SEIDEL & DIXSON

[2019] FamCA 25

FAMILY COURT OF AUSTRALIA

SEIDEL & DIXSON [2019] FamCA 25

FAMILY LAW – CHILDREN – Undefended final parenting hearing – Where the father has perpetrated serious family violence against the mother – Where the father has mental health problems – Where the father poses an unacceptable risk of psychological harm to the children on the basis of exposing the children to family violence – Where it is not in the children’s best interests to have contact with the father – Orders made for the children to live with the mother and spend no time with the father – Orders made restraining the father from contacting or approaching the mother and children.

Births Deaths and Marriages Act 1995 (NSW) s 28(5)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 68B and 68C

Jarrah & Fadel [2014] FamCAFC 14
McCall & Clark [2009] FamCAFC 92 (2009) FLC 93-405; 41 Fam LR 483
Mazorski & Albright (2007) Fam LR 518

APPLICANT: Mr Seidel

RESPONDENT: Ms Dixson

FILE NUMBER: PAC 881 of 2015

DATE DELIVERED: 25 January 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 21 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE RESPONDENT: Sarah Bevan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Braine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Kathryn Renshall Lawyers

Orders

1. That the mother has sole parental responsibility for X born … 2006 and Y born … 2008 (“the children”).

2. That the children live with the mother.

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

4. Pursuant to s 68B of the Family Law Act 1975 (Cth) Mr Seidel born … 1980 is restrained:

   (a)       From being within 200 metres of the children and the mother, Ms Dixson born … 1989 (“the mother”);

   (b)       Contacting the children or the mother in any way including telephone, social media, written correspondence or through any third party.

5. Order 4 is made for the personal protection of the children and the mother.

6. In the event that Mr Seidel does not comply with Order 4, and a police officer believes, on reasonable grounds, that the injunction has been breached, then such police officer is authorised to arrest Mr Seidel without warrant pursuant to the provisions of s 68C of the Family Law Act 1975 (Cth).

7. The child Y Seidel (female) born … 2008 shall be henceforth known as Y Dixson.

8. The mother Ms Dixson is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as Y Seidel (female) born … 2008 be now registered as T Dixson.

9. Pursuant s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the Registrar register the child’s name in the form specified in Order 7 herein.

10. The child X Seidel (male) born … 2006 shall be henceforth known as X Dixson.

11. The mother Ms Dixson is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X Seidel (male) born … 2006 be now registered as X Dixson.

12. Pursuant s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the Registrar register the child’s name in the form specified in Order 10 herein.

13. The Court directs that the mother forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.

14. The children are permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to the children. The mother shall be the only person with ‘parental responsibility’ of the children for the purposes of applying for, and being issued with, an Australian passport for the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 881 of 2015

Mr Seidel

Applicant

And

Ms Dixson 

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the long term parenting arrangements in respect of X age 12 (“the older child”) and Y age 10 (“the younger child”), the children of Mr Seidel (“the father”) and Ms Dixson (“the mother”).

2. The parents separated in June 2012 after a seven year relationship.

3. The father commenced proceedings in the Federal Circuit Court of Australia in March 2015, seeking orders that the children live with the mother, that he and the mother equally share parental responsibility for the children and that he spend alternative weekends, time during school holidays, and on special occasions with the children. The father has never amended his application.

4. The mother originally sought sole parental responsibility for the children and orders that the children live with her and spend no time with the father. The mother then amended her application to include orders permitting her to change the children’s surnames and, to travel internationally without the need for consent of the father to be provided to enable passports to be obtained for them.

5. At the undefended hearing on 21 September 2018, the mother and Independent Children’s Lawyer (“ICL”) tendered a Joint Minute of Orders (Exhibit 8), which also sought an order that the father be restrained from being within 200 metres of the mother and children, and from contacting the mother and children in any way including by telephone, social media, written correspondence or through any third party.

Undefended hearing

1. On 2 March 2015, the father filed an application in the Federal Circuit Court to commence proceedings.  The proceedings were subsequently transferred to this court.

2. The father was originally represented but his lawyer ceased acting for him in June 2015.

3. The father then failed to appear at a number of court events from October 2015 to August 2017.

4. On the 15 August 2017, in the father’s absence, the parties were ordered to attend upon a Family Consultant for the preparation of a Family Report. The father subsequently failed to attend the appointment with the Family Consultant in February 2018.

5. The father did not to appear at the case management hearing on 20 March 2018 and the ICL informed the court that he was in custody, bail having been refused on criminal charges. The orders of 20 March 2018 gave the applicant father the opportunity to make arrangements to attend court if he remained in custody on the adjourned date of the 6 April 2018, however he failed to do so. The applicant father did not appear at the case management hearing on 6 April 2018.

6. On 22 May 2018, trial directions were made as any affidavits filed were significantly out of date.

7. In July 2018, the father failed to appear at the compliance check before a Registrar. An order was subsequently made for the proceedings to be listed for an undefended hearing on 21 September 2018.

8. On the 21 September 2018, the father appeared at approximately 10.25 am but left the court a short time later and was not present at 11.55 am when the hearing commenced.

9. The mother and ICL sought that the Court proceed to deal with the matter to finality in the absence of the father.

10. Rule 11.02(2)(c) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:

    (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

    (c)   determine the case as if it were undefended.

11. Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it is in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the father.

    [1] [2014] FamCAFC 14

    [2] Set out in s 69ZN of the Family Law Act 1975 (Cth).

12. In light of the matter proceeding on an undefended basis, any affidavits that had been previously filed by the father were not read.

Background

1. The mother, who is 29, and the father, who is 38, began living together in December 2005.  By this time the father had accumulated a lengthy criminal history including numerous convictions for assault.  The father’s criminal record and some of the available court records indicate that the victims of these assaults included various intimate partners and police. There are also numerous convictions over many years for contravening apprehended domestic violence orders.  The father also had at that stage an extensive history for a range of other offences including stealing motor vehicles, damaging property and resisting arrest.  Of significance he had also been convicted of having sexual intercourse with two different young women under the age of 16 (and in each case children were born as a result of these offences).  In relation to the second victim the father was sentenced to a term of imprisonment for 18 months with a non-parole period of nine months.  The mother began living with the father about two months after his release from gaol in October 2005 when he was on parole in relation to the most recent of such offences. 

2. The father perpetrated significant physical and emotional violence towards the mother throughout their relationship.  

3. The mother deposes to the father assaulting her from when they began to live together (when the father was on parole) and on a number of occasions when she was pregnant with the older child.  In the course of one of these incidents the father strangled her causing her to become unconscious.  She fled from the home and a stranger drove her to the hospital emergency department.

4. Although there are no police or court records available for this period, the father’s criminal history indicates that he was charged in mid-2006 with assault occasioning actual bodily harm and was convicted and sentenced to a sixteen month term of imprisonment which was suspended.  According to the mother’s affidavit the father assaulted her in around July 2006, kicking her in the stomach (when she was about seven months pregnant) and punching her in the eye.

5. The older child, X, was born in 2006.

6. The father continued to be violent towards the mother after the older child was born and the child was exposed to this violence.  The mother deposes to an occasion when this child was about two months old and the father held the child by his clothes outside a window for approximately three minutes and the child screamed throughout the incident.  Shortly thereafter the Department of Family and Community Services (“Community Services”) removed this child from the parent’s care and he was placed in the care of the maternal grandparents for about eight months.  

7. In January 2007, in the course of an argument in which the mother threatened to leave the father, the father assaulted her by cutting some of her hair and tried to light it with a gas lighter.  The mother deposes to being “scared for [her] life” and telephoned her parents.  She says that the father turned the gas on in the house and threatened to blow the house up and kill them both.  Although there have been no police or court records in relation to this incident produced the mother deposes to her father and police attending a short time after the phone call and the father being arrested and held in remand for some time.  The father’s criminal history indicates that the father was arrested and charged with numerous offences at this time, including assault occasioning actual bodily harm, threatening to destroy or damage another person’s property and two counts of breaching an Apprehended Domestic Violence Order (“ADVO”).  The father’s criminal history also indicates that he was dealt with under the Mental Health Act 2007 (NSW) and then subsequently through alternative mental health provisions in relation to these offences.

8. During the time that the father was in custody, Community Services returned the older child to the mother’s care and the father subsequently spent some supervised time with that child.

9. Following his release the parents resumed their relationship though the mother did so on the basis that she was fearful of the father’s response if she decided to leave him. 

10. The father did not move to live with the mother as he was not permitted to do so but continued to perpetrate violence against her, in particular when intoxicated.  There was one occasion at around this time on which the father kicked her in the back while wearing steel capped boots.

11. The mother became pregnant with the parties’ younger child in about July 2007 and the father continued to be violent towards her during that pregnancy.

12. The younger child was born in 2008.

13. There were numerous violent incidents in the presence of the children from the time that the younger child was born.  On occasions when the parties were engaged in arguments the father deliberately woke the children up causing them to become distressed.

14. After the children were born the mother did not work for some time and was involved in the care of the children.  In 2009 she started working casually.  The father did not maintain stable employment as on many occasions he arrived at work intoxicated.  His longest period of employment was for about six months.

15. The father continued to commit offences in 2008 and 2009 including driving unlicensed and in a dangerous manner, behaving in an offensive manner and various offences against police.  In 2010 and 2011 the father was also convicted of drink driving on two occasions.

16. The mother deposes to numerous incidents in which the father was violent towards her in 2010 and 2011 and on each occasion he was intoxicated.  There were also incidents where the father damaged the mother’s property and on many occasions the children were exposed to the father’s behaviour.

17. In 2011 the father was charged with destroying or damaging property and in later in the same year was charged with the same offence and also breaching an ADVO.  The father was subsequently convicted for these offences.

18. The father also damaged the mother’s property including throwing a lit candle which landed on a cushion causing it to catch alight and was verbally abusive and threatening to the mother on a number of occasions in May and June 2012. 

19. The mother deposes to an incident of serious violence in June 2012 in which the father choked her and threatened to kill her, saying “you’re going to die like my mum died. It’s ok. Don’t fight it, you’re going to die.” The mother lost consciousness for a short time and when she came to the father dragged her to one of the bedrooms by her throat and in the presence of the children punched her in the mouth.  The father then made a lewd gesture to the children telling them “your mother’s a big slut and wants to go fuck lots of men” numerous times.  The mother fled from the home and a neighbour called police.  The mother gave a statement to police but they were unable to find the father for some time during which the mother moved back into her parent’s home with the children in fear of the father.  The father was subsequently charged with stalking or intimidating the mother, assaulting her and contravening an ADVO though for reasons which are unclear the charges were subsequently dismissed.

20. An ADVO was also made against the father for the protection of the mother and the children. The parties did not reconcile after this incident but separated on a final basis.

21. The mother moved out of the home with the children and moved in with the maternal grandparents.

22. Since separation, the children have lived with the mother. From September 2012, she allowed the children to spend supervised time with the father including on Father’s Day and in October 2012, at the father’s request, the mother permitted the children to start spending unsupervised time with him.

23. The mother then allowed the father to spend some overnight time with the children on a couple of occasions from around July 2013. This arrangement continued until the father was charged with breaching the ADVO and subsequently spent time in prison.  

24. In December 2013, the father picked the younger child up from child care and took her to his sister’s house without the mother’s knowledge. The mother was not aware until contacted by the centre that the father had been released from prison.  When the mother arrived at the father’s sister’s house to collect the child, the father made threats to the mother. The younger child has spent no time with her father since this incident. The older child has spent no time with the father since October 2013.

25. The children had one further interaction with the father in July 2014, when he coincidentally arrived at the shopping centre where the mother was shopping with the two children. The mother ran through the crowd to get away from the father, with the father chasing them and shouting abusive comments. This incident scared both the children, who started crying when they arrived at their grandparent’s house shortly after leaving the shopping centre.

26. The father has continued to commit a range of offences following separation from the mother.  On Christmas Day 2013 he committed a drink driving offence and he has also been convicted on two occasions for failing to comply with reporting obligations arising from the offences relating to sexual offending against a minor.  He has also been charged on a number of occasions with resisting arrest, assaulting police and other offences of violence.  The father has also been charged with damaging property belonging to and assaulting at least two other domestic partners.  Court records indicate that significant mental health problems associated with his alcohol and illicit substance misuse have been raised when he has been dealt with by courts in relation to these offences. 

Child Responsive Program

1. The mother, children and father all attended on a family consultant for interviews as part of the Child Responsive Program in September 2015.

2. In her Memorandum to the court the family consultant records that the older child appeared anxious but was determined to talk about the father. This child said that his father “drink drives and smokes in my room” and disclosed a number of incidents of the father acting in a violent manner.  He reported witnessing the father smash a window as he “was angry with mum”, being hit with a toy by his father, being hit with an open hand and closed fist when he was naughty, and seeing his father “grabbing Mum by the neck”. The child said that when he used to go to his father’s house the father would not play with him. He reported that if he did spend time with the father, he thinks that the father would take him and his sister and they would never see their mother again.

3. The younger child, who was seven at the time, was described by the family consultant as being initially apprehensive but relaxed quickly. This child reported to the family consultant of her father; “before he was nice, now he is bad”. The child told the family consultant that the mother had told her to say specific things about her father.  This child also reported seeing her father punch and choke her mother. The child did say that she wanted to “see his [the father’s] face” but the person she feels closest to is her mother.

4. The family consultant concluded that “the serious level of violence between [the parties] in the past would indicate that a positive co-parenting relationship in the future is unlikely. It could be dangerous for all involved, for there to be contact between [the father] and [the mother].”

The Family Report

1. The mother also attended an appointment with the family consultant in February 2018 for the preparation of a Family Report. The father failed to attend this appointment.

1. In the Family Report released in February 2018, the family consultant recommended that the mother have sole parental responsibility for the children, the children live with the mother and spend no time with the father.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:

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

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

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

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

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

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

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

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

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

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

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) are:

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

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

2. I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

3. The meaning of the phrase “meaningful relationship” is not defined in the Act but the Full Court has approved the interpretation given to the phrase that it is a relationship which is “significant”, “important” or “of consequence” [3].

   [3] McCall & Clark (2009) FLC 93-405; 41 Fam LR 483 [2009]; FamCAFC 92 approving the meaning given by Brown J in Mazorski & Albright (2007) Fam LR 518.

4. This consideration has not been interpreted as creating a presumption that children do receive a benefit from having a meaningful relationship with both parents.

5. The Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G &C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child. (sic)

6. Later at paragraph 122 their Honours said:

   …No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

7. These children have not seen their father for just over five years and currently have no relationship with him.  His disengagement in the proceedings can be taken as his acceptance that he does not wish to pursue a relationship with them in the future.

8. In these circumstances and given the serious risks of harm that the father poses to the children which will be discussed shortly, I am of the view that the children will not receive a benefit from having a relationship with him in the future. 

9. Although the final orders that the children spend no time with the father are extreme in nature, it is my view that these orders are necessary to protect the children from the likely physical and psychological harm they may suffer in the care of the father.

10. I am satisfied that the father has committed serious acts of violence against the mother as she alleges during the course of their relationship. The father did not file any evidence to contradict the mother’s allegations and the available records support the mother’s contentions. For example, the father’s criminal history records him having been charged on or around the occasions that the mother alleges she or others have made reports to police and there are for a number of occasions records in relation to his court appearances.  Other records with support the mother’s version of events include hospital records in relation to the April 2006 incident. 

11. I am also satisfied that the father has committed acts of violence against a number of intimate partners both before and after his relationship with the mother.

12. Documents produced on subpoena from the New South Wales Police record the father’s history of violence towards the mother and others including partners of the father before and after the relationship with the mother, the paternal grandfather and police officers.  The father has an extensive history of convictions in relation to violence, contravening ADVOs and other offences.

13. The children have suffered significant psychological harm from being exposed to the father’s violence which is well documented and to which I will return. In my view there is an unacceptable risk that the father will continue to behave in a violent manner including perpetrating family violence to which the children are likely to be exposed if they were to spend time in his care.

14. There is also in my view an unacceptable risk of harm posed by the father in relation to sexual abuse. 

15. The father has been convicted of two offences and served a sentence of imprisonment in relation to sexual intercourse with a person under the age of 16.  The court records reveal that the father first had a sexual relationship with a young woman aged 13 when he was about 20 and that two children were born of this relationship.  The father was charged and subsequently convicted after the first child’s birth.  He was placed on a good behaviour bond and during the time that the proceedings were before the court he began another relationship with another young woman aged about 15 who subsequently also had a child.  He then began seeing the first young woman again and she became pregnant a second time.

16. Police records produced on subpoena also indicate that in January 2015 the father’s partner at the time reported to police her concerns in relation to physical signs of trauma to the vaginal area of her daughter (who is described as a child with special needs and unable to verbalise).  The records reveal that there were concerns held by the police and Community Services in relation to this allegation.

17. The mother also expressed concerns to the family consultant that the father may have been grooming the younger child so as to sexually abuse her.

18. On the basis of the court records which are highly reliable and also having regard to the 2015 complaint to police, I am of the view that the father also poses an unacceptable risk of harm to the children, and the daughter in particular, on the basis that he may sexually abuse her.  It is beyond dispute if a child were to be a victim of sexual abuse he or she would suffer serious harm as a result.

19. There are also real risks in my view of the father physically abusing the children, a matter to which I will return when considering his parenting capacity.

20. My findings as to the risk posed by the father which I regard as unacceptable and which cannot be mitigated are consistent with the view expressed earlier that there is no benefit to the children in having a meaningful relationship with the father.

Additional considerations: s 60CC(3)

1. Having regard to the discussion in relation to the primary considerations it is not necessary to consider the additional considerations in detail.  I will discuss some of the most salient matters in brief all of which are consistent with my view in relation to the unacceptable risk of harm posed by the father and that the children will not receive any benefit from having a relationship with him.

2. When interviewed by the family consultant for the purposes of a family report in February 2018 the older child was 11.  He presented as a quiet, softly spoken and introspective boy with a generally flat affect and low energy and avoided eye contact with the family consultant throughout the interview.

3. The older child had little memory of the father but recalled seeing the father harm his mother and understanding that the mother was scared of the father and feeling scared about the father himself.  He expressed the view that he would be “really scared” if he saw the father again and would be worried that he would be hurt. 

4. The younger child who was nine when seen by the family consultant for the family report immediately started crying when walking into the family consultant office.  Although she was reassured and settled she presented as anxious about her surrounds and the family report process.  The child described recollections of having to move house due to the father’s behaviour, worrying about the father trying to break into her house and seeing the father hitting the mother and her older brother.

5. Both children spoke positively to the family consultant about the mother and the maternal grandparents and raised no concerns with any of those relationships.

6. There is a well-documented history of the mother having been psychologically harmed and suffering Post-Traumatic Stress Disorder (“PTSD”) as a result of her treatment at the hands of the father and her having received assistance from various agencies over a number of years as a result.

7. The mother still suffers from anxiety and I accept her evidence that she will be severely distressed and increasingly anxious if the father were to spend any time with the children.  She only permitted the father spending such time with them in the past due to her fear of his behaviour if she did not permit it and remained concerned throughout the proceedings that the father may discover where she lived. 

8. There is also a well-documented history of each of the children having various conditions, some of which relate to the trauma they suffered as a result of being exposed to domestic violence and abuse in their household.  At the time of the final proceedings the older child was continuing to receive support from a psychologist to manage his PTSD.  The mother reports that the child also exhibited concerning behaviour at school related to poor emotional control which apparently improved after the child no longer spent time with the father.

9. The younger child also was treated by a psychologist for some time for depression, anxiety and PTSD but her symptoms have not been as serious as those of the older child. 

10. For reasons previously given I accept the mother’s account of the father’s pattern of violence throughout their relationship.  The family consultant opines that if accepted such violence would be categorised as “coercive and controlling family violence”.  In relation to the impact upon the children being exposed to such violence the family consultant further opines:

    Exposure to coercive – controlling family violence is known to have detrimental impact on children, including on their physical safety and psychological wellbeing.  Furthermore, family violence of this nature can be associated with parenting deficit including coercive discipline methods which can escalate to physical abuse.

11. The father also has a well-documented history of alcohol dependency and illicit drug use, in particular in the police and court records.  Of this issue the family consultant expressed the following opinion:

    Alcohol and other drugs are likely to affect behaviour and ability to tolerate and manage anger, and it is note that [the mother] claimed that [the father]’s violence was worse when he was affected by alcohol.  Substance misuse is known to have a detrimental impact on parenting, as it reduces the likelihood that a parent would be able to identify a child’s needs, provide consistent sensitive and attuned care and prioritise the child’s needs above their own.  Children can experience a parent with substance misuse issues as inconsistent, confusing or frightening.

12. The family consultant also expressed concerns about the father’s mental health problems with documents produced under subpoena indicating that he has been diagnosed with various mental health conditions including anti-social personality disorder, bi-polar and paranoid schizophrenia and appears to have received inpatient mental health care on numerous occasions.  The family consultant observes that notes contained within these records refer to the father being aggressive, having made threats to kill the mother and/or the children, having access to firearms and having limited insight and there is also reference to him not being compliant with treatment for his mental health conditions.  On this basis, she says that serious concerns would be held for the safety and wellbeing of the children if they were to come into contact with the father.

13. The family consultant also opines:

    If [the mother] has experienced violence as she has claimed, it is likely to be highly detrimental health to have any contact with [the father].  She is likely to have experienced trauma and both her physical and emotional safety would likely be at risk if she came into contact with [the father].  If [the father] does experience alcohol dependency issues and mental health issues his ability to make decisions with [the mother] regarding the children may be highly compromised.  It is recommended that [the mother] hold parental responsibility for the children.

14. In summary, the family consultant expresses the view that it is “vitally important that the children do not come into contact with that which has caused them trauma in the past”.  She is of the view that the children are likely to be highly sensitive and highly vigilant and may perceive any threat, real or imagined as a serious threat to their wellbeing which is likely to have an impact on their behaviours and physical development.  She also says that being exposed to chronic stress can negatively affect development in children and affect their ability to regulate their own emotions, resolve conflict in a prosocial manner and develop health relationships. 

15. The family consultant recommends that if the court finds that the father poses an ongoing risk to the mother and the children and is not spending time with them it may assist the mother protecting the children if she is able to relocate with the children if she chooses.  The mother’s proposed order that passports be issued without requiring the consent of the father and that she be permitted to change the children’s last names may assist in this regard.

16. In relation to the issue of changing the children’s surnames, the family consultant expressed the view that this is not likely to impact on the children’s identity development as they are of an age where they are aware who their family members are.  She also opined that changing their surnames may imply to them that they are separate from their paternal family and different from them in some way which in these circumstances may be positive for the children.  The family consultant also considered that such a change may have no effect on the children either way as they are already aware of their paternity and paternal family. 

17. Having regard to all of the foregoing considerations, I accept the recommendation of the family consultant that the mother hold sole parental responsibility for the children, that they live with her and have no contact with the father or the paternal family.  It is also important for the ongoing protection of the children and mother that the restraints be made as proposed. 

18. Accordingly I make the orders in accordance with the joint proposed minute of order of the mother and the ICL.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 January 2019.

Associate: 

Date:  25 January 2019