shorter time frame when Dr R interviewed them) had likely affected their presentation at interview with her. Ms K observed some incongruence between the children’s description of their experience of the father as compared to their seemingly happy disposition when describing those events. This was a significant shift from their presentation to that observed by Dr R, who described them as presenting as traumatised. Ms K confirmed that a possible explanation for that shift in the children’s presentation was that they had moved on in life and that they were happier at the time of her interview than when originally assessed by Dr R. She also confirmed that the children were likely to be affected by the mother’s anxieties around these proceedings and the father’s proposed change of residence. I accept that evidence.
The father also cross-examined Ms K in relation to her expressed concerns as to the mother’s parenting capacity. At paragraph 79 of the family report, Ms K noted that the most significant risk factors at the time of interview was the compromised parenting capacity of each parent. She noted the mother’s history of difficulties, which has resulted in extensive involvement with child protection and family support services. Those risks include parental mental health issues, alleged parental substance misuse, exposure to family violence and parenting deficits.
At paragraph 80 of the family report, Ms K records the risks posed by the father including the allegations of exposure to family violence, parental substance misuse, environmental hazards, and low levels of parental supervision.
During her oral evidence, Ms K noted that the DHHS had had extensive involvement with the family and ultimately assessed that the children now live in a stable environment with the mother and that the mother was engaging appropriately with support services.
As to the risks posed by the father, at paragraph 80 of the family report, Ms K notes that the father’s accounts at interview raised concerns that some of the risks identified by the DHHS remain. In particular she raised concern about the father’s ability to understand the children’s psychological and emotional needs and to prioritise them in comparison with his own needs.
During her oral evidence, Ms K confirmed that given the history of this matter, which has included proceedings in this Court and the Federal Circuit Court and significant involvement by the DHHS, that in her view the interference and disturbance in the children’s lives brought by those events needs to end. She confirmed that the father’s application seeking a change in the children’s living arrangements has the potential in itself to be harmful to the children. As such, Ms K confirmed her support for the recommendations made by her at the conclusion of the family report that the children remain living with the mother and spend no time with the father.
Ms K confirmed during her oral evidence that she has no reservations regarding the mother as a primary care-giver to the children.
Given the concerns Ms K raised as to the mother’s anxiety impacting the children’s health, counsel for the mother asked Ms K what could be done to mitigate against such harm. Ms K noted that the mother has not attended a post orders parenting program and that she has no understanding of how to protect the children from her adult views. She confirmed that the children are delighted in the mother’s care, noting that the mother has been primary care-giver to them for the majority of their lives. Nonetheless, she noted that the children have had substantial change throughout their lives. As a consequence, it was Ms K’s assessment that the children’s baseline level of anxiety is likely to be high. In order to alleviate those anxieties Ms K stated that it would be helpful for the children to stabilise where they are living, to stop the Court process, for the parents to be better educated as to the impact of their behaviours and to engage the children with counselling services.
As to the mother’s proposal that she home-school Z, Ms K confirmed her assessment contained at paragraph 87 of the family report that such an arrangement was unlikely to be successful. In the family report Ms K noted that Z’s behaviour and capacity to attend school has continued to deteriorate and that the mother’s provision of additional support in the school setting has not been successful. It was Ms K’s view that the plans to home-school Z would likely be unsuccessful. During her oral evidence, Ms K noted that Z’s anxiety comes from the home environment and in her view, Z’s stability would likely be promoted if she was to have other connections within the community. The school environment provides such connection for Z. Further, Ms K noted that were Z to be home-schooled, that would diminish her social contacts. It was her view that Z’s social development would be improved if she were to continue a normal school program.
Ms K’s family report was detailed and thorough. She provided thoughtful and considered responses to the matters put to her during cross-examination. Ms K’s evidence was helpful and concise and of great assistance to the Court. I accept that evidence.
During his closing submissions, the father submitted that Ms K’s report was thorough and confirmed that he agreed with most of its content. He also acknowledged that there was not a “practical” way to implement his proposals. Nonetheless, he pressed his application before the Court.
Legal principles
Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) of the Act sets out the principles underlying those objects. They 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; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must have regard to in determining what is in the child’s best interests. The Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order or for any of those considerations to be afforded greater weight than others. Ultimately, the weight to be given to each of the considerations will depend upon the unique circumstances of each case.
As to the manner in which the Court is to take into account those considerations May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at paragraph 76-77 as follows:-
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in original)
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility. For the reasons set out below I am satisfied that in this case it is not in the children’s best interests for the father and the mother to have equal shared parental responsibility and that the mother should have sole parental responsibility for making decisions regarding Z and Y’s long-term care, welfare and development.
If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether it would be in the child’s best interests and reasonably practicable for them to spend equal time or substantial and significant time with each parent (s 65DAA of the Act). Given that I have determined that it is not in the children’s best interests that there be an order for equal shared parental responsibility, I need not consider these matters.
The mother alleges that the father poses an unacceptable risk of harm to Z and Y due to the allegations that the father has perpetrated physical and emotional abuse against them and the mother.
The correct approach in considering allegations of abuse was considered by the High Court in M v M (1988) 166 CLR 69 (“M v M”). There, the High Court made it clear that when proceedings involve an allegation that a child has been sexually abused, it does not alter the paramount and ultimate issue for the Court, namely what is in the child’s best interests. The resolution of an allegation of sexual abuse, and by implication other types of abuse, is subservient and ancillary to the Court’s determination of what is in the best interests of a child.
The High Court noted at page 77 that:
…there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring …and assess the magnitude of that risk.
The High Court then considered how to define the magnitude of risk and concluded that the test was best expressed by saying that the Court will not grant custody or access (as it then was) if it would expose a child to “an unacceptable risk” of abuse.
The “unacceptable risk” test is applied by the Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.[1] Thus where the Court makes a finding of unacceptable risk, it is a finding that the risk of harm to the child in permitting time spent out-weighs the potential benefit to that child of spending time with that parent.
[1] M v M (1988) 166 CLR 69, 78.
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 Dixon J said as follows:-
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
Having regard to the serious implications that a finding of abuse has occurred, the Court should not make such finding that it has occurred unless it has been proven to this higher standard.
The relevant standard of proof is the balance of probabilities.
Section 60CC Considerations
Primary considerations: section 60CC(2)
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-
119.… the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
…
122.In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Original emphasis)
The issue for determination in this matter is whether there is any benefit to the children in attempting to frame orders so as to maintain a meaningful relationship with the father in circumstances where the evidence of both Dr R and Ms K is that the children strongly oppose spending any time with the father or their half-siblings. Further, as outlined earlier, both experts raise significant concerns as to the potential impact on the children, both in terms of their physical and psychological health were the Court to make orders for the children to live with or spend time with the father. Having regard to that evidence, I am not persuaded that there is a benefit to the children in making orders which would enable them to maintain a meaningful relationship with the father.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The mother contends that the children have been exposed to family violence and abuse by the father and that he poses an unacceptable risk of harm to the children.
The evidence of Dr R supports a finding that the children have been exposed to family violence perpetrated by the father. The evidence of Dr R, which I accept, is that both Z and Y reported to him their exposure to physical violence at the hands of the father. Further, they expressed to Dr R their fear of their father and C.
Dr R confirmed during his oral evidence that the children’s report of their experiences of the father seemed real.
The father’s own evidence bolsters the view that the children have been exposed to family violence. He conceded during his oral evidence that the mother had sustained injuries during altercations with him, albeit that it was his evidence that such injuries were occasioned not as a result of a deliberate act but due to the mother “coming into contact” with part of his body.
The actions of the father in removing fuses from the fuse box at the children’s home is also behaviour that could be viewed as threatening and intimidating. The children were present in the home when that occurred.
The father also admitted during his oral evidence that he grabbed Y’s hair on one occasion and that he kicked her, albeit that it was his view that that was a playful act on his part.
The mother’s evidence is that she had been regularly exposed to physical abuse at the hands of the father. Her trial affidavit details a number of events where the mother alleges she was a victim of family violence at the hands of the father. That evidence is largely unchallenged.
In addition to physical abuse, the mother also contends that she was a victim of the father’s coercive and controlling behaviour. One example of such behaviour was the circumstances that gave rise to the parties’ final separation. Separation occurred following the receipt by the mother of a series of text messages from anonymous numbers, which enclosed naked images of the mother that had been taken by the father during the relationship.
During his oral evidence, the father admitted to using an online application to send those images to the mother anonymously. Further, the father conceded that he had sent four or five such messages to the mother, describing it as “a tasteless prank”. When asked whether he believed the mother would find receipt of those images distressing, the father stated that it was his belief she would find the incident amusing.
The father demonstrated little insight as to the impact of his behaviour on the mother on that occasion. I am satisfied that the father’s actions in sending the intimate images of the mother to her anonymously was behaviour likely to be perceived as threatening and controlling.
In addition to that conduct, the mother also relied upon the father’s actions in directing an associate of his to attend her home whilst the father was incarcerated. The mother’s evidence as set out at paragraph 64 of her trial affidavit is that a man called Mr U attended her home whilst the father was incarcerated. She described Mr U as a physically large man who introduced himself, informed her that he had been in prison with the father and that he attended the property at the father’s direction. The mother alleges she was informed by Mr U that the father wished to speak with the children and that the mother needed to answer the father’s calls. The mother deposes that she was extremely frightened by that incident.
The father was cross-examined in relation to that incident. The father’s evidence was that he met Mr U whilst they were working together in the prison laundry. He conceded that Mr U had attended the mother’s home at his request. The father stated that he had organised that attendance so that Mr U could give the mother funds to repair her motor vehicle. Apparently, Mr U had offered to lend the father money to assist and further offered to personally deliver the money to the mother. The father’s evidence was he had organised that visit with the mother over the telephone.
The father’s explanation for Mr U’s attendance on the mother’s home was implausible. That he would call upon a fellow inmate, not known to the mother and someone whom he had only met whilst incarcerated, to attend upon the home of the mother and the children, is extraordinary.
The father conceded during cross-examination that he was frustrated by the mother’s refusal to answer telephone calls from prison. In light of that evidence, I prefer the evidence of the mother as to the reason for Mr U’s attendance at the home. I am satisfied that the father’s actions in organising the attendance of Mr U on the mother’s home is a further example of intimidating, threatening and controlling behaviour by the father.
As a result of the father’s behaviour towards the mother and the children, there have been a number of family violence intervention order proceedings brought by the mother on behalf of herself and the children. The first family violence intervention order application was made by the mother in 2010.
The mother made another application for an order against the father in August 2015 as a result of the father’s conduct towards the children at that time. In that application and summons the mother alleged the father had left the children at home in the care of C and B, that C attempted to stab Z with a carving knife, that C had attempted to set Z on fire during the June 2015 holiday period and that the father had kicked Z with his work boots. The mother alleged that both children were fearful of the father, that he slaps their faces, pulls their hair and hits them in the back of the head.
During his oral evidence, the father denied leaving the children at home in the care of C and B save for one occasion when he left the property to get take-away food. The father also acknowledged that C had attempted to set fire to the cubby house whilst the children were inside. The father acknowledged that he did not attend Court to oppose the mother’s application for an intervention order. As a result, an order was made in his absence.
In December 2018 the mother sought an extension of that order. The father opposed that application. The mother’s application for an extension of the order was granted and the order in relation to her does not expire until June 2039. The orders protecting the children will expire upon each of them attaining the age of 18 years.
In addition to the intervention orders in relation to the mother and the children, the father conceded during cross-examination his former partner, Ms T also obtained family violence intervention orders against him. Further, the father conceded during cross-examination that he had on numerous occasions been charged with breaching the intervention orders against him. The father’s Victoria Police LEAP record (Exhibit M-3) discloses that he has been dealt with by the courts for breaching intervention orders in November 2008, November 2009, September 2012, November 2012, and April 2017.
In addition to the family violence intervention order proceedings, the father has a significant criminal history including convictions for trafficking methamphetamines, possession of methamphetamine and possession of a prohibited weapon without exemption or approval. The father has also been charged with unlawful assault, intentionally causing injury and recklessly causing injury, those charges brought in the Magistrates’ Court in March 2013 and having been withdrawn.
All of the evidence supports a finding that the mother and the children have been victims of family violence by the father. Accordingly, I am satisfied on the balance of probabilities that the father poses an unacceptable risk of harm to the children, having regard to the evidence of the mother and the family consultants (including the children’s reports) as to the father’s conduct, coupled with:-
·the father’s admissions as to injuries caused by him to the mother;
·his extensive criminal history; and
·the history of the intervention order proceedings (including the extension of the current intervention order in relation to the children until each attains the age of 18).
Accordingly, I am satisfied that it is necessary to make orders which ensure that the children are protected from physical or psychological harm as a result of exposure to abuse, neglect or family violence.
Additional considerations: section 60CC(3)
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Both children have expressed to Ms K and Dr R in the strongest terms that they do not wish to spend time with the father. Both children also expressed strong reluctance to spend time with their half-siblings, B and C.
At paragraph 52 of the family report Ms K notes Z’s response to the father as follows:-
Z said she does not want to live with her father as he always hurts her. She said even when she did nothing wrong he would smack her, pull her hair or kick her for no reason. Z could not recall anything positive about her father. She reported negative memories of B making rude finger gestures at her and locking her out of her bedroom.
…
Whilst Ms K expressed concerns that Z’s accounts appeared inconsistent with her affect and gave the impression of being rehearsed views rather than recalled experiences, at paragraph 85 of the family report Ms K observes that the children’s resistance to spending time with the father could be the result of realistic estrangement. She noted the factors supporting that view include the length of separation between the father and the children, the allegations of family violence and parental substance misuse and the father’s failure to communicate with the children following his receipt of their rejecting letters. I accept that evidence.
Dr R in his family report made similar observations to Ms K of Z’s response to and views of the father. At paragraph 38 of that report Z was reported to be “wholly negative” about the father, describing him as “mean and angry”. She was reported to have not missed the father since the separation, which had occurred approximately 18 months prior to the preparation of that report. Further, Z was reported not to have any desire to resume spending time with the father. As to her response if she was required by the Court to see the father, Z stated “I’d run away”.
At paragraph 41 of the family report, Dr R’s assessment of the children’s views is that they are more likely as a result of having been exposed to increasingly difficult actions by the father over time, which have created a wariness and that that position has become entrenched with the passage of time. Dr R confirmed during cross-examination by the father that it was his view that the children’s views were not a result of any influence from the mother but rather were as a result of their real experiences. Whilst he conceded that the children may have absorbed the mother’s anxiety, Dr R’s assessment was that the language used by them in their description of their views and experiences was not the language of adults. Indeed, Dr R observed that the children’s presentation was consistent with that of traumatised children. I accept that evidence.
The views of Y were consistent with those expressed by Z.
Ms K reports at paragraph 57 of the family report that Y’s account of spending time with the father was “universally negative”. Y reported to Ms K her experience of being forced to sleep outside at the father’s home as a form of punishment. She reported that the father would yell at her and hit her when he felt frustrated. Like her sister, Y was unable to recall any positive memories of the father.
In his family report at paragraph 34, Dr R reports Y’s accounts of time with the father. Dr R noted Y’s assessment that the father is “very nasty”. She reported to Dr R of being punished, that the father had smacked her across the face and pulled her by the ear and hair. Asked as to how she would feel if required to spend time with the father she stated that she would be “very upset and angry”.
I accept the evidence of both Ms K and Dr R as to the children’s views of the father.
As to the mother, both children reported that she provides a loving and peaceful environment. Ms K notes Z’s description of the mother as “amazing”, that the mother loves her, buys her things and takes the children to the park and to visit friends. Y too spoke of her mother in positive terms, saying that living with her was “really fantastic”, that the mother was affectionate, hugging her all the time. Dr R noted similar reports of the children as to their views of the mother. I accept the evidence of those experts as to the children’s view of the mother.
(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The evidence of both Dr R and Ms K supports a finding that the children have a loving and positive relationship with the mother.
There is no dispute between the parties that the mother has been the children’s primary carer throughout their lives.
I have earlier detailed the children’s views of the father as expressed to the experts.
Whilst the father contends that those views are a product of the influence of the mother, the evidence of Dr R does not support that contention. Further, Ms K too observed that those views may well be the product of realistic estrangement occasioned by the length of separation between the children and the father, the alleged family violence, and the father’s substance misuse.
Ms K also expressed concern that the father’s failure to correspond with the children following his receipt of their letters expressing their views of him would likely have given rise to feelings of abandonment of them by the father.
I am satisfied that the combination of those factors is such that the children’s relationship with the father is fractured. Further, having regard to the evidence of Dr R and Ms K I reject the father’s contention that his estrangement from the children is as a result of the mother’s influence upon them. In my view, the evidence of both experts supports a finding that the children’s rejection of the father is as a result of their experiences of his behaviour, both towards the mother and them during the relationship, as well as the impact of the effluxion of time since the parties’ separation.
(c)the extent to which each of the child’s parent has taken, or failed to take, the opportunity:
(i)To participate in making decisions about major long-term issues in relation to the child; and
(ii)To spend time with the child; and
(iii)To communicate with the child;
The mother has been primarily responsible for the children’s day-to-day care, welfare and development since the parties’ separation in 2015.
Pursuant to the orders made in August 2016, the father was permitted to forward to the children cards and letters on no more than two occasions per calendar month. In addition, he was permitted to send age-appropriate gifts to the children on special occasions. Following receipt of a letter from the father following the making of that order, both children wrote letters to him with the assistance of their school counsellor (Exhibit ICL-2). Both children expressed their hatred for the father in their letters to him and Y wrote to the father that she did not want to see him anymore and instructed him not to attend her school.
The father’s response to receipt of those letters was to cease further written communication with the children. Since that time, whilst the father has forwarded to the children gifts at Christmas and on their birthdays he has ceased all communication with them.
Ms K observed that the children may well perceive the father’s withdrawal from communicating with them as a form of abandonment. At paragraph 40 of the family report, Ms K observed that the father’s response indicated that he was “focussed on meeting his own need to have contact with the children” and that “he demonstrated low levels of insight that by reducing his mail contact with the children to Christmas and birthday occasions only, he may have relinquished an opportunity to maintain a minimal relationship with them by regularly providing them with evidence that he was thinking of them”. I accept that evidence.
I am satisfied having regard to the evidence of Ms K that the father has failed to avail himself of the opportunity to maintain his relationship with the children.
(ca) the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the child;
The mother is primarily responsible for the financial support of the children.
The father pays nominal child support as assessed pursuant to the Child Support Assessment Act 1989 (Cth).
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Neither Y nor Z have spent time with the father since separation in July 2015. The evidence of both Ms K and Dr R, which I accept, indicates that neither child wishes to spend time or communicate with the father.
At paragraph 82 of her family report, Ms K states that given the history of their care, it is unlikely that the children would have any memories of their father providing care for them. Further, Ms K postulates that were the children to be removed from the mother’s care, as sought by the father, the impact upon the children could only be one of fear and distress. It was her view that to place the children in the father’s primary care would cause significant short-term psychological and emotional harm to the children and in the long term, would significantly increase their risk of experiencing negative outcomes across a range of life domains. I accept that evidence.
Dr R expressed similar concern as to the impact upon the children were they to resume spending time or commence living with the father. At paragraph 47 of his family report, the concerns held by Dr R include that the children are fearful of the father and that a reunification with the father may cause substantial psychological distress in the immediate term and quite possibly longer term unrest. Further, Dr R expressed concern as to whether the children would be physically safe in the father’s care, having regard to the allegations of family violence. Dr R’s view was that given the father’s breaches of intervention orders, weapons offences, multiple custodial sentences and charges for harassing the mother using a telecommunication device, there is little assurance that the children’s physical and psychological wellbeing would be protected in his care. At paragraph 48 of his family report, Dr R noted that having regard to the children’s ages they had limited capacity to self-protect.
It was Dr R’s view as set out at paragraph 49 of his report that were orders made for the children to spend time with the father, they would almost certainly resist that and may well abscond from his care. As a result, it was his view that the Court had reasonable grounds to query the viability of orders for the children to spend time with the father.
The views expressed by Dr R in his family report were confirmed and indeed amplified during his oral evidence.
I am satisfied, having regard to the evidence of both Ms K and Dr R that any change in the children’s circumstances for them to spend time or live with the father would be contrary to their best interests. The evidence of both experts highlights the risks of physical and psychological harm to the children were there to be an attempt to reunify them with the father.
Having regard to that evidence, I am satisfied that the orders I make will ensure that the children continue living with the mother and spend no time with the father. The weight of the evidence of both Dr R and Ms K supports a finding that orders in those terms are in the children’s best interests, to ensure that they are protected from physical and psychological harm.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Given that there will be no order for the children to spend time with the father, this sub-paragraph is not relevant to the current proceedings.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Each party challenges the capacity of the other to appropriately provide for the children’s needs.
The father challenges the mother’s capacity to care for the children, citing concerns as to her mental health and alleging that she uses illicit substances. Further, the father maintains that the mother is incapable of supporting his relationship with the children.
As a result of her mental health issues, the father alleges that the mother’s capacity to provide for the children’s physical needs is compromised. For example, at paragraph 67 of his trial affidavit, he alleges that the mother would spend days in bed sleeping and watching television and that this would impact her capacity to meet the children’s physical needs. The father also alleges that the mother has been physically violent towards him during the parties’ relationship.
The mother’s evidence is that she does suffer from anxiety for which she has attended counselling. The mother also noted her history of depression and anxiety during her interview with Ms K.
At paragraph 79 of her family report, Ms K identifies issues with respect to the mother’s parenting noting the mental health issues, alleged parental substance misuse, exposure to family violence and parenting deficits which have in the past resulted in two of the mother’s children being removed from her primary care. Further, Ms K observed that the mother’s presentation for assessment indicated that the mother may struggle to identify and prioritise the children’s needs, especially the children’s need to be protected from adult views of the parenting dispute. Nonetheless, during her oral evidence, Ms K observed that the mother has provided stability for the children, has engaged in family support services and counselling and further, that the mother is supported in her role as primary care-giver to the children by the DHHS. She noted that the children’s exposure to the mother’s anxieties could cause them harm. It is for this reason that Ms K recommended that the mother engage with counselling services to assist her with her anxiety and to attend a post orders parenting program to assist her in ensuring that the children are protected from her adult views.
During her oral evidence, Ms K noted that there was no evidence to indicate that the mother has issues with substance abuse.
Having regard to the assessment of Ms K as well as observing the mother throughout the trial, I am satisfied that she suffers anxiety and that the children have been exposed to the mother’s anxiety.
The section 67Z response by the DHHS indicates that it has undertaken three investigations of the parties, in 2009, 2012 and 2016.
The investigation in 2012 indicated that the Department had significant concerns regarding the father’s capacity to care for the children. Those concerns related to his use of drugs; it noted that following a police raid amphetamines and Ice pipes were found at his home. There are also reports at that time that the father’s home “looked like a bomb-site” due to renovations being undertaken to the property. The unannounced visits to the property disclosed that there was a significant amount of building material lying around the property blocking the entrance and presenting a risk to the children’s safety.
Visits were also undertaken to the mother’s property at that time. The mother was observed to interact appropriately with the children and to be responsive to their needs. The Department did not have any protective concerns with respect to the mother’s home environment.
In 2016, an investigation of the mother was undertaken following reports that she was engaging in illicit substance misuse and that she was verbally abusive to the children. The investigation at that time indicated that the information and concerns raised were historical, and that there were no current concerns. As a result that investigation was closed at intake.
The Department noted the mother to be acting protectively of the children. The report also notes the children clearly articulating that they do not wish to have contact with the father.
The reality for the children is that the mother has been their primary care-giver throughout their lives. There has been significant engagement in the children’s lives with professionals through the DHHS and as a result of these proceedings.
Ms K in her family report observed the children to be progressing well. In relation to Z at paragraph 50 of her report, she notes that Z describes school as good, that she is participating in a range of activities, that she has a number of friends and a close relationship with her cousin. Further, at paragraph 51 Ms K notes that Z describes the mother as “amazing”.
As to Y, Ms K notes at paragraph 54 of her family report that Y presents as confident, that she too enjoys school, has a number of friends and that she has a close and loving relationship with the mother whom she describes as “really fantastic”.
I am satisfied having regard to the evidence of Ms K that whilst the mother faces some parenting challenges as a result of her anxiety, that she has and will continue to provide appropriately for the children’s physical, emotional and intellectual needs.
The father’s contentions as to the mother’s impaired capacity to care for the children and her being physically violent towards him are not supported by the evidence.
Ms K makes recommendations that the mother continue to engage with counselling services to assist in the support and management of her anxiety. The mother gave evidence that she was engaged with a counsellor. In addition the mother indicated that she had enrolled in a parenting course, Tuning into Teens. Given the mother’s engagement with those programs the ICL did not seek an order for the mother to engage in further counselling.
All of the evidence supports a finding that the mother has demonstrated a strong commitment to her responsibilities to parent the children. She has acted protectively to ensure that the children have been shielded from the father’s anti-social behaviours. Prior to the parties’ final separation, the mother sought refuge in secure housing to protect the children from family violence. I am satisfied that the mother will continue to act protectively and in the children’s best interests.
The principal concerns with respect to the father relate to the allegations of family violence. As indicated previously, I am satisfied that the father has perpetrated family violence against the mother and the children. I am also satisfied that the children have been exposed to violence perpetrated by C.
Further, as noted previously, I am satisfied that the father has demonstrated little insight or understanding as to the impact of his behaviour on the children. The father has sought to cast blame upon the mother for the physical altercations between them. The father has demonstrated little capacity to reflect on his own role within those conflicts, nor has he demonstrated any capacity to reflect upon the impact of those altercations on the children.
Throughout his evidence, the father sought to impress upon the Court his love and devotion for the children. I have no doubt as to the depth of the father’s love for the children. However, that is but one aspect of his responsibilities as a parent.
Orders have previously been made for the father to engage in men’s behaviour change programs. The father submitted that he did not participate in that program as he was assessed as not needing such intervention. Ms K expressed doubt as to that assessment and postulated that it was more likely that the father’s entrenched views meant that he was a poor candidate for such programs. I accept that evidence, having regard to the fixed views and limited insight the father displayed during his evidence as to his role in the conflict with the mother.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
To the extent these matters are relevant they are addressed earlier in the judgment.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
These matters are not relevant to the issues in dispute.
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family, any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
I have addressed the issues with respect to family violence earlier in this judgment. As noted previously, the mother and the children are currently protected persons pursuant to family violence intervention orders.
(l)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 child;
These parenting proceedings have been on foot since 2016. The matter was originally fixed for final hearing before the Federal Circuit Court in 2017 and was subsequently transferred for hearing in this Court. As a result of that process, the children have been interviewed for two separate family reports. In addition, there has also been significant intervention and involvement with the DHHS.
Having regard to that long history, I am satisfied that the time has come to bring an end to the litigation. I am satisfied having regard to the evidence of both experts that the only orders that will ensure an end to the litigation are orders that the children spend no time with the father.
Attempts at supervised time for the children with C and B have failed. The children have expressed in the strongest terms their view that they wish to spend no time with the father. Both Dr R and Ms K have expressed concern as to the risks of the children’s exposure to physical and psychological harm if forced to spend time with the father, as well as a risk of them absconding.
The mother has suffered anxiety for an extended period of time. Her fears as to the risks to the children if permitted to spend time with the father likely exacerbates those anxieties, thus impacting her capacity to parent the children. Ms K also expressed concerns that the mother’s anxieties were impacting the children.
Having regard to all of those factors, I am satisfied that the time has come for final orders to be made which will ensure that the children are no longer exposed to the litigation.
(m) any other fact or circumstance that the court thinks is relevant.
There are no other relevant facts or circumstances.
Conclusion
The first matter to be determined is the question of allocation of parental responsibility. The mother and the ICL both seek orders that the mother have sole parental responsibility for the children. The father seeks an order that he have sole parental responsibility for the children.
All of the evidence supports a finding that there has been a high level of conflict between the parties for many years. There have been numerous applications for family violence intervention orders made by the mother, and the father has been charged with breaches of those intervention orders. The evidence of Dr R and Ms K supports a finding that the children have been deeply affected by the conflict between their parents.
It is evident that the mother and the father are not able to communicate cooperatively or effectively to ensure the children’s best interests.
Having regard to those circumstances I am satisfied that it would be contrary to the children’s best interests were there to be orders for equal shared parental responsibility (s 61DA(4) of the Act). Further, having made findings that the children have been exposed to family violence and abuse at the hands of their father, I am satisfied that the presumption in favour of equal shared parental responsibility is rebutted (s 61DA(2)(b) of the Act).
Accordingly, in the circumstances I am satisfied that the mother should have sole parental responsibility in relation to the children. Given that I will be making orders that the children spend no time with the father, I am satisfied that the children’s best interests are served by the mother having responsibility to enable her to make all necessary decisions regarding the children’s long-term care, welfare and development.
The mother seeks orders that the children live with her. That application is supported by the ICL. The father also seeks an order that the children live with him.
The evidence of both Dr R and Ms K supports an order that the children live with the mother. Both experts gave evidence that the children would likely suffer significant psychological harm, both in the short and long term were there to be a change of residence. The children have been in the mother’s primary care since separation. Indeed all of the evidence supports a finding that the mother has been primarily responsible for the care of the children throughout their lives.
Having regard to the evidence of both Dr R and Ms K, coupled with my findings as to the need to protect the children from physical and psychological harm when in the father’s care, I am satisfied that the children’s best interests are served by an order that they continue to live with the mother.
Whilst the father sought orders for a gradual reintroduction of time between he and the children, the weight of the expert evidence supports a finding that it is in the children’s best interests that they spend no time with the father. I accept that evidence.
The reality is the children have spent no time with the father since 2015. The children have expressed in the strongest terms their view that they do not wish to resume spending time with the father. I am satisfied that the children have been exposed to physical and psychological harm in the father’s care. I am also satisfied that the children’s health and well-being would be compromised were the children to resume spending time with the father. Notwithstanding the father’s contentions that the children’s views have been influenced by the mother and that she has alienated them from him, I am satisfied that the evidence does not support those allegations.
Having regard to all of those factors, I am satisfied that it is appropriate and in the children’s best interests that there be no orders for them to spend time or communicate with the father. During her oral evidence, Ms K considered that it would be appropriate for the father to continue to have the ability to send to the children cards and gifts on special occasions such as Christmas and birthdays. The mother confirmed that she would support the making of such an order and that she would facilitate its implementation by maintaining a postal address. I am satisfied that an order for the father to continue to send such items to the children is appropriate and in their best interests. It will communicate to the children the father’s continued interest in their lives and maintain a connection for them. Accordingly, I will make orders in those terms.
The ICL sought an order that the mother be restrained from home-schooling Z. Ultimately, the mother did not oppose an order in those terms. Accordingly, I will make orders as sought by the ICL which I am satisfied is in Z’s best interests, given the concerns raised by Ms K in response to the mother’s proposal.
Further, I will make orders ensuring that the expert reports are made available to the children’s schools and any health professionals or counsellors engaged in their care.
Accordingly, I make orders as follows:-
(1)That the mother have sole parental responsibility for making all decisions regarding the long-term care, welfare and development of the children Y born … 2007 and Z born … 2009 (“the children”).
(2)That the children live with the mother.
(3)That the children spend no time with the father.
(4)That the father be permitted to forward to the children at a postal address to be nominated by the mother within seven days, cards and gifts on the children’s birthdays and at Christmas.
(5)That the mother be and is hereby restrained from home-schooling the child Z.
(6)That the mother be permitted to provide to the children’s schools and treating health professionals copies of the family reports of Dr R dated 20 March 2017 and Ms K dated 30 August 2018.
(7)That the appointment of the Independent Children’s Lawyer be discharged in 30 days.
(8)That all extant applications be otherwise dismissed.
I certify that the preceding two hundred and forty-six (246) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 14 May 2020.
Associate:
Date: 14 May 2020
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Family Law
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