Redmond and Silk

FEDERAL CIRCUIT COURT OF AUSTRALIA

REDMOND & SILK

[2017] FCCA 1905

Catchwords:
FAMILY LAW – Parenting – Whether the father should spend time with his daughter aged 7 - where the father has an alcohol problem, has assaulted other children, was violent to the mother during their relationship and has assaulted other adults – where the mother sought an order for no time and no communication - where the father proposed that he spend time with the child supervised by members of the paternal family for twelve months and thereafter spend unsupervised time with her – where the child would be at unacceptable risk of harm in the father’s unsupervised care – where the court is unconvinced that the paternal family members are appropriate supervisors - where the father does not have sufficient to offer the child to make a long term supervised order in the child’s best interests – order made for the child to spend time with father only if consented to by the mother in writing.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Mazorski & Albright (2007) FamCA 520

Applicant:

MS REDMOND

Respondent:

MR SILK

File Number:

NCC 1130 of 2013

Judgment of:

Judge Terry

Hearing dates:

6 & 7 October 2016 & 18 & 24 April 2017

Date of Last Submission:

24 April 2017

Delivered at:

Newcastle

Delivered on:

30 May 2017

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Solicitors for the Respondent:

Ms Carty

Fielden & Associates

Counsel for the Independent Children’s Lawyer:

Solicitors for the Independent Children’s Lawyer:

Mr Rugendyke

Foat Roberts Lawyers

ORDERS

The child X born (omitted) 2009 (‘the child’) shall live with the mother.
The mother shall have sole parental responsibility for the child.
Unless otherwise agreed by the mother in writing the child shall spend no time and have no communication with the father NOTING THAT the mother’s decision regarding whether the time occurs will be final and the mother may require the time to be supervised.
The father is permitted to obtain from the child’s school copies school reports and photographs and other information provided to parents BUT unless the mother agrees in writing the father is NOT permitted to attend events at the school normally attended by parents.
MS REDMOND shall forthwith do all acts and things required to register the birth of X born (omitted) 2009 pursuant to the Births Death and Marriages Registration Act 1995.
Pursuant to s.18 (d) of the Birth Deaths and Marriages Act the Registrar shall include the name of MR SILK as the father of the child.

IT IS NOTED that publication of this judgment under the pseudonym Redmond & Silk is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1130 of 2013

MS REDMOND

Applicant

And

MR SILK

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the reasons amenable to being read.
These proceedings concern parenting arrangements for X, aged 7.
X lives with her mother and has spent very limited time with her father since her parents separated when she was about three. She is currently spending supervised time with him at a contact centre for two hours per fortnight.
The mother sought an order for sole parental responsibility and proposed that the child live with her and spend no time and have no communication with the father.
The mother said that the father had a serious alcohol problem and had a propensity for violence, sometimes when drunk and sometimes when sober. She said that during their relationship he was violent to her, had physical fights with two of his brothers, assaulted a neighbour, was convicted of assaulting his son C aged 9 and assaulted her son A.
Recently the father was convicted of assaulting one of his cousins.
The mother said that the father could not possibly be trusted to spend unsupervised time with X and she did not trust his family to keep X safe if they supervised his time. Frankly she could see no value in X having a relationship with the father.
The case run on the father’s behalf was that the mother was hell bent on excluding him from the child’s life for no good reason and that she needed to be forcefully pulled into line, with threatened sanctions for non-compliance built into the orders, so that the child could have a meaningful relationship with each of her parents.
In his Minute of Orders Sought the father proposed that the parties’ have equal shared parental responsibility and that the child live with the mother and spend defined time with him. He proposed that the time be every Sunday from 10.00am until 4.00 pm at first, moving fairly rapidly to each alternate weekend from Friday to Sunday and then to each alternate weekend from Friday to Monday during school terms and for half of the school holidays.
It was proposed in the Minute that the father’s time with the child be supervised by a number of named family members for the first 12 months and that it thereafter be unsupervised.
The father has an intellectual disability and during cross-examination he said that he did not see why his time with X needed to be supervised and that he was only proposing supervision to keep the mother happy. The case run on his behalf however wisely acknowledged that his history of violence and excessive alcohol consumption was likely to give rise to concern and it was therefore proposed that his time with X be supervised for the first 12 months.
The father’s counsel submitted that it was important for X to have a connection with her father and paternal family and that the contact centre records demonstrated that the father had the capacity to play nicely with X and that the child responded well to him.
An additional reason put forward by the father’s counsel for why an order should be made that X spend time with the father was that the mother had a propensity to form violent relationships. It was argued that if the father was seeing the child he would become aware if something was going wrong in the mother’s home and could do something about it.
Counsel for the Independent Children's Lawyer was ambivalent during closing submissions about what might be appropriate by way of final orders. He agreed that the evidence about the father’s alcohol consumption and violence raised serious concerns about whether the child would be at risk of harm in the father’s unsupervised care and about the benefit to the child of having an ongoing relationship with the father but he did not commit to final orders one way or the other.
A further issue in dispute during the trial was whether X’s surname should be Silk or X, the name she is currently using.
The father sought an order that the child henceforth be known as Silk. The mother proposed that the child continue to be known as X.

The litigation history

This matter has been in the Court system for four years and resolution of it has been delayed by a serious of unfortunate events.
The first application filed in the proceedings was an application for contravention filed by the father in May 2013. He alleged that some six months earlier the mother had ceased to comply with orders agreed to by the parties in October 2012 and made in Maitland Local Court in November 2012.
In July 2013 the mother filed an application to vary the 2012 orders and all outstanding contravention applications were discontinued. At that stage the mother was proposing that the child spend some limited time with the father during the day, initially supervised.
The father filed a response and an order was made for supervised time to occur at (omitted), but only one visit took place, in August 2013. Issues arose about the cost of the supervision. An order was made for time to occur at (omitted), a less-expensive contact centre, but the mother did not take part in the in-take procedure for (omitted) and as of November 2013 she stopped attending court and went to the ground with the child.
In late 2013, a Location Order was made and subsequently a warrant was issued for the mother’s arrest but the police were very slow to act on the warrant and it was not until November 2014 that the mother emerged from hiding and reengaged in the Court process.
A further order was then made for supervised time to take place at (omitted). Time commenced there in late 2014 and has occurred since then.
A family report was prepared in October 2015. No agreement was reached following the release of the report, and the matter was listed for the final hearing in July 2016.
When the matter was called on in July 2016 the Court was informed that the father had recently been charged with two counts of assault occasioning actual bodily harm and the matter was adjourned to await the outcome of the criminal charges. It was relisted for hearing in October 2016 following the father being convicted and sentenced but due to the pressure of listings in that week only one day’s hearing time was available for the matter.
Again due to pressure of listings, the hearing could not resume until April 2017 when it was completed.

The evidence

The mother did not comply with directions to file a trial affidavit but she did attend court for the hearing and she relied on the affidavit she had filed on 10 July 2013.
The father relied on the evidence he filed in compliance with the trial directions which included evidence from his parents Ms M and Mr R and his brother Mr G.
The family report was prepared by Mr C, a family consultant.
All of the witnesses were cross-examined.
Mr C expressed some concerns in his report about the reliability of information provided to him by the mother and in particular the information she provided about whether the child’s birth was registered, but the father was under a similar misapprehension about that and the validity of other information the mother provided to Mr C was borne out by what emerged at the trial.
I had a number of concerns about the father’s evidence which I will refer to some in more detail later in the judgment. He gave contradictory evidence on various occasions about the events surrounding the assault on his son C, his drinking, and whether he had been violent to the mother.
Mr G was asked about a statement in his affidavit that the father had been violent to the mother and looked puzzled and said that he did not know that he had said that in his affidavit.
Mr R and Ms M were very economical in the evidence they gave about their son. They did not report his physical fights with his brothers and they were not aware that he had resumed drinking recently.

Background

The parties’ relationship commenced in 2008 and ended in mid-2012. They have one child, X, who was born on (omitted) 2009.
The mother has two older children; A, born on (omitted) 2001 who is 15, and B, born on (omitted) 2003 who is 14. A and B have always lived with their mother.
The father has three older children. I am not absolutely sure about their ages, so this is approximate but they are: C, who would be about 16; D, who would be about 14; and E, who must be about 11. The father has spent little time with these children since 2008 when he assaulted C although it is not possible to get an entirely clear picture about the amount of time he has spent with them.
As Mr C noted in the family report it is difficult to get a clear picture of when the mother and father actually shared a residence. The mother’s case was that the relationship was on and off and that cohabitation sometimes occurred because the father landed on her doorstep and wouldn’t leave. It seems likely that it was an on and off relationship and that the periods of actual cohabitation were not extensive. The only important thing to note is that X has always lived with the mother, A and B.
It was the mother’s case that the father was physically violent to her during the relationship. The father and his family gave some evidence in their affidavits, or more particularly in the case of the father to Mr C and in cross-examination, which confirmed that they accepted this to be true, but they were all very reluctant to make any real admissions about it and I will need to make findings about the issue.
In March 2012 the mother started working (omitted) and became friendly with a man called Mr L.
The mother and father separated in June or July 2012 and not long after this a final Apprehended Domestic Violence Order (ADVO) was made for twelve months for the protection of the mother, A, B and X from the father.
After this separation, the father spent some limited time with X by agreement. On one occasion the mother left the child with him for an overnight stay but it was common ground that he called her during the night and asked her to come and get the child.
Around September 2012, the parties attended mediation, in October 2012 they signed an agreement about parenting orders and on 5 November 2012 consent orders were made by Maitland Local Court.
The orders provided for the parties to have equal shared parental responsibility and for the child to live with the mother and spend time with the father during the day only for a period of 16 weeks. After that the time was to be each weekend from Friday to Saturday and it was to be supervised by either Mr G or Mr D for the first 8 weeks.
The timeline is a little hazy to me but it would appear that after the agreement was reached at mediation and perhaps prior to the orders being made, X attended for a visit with her father and according to the mother came back with bruises. The mother thereafter refused to agree to her spending time with the father.
The father took a long time to do anything about it but on 13 May 2013 he filed a contravention application. As previously noted this came before the Court in June 2013 and it was followed by the mother filing an application to vary the 2012 orders and then by the history of difficulties I have already outlined.
When the mother resumed attending court in November 2014, a further order was made for supervised time to occur at (omitted). That commenced and thereafter, apart from one occasion in May 2015, the mother has been reliable in attending court and the time at (omitted) has continued.
It was clear once the mother resumed attending court that there was a serious issue to be tried. A family report was ordered and prepared and in due course the matter was listed for trial.

The parties current circumstances

The mother lives in (omitted) with X, A and B.
The mother has a history of being in paid employment and I know she has worked in a (employer omitted) among other things but I am uncertain if she is currently employed.
The mother had a post-separation relationship with Mr L who was violent to her and also with a man called Mr M.
X attends (omitted) Primary School.
The father lives in (omitted) in a home owned by his parents. They usually travel in the colder months but they are at home at present and are living with the father. The father’s cousin Mr T was sharing the home for a period of time until the father assaulted him in mid-2016.
The father is on a Disability Support Pension and he earns some additional money doing mowing.
The father’s brother Mr G is married with two young children and he gave evidence in the proceedings. The father also has a brother Mr I who has a partner and children. Mr I did not give evidence in the proceedings. The father has not re-partnered.

X’s surname

X is enrolled at (omitted) Primary School as X, (omitted) being the mother’s maiden name. The mother initially said that X had a birth certificate bearing that name. That turns out, as I understand it, not to be the case, but the father told Mr C that the child was registered as X and that does not seem to be the case either. X does not appear to have a birth certificate.
The father maintained that following X’s birth she was known as X and he pointed to the fact that she was given that surname in the consent orders signed in October 2012. She is also referred to as X in letters from her paediatrician dated 23 November 2011 and January 2012.
However the child was enrolled in school as X in 2015 and that is the name she is known as at school.
The mother, A and B use the surname Redmond which is the surname of the mother’s former husband and A and B’s father.

The violence allegations

The father’s violence and alcohol consumption are centrally important issues in this case.
Dealing first with the violence, the father was convicted of resisting an officer in the execution of his duty and using offensive language on 21 April 2006 for which he received a bond and a fine.
The father’s former partner, the mother of his three older children, had an Apprehended Domestic Violence Order (ADVO) against him for her protection but there was no evidence about what facts lay behind that.
During his relationship with the mother the father was convicted of assaulting his son C in 2008 causing actual bodily harm, an ADVO was made for the mother’s protection from the father in 2012, and in 2016 the father was convicted of assault occasioning actual bodily harm in respect of his cousin Mr T.
However that only skims the surface as far as the father’s violence is concerned. There were a number of other occasions during the parties relationship when the father was violent and the matter was either not reported to the police or if reported did not result in the father being charged.
The assault on C in 2008 is the earliest recorded incident during the father’s relationship with the mother and there is conflicting evidence and importantly conflicting evidence by the father about what this entailed.
The police record, which was made contemporaneously with the event, states that the father’s children were playing while the father was mowing the lawn and were throwing sticks and grass clippings. The father asked them to stop, C told him to fuck off and the father started hitting C on the left side of the face with an open hand.
The police record goes on to state that the mother was present and noticed how hard the father was hitting C and intervened. It is recorded that the assault resulted in C sustaining a bruise under his left eye and a number of abrasions on his face and that when the father and C got home to the paternal grandparents’ place the paternal grandfather saw the injuries, asked what had happened, and called the police.
The father was arrested and charged and an ADVO was taken out for C’s protection.
That is the contemporaneous version about what happened but the father has subsequently given a number of alternative exculpatory versions.
In the affidavit he filed on 1 October 2013 the father said as follows:
About four years ago I had a nervous breakdown and hit my oldest son C. I was charged, put on a community service order and did an anger management course. The incident followed me stopping my anti-depressant medication, and Ms Redmond [the mother] nagged me to stop taking it.
I seriously doubt the veracity of the father’s claim that the mother nagged him to stop taking his medication because one of the documents tendered at the hearing was a mental health worker’s report of the father seeking assistance after the assault on C. The mother went with him to the appointment and is recorded as being very supportive of him.
That was alternative version number 1. The next version the father gave was in his 2015 affidavit where he said that he hit C during a family argument. He did not mention the charge or conviction and said that he had gone to see an anger management counsellor which had really helped him.
The next version was in cross-examination where the father started by saying that just prior to the incident he had broken up a fight between the mother and C and that everything was fine. Then he said that C told him to fuck off and he admitted hitting him across the face although creeping into his evidence and into the paternal grandfather’s evidence was an assertion that perhaps C had injured his face running into a tree.

The version most likely to be correct is the one the police noted down at the time of the incident in 2008. The father was convicted and he received 60 hours of community service and a two hour supervised bond.
It would appear from the mother’s evidence, and this does not seem to be in dispute, that on the same day as the assault on C the father had a physical fight with his brother Mr G.
In 2011 the father had a fight with his brother Mr I. It was reported to the police, I think by the mother, but Mr I did not want to press charges.
In cross-examination the father agreed that he had punched and pushed Mr I. The mother’s evidence was that there was screaming and punching and pushing and that Mr I had a split lip and a cut forehead.
The next assault was on a neighbour called Mr N. The mother said that in 2011 the father accused Mr N of having an affair with her and he punched him and that two other people had to pull him off Mr N. The father admitted in cross-examination that he had punched Mr N and he admitted that he was pulled off Mr N by neighbours.
That was followed later that evening by an incident in which the mother was, if you like, terrorised by the father and I will describe that a little bit later when talking about the mother’s allegations of the father’s violence to her. The police were called to that incident but there was no complaint to them about the incident with Mr N.
The final assault on someone other than the mother which occurred during the relationship was on A. A attended the family report interviews and told the family consultant that the father had been physically abusive to him on one occasion. He said that the father was drunk and flipped out and was fighting Mr I and trying to get his kids and run off with them. A said that he and others were in a room and the father came in and punched him in the stomach and pushed him onto the bed.
A said that this was the only time the father was physically abusive to him and that the father had not been physically abusive to B because B had autism and ADHD and an anxiety disorder and got scared easier so he always avoided the father when the father was angry.
The next assault on someone other than the mother was on the father’s cousin Mr T in 2016. The father and Mr T started arguing at (omitted). The argument continued at their shared home and the father punched Mr T in the face and injured him.
The father was convicted of two counts of assault occasioning actual bodily harm and was sentenced to an 18 month supervised bond requiring him to undergo drug and alcohol counselling.
That is second hand evidence from A but I place considerable weight on it because A did not suggest that there had been repeated assaults, he did not give generalised evidence and he did not allege that the father had been violent to his brother. He gave a very specific account of one physical assault on him and I accept that it occurred.
The mother gave evidence that during her relationship with the father he hit, punched, kicked and slapped her on numerous occasions. She gave evidence about one particular occasion when the father punched her in the side of the head and she had injuries to the top part of her body.
There are some incidents in respect of the mother referred to in the police records. One incident occurred on 10 April 2011 after the father had punched Mr N. Police were called because of a concern about the mother and they attended and found the father well affected by alcohol.
It was reported that the father had started to bang his head on the ground at home and that mother was in a room and the father came into the room with a knife and told the mother he would kill himself if she left him. It was reported that the mother was unable to leave the bedroom and that friends called the police fearing for the mother.
When the police attended the father put the knife down and the mother said that she did not want him charged. The father was arrested and taken to the police station and a provisional ADVO was made but ultimately he was not charged.
In her affidavit the mother alleged the father threatened her with the knife and put it to her throat. The father initially denied when he was in the witness box that an incident with a knife had occurred at all but upon further questioning he admitted that he had a knife. However he said that he put it to his own wrist, not to the mother’s throat.
Wherever the truth lies it is clear that a violent incident occurred in which the mother was intimidated and threatened by the father’s conduct and this is another occasion on which the police were called but the father was not charged.
The mother said that on 26 June 2012, around the time of separation, she went to the father’s house to collect belongings. She said that the father asked for kisses and cuddles and she refused. She alleged that the father grabbed her by the arms and lifted her up and pushed her backwards onto the bed and lay on her, pinning her to the bed until she forced him off. She later made a report to the police. She said that she did not want the father charged but the police applied for an urgent ADVO.
The father made very limited admissions about being violent to the mother. In his affidavits he only admitted to verbal arguments. In cross-examination he said in relation to one incident:
I suppose I might have grabbed her, whatever it was.
The father told Mr C that he hit the mother at the time of separation because he believed she was having an affair.
The father’s brother Mr G agreed in his affidavit that the father had been violent to the mother but when he was asked about it in cross-examination he said:
I don’t remember writing the violence part.
The father has been violent to a number of people on a number of different occasions. I have already explained why I accept A’s account. I prefer the description by the police about what happened in relation to C to the later, different versions given by the father. I accept the mother’s evidence about the violence to her. The father admitted punching Mr N; he admitted that he had a fight with Mr I; and he was convicted of assaulting Mr T. The picture that is presented by the evidence is of a volatile man who is unpredictably violent to others and who has assaulted children.

The father’s alcohol consumption

The father has sometimes been violent when sober; there was no evidence that he was drunk when he assaulted C for example. However he has also been violent when well-affected by alcohol. A said that the father was drunk when he assaulted him and he was certainly drunk when he assaulted Mr N and Mr T.
There was general agreement by the father and his family that the father had long had a problem with alcohol consumption. In October 2015 he told Mr C that he drank every weekend from when he was 18. He said that prior to separation from the mother his drinking had increased to levels which were problematic.
The father told Mr C that when the parents separated, which was mid-2012, he stopped drinking and was abstinent for two years and that he now drank on Wednesdays and Fridays only and at levels lower than previously.
Mr C noted that the subpoena material did not support abstinence but he felt that there was evidence in other reports which supported the claimed lower levels of alcohol consumption.
Counsel for the Independent Children’s Lawyer pointed out that the father had given different versions about his alcohol consumption in his affidavits.
In his affidavit filed on 4 October 2013 he said:
I used to be a problem drinker, but about 12 months ago I stopped drinking all together.
In his affidavit filed on 9 December 2013 however he said:
I used to be a problem drinker, but about a year ago I stopped drinking to excess and now I only have the occasional drink.
In his affidavit filed on 1 May 2015 he said:
I admit I used to drink quite heavily and it led to me getting into fights with people. About three years ago I made a decision to really cut back. Now I am only a social drinker. I have two or three drinks a couple of times a week. Sometimes I go out with friends and I am the designated driver.
That did not last; in his affidavit filed in July 2016 the father said as follows:
About three years ago I really cut back on my drinking, and I was only doing social drinking. However in early 2016, I began binge drinking again.
The father went on to describe the fight with Mr T which he blamed on his alcohol consumption. He said that he felt the charges against him would be dismissed but said that he had sought professional help in connection with his drinking and was seeing a man called Mr A. He said that since the incident with Mr T he had stopped drinking all together.
The charges were not dismissed and on 21 September 2016, the father was convicted of two counts of assault occasioning actual bodily harm. He was given an 18 month good behaviour bond and ordered to do alcohol counselling, and a 12 month ADVO was put into place for the protection of Mr T. The ADVO prohibited the father coming into contact with Mr T if he had been drinking 12 hours prior to doing so.
It would seem, although no evidence was provided from Mr A to confirm it, that the father did attend alcohol counselling with Mr A at the (omitted) and in the father’s affidavit filed on 21 September 2016 he said that he had not been drinking since the assault and that he was abstinent.
At trial in April 2017, however, which was the first occasion the father had to go into the witness box, he said that he had asked Mr A at Christmas if he could resume drinking. He said that he did this because he wanted to let off steam. He said that he now drank once in a blue moon and that when he drank he had three or four “JDs” or Jack Daniels.
It turned out that the last blue moon was on the Easter weekend shortly before the trial.
The father said that he had been told he should not drink because of his health but he was still drinking.
The reality is that it is likely that the father has never been able to stop drinking. Perhaps he did for a short period in late 2016 but he has by and large not been able to stop drinking since he was 18. He is 42 and it seems to me that there is little likelihood and no compelling evidence that the father’s alcohol problem is under control. That is particularly concerning because although the father is sometimes violent when he is not drinking, the fact that he consumes alcohol clearly heightens the risk of him being violent.

X’s best interests

Any orders I make about X must be orders determined by treating her best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine X’s best interests.
The primary considerations in s. 60CC(2) are the benefit to the child of having a meaningful relationship with each of her parents and the need to protect the child from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
Sometimes it is necessary to make findings about the additional matters in s.60CC (3) before proper consideration can be given to the primary considerations. This is such a case and I am going to start by making findings about the additional considerations.
The first of the additional considerations is any views of the child and the weight to be given to her views.
The only independent evidence about X’s views is from Mr C who interviewed her in October 2015. She told Mr C she did not want to see her dad but she did not connect him with a man called Mr Silk she was seeing at (omitted) who she was quite happy to play with.
I must consider the nature of the relationship between X and each of her parents and any other person.
X was under three when her parents separated. She has always lived with her mother and her mother is her primary attachment figure. There is nothing to suggest that the mother and child do not have a good relationship.
The child also has a relationship with her brothers A and B. She makes the odd complaint about them at (omitted) which the supervisor notes down but that is only to be expected in relation to what happens between children in a home.
X has spent some limited time with the father at (omitted) since December 2014. She plays with him. He is appropriate with her. She displays no fear of him and she told Mr C in October 2015 that she enjoyed her time at (omitted).
X has had no time with any member of the paternal family since the relationship between the mother and father ended and even prior to that it is unclear what the nature of her relationship with them was.
I must consider the extent to which each parent has supported the child.
The father is paying $15 a week child support for X. It is a minimal amount and the mother is financially supporting the child.
The father has been paying the full cost of the time at (omitted) but so he should because he is paying so little child support and things must be very difficult for the mother in terms of financially supporting her family.
I must consider the extent to which each parent has sought to spend time with and communicate with the child and take part in decision-making about the child.
The father initiated mediation soon after separation and he has pursued court orders about spending time with X. He has attended court events and he has attended (omitted) so he has sought to spend time with and communicate with the child since separation.
I must consider the likely effect of any change in the child’s circumstances.
The change proposed by the mother is that the child stop spending time with the father. She is seven years old and her relationship with the father is simply as a playmate. If time stopped it is unlikely that it would have any immediate impact on her.
In the longer term it could have ramifications for her. She will not have a biological father in her life. That can have ramifications for children when they get older and if she does not have a relationship with the father it is likely she will not have one with the paternal family.
The change proposed by the father is that he should commence spending time with X outside of the contact centre (supervised by his parents for 12 months if his legal team’s request is acceded to although the father does not see the necessity for it), and that it should be for quite lengthy periods of time: alternate weekends and, ultimately, half of school holidays.
The issue in relation to that is whether there is an unacceptable risk of harm to X if that occurs, and I will have to consider that later on.
Another aspect of this consideration is that I have already outlined in some detail the father’s violence not to mention his alcohol consumption. The mother was present when the father assaulted C. He has assaulted her son A. She went to ground for 12 months with the child after these court proceedings commenced and it is open to me to find that the mother may struggle to cope with orders that the father spend unsupervised time with X or even time with her supervised by the paternal family.
I must consider the practical difficulty and expense of the child spending time with a parent.
The parents do not live so far apart that this is a consideration that I need to take into account.
I must consider the capacity of each of the parents to provide for the needs of the child, including her emotional and intellectual needs.
Absent issues to do with facilitating time between the father and the child and whether she should be criticised for her attitude to that, and absent the mother being in domestic violence relationships (which is no small problem and I will return to it in a moment) the mother is being a good parent to X.
In his report Mr C referred to the notes of Dr S, a GP, which had been produced on subpoena which mentioned that the child had started in day care. Dr S also said that the child had been referred to speech therapy and my recollection of the mother’s evidence on the first day of the hearing was that X was having ongoing speech therapy.
X attends (omitted) Primary School. She needs some special assistance because her speech has been slow to develop but there was no evidence presented by the Independent Children’s Lawyer or the father’s solicitor to suggest that there was reason to be concerned about the mother’s attendance to the child’s educational needs or that the child was not well-presented at school.
I am not sure how much weight I can place on various parts of the father’s evidence but I do note that in his affidavit filed on 6 July 2016 he said as follows:
Ms Redmond is a good mum. She takes good care of her kids. She is particularly good with her son B who has Autism. He can be challenging at times and Ms Redmond is able to use different parenting tricks to deal with him.
Ms Redmond always feeds the kids well and makes sure that there is someone there to look after them properly.[1]
[1] Paragraphs 95 and 95 of the father’s affidavit filed on 6 July 2016.
The mother does not drink or use drugs and she has a history of employment so she is a good role model to X in that regard.
Whether it is open to me to find that the mother should be criticised for her attitude to the father spending time with X will depend on my assessment of the risk issues but an issue of concern in relation to the mother is that all her children, not just X but A and B, have been exposed to family violence as a result of her relationship choices.
A, B and X were exposed to violence perpetrated by the father. The mother then entered into a relationship with Mr L and there was some very serious and disturbing violence in that relationship between 2012 and 2015.
It is exceptionally damaging for children to be exposed to family violence and that is an aspect of the case which is of concern in relation to the mother’s parenting.
Mr C expressed concern about the fact that the children had experienced some instability in the mother’s care and about the nature of her relationships. He said as follows in the family report:
The mother has been in relationships since she was aged 14 years. She has been single for periods of no more than a few months between relationships. She has remained in relationships despite significant abusive behaviour. The mother has the primary care of three children. Each of those three children have very challenging needs. A has been far too involved in adult issues for far too long. This is affecting his psychological health and is robbing him of the freedom to be a child. It is important that the mother makes significant changes in this regard, including ceasing her current practice of speaking negatively about the father while any of her children are present. The mother reports that she now enjoys an excellent co-parenting relationship with her son’s father. Subpoenaed material indicates that this was not always the case. It is hoped that over time X might benefit from her parents also having a positive co-parenting relationship.[2]
[2] Paragraph 129 of the Family Report
There are some issues of concern about the mother’s parenting but there are also many positive factors to it and there was no evidence the mother was currently in a domestic violence relationship.
There was no evidence that the father had the capacity to provide for X’s day-to-day needs. The fact that he plays nicely with her at a supervised contact centre is not evidence of that. No evidence was given of him having any interaction with Mr G’s children or Mr I’s partner’s children to demonstrate that he had an affinity for caring for children.
The father has an intellectual disability so I cannot assume as I might in some cases that because he is an adult he can learn to be responsive to X’s needs. That would require testing and proving.
There are other issues to do with the father which mean that I have serious concerns about his parenting capacity and one is his alcohol problem. It is of long standing, he has not always been honest about it and he has returned to drinking and has not been upfront with his family about that. Until they went into the witness box, according to them, his brother Mr G and his mother and father were unaware that the father had resumed drinking five months ago.

The father’s alcohol problem is a serious concern because it has been part of some incidents where he has been seriously violent.
I can place absolutely no weight on the father’s evidence in the witness box that he would not drink around his daughter. He has drunk around children before; why would it be any different with X?
If the father consumes alcohol and the child is with him unsupervised she would be at unacceptable risk of harm.
I also have serious concerns about the father’s violence but I will deal with that in a later section of the judgment.
I must consider the child’s maturity, sex and background and any other issues particular to the child.
A letter from (omitted) Area Health dated 23 November 2011 was tendered which referred to the fact that there was a concern about X’s speech delay. She was saying only four or five single words at a little bit over two. However it would appear that she has been referred to speech therapy to assist her.
I must consider any family violence involving the child or a member of the child’s family.
The father assaulted his son C when the child was nine and I have already referred to my concern about the fact that the father has subsequently given a number of different versions about what happened which tend to exculpate him and put blame on others. Mr C noted in the family report that the father said that he did not really assault C and noted that the father and the paternal grandfather both downplayed the seriousness of the incident. The same occurred during the trial. It seemed as if both the father and the paternal grandfather were now suggesting that perhaps C had run into a tree and got some scratches from that, and the father seemed inclined to blame the mother for stirring up trouble and causing the incident.
I am concerned about the evidence surrounding the assault on C and it is an extremely serious disquieting incident.
I accept the evidence in the family report that the father assaulted A. I am satisfied that the father assaulted the mother and I have similar concerns that the father and his family have downplayed the seriousness of those allegations. The father has also had physical fights with his brothers.
The father is a threat. He is a threat to other people. He has done two anger-management courses. He did one after the assault on C. That did not stop what occurred in 2011 and 2012 and 2016. He said that he had done some anger-management counselling with a lady called Ms T but was told after three sessions that he did not need to do any more.
There is an unacceptable risk that the father will lose control and be violent to others. Alcohol exacerbates the problem but the problem exists whether the father is drunk or not.
A document dated 17 October 2008 which was created when the father presented for assessment at the (omitted) Mental Health Service after the assault on C after being referred by his GP was tendered. It was noted that the father had difficulty with reading, writing and expressive speech, that he presented with symptoms of depression on and off for 10 years, had spoken of killing himself but denied current suicide ideation, was fighting to get access to his kids and that there was no substance-abuse and that his partner was supportive.
It was noted, presumably from the father’s self-report, that he had poor control over his anger and had been known to spank his children for small things. It was noted that he had recently been charged with violence after he got into an altercation with his brother after he had spanked his eldest son C. It was noted that his partner, which would be the mother of those children, had an ADVO against him.
That opens another little window of concern into the father’s propensity to be violent including to children.
In summary the father minimises responsibility for his acts of violence, gives various stories about what has happened and perhaps convinces himself over time that what has happened was someone else’s fault. Anger-management courses have not helped. The problem is exacerbated by alcohol and he is still drinking and in my view that alone means that any child would be at risk of harm in his unsupervised care.
I must consider whether there are any family violence orders.
There have been many in this matter. The mother of the father’s oldest children had an ADVO against the father. There was one made for C’s protection in 2008, one for the mother’s protection in 2012 and one for the Mr T’s protection in 2016.
There has also been an ADVO for the protection of the mother from Mr L.
I must consider the attitude of each parent to the child and the responsibilities of parenthood.
Each parent has exposed the child to family violence and in that respect they have each shown a poor attitude to the child and the responsibilities of parenthood.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
The order most likely to lead to further proceedings is an order for unsupervised time, because in my view the mother would have difficulty complying with it. An order for supervised time may involve a similar difficulty although it could more easily be enforced.
I must consider any other relevant matter.
It is relevant to consider here the proposal put forward on the father’s behalf that various paternal family members should be supervisors of his time.
The father provided a long list of proposed supervisors but the only people I could consider as supervisors are the people who gave evidence. I could not consider people I do not know anything about. However I am not convinced that the members of the father’s family who gave evidence are suitable to be supervisors of his time.
There is conflicting evidence in the material about the father’s relationship with members of his family. He told Mr C that he wasn’t close to Mr G but was close to Mr I. The paternal grandfather told Mr C about various disputes between the fathers and his brothers although he said it was only because of women. The father has had physical fights with both Mr I and Mr G.
Another issue is that Mr G, the paternal grandmother and the paternal grandfather all made some admissions about the father’s history of drinking and violence but minimised it and nowhere in their evidence did they mention his fights with his brothers. It would appear that his parents were there when his fight with Mr I occurred and they did not do anything about that.
The paternal grandfather did do something about the assault on C but he now tends to minimise it and think that perhaps it was not as bad as he thought at the time.
The father’s brother Mr G has a very unrealistic view of the father’s drinking. He said that he believed that the father could control his drinking and that he had been able to stop drinking for long periods in the past. That is not correct, and he also resiled in cross-examination from the evidence he gave in his affidavit about the mother having been a victim of family violence at the father’s hands.
The paternal grandmother accepted at face value the father’s assertion in 2016 that being charged with assaulting Mr T had caused him to stop drinking for good. She reported the father as telling her “I know I should have done it long ago”.
It was clear from cross-examination that the father had not been honest with his parents or his brother about his return to drinking at Christmas 2016.
I do not accept that the father’s parents have any capacity to control the father. There is plenty of evidence that on occasion the father has simply lost it and assaulted people; consider for example the evidence about neighbours having to pull him off Mr N. Nobody is going to be able to stop the father if he simply loses it and rushes at another person such as one of his brothers if he becomes upset and/or drunk, so the fact that there are other adults around is not a protection against X being exposed to family violence perpetrated by the father.
I am concerned about the paternal family’s lack of knowledge of the father’s current drinking status and I am concerned, as I always am whenever family members are put forward as supervisors, that they may choose to cover up for the father and minimise what has occurred in relation to his behaviour because he is, after all, their son, and that they would not be properly protective of their granddaughter with whom they do not really have a relationship.
I am unconvinced that the father’s family members are appropriate people to supervise his time and that there is any guarantee that they would be able to keep X safe.
I then have to return to the primary considerations and the first of those is the benefit to the child of having a meaningful relationship with both of her parents.
X has a meaningful relationship with her mother but her relationship with her father is not significant, valuable and important to the child at present.[3] It is the relationship of a child and a playmate. Unless different orders are made about X’s time with the father, he will not have a meaningful relationship with her in the future.
[3] Mazorski & Albright (2007) FamCA 520
The mother does not support X spending different time with the father and Mr C in his report was critical of her for that. After making some comments about the father’s efforts (as reported by the father) to maintain sound mental health and stop excessive drinking and undertake programs to help him maintain control of his emotions, i.e. his violence, Mr C recommended that the father spend regular unsupervised time with the child, and he was critical of the mother for not supporting that relationship.
In my view however there is ample evidence that the mother’s motivation in resisting the child spending time with the father is to protect the child and her concerns are well-founded and reasonable.
S.60CC(2A) of the Family Law Act says that I must prioritise the need to keep the child safe over the need for her to have a meaningful relationship with both of her parents and I have to consider whether X would be at unacceptable risk of harm if she spends time with the father.
The mother believes that she would. She said as follows in submissions:
He’s a violent alcoholic and no matter how many times he says he’s going to change, he doesn’t change
I share the mother’s concerns. I cannot find that the bruises the mother observed on X in 2012 were caused by the father but the evidence about the father’s violence, his assault on two separate children and his alcohol consumption causes me to be of the view that X would be at unacceptable risk of harm if she spent unsupervised time with the father.
Professional supervision would provide some protection for the child from violence and alcohol consumption, because the father would not be allowed to spend time with the child if he appeared to be drunk and a limited period of time at a contact centre would be unlikely to try his patience or create a situation which would lead to violence. So there is the possibility of ongoing supervised time at a contact centre but I will have to weigh up in the end whether there is any long-term benefit to X in that.

Parental Responsibility

There was a dispute about whether there should be sole parental responsibility vested in the mother or whether the parties should have equal shared parental responsibility.
There has been family violence in this matter. The presumption in s. 61DA of the Family Law Act does not apply. There is no prospect of the mother and father being able to discuss major long term issues concerning their daughter and reach agreement about them and it would be wrong to ask the mother to attempt discuss things with the father. The only appropriate order that the mother have sole parental responsibility.

The recommendations in the family report

Mr C did not support an order for no time and he did not even consider that supervision was required. He said as follows:
While the father has clearly behaved in less than ideal ways in the past, including completely unacceptable occasions of domestic violence towards the mother (and reportedly the mother’s children as well), the mother’s proposal that the father play absolutely no role in X’s life appears manifestly inappropriate and not to be in X’s best interests.[4]
It is recommended that X spend gradually increasing time with her father so that after 12 months she is spending alternative weekends and extended periods in school holidays. It is further recommended that this time be unsupervised.[5]
[4] Paragraph 136 of the Family Report.
[5] Paragraph 144 of the Family Report.
Earlier in the report Mr C said as follows:
Subpoena records indicate the father has a propensity for violence when under stress and that this is significantly exacerbated by alcohol.[6]
[6] Paragraph 120 of the Family Report.
However he went on to say:
Subpoena material indicates that the father has acknowledged this and made significant progress in the last three years to address the issues he has had in the past with violence.
I strongly disagree with the suggestion that the father has made significant progress in the last three years to address his issues with violence and he has certainly not adequately addressed his issue with alcohol consumption.
I therefore cannot place weight on the recommendations in the family report.

Conclusion

There is a wrong question and a right question to ask in this case and the fact that for a long time the wrong question has been asked has contributed to the delay in finalising this matter.
The wrong question is: what can be done to force the mother to comply with orders that the child spend time with the father?
The right question is: what parenting orders would be in X’s best interests?
It is important if possible for children to have both of their parents in their lives. The principles and objects in S. 60B of the Family Law Act makes that clear.
Parents are different and they do not have to be perfect to have a relationship with a child which benefits the child. People with an intellectual disability can be an important part of a child’s life and the fact that a parent has an intellectual disability does not disentitle them to be a meaningful part of their child’s life.
However s.60B makes clear and s.60CC(2A) emphasises that the safety of the child has to come first.
X would be unsafe in the father’s unsupervised care due to this alcohol problem and his propensity for violence. He assaulted C and A. How could I ask the mother to send her seven year old daughter to spend unsupervised time with the father when he minimises what occurred, admits no real fault, continues to drink (not that drink played a part in one of those assaults) and has done anger management courses to no effect? How could I ask a parent of a seven year old child to do that? I could not.
The only option would be for the father to see the child under supervision but there are many difficulties with that in this case.
Time supervised by the father’s family would give more scope and have the added benefit of the child of spending time with the paternal family, but the father deceives his family and I am not convinced that they have any capacity to control him nor am I convinced they would necessarily put X’s needs ahead of the father’s.
I could order a continuation of time at (omitted) but to what end, what point? The time there is stilted and unnatural. The father is nothing more than a playmate for the child there. There is no long-term benefit to the child in playing with the father at (omitted).
It would not be in X’s best interests for me to make an order that she spend any defined time with the father. I cannot place weight on the recommendation in the family report given the evidence that emerged at the hearing and in subpoenaed documents about the father’s violence and alcohol abuse.
There is no doubt that the mother has exposed X to family violence, not only by the father but by Mr L, and that is deeply to be regretted. However I cannot solve that problem by ordering that the child spend time, as I said to Mr C, with one of the mother’s previous violent partners. If the mother exposes the child to violence in the future, it will become a matter for someone such as the school as a mandatory reporter to do something about it and perhaps a matter for the Department but the solution is not to order that the child spend time with the father where she would be unsafe.
I am not however going to make an order for no time and no communication. The order I am going to make about time, because I consider that the mother can appropriately deal with this order and it does give some scope for something to occur for very limited periods, and sometimes family tragedies can occur – there can be funerals; there can be family events; is as follows:
Unless otherwise agreed by the mother in writing the child shall spend no time and have no communication with the father NOTING THAT the mother’s decision regarding whether the time occurs will be final and the mother may require the time to be supervised.
In relation to the child’s surname, she has been using the surname (omitted) for some time. It is the name she is known by at school and I can see no benefit to X in me making an order that she be known as Silk, especially in circumstances where she will not be spending any time with the father. That would be very difficult for her to understand and very difficult for the mother to accept given what has happened in relation to her during her relationship with the father.

I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date: 14 August 2017

[2017] FCCA 1905

30 May 2017

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Legal Concepts

Duty of Care

Negligence