Roble & Roble
[2022] FedCFamC2F 684
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Roble & Roble [2022] FedCFamC2F 684
File number(s): WOC 819 of 2016 Judgment of: JUDGE BECKHOUSE Date of judgment: 9 June 2022 Catchwords: FAMILY LAW – PARENTING – Dispute as to father’s time with the children aged 8 and 11 – Where the children and father have a loving relationship – Where mother is seeking no time order as father is unacceptable risk – Where the father is involved in crime culture and uses illicit substances – Where the father has manipulated drug test results – Where the father has inflicted family violence on the mother in the presence of the children – Where the father had the opportunity to reform his behaviour but failed to do so – Held father poses an unacceptable risk of harm to the children – Held this risk of harm cannot be mitigated – Orders made that father spend no time with the children – Orders made for the personal protection of the mother and the children Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB(1)-(3), 60B, 60CA, 60CC(2)-(3), 61B, 61DA, 61DA(2), 65DAC
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Deiter & Deiter [2011] FamCAFC 82
McCall & Clark [2009] FLC 93-405
Division: Division 2 Family Law Number of paragraphs: 135 Date of hearing: 22-25 November 2021 Place: Sydney Counsel for the Applicant: Mr Havenstein Solicitor for the Applicant: Rossi Simicic Lawyers Counsel for the Respondent: Ms Winfield Solicitor for the Respondent: Jacqui Griffin Mobile Solicitor Counsel for the Independent Children’s Lawyer: Ms Rebehy Independent Children’s Lawyer: Legal Aid NSW Wollongong ORDERS
WOC 819 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ROBLE
Applicant
AND: MR ROBLE
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
9 JUNE 2022
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting Orders, save and except for Order 3 of the Orders made by Judge Altobelli on 13 February 2018, be discharged.
2.The mother have sole parental responsibility for X born in 2011 and Y born in 2013 (“the children”) in relation to the care, welfare and development of a long-term nature including but not limited to:
(a)education (both current and future);
(b)health;
(c)religion;
(d)living arrangements;
(e)issue of passport; and
(f)international travel.
3.The children live with the mother.
4.For the purposes of parental communication, unless as otherwise agreed to between the parents in writing:
(a)the parents will communicate by using the co-parenting application Divvito (“Divvito”);
(b)on no fewer than two (2) occasions per year, the mother will provide a written update to the father as to the children’s progress, including but not limited to their health, education and general development and progress;
(c)the parents be permitted to advise each other in writing of a significant life event that occurs (for example, the death of one of the children’s grandparents, an aunt, uncle or cousin);
(d)pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), each parent is restrained by injunction from using abusive and/or aggressive language in any form of communication between them.
5.For the purposes of Order 4 above:
(a)within fourteen (14) days’ of the date of these Orders each parent will do all things necessary to download the Divvito mobile phone application and thereafter sign up to Divvito; and
(b)the mother is solely responsible for the costs associated with Divvito.
6.The children spend time and communicate with the father as agreed between the parents in writing.
7.Pursuant to s 68B of the Act, for the personal protection of the mother and the children, unless given a prior written invitation from the mother, the father Mr Roble shall be and is hereby restrained from:
(a)except as otherwise permitted in Order 4 above, contacting or approaching or attempting to contact or approach the mother by any means whatsoever including through any third party;
(b)attending or being within 500 metres of the ordinary place of residence of the mother and attending or being within 500 metres of any place of employment of the mother;
(c)contacting, or attempting to contact or approach the children by any means whatsoever, including through any third parties, and further the father is restrained from being within 500 metres of the children’s ordinary place of residence or being within 500 metres of any school or educational institution or extracurricular activities, without the mother’s written consent;
(d)attending or being within 500 metres of the current residence of Mr B and Ms C (“the children’s maternal grandparents”) namely D Street, Suburb E, NSW; and
(e)speaking or permitting any other person to speak to or about the mother or members of her family in a negative, offensive or unpleasant fashion in the presence or hearing of the children.
8.It is noted the above and each sub paragraph pursuant to s 68B of the Act are injunctions to which s 68C of the Act would apply and accordingly any police officer made aware of these orders and whom on reasonable grounds believes that such orders and injunctions have been breached by the party, may arrest that party without warrant.
9.Within 28 days of the date of these Orders, the mother is to do all acts and things reasonably necessary to arrange and participate in (and to facilitate the children’s participation in) therapy or counselling (including, if possible, narrative therapy) with Ms J of G Families, City H (or, if Ms J is not available, a psychologist recommended by Ms J), with a view to:
(a)Provide support to the children and the mother in relation to the loss or grief associated with the children not spending time with the father;
(b)Provide, via a narrative therapy approach if possible, a developmentally and age-appropriate explanation to the children regarding the reasons why they are not spending time with the father;
(c)Addressing any other concerns identified by Ms J (or the psychologist she recommends).
10.For the purpose of Order 9 above:
(a)Leave is granted to the mother to provide a copy of the Family Report dated 20 December 2019, a copy of the Reasons for Judgment dated 30 May 2022 and a copy of these Orders to Ms J (or the psychologist she recommends) during the first scheduled appointment;
(b)The mother shall do all acts and things necessary to ensure that she and the children attend on Ms J (or the psychologist she recommends) for joint and/or individual sessions as recommended by Ms J (or the psychologist she recommends) and at a frequency recommended by Ms J (or the psychologist she recommends);
(c)In the event that Ms J (or the psychologist she recommends) recommends that the mother and/or the children participate in any other program or course, the mother will do all acts and things necessary to ensure that she and the children participate in and complete such program or course;
(d)The mother is solely responsible for the costs of such therapy.
11.The mother is permitted to remove the children from the Commonwealth of Australia for the purpose of a holiday from time to time.
12.The mother may apply for, or renew, a passport for the children without first obtaining the consent of the father.
13.The Independent Children’s Lawyer be discharged 30 days after the date of these Orders.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Roble & Roble has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
This case is about the future parenting arrangements for X born in 2011 (“X”) who is almost 11 years old, and his eight year old sister Y (“Y”) born in 2013.
These court proceedings between X and Y’s parents have been ongoing for over five years. This is because while X and Y’s father loves them very much, a number of serious concerns have been raised about the risks that X and Y might be exposed to in his care.
Against this backdrop, the Court has been asked to decide what parenting orders are in their best interests. This judgment explains why the Court has decided that, for now, it is best that X and Y (collectively “the children”) do not spend time with their father.
ISSUES IN DISPUTE
The issues in dispute are:
(a)should the mother have sole parental responsibility for the children, or whether an order for equal shared parental responsibility is in the children’s best interests;
(b)the amount of time the children should spend with their father, if any, and how this would be facilitated to protect the children from any risks identified as probable;
(c)whether it is necessary to make any injunctions restraining the behaviour of the parties towards each other and the children;
(d)how the parties should communicate;
(e)whether the mother should be permitted to obtain passports for the children and travel overseas with them in the future; and
(f)how these orders will be explained to the children.
The father is agreeable to an order that the children live with the mother.
BACKGROUND
The applicant mother, Ms Roble (“the mother”) was born in 1981 and is 41 years old.
The respondent father, Mr Roble (“the father”) was born in 1966 and is 55 years old.
The parents commenced cohabitation in around 2009. They married in 2011.
X was born in 2011.
Y was born in 2013.
The parents separated on a final basis on 9 June 2016.
On 15 August 2016 the mother commenced parenting proceedings in the Federal Circuit Court of Australia (Wollongong Registry).
On 23 September 2016 the mother filed an Amended Initiating Application seeking both property and parenting orders.
On 24 October 2016 the parents entered into interim consent orders about their matrimonial property.
On 9 November 2016 an Apprehended Domestic Violence Order (ADVO) was issued for the mother’s protection from the father for a period of 12 months.
On 15 December 2016 interim consent orders in relation to parenting were made by Judge Altobelli (as he then was). These orders allowed the father to spend some overnight time with the children under the supervision of members of the paternal family.
On 27 April 2017 a Child Dispute Conference Memorandum was prepared about Y who was then 3 years old and X who was 5 years old and living with their mother in the home of the maternal grandparents.
On 1 May 2017 an interim hearing took place before Judge Henderson (as she then was) who made orders for the mother to have sole parental responsibility of the children, as well as injunctions against the father.
On 9 November 2017 further orders were made which included the provision of random urinalysis testing.
On 8 August 2018 directions were made for the matter to proceed to be listed for an undefended hearing, as the father had ceased to participate in the proceedings.
On 8 November 2018 the father re-engaged and interim orders were made by Judge Altobelli (as he then was) directing the parties to contact K Children’s Contact Centre for a suitability assessment. The father was directed to file and serve affidavit material.
On 1 October 2019 further orders were made for the children to spend supervised time with the father at the K Children’s Contact Centre. This commenced on 30 November 2019.
On 9 January 2020 a Family Report prepared by Family Consultant Ms L was released to the parties.
On 6 February 2020 interim consent orders were made which among other things required the father to undertake hair follicle testing within 48 hours.
On 5 February 2021 the matter was set down for a four day final hearing from 22 to 25 November 2021.
On 20 and 22 July 2021 the parties attended a Court Based Family Dispute Resolution Conference.
On 30 August 2021 orders were made under s 102NA of the Family Law Act 1975 (Cth) (“the Act”) requiring the parties to apply for legal representation under that scheme.
On 22 November 2021 the final hearing commenced and proceeded for three days on 22, 24 and 25 November 2021.
As at the date of the final hearing:
(a)The mother lives with the children in the City H area. She is in good health.
(b)The mother works as an admin assistant. When working, she receives assistance and support for the care of the children from her parents, who live close by.
(c)The father resides in the large home with his paternal family in City M. The home is shared with his mother, brother Mr N, sister-in-law Ms O, and their two children.
(d)The father is a builder by trade but has not worked for some time, which has caused both financial hardship and stress to him.
X AND Y
Information about X and Y needs to be captured.
The children attend P School where X is in year 5 and Y is in year 3. The mother says that both children are making good progress and that they enjoy attending school.
In 2020 the mother arranged for X to have some tests, as she was concerned that he was exhibiting traits of attention deficit hyperactivity disorder (ADHD). The testing undertaken confirmed this diagnosis and he commenced taking medication. He sees paediatrician, Dr Q, in City H. The mother reports that since this time he has settled down and is progressing well.
The mother describes X and Y as “happy, energetic, and well-behaved” children both at home and at school.
The Family Consultant had the opportunity to meet X and Y. She reflected that X was full of nervous energy on the day of the interviews, and was very excited to see his father. He also spoke of his paternal cousins. Y was observed as being a settled confident child who enjoyed school and also looked forward to seeing her father.
The Family Consultant made the following observation:
The children, especially X, conveyed strong feelings of excitement and enthusiasm at the prospect of having contact with their father. Both children made clear requests to see their father and freely expressed positive feelings about him. X recalled positive memories of his father and eagerness to have the opportunity to engage in such activities again. The observation of the children with Mr Roble appeared warm, affectionate, and loving. X conveyed a sense of longing and closeness to his father and a desire to stay close to him and to spend time with him. Y seemed less focused on her father, but also open and curious about him. There was nothing in the children’s presentation on the day or in the content of their interviews to suggest they were fearful of Mr Roble or anxious about having contact with him.[1]
(As per the original)
[1]Family Report dated 20 December 2019 (“Family Report”), paragraph 58.
DOCUMENTS RELIED UPON
The mother relied upon:
(a)Initiating Application filed 15 August 2016;
(b)Notice of Risk filed 15 August 2016;
(c)Amended Application for Final Orders filed 31 October 2018;
(d)Affidavit of Ms Roble filed 31 October 2021;
(e)Affidavit of Ms C filed 31 October 2018;
(f)Child Dispute Memorandum by Family Consultant Ms L dated 27 April 2017 (“CDC Memorandum”); and
(g)Family Report by Family Consultant Ms L dated 20 December 2019 (“Family Report”).
The father relied upon:
(a)Amended Response to Final Orders filed 29 September 2017;
(b)Affidavit of Mr Roble filed 16 November 2021.
The Independent Children’s Lawyer (“ICL”) relied upon:
(a)CDC Memorandum; and
(b)Family Report.
There were also a voluminous number of documents tendered throughout the course of the proceedings and I have had regard to that material.
EVIDENCE
The trial was conducted by Microsoft Teams. There were no significant technical issues. I am satisfied I was able to hear the evidence and submissions, and that each of the parties and their witnesses were able to provide their evidence electronically.
Both parties were legally represented at the hearing and the Court had the benefit of an ICL.
Each of the parties provided Case Outline documents setting out the material they relied upon, except for the father who filed a list of documents and a chronology.
The witnesses called were the parties, the maternal grandmother Ms C, and the Family Consultant Ms L (“Family Consultant”).
The Family Consultant gave evidence and was cross-examined. I accept her evidence and her credibility as an expert.
It has not been possible to refer to every aspect of each of the parties’ evidence. However, I have taken all the evidence into account.
I do not propose making any global findings with respect to credit. I have assessed the evidence given on particular issues and where in conflict, have preferred one version to another.
There were some factual matters in dispute that I have had to determine. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings as the balance of probabilities and in what follows, statements of fact constitute findings of fact.
PROPOSALS
I will now consider the parties proposals.
At the commencement of the trial, the father tendered a Minute of Order, which was marked Exhibit 1. In summary he seeks that:
(a)The parents have equal shared parental responsibility for the children;
(b)The children live with their mother;
(c)The children spend time with the father each alternate weekend after school Friday to before school Monday, and one half of school holiday periods and other special days;
(d)The father’s time be supervised by his mother, brother Mr N or his sister-in-law Ms O until he provides a clear hair follicle test covering a period of three months;
(e)Changeovers occur at McDonalds, Suburb R;
(f)Various orders as to how the parties will communicate with each other;
(g)An order restraining the parties from making critical remarks to the children;
(h)An order requiring each party to facilitate the attendance of the children at extracurricular activities, and inform each other of illnesses;
(i)For the parties to use a communication book to record issues relating to the children;
(j)Provision for either parent to travel overseas with the children.
At the commencement of the trial, the mother relied upon a Minute of Final Order sought, which had been prepared in earlier proceedings and filed on 31 October 2018. In summary she seeks:
(a)The children live with her;
(b)She have sole parental responsibility for the children;
(c)The children spend time and communicate with the father as agreed between the parents in writing;
(d)An order be made for the personal protection of the children and the mother restraining the father by injunction from communicating with the children, approaching the children or the mother, approaching the residence of the maternal grandparents, or any residence where the children, mother or grandparents may be, or approaching the children or mother’s place of employment or education;
(e)The mother be permitted to remove the children from the Commonwealth of Australia for the purpose of a holiday, and apply and renew passports for the children without the father’s consent.
The ICL, having considered all of the material filed and the evidence given during the hearing, prepared a Minute of Order on the final day of the hearing. In summary the ICL proposes:
(a)That the mother have sole parental responsibility for the children;
(b)That the children live with the mother;
(c)That the parents communicate using a co-parenting application known as Divvito, and that the mother be required to provide information pertaining to the children via that app;
(d)A requirement for the parents to advise each other in writing of significant life events;
(e)A restraint under s 68B from either parent using abusive or aggressive language in any form of communication;
(f)That the children spend time and communicate with the father as agreed between the parents in writing;
(g)An injunction under s 68B in similar terms to that sought by the mother, but in addition, that they provide powers to a police officer who, on reasonable grounds, believes that such orders or injunctions have been breached to arrest a party without warrant;
(h)That within 28 days, the mother arrange and participate in therapy and counselling with a view to providing support to the children and the mother in relation to these orders, and any other concerns identified;
(i)That the mother is permitted to remove the children from the Commonwealth for the purposes of a holiday, and to apply and renew passports for the children without the father’s consent.
On the final day of the hearing the mother adopted the orders proposed by the ICL.
THE LAW
Part VII of the Act guides the process in relation to the making of parenting orders.
Pursuant to s 60CA of the Act, the Court must regard the best interests of the children as the paramount consideration when making a parenting order.
Section 60CC(2) and (3) of the Act set out the particular matters that I must take into account when determining a child’s best interests.
There are two primary considerations. As stated in s 60B of the Act, the best interests of the child are met by ensuring they benefit from both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests, and protecting them from physical or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence.
The Court must balance the benefit to the children of having a meaningful relationship with each parent with the primary consideration of protecting them from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence.
Thirteen additional considerations for determining what is in a child’s best interest are set out in s 60CC(3) of the Act. I have considered these matters when arriving at my decision.
Section 61B defines parental responsibility as all duties, powers, responsibilities and authority conferred by law upon parents in relation to children. The scope is broad and includes decisions relating to “major long-term issues” concerning the child (s 65DAC of the Act). For example education, religion, culture, health, name, and changed living arrangements (s 4 of the Act).
There is a rebuttable presumption in the Act that a child’s best interests are served by an order allocating equal shared parental responsibility to the parents of a child (s 61DA of the Act). However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2) of the Act). The presumption is rebutted in this case because I have made a finding that the father has engaged in family violence.
PRIMARY CONSIDERATIONS
Meaningful relationship
The children love their father and he loves them. The children expressed positive feelings for the father to the Family Consultant. Notably, she reported that X “conveyed a sense of longing and closeness to his father and a desire to stay close to him and to spend time with him.”[2]
[2] Family Report paragraph 58.
The supervised contact reports also highlighted the children’s comfort with their father. On all visits it was reported that they craved his attention. They were affectionate towards their father and clearly excited to be spending time with him. It is also accepted that the children have consistently expressed a wish to spend more time with their father. Yet the Family Consultant observed that “[a]t their ages, however, their views alone cannot be determinative, especially in the context of serious allegations regarding risk issues.”[3]
[3] Family Report paragraph 60.
Both parties also agree that the children should have a meaningful relationship with the father. However, there must be a benefit for them in doing so. The Court does not assume there is a benefit to all children in having a meaningful relationship with both parents. I am required to focus on whether there is a positive benefit to the children in the particular circumstances of this case.[4]
[4] See McCall & Clark [2009] FLC 93-405 at [119]-[122].
The challenge in this case is how to balance the benefit to the children of having a meaningful relationship with their father with the primary consideration of protecting them from physical, psychological harm, from being subjected or exposed to abuse, neglect or family violence.
The need to protect the children from harm
There are a range of allegations made about risks to the children in the care of the father. The Court is required to make findings on the evidence because they are centrally important to the whole case and they are relevant to a number of the s 60CC(2) and s 60CC(3) considerations.
Drug Use
The mother alleges that the father uses illicit drugs and that this poses a risk to the children.
She said that she first became aware of, or began to have concerns about, the father’s drug use in around 2012 following the birth of X. On one occasion, she says that the father returned home, and she formed the view that he was “high on some type of illicit substance.”[5] The following other events caused her to have concerns about the father’s drug use:
(a)From 2012 onwards, the mother observed the father behaving unusually,[6] absent from the home for long periods of time,[7] substantial and unexplained arrears arising in their rental payments,[8] and strange interactions involving police.[9]
(b)During the marriage “she found pipes in [the father’s] laptop bag, packets of cocaine, a set of scales, syringes, swabs and what she believed at the time to be, steroids.”[10]
(c)Following their separation on 9 June 2016, the mother alleges that she found steroids and other drug paraphernalia in the father’s home.[11] The mother took photographs of the drug paraphernalia and annexed these to her affidavit. In addition, she found vials hidden in the back of the fridge which she understood to contain a steroid.[12] The father refuted this under cross-examination and said they were a hair growth hormone which he never took.
[5] Affidavit of Ms Roble filed 25 October 2021 (“Mother’s affidavit”), paragraph 43.
[6] Ibid, paragraph 60, 64.
[7] Ibid, paragraphs 43, 51, 52, 56, 60, 64, 71.
[8] Ibid, paragraph 44.
[9] Ibid, paragraphs 49-50, 62, 63, 71.
[10] Family Report paragraph 23.
[11] Mother’s affidavit, paragraphs 90-91.
[12] Mother’s affidavit, paragraph 92.
The father for the most part denies that he uses drugs. He was asked about this by the Family Consultant who recorded the father’s response as follows:
…Mr Roble said that he does not use illicit drugs. He said that he last used recreational drugs such as ecstasy or cocaine twenty years ago, prior to having children, but that he had not used drugs since. He specifically denied any use of “ice” or any intravenous drug use. When asked about claims that he had produced positive drug tests, Mr Roble stated that one positive test was following a “buck’s night” where he assumes that his drink was spiked, and the other positive test recently can only be explained by having taken a tablet, he believed to be Valium, from a friend. He said that the drug paraphernalia referred to by Ms Roble in her Affidavit belonged to his cousin and that he agreed to store it in his garage five or six years ago.[13]
(As per the original)
[13] Family Report paragraph 30.
In cases where allegations are made about drug use, a court will routinely order that drug testing take place. On 9 November 2017 orders were made for the father to provide a sample for the purpose of urinalysis testing at the request of the ICL. On 6 December 2017 the Court made a further order for the father to undergo random urinalysis screening.
The ICL issued requests to the father to submit to urinalysis on the following dates with the following outcomes:
Request No Date of Request Date of compliance Outcome 1 11/12/2017 N/A Father did not comply with request 2 10/01/2018 11/01/2018 Positive – amphetamines 3 5/02/2018 N/A Father did not comply with request 4 28/03/2018 N/A Father did not comply with request 5 17/04/2018 N/A Father did not comply with request 6 9/05/2018 N/A Father did not comply with request 7 18/06/2018 N/A Father did not comply with request 10/07/2018
Letter sent to father requesting copies of above resultsN/A Father did not comply with request 8 8/11/2018 14/11/2018 Negative but sample provided late 9 17/12/2018 31/12/2018 Negative but sample provided late 10 07/01/2019 N/A Father did not comply with request 11 05/02/2019 N/A Father did not comply with request 12 04/03/2019 05/03/2019 Negative but creatinine 1.3 (less than 1.8) 13 09/04/2019 10/04/2019 Negative but creatinine 0.9 (less than 1.8) 14 29/05/2019 04/06/2019 Negative but sample provided late and creatinine 0.8 (less than 1.8) 15 02/07/2019 03/07/2019 Negative but creatinine 0.8 (less than 1.8) 16 19/08/2019 N/A Father did not comply with request 17 16/09/2019 17/09/2019 Negative but creatinine 0.7 (less than 1.8) 18 21/10/2019 22/10/2019 Creatinine 1.0 (less than 1.8) – sample does not meet integrity. Amphetamine – require further testing – consistent with methamphetamine 19 17/12/2019 09/01/2020 Negative but sample provided late 20 20/01/2020 24/01/2020 3 days late, creatinine 13.58, Benzos further testing required – negative 21 16/06/2020 16/06/2020 Negative but creatinine 1.3 – sample not met integrity 22 16/07/2020 N/A Father did not comply with request 23 10/08/2020 11/08/2020 Negative – creatinine 9.2 24 16/09/2020 17/09/2020 Negative – creatinine 9.4 25 10/11/2020 11/11/2020 Negative – creatinine 13.5 26 13/01/2021 14/01/2020 Negative – creatinine 19 27 31/03/2021 1/04/2021 Negative – creatinine 12.7 28 18/05/2021 29/05/2021 Negative – creatinine 5.3 29 15/06/2021 16/06/2021 Negative – creatinine 12.4 30 07/07/2021 08/07/2021 Negative – creatinine 12.1
On 6 February 2020 orders were made requiring the father to provide a hair sample for the purposes of drug testing. The orders provided that the father be liable for the payment of the costs of the hair drug testing, and the mother shall pay the initial costs of the hair drug testing with the final determination of the reimbursement of the costs to be reserved to the Court.
On 24 June 2020 the matter was relisted at the request of the ICL due to the father’s non-compliance with the orders made on 6 February 2020. The father gave an undertaking to the Court that within 48 hours and at his own expense, he would comply with the orders made by the Court on 6 February 2020. He did not do so, in breach of his undertaking.
On 6 November 2020 the Court noted that the father had not complied with the orders for hair or urinalysis testing. The Court declined to set the matter down for hearing until the father was compliant with the orders.
By 22 July 2021 the father again agreed to undertake hair follicle drug testing which he had not complied with since the orders of 6 February 2020. When the matter came before the Court for final hearing, the father’s legal representatives indicated that the father had submitted himself for hair follicle testing, and the results would be available “shortly”.
The results were not tendered until day two of the trial. Those results were marked Exhibit 2, and showed a positive test for methamphetamine and that it had been released by the laboratory on 12 November 2021 (10 days before the hearing had commenced). The father was asked why the results has not been disclosed until day two of the trial. He said the results had gone into his “junk email”.
The father gave oral evidence in relation to the positive test results from November 2021. He said that it was the result of an isolated incident that happened in late September 2021 following the death of his father.
The father was also asked why he had not complied with previous orders. He said he could not afford the cost of the testing, and that he had undertaken the testing as soon as the ICL had arranged funding for it.
The father was asked why he had not attended to a testing process in July 2021 when funding had been made available by the ICL. He said he was unable to do so because his hair was too short. When asked whether he cut his hair intentionally he denied this, and said his hair grew slowly and he was unable to submit himself for testing any earlier due to COVID-19 lockdown restrictions.
Evidence was also taken at the trial concerning a discrepancy between test results that the father provided at the ICL’s request and pathology test reports produced under subpoena by S Pathology. It was put to the father that he on occasions had actively taken steps to dilute his urine as reflected by the low creatinine results (as recorded in the above table). When asked about this, he indicated that he saw his doctor and was told to change his diet because his low creatinine levels may have arisen due to malnutrition. He provided no medical evidence to this effect.
It was also put to the father that the test results he provided to the ICL on 17 September 2020 and 11 August 2020 had different results to those same results produced under subpoena. Further, the test results produced under subpoena indicated the samples did not meet the sample integrity criteria. It was put to the father that he manipulated or redacted the document on both occasions. He denied this. He was asked to explain why the paragraphs were missing, and replied: “I don’t know; it wasn’t me.”
A range of documents were produced by the New South Wales Police under subpoena. Those documents reflect the following matters regarding the father’s drug use:
(a)On 26 August 2012 the father was involved in an incident in Suburb T. The father and another person of interest were searched. The COPS system recorded that the man accompanying the father was involved in the proceeds of crime and drugs and amphetamines. Later, a vehicle search was conducted on the vehicle that the father was travelling in. The police found drugs and drug paraphernalia. The record refers to the father’s use of methamphetamines recreationally and a disagreement arising in relation to that.
(b)On 6 January 2014 the father was searched and a random breath test was conducted. A search of his vehicle found a small resealable bag containing clear crystals which were suspected to be methamphetamines. No charges were laid.
(c)On 3 October 2019 the father was observed driving a bicycle with no helmet through City M CBD and was stopped. He was searched and police located a smoking glass pipe, and two small satchels containing methamphetamines. He was placed under arrest but the charges were later dropped.
(d)On 5 October 2019 the police approached the father in City M Mall, in the belief that he may have been purchasing drugs. He was given a move on direction.
(e)On 1 December 2020 the father was stopped in Suburb U for riding a bike without a bike helmet. He was observed to have glazed eyes with small pupils, and the police formed the view he was under the influence of drugs. The police found a small foil in his pants. The foil contained a crystal rock-type substance which the police suspected was methamphetamines. He was placed under arrest and charged, although the charges were later withdrawn. The father maintained that he was holding these items for a friend.
(f)On 20 August 2020 the father was driving a vehicle through Suburb V, when he was pulled over for the purpose of a roadside breath test. The police observed a glass ice pipe lying at the feet of a passenger, and searched the vehicle, where they found numerous clear resealable bags and two ice pipes.
(g)On 7 May 2021 the father was sighted riding a bicycle with no helmet on a footpath and he was searched. The police recorded finding a half-cut straw, an ice pipe, and an empty, small, clear resealable plastic bag. The father said he was minding these items for a friend.
Conclusion on drug use
Having regard to the evidence, I make the following findings about the father’s drug use:
(a)He has been a long-standing user of drugs including methamphetamines;
(b)He has not been honest with the Court about the extent of his drug use;
(c)Urine samples were diluted or manipulated to mask his drug use, and he also wilfully manipulated the urinalysis test results;
(d)The father was aware that the hair follicle testing ordered by the Court would provide an accurate reflection of his drug use. Consistently throughout these proceedings he did not comply with orders, requests, and his own undertakings to participate in hair follicle testing;
(e)He has done nothing to address his drug use, nor was he, at any time, candid about it;
(f)The father is associated with drug lifestyle and culture.
Father’s criminal activity and involvement with police and drug culture
The mother argues that the father’s criminal history and involvement with police places the children at risk of being exposed themselves to criminal and/or anti-social activities.
She says that the father has connections with criminal elements such as members of W.[14]
[14] Family Report paragraph 23.
The father denies this and says he has no history of crime at all and has never been convicted by the police.[15]
[15] Family Report paragraph 30.
In addition to the father’s engagement with the police as set out above, there are other events over the years that are a cause for concern. These include:
(a)From 2013 to 2015 there were a series of concerns raised by the police about the theft of fuel at various locations involving two motor vehicles one registered in the father’s name and the other in the mother’s name. Such concerns were raised in relation to failure to pay for fuel on the following dates:
(i)20 November 2013;
(ii)5 March 2014;
(iii)11 April 2014;
(iv)14 April 2014;
(v)17 July 2014;
(vi)23 October 2015;
(vii)15 December 2015; and
(viii)16 December 2015.
(b)On 12 November 2016 the father was charged with driving a motor vehicle whilst disqualified.
(c)On 14 June 2019 NSW Police were issued with a search warrant to search the location of the father’s residence for firearms, firearm parts, and ammunition. A contractor who had been undertaking a routine pest control inspection reported to the police that he had seen two firearms laying on the father’s bed. The firearms were described to police as being similar to submachine guns.
(d)On 15 June 2019 at 12:55am the police executed a search warrant. At the time of the raid, the father’s niece and nephew, aged around eight and 10, were at home. They, with other members of the father’s family, waited outside in the street for several hours. The father agreed it was a stressful and upsetting incident for them all. The police seized an airsoft pistol during the raid and located parts of a gun that were dismantled and inoperable. They observed there to be several other toy guns around the premises belonging to children. No charges were laid. The father said that the broken gun parts had been found in a local park by the children when they were playing. He denied owning firearms.
The father does not accept that he is engaged in criminal activity. He says this is reflected by the fact that he has never been convicted of any serious offences.
Notwithstanding the father’s explanation for the taskforce raid on his home in 2019, it is of concern that the dismantled gun was found in a park by his niece and nephew and that those children were exposed to what must have been a terrifying experience for them.
Conclusion on the father’s criminal activity and involvement with police and drug culture
Having regard to the evidence, I make the following findings:
(a)The father continues to be involved in criminal activities, or at least associates himself with people who are involved in criminal activities.
(b)The father’s criminality appears to be associated with drug use. The drug use has led to his association with people who use violence, firearms and drugs.
(c)The father does not take responsibility for his criminal associations either now or in the past, nor the impact that exposure to them would have on the children.
Family violence by the father and in the father’s household
The mother told the Family Consultant that she experienced family violence in her relationship with the father. She described that he was verbally abusive and threatening towards her, that he was frustrated easily and in those circumstances responded angrily. She also complained that he had a tendency to be angry and irritated with the children. As a result of the father’s behaviour, the mother told the Family Consultant that she felt anxious, distressed, and at times physically ill at the thought of the father.[16]
[16] Family Report paragraph 35. Also of note, during the family report interview the meeting was suspended so she could access ‘sick bags’ in case she needed to vomit (Family Report paragraph 22)
The mother outlined numerous occasions, throughout the relationship and up until the final hearing, where the father had been verbally abusive towards her.
She alleges that the father contacted her by telephone on Sunday 6 November 2016 to arrange to spend time with the children. She alleges that during the phone call he used words like “fucking slut” and “fucking whore”. The father attended at the home and in the presence of the children spoke offensively towards her. The police attended and took statements and applied for an ADVO on the mother’s behalf which prevented the father from approaching the mother at her residence for a period of 12 months from 9 November 2016.
Notwithstanding the ADVO, the mother alleges that she continued to receive offensive text messages from the father, the details of which she sets out in her affidavit.
As recently as September 2020, the father continued to communicate in an abusive manner towards the mother. For example, on Thursday 3 September 2020 the mother sent the father an email in relation to X and some medical diagnosis. He responded on the same day saying words to the following effect:
…You are a fucking pig… If Y and X are not with me this Sunday, Father’s Day, I promise I will not stop until I destroy you…Stop the fucking bullshit, stop destroying their lives. Stop being a selfish cunt…[17]
[17] Mother’s affidavit, annexure W2.
The father was asked about his communication with the mother. He admitted that it was “not the best communication”. He further said there was no intention behind the words and he would never do anything untoward towards the mother. He said that “they were just empty words”.
Conclusion on family violence by the father and in the father’s household
Family violence is defined in s 4AB(1) of the Act as follows:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(Emphasis in original)
Section 4AB(2) provides examples of conduct that may constitute family violence, including “repeated derogatory taunts”. However, such behaviour only becomes family violence where the quality of that conduct meets the description in s 4AB(1) and causes someone to be fearful. Section 4AB(3) provides that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
The mother has provided evidence in her affidavit, to the Family Consultant, and at the hearing that the father’s conduct caused her to be fearful. I accept her evidence.
Having regard to the evidence, I make the following findings:
(a)The father has been the perpetrator of family violence against the mother.
(b)The father has continued to communicate with the mother in an offensive and violent fashion.
(c)The children have been present when the father has used these words or communicated with the mother in this fashion.
(d)The father does not accept or understand the impact of his behaviour on the mother or the children.
Inability to follow court orders or directions and take responsibility for his behaviour
The mother is concerned that the father will not comply with court orders in the event that orders are made facilitating his time with the children. She alleges that in the past he has referred to court orders as “toilet paper”.[18] Further, she expressed concern that the father did not take responsibility for his behaviour or actions.
[18] Family Report paragraph 24.
The following matters and allegations were made about the father’s failure to comply with court orders and directions:
(a)On 24 October 2016 a cost order was made against the father. It remains unpaid.
(b)The mother alleges that there have been numerous occasions where the father failed to attend and spend time with the children as provided for in the orders, or at all.
(c)On 23 and 24 July 2016 the father retained the children overnight without the mother’s consent.
(d)On 1 and 2 October 2016 the father failed to return the children to the mother at the agreed changeover location.
(e)On 6 November 2016 the father attended the mother’s home uninvited to spend time with the children.
(f)On 27 November 2016 the father did not return the children to the mother’s care as agreed.
(g)On 1 and 2 January 2017 the father did not return the children to the mother. He advised her “nobody and no bit of paper is going to tell me when I can see my kids”.[19] He retained them overnight.
(h)On 14 January 2017 the father said to the mother in the presence of Y “the Order and these papers [the undertakings] are just toilet paper. They mean shit.”[20]
(i)On 15 December 2016 orders were made allowing the father fortnightly time with the children provided that signed undertakings were received from the paternal family. The mother alleges that on 31 December 2016 an undertaking was provided to her purportedly signed by the paternal grandmother, but on 2 January 2017 when the mother collected the children the paternal grandmother had no knowledge of the undertaking and denied signing it. On 25 January 2017 the mother raised her concerns through legal correspondence about the allegedly forged undertakings. The mother further alleges that upon requesting undertakings being duly certified by a solicitor, she observed that the signature of the paternal grandmother on the undertaking certified by the solicitor did not resemble the signature on the earlier undertaking provided by the paternal grandmother.
(j)On 11 March 2017 the mother alleges that despite the paternal grandmother having executed an undertaking to supervise the father’s time with the children she was not present when the children were returned to the mother.
(k)On 25 and 26 March 2017 the mother alleges that despite the paternal grandmother having executed an undertaking, in breach of the undertaking, she was not present when the children returned to the mother.
(l)Over the Easter long weekend in 2017 the mother alleges that in breach of the undertaking, the paternal grandmother was not present at the commencement or conclusion of the father’s time with the children.
(m)On 5 May 2018 the father’s brother and sister-in-law arrived uninvited and unannounced at the maternal grandparents’ residence, attempting to spend time with the children.
(n)On 28 September 2018 the father attended the residence of the maternal grandparents and attempted to spend time with the children.
(o)The father did not comply with orders for drug testing as previously discussed.
[19] Mother’s affidavit, paragraph 157.
[20] Ibid, paragraph 162.
The father was taken to many of these incidents and asked to comment.
For example, the mother alleged that when the children were with the father on the weekend of 1 and 2 October 2016 Y was upset and said to her “I want to come home but Daddy won’t let me.”[21] After failing to meet the mother on Sunday at 4.30pm for changeover, as previously agreed, the mother called the father. The father then asked for the children to stay overnight saying “everyone’s been drinking for the NRL Grand Final”.[22] The mother then decided to drive to the father’s home to collect the children. At approximately 4.15pm the mother received a distressed phone call from the father’s sister in law who said: “I want the number for the Police. How do I call them?”[23] The mother was understandably alarmed by the incident, and told her to call the Police.
[21] Mother’s affidavit, paragraph 122.
[22] Ibid.
[23] Ibid.
When asked about his failure to meet the mother for changeover as agreed, the father said “nothing happened, it wasn’t the end of the world”. The father was then asked why he did not deliver the children as agreed. In response, the father said words to the effect of “I was seeing very little of the children, and for Ms Roble just to leave them there – just a little bit of extra time, just a little bit of communication, and common sense doesn’t go astray.”
When asked about the phone call between the mother and his sister-in law, he said it was “a little misunderstanding” between Ms O and his older brother Mr Z, and that she did not need to call the police.
When asked about his visit to the home of the maternal grandparents on 28 September 2018 the father was given every opportunity to concede that he had not approached this in an appropriate manner. However, he gave evidence that his actions were justified because he had made little progress with increasing his time with the children through lawyers. He expressed the view that the negative impact of the children not seeing him for an extended period of time was far greater than the impact of his surprise appearance at the maternal grandparent’s home.
He gave similar evidence about the incident of 5 May 2018. He said that he was not aware that Mr N and Ms O had planned the visit. He did not concede that the event would cause distress, confusion or concern to the children or maternal grandparents. He did not accept that the incident might be viewed as threatening by the grandparents in light of the ADVO. Indeed he refuted this proposition saying of the ADVO “it wasn’t genuine anyway.”
There was also evidence before the Court that the father had breached contact centre rules. The children’s relationship with the father has been monitored by K Contact Centre through supervised contact visits from 30 November 2019 to 24 July 2021. Those records were subpoenaed. The various incidents that are alleged to have been a breach of the contact centre rules include:
(a)Allowing Y to play on his mobile telephone during supervised contact sessions.
(b)During outdoor play, commencing a running race that effectively removed the children from the supervision of the family support worker.
(c)During supervised outdoor play, allowing the children to meet their uncle, Mr Z, in a park.
When these concerns were put to the father, he shrugged his shoulders and appeared unconcerned. On 22 July 2021 a letter was sent to the father advising him the service would be unable to provide further support. The father gave evidence that the service was ended simply because the contact centre was of the view that the father’s time should be unsupervised.
The mother argued that the father tends to blame others for his shortcomings and takes no responsibility for his actions. This was observed on many occasions during the trial. Some examples included:
(a)The father was asked about the positive drug test result that he returned on 11 January 2018. Under cross-examination, the father said his drink was spiked by friends, and although he was concerned about it, he said, “What can I do? It happened.”
(b)He was asked under cross-examination about the positive methamphetamine result collected on 22 October 2019. He said it occurred because it was after the children’s birthdays and he had not seen or spoken to them, and it only happened the one time because of the stress of not seeing the children.
(c)He was cross-examined about the NSW Police record of events on 3 October 2019, when he was stopped by the police and found with a pipe used for smoking methamphetamines. The father said that the pipe did not belong to him, but to a guy “walking behind me who seemed to have vanished”.
(d)When cross-examined about an incident on 20 August 2020 when the NSW Police found an ice pipe on the passenger seat of his motor vehicle his explanation was similarly evasive. He said that it belonged to a passenger who had been in the car who he had just met. He said that he had agreed to drop him off at the shops, and that he must have dropped the pipe on the floor of the car.
(e)He gave similar evidence in relation to an event that took place on 7 May 2021 when he was found with an ice pipe. He said it did not belong to him, but rather a friend who had dropped around to his place at approximately 10.00pm the night before. His friend had left the ice pipe on the table in the garage and he was returning it to him.
Conclusion on father’s inability to follow court orders or directions and take responsibility for his behaviour
I make the following findings about the father’s ability and willingness to comply with rules, agreements and court orders:
(a)The father has demonstrated an inability to comply with rules, agreements and court orders, even when he has agreed to them and said that he would honour them.
(b)The father demonstrated no appreciation or understanding of the importance of complying with rules, agreements, court orders, or an intention to do so into the future.
(c)The father has made poor decisions and has exposed the children to risks of harm that those various rules, agreements and court orders were trying to protect them from.
(d)The father has taken no personal responsibility for the decisions that he has made. Nor has he demonstrated remorse for the impact of these decisions.
(e)The father demonstrates a lack of insight into the impact of his behaviour on the children and others.
THE LAW AS IT APPLIES TO CASES ABOUT RISK
In assessing risk I have to look at two elements. The first requires a prediction of whether it is likely that some harmful event will occur, and the second requires consideration of the severity of the impact caused by those events.[24] Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated.”[25]
[24] Deiter & Deiter [2011] FamCAFC 82 at [61].
[25] Blinko & Blinko [2015] FamCAFC 146 at [83].
Discussion of risk
Having assessed the evidence, I have determined that the following risks are posed by the father in the future:
(a)He uses illicit drugs and substances, especially methamphetamines and his drug use will continue. This presents both physical and psychological harm for the children when in his care.
(b)The father may expose the children to criminal activities and a drug culture. This presents both a physical and psychological harm for the children when in his care.
(c)The father and/or his family members may expose the children to family violence. This represents a psychological harm for the children.
(d)The father’s propensity to breach rules, agreements and court orders poses a risk of psychological harm to the children and may compromise the mother’s parenting capacity and ability in the future.
(e)The father has not been proactive in addressing any of the risk issues identified nor has he acknowledged them. The father’s lack of insight into his behaviour, and its impact on the children and others poses a risk of psychological harm for the children.
Conclusion on whether the risk is unacceptable and can be mitigated against
Whilst I find that an unacceptable risk to the children has been established, it is necessary to consider whether any safeguards can be put in place to protect the children from the father.
The mother and the ICL argue that the risks to the children (and indeed the mother) are unacceptable and cannot be mitigated. I am therefore asked to make a no time order. They do however propose a range of other measures to allow the father to remain informed of the children’s progress and development.
The father does not accept the risks alleged. However, in the Minute of Order submitted on his behalf he proposes that his time with the children be “supervised by his mother, brother Mr N or his sister-in-law Ms O until [he] provides a clear hair follicle test covering a period of 3 months.”[26]
[26] Exhibit 1.
The Family Consultant completed her report over two years ago in December 2019. In the Family Report she recommended that the father’s time with the children “be determined on the basis of the Court’s findings regarding risk, informed by information from the supervised time, evidence of clean drug testing and the Court’s findings regarding family violence.” [27] She also observed that “[i]t would be of concern that he has failed to take responsibility for this behaviour and address its impact on the people around him.”[28]
[27] Family Report paragraph 69.
[28] Family Report paragraph 65.
The father had two years leading up to the final hearing to address these matters. Indeed, given the very positive assessment made of his relationship with the children he was given what might be described as a “window of opportunity” within which time he could address the risk issues raised in the Family Report so that the Court could be satisfied that the risks identified could be ameliorated in some meaningful way. Sadly he failed to do so. His drug use has continued, he remains evasive and defiant of court orders, his interaction with the police and criminal associates continues, and his breaches of the contact centre service agreement led to their services being suspended.
The risks of harm to the children from spending time with their father, whether supervised or unsupervised, are therefore unacceptable because:
(a)The children are still young and need to be protected from the harms identified;
(b)No drug testing regime could be relied upon because the father has previously manipulated test results and failed to comply with orders requiring him to submit samples for testing;
(c)A supervised contact service has been trialled. It is not a suitable long term option because of the father’s inability to follow and observe the centre rules and service agreements, as demonstrated by such things as his wilful attempts to remove the children from a supervised setting. There might well be an alternate service available but there is a strong and real possibility that such a service may not be prepared to provide an ongoing supervision service in the long term. Added to that, I cannot be satisfied that supervised time would in the future protect the children from psychological harm from the father;
(d)I cannot on the evidence presented find that the paternal family are appropriate supervisors;
(e)The father’s unwillingness to follow court orders, and his inability to understand the impact of his behaviour on the children and the mother cannot be mitigated against, except for a no time order.
THE OTHER PRIMARY AND ADDITIONAL CONSIDERATIONS
As findings have been made as to unacceptable risk it is unnecessary to formally explore the remaining primary consideration and additional considerations contained in s 60CC of the Act. It remains to decide what orders would be in the children’s best interests.
Parental responsibility
I find that the presumption of equal shared parental responsibility as provided in s 61DA of the Act does not apply due to family violence (s 61DA(2) of the Act).
The mother is seeking an order for sole parental responsibility. The father is seeking equal shared parental responsibility. The Family Consultant recommended that consideration be given to a continuation of the mother having sole parental responsibility for the children.
The mother has made responsible decisions in relation to the children. When the mother has attempted to communicate with the father on issues concerning the children, such as X’s ADHD diagnosis, the father has behaved in a hostile and uncooperative manner. The parental conflict is so strong that it prevents an order being made for the parties to share parental responsibility.
I find that it is in the best interests of the children for the mother to have sole parental responsibility.
The mother specifically seeks an order that she be permitted to enjoy a holiday with the children internationally from time to time, and is able to apply for a passport for this purpose. This is a reasonable request and in any event, within the scope of her decision-making delegation, but I will make a specific order to this effect.
OTHER ORDERS
The children will continue to live with their mother, as has been agreed between the parties.
I will not make formal orders for the children to spend time with their father for the reasons already outlined. Circumstances in the future may change. The children will grow older and become more curious about their father. The father may in time address his risk issues. To ensure that the parties are not required to return to Court and seek a variation of these orders, I will make an order that the children spend time and communicate with the father as agreed between the parents in writing. This order has been proposed by the ICL and is consented to by the mother.
The mother will be required to provide the father with information about the children’s progress and significant life events that occur. She will do this on no fewer than two occasions each year. For the purposes of this communication, the mother and ICL suggest that the parents communicate by using the co-parenting application known as Divvito. I will make orders to this effect and the mother will be solely responsible for the costs associated with using the Divvito mobile phone application.
The Family Consultant observed that the children have a curiosity about their father and if I were to make orders for “no time”, they will have a sense of loss and confusion about his place in their lives. For this reason she proposed that the children, and particularly X undertake some counselling.
The ICL has proposed an appropriate therapist to provide this support to the children. This will mean that they are supported in any feelings of loss or grief arising from them not spending time with their father, and it will allow them to receive a developmentally and age-appropriate explanation as to why they are not seeing their father. I will make such an order, and also allow for the Family Report and this judgment to be released for this purpose. The mother will be responsible for the costs of such therapy.
The ICL and mother also seek a range of injunctions for the personal protection of the mother and the children in accordance with s 68B of the Act. I have already outlined, the numerous occasions on which the father has attempted to bring himself or members of his family in contact with the children without the knowledge or consent of the mother.
On this basis I have made the injunctive orders as sought by the mother. It should be noted that the maternal grandmother, Ms C, gave evidence and I accept her evidence about the occasions when the father or his family members arrived at her home to see the children, and the impact this had on her and her husband. As they are regular carers of the children, the injunction will prevent the father from attending or being within 500 metres of their home.
The ICL may need to provide some final assistance in order to ensure the commencement of counselling for the children. I will therefore leave her appointed for 30 days following these orders and discharge her at the expiration of this time.
I should record the Court’s appreciation of the considerable efforts of counsel and solicitors for the ICL and each of the parties. There were voluminous documents made available to assist the Court in making this difficult decision, and the Court was greatly assisted by the efforts and professionalism of all involved.
I wish X and Y the very best for the future and thank you all for taking the time to ensure that the orders made by this Court best support them through their childhood.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 9 June 2022
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