Roberts & Short
[2024] FedCFamC2F 1557
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Roberts & Short [2024] FedCFamC2F 1557
File number(s): DGC 3250 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 8 November 2024 Catchwords: FAMILY LAW – PARENTING – Final orders – father has a long criminal history of violent offences and breaches of court orders – multiple community corrections orders with treatment component and programs for anger management – multiple breaches of intervention orders – breaches of suspended sentences – father incarcerated for much of children lives – alcohol abuse – drug abuse – father found in 2018 judgment to be unacceptable risk to other children – father not spent time with the two children in this matter for three years – father diagnosed with attention deficit hyperactivity disorder – no substantial evidence of change – no insight into his violence or offending – ongoing risk – risk not ameliorated by supervised time – no time with father – change of surname. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 65D, 65DAAA, 95
Cases cited: Carlson & Fluvium [2012] FamCA 32
Deiter v Deiter [2011] FamCAFC 82
Fitzwater v Fitzwater [2019] FamCAFC 251
Fox v Percy [2003] HCA 22
Grella & Jamieson [2017] FamCAFC 21
Isles & Nelissen [2022] FedCFamC1A 97
Oberlin & Infeld [2021] FamCAFC 66
Rice v Asplund (1979) FLC 90 725
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Waltz & Busto [2024] FedCFamC1A 147
Wellington & Frost [2018] FamCA 216
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 99 Date of last submission/s: 6 September 2024 Date of hearing: 28 – 30 August & 6 September 2024 Place: Dandenong Counsel for the Applicant: Mr Rattray Solicitor for the Applicant: Kaj Sharma Legal Counsel for the Respondent: Ms Swart Solicitor for the Respondent: Hartleys Lawyers Solicitor for the Independent Children's Lawyer: Mr Lynch of Peter Lynch Lawyer ORDERS
DGC 3250 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ROBERTS
Applicant
AND: MR SHORT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS ON A FINAL BASIS THAT:
1.The mother have sole parental responsibility for decision making for all major long-term issues in relation to the children X born in 2017 and Y born in 2018 referred to herein as (“the children”).
2.The mother keep the father advised by email of any serious illness or injury sustained by the children.
3.The mother be permitted to change the children’s last names from SHORT to ROBERTS and dispense with the father’s signature in applying to change the children’s names.
4.The children previously known as X SHORT and Y SHORT now be known as X ROBERTS and Y ROBERTS forthwith.
5.The mother apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the children’s name in accordance with Orders 3 and 4 and do all such acts and things and sign all such documents as may be required to give effect to that registration.
6.The mother serve a sealed copy of this order upon the Registrar of Births, Deaths and Marriages in and for the State of Victoria who is requested to give effect to any such application.
7.The children live with the mother.
8.The father spend no time and have no communication with the children.
9.All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This is a parenting matter concerning the children, X aged seven years old, and Y aged six years old (“the children”).
The children live with their mother, Ms Roberts (“the mother”), and have spent no time with their father, Mr Short (“the father”), since September 2021.
The father has an extensive criminal history going back decades, involving multiple counts of assault and breaches of Intervention Orders (“IVOs”), with the first breach of an IVO being in 1999. Consequently, the mother says the children are at unacceptable risk of harm in the father’s care.
The father says that he has seen the error of his ways and that he is now a changed man. He has attended upon multiple counsellors and done numerous courses and most significantly, he has recently been diagnosed with attention-deficit hyperactivity disorder (“ADHD”) and been medicated for that disorder. At the conclusion of the trial, the father proposed interim orders for supervised time for a period of 12 months and a further hearing of the matter at that time, or, if the court was not prepared to make interim orders, that his time be reserved, and he be permitted to file a further application after 12 months subject to various conditions including no further offending, a negative hair follicle test, continued attendance on his treating mental health practitioners, compliance with medication for his ADHD, and psychiatric treatment for his personality disorder.
Nonetheless, the mother maintains it is not in the interests of the children to have any relationship with the father as the court can have no comfort that even if the father has changed, that this change is sustainable. She says that she has “heard it all before” and that the father said the same things in his previous family law proceedings involving his four older children. The mother says there should be no time and no communication between the father and the children, and that she should only be required to communicate with him if the children suffer a serious injury or illness.
The Independent Children’s Lawyer (“the ICL”) proposed no time but supported orders for the father to be able to bring another application in 12 months subject to various conditions.
BRIEF BACKGROUND
The parties commenced their relationship in 2015.
The mother says they separated in 2018. The father says the relationship continued throughout a period of his incarceration in 2019 and concluded when he was released from prison in 2020.
The mother has one son from a former relationship with her ex-husband Mr FF, being Mr B, who is now 24 years old. She has a good relationship with Mr FF who has always spent regular time with their son, Mr B. Mr B lives independently but regularly spends time with the mother and his half-sisters.
The father has four children from his former relationship with Ms Wellington namely Ms D who is 20 years old, E and F who are 17 years old and G, who is 12 years old. The father does not spend any face-to-face time with the four children but asserts that he communicates with them through messages and calls.
The Department of Families, Fairness and Housing (“the DFFH”) became involved with the family after the birth of X in 2017 due to the father’s history of violence. The mother says this is when she was first advised of the extent of the father’s history.
In 2019, the father was sentenced to prison for multiple offences. The mother says this was the catalyst for the parties’ separation, but that she continued to bring the children to see the father in prison so they could maintain a relationship with him. The father maintains the parties were still in a relationship whilst he was in prison.
Upon the father’s release from prison, the DFFH became involved again. The father consequently spent time with the children for three hours at a time, supervised by his sister, Ms H however after three visits, time ceased when Ms H alleged that she was assaulted by the father. Following this incident, the DFFH supervised four visits and thereafter the children saw the father by way of zoom calls. The last of those calls took place in September 2021.
The father was incarcerated again in 2022 as a result of further breaches of the IVO protecting the mother. This time, the mother did not facilitate any time with the children.
On 7 October 2022 the mother filed for a property division.
The father filed his response seeking parenting orders on 10 March 2023.
Final property orders were made by consent on 4 May 2023.
The father was released from prison in 2024.
The parties attended upon psychologist Ms K for a family report released on 19 June 2024. Ms K, who was called in this matter as an expert witness, recommended that there be no time between the father and the children.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
·her case outline filed 21 August 2024;
·her amended application for final orders filed 31 July 2024;
·her trial affidavit filed 31 July 2024 (amended and re-filed 4 September 2024);
·her affidavit in reply filed 13 August 2024;
·the family report of Ms K, dated 19 June 2024; and
·the DFFH response dated 21 March 2023.
The father relied upon the following documents:
·his case outline filed 21 August 2024;
·his amended response to final orders filed 23 May 2024;
·his trial affidavit filed 30 July 2024; and
·the family report of Ms K dated 19 June 2024.
The ICL relied upon the following documents:
·the case outline filed 26 August 2024;
·the DFFH Response dated 21 March 2023;
·the DFFH Response dated 14 April 2023;
·the DFFH Response dated 15 January 2024;
·the psychological assessment and risk assessment of the father completed by Dr J, psychologist, dated 22 December 2020 (used in the father’s previous parenting proceedings); and
·the family report of Ms K dated 19 June 2024.
In addition, the following exhibits were tendered in this matter:
·M1 – video of father with a weapon dated early 2019;
·M2 – current IVO between children and father dated mid-2022;
·M3 – application for IVO with respect to the children dated early 2017;
·M4 – the DHHS (now referred to as the DFFH) letter dated 4 September 2019;
·M5 – child protection order, undertaking and reasons dated 13 August 2019;
·M6 – Dr J’s report dated 22 December 2020;
·M7 – bundle of text messages between parties 18 January 2019 – 19 January 2019;
·M8 – text messages from father about harming the dog dated early 2019;
·M9 – video and audio clip of assault at parents’ home dated mid-2018;
·M10 – text messages dated 29 November 2020;
·M11 – text messages dated 13 November 2021;
·M12 – undated text messages between the parties;
·F1 – handwritten letter of the mother to the father dated 3 July 2023;
·F2 – letter signed “from me” dated 2019 or 2020;
·F3 – the father’s chain of custody request form for urine sample;
·F4 – report of L Centre dated 15 July 2024;
·F5 – M Clinic documents of the father;
·F6 – documents relating to the Department of Justice, email from Ms N and letter from Mr O;
·F7 – letter from P Organisation dated 15 February 2024;
·F8 – bundle of documents of father’s course certificates;
·F9 – bundle of photographs of the children and parents;
·ICL1 – DFFH reports;
·J1 – Judgment of Cronin J in the matter of Wellington & Frost [2018] FamCA 216 dated 9 April 2018 (the father’s previous parenting proceedings);
·J2 – father’s police record and convictions (31 pages);
·J3 – family report by Mr Q clinical psychologist, dated 29 October 2014 in the matter of Wellington & Frost [2018] FamCA 216;
·J4 – family report by Mr Q, dated 6 June 2017 in the matter of Wellington & Frost [2018] FamCA 216;
·J5 – letter of Mr Q, dated 28 February 2018 in the matter of Wellington & Frost [2018] FamCA 216; and
·J6 – psychological report of Dr R, consultant psychiatrist, dated 30 June 2016 in the matter of Wellington & Frost [2018] FamCA 216.
EVIDENCE
This matter was heard over four days, commencing on 28 August 2024 for three hearing days, in addition to brief closing submissions on 6 September 2024.
Although some of the evidence, including closing submissions, was heard over Microsoft Teams, I am satisfied that this did not interfere with the fair conduct of the trial.
In terms of the evidence, I have taken into account the contents of each of the affidavits to the extent that they were referred to in cross-examination and submissions. It is not for the court to go through the evidence and construct arguments not otherwise put to the court or to determine how evidence, not referred to at trial, is applicable to the parties’ competing positions. The parties are bound by the manner in which their case was conducted.
Furthermore, I have not read any subpoenaed material, information provided by agencies such as the DFFH or police, or documents in tender bundles, court books or otherwise emailed to the court, which were not separately tendered into evidence as exhibits. As the court observed in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [53]:
The Full Court has said more than once that a judge cannot be expected to rummage through a large volume of documents on the off chance that the facts might emerge.
If a particular fact or issue is not mentioned in these reasons, it does not mean that I have failed to consider it. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62]:
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
In terms of the evidence, only the parties themselves were cross-examined as well as the family report writer, Ms K.
Having heard the father give evidence I do not agree with submissions made by his counsel that he presented as a witness of truth. When cross-examined about his criminal history, the father could not seemingly remember even very significant events such as why he went to prison for the first time and who the offences related to, and yet at other times, he seemed to have very specific recollection about matters. In addition, despite his long history of convictions, when asked about each incident he was never the instigator and was often defending himself or restraining someone else. Other evidence was inherently unbelievable. For example, the father says a friend "Mr S" came to visit him with a weapon and despite knowing the father was in a bad mental place and left that weapon in the father's garage without telling him. The father says he found the weapon and then sent a video to the mother threatening to harm himself. The father was charged with multiple offences relating to a weapon and an imitation weapon, however the father’s evidence, which was non-sensical, was that it was the same weapon.
On the other hand, I found the mother to be a credible and forthright witness. For that reason, where her evidence differs to that of the father and there is no other corroboration, I prefer the evidence of the mother.
Nonetheless, I accept the observations of Kent J in Carlson & Fluvium [2012] FamCA 32 at [165]:
…human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues.
Therefore, as far as possible, findings will be made on the basis of the available contemporaneous material, objectively established facts, and the apparent logic of events.[1]
[1] Fox v Percy [2003] HCA 22 at [31] per Gleeson CJ, Gummow & Kirby JJ.
In regard to Ms K, she gave evidence in a professional manner and despite careful cross-examination did not sway from her opinion that there should be no time with the children until the father had undergone intensive psychotherapy. Although the mother presented in court as more robust than as assessed in the family report, Ms K maintained under cross-examination her opinion that the mother presented as genuinely fearful of the father.
THE LEGISLATIVE PATHWAY
Pursuant to section 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of a child are the paramount consideration for the court when making a parenting order.
Section 65D of the Act directs the court to make such parenting orders as it thinks proper. The court may therefore use its discretion to determine what is "proper". In this regard the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at [18] has said:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
Section 60CC(2) of the Act specifies six matters which must be considered in determining what is in the child’s best interests.
The matters to be considered pursuant to section 60CC(2) include:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In contemplating the foresaid matters, pursuant to section 60CC(2A) of the Act, the court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that currently or has previously applied to a child, or a member of the child’s family.
Section 60CG of the Act requires the court when considering what parenting order to make, that it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
Although I have had regard to all of the considerations under section 60CC of the Act, I shall only address those that are relevant to my decision.
SAFETY OF THE CHILDREN (AND CARERS OF THE CHILDREN)
Father’s history of violence
The father’s criminal history was tendered into evidence. The following is a summary of that history:
Prior convictions: Charges Result 1996 Offence Without conviction fined 1998 Offence With conviction fined 1999 Multiple offences Community Based order (“CBO”) 1999 Multiple offences Imprisonment- wholly suspended
Further CBO on offences from early 1999 – 6 months2000 Multiple offences Suspended sentence wholly restored – imprisonment
Further suspended sentence on new offences
Fined2000 Failure to comply with CBO (late) 1999) CBO cancelled
Fined2001 Offence
Breach of suspended sentence (mid-2000)Suspended sentence 2005 Offence Fined 2009 Offence Suspended sentence 2013 Multiple offences Community corrections order (“CCO”) 2013 Multiple offences
Imprisonment
Reduced on appealImprisonment (concurrent)
Reduced on appeal2015 Multiple offences Imprisonment
CCO
2016 Multiple offences CCO
ImprisonmentImprisonment to commence in early 2016
2016 Contravene CCO (made 2015) CCO 2016 Contravene IVO
Contravene CCO (made 2016)CCO
CCO2018 Multiple offences CCO 2019 Multiple offences Imprisonment
Fined
Imprisonment (concurrent)2019 Offence Imprisonment (concurrent) 2022 Offence Fined 2023 Multiple offences Imprisonment
CCO upon release from imprisonment
It is apparent from this summary that the father has not only committed very serious offences involving violence over a long period, but that he has also repeatedly breached court orders including IVOS, CBOS, CCO’s, and suspended sentences, as well as orders suspending his driver’s licence. It is also evident that the eight CCO’S each involved a rehabilitation component including at various times assessment and treatment for alcohol abuse, drug abuse and mental health, as well as programs covering offending behaviour, anger management, men’s behaviour change, and road trauma awareness.
At the time of the trial the father was still subject to his eighth CCO.
In addition to these convictions, in 2018, His Honour Justice Cronin delivered a judgment with respect to the four children of the father and his ex-partner Ms Wellington, in which it was found that the father was an unacceptable risk to the four children. His Honour consequently made no orders for time.
The mother in this case alleges that she was subject to family violence by the father. There is a current IVO with respect to the mother and the children which will not expire until 2032.
The father largely denies the allegations with respect to the mother. The father did admit that on one occasion he slapped the mother with an open hand, however, the way he demonstrated this was more of a sweeping motion with his arm, which was suggestive of it being an inadvertent connection with her face. However, it was not put to the mother that she had made up her version of the violence. Rather, the father ran his case on the basis that he was now reformed.
The father’ s rehabilitation
The father’s evidence is that he has engaged with the following practitioners since late 2023/early 2024:
(1)Dr T, general practitioner;
(2)Mr U, social worker and team leader at M Clinic;
(3)Ms V, psychologist at W Clinic;
(4)Mr Z, physiological development[2] from M Clinic;
(5)Dr AA, psychiatric professor at M Clinic;
(6)Mr BB,– counsellor at L Centre; and
(7)Ms Wellington,– psychologist at DD Organisation.
[2] The father did not otherwise give evidence about this person, including their surname or what was meant by “physiological development.”
Commencing 17 October 2023, the father attended telehealth appointments with Ms Wellington. She reported as follows:
[Mr Short] has been attending sessions at [DD Organisation] since 17/10/23. [Mr Short] has attended all scheduled appointments via telehealth.
[Mr Short] appears to be open and engaged throughout all sessions. He has been honest in sharing his past experiences and taking ownership for his actions.
The content of sessions has focussed on past family violence, impulse control and emotional regulation. Modalities used across sessions include cognitive behavioural therapy to restructure negative thoughts and emotions and dialectical behaviour strategies to manage emotional regulation and distress tolerance. [Mr Short] has been receptive to these interventions and has been practising mindfulness techniques.
[Mr Short] expresses regret and sorrow regarding past family violence. He displays strong fondness over his two children and hopes to be reunited with them at any capacity.
…
He is now able to stay focussed on tasks, manage his impulses and improve his overall behaviour. Psychoeducation around ADHD has led [Mr Short] to realise that behaviour stemming from childhood included hyperactivity, impulsivity and hyperfixation are in fact associated with his ADHD, whereas they had been previously perceived as behavioural issues. This diagnosis has given [Mr Short] clarity and insight into his self-identity and how it has affected different areas of life. [3]
(emphasis added)
[3] Father’s exhibit ‘F5’ at p.2 – 3.
In addition, the father attended nine psychological appointments with Ms V from 2 May 2024.
The father also met with Mr BB for drug and alcohol counselling on a fortnightly basis between 14 April 2024 to 24 June 2024. Mr BB reported as follows:
I found [Mr Short] to be fully engaged in the counselling process. That is, he maintained a curious mind, was keen to understand the genesis of his substance use and was willing to examine all aspects of his personality, attitudes, and opinions and how these affected his relationships and worldview.
I found [Mr Short] to be open-minded and willing to examine his past behaviours and to explore new ways of thinking and acting. [4]
(emphasis added)
[4] Father’s exhibit ‘F4’.
In addition, the father’s evidence is that he has engaged in self-study and in mid-2023 completed a program over six weeks facilitated by EE Centre, completing six modules.
In late 2023, the father completed a number of courses in the Positive Parenting Program Seminar Series. In early 2024, the father commenced another program facilitated over six weeks. He has also completed the Tuning into Respectful Relationships course.
The father’s case is that he has successfully engaged in these programs and has shown insight into his behaviour, and is thus, no longer an unacceptable risk to the two children in this matter.
The mother’s position
Despite the father’s attendance upon psychologists, drug and alcohol counselling, and numerous courses, the mother was not persuaded that the father had actually changed. As a result of her experience with the father over many years, the mother was now of the view “once a criminal always a criminal.”
The mother’s evidence was that she had supported the father through his previous parenting proceedings and his incarceration in 2019, even taking the children to visit him in prison, but that the father’s ongoing actions had destroyed her faith in him.
The mother gave evidence that she provided the father a last chance when she facilitated video contact between him and the children in 2021, however he continued to breach the IVO including during his incarceration in 2022.
Evidence of real change
In the judgment of His Honour Justice Cronin in 2018, it was noted that the father similarly claimed in those proceedings to have been a changed man. His Honour did not accept those assertions and indeed following that judgment, the father’s violent behaviour and breaches of court orders continued.
Nonetheless, the father says he has now been diagnosed with ADHD and is finally receiving appropriate treatment including medication. The father’s evidence is that his ADHD affects his “impulsivity and coping mechanisms.” The father says this previously meant that he “would find it hard to moderate or consider responses.”[5]
[5] Father’s trial affidavit filed 30 July 2024 (“Father’s trial affidavit”) at [119].
However, the court has no evidence from the psychiatrist who performed the ADHD assessment and is in the dark about what information they had, and on what basis the diagnosis was made. For example, it is not known whether that psychiatrist was aware that Dr R diagnosed the father with a personality disorder during the previous proceedings.
Furthermore, there is no independent evidence as to whether the father is compliant with his medication noting that the mother asserts that historically the father has failed to take medication.
Nonetheless, the father’s evidence is that he has worked on “coping mechanisms and techniques” and that:
[a] combination of medication and the continued work on my emotional and behaviour regulations has changed the way that I react to things, and I am now greatly able to regulate my response.[6]
[6] Father’s trial affidavit at [121] – [122].
However, the court only has the evidence of the father and the untested evidence of his treating health professionals as to his ability to now regulate his behaviour. Again, little is known about what the father told his treaters and what information they had access to. This is all the more important in this case, given it was Mr Q’s view in the 2017 family report that the father is capable of “saying the right things and having pseudo insight.”[7]
[7] Joint exhibit ‘J4’ at [3].
Furthermore, the father’s evidence overall was not suggestive of a man who was taking responsibility for his actions. In almost every instance he maintained he was either provoked, was defending himself or it was otherwise someone else’s fault.
For example, the father attributes the troubles in his relationship with the mother to the involvement of the DFFH after the birth of X, and her fear that the DFFH would remove X from her care. He variously describes the staff at the DFFH as “confronting and rude” and “aggressive” and “intrusive.” The father goes on to state that as a result of the DFFH involvement, the mother:
… became rather agitated very quickly and scream, yell, swear at me and hit me.
I really thought I could calm her down and de-escalate the situation. I know now that I was not able to and we needed more support and assistance than we realised.
The mother routinely made fun of me to my family and friends in front of them. Sometimes I would just stand there and let her lay into me which was humiliating other times I would lose control and react.[8]
…
I am now aware that l was unable to deal with hostile volatile situations and did not have any coping abilities to step out of these situations, I would engage and the volatility of these situations fuelled my behaviour. Even when I did not engage, I would have feeling of personal insecurity and abandonment, building, this made me desperately in need of validation.[9]
(emphasis added)
[8] Father’s trial affidavit at [40] – [43].
[9] Father’s trial affidavit at [45].
The father goes on to explain further in his evidence:
Life was hostile and the mother would threaten that I would not see the children again. I would react by desperately trying to get the mother back to me. I wasn't coping and the mother wasn't either.
I regret my behaviour during this period, and I do not shy away from that or dismiss my actions or behaviours. I admit to grabbing and restraining the mother when she was screaming at me or trying to hit me. [10]
(emphasis added)
[10] Father’s trial affidavit at [52] – [53].
The father also said under cross-examination that the mother would force him out to the garage where she would abuse him.
The father consistently played down the violence between the parties, referring to it at one point as a “tussle” and to the parties having a “yelling match” which is suggestive of equal involvement. So too the father’s acknowledgment as to the impact of his “undiagnosed mental health” on the way “the mother and I behaved.”[11]
[11] Father’s trial affidavit at [136].
Likewise, despite the court finding the father’s four older children were at unacceptable risk of harm and should have no contact with him, the father maintained that he had not been physically violent to either his ex-partner, Ms Wellington, or the four older children. As with the mother in this case, he says he was only reacting to Ms Wellington and admits family violence in terms of obsessive behaviours, phone calls, and stalking, but emphasises, as in this case, it was to “seek validation and security” and because he had not yet been diagnosed with ADHD.[12]
[12] Father’s trial affidavit at [126].
The father otherwise sought to minimise his actions. His issue with work colleagues “was a work issue”, his issue with Ms Wellington and her family, all of whom he threatened to harm, was “a family dispute.” He also downplayed his threats of self-harm which he described as a “cry for help” and in no way acknowledged that such threats are a form of family violence. Although this is perhaps not that surprising given when asked, the father was unable to provide the court with anything he has learnt in his men’s behaviour change course.
The father also endeavoured to justify his behaviour, both with respect to the mother and Ms Wellington, on the basis that he was grieving the loss of both sets of children and he felt “abandoned.” The father’s evidence was almost entirely framed in relation to the impact on himself. Nowhere in the father’s evidence did he acknowledge the impact of his violence on others around him. Whilst the father ultimately said that he was “sorry” for his behaviour, he had previously expressed similar sentiments in the proceedings with Ms Wellington.
OTHER CONSIDERATIONS
Views of the children
Given the children’s ages and the time that has passed since they saw the father, it is likely that their direct memory of the father is quite limited. Furthermore, the mother conceded that she told the children that their father was “mean” prior to the family reports which is likely to have impacted their views.
In any event, the children are young and are not of sufficient maturity that they would understand the consequences of spending time with the father. As such, their views will not be given any significant weight in this case.
The children’s needs
The mother’s evidence is that the children are both doing well academically and socially and are showing no apparent signs of trauma. X, is in fact, reading ahead of her age group. The children are not currently receiving any counselling and, although recommended by Ms K, the mother does not believe it is necessary for the children.
Capacity to meet the children’s needs
During the children’s short lives, the father has spent approximately two years in incarceration and has not seen them at all for three years.
The father’s current ability to parent the children is unknown.
The mother’s ability to meet the children’s needs is not in question.
DETERMINATION
The overwhelming consideration in this case, is the need to protect the children and their mother from further violence.
As described in Deiter v Deiter [2011] FamCAFC 82 at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
Pursuant to the Full Court in Isles & Nelissen [2022] FedCFamC1A 97, a risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not.[13] I must also determine whether any risk can be ameliorated by orders of the court.
[13] Fitzwater v Fitzwater [2019] FamCAFC 251 per Austin J at [148]-[149] as endorsed by the Full Court in Isles & Nelissen [2022] FedCFamC1A 97; Cao (2018) FLC 93-880 at [36].
It is my assessment that, given the father’s failure to take responsibility for his acts of violence and to acknowledge the impact of his violence on his various victims, that he remains an unacceptable risk of similar conduct in the future. As Mr Q said in his report, the best predictor of future behaviour is past behaviour.
Furthermore, given the number of psychiatrists, psychologists, and counsellors the father has seen and courses he has completed, I am not satisfied that ordering any further interventions would ameliorate that risk at this time.
In regard to supervision, Ms K was of the view that it was not in the best interests of the children to spend even supervised time with the father until he had completed at least 12 months of intensive psychotherapy. I also note that whilst supervised time may protect the children from immediate physical harm, the father has a long history of stalking, for which he was convicted in 2000 and 2013, and which in his evidence he continued to attempt to justify, as he was desperate to his children.
Counsel for the father submitted that the father has never stalked when he has been able to see his children, however, even if I accept that, I am not satisfied on the evidence the father is likely to address the risk issues identified in this judgment, and thus, I must question whether long term supervision is in the interests of these children.
In this case, I have no evidence of how long-term supervision could be implemented. The father’s proposed contact service is only available for 8 sessions. In any event, on balance, the risk of stalking and harassment of the mother and destabilisation of the children who are currently doing well, outweighs any benefit they would gain from seeing the father under supervision.
Interim orders/future applications
The father proposed either interim orders with the matter being adjourned for 12 months, or, to be able to bring a fresh application at that time, subject to satisfying the court of certain conditions.
Ms K’s evidence was that the father would need to do intensive psychotherapy for a period of at least 12 months before any time could be considered with the children. However, Ms K stressed that for this therapy to be effective it would require the right therapist, and that the patient undergoing treatment must be willing to address their issues. I saw no evidence that the father was genuinely willing to address his issues. In any event, it is not in the best interests of the children for this litigation to continue pending that possibility, and it is not in keeping with the overarching purpose as set out in section 95 of the Act.
Furthermore, the Full Court in Oberlin and Infeld [2021] FamCAFC 66 has warned against making orders that try and curtail the principles set down in Rice v Asplund (1979) FLC 90 725, which are now codified (for the most part) in section 65DAAA of the Act.
I am therefore not going to make orders that place conditions on the father’s ability to bring an application in future. If the father chooses to bring such an application it will be a matter for the court to determine, based on the evidence at that time, whether it is in the children’s best interests to revisit this matter.
Decision making for the children
The parties all agreed that the mother should have sole parental responsibility for decision making for the children, which was entirely appropriate given the father’s history of family violence. Although the mother presented as quite robust, she should not have to try and make decisions with him. I am also concerned about the mother having to even inform the father about such decisions, given this could lead to harassment by the father. However, I will make the order, that the mother inform the father of any serious injury or illness of the children by email, on the basis that she consents to that order being made.
Change of name
The mother has sought to change the children’s surnames from their father’s surname to her surname, being Roberts.
The father submitted that all his children, including the four eldest from his previous relationship with Ms Wellington, all have the surname Short and that this is the name that they have used their whole lives and are therefore emotionally connected to it. The father points out that the surname Roberts is not even the mother’s maiden name but rather the surname of her previous husband.
However, the surname Roberts, is the name the mother has chosen to use since her marriage to Mr FF and is the surname of her eldest child, Mr B, with whom she and the children share a close and loving relationship. The mother is also estranged from the maternal family, having been asked to leave the home at just 15 years of age and therefore, understandably, wants nothing to do with her family of origin.
In regard to the children’s attitudes to their surname, the mother’s evidence was that in their community, and at school, the children are known as “X Roberts” and “Y Roberts.”
Taking all of this into consideration, I am of the view that it is in the best interests of the children to have the same surname as their primary carer. Any attachment the children currently have to the surname Short is likely to be limited, given they are still young. Whilst Ms Wellington’s four children have the surname Short, the children’s other half-sibling is a Roberts.
Ultimately, in the end, having ordered that the children will have no time with the father and that I am not convinced they are likely to have a relationship with him in the future, I share the views of His Honour Justice Tree in Waltz & Busto [2024] FedCFamC1A 147:
Given that the child will likely never know his father, and has only bad memories of him, precisely how having a surname which incorporates the father’s is going to be of any benefit to the child – as distinct from the father – is very difficult to understand.[14]
[14] Waltz & Busto [2024] FedCFamC1A 147 at [16].
Accordingly, I find that it is in the best interests of the children to have the surname Roberts in place of Short.
For all the abovementioned reasons, I make the orders at the commencement of this judgment herein.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 8 November 2024
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