SHANNON & JOLES
[2019] FCCA 374
•7 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHANNON & JOLES | [2019] FCCA 374 |
| Catchwords: FAMILY LAW – Parenting – where allegations about the father’s mental health, family violence, and drug and alcohol abuse are made out – where no benefit to children of a relationship with their father – where risk of harm is evident – order for no contact made. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MR SHANNON |
| Respondent: | MS JOLES |
| File Number: | WOC 663 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 11 – 13 February 2019 |
| Date of Last Submission: | 13 February 2019 |
| Delivered at: | Cairns |
| Delivered on: | 7 March 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Ms Jowett |
| Solicitors for the Respondent: | Selman Jowett Solicitors |
| Counsel for the Independent Children's Lawyer: | Mr White |
| Solicitors for the Independent Children's Lawyer: | Acorn Lawyers |
ORDERS
The Mother shall have sole parental responsibility for the long term and day to day decisions concerning the care, welfare and development of the children namely [X] born … 2010 and [Y] born … 2012 (“the children”), including but not limited to:
(a)The education of the children both current and future;
(b)The religion of the children;
(c)The health of the children; and
(d)Any change to the children's living arrangements including moving anywhere within or outside of Australia.
The children shall live with the Mother.
The Father spend no time with the children.
The Father provide details of his current address and any change of address to the maternal grandmother’s address within 14 days of any change of address.
The Mother send to the Father at the address nominated by the Father, the following communication:
(a)Copies of school reports received by the children twice yearly with all identifying details of the school, school teacher, school insignia and other details to be redacted prior to forwarding to the Father.
Pursuant to s68B of the Family Law Act 1975, the Father be restrained by injunction from:-
(a)Attempting to contact the children, Mother or any members of the Mother's family by any means whatsoever, including through a third party;
(b)Harassing, stalking or intimidating the children, Mother or any members of the Mother's family (including via the internet or social media);
(c)Approaching, entering or coming within 100 metres of any place where the children might reside from time to time;
(d)Approaching, entering or coming within 100 metres of any place of employment where the Mother may work from time to time;
(e)Approaching, entering or coming within 100 metres of any school or before or after school day care centre which the children might attend or at which any of the children are enrolled.
Pursuant to s68C of the Family Law Act 1975, if a Police Officer believes on reasonable grounds that the Father, against whom the injunction is directed in Order 6, has breached the injunction by causing or threatening to cause bodily harm to the children, or harassing, molesting or stalking the children, may arrest the Father without a warrant.
Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), upon the Mother's application to apply for or renew a passport for the children [X] born … 2010 and [Y] … born … 2012, such passport shall be issued to the Mother notwithstanding that the Father does not consent.
Should the children wish to enquire about any details concerning the Father in the future, then the Mother is to engage a suitably qualified counsellor or psychologist to assist the Mother to explain this to the children, including why they do not see the Father and a copy of the Expert Report by Ms A dated 20 June 2017 is permitted to be released to the counsellor or psychologist to assist in that process.
Both parents are to refrain from making any critical or derogatory remarks about each other or members of each other's family in the presence or within the hearing of the children or being placed on any social media site that the children may become aware; and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of the children.
Within 6 months of the date of these Orders the Mother shall attend upon and engage with professional supports to assist her and give her strategies for becoming appropriately protective of the children and to respond to any behavioural and emotional problems they may present with as recommended by Ms A in the Family Report dated 20 June 2017.
Within 6 months of the date of these Orders the Mother shall attend upon, enrol and engage in a program or course with … Family Services or other similar agency or courses aimed at understanding Family Violence in relationships and the impact of such relationships on the children and herself.
The Mother engage and continue to engage for as long as considered necessary with … Family Services to assist in her parenting of the children.
The Mother be restrained from bringing the children into any contact with her brother Mr B.
IT IS NOTED that publication of this judgment under the pseudonym Shannon & Joles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 663 of 2014
| MR SHANNON |
Applicant
And
| MS JOLES |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, [X] born … 2010, 8 years old, and his brother [Y] born … 2012, 7 years old. These Reasons for Judgment explain the Orders that the Court has made about the Father spending time and communicating with the children.
Background
The Applicant in this case is the Father. He is 35 years old. The Respondent is the Mother. She is 36 years old. The Father lives in the Region 1 region of New South Wales, and the Mother in the Town B region of New South Wales.
It is very important to note the fact that both parents have had very difficult lives. Who they are today no doubt reflects their life experiences up until today. It has not been easy for either of them. There are complex family of origin issues that are not directly relevant to the matters before the Court but nonetheless put the actions of both parents in some form of context.
There is no doubt that both parents love their sons. However, the relationship between the parents was a difficult one. It was a tumultuous relationship at times. It was highly conflictual and the Court finds often violent. Both [X] and [Y] have been exposed to this high conflict and violence. As will be seen below, both boys have certain challenges that they have experienced in their lives to date. It was apparent from the evidence of both parents that they wish for their children a better life than they themselves have experienced.
In 2000, when the Father was only about 17 years old, he was the subject of a violent assault which left him in a coma and hospitalised for several days. He suffered a broken nose, broken cheekbone, as well as a collapsed lung and swelling on the brain. The Father contends that since this traumatic event in his life he became easily stressed and aggressive at times. Subsequent history verifies this. In … 2003 the Father was charged with common assault and destroy or damage property. In 2008 the Father was charged with assault occasioning actual bodily harm.
The Mother has another child, [Z], who was born in 2002. [Z] is currently 17 years old. The parents met in 2008, or 2009 (nothing turns on this) and commenced cohabitation shortly thereafter.
There were a number of incidents that took place during the period that the parents cohabited which involved violence, or certainly alleged violence. As it turns out, the Court will find, having heard all of the evidence, that these incidents did in fact occur and did in fact involve the Father perpetrating violence towards the Mother. There was an incident on 1 October 2009 when the Father, whilst heavily intoxicated, attempted to enter the Mother’s home. In July 2010 the Mother alleges, and the Court will find, that the Father, again whilst intoxicated threatened the Mother with a hunting knife.
In 2012, or 2013, after both children were born, but were very young, the parental relationship appeared to have deteriorated further. The Father contends, and the Court ultimately accepts, that there were times when both parents were drinking heavily and this resulted in physical violence between the parents, probably of a reciprocal nature. On 11 May 2012 the Father was charged with assault occasioning actual bodily harm arising out of an altercation with a former flatmate in a shopping centre.
On 11 August 2013 there was an incident in which the Mother alleges that whilst she was attending her father’s wedding in Town B, the Father neglected the care of [X] at the family home whilst he was asleep on the lounge room floor and under the influence of cannabis. The Mother returned from the wedding to find that [X], then about 3 years old, was unattended in the front yard. The Mother woke the Father. The Father punched the Mother in the head, and violently assaulted her. The Police were called. Whilst there are some inconsistencies in the Mother’s evidence, the Court will nonetheless find that the Mother’s version of this event is to be preferred to that of the Father. There is reason to believe that the Father was under the influence of cannabis during this violent assault.
The parties separated a short time after this incident. On 11 December 2013 a final AVO was made for the Mother’s protection for two years. This AVO was not based on the assault, but on a series of aggressive text messages that the Father sent to the Mother.
When the Mother and children vacated the former family home, the Father did not know that they had moved to the Town B area. The Mother contends that the relocation to Town B was on Police advice. On balance, the Court accepts the Mother’s evidence in this regard.
In December 2014 the Father resumed spending time with the children. The proceedings had commenced by then.
On 23 February 2016 the Father was charged with offensive language, resisting arrest and intimidating a police officer in the execution of his duty. This occurred in the context of the Police being called to the Mother’s home, as the Father was refusing to leave. The Father resisted Police attempts to escort him out of the premises, became aggressive, and made a number of threats.
During 2015 and 2016, the Independent Children’s Lawyer, pursuant to Orders made by this Court, requested the parents to provide urinalysis. The Father declined to do so. The Mother provided two tests that resulted positive.
In October 2016 the Father was charged with driving under the influence of illicit drugs. Both cannabis and methylamphetamine had been indicated in the test. He was subsequently convicted and disqualified from driving for six months, as well as fined $500.
In 2017, probably in or about January, the parents were at a birthday party at the home of one of the Mother’s friends. The Father became intoxicated, picked up a hammer, and held it to the Mother’s throat. The Police were called and arrested the Father, but he was ultimately released. Whilst there are inconsistencies and omissions in the various records of the Mother’s account of this incident, ultimately the Court will prefer her evidence of this event.
There was another incident in March 2017 when the Police were called to a party where the Father was heavily intoxicated and misbehaving.
The last incident for relevant purposes took place on 17 June 2017. The Father attended the Mother’s home. She asked him to leave. He made a number of threats to her, of a very serious nature. The Mother threatened to call the Police. In return he threatened, in effect, to kill her if she did so, and that the Mother would “be dead long before they get here”. The evidence indicates that when the Police attended they found the Father to be moderately affected by drugs and alcohol. He was charged. An AVO was granted for the Mother’s protection. The Father has not seen the children since then.
By 2016 the evidence indicates that [X] started exhibiting aggressive behaviours. In 2017 he was suspended from school arising out of that aggressive behaviour. There is evidence to satisfy the Court that the Mother responded to this appropriately by consulting doctors and other professionals.
The Final Hearing of this matter was adjourned a number of times because the Father did not turn up, but then again chose to participate in the proceedings.
The Final Hearing ultimately took place between 11 and 13 February 2019.
At the Final Hearing the Mother’s proposal was that she have sole parental responsibility, the children live with her, and the Father not to have any contact with the children by any means whatsoever. During cross-examination she agreed, however, that the Father could be appraised of information in relation to the children’s education, provided the information was communicated in a way that ensured that the location of the children’s school, and where the children and the Mother were living, was not revealed. The Minute of order sought by the Mother is reproduced in the First Schedule to these Reasons.
At the Final Hearing the Father, who represented himself, sought orders for equal shared parental responsibility, that the children live with the Mother, and spend time with him each alternative weekend (daytimes only) for three hours, initially commencing supervised but then progressing to unsupervised. The precise orders sought by the Father are reproduced in the Second Schedule to these Reasons.
At the conclusion of the Hearing, the Independent Children’s Lawyer proposed a Minute of orders. The Minute of order proposed by the Independent Children’s Lawyer is reproduced in the Third Schedule to these Reasons for Judgment.
The Evidence
In the Father’s case, he relied on the following documents:
a)Amended Initiating Application of Mr Shannon filed on 14 September 2018; and
b)Affidavit of Mr Shannon filed on 7 February 2019.
In the Mother’s case, she relied on the following documents:
a)Response of Ms Joles filed on 14 January 2019;
b)Affidavit of Ms Joles filed on 14 January 2019;
c)Notice of Risk filed on 14 January 2019; and
d)Case outline document filed on 7 February 2019.
The following documents were tendered during the proceedings:
a)Family Report prepared by Ms A dated 20 June 2017;
b)Various Facebook posts by Mr Shannon dated 2017 – 2019;
c)a USB containing a video taken by Mr Shannon in 2017;
d)Documents produced pursuant to subpoena on Dr C;
e)Bundle of text messages between various parties dated 2017;
f)Documents produced pursuant to subpoena on NSW Police;
g)Documents produced pursuant to subpoena on Town B Public School;
h)Documents produced pursuant to subpoena on the Department of Family and Community Services;
i)Documents produced pursuant to subpoena on Town B Medical Practice;
j)Documents produced pursuant to subpoena on Dr D; and
k)Ms Joles’ drug test results.
Applicable Law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Family violence is defined in s.4AB of the Act:
(1) 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.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The case law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Credit Issues
This is a parenting case where, regrettably, it is necessary to make findings as to the credit of the parents.
The Father was frequently unresponsive in cross-examination, though not maliciously or mischievously so. He clearly intended to answer the question that was put to him but provided broad and indeed unnecessary background. His unresponsiveness is not measured by the Court as signalling lack of cooperation, discourtesy or avoidance of the truth. The Father was very keen to explain himself and the context of the events in respect of which he was cross-examined. The difficulty with the evidence that the Father gave about key events, however, was the inconsistency between the evidence that he gave in his Trial Affidavit, and in cross-examination, and the independent business records such as documents produced by New South Wales Police, principally COPS entries, as well as medical and other corroborating evidence of the Mother’s assertions as to the family violence that she suffered.
The Father’s credibility was further strained by the significant internal inconsistencies between his Affidavit evidence, and oral evidence. For example, at paragraph 36 of his Affidavit filed 7 February 2019 he deposes: “I have no issue in respect of mental health.” In cross-examination, however, he was much more fulsome both about his past mental history record and his current mental health. For example, in a Facebook message that the Father posted on 26 January 2019 he said, amongst other things, that he was “…losing my mind…”. The previous day a post included the words “…I’d love to go crazy…”. In cross-examination he agreed that when he made that post his mental health was probably not stable. Whilst he denied thoughts of self-harm he explained that he “…already felt dead inside”. He accepted that these posts were a cry for attention. He expressly denied thoughts of suicide or harming anyone. Moreover, the Father accepted that he was diagnosed with bipolar disorder about five years ago and indeed was treated pursuant to a mental health plan in respect of this, possibly for up to 20 sessions. He accepted, however, that the records of his treating psychologist recorded that he failed to attend several sessions. He also accepted that he had sought a disability support pension based on his mental health concerns, but was not successful.
Therefore, when the Father was challenged about his evidence suggesting he had no mental health concerns, his only explanation was that he no longer associated with people who caused him stress. He accepted that he could have problems in the future, though he is doing more positive things, but even he accepted that depression does not go away. He agreed that bipolar disorder does not go away. He agreed that both his treating psychologist and treating psychiatrist, whose records were before the Court, evidenced a long history of mental health issues. He agreed that he had been prescribed antidepressants.
The Court has expressly considered the possibility that one way of understanding the Father’s evidence about his mental health concerns was that he was minimising, rather than obfuscating. The Court has reluctantly concluded that this would be too benevolent an interpretation to adopt in the circumstances. The Father appeared to have sufficient insight to understand the importance of his mental health as an issue in the present proceedings. It is hard to avoid the conclusion that the Father sought to mislead the Court about the true nature and extent of his mental health issues which appeared to be longstanding, pervasive and persistent.
The Court finds that the Father’s abuse of alcohol was similarly an important issue for the Court which the Father either knew about, or should reasonably have known about. His evidence about alcohol abuse is found in three one-line paragraphs in his Trial Affidavit. He asserts that both parents drank alcohol to excess in front of the children. He asserts that the children were never hurt physically by any adult present at the events. Nowhere in the Father’s Affidavit does he link his alcohol abuse to the violent incidents that occurred, and that are well-recorded in, for example, the Police COPS records. A common theme of almost every violent incident that is asserted by the Mother, whether corroborated or not, is that the Father was under the influence of alcohol. Once again, the reluctant conclusion the Court must reach is that the Father sought to mislead the Court about his past alcohol abuse. Whilst the Father in cross-examination expressly disavowed any notion that his memory was affected by alcohol abuse, this hypothesis is one way of understanding how the Father’s evidence about violence and drug and alcohol abuse can be so different to that of the Mother.
The Court also concludes that the Father’s evidence about drug abuse was likewise misleading. In his Trial Affidavit at paragraph 35 he talks about the present, without referring to the past. He explains that he no longer smokes cannabis and that he has completed courses that have curtailed his addiction to cannabis. His evidence in cross-examination, however, gives insight into his pervasive cannabis addiction throughout the course of the relationship. It is clear that as at October 2016 he was consuming cannabis and methamphetamines. He himself admitted that in cross-examination he had a few cones of cannabis on New Year’s Eve. Regrettably, the Father’s evidence about his drug abuse goes beyond minimisation, and leads the Court to conclude that he misled the Court about his past drug addiction problems, and therefore the extent to which these problems contributed to the highly dysfunctional relationship he had with the Mother of his children.
The cumulative effect of the above is that the Court must be very careful indeed before it accepts the Father’s evidence about the critical issues in this case, namely his mental health issues, drug and alcohol abuse, and family violence.
However, the Mother’s evidence must also be assessed discerningly. The Court is left with a lingering feeling that she too has not disclosed the full extent of her past marijuana and alcohol use. There is nothing in the evidence to suggest, however, that the Mother’s marijuana and alcohol use has been, of recent years, of the magnitude of that of the Father.
The Mother was, nonetheless, an impressive witness in cross-examination, particularly when confronted with the Father’s very different accounts of the violent incidents which she refers to in her evidence. Her denials as to the accuracy of the Father’s accounts were clear, forceful and consistent. The Court draws no adverse inference against the Mother for not pressing the Police to either prosecute the Father or take out an AVO to protect her following violent incidents. The Court accepts that she was fearful of the safety of both her children and herself, wanted to encourage the children’s relationship with their father, and at times probably lacked confidence in the ability of the Police to protect her adequately. It is clear that the Mother wanted the Father out of her life, and did not take every opportunity to use the legal including criminal remedies that may have been available to her. That does not mean that the violent incidents to which she gives evidence did not occur, or that she was not in fear.
On balance, the Court prefers the Mother’s evidence over that of the Father.
The evidence of the Family Consultant
The Court deals with the evidence of Family Consultant Ms A at this point in these Reasons for Judgment because she was the only witness to give evidence who was both an Expert and independent. Ms A’s Family Report was dated 20 June 2017. It was based on interviews with the parents and [X], and formal observations of the children with their father and informal observations of the children with each of their parents.
There is a disturbing theme in the report which is summarised at paragraph 21:
Observations of, and discussions with Mr Shannon over the course of the day strongly suggested that Mr Shannon does not consider his relationship with Ms Joles to be over and in fact, he is maintaining a high level of coercive control over her as a result of their informal parenting agreement. It appears that Mr Shannon initiated this legal process as a means of tracking Ms Joles down rather than because of any genuine desire to spend time with the children. At the end of the Family Report interviews, Mr Shannon realised that Ms Joles had left without him (as arranged by the Family Consultant) he became extremely agitated and upset.
Whilst the Court accepts the Family Consultant’s concerns at the time as set out above, there was no evidence at the Hearing to suggest that the Father did not consider his relationship with the Mother to be over. That does not detract, however, from the significance of the Family Consultant’s observation and opinion that the Father’s motive was to maintain coercive control through an informal parenting agreement.
An equally disturbing theme is summarised at paragraph 22:
Observations of the children with their parents raised numerous concerns. [X] reported being very unhappy with his father’s behaviour and he asked for his father to be “less mean.” Mr Shannon’s interaction with the boys during their formal session was desultory, unfocused and of largely poor quality. While the boys had not displayed any attachment arousal behaviours at the beginning of the day, after the session with their father, they became distraught and hysterical at the idea of being separated again from their mother. When it was agreed that the boys should leave and not come back after the lunch break (due to their elevated emotional states) they simply ran away from their father without saying goodbye.
Of concern is the extreme diversity of the children’s interactions with their father.
At paragraph 30 is another disturbing passage from the Report:
In relation to Ms Joles’ allegations of family violence, Mr Shannon said that he has never been the violent person Ms Joles makes him out to be. He said that Ms Joles never likes to be in the wrong, “and I won’t back down if I think that I’m in the right, and then she would snap. She would run at me and attack me and I would hold her to try and get her to calm down. And she’s called the police on me about 15 times.” Mr Shannon emphatically denied sending Ms Joles a series of aggressive and threatening text messages. He said that rather, “My messages were deep and meaningful. I was just pouring out my heart to her. My mother died when I was 3 months old so I know what it’s like to grow up without parents. I wanted us to still be a family.”
The evidence before the Court is quite inconsistent with the Father’s protestations to the Family Consultant that he was not a violent person. Moreover, the sending of aggressive and threatening messages is a fact that continued well after the report interviews.
Paragraph 31, the Father’s reflections on his mental health and drug use, is again disturbing:
Mr Shannon was asked about his mental health. He said that in the past he has been diagnosed with anxiety, depression and bi-polar. He said that he used to take antidepressants but he stopped, and he deals with his problems by talking to his friends. He said that he sees Dr E at Town B Medical Centre. Mr Shannon said that, “I used to be addicted to smoking cones (of cannabis) but I broke the habit. I told myself to go and have a slap (gamble) instead.” Mr Shannon estimated that he last smoked cannabis about 10 days before the report interviews and rather than having 10-15 cones as he used to do, he now has 1-2 joints. Mr Shannon denied any other drug use (it was noted that he was very physically agitated when talking about this subject). He said that once he was staying with a friend who used to be a “crack” (methamphetamine) dealer “and I was sleeping in his shed and when I woke up, there were all these people around me, using it.” Mr Shannon said that the only reason he hasn’t done any drug tests is because they are too expensive and he is living on Centrelink benefits. He said that Ms Joles “only carried on about me being on drugs because she wanted to fuck me over by making me out to be a big time druggie.”
He told the Family Consultant that he “broke the habit” referring to the smoking of cones of cannabis, but his evidence in cross-examination suggests that at a much later period he continued to struggle with this.
At paragraph 32, his description of himself as a person who has “…never been one to get drunk” is completely inconsistent with the other evidence before the Court.
The Mother’s fearful, stressed presentation is depicted at paragraph 40 of the Report:
Ms Joles (aged 35 years) presented as a very quiet and reserved woman. She looks considerably younger than her chronological age. Ms Joles appeared nervous, stressed and on the verge of tears for the majority of the day. She expressed a great deal of anxiety about the outcome of this process and whether it would put her in danger from Mr Shannon, if she does not agree with what he wants in this matter.
At paragraph 41, she gives what turns out to be a prescient insight into the character of the Father: “…he was always drinking and using drugs but he tells people a completely different story”.
The Mother presented as being quite concerned about a deterioration in the behaviour of [X], both at home and school:
Ms Joles said that she has recently become very worried about [X] because his behaviour has deteriorated, both at home and school, and she believes it has something to do with his father. Ms Joles said that [X] is currently on his fourth suspension, for doing things like hitting, kicking, punching and swearing. Ms Joles said that the school have told her “that he’s been telling them a lot of bad stuff about his father.” She said that [X] now tries to physically intervene in the arguments she and Mr Shannon have. She said that, “Of all of my children, he’s the one who will try and hit Mr Shannon, if Mr Shannon has a go at me.” Ms Joles said that she has recently had a Mental Health Plan done for [X] and they are waiting for a counsellor to come up.
At paragraphs 52 to 67, the Family Consultant discusses the children and their relationships. The passage is long, but important, and bears reproduction in these Reasons for Judgment:
[52] [X] (aged 7 years, 2 months) presented as a quiet and withdrawn little boy. He alternated between expressions of sadness and anger. [X] was readily engaged in drawing but difficult to engage conversationally, whether about emotionally neutral issues or things to do with his family. [X] drew two superheros (Superman and Batman) in bold and excellent detail, and then when he was asked to draw himself, he drew a tiny stick figure. When the Family Consultant asked him why he was so small and sticklike compared to the other figures, [X] said in a small voice “Because I don’t like me.” It was also noted that [X] was easily able to read long and difficult words (on feelings cards).
[53] [X] reported that he “hates” school, including the principal and his teacher, who both “suck.” [X] said that he gets into trouble a lot at school, “because I hit and kick people when they are mean to me.” He identified that he feels very angry a lot of the time, but that he doesn’t know what makes him angry (other than when people are mean to him).
[54] [X] was asked to describe his father. He said that his father is a very angry person. “He’s always mean to [Y] and he calls me a shithead and other mean names. He always drinks and he is drunk. He shouts a lot when he gets drunk. He fights with Mum and he hits me and [Y] but not [Z] because she’s a girl.” [X] expressed a fervent wish that “Dad would not be so mean.”
[55] [X] was asked about his mother. He looked blank at first, and then said, “She used to be sick all the time and stay in bed but now she is better.”
[56] [Y] (aged 5 years, 3 months) presented as a small and slight child who looked and behaved significantly younger than his chronological age. He was quite physically rambunctious and more outgoing than his brother. [Y] was almost impossible to engage on a one to one basis. His expressive language skills appeared delayed. He tended to be quite silent, and when he did speak, he was noted to use mostly 3-4 word sentences. He was difficult to understand at times.
[57] [Y] and [X] were observed in a play session with their father. When the Family Consultant announced that the boys were going to play with their father, [Y] looked pleased but [X] said, “Why do I have to go with you Dad?” in a small voice. He came reluctantly, hanging back a little. Mr Shannon asked [X] three times in a walk that took less than two minutes, “Why did you say that? Why did you say that you didn’t want to play with me?” [X] seemed flustered and he did not answer his father.
[58] When everyone was in the playroom, Mr Shannon looked at the Family Consultant and said, “What should I do now?” The Family Consultant said that he should play with the boys as he normally would on a weekend. Mr Shannon said, with some irritation, “But this is not a normal situation. That’s why I go to their house.”
[59] The boys located the sandpit in the room and started playing with it. [Y] seemed particularly taken with it. He started to aimlessly pour sand in and out, smiling as he did so, but remaining largely silent. Mr Shannon began setting up some animal and dinosaur figures in the sand, but with no real purpose. Mr Shannon appeared awkward and uncomfortable and very conscious about being watched.
[60] At one point, [X] found some ‘feeling words’ cards and began to read them out quickly, one after the other. They were quite difficult words (embarrassed, hysterical, disgusted etc.) and [X] read with ease and confidence. When the Family Consultant commented on how good his reading was, Mr Shannon (who had appeared oblivious up to that point) said quickly, “Well do you know that when I was in Year 5, I was reading at Year 12 level?” [X] looked downcast, then walked away. Mr Shannon appeared to become increasingly restless and somewhat agitated. He started drawing on the whiteboard while the boys played separately.
[61] [Y] was playing unattended in the sandpit and he began to get increasingly aggressive with the sand and started flinging it out of the sandpit (it would appear, in an attempt to get his father’s attention). Mr Shannon only noticed when the Family Consultant reacted. He said, “Oh [Y], take your time please. Slowly.” The Family Consultant suggested maybe they could make a game of putting some of the sand back in the sandpit but Mr Shannon ignored this suggestion.
[62] Mr Shannon continued to draw on the whiteboard. He came over to where the Family Consultant was sitting and in what appeared to be a subtly intimidatory manner, leaned over and drew directly above the Consultant’s head, trying to read the notes she was taking as he did so. When the Family Consultant looked up at him, he said, “Oh, sorry!” in a way that suggested he was, in fact, not sorry. Mr Shannon then walked away and sat down to check his phone.
[63] By this time, Mr Shannon’s already limited patience with the reality of the play session seemed to be wearing thin. He did not attempt to initiate any games, other than finding some giant dominos and making them into a huge tower that he then allowed [Y] to knock down (making a huge noise). Mr Shannon smirked when the Family Consultant commented that this was a lot of noise. The boys continued to make a big deal of throwing sand out of the sandpit; to the point where the Family Consultant intervened and said “We might have to leave the sandpit now. You’ve made a lot of mess.” Mr Shannon said, “Oh I think they’ve done pretty well!” and he made no attempt to redirect them. His father appeared to irritate [X] at this point and Mr Shannon then said to him, “Why are you so mad all the time?” [X] moved away to the other side of the room, where he turned his back on his father and sulked for 60 seconds before getting up and returning to the sandpit, ignoring his father.
[64] When Mr Shannon expressed his frustration that there was “nothing to do” in the room, the Family Consultant directed him to the bank of cupboards filled with toys and games. He said to the boys in a desultory and listless tone of voice, “Can you look through the cupboards and see if there’s anything you want to do.” He sat back down while they did so. [Y] found some blocks and began playing with them; [X] wandered away and began playing with the dolls house, in an absorbed and imaginative manner. Mr Shannon sat looking out the window, sighing and appearing bored. He then encouraged [Y] to come and knock down the tower of blocks again, making the loudest amount of noise possible. After this, Mr Shannon got up and started wandering around the room aimlessly. His level of agitation appeared to increase markedly at this point and it seemed clear that he was just waiting for the session to end.
[65] When the boys and their father re-joined their mother out in the waiting room, the boys both ran towards their mother and hugged her excitedly. The Family Consultant then asked to see Ms Joles again. As Ms Joles went to leave the waiting area, [Y] immediately became distressed and he started crying and clinging to his mother, in behaviour more reminiscent of a two year old than a five year old. [Y] refused to let his mother put him down. When his father approached, [Y] turned away from him and screamed, “No, go away! I want Mummy!” Ms Joles’ friend Ms F also tried to prise [Y] away but he clung to his mother stubbornly. [X] then joined in and started clinging to his mother. Mr Shannon made a number of attempts to try and take the boys from their mother but in the end he gave up, muttering angrily to himself and sitting down glaring at Ms Joles. When Ms F made some headway with [X], Mr Shannon returned with his phone and gave it to [Y], who then agreed to be put down. Ms F had to hold both the boys while Ms Joles went with the Family Consultant.
[66] Given the level of emotional disequilibrium in the boys, the Family Consultant decided that they should leave for lunch and then stay with Ms F, outside the Court. The boys both raced off with Ms F and their mother and did not say goodbye to their father.
[67] At the end of the day, Mr Shannon spoke with the Family Consultant for the final time, after Ms Joles had left the building. He came out of the interview room and said, “Where is Ms Joles? Where has she gone? I wanted to see her!” When he was told that Ms Joles had gone, Mr Shannon became extremely agitated. When the Family Consultant queried why he wanted to see Ms Joles so badly, Mr Shannon said, “Oh, well I wanted to say goodbye to the boys.” He continued to pace up and down and then walked away quickly, leaving the building in what appeared to be a hurry.
The observations of the interaction between the children and their father is worrying. The Father was clearly not coping.
The struggles that [X] was having are summarised at paragraph 68 to 73 where the Family Consultant records her discussions with Ms G, the principal of [X]’s school:
[68] Ms G said that [X] is one of the more challenging students at the school, and they are very worried about him. She reported that [X] is currently on a long suspension, and is not due to return to school until the beginning of third term 2017. Ms G said that while a long suspension is not a good outcome for [X], the school believe that it is the only option to safeguard the emotional and physical wellbeing of the other students in [X]’s class. Ms G said that parents have actually begun taking their children out of the school because of [X] (and also the behaviour of his two friends).
[69] Ms G said that she is generally called to [X]’s classroom multiple times per week because of his challenging behaviour. She said that this includes hitting and kicking other students; hiding under desks and refusing to come out; saying highly aggressive and abusive things about his teacher and other students; and generally being unmanageable in the classroom.
[70] Ms G said that recently, [X] wrote on the classroom whiteboard: “I want to kill myself and I want to stay dead. That’s what [X] wants to do.” [X] however refused to talk about this with anyone. Ms G said that [X] has told her that he doesn’t like his father, but not any more than that.
[71] Ms G said that Ms Joles’ engagement with the school is very limited. She will only rarely answer her phone and when she does speak to staff about [X], “she seems helpless, she just wrings her hands and says that she doesn’t know what to do.”
[72] Ms G said that academically, [X] is more than capable and in fact, is probably towards the top of his cohort, but his learning is extremely disrupted because of his oppositional behaviour.
[73] Ms G said that while she has only been at Town B Public since the beginning of 2017, teachers have told her that [X]’s behaviour has been like this for at least 12 months and this year it appears to have escalated. She said that she is hoping that Ms Joles is able to get [X] in to see a child psychologist, as she believes this is an urgent need, and if he has a diagnosis, the school may be able to attract some special needs funding for him, which she believes is vital.
The evaluation commences at paragraph 74 and concludes at paragraph 84. Again, whilst this passage is long, it is important and needs to be reproduced in full.
[74] This is a complex matter. While the parties have recently come to an informal agreement that has resulted in the children spending substantial time with their father each weekend, there are indications that the arrangement is not in the children’s best interests.
[75] Ms Joles presented as a shy and nervous woman. She was neither confident nor assured or assertive. Mr Shannon on the other hand, presented as aggressively assertive. He is clearly the dominant personality and as such, he wields all of the power in the post-separation parenting relationship.
[76] It was clear from Mr Shannon’s narrative that he does not accept that his relationship with Ms Joles is over. By spending every weekend with her and the children, he can maintain the fiction of a ‘happy family’ and at the same time, continue to exercise a high degree of surveillance and control of Ms Joles. Mr Shannon views Ms Joles as his property; this was evident in his irate and uncomprehending discussion about how she has “turned on him” in the last six weeks and how he believes this is because she is seeing another man and that it is entirely reasonable for him to be very concerned about this.
[77] Mr Shannon was emphatic that he never drinks to excess, but Ms Joles says otherwise and this allegation at least partially corroborated by the NSW police records, which indicate that Mr Shannon becomes aggressive when intoxicated. [X] talked about his father drinking all the time, being drunk and “shouting”. In the time since this matter has been before the Court, Mr Shannon has never presented for drug testing (which is relevant given his self-reported use of cannabis and friendships with people who deal in amphetamines); he has not sought psychiatric or psychological help for his mental health conditions, nor has he attended an anger management course, all of which he was directed to do by the Court. Mr Shannon denies, in fact, that he has any problems other than those caused by the breakdown of the family unit.
[78] While Mr Shannon professed to love and miss the boys, his narrative centred almost unremittingly and quite obsessively around his love for Ms Joles and his despair about the breakdown of their relationship. It is likely then, that the boys are merely a conduit for Mr Shannon to spend time with Ms Joles. This is evident in the poor quality of the relationship observed between Mr Shannon and the boys. Mr Shannon was largely emotionally absent from these interactions and the boys responded to him accordingly.
[79] Ms Joles’ reporting about the deterioration in [X]’s behaviour and emotional functioning over the last six months, as well as the highly concerning observations made by the school, suggest that [X] is being emotionally and psychologically harmed by exposure to his father, to a significant degree. While it is clear that Ms Joles loves the boys dearly and she wants to take steps to ensure they are happy and well cared for, her protective capacity is quite compromised and has been so for some time, largely as a result of the significant power differential in the co-parenting relationship with Mr Shannon. While [Y] does not appear as outwardly affected by his father’s behaviour as [X] is, it is possible that his toileting regression is anxiety based, given that it appears to have coincided with Mr Shannon spending much greater periods of time in the family home.
[80] It seems clear then, that the current parenting arrangement is not one that should continue in the future, either on an interim or final basis. It exposes the children to ongoing conflict between their parents, poor role modelling by their father towards their mother, and it puts them at considerable risk from their father when he is intoxicated and behaves erratically and aggressively. The open ended nature of the arrangement means that Mr Shannon has complete control of Ms Joles, who feels powerless to assert her needs and her right to be safe from harm in her own home. This is not something that the boys should bear witness to, nor is it something that Ms Joles should have to endure, stoically or otherwise.
[81] While there are various other options for how the children could spend time with their father other than in their mother’s home, it is hard to envisage how, in fact, they would benefit from spending any time with him, given the poor quality of his interactions with them and the considerable separation anxiety that the children demonstrated on the day of the Family Report interviews, reactions which were well outside the norm for children of their respective ages.
[82] A recommendation for the children to have no contact with their father comes with considerable risks, not the least of which is the danger of physical harm to Ms Joles. However, a recommendation for limited contact (for example, in Town H during the day) also comes with a high level of risk to Ms Joles, as it is likely that she will be seen by Mr Shannon to have repudiated his love for her and more dangerously, to have undermined and ultimately removed his control of her and he will attempt to malaptively regain this control each and every time that he has contact with her.
[83] It is the report writer’s opinion that the risks involved to the mother and children in this matter cannot be overstated. To ameliorate this risk, at the very least there needs to be an enforceable, exclusionary AVO put in place for the purposes of protecting both Ms Joles and the children, for a minimum period of two years. This should happen as a matter of urgency and on an interim basis while this matter continues before the Court.
[84] Ms Joles will also require significant professional supports to assist her to deal with the consequences of any changes to the current parenting arrangements (including doing whatever is necessary to assure her physical safety) and to give Ms Joles strategies for becoming appropriately protective of the children and to respond to any behavioural and emotional problems they may present with. To this end, it would be helpful for the ICL to refer Ms Joles to the … program in Town B.
Ms A recommended that the Mother have sole parental responsibility, that the children live with her, that she be permitted to relocate to a place of her choosing at any time, without notifying the Father of her address, and that the children have no contact with their father.
Ms A was cross-examined on the final day of the Hearing. By then the Family Consultant had had regard to the trial affidavits of the parents. In addition, Counsel for the Independent Children’s Lawyer gave the Family Consultant a summary of the evidence that had been presented at the Hearing by both parents. She was also made aware of the Father’s proposal. A number of important points emerged from Ms A’s evidence:-
·The Family Consultant did not agree with the Father’s self-assessment that he did not need assistance in relation to his mental health. Even the assurances he gave in cross-examination acknowledging that he has mental health issues provided little reassurance to her. The Father’s own proposed order about pursuing assistance with his mental health did not provide any reassurance to the Family Consultant. Indeed, she was quite adamant that the Father’s past track record of mental health issues that were not adequately responded to strongly indicated either an inability, or unwillingness, to respond appropriately to this issue. Moreover, she explained, given that one of her concerns was what she described as the Father’s coercive and controlling violence, mental health treatment would not necessarily assist with this.
·The Family Consultant was taken to the quite extensive evidence about the Father’s Facebook posts which, as will be seen below, strongly suggest that his mental health was at least strained, if not in crisis, at the time of posting. The Family Consultant was unsurprised, noting that it was consistent with both the Father’s character, and his history. She observed, quite properly the Court notes, that the posts in question not only occurred after the Family Report had been released, but were in the shadow of a Final Hearing. All of that raised concerns about the Father’s mental health.
·His diagnosis with bipolar disorder, periods of homelessness, and drug history were again noted to be consistent with mental health concerns about the Father.
·In relation to the Father’s history of consuming drugs the Family Consultant noted that it would be difficult to be confident in the Father’s narrative about drug abuse in circumstances where the representations that he made to her during the report interviews, and the evidence that he gave to the Court in the Hearing about management of his drug use, was so plainly inconsistent with the evidence of what took place in between those two periods, namely continued drug use. The Family Consultant accepted that the Father’s own evidence that he did not submit to urinalysis because he would not have passed the test was again consistent with ongoing concerns about drug abuse. Even a proposal that the Father pass drug tests before spending time with the children was rejected by the Family Consultant on the basis that it would foster an inconsistent, indeed chaotic relationship between the Father and the children. There is no doubt that the Family Consultant doubted the Father’s capacity to remain drug-free.
·The possibility of recognition contact, i.e. four supervised visits each year, was put to the Family Consultant. She did not believe this was in the best interests of the children. If the Court accepted the veracity of the Mother’s evidence about an improvement in the children’s behaviour since they ceased spending time with their father (as the Court does), then there was a real risk that any communication or contact with the Father would be counterproductive and risk relapse. The Family Consultant did point out, however, that the measurement of improvement in the behaviour of the children needed to be realistic. It was her view that the Mother’s parenting had been so compromised by having to manage a dysfunctional relationship with the Father that the children have inevitably been damaged, and thus improvement in their behaviour would take place slowly.
·The Family Consultant was made aware of the Father’s concerns about the Mother’s aggression, violence, addiction to prescription opiate medication, and abuse of alcohol. The Family Consultant seemed to recognise that these were ultimately matters for findings of the Court, but she also observed that it was not surprising that the Father would make such allegations given what she considered to be his propensity for controlling behaviour, minimising his own problems, and externalising responsibility for his own problems. In any event, she noted that the Mother appeared to be well-supported with organisations such as ….
·The Family Consultant was asked to comment about the meaning of the Mother agreeing to consent orders for unsupervised time with the Father, at a period when she now alleges she was subjected to extended coercive and controlling violence from the Father. She explained that this is actually quite consistent with surviving domestic violence. She described the Mother as being in a relationship where she had no power, and where the Father controlled all aspects of her relationship. She described the Mother as cowering in fear of the Father, and incapable of exercising any influence. Thus it was not surprising that she would agree to something that, objectively, was probably not in the best interests of the children. The Family Consultant conceded that the children at the time may well have been thinking about their Father, and wanting to spend time with him. Even so, she acknowledged, having time with their father was not necessarily what they needed.
·The Family Consultant could see no benefit at all in the children spending time with their father, but acknowledged the potentially benefit of the Mother providing information about the children to the Father, if her security were adequately protected.
The Court accepts the Family Consultant’s evidence. For all practical purposes, nothing was put to the Family Consultant, or said by the Family Consultant, that caused her or the Court to reconsider the recommendations that she had made.
Meaningful relationship
The evidence contained in the Family Report recording the observations of the Father’s interaction with the children makes it very difficult to conclude that these children have a meaningful relationship with their father, at the present time. It was also implicit, if not expressly the case, that the Family Consultant’s view was that the children would not receive a benefit from having a relationship with their father for as long as he continues to be in denial about family violence, his mental health issues, and the struggle he has had with drugs and alcohol. The Court is amply satisfied from the evidence, some of which will be discussed below in more detail, that the Father did in fact perpetrate family violence, that he does continue to have mental health issues, and that he continues to struggle with drugs and alcohol. Accordingly, on that basis, the foundation for the Family Consultant’s view is made out. In an ideal sense, it is indisputable that [X] and [Y] would enjoy the benefit of a relationship with their father. It is somewhat ironic, given what the Mother experienced, that she would so loudly advocate this in her own evidence at paragraphs 33 and 49 of her Trial Affidavit. Her perspective was, in effect, that the Father would have so much to offer his boys provided he could deal with the issues in his life. He has failed to do so. The Court must, reluctantly, conclude that on the evidence before it, there is no benefit to [X] and [Y] of having a relationship with their father.
Protecting the children from harm
The Mother’s and the Independent Children’s Lawyer’s case about the need to protect the children from harm was, in essence, twofold. They contended that there was the need to protect the children from physical harm if they spent unsupervised time with their father because of his unresolved mental health issues, his continued use of drugs and alcohol, and the family violence that he perpetrated. Moreover, they contended, there was a risk of psychological harm to the children if they were to have supervised time with their father, but the risk in this regard was a psychological one. It is necessary to discuss the evidence in this regard.
Perhaps the clearest evidence about the need to protect the children from harm, both physical and psychological, is the evidence of the series of Facebook posts made by the Father in the period 14 April 2018 to 26 January 2019. Before summarising this evidence, it is important to recognise the chronological significance of this evidence. It comes after the Family Report was made available to the Father. These posts occurred in the period leading up to the Final Hearing. Indeed, the last one was a mere matter of weeks before the Final Hearing. The posts also occur after the Father had completed the program known as EQUIPS Domestic Abuse Program. The Father completed this on 3 July 2018. Thus, the Court finds that the Father had the benefit of the Family Report, had completed a domestic abuse program, and was aware that the Final Hearing was imminent. Moreover, all of these posts are public. In cross-examination the Father seemed more concerned about the fact that someone had drawn these posts to the Mother’s attention, than the potential consequences on his children of someone seeing the posts.
Turning to the posts themselves, they bear some clear characteristics. They are abusive of the Mother (14 April 2018): “fuckn dumb slut of an X misses I obviously have aye heartless dogggg”. The same post was also threatening: “I’d stab a bitch for that LOL”.
The post on 13 June 2018 raises a number of issues. Here the Father was posting online a video that he had taken of the children a year before, during his last contact with the children. The post itself has a mocking tone and is laden with sarcasm. In the video the Father records himself having a highly inappropriate conversation with his children. The strong impression created from viewing this video is that the children, perhaps fortunately, did not understand what their father was saying. Moreover, the Father’s slurred speech is consistent with the Mother’s evidence that he was under the influence of alcohol during the event in question. The recording of this highly traumatic event, and the public posting of it one year later, raises significant issues not just about the Father’s lack of insight into the needs of his children, but also goes to his abuse of alcohol. It is yet more evidence of the risk of psychological harm to these children.
On 11 July 2018 the Father posted his certificate of completion of the domestic abuse program but with the comment: “I am a qualified stalker and intimidator LMFAO”. Counsel informed the Court that LMFAO means “laughing my fucking arse off”. For a person who has completed a domestic abuse program to have posted such an inappropriate, indeed derogatory and demeaning, comment strongly suggests that he learned nothing at the domestic abuse program. It must be remembered that a key tenet of the Family Consultant’s evidence was that the Father did not accept that he had a problem, and thus could never overcome the same. This post strongly suggests that the Father had no insight whatsoever about the domestic abuse that he perpetrated, and which the Court finds he frequently did so in the presence of the children.
Concerns about the Father’s mental health arise from posts he made on 5 August 2018, 2 September 2018 and 11 November 2018. The latter post says: “fuckn fuck this cunt of a world I hate it I hate women I hate fuckn everything”.
The post on 8 December is clearly threatening:
“I am fuckn sick to fuckn death of smartass mutts with there fuckn smartass big mouths. Soon I’m going to bring hell upon you dumb cunts. Might beat me now but I will kill you later doggggggggg.”
As the Hearing drew closer, the tone and content of the Father’s messages demonstrate increasing concerns about his mental health. The post on 19 January 2019 states:
All I know is if I get told next month that I am to have no contact with my son’s until there like 18 years old or whatever I will be dead before 2020 my beautiful adorable handsome little men will lose there father forever I won’t be able to deal with it and they will probably never ever see me ever again obviously I’d love to go crazy and kill everyone but I’m not like that and I’ll end up killing myself one way or another I can’t afford my ten grand for my lawyer legal aid won’t help me because they think there is no prospects basically they won’t fund me cause they think Its a waste of there money I will hate myself I will hate everything and everyone and I will do nothing but go down hill faster then anyone ever has I will be beyond devestated I will not survive adzy will 100% be 6 feet under so when you come to my funeral you will all know why adzy loves his sons and I cannot live without them.
The post on 26 January 2019 states:
I don’t wanna write this cause it’s so embarrassing but I am fukn absolutely losing my mind I have been so strong for a long time but today, tonight I’ve had a full on emotional breakdown about my son’s I cannot stop crying I’m hyperventilating and can’t breathe properly everything has gone bad for me in every way possible and I don’t really know how to say this but I’m going to lose my babies for a very long time I’m trying my best to be positive but my final hearing is on the 11th 12th and 13th of February and I can feel it in my entire body that I’m going to be told to have no contact with my beautiful baby boys and I’m not sure if I should even go to court I don’t know what I will do when I’m told that aye I will lose it and at family courts not the place to do that I feel sick I feel lost I feel so depressed I wish so bad that my baby’s mum could be honest and tell them I’m a good person she knows I am but she is going to do nothing but continue to lie and 100%, ruin mine and my son’s lives I won’t be able to handle it and I’ll lose my babies for a very long time I need her to help me no one else can she needs to do the right thing and be honest Im going to lose my children cause of her I need her help aye
It is important to record that during the course of the three day Hearing the Father did not manifest concerning behaviours in Court. Indeed he was unfailingly polite and cooperative. When cross-examined about the posts he appeared to be genuinely remorseful, but it was unclear whether he demonstrated remorse because he had been found out, or because he appreciated how inappropriate they were both from the Mother and the children’s perspective.
It is important to recognise that the posts referred to above constitute family violence as defined in section 4AB of the Act.
The evidence of the Father’s physical family violence towards the Mother is found in the Mother’s evidence, in corroborative documents produced by New South Wales Police about the events in question, and from other Police records tending to demonstrate the Father’s propensity to violence. It must also be remembered that the Father himself acknowledged that as a result of an unfortunate assault he suffered in 2000, he has been easily stressed and aggressive. Thus, for example, the documents produced on subpoena by New South Wales Police, and tendered into evidence, confirm that in 2003 and 2008, even before the parents met, that the Father had been charged with violence offences. In 2012 the Father was charged with assault occasioning actual bodily harm to a third party, a former flatmate.
The key violent incidents alleged by the Mother include July 2010 (the hunting knife incident), 11 August 2013 (the assault following the Mother waking the Father up when he was not properly supervising [X]) and the January 2017 incident when, at a friend’s children’s party, the Father picked up a hammer and held it to the Mother’s throat. In addition to this on 23 February 2016 the Father was charged with offensive language, resist arrest and intimidate a police officer in the execution of his duty. The relevant Police documents confirm a common theme to these incidents – that the Father was intoxicated. A close examination of the relevant COPS entries indicate that the Mother’s account is not entirely corroborated in terms of the detail, but the substance and the consistency of the matters that she alleges are borne out. The Father’s trenchant denials that he assaulted the Mother did not extend to denials that he was intoxicated and that they argued. It is far more likely than not that the Mother’s allegations are correct, and the Father’s denials are not.
In short, the cases advanced by both the Mother and Independent Children’s Lawyer, about the risks of harm to [X] and [Y] of both supervised and unsupervised time are borne out.
Views expressed by the children
Even if the children have expressed views, the Court does not place any significant weight on them having regard to their maturity. This consideration is not determinative.
The nature of the children’s relationship with their parents
The Family Report suggests that the children have an excellent relationship with their mother. She has been their primary carer. She has been vulnerable at times, perhaps even inhibited in her parenting capacity, but at the moment she appears well supported. She has had to parent the children, particularly [X], through challenging behaviour, but the nature of their relationship has survived this. By contrast, the rather sad observations of the Father’s interaction with the children recorded in the Family Report suggests the tentative, perhaps superficial, nature of their relationship with him. The Family Consultant did not believe that there was a benefit to the children of a relationship with their father, in the unfortunate circumstances of this case.
Changes in the children’s circumstances
The Court must consider the likely effect of any changes in the children’s circumstances, including the likely effect on the child of separation from a parent. The order proposed by the Father would be quite a significant change in their lives. They have not seen their Father for almost two years, and have no communication with him. The change that is the result of an acceptance of the Father’s proposal could probably be managed in the circumstances, if there were not such a risk to them as identified above. By contrast, the Mother and Independent Children’s Lawyer’s proposal for no contact makes the least change in the children’s circumstances.
Issues of parental capacity and attitudes
Much has been said about the family violence perpetrated by the Father, the mental health concerns the Court finds that he has, and what appears to be a continuing struggle with consumption of drugs, and possibly even alcohol. These all reflect very poorly on the Father’s capacity to meet the needs of the children, both physical and emotional. It also reflects an indifferent attitude towards the children, and a certain irresponsibility about his role as their father. Nonetheless, it must be recorded that the Father was deeply remorseful during the Hearing. He clearly loves his children but, regrettably, failed to understand how the things he has done in the past, and the things he has failed to do since then, have contributed to the current unfortunate situation where he has no relationship with his children and, indeed, he is found to be a danger to them.
The Mother’s parenting capacity is not without concern but the difference is that she appears to be doing something very constructive. The school records corroborate her contention that the behaviour of both boys, but particularly [X], has improved since they stopped spending time with their father. The Mother must receive some credit for this. The Mother has engaged with the services available to assist her, for example … Family Services. Moreover, she seems to have gained an insight into the impact on both her and the children of the Father’s family violence. The decision to cease all contact, and to constructively engage with the Police and other services there to assist her, suggests that she has been able to adopt a child focus, and disentanglement from the Father’s relationship with her.
Family violence, and family violence orders
Much has been said above about the violence the Father has perpetrated on the Mother.
Order least likely to lead to further litigation
Subject to an appeal, making the order proposed by the Mother and Independent Children’s Lawyer would bring this litigation to an end. Any order that would see the Father spend time with the children, even supervised time, raises the risk of litigation in relation to the orders made and their enforcement.
Conclusion about best interests of the children?
When all the evidence is closely examined, through the prism of the relevant provisions of the Family Law Act, the Court reluctantly concludes that it is in the best interests of the children that [X] and [Y] not spend time with their father, and not communicate with him other than as suggested in the orders proposed by the Mother and Independent Children’s Lawyer. The Court accepts the Family Consultant’s evidence, and the case contended for both the Mother and the Independent Children’s Lawyer, that even a supervised recognition contact type arrangement provides an unacceptable risk of psychological harm to the children.
Parental responsibility
The Father proposed equal shared parental responsibility. The Mother and Independent Children’s Lawyer proposed an order for sole parental responsibility. Section 61DA(2) applies to the facts of this case. There are reasonable grounds to believe that the Father has engaged in family violence. In any event, and having regard to the discussion of the relevant statutory considerations, section 61DA(4) applies – namely the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. It is clear, for example, that the Mother does not trust the Father, and they have no communication. An order for sole parental responsibility will be made.
Other Orders
The remaining orders proposed by the Independent Children’s Lawyer, and supported by the Mother, are appropriate. Quite apart from being in the best interests of the children, they are proportionate to the seriousness of the issues raised in this case. The Court is satisfied that these orders are in the best interests of the children.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 7 March 2019
Schedule One
Minute of order sought by the Mother
IT IS ORDERED
That the Mother have sole parental responsibility for the children [X] born … 2010 and [Y] born … 2012, in relation to decisions concerning the long term care, welfare and development of the children, including but not limited to:-
1.1.The children's education and schooling;
1.2.The children's religion and cultural upbringing;
1.3.The children's health and medical treatment;
1.4.The children's place of residence; and
1.5.The issuing of an Australian Passport to the children, without the need for the Father’s permission or signed consent.
That the children shall live with the Mother.
That the Father is not to have any contact with the children by any means whatsoever.
The Father, other than with the written consent of the Mother, is otherwise restrained, by injunction, pursuant to Section 68B of the Family Law Act1975, from: -
4.1.Attempting to contact the children by any means whatsoever, including through a third party;
4.2.Approaching, or coming within 100 metres of any place where the children might reside from time to time;
4.3.Approaching or coming within 100 metres of any school or before or after school day care centre which the children might attend or at which any of them is enrolled.
Pursuant to Section 68C of the Family Law Act 1975, if a Police Officer believes on reasonable grounds that the Father, against whom the injunction is directed in Order 4, has breached the injunction by causing or threatening to cause bodily harm to the child, or harassing, molesting or stalking the child may arrest the Father without a warrant.
That the Mother ensure that the children attend school punctually and accept any recommendations made by the children's school to assist in the education of the children.
Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), upon the mother’s application to apply for or renew a passport for the children [X] born … 2010 and [Y] born … 2012, such passport shall be issued to the mother notwithstanding that the father does not consent.
That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
Schedule Two
Minute of order sought by the Father
That the Mother and Father have equal shared parental responsibility for the children; [X] born … 2010 and [Y] born … 2002 (the children)
That the Children live with the Mother.
That the Children spend time with the Father as agreed to between the Mother and Father, but Failing an agreement the Children spend time with the Father as follows:
(a) for the first two months the Father is to have supervised visits Saturday for a period of three hours 11.00am to 2.00pm every second weekend;
(b) then the father is to have unsupervised contact with the children every second weekend between 11.00am to 2.00pm on Saturday thereon.
For the purpose of order 3(a) above supervising person/s may be decided by the mother or failing that at the … contact centre Town B.
For the purpose of change over after order 3(a) is completed is to occur at Town B shopping centre.
That the parties are restrained from abusing, insulting, belittling, rebuking or criticising the other party, their partner or members of the other party’s family and the parties shall use their best endeavours to ensure that no other person does.
That the father undergoes a urinalysis drug test one week prior to the commencement of order 3(a).
That the father be restrained from having contact with the Children until he returns a negative urinalysis drug test result.
That the father be allowed telephone contact with the Children each week between 4.30pm to 5.00pm Tuesday and Thursday.
That the parties be restrained by injunction from bringing the Children into contact with the maternal uncle Mr B or allowing another person to do so.
That the Father attend a Psychologist for the purposes of obtaining a report as to his mental health and capacity to have contact with the children.
That order 3(b) be suspended on Christmas day if the fathers weekend falls on that day.
If the children are not in the care of the father on Father’s Day, then the father be allowed telephone contact between 4.00pn and 5.00pm.
That the father has telephone contact with the children on their respective birthdays if not in his care between the hours of 4.00pm and 5.00pm.
That the Mother is to forward all school reports and notify the Father about school activities.
That the Father be allowed to attend all school activities evolving the children.
Schedule Three
The Minute of order proposed by the Independent Children’s Lawyer
IT IS PROPOSED THAT:
That the Mother shall have sole parental responsibility for the long term and day to day decisions concerning the care, welfare and development of the children namely [X] born … 2010 and [Y] born … 2012, including but not limited to:
1.1The education of the children both current and future;
1.2The religion of the children;
1.3The health of the children; and
1.4Any change to the children's living arrangements including moving anywhere within or outside of Australia.
That the children shall live with the Mother.
That the Father spend no time with the children.
That the Father provide details of his current address and any change of address to the maternal grandmother’s address within 14 days of any change of address.
That the Mother send to the Father, at the address nominated by the Father the following communication:
5.1Copies of school reports received by the children twice yearly with all identifying details of the school, school teacher, school insignia and other details to be redacted prior to forwarding to the Father.
That pursuant to s68B of the Family Law Act 1975, the Father be restrained by injunction from:-
6.1Attempting to contact the children, Mother or any members of the Mother's family by any means whatsoever, including through a third party;
6.2Harassing, stalking or intimidating the children, Mother or any members of the Mother's family (including via the internet or social media);
6.3Approaching, entering or coming within 100 metres of any place where the children might reside from time to time;
6.4Approaching, entering or coming within 100 metres of any place of employment where the Mother may work from time to time;
6.5Approaching, entering or coming within 100 metres of any school or before or after school day care centre which the children might attend or at which any of the children are enrolled.
That pursuant to s68C of the Family Law Act 1975, if a Police Officer believes on reasonable grounds that the Father, against whom the injunction is directed in Order 6, has breached the injunction by causing or threatening to cause bodily harm to the children, or harassing, molesting or stalking the children, may arrest the Father without a warrant.
Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), upon the Mother's application to apply for or renew a passport for the children [X] born … 2010 and [Y] born … 2012, such passport shall be issued to the Mother notwithstanding that the Father does not consent.
That should the children wish to enquire about any details concerning the Father in the future, then the Mother is to engage a suitably qualified counsellor or psychologist to assist the Mother to explain this to the children, including why they do not see the Father and a copy of the Expert Report by Ms A dated 20 June 2017 is permitted to be released to the counsellor or psychologist to assist in that process.
That both parents are to refrain from making any critical or derogatory remarks about each other or members of each other's family in the presence or within the hearing of the children or being placed on any social media site that the children may become aware; and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of the children.
That within 6 months of the date of these Orders the Mother shall attend upon and engage with professional supports to assist her and give her strategies for becoming appropriately protective of the children and to respond to any behavioural and emotional problems they may present with as recommended by Ms A in the Family Report dated 20 June 2017.
That within 6 months of the date of these Orders the Mother shall attend upon, enrol and engage in a program or course with …, Family Services or other similar agency or courses aimed at understanding Family Violence in relationships and the impact of such relationships on the children and herself.
That the Mother engage and continue to engage for as long as considered necessary with … Family Services to assist in her parenting of the children.
That the Mother be restrained from bringing the children into any contact with her brother Mr B.
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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Remedies
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Consent
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Expert Evidence
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