Persall and Lenahan

[2016] FamCA 413

FAMILY COURT OF AUSTRALIA

PERSALL & LENAHAN [2016] FamCA 413

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Parental responsibility – Father’s perpetration of family violence against the mother – Father’s drug use – Children’s exposure to the father’s aberrant conduct – Where the children cannot benefit from time with the father – Where there are significant risk factors in relation to the children spending time with the father – Children to live with the mother and spend no time with the father – Sole parental responsibility to be held by the mother.

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

Goode & Goode[2006] FamCA 1346
MRR v GRR [2010] HCA 4
Mazorski & Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

APPLICANT: Mr Persall

RESPONDENT: Ms Lenahan

INDEPENDENT CHILDREN’S LAWYER: John Spence & Associates

FILE NUMBER: PAC 5458 of 2011

DATE DELIVERED: 27 May 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 2 May 2016

REPRESENTATION

COUNSEL FOR THE RESPONDENT: Mr Weaver

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW Nowra Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ford

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: John Spence & Associates

Orders

1. That the mother Ms Lenahan have sole parental responsibility for the children B born … 2003 and C born … 2006.

2. That the children live with the mother.

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

4. That the father be restrained from contacting or approaching the mother by any means whatsoever including through a third party except through the father’s legal representative noting that this order is an order for the personal protection of the mother as the person with whom the children reside.

5. That the father be restrained from contacting or approaching the children either directly or through any third party noting that this order is an order for the personal protection of the children.

6. That the mother do all things necessary to cause the children to be enrolled in and participate meaningfully in such program or course of counselling nominated by the Independent Childrens Lawyer to the mother within one month from the date of these orders and that to facilitate compliance with this order the appointment of the Independent Childrens Lawyer continue for six months from the date of these orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5458  of 2011

Mr Persall

Applicant

And

Ms Lenahan

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings in relation to children now aged 13 and almost 10.

2. The mother seeks orders that in summary provide for:

   a)The mother to have sole parental responsibility for the children;

   b)The children to reside with the mother; and

   c)That the children spend no time with the father.

3. The appointed Independent Children’s Lawyer (“ICL”) supports the orders sought by the mother but seeks an additional order that the mother arrange for the children to attend such counselling as is nominated by the ICL.

4. The proceedings have had a somewhat convoluted history having been commenced by the father in the Local Court at D Town in November 2011.

5. The father at that time sought orders that he have sole parental responsibility for the children and that they reside with him.

6. The father’s application was transferred to the then Federal Magistrates Court of Australia and on 20 March 2012 it was ordered pending interim hearing that:

   a)The children live with the mother; and

   b)That an ICL be appointed to represent the interests of the children.

7. Subsequently on 19 July 2012 interim orders were made by consent that in summary provided as follows:

   a)That the children live with the mother and that the children reside at the home of the maternal grandparents;

   b)That the mother and father attend a parenting after separation course,

   c)That the mother and father each undertake regular urinalysis tests at the request of the ICL;

   d)That the mother and father attend upon CatholicCare at Suburb E for the purposes of an intake assessment for the father to spend supervised time with the children;

   e)That the children have telephone contact once a week and with the father;

   f)That the mother be restrained from driving the children in a car unless she has a valid and current driver’s licence; and

   g)That a family report be prepared.

8. Subsequently on 28 March 2013 it was further ordered by consent that the mother be restrained from driving a motor vehicle whilst the children are in that vehicle during any period that her licence is suspended, disqualified or she is otherwise unlicensed or subject to a bail condition that she is not permitted to drive a motor vehicle.

9. Proceedings were adjourned for final hearing to 3 February 2014.

10. On 31 January 2014 an order was made suspending the children’s telephone time with the father. The previously allocated trial dates were vacated and proceedings were adjourned to 29 August 2014 for directions. Later that listing was vacated and proceedings were adjourned to 15 September 2014 for directions on which date proceedings were transferred to this Court.

11. Proceedings were listed before a Registrar on 14 October 2014. On that date there was no appearance on behalf of the applicant father and proceedings were adjourned for further directions to 4 December 2014.

12. On 4 December 2014 the matter was again before the Registrar and proceedings were adjourned for further directions to 9 February 2015 with a view to the matter being listed as an undefended hearing.

13. On 9 February 2015 proceedings were before Hannam J and directions were made fixing the matter for hearing on 13 April 2015 and in the event that the father failed to appear or comply with directions as to the filing of documents that the hearing be on an undefended basis. The Court of its own motion also made the following orders pending further order:

    a)The children are to spend no time with their father until further order, noting that the father rejected all proposals for appropriate time with the children;

    b)An order pursuant to s 68B for the purposes of the protection of the mother restraining the father from having any contact or approaching the mother by any means including through a third party other than contact through the mother’s legal representative; and

    c)An order pursuant to s 68B for the purposes of the protection of the children restraining the father from contacting or receiving contact from the children either directly or through any other person other than the mother’s legal representative or the ICL.

14. It was also noted by the Court on that day that the father was in attendance during the proceedings in the morning but did not appear when the proceedings resumed at 2.30 pm.

15. On 13 April 2015 the father made application for the hearing to be adjourned. That application was granted and the matter was adjourned for hearing solely on the issue of the children’s time with the father. Subsequently issues arose in relation to the preparation of a Family Report for final hearing and it was not until 12 August 2015 that orders were made for the preparation of a Single Expert Report by Dr F.

16. The Single Expert Report was released to the parties on 21 October 2015 and proceedings were thereupon adjourned for hearing to 2 May 2016 allocating four days for trial. Directions were made for the filing of updated affidavit evidence by each of the parties. The father was represented by counsel on this day.

17. By email dated 29 April 2016 (Exh A) counsel for the father informed the Court that he had been instructed to appear for the father on a direct access basis. He further informed the Court that the father sought to withdraw his application seeking parenting orders and that the father would not be in attendance at hearing. The father was aware that the matter would proceed on an undefended basis and the father consented to that course.

18. The only real issue for determination is as to the children’s time with the father, if any.

19. The matter was called on for hearing on 2 May 2016 and on that day there was no appearance by or on behalf of the father, nor had he complied with directions as to the filing of his affidavit evidence.

20. The matter proceeded to undefended hearing and pending delivery of reasons for final judgment orders were made pending further order that in summary provided for:

    a)The mother to have sole parental responsibility for the children;

    b)That the children live with the mother;

    c)That the children spend no time with the father;

    d)That the father be restrained from contacting or approaching the mother by any means whatsoever including through a third party except through the father’s legal representative noting that such order was an order for the personal protection of the mother as the person with whom the children are to reside;

    e)That the father be restrained from contacting or approaching the children either directly or through any third party noting that such order is an order for the personal protection of the children; and

    f)That the previous injunctive orders being orders for personal protection shall carry an arrest without warrant power as provided for in s 68C of the Act.

21. The reasons for such orders pending further order are set out below.

Context

1. The mother is presently aged 40. The father is presently aged 40.

2. The subject children are the two children of their relationship. The children are B born in 2003 and C born in 2006.

3. The mother and father commenced a relationship in about 2000 and commenced cohabitation in early 2001. Early in the relationship the mother became aware that the father was trafficking in illicit drugs including speed, ecstasy and marijuana. She also observed that the father was a regular user of illicit substances and was in possession of illegal firearms.

4. The father’s conduct towards the mother exhibited strong traits of control, physical including sexual abuse, coercion and strong violence. The mother overall asserts that she was frightened to end the relationship.

5. There is no doubt that the children were exposed to the father’s aberrant conduct including incidents of violence towards the mother.

6. The father exhibited little interest or engagement in the care and lives of his children and would often disappear from the parties’ residence for days at a time without explanation.

7. The relationship ended in October 2011 following vicious assaults on the mother by the father in September and October 2011. The father was later charged with stalk and intimidate the mother and two charges of assault occasioning actual bodily harm as a consequence of the incidents.

8. On 8 November 2011 a provisional Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother and children that included an order that the father not be permitted within 500 m of the mother’s residence and not approach or contact the mother or children by any means whatsoever except through his legal representative. Subsequently a final ADVO was granted for the protection of the mother and children on 28 June 2012 for a period of two years.

9. On or about 6 December 2011 the father breached the interim ADVO and a warrant was issued for his arrest. Following further incidents a further warrant was issued for the arrest of the father in relation to a further breach of the interim ADVO, allegations of assault and being in possession of stolen property.

10. On 13 September 2012 the father was convicted of the offence of stalk and intimidate the mother and ordered to enter into a good behaviour bond for a period of 12 months to commence on 13 September 2012 and during that period to accept a Probation and Parole supervision.

11. On the same day the father was convicted of assaults on the mother occasioning actual bodily harm and was sentenced to a period of 20 months imprisonment with the sentence suspended on the father entering into a good behaviour bond for a period of 20 months and to accept Probation and Parole supervision and ordered to obey all reasonable directions for drug and alcohol rehabilitation. The father was also convicted of common assault on the mother and ordered to enter into a further 12 month good behaviour bond.

12. Later, on 15 August 2013 the father was arrested and charged with further drug supply and property offences. He was granted conditional bail. On 6 October 2013 the father was charged with breach of his bail conditions. In November 2013 the father was charged with further offences relating to being in possession of stolen property and supply/manufacture prohibited drug.

13. On 4 December 2013 he was remanded in custody. The father was later sentenced to various periods of imprisonment the latest ending on 13 December 2014 with a non-parole period expiring on 13 July 2014. The father was released on parole on 14 July 2014.

14. Following the father’s release on parole the mother facilitated the children having some supervised time with the father on two occasions in January 2015. This occasion is described by the Single Expert:

    13. … Notwithstanding Orders being in place, [Ms Lenahan] contacted [Mr Persall] and informed him that the children, in particular [B], wished to see him. They made arrangements between themselves for the children to have dinner with [Mr Persall] and [Ms G] with a mutual friend [Ms H], on 16^th  and 18^th January 2015. On the 19^th January, [Ms H] had the children in her care for an overnight stay and unbeknown to [Ms Lenahan], she again organised for the children to see their father… The matter came before the Court on 9^th February 2015 and Orders were made for the children to spend no time with their father or have any telephone contact with him. A Personal Protection Order was made for [Ms Lenahan] and the children on that day.

15. Subsequently the father has not contacted the mother seeking time with the children, although it appears that in August 2015 he attended at the children’s school and attempted to speak to them notwithstanding court orders prohibiting such contact.

16. The father subsequent to separation from the mother entered into a further de facto relationship with Ms G.  They have a child, J, now aged three and Ms G has a child K aged six from a previous relationship who lives with them. Police documents (Exh J) reveal that she has had significant engagement with and come to the attention of the police on numerous occasions since 2009.

17. In late 2015 the father was still using “ice” and dealing the drug.

18. The ICL has made regular requests to the father or his legal representative for the father to undertake random urinalysis in the period from April 2013 to October 2015 (Exh G). None of those requests have been complied with.

19. The mother candidly reveals that she has been the subject of police proceedings relating to shoplifting, giving a false name and driving unlicensed and whilst disqualified since separation from the father. These offences occurred in early 2013 in the context of the tumultuous circumstances that confronted her post separation. The mother has provided a clinical psychologist report from Mr I that provides an insight into the context in which those offences were committed.

20. The mother remains presently unlicensed and is reliant upon public transport and the assistance of her parents on a daily basis.

21. The children are in settled circumstances with the mother who receives significant assistance from her parents with whom the children have a strong bond. The mother lives independently of her parents but in a home that they own.

22. The eldest child, who excels at sport, is now in high school and the youngest child attends the local public school.

23. The mother receives ongoing support as a consequence of the domestic violence to which she was subjected and the children also have had some ongoing counselling intervention.

The Family Report and Single Expert Report

1. Early in the proceedings a Family Report was prepared dated 22 March 2013. The Family Report writer concluded in the following terms:

   …if the court finds evidence that the violence as alleged by [Ms Lenahan] had occurred there should not be any contact between [Mr Persall] and [Ms Lenahan] and that it would most likely to be in the children’s best interests to have no contact with [Mr Persall].

2. Subsequently a more fulsome Single Expert Report was prepared by Dr F.

3. As to the circumstances post separation the Single Expert says:

   38.      [Ms Lenahan] said that she and the children were quite traumatized by their family life experiences, however, she is now much stronger and does not suffer from any mental health issues. She said that she sought domestic violence counselling from the Benevolent Society. She said that of the two children, [B] bore the brunt of the conflict and was quite anxious and depressed at the time of the separation. She stated that she sought counselling for [B] with the Benevolent Society and also with [Ms L].  She commented that through that therapy, [B] disclosed her feelings about seeing her mother hurt and also at times being hurt herself e.g. by stamping on [B’s] feet when she tried to leave the house in her mother’s protection. She added that [B] seemed to want to forget the violence. [Ms Lenahan] asserted that [B] was not helped by her paternal grandmother who told her that she was a liar and that her father had not hit her mother resulting in the black eyes and rather it was her mother who had perpetrated the injuries to herself or that her mother’s other boyfriend had hurt her. [Ms Lenahan] stated that [B] was  two and one half years delayed at the time of the separation in her cognitive development and she attributes this to her exposure to family violence. She added that she has sought tutoring for [B] and that, along with being in a more settled environment, has contributed to her [B’s] grades improving.

   39.      [Ms Lenahan] said that [B] is a beautiful child who tries so hard and has made good progress at school in the past two years.  She said that [B] received an Award for her achievements at the end of last year.  According to [Ms Lenahan], [B’s] life is her [sport] and that is when she can really be herself. She stated that [B] plays in a representative team.

   40.      [Ms Lenahan] said that [C] was extremely reserved and closed at the time of the separation and only spoke her and to [B]. She stated that she sought the assistance of [Ms L] with whom [C] was able to disclose some of her experiences of the violence. [Ms Lenahan] asserted that starting school has been a great experience for C and it has allowed her to become more confident and happy in herself.

   41.      [Ms Lenahan] stated that the children are very well behaved and generally do not need to be disciplined, however, she tries to talk things through with them when they get moody or upset. She added that the children are extremely close to each other. [Ms Lenahan] said that the children had been assessed for the Anchor program but the sessions have been delayed as they were offered on Saturdays. She added that Saturday commitments would clash with [B’s] [sport] and she knows [B] would not co-operate wholeheartedly with appointments that interfered with her [sport].

The Children

1. The children were interviewed by the Single Expert who observed:

   53.      [B] (aged 12 years and 4 months) presented as a polite and co-operative although somewhat hesitant child.  She is in Year 6 at the [M School] and said she likes school. [B] nominated sports as what she likes best about school and maths as what she likes least. She stated that she has a leadership role at school as sports vice captain.  [B] became quite animated as she spoke about [sports] and discussed her membership in a representative team.

   54.      [B] described her family life when her parents lived together as “not great” and she commented that she could not remember any positive memories. When asked to elaborate on the memories she had of her family, [B] disclosed that “all bad stuff was happening”. She said that she observed her father yelling and hitting her mother. [B] stated that she wanted to protect her mother and tried to stop her father from hitting her because she felt scared that her mother would get hurt. When asked who was there for her, [B\] replied “no one”. She added that her mother had been so badly hurt that sometimes she could not take her to school and, on one occasion, could not accompany her to her netball presentation.

   55.      [B] stated that it has been much better since she her parents separated and she has been away from seeing arguments between them. She commented that she has tried to put the past behind her and forget what has happened.

   56.      [B] commented that last year her friends at school were all talking about the good times they were having with their fathers on weekends and she wanted to be “normal” like them.  [B] stated that her friends know she is no longer spending time with her father, so they have stopped telling her about the time they have with their fathers.

   57.      [B] said that she spoke to her mother who organized for her and [C] to have  dinner with their father. She stated that when she began seeing her father, initially she felt “awkward”, but that soon passed and the three evenings she spent with him for dinner were “good”. She added that she liked meeting her sister, [J]. She stated that she had recently seen her father one day when she was walking home from school. She said that he spoke to her and she did not know what to say to him when he asked her how her school and [sports] were going. [B] referred to the ambivalence she feels about spending time with her father into the future.  She mentioned how she is trying to reconcile having had fun with him on the occasions she saw him, not being sure whether she wants to see him and being scared of what he has done to her mother.

   58.      [B] spoke about her family. She listed her cousin, [N], followed by her mother, [C] and her parents as the people she loves in order of closeness. She nominated her mother as the person who is there for her, who gives her the best hugs and who she would like to look after her when she is sick. She described her mother as “fun” and her sister as “a bit annoying but fun” but she was unsure about what words to use for her father. [B] stated that for the future she would like to spend time with her father maybe to have lunch with him but she does not want to stay overnight. She said that she though (sic) [C] would choose to do whatever she wanted.

   59.      [C] (aged 9 years and 3 months) presented as a quiet but co-operative child. She is in Year 3 at the [M School]. [C] said that she likes most things about school especially seeing her friends and playing sports but she is not so keen to do Maths.

   60.      [C], like [B], stated that she has some memories of when the family lived together. She referred to living next to the lake where they fished all day and to how her cousins came to visit nearly every weekend. She listed going to the pool, to the zoo and to the massive park as some of the activities the family enjoyed together. [C] also disclosed that her parents fought and that she and [B] saw her mother get hurt because she had “black eyes”.  [C] said that she felt “scared and nervous” and thought she was also going to get hurt when her parents argued.  She stated that she remembers staying close to [B] when her mother was hurt. [C] stated that life was much better after she, her mother and sister moved to their Nan’s house. She said that she did not really miss her father after they moved. 

   61.      [C] spoke about her family. She listed her mother, her nan, her pop, [B] and her father as the people she loves in order of closeness. She nominated her mother, nan, pop and [B] as the people she can talk to, her nan as the person who gives her the best hugs and her mother as the one she would like to look after her if she is sick. [C] described her mother as “nice” and “scared when it all happened” and [B] as “shy and nervous”. In respect of her father, [C] said that he has been missing her and [B] because they “haven’t seen each other properly” for many years. She said that she feels “a bit sorry” for her father.

   62.      [C] stated that it has been “good” to see their father because they had not seen him for years. She also said that it has been good to see [J] and [K]. [C] said that she would like to spend time with her father on alternate weekends but during the day only.

1. On considering the children’s views the Single Expert concluded:

   70.      [B’s] views would be currently assessed as ambivalent. She continues to report that she observed her mother being assaulted by their father and her disclosures have not veered too far from with those she made to her previous counsellors  and to [Ms O] and she wants to distance herself from that part of her life. She describes a melee of conflicted feelings and views including awkwardness in the presence of her father but also a desire to see him for a contained period of time, during the day only and perhaps for a meal. Her wishes are tainted with memories of the past and the violence which she recalls her father having perpetrated onto her mother.

   71.      [C] also divulged that she remembers observing violence and her mother hurt. Her disclosures suggest an element of sympathy for her father and wanting to make up for the period of time she has not seen him. It is important that she is reassured that it is not her role to compensate for their absence in their father’s life. She indicated that she would like to spend time with her father on weekends but not overnight. There is an element in [C’s] views that she would follow suite (sic) with whatever [B] decided.

2. As to such weight as should be afforded to the children’s views the Single Expert opined:

   72.      The children especially [B] are approaching a stage of development when their views would be given more weight. However, the children’s views are one of many factors that are salient to this case all of which need to be juxtaposed against each other. The other factors include the safety of the children, the capacity of each parent to comply with Orders and the destabilization that might occur in their lifestyles if their wishes were to be granted without some level of monitoring. This is a case where, even if they were to express views to spend time with their father, the Court would need to be convinced that they would be assured of safety and security in their father’s household and would be capable of self-protection if they were to see him unsupervised. This assessment casts doubt on whether the children are sufficiently mature to handle this and indeed whether [Mr Persall] has enough insight into how his behaviour impacts on the children feeling safe in his care.

3. The children’s relationship with the father was discussed in the following terms:

   76.      The children, in particular [B] recounted few positive memories of their family life and have had little opportunity to foster a relationship with their father since 2011. Their portrayal of him in the interviews and in the counselling records is that he was abusive man who hurt their mother.  Given the history in this family, the children’s relationship with their father is understandably a mixture of curiosity but also guarded and shrouded with considerable reservation on their part.

4. The Single Expert concluded overall as to the mother’s capacity to meet the children’s needs:

   82.      Based on the information that was gleaned from the interviews and observations conducted for this assessment, [Ms Lenahan] seems to be meeting the children’s needs to a satisfactory level. The children are involved in a range of age appropriate activities. [Ms Lenahan] has provided stability and security for them over the past 4 years in a way that she and [Mr Persall] together were not able to do when they cohabited. The reports from the children’s school are encouraging and are indicative of a steady and evident improvement in [B’s] scholastic achievements. Additionally, it is heartening to see [B] assuming a leadership role and doing so well in her sport. [C] is responding well to the opportunities that school has to offer her and has made significant grounds in her psychosocial adjustment.

   And as to the father:

   84.      [Mr Persall] seems to have played a minimal role in meeting the children’s needs since the separation.  To a large extent, his ability to take an active role in his children’s lives has been hampered by the Court Orders which have kept him at bay from having personal contact with them. This assessment raises questions about his capacity to interact with the children in a way that does not implicate them in needing to be defensive and protesting. His level of insight into the impact of his behaviour on the children seems poor.

5. More concerningly the Single Expert said:

   88. … It is most concerning that [Mr Persall] has such a high level of denial of the extent of and seriousness of the family violence that has occurred in his relationship with [Ms Lenahan] and possibly with others such as [Mr P]. There is evidence of at least one episode of violence perpetrated towards [Ms Lenahan], which was difficult to dispute because it occurred so publicly. It is perturbing that [Mr Persall] denied so vehemently that more than one incident of violence occurred notwithstanding that an A.V.O. was granted for several incidents and there were several breaches of the A.V.O. after it was issued. Furthermore, the fact that he continues to justify his actions on that one occasion as a form of protection for his children is concerning particularly since reports from the Probation and Parole Service suggest that he showed some level of insight into the impact of his violence and acknowledgement that this was not an appropriate course of action. His demeanour at the interview for the preparation of this report does not suggest that he has sustained that position and it is unclear that [Mr Persall] has engaged with any intervention that provides him with alternate strategies to dealing with frustration by violence. This usually requires, as a starting point, a thorough exploration of and insight into characteristic thinking and feeling patterns which lead to cycles of violence followed by the adoption of alternate coping strategies to deal with conflict and anger. Without such insights or skills, the emotionally dysregulated patterns which have used in the past are likely to be repeated once stressors re-arise in relationships.

   89.      This assessment raises questions about [Mr Persall’s] ability to comply with Orders. Although he claimed that the occasions the children saw him at the beginning of the year were all at [Ms Lenahan’s] initiation, he did respond to her request in the full knowledge that he was not adhering to Orders. There are conflicting reports about whether the third occasion was known to [Ms Lenahan] and whether she was aware that he gave [B] a telephone. Irrespective of whether any of the above was communicated, the behaviour of both parties was equally complicit to a flagrant non-compliance with existing Orders. [Mr Persall’s] actions in August 2015, again given that Orders were in place for the children not to have any contact with him highlight his struggle to comply with Orders and does not help his case in any way. He seemed to have limited insight into how this would have impacted on the children and destabilised them. 

6. The impact of family violence on the children was commented on by the Single Expert:

   92. … The reports of the mother and children suggest that they have observed verbal and physical violence while [Mr Persall] alleged the children have been subject to neglect in the care of their mother.  It is important for the parties to appreciate that children who are exposed to family conflict involving their parents and siblings are prone to suffer adverse consequences in their emotional and cognitive development. Depression, anxiety and temperament problems are not uncommonly seen in such children. They also sometimes manifest disorganization of planning and organizing functions, hypervigilance, poor inhibition of inappropriate responses and attention to distractions resulting in symptoms not unlike A.D.H.D. Already there are some indications that B may have some difficulties in this regard. Her therapy after the separation focused on helping here (sic) deal with symptoms of anxiety and depression. There were also some delays in her cognitive development which seem to be showing significant improvement. It is essential that the gains [B] has made are not be undermined by exposure to any adverse influences including the potential for any further violence in any household. Poor conflict management between the parents also models to children a poor example of how to manage differences.

7. It was recommended by the Single Expert report writer that the children attend the Anchor Program that assists children in dealing with separation. In the context of this matter the children clearly need independent assistance.

8. The mother seeks an order that the children spend no time with the father. The impact of this on the children was discussed in the following terms by the Single Expert:

   97.      It is generally highly beneficial for children to have a meaningful relationship with both parents. Such children are less likely to experience emotional, behavioural, educational and relationship difficulties they move through their childhood into adulthood.

   98.      The children have expressed views that they want to spend time with their father although they probably have little insight into the risks spending time with him as per their wishes might pose. Denial of the wish at least to have a relationship with their father, might leave them feeling resentful towards their mother and evoke oppositional and defiant behaviour. That, along with the other stresses that might arise as an anticipated part of an adolescent’s trajectory, could prove very testing for [Ms Lenahan]. In addition, in the light of [B’s] idealistic notion of having “normalcy” in her life by spending time with their father, it could mean that, over time, she forms a fantasy of her father and what being with him might be like. It is important that she has the opportunity to test that for herself. The same might apply to [C].

   99.      Collapsing time, it is also possible that in the not too distant future, the children will find their own way to their father if they are denied spending time with him, and that indeed this could even happen irrespective of what Orders are in place. This often happens with adolescents when they encounter impasses or differences with their resident parent. In such cases, it is not uncommon for children to find it difficult to maintain a relationship with both parents and ping pong between them especially in cases where there is a high level of conflict between the parties. It would be very damaging for [B] and [C] if this were to occur. It is essential that any time the children spend with their father is in the full knowledge of their mother and preferably monitored by professional assistance thereby reducing the risk of their relationships with their mother either temporarily or permanently became the casualty.

9. Yet such a position must be balanced against the overwhelming protective considerations arising from the past exposure of the children to the father’s aberrant behaviour and the future risk he poses to them.

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode[2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

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

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

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

   (d) parents should agree about the future parenting of their children; and

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

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

4. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

6. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].

7. It is clear in this matter that the presumption will not apply by reason of the father’s violent and other aberrant conduct. The discussion of the best interest considerations below in the context of the matters above are strongly indicative of the mother having sole parental responsibility.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright[2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   The court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.

3. The children’s relationships with both parents are overshadowed by the issues discussed above as to the overshadowing spectre of the father’s aberrant conduct and extreme violence. The manner in which the children can have a meaningful relationship with the father is clouded by his own conduct and the need to fashion orders protective of the children. This leads to the conclusion that in the present circumstances the children cannot benefit from time with the father.

4. It is otherwise clear that it is important for the children to continue in the primary care of the mother.

Section 60CC(2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed in the Single Expert report above there are significant risk factors in exposing the children to the father.  Any relationship with him at present is problematic.

The Additional Considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   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;

   b)The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

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

   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;

   f)The capacity of each of the child's parents; and 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;

   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;

   h)If the child is an Aboriginal child or a Torres Strait Islander child 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 the likely impact any proposed parenting order under this Part will have on that right;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   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 the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter;

   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;

   m)Any other fact or circumstance that the Court thinks is relevant.

1. The discussion above has had regard to these additional considerations where relevant.

Discussion

1. The father has chosen to disengage from these proceedings.

2. It must be clear to him that in the absence of positive evidence adduced by him to deal with the significant concerns expressed by the mother, the ICL and the Single Expert as to the risk he presents to the children that no order would be made for the children to spend time or communicate with him.

3. It is clear that it is the best interests of the children for the mother to have sole parental responsibility and for the children to live with her.

4. It is appropriate in the circumstances discussed above that orders also be made for the ongoing protection of the mother and children.

5. Orders will be made accordingly.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 27 May 2016.

Associate:

Date:  27 May 2016