Sirola and Sirola & Anor (No 3)
[2016] FamCA 1076
•16 December 2016
FAMILY COURT OF AUSTRALIA
| SIROLA & SIROLA AND ANOR (NO. 3) | [2016] FamCA 1076 |
| FAMILY LAW – CHILDREN – Whether the children should spend no time with the father or the paternal grandmother – Where the Court finds the father has engaged in family violence – Presumption of equal shared parental responsibility not applied – Where there are serious concerns as to the father’s mental health and oppositional behaviour – Where the father has breached orders suspending his time and communication with the children – Where the father is unrestrained in his denigration of the mother to the children – Where the single expert suspects that the father could be dangerous – Where the Court finds the children would be exposed to an unacceptable risk of physical and/or psychological harm if they were to spend time with the father – Where the paternal grandmother is unable to recognise the risk the father presents to the children and would be unable to prevent the father from coming into contact with the children – Orders made allocating sole parental responsibility to the mother – Orders made for the father to spend no time with the children – Orders made to facilitate the paternal grandmother sending cards and letters to the children. | |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA | |
Blinko & Blinko [2015] FamCAFC 146
Johnson & Page (2007) FLC 93-344
| APPLICANT: | Ms Sirola |
| 1ST RESPONDENT: | Mr Sirola |
| 2ND RESPONDENT: | Ms D |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Shea |
| FILE NUMBER: | SYC | 5380 | of | 2014 |
| DATE DELIVERED: | 16 December 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 3 - 5 August 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Harris Friedman Lawyers |
| FOR THE 1ST RESPONDENT: | Mr Sirola in person |
| SOLICITOR FOR THE 2ND RESPONDENT: | Ms Torrisi of Australian Family Law Practice |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Hamish Cumming Family Lawyers |
Orders
Parenting
All previous parenting orders are discharged.
The mother have sole parental responsibility for the children, B born … 2001 and C born … 2003 (“the children”), including, but not limited to, the children’s education, health and religion.
The children live with the mother.
The children spend no time with the father and do not communicate with the father.
The father is restrained from attending at any school at which the children are enrolled and attend, although he may communicate with the Principal and officials at such school(s) by telephone or in writing.
The father is restrained from assaulting, molesting, harassing, stalking or intimidating the mother, and from attending at her home or work place and/or being within one (1) kilometre of the mother’s home or work place.
The father is restrained from applying for and/or holding, a passport for either or both of the children, and the father is restrained from removing either of the children from the Commonwealth of Australia.
The mother is permitted to change the children’s residence without the father’s consent.
The mother is permitted to travel overseas with the children, and for that purpose, the requirement for the mother to obtain the father’s consent for a passport to be issued for the children or each of them is dispensed with, and such passport(s) are to be held by the mother.
The paternal grandmother and step-paternal grandfather are permitted to communicate with the children by sending them letters, cards and gifts.
For the purposes of Order (10), the mother shall provide a postal address (that is other than her residential address) to the paternal grandmother within seven (7) days of the date of these Orders, and shall ensure that the paternal grandmother is notified of any change in postal address within seven (7) days of such change.
The mother may open and inspect any letters or cards sent to the children by the paternal grandmother and step-paternal grandfather and, provided that the letter or cards are appropriate, shall pass them on to the children.
Costs
Within three (3) months of the date of these Orders the paternal grandmother is to pay to Legal Aid Commission of New South Wales the Independent Children Lawyer’s costs in the sum of $2003.83 unless otherwise waived by the Legal Aid Commission.
Within three (3) months of the date of these Orders the mother and the father are to pay to Legal Aid Commission of New South Wales the Independent Children Lawyer’s costs in the sum of $3323.83 each unless otherwise waived by the Legal Aid Commission.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sirola & Sirola and Anor (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5380 of 2014
| Ms Sirola |
Applicant
And
| Mr Sirola |
1st Respondent
And
| Ms D |
2nd Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an application by Ms Sirola (“the mother”) for the children, B aged 15 (“B”) and C aged 13 (“C”) (“the children”) to spend no time nor communicate with their father, Mr Sirola (“the father”). An application has also been made by the paternal grandmother, Ms D (“the paternal grandmother”) for the children to spend time with her.
A fundamental principle underlying the objects of the Family Law Act 1975 (Cth) (“the Act”) in meeting the best interests of children is that children have a right to “have the benefit both of their parents having a meaningful involvement in their lives”. The Court should only make orders which prevent that from occurring in exceptional cases. This includes where the children would be exposed to an unacceptable risk of physical and/or psychological harm. Even in those circumstances, the Court should explore possible measures to militate against those risks before depriving children of their parents’ meaningful involvement.
The overwhelming evidence in this matter is that unless and until the father acknowledges and addresses his mental health issues and his tendency to engage in unrestrained and erratic behaviour, the children will be exposed to an unacceptable risk of both physical and psychological harm in his care. In those circumstances, regrettably, orders have been made for the children to spend no time with nor communicate with the father.
Understandably, the paternal grandmother wishes to maintain a meaningful relationship with her grandchildren. The Court accepts that her application has been motivated by that desire. Unfortunately, her conduct and that of her partner has been such that I have declined to make the orders sought by the grandmother to spend time with the children. They will, however, be able to correspond with the children by sending them letters, cards and gifts.
The Hearing
On 15 March 2016 I listed the parenting and property proceedings for three days commencing on 3 August 2016 and made directions for the filing of material in preparation for the final hearing.
The father did not comply with those directions. The Court file indicates that the father has not filed any material in these proceedings since 30 November 2015.
On the first day of the final hearing, however, the father appeared in person before the Court. During the course of the morning, he sought a brief adjournment as a result of feeling nauseous. The father did not subsequently return to the courtroom and was said to have advised senior counsel for the mother that he intended to leave the building. At that time I delivered brief reasons for judgment as to why, in the circumstances, I ordered that the final hearing proceed in his absence.[1] I also bifurcated the proceedings to allow the Independent Children’s Lawyer (“the ICL”) and the solicitor for the paternal grandmother to be excused as soon as practicable.
[1] See Sirola & Sirola and Anor (No. 2) [2016] FamCA 650.
At the commencement of the second day of the hearing, the father re-appeared in person before the Court indicating that he wished to participate in the final hearing. In the father’s absence, the hearing had progressed to submissions. Once advised of that, the father made an oral application to stay the proceedings. The basis of that application was stated to be to enable the father to obtain documents from his previous solicitors which he submitted would be material to the issues before the Court. The application was made despite the fact that the day before the father indicated that he did not object to the final hearing proceeding. The application to stay the proceedings was dismissed and I gave brief reasons for doing so.[2]
[2] Transcript 4 August 2016, page 102.
The father then made an application to re-open his case for the purpose of cross-examining the mother. In the circumstances I also dismissed that application and provided brief reasons for doing so.[3]
[3] Ibid page 103.
I indicated to the father that, despite the fact that he had not complied with the trial directions, I would read his affidavits filed on 2 March 2015 and 29 September 2015 respectively.
The final hearing in relation to the parenting proceedings concluded on the second day. For reasons that are not currently relevant, the final hearing in relation to the property proceedings is yet to be concluded.
Competing Proposals
In a Case Outline document filed on 29 July 2016, the mother sought the following orders:
1. That the Applicant Wife have sole parental responsibility for the children [B] born … 2001 and [C] born … 2003 (collectively referred to as “the children”), including but not limited to the said children’s education/schooling, health and religion.
2. That the said children live with the Applicant Wife.
3. That the said children spend no time with Respondent Husband, and do not communicate with the Respondent Husband.
4. That the Respondent Husband be restrained from attending at any school at which the said children are enrolled, although he may communicate with the Headmaster or Head Mistress and officials at such school/s by telephone or in writing.
5. That the Respondent Husband be restrained from assaulting, molesting, harassing, stalking or intimidating the Applicant Wife, and from attending at her home or work place and/or from being within 1 kilometre of the Applicant’s [sic] Wife’s home or work place.
6. That the Respondent Husband be restrained from applying for and/or holding, a Passport for either or both of the said children, and the Respondent Husband be restrained from removing either of the said children from Australia.
7. That the Applicant Wife be permitted to change the said children’s residence without the Respondent Husband’s consent.
8. That the Applicant Wife be permitted to travel overseas with the said children, and for that purpose the consent of the Respondent Husband to the issuing of Passports for the said children be dispensed with, and such Passports be held by the Applicant Wife.
9. That the said children spend no time with their paternal grandparents, and do not communicate with their paternal grandparents.
Whilst the father did not articulate precisely what orders he sought, it was evident that he opposed the orders sought by the mother that he spend no time with or communicate with the children.
In an Amended Case Outline document filed on 3 August 2016, the paternal grandmother sought the following orders:
1.1 That the paternal grandmother spend time with and communicate with the grandchildren, [B] born on … 2001 and [C] born on … 2003 (“grandchildren”) as follows:
1.1.1. by attending some of the grandchildren’s activities;
1.1.2. by attending a Sunday lunch;
1.1.3. by attending celebratory events such as birthdays; and
1.1.4. by communicating via telephone.
1.2 That the paternal grandmother will not permit the grandchildren to come into contact with the Father, [Mr Sirola] whilst they are with her.
1.3 The paternal grandparents are not to discuss their Father via any communication with the grandchildren whether it be in person or via telephone.
1.4 Any Orders made regarding the grandchildren to spend time with and communicate with the paternal grandmother (including the paternal grandfather) are not to be disclosed in Orders provided to the Father.
The ICL supported the orders sought by the mother in respect to parental responsibility and that the children spend no time with or communicate with the father.
The ICL did not support the orders sought by the paternal grandmother. The ICL, however, proposed an alternate minute which would facilitate communication between the children and the paternal grandmother. In a Minute handed up to the Court, the ICL sought the following orders:
1. That the paternal grandmother and step-paternal grandfather be permitted to communicate with the children by sending them letters, cards and gifts.
2. For the purposes of Order 1, the mother shall provide a postal address to the paternal grandmother within 7 days of the date of these Orders, and shall ensure that the paternal grandmother is notified of any change in postal address within 7 days of such change.
3. The mother may open and inspect any letters or cards sent to the children by the paternal grandmother and step-paternal grandfather and, provided that the letters or cards are appropriate, shall pass them on to the children.
Background Facts
The mother was born in 1979 and is aged 37 whilst the father was born in 1971 and is aged 45. The paternal grandmother was born in 1942 and is aged 74.
In March 2000 the parties first met.
In February 2001 the parties commenced cohabitation.
In 2001 the parties married.
In 2001 the parties’ first child, B, was born. He is currently aged 15 and in Year 9 at school.
In February 2002 the mother suffered a miscarriage.
In 2003 the parties’ second child, C, was born. He is currently aged 13 and in Year 7 at school.
In 2008 the parties and the children travelled north towards the New South Wales-Queensland border and the mother moved to the Region G for work, spending time with the children on weekends. The mother subsequently resigned from her job and returned to live with the father and the children in 2009.
In mid-2009 the mother found another job in Queensland and commenced living with her mother whilst the father and the children moved into a rental property approximately an hour away.
In September 2010 the mother resigned from her job and returned to live with the father and the children.
In early 2011 the parties separated with the mother leaving the family home. The parties subsequently reconciled approximately six months later.
In 2013 the parties moved back to New South Wales with the children.
On 20 August 2014 the parties separated on a final basis with the mother leaving the home and the children remaining with the father.
Between 20 August 2014 and 12 September 2014 the mother alleges that she was prevented from seeing or speaking to the children by the father.
On 28 August 2014 the mother commenced these proceedings in the Federal Circuit Court by way of Initiating Application seeking urgent interim orders.
On 29 August 2014 orders were made by Judge Kemp, in the absence of both parties, restraining them from removing the children from Australia and placing the children on the Airport Watch List.
On 7 September 2014 an application was made to Suburb H Local Court for an apprehended violence order (“AVO”) against the father for the protection of the mother.
On 12 September 2014 the children were returned to the mother’s care.
On 17 September 2014 an interim AVO was made at Suburb H Local Court.
On 15 October 2014 interim orders were made by Judge Henderson which provided, inter alia, that:
a)The children spend time with the father each alternate Thursday after school until before school Monday.
b)The children have telephone communication with the father each Wednesday and Sunday between 6 pm and 7 pm, and at any time requested by the children.
c)Without admissions:
i)The parties be restrained from using any illicit drugs or drink alcohol to excess (over 0.05 per cent) whilst the children are in their care;
ii)The father undertake urinalysis within forty-eight hours of being requested to by the ICL; and
iii)The father not request the children to disclose where they are living with the mother.
On 3 March 2015 further interim orders were made by Judge Henderson which provided, inter alia, that:
a)The proceedings be transferred to the Family Court;
b)By consent:
i)The children live with the mother;
ii)The children spend time with the father from after school each Thursday to before school Monday during school terms;
iii)The children spend time with the father during school holidays from 9 am Thursday to 5 om Monday;
iv)Changeover be effected by the mother and paternal step-grandfather with the father not to be present;
v)The children have telephone communication with the father each Wednesday and Sunday between 6 pm and 7 pm, and at any time requested by the children; and
vi)Each party undertake urinalysis and/or CDT and liver function testing within forty-eight hours of such a request being made by the ICL.
c)Dr L be appointed as the Single Expert in the parenting proceedings.
On 19 August 2015 the report of Dr L dated 18 August 2015 was released to the parties by the Court.
On 21 September 2015 the father did not return the children to the mother’s care pursuant to the orders made on 3 March 2015.
On 23 September 2015 the mother filed an urgent Application in a Case seeking a recovery order returning the children to her care.
On 1 October 2015 Johnston J heard the mother’s application and made orders that the father cause the paternal step-grandfather to return the children to the mother at Suburb E Police Station at 5.30 pm on 1 October 2015. The father was restrained from attending changeover or being outside the police station thirty minutes before and after changeover. In the event that the father did not return the children, a recovery order was to be executed. The orders also provided that:
6. In the event that one or both of the children come into the father’s care at any time not in accordance with the existing orders (or as otherwise agreed between the parties in writing) then the father shall:
6.1 return the child or children to the mother by forthwith delivering the child or children to the nearest Police Station; and
6.2 notifying the mother via telephone or SMS forthwith that he has the child or children and which Police Station he is delivering the child or children to.
On 2 October 2015 the recovery order was executed and the children were returned to the mother by the police.
On 25 November 2015 the father collected B from school.
On 26 November 2015 the father did not return B to the mother but took him to school, only to collect him a short time later. The police subsequently arranged for B to be returned to the police station and for the mother to collect him. However, when the mother attended the police station, the police directed the mother to release the children into the care of the father.
On 30 November 2015 further orders were made by Johnston J suspending the father’s time and communication with the children, subject to agreement for the father to spend supervised time with the children.[4] The orders also restrained the father from attending the children’s school. The mother alleges that on this date the father nonetheless called and texted B numerous times.
[4] See also Sirola & Sirola [2016] FamCA 147.
On 4 December 2015 the paternal grandmother’s solicitor sent an email to the mother’s solicitor and the ICL requesting arrangements be made for the paternal grandmother to spend time with the children.
In January 2016 the mother alleges that the paternal grandparents met with B without her consent at a local shopping centre.
On 15 March 2016 the proceedings came before me in the context of a First Day Less Adversarial Trial. I listed the matter for final hearing, made directions for the filing of material and made orders for an updated report to be prepared by Dr L.
On 29 April 2016 the paternal grandmother filed an Application in a Case seeking to be joined as a party to the proceedings and orders for the children to spend time and communicate with her.
On 8 May 2016 the mother alleges that the police attended upon her home following reports made to them by B that the mother tried to choke him. When asked about this by the mother, B allegedly told her that the father had “paid me outside the Suburb E police station”.
On 13 May 2016 the father attended the children’s school in an attempt to see B.
On 17 May 2016 the mother alleges that B received a number of phone calls without caller ID. After refusing to answer the phone calls, the mother alleges that B received a phone call from the paternal step-grandfather saying that the father had been trying to contact him.
On 16 June 2016 orders were made by consent joining the paternal grandmother as a party to the proceedings.
On 28 June 2016 orders were made by consent for the paternal grandmother to be at liberty to communicate with the children by telephone once per fortnight at 5.30 pm for up to ten minutes.
On 25 July 2016 the Court released Dr L’s updated report dated 18 July 2016.
On 1 August 2016 the mother alleges that the father attended the children’s school to speak to the children.
On 3 August 2016 the final hearing commenced.
Evidence
The mother relied upon the following:
a)Case Outline document filed 29 July 2016;
b)Further Amended Initiating Application filed 11 July 2016;
c)Affidavit of the mother filed 19 July 2016; and
d)Affidavit of Ms I (the maternal grandmother) filed 20 July 2016.
As previously noted, the father did not comply with directions for the filing of material for the final hearing. However, I indicated to the father that I would read the affidavits of the father filed 2 March 2015 and 29 September 2015 respectively.
The paternal grandmother relied upon the following:
a)Amended Case Outline document filed 3 August 2016;
b)Application in a Case filed 29 April 2016;
c)Affidavit of the paternal grandmother filed 29 April 2016.
The mother was not cross-examined for the purposes of the parenting proceedings. The paternal grandmother meanwhile was cross-examined via telephone, having been too unwell to attend Court in person (Exhibit A).
The Court also had the benefit of the reports by the Single Expert, Dr L, dated 18 August 2015 and 18 July 2016 respectively. It should be noted that the father did not attend upon Dr L for the preparation of his report dated 18 July 2016. Dr L was not required for cross-examination.
Consideration
Concepts and principles
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These 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.
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the Convention on the Rights of the Child (“the Convention”).[5] Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:
protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
[5] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)).
Section 61DA(1) provides that 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”. Relevantly for these proceedings, s 61DA(2) provides that the presumption does not apply if:
(2) …there are reasonable grounds to believe that a parent of the child (or a person who lives with the 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.
Abuse is defined in s 4 of the Act in the following terms:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Family violence is defined in s 4AB(1) of the Act as follows:
(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.
Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence and relevantly for these proceedings includes:
(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;…
Section 4AB(3) provides that “a child is exposed to family violence if the child see or hears family violence or otherwise experiences the effects of family violence”. Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes:
(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 presumption of equal shared parental responsibility
In these proceedings it would be inappropriate for the presumption of equal shared parental responsibility to be applied by the Court in circumstances where, as I will detail, the father has engaged in conduct that constitutes family violence as defined in s 4AB of the Act.
As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA does not apply and the Court is not obliged to consider equal time or substantial and significant time. Accordingly, the Court is “at large” to consider what arrangements will promote the best interests of the children having regard to s 60CC and the considerations contained therein.
Paramount consideration in making parenting orders
Section 60CA provides that in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65AA.
Section 60CC sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those 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.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (s 60CC(2)(b)).
Section 60CC(3) sets out additional considerations in determining what is in a child’s best interests. Those considerations include:
·Sub-section (3)(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.
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
·Sub-section (3)(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.
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
·Sub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents;
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
·Sub-section (3)(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; and
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
Approach
As will be detailed, the central finding to be made in these proceedings is whether the children spending time and/or communicating with the father will expose the children to an unacceptable risk of physical and/or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence as contemplated by s 60CC(2)(b). However, to ensure that all s 60CC factors are properly considered, it is convenient to consider those set out in s 60CC(3) before addressing the primary considerations set out in s 60CC(2).
Section 60CC(3) considerations
Section 60CC(3)(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
In these proceedings Dr L has provided two reports dated 18 August 2015 (“the First Report”) and 18 July 2016 (“the Updated Report”). In both reports Dr L sets out the views of the children.
In the First Report, Dr L noted that, as at August 2015, C indicated that he would prefer the arrangement that applied at the time, whereby he spent most of the time with the mother and a long weekend with the father. Dr L noted, however, that “his most obvious preference was one in which there was more equal time spent between the parents”.[6]
[6] at paragraph 71.
As at August 2015, B expressed the view that he preferred more time with the father. Specifically, he indicated that he would prefer to live with the father and see the mother every second weekend.
In the Updated Report, [7] Dr L noted the following:
The children’s current wishes are that they want to have contact with their father but they also recognise the complexity and difficulty of the situation, and [B] certainly has a greater recognition of that than does [C]. Both boys miss their father and would like, all other things being equal, to resume contact with him.
[7] at paragraph 11.
In respect to B specifically, in the Updated Report, Dr L reported that B had advised him that his relationship with his mother had improved and “now that he is spending all his time with his mother they are getting on better”.[8]
[8] at paragraph 12.
In explaining the period that he did not “get on” with his mother, B advised Dr L that he had attributed part of the difficult relationship to the fact that “he didn’t understand what was going on between them and he blamed [the mother] for the break up between his parents”. In that respect Dr L attributed part of B’s blame of the mother to the father’s “almost obsessional interest in vilifying the mother”.[9]
[9] The Updated Report at paragraph 13.
Dr L also reported:
I asked [B] how he would feel if he did not see his father. [B] said he would be pretty upset, but he thinks it might also “be for the best”. He thought that it might help his father “come to his senses” about what he, as a father, had done wrong.[10]
[10] Ibid at paragraph 18.
Dr L further reported that B said that:
[I]f he did not see his father he would cope, but he would be sad and he would be upset, but after a while he thinks he would get over it. He said he would not try to sneak out to see his father, although he said that he used to do that but realises now that such behaviour is not really helping. He said that instead he would talk to his mother about his feelings.[11]
[11] Ibid at paragraph 22.
In respect to C’s attitude towards his parents, in the Updated Report, Dr L noted that C said to him that “when with his Mum nothing made him sad and that when he was with his Mum he was happy”.[12]
[12] Ibid at paragraph 25.
Dr L also noted that C thought that “an alternate fortnight spent with his father would work and he would like to start up again as that was what they were doing before”.[13]
[13] Ibid at paragraph 26.
In the recommendations provided by Dr L, in the Updated Report, he noted that the children are “very clear in their wishes” to see the father and are “both mature enough to have some weight placed on their wishes”. Significantly, Dr L opined, however, “[t]he trouble is that contact cannot be made safe for them in any emotional or psychological sense.”[14]As will be discussed, regrettably, I have found that to be the case.
Section 60CC(3)(b) – the nature of the relationship of the child with each of the child's parents and other persons, including any grandparent or other relative of the child
[14] Ibid at paragraph 67.
In the First Report, Dr L reported that it appeared that the children “are well attached to both parents” although Dr L indicated that he suspected that the children were “somewhat insecure in that attachment as both parents carry considerable psychological morbidity that affects the children”.[15] Dr L noted that “[t]o that extent the children have at times taken on an almost parental role themselves in caring for and trying to predict and manage the needs of their parents”.[16]
[15] The First Report at paragraph 215.
[16] Ibid.
Dr L also noted that the children “have a close or at least a trusting relationship with the paternal grandfather”.[17] Insofar as there is a reference to the paternal grandfather, that appears to be a reference to Mr D who is the partner of the paternal grandmother.
[17] Ibid.
In the Updated Report, Dr L noted that C reported to him that he “liked his grandparents” and he was “keen to see them” as he had not seen them for a while.[18]
[18] The Updated Report at paragraph 26.
It was noted that the children have spent time with the paternal grandmother and Mr D who have provided some assistance in respect to the children. For instance, it appears that Mr D has driven the children to various sporting activities during a period when the father had lost his drivers licence.[19]
[19] Ibid at paragraph 38.
The paternal grandmother deposed to her involvement with the children at paragraphs 19 to 31 of her affidavit filed 29 April 2015. By way of summary, the paternal grandmother asserted that she and Mr D have a close and loving relationship with the children and that they have been involved with the children in the following context:
a)From an early age, the paternal grandmother and Mr D have spent time caring for the children, including when the parents were at work.
b)During the period that the father lived with the children at Suburb Q between 2009 and 2011, the paternal grandmother would often travel there to spend time with the children, including for the children’s birthdays and at Christmas time.
c)In the period between January and March 2011, when the father lived with the children at J Town, the paternal grandmother spent time with the children by visiting them on a regular basis.
d)The paternal grandmother and Mr D assisted the parties and the children when they moved back to Sydney in March 2013.
At paragraphs 32 to 42 of her affidavit the paternal grandmother deposed to the involvement that she and Mr D have had with the children since the mother and father separated on a final basis. This has included:
a)Between August and September 2014, Mr D driving from Suburb K to collect the boys from Suburb L to drop them off at and pick them up from school at M School.
b)Between August and October 2014, during school holidays, Mr D collecting the children at 9.00 am on Thursday mornings and dropping the children off at the following Monday at Suburb N.
In the Updated Report, Dr L expressed the view that there was “a basis for a good relationship” between B and Mr D and Mr D had the potential to “exercise a male role model to [B]”.[20]
[20] Ibid at paragraph 60.
Dr L noted that children’s relationship with the maternal grandmother had originally appeared to be “quite peripheral to the boys’ emotional life” but he indicated that “there has been a good level of connectivity with the maternal family over the last 12 months”.[21] This was confirmed in the affidavit filed by the maternal grandmother.
[21] The Updated Report at paragraph 52.
Subsequent to the orders made by Johnston J on 30 November 2015 suspending the father’s time and communication with the children, the children have not had contact with the father other than instances where the father has attended the children’s school including on 7 March 2016,[22] 13 May 2016 and 1 August 2016. It also is alleged that the father had contact with B on 8 May 2016 at which time he persuaded B to make a report to police regarding an alleged assault perpetrated by the mother against B.[23]
Section 60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child
[22] Exhibit D.
[23] Exhibit F.
In terms of this consideration, it is relevant that there were two periods in 2008 and 2009 where the mother moved away from the father and the children. In late 2008 the mother obtained employment in Region G. During the week she stayed with her brother and on the weekend she drove down to stay with the father and the children at O Town where they were living. This commute between O Town and the Region G lasted for approximately four or five months.
In mid-2009 the mother obtained employment in Suburb P, Queensland and began to live with her mother in Queensland. The father and the children subsequently moved into a rental property at Suburb Q which was approximately one hour away from the maternal grandmother’s residence. During that period the mother spent time with the children on weekends and sometimes one night during the week.
In September 2010 the mother moved back in with the father and children at Suburb Q. In early 2011 the parties’ temporarily separated with the mother moving out from the family home and staying in shared accommodation with two other women. That arrangement lasted for approximately six months. During that period the father moved with the children to J Town in northern New South Wales. During that period the mother spent time with the children on weekends either in J Town or at her shared accommodation.
In late 2011 or early 2012, the mother resumed living with the father and the children and she continued to reside with them until the parties separated on 20 August 2014. Following separation, the mother moved out of the family home and was allegedly prevented from seeing or speaking to the children by the father until they were returned to her care on 12 September 2014.
In terms of time the children have spent with the father, the most relevant consideration is that the father’s time with the children has been suspended since orders were made by Johnston J on 30 November 2015. Those orders did, however, make provision for the father to spend time with the children on the basis that this time was professionally supervised. Specifically, Order 2 provided:
That in the event that the parents and the Independent Children’s Lawyer are able to agree on supervised time between the children … noting that the supervision is to be by a professional supervisor then the children shall spend time with their father in accordance with such arrangements.
Further, Order 4 made by Johnston J provided:
That the father is given leave to relist these proceedings before Johnston J if reasonably available by arrangement with the Associate in the event that he considers there might be some evidence which might give the Court confidence that the suspended orders might be able to be activated in the interests of the children.
There is no evidence before the Court that the father attempted to seek the agreement of the mother and the ICL in respect to arranging such supervised time with the children pursuant to Order 2, nor did the father seek to utilise Order 4. Accordingly, other than the instances to which I have earlier referred, in the period since 30 November 2015, the father has not sought to utilise the mechanisms available to him to spend time with the children. There is no question, however, that during the course of the final hearing the father indicated that he wanted the children to spend time with him.
In terms of the paternal grandmother and Mr D, I note that, subsequent to the orders being made by Johnston J on 30 November 2015, the paternal grandmother and Mr D retained solicitors with a view to arranging for the paternal grandmother and Mr D to spend time with the children. During the course of the cross examination, senior counsel for the mother questioned the paternal grandmother as to whether her intention in seeking to spend time with the children was intended to provide a means to facilitate the father also spending time with the children. In particular, questions were asked regarding the paternal grandmother’s assertion in her affidavit that the children “have been punished enough by not spending time with [the father]”.[24] The paternal grandmother was also cross-examined regarding the concerns she expressed in respect to “the loss of the little family unit” and in particular, whether the family unit she was referring to included the father.[25]
[24] Paternal grandmother’s affidavit filed 29 April 2016 at paragraph 53.
[25] Ibid at paragraph 15.
It is certainly possible that one of the motivations of the paternal grandmother is to achieve a situation where the father could also spend time with the children. However, it is neither possible nor necessary to determine whether that is the case. I am satisfied that the primary motivation of paternal grandmother in intervening in these proceedings is a genuine desire to achieve an outcome where the children spend some time with her and Mr D.
Section 60CC(3)(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
The mother gave evidence that she experienced quite intense post-natal depression after the birth of each child. I am satisfied that during those periods, the father was the primary carer for the children. Further, during those periods where the mother was living away from the father and the children prior to and immediately after the parties’ final separation, the father was the primary carer for the children.
No evidence was presented challenging the mother’s evidence that, during those periods when she lived separately and apart from the father and the children in 2008 and 2009, she would bring food and household supplies to the children when she visited on the weekend. However, it appears that during those periods the children were primarily supported through the social security benefits which the father received.[26]
[26] Ibid at paragraph 21.
In the period subsequent to the orders made by Johnston J on 30 November 2015, the mother has had sole parental responsibility for the children and has been entirely responsible for care of the children.
In his submissions, the father asserted that the mother is in arrears of child support obligations, presumably in respect to those periods that she was working and living away from the father and the children. No evidence, however, was presented to that effect.
At paragraphs 101 to 105 of his affidavit filed 2 March 2015, the father asserted that he had been voluntarily paying the sum of $200 per week to the mother “by way of informal child support” and, in addition, he asserted that he is paying for the children’s educational fees at M School which allegedly total approximately $50 000 per year. The father also stated that he was paying approximately $10 000 per year for school uniforms, text books, stationary, excursions and the like. The father asserted that his payments were up to date as at the date of swearing his affidavit. However, a ‘Statement of Account’ issued by M School dated 19 July 2016 indicates that, as at that date, arrears of $42 777.98 were owing in respect to the children’s school fees.[27]
Section 60CC(3)(d) – the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
[27] Mother’s affidavit filed 9 July 2016 at Annexure UU.
The children have only lived with their parents. I have previously noted those times when the parents were together and those periods when the children have lived with each parent individually.
The most relevant consideration for the purpose considering this issue is that, since interim orders were made by Johnston J on 30 November 2015, the children have lived only with the mother.
It is significant that during this period the children have become more settled. In that respect, in the Updated Report,[28] Dr L noted as follows:
Since the children have not seen their father, which is now some 9 months [as at the date of the Updated Report], the children appear to have settled quite well. [B] in particular, who appeared to have the strongest desire to see his father, has allegedly not made attempts to see his father in opposition to his mother’s wishes, and [C] has followed suit.
[28] at paragraph 9.
Significantly at paragraph 67 of the Updated Report, Dr L expressed the opinion that:
I cannot see how it is in the interests of the boys currently to have any contact with their father. My original concerns about so doing appear to have been misplaced. To do so would only reverse the current good adjustment the children appear to have and in particular the greater security that is developing in their relationship with their mother.
The observations of Dr L are consistent with the material produced under subpoena issued to the M School where the children attend.[29] In an email dated 8 March 2016, the school psychologist reported that C had advised her that “he is ok at home with Mum – he is safe”. Further, in an email dated 10 May 2016, the school principal reported to other staff members, including the school psychologist, that he had seen the boys “in passing several times” and that he did not have any concerns for the boys at that time.
[29] Exhibit D.
Further, by email dated 13 May 2016, the school psychologist advised the school principal, in an email entitled “[C] and [B Sirola] – confidential,” as to the following:
Just wanted to let you know I have checked in with [C] today and he reports home situation is ok with Mum and remains the same.
Settling in to year 7 and enjoying school life.
No concerns indicated.
For reasons I will discuss, in considering s 60CC(2)(b) relating to the risk of physical or psychological harm to the children, it would entirely inappropriate to change the children’s current circumstances. They seem to be progressing well in circumstances where, other than in respect to the instances to which I have earlier referred, they have had no contact with the father since 30 November 2015.
Section 60CC(3)(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
In the circumstances of this matter, this consideration is not relevant.
Section 60CC(3)(f) – the capacity of each of the child's parents, and 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
Dr L opined that possibly as a result of both parents growing up with “extremely harsh, affectionateless parenting”,[30] they have each developed psychological problems.
[30] The First Report at paragraph 200.
In their interviews with Dr L, particularly for the preparation of the First Report, both of the children referred to the mother becoming angry. In that respect, Dr L noted that it is likely that the mother “is more intemperate and dramatic than she chooses to acknowledge”.[31]
[31] Ibid at paragraph 67.
Dr L also opined that “both parents have difficulties in the regulation of negative feelings”.[32]
[32] Ibid at paragraph 94.
The mother alleges that the father suffers from paranoia, which is denied by the father. Dr L commented on that allegation in the following terms:
[The father] denies any paranoid ideation but clearly on interview admitted to a number of ideas that suggest intense suspiciousness and a belief that there are a small group of people who are somehow or another controlling and all knowing about world events. He appears ready to find a conspiracy against him by corrupt police, corrupt judges and the like and believes that other people have threatened him or are out to get him. If he is not paranoid then he certainly has an extremely suspicious and dysfunctional belief system.[33]
[33] The Updated Report at paragraph 160.
Dr L also expressed concerns regarding the father suffering from personality dysfunction. In that context Dr L opined:
[The father] does not currently present as suffering psychosis. It is more likely he suffers from severe personality dysfunction with a high number of obsessional and controlling behaviours, high suspiciousness and intense anger. If the observation by the GP is correct, then it possible he can decompensate into brief psychotic episodes, but what is more worrying is the underlying pathological jealousy, false beliefs and anger. It is this combination along with his obsessional focus that can make him quite dangerous to others.[34]
[34] Ibid at paragraph 164.
Dr L also noted that an Australian Health Care Centre drug screen for the father indicated “a positive readings for opiates”.[35] However, Dr L observed that there was no additional notation as to whether the positive result was consistent with medication the father might have been taking at the time.
[35] Ibid at paragraph 199.
In the First Report, Dr L described the psychological problems that have manifested in each parent in the following terms:
The mother appears to have developed a propensity towards depression, which manifests in intense irritability and anger. The father appears to have developed a personality disorder around cluster A traits in particular, focused around paranoid kinds of attitudes, false beliefs, and compulsive and controlling behaviours. Whilst he does have some transient depression he is nonetheless an extremely anger man, very bitter and vindictive and I suspect a person who can be quite dangerous to others if he feels he has no other options.[36]
[36] Ibid at paragraph 200.
In the Updated Report, Dr L observed that the mother appeared to be gaining at least a little more control of her propensity to become angry. In that respect, Dr L noted that C told him that “his mother doesn’t scream anymore or at least not as much as she used too [sic]”.[37] This also appears to be consistent with comments made by the mother during the course of her interview with Dr L. In that respect, Dr L noted that the mother agreed that “in 2015 she was an angry woman and she was cranky in her relationship with the children, but said that things are not like that now”.[38]
[37] The Updated Report at paragraph 25.
[38] Ibid at paragraph 49.
The evidence indicates that, while each parent has a form of personality dysfunction, in the case of the father it appears that his personality disorder results in extreme anger, bitterness and vindictiveness.
I agree with the observation of the ICL that, even during the final hearing, the father appeared to be angry and erratic.
On the other hand, it appears that the mother, at least since the interim orders were made by Johnston J in November 2015, has taken steps to address negative aspects of her personality that were impacting upon her temperament. In that respect, Dr L noted:
[The mother] identified some changes in her parenting. She said she feels that she listens more. She tries to step back from the situation and is less reactive and will try to talk things more with children. I made reference to the comments in the father’s affidavit material that she had served the children frozen meals. [The mother] denies that. She said there is never any frozen food in the home. They go out for dinner once a week and she will cook, or her boss who is apparently Lebanese, will make her Lebanese food that she will bring home as well. She is quite defensive about her level of parenting but on the whole, no major deficits in her capacity to care for the children are identified.[39]
[39] Ibid at paragraph 59.
In summary, I am of the view that the mother has the capacity to provide for the needs of the children, including their emotional and intellectual needs. I am further of the view that, unless and until the father obtains treatment to address the issues identified by Dr L, he does not have that capacity to provide for the needs of the children. Indeed, unless the father takes steps to address the severe personality disorder identified by Dr L, he will continue to be quite dangerous and present as a risk to others, including the children.
In circumstances where the paternal grandmother is an intervenor in the proceedings seeking to spend time with and communicate with the children, it is also appropriate that I consider the paternal grandmother’s capacity to provide for the needs of the children as contemplated by s 60CC(3)(f). In that respect I am satisfied that the paternal grandmother has, in the past, had a close relationship with the children. In their interviews with Dr L, the children acknowledged that to be the case with both the paternal grandmother and Mr D.
However, one event of significant concern is the fact that the paternal grandmother took it upon herself to telephone B’s school to report that B had been involved in an incident with the mother. The phone call was made on 20 October 2015. The school notes of the conversation with the paternal grandmother (Exhibit D) record the following:
[Phone call] from [Ms D] – [grandmother] of [B]
Says her [grandson] wouldn’t go back to Mother on Sunday.
She says she is concerned for his wellbeing + would like him to have counselling.
The notes also record the paternal grandmother as having spoken to B about an incident where B said the mother “physically assaulted” him and the paternal grandmother expressed the view to the school that the mother is “very punitive” and “has always been strict with the boys”.
The paternal grandmother’s actions in telephoning B’s school in the circumstances that she did with a view to criticising the mother’s parenting suggests that she is aligned to the cause of the father to the extent that she will take action on his behalf. In that context, it is also relevant that the paternal grandmother expressed the opinion that the boys have been “punished enough” by being deprived of time with the father.
Of further relevance in considering the paternal grandmother’s capacity to provide for the needs of the children, including their emotional and intellectual needs, is her evidence that she was not aware of the allegations that her son has engaged in acts of family violence against the mother. That evidence is implausible in circumstances where it is referred to in the material that has been filed by the mother in the proceedings and where there are a number of references to those allegations in the reports of Dr L. I agree with the submissions of the ICL that the paternal grandmother’s evidence to that effect demonstrates either a lack of insight on her part and/or a desire to protect her son.
I also accept the submissions of the ICL that, in the context of clear evidence concerning her son’s inability to self-regulate his behaviour, the paternal grandmother demonstrated that she has an unrealistic view of her capacity to control the father and his behaviour. As a result there is an unacceptable risk to the children that, in the event of the children spending time with the paternal grandmother, she would be unable to prevent the father from engaging with the children.
In those circumstances, I do not consider that the paternal grandmother is an appropriate person to be called upon to provide for the needs of the children, including their emotional and intellectual needs.
I am also concerned in respect to two events that occurred with Mr D. The first was in respect to events that occurred on 1 and 2 October 2015, subsequent to the Court issuing a recovery order for the children to be returned to the mother. The orders specified that Mr D, identified as the paternal step-grandfather, was to return the children to the mother at Suburb E Police Station at 5.30 pm on 1 October 2015. The paternal grandmother deposed that she and Mr D were notified about the recovery order at approximately 2.30 pm on 1 October 2015. Despite being notified that the order required the children to be returned to Suburb E Police Station, though informed incorrectly that it was to be by 6.00 pm, the paternal grandparents departed, with the children, from a venue at St Peters at 4.00 pm and travelled to the father’s home at Suburb R – a distance the grandmother says was forty-five minutes away. The paternal grandmother alleged that, after arriving at the father’s home, she and Mr D left the children with the father because the boys were unwilling to leave and neither the paternal grandmother nor Mr D saw it as their responsibility to physically remove the children.
The fact that the paternal grandmother and Mr D took the children to the father’s residence at Suburb R, rather than to Suburb E Police Station, is itself of concern. However, of more concern, is that when the police attended the home of the paternal grandmother and Mr D, which is located near the Blue Mountains, later in the evening, Mr D advised the police that he had taken the children to the former matrimonial home at Suburb S. He did this even though he knew that it was not the correct address of where he and the paternal grandmother had delivered the children.
The evidence of the paternal grandmother that the police were given that address because herself and Mr D were embarrassed that they did not know the correct address is implausible. The actions of Mr D in advising the police of the wrong address resulted in the situation where the children were not returned to the mother until approximately 2.00 am on 2 October 2015. This occurred only after considerable police resources were allocated to locating the children.
Of further concern is that no evidence was called from Mr D to rebut assertions contained in a letter from the mother’s solicitors to the paternal grandmother’s solicitors dated 19 May 2016 in respect to a conversation that allegedly occurred between Mr D and B on 17 May 2016.[40] The assertion from the mother’s solicitors was that the conversation occurred as follows:
[Mr D]: Hi Mate, how are you?
[B]: I’m good.
[Mr D]: Your dad has been trying to call you.
[B]: I’m not answering, I don’t want dad to get into trouble.
[40] Mother’s affidavit filed 9 July 2016 at Annexure BB.
In the absence of evidence from Mr D I infer that his evidence would not have been of assistance in rebutting the evidence of the alleged conversation. In the absence of contradictory evidence, I accept that the conversation occurred. In circumstances where orders had been made suspending the father’s time with and communication with the children, the phone call from Mr D to B was most inappropriate.
In the circumstances I am also satisfied that Mr D is incapable of providing for the needs of the children, including their emotional and intellectual needs.
Contrary to suggestions from Dr L, which are set out in the Updated Report, I am also of the view that it would inappropriate for attempts to be made to introduce Mr D as a role model for either of the children. In that context I have regard to the fact that Mr D did not provide adequate assistance to the police on 1 and 2 October 2015 in circumstances where they were attempting to execute a recovery order issued by the Court. Indeed, on one view of the evidence, Mr D was obstructive to that occurring. I have also had regard to the fact that Mr D inappropriately contacted B to advise him that the father had been attempting to contact him. Even though the evidence suggests that B demonstrated great maturity in his response, that approach from Mr D unnecessarily put B in a difficult situation that can reasonably be assumed to have been stressful for him.
Section 60CC(3)(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
Dr L expressed the view that the children are of an age where their views should be considered by the Court. I agree with Dr L and note that both children have expressed a desire to spend time with their father.
I also note that their father is of southern European background and, all things considered, it would be appropriate for the children to maintain a connection to the culture and traditions of that background.
However, the children’s wish to spend time with the father and the fact that it would be desirable for the children to maintain a connection to their paternal background needs to be balanced against any risks associated with the children spending time with the father and the paternal grandmother.
Section 60CC(3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or Torres Strait Islander
This consideration is not relevant in this matter.
Section 60CC(3)(i) - the attitude to the child, and parental responsibilities, demonstrated by each of the child's parents
To an extent this consideration overlaps with the considerations set out above in relation to paragraphs (b), (c), (ca) and (f) of s 60CC(3).
The challenges of each parent exercising the responsibilities of parenthood was referred to by Dr L in the First Report[41] in the following terms:
I do not think that there is any doubt that each of parents has a strong sense of responsibility for the children. The capacity to discharge that responsibility is the issue. I believe that [the mother] has difficulties in maintaining her role as a parent with the children because of her inability to manage the pressures and the likely family violence which she was exposed to from [the father]. On the other hand I think that [the father] has difficulties in being able to maintain a consistent attitude towards the children i.e. in the children’s interest because of his own paranoid beliefs and the peculiarities and difficulties associated with his own family of origin and the influence that has had on his parenting capacity. Certainly [the father] is capable of responding to the children’s material needs. It is their psychological needs that I am more concerned about in that regard.
[41] at paragraph 222.
The extent to which the mother has, in the past, been unable to regulate her anger demonstrated a poor attitude by her to the children and to the responsibilities of parenthood. I am satisfied, however, that, having regard to comments made by the children to Dr L, as referred to in the Updated Report, the mother has been taking steps to address her anger.
Of major concern is that the father is unrestrained in the bitterness and anger he expresses towards the mother and the extent to which he denigrates her.
In that respect, in the First Report, Dr L noted that the father acknowledged that “he is extremely angry and several times in the interview with me acknowledged, although did not apologise for, the bitterness in his tirades against his ex-wife”.[42]
[42] at paragraph 96.
The father’s inability to control the extent to which he denigrates the mother was of significant concern to Dr L. At paragraph 66 of the Updated Report, Dr L said:
It is my view that the father lacks insight and the ability to restrain his behaviour. This view is supported by his unwillingness to engage in these interviews, the fact that the grandparents have indicated that whenever they do have contact with him they cannot control the extent to which he will vilify [the mother], and the evidence of my observations back in August 2015 that the father will seek to continue to alienate the children from the mother and inflame the children’s relationship with their mother.
The fact that the father failed to attend the appointment arranged with Dr L for the preparation of the Updated Report is also of significant concern. In circumstances where the Court is endeavouring to obtain all relevant information for the purposes of making orders that are in the best interests of the children, the father’s non-attendance has been most unhelpful and demonstrates a poor attitude to the responsibilities of parenthood.
Of further concern is that, during the course of his submissions, the father acknowledged having denigrated the mother in front of the children and even appeared to justify that denigration. The father was recorded as saying:
Yes, I have said, “Mummy did this” or “Mummy tried to kill you” a few times.
When we’ve been – after this start, I go, “Mate, she tried to kill you … with you.” I’m not saying it’s personal. She went off her head. That was part of her trauma, but the kids remember that. They cried their eyes out. I cried my eyes out. I forgot the second incident. My son reminded me. He goes, “She did it twice, dad. You remember this time.” He told [Dr L]. Are you going to call him a liar?
Section 60CC(3)(j) - any family violence involving the child or a member of the child's family
The mother has made a number of allegations about incidents where she says the father has been physically violent towards her. I note that, in his two reports, Dr L expressed the opinion that it is likely that the mother was subject to family violence during the course of the marriage.
I note that after the father left the courtroom on 3 August 2016, he was unable to cross examine the mother in respect to those allegations of family violence that she had made against him. Upon his return the following day on 4 August 2016, however, the father sought to reopen his case for the purpose of cross examining the mother. As I have indicated, in the circumstances of this matter, I declined the father’s request.
The mother’s evidence in respect to being subjected to family violence is entirely plausible; however, it is unnecessary to make positive findings based on the mother’s assertions and Dr L’s opinion. This is because there is direct evidence available of the father having engaged in family violence against the mother.
On 6 March 2015 the father was convicted contravening s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“the C(DPV) Act”). That section relevantly makes it an offence to:
(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
The fact sheet relied upon by the police in support of that charge and three additional charges was annexed to the father’s affidavit filed 2 March 2015 at Annexure A. Relevant extracts are as follows:
…
The victim left the accused about 7:30pm on the 20th of August, 2014 after allegations of infidelity. After the accused immediately began to message and call the victim. The accused messaged the victim 20 times and called 9 times during this first night. On the 21st of August the accused again messaged the victim, sending up to 13 messages in a row. Between the 22nd of August and 12:30pm on the 24th of August, 2014 the accused messaged the victim a further 49 times, some messages being hundreds of words long. The victim eventually replied “I can’t do this any more. I’m fine I need time away from you, please respect that” to stop the accused from sending further messages.
The accused continued to message the victim sending multiple messages at a time repeatedly. This averaged 20 messages a day between the 25th and the 28th of August, 2014 as well as anywhere between 2 and 20 phone calls. The victim occasionally answered some of these messages and calls as she felt obliged to respond.
…
About 7:30pm on the 28th of August, 2014 the victim answered a call from the accused. The accused said, “I’m going to kill you and get someone to hurt your sister and your mum. You’ll never see the boys again”. The victim hung up the phone and was scared. The accused then sent a message “See you jo say by to ur kids were gone and fuk u liar”.
Between this and 1:07pm on the 3rd of September, 2014 the accused sent a further 71 text messages to the victim’s mobile phone. The victim did not reply to any of these messages as they made her feel harassed and she was too scared to reply.
…
About 10:26am on the 1st of September, 2014 the accused again called the mobile phone of the victim. The accused left a message on the victim’s phone. It said, “The cunt you’re seeing, I’m gonna fucking kill him, you understand that. You go to the cops I’m going to fucking kill the motherfucker, alright. I’m going to make you fucking eat him”. This scared the accused as she believed he had become very aggressive towards her.
About 6:00pm on Wednesday the 3rd of September, 2014 the victim replied to a series of text messages from the accused. She wrote, “STOP contacting me, I’m not coming back it’s OVER”
The accused continued to message the victim after this sending 30 messages over the next day before the victim eventually messaged him to stop again. In these messages he things which scared the accused [sic] such as, “Till death do us part”.
The victim replied to the accused for the last time at 10:38pm on the 5th of September, 2014. She said, “Don’t call me AGAIN. I am done”.
Between this time and 5:00pm on the 7th of September, 2014 the accused sent approximately 88 text messages from his phone to the victim’s. The accused also left multiple voice messages on the victim’s phone in which he called her a “harlot”, a “bitch” and saying other things such as “fuck you”.
The victim attended Suburb H Police station about 5:00pm on the 7th of September, 2014 to provide a statement. As she was making this statement Police observed several messages sent from the accused. Police also observed a private number calling the victim’s phone.
About 4:30pm on Thursday the 11 September 2014, police attended the accused’s address and placed him under arrest.
….
While the accused was in police custody, the accused was extremely agitated. The accused proclaimed to police that when he get out of custody it is “lights out for everyone.”
…
As noted, the father’s criminal record (Exhibit E) indicates that the father was convicted of contravening s 13(1) of the C(DPV) Act. However, charges in respect to s 474.15(1) of the Criminal Code Act 1995 (Cth) concerning the use of a carriage service to threaten to kill were withdrawn as was an additional charge under s 13(1) of the C(DPV) Act.
Direct evidence of the father engaging in family violence were also contained in text messages set out at Annexure F to the mother’s affidavit. Those text messages contain highly offensive insults. Of greatest concern, however, are the threatening tone of a number of messages which, by way of example, included the following:
u r a Fukin liar everything brought to light now only ur affairs to uncover god bless ur next fuk.
fuk u bitch u r days comin what goes round comes round cunt.
Don’t worry vengeance is mine says the lord.
Do not be deceived god is not mocked You will reap what U sow.
U lies bout the sex to cover ur sin bad move death is on ur door waiting for u
God will destroy u for troubling My faith.
(Emphasis added)
Section 60CC(3)(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: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter.
On 7 September 2014 an application was made at Suburb H Local Court for an AVO against the father for the protection of the mother. An interim AVO was granted on 17 September 2014in the following terms:
a) The defended must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
b) The defended must not engage in any other conduct that intimidates the protected person(s) or a person within the protected person(s) have/has a domestic relationship.
c) The defended must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
The AVO also contained an additional order which required the father to surrender “all firearms and related licences to Police”. In material produced under a subpoena issued to the NSW Police (Exhibit F) it is noted that the father has previously held both category A and category B firearms licences.[43]
[43] Exhibit F.
The father’s criminal record also indicates that, on 6 March 2015, the father was convicted of contravening a prohibition/restriction in an AVO on 28 September 2014 and 28 December 2014. It is recorded that the father received a good behaviour bond for a period of twelve months in relation to each of those offences.
The statement provided by the mother that appeared to give rise to the charges for the breach of the AVO on 28 December 2014 is at Annexure L to the mother’s affidavit. The evidence is unclear, however, as to the circumstances that gave rise to the father being charged with breaches of the AVO on 28 September 2014.
Without determining whether the allegations set out in Annexure L to the mother’s affidavit are correct, the fact that the father has been convicted of breaching the terms of an AVO on 28 September 2014 and 28 December 2014 together with the fact that the father has acted in breach of orders of Johnston J in attempting to telephone his son and contact him at school is of great concern to the Court.
Section 60CC(3)(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
The Full Court in Blinko & Blinko [2015] FamCAFC 146 at [83] confirmed that, if the Court finds that children spending time with a parent would place them at risk of physical or psychological harm, consideration must be given as to whether any steps can be taken to ameliorate that risk.
Consistent with that authority, I have given consideration to the prospect of the father receiving appropriate treatment for his mental health. Specifically, I have contemplated adjourning the proceedings to provide the father with that opportunity. I note, however, that in the First Report, Dr L expressed “doubt that the father would be amenable to treatment”.[44] Dr L also indicated that he suspected that “[the father] would be not only lacking insight about the need for treatment but the nature of his oppositional behaviour is such that treatment providers would find it very hard to engage with him”.[45]
[44] at paragraph 228.
[45] The First Report at paragraph 228.
In those circumstances, it is likely that any adjournment of the proceedings to enable the father to undergo treatment would prove to be a futility. Having regard to the fact that the father has shown disregard for orders of the Court, it is clear that if such therapy is to have any prospects of success, it must occur in circumstances where the father acknowledges his mental health issues and he, himself, takes steps to obtain appropriate treatment.
I therefore propose to make final orders in these proceedings.
Section 60CC(3)(m) – any other fact or circumstance that the Court considers relevant
The father’s current angry, aggressive and, at times, irrational presentation, in my view, makes him an unacceptable role model for his two sons. It would be contrary to children’s interests for them to be further exposed to that behaviour.
Finally, in the context of considering possible measures to enable the children to spend time with the father, I have also considered the possibility of any such time being supervised. However, the father’s inability to self-regulate his behaviour, even when appearing before the Court, leads me to conclude that his concerning behaviour would likely take place even if the children’s time with him was to be supervised.
Primary Considerations
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child's parents
I have previously noted that, during those periods that the parties lived apart in northern New South Wales and Queensland and briefly following separation, the father had sole parental responsibility for the children.
I have also had regard to the fact that the children have expressed a desire to spend time with the father.
I also accept that the father has endeavoured to provide for the material needs of the children although, for the reasons set out by Dr L, the father has been unable to provide for the children’s psychological, intellectual and emotional needs.
For the reasons referred to below, however, I have concluded that the risk of harm associated with the children spending time and/or communicating with the father is such that they outweigh the benefit of the children having a meaningful relationship with him.
I have also noted that the children have expressed a desire to continue seeing the paternal grandmother and Mr D. For the reasons to which I have earlier referred, I have determined that it would not be in the children’s best interests to spend time with the paternal grandmother and Mr D. This will obviously adversely impact upon the children have a meaningful relationship with them.
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Identifying unacceptable risk of harm
As previously noted, the primary issue for determination is whether the prospect of the children spending time and/or communicating with the father presents an unacceptable risk to the children of physical and/or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In his often cited paper entitled ‘Unacceptable risk – A return to basics’[46] the Hon. John Fogarty A.M. summarised the relevant principles to apply in determining risk as follows:
[46] (2006) 20 Australian Journal of Family Law 249.
1. The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2. The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3. Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4. The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5. The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6. The onus of proof in reaching that conclusion is the ordinary civil standard.
7. But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In Johnson & Page (2007) FLC 93-344 at 81,891 the Full Court said:
We generally agree with Mr Fogarty’s seven point summary... We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
In this matter I do not propose to make any findings that the father has abused the children. Further, for reasons that I will subsequently discuss, it is unnecessary for me to determine that the father has engaged in specific acts of physical violence, including an alleged rape of the mother. In those circumstances, I will apply the ordinary civil standard of proof in determining whether the prospect of the children spending time with the father presents an unacceptable risk of physical and/or psychological harm to them.
In the First Report,[47] Dr L provided an overview of the father’s psychological health in the following context:
[47] at paragraph 228.
The father appears to me to present with cluster A attributes of a personality disorder marked by in particular a paranoid but also obsessional behaviour. I am unsure as to whether he has ever experienced a true psychosis. Whilst the medical information suggests that he may have been in a psychotic state on at least one occasion, the mother’s comments are that he persists in paranoid and delusional thoughts, there is an absence of any other rank symptoms to suggest that he has experienced psychosis. I think he is an odd man who has particularly strong paranoid ideation from time to time and that is associated with a deep and underlying anger and self-regulation deficits. A veiled threat in the interview with me that he was a dangerous man and “could do phenomenal things with his body” does concern me greatly and makes me feel that were he to become paranoid in any intense way he would lose the ability to regulate his behaviour accordingly.
(Emphasis added)
Further, Dr L opined that “[the father] can be induced into a severe rage very easily particularly in any contact he has with his wife”.[48]
[48] The First Report at paragraph 224. Emphasis added.
Dr L commented that:
[The father]’s behaviour in the observation with the children was amazingly lacking in insight and was for the first 15 minutes a dire tirade against the mother demonstrating his inability to maintain boundaries around his own anger and the likelihood that he would significantly seek to alienate the children from the mother if he had the opportunity to do so… If the children were to spend more time with the father he would do his level best to alienate the children from the mother.[49]
[49] Ibid at paragraph 225.
(Emphasis added)
In that context, it is of note that the NSW Police COPS entries (Exhibit F) express concern regarding the father prevailing upon B to report an incident that allegedly occurred with the mother on or about 3 May 2016. The entry notes:
Police doubt the authenticity of this report due to: -late report -nil injuries - Witness did not see the incident despite being at the house - Victim’s father receiving divorce paperwork on fathers day two years ago and this report was made on mothers day. -The father has no access to the Victim and may be using this report to gain access to the child or as a means of contacting the [mother] through police – [mother] denies allegation and was consistent with what the witness said.
(Emphasis added)
The police concluded: “Due to the doubtful nature of this report police have no concerns for the Victim”.
The fact that B was forced by the father to report the matter to police was very upsetting to B. In an email to the Deputy Headmaster on 11 May 2016 (Exhibit D), the school psychologist noted the following:
With regards to the incident reported to police, [B] didn’t disclose anything reportable to me in our discussions, however, the process of going to the police (at his father’s insistence) has been very upsetting to him and we will continue to work through that.
(Emphasis added)
The actions of the father in insisting B make a report to the police in respect to a relatively minor incident which occurred with the mother, suggests not only is it likely that the father will vilify the mother to the children with a view to influencing their opinion of her, there is also an unacceptable risk that he will seek to involve them in that task.
Of further concern is the fact that the father appears to attempt to control the information that the children provide to others concerning their personal circumstances. In that context I note that, in the First Report, [50] Dr L reported on the following event that occurred towards the end of his interview with the father:
[50] at paragraph 125.
[The father] then dragged [C] who seemed almost reluctant, to sit in his lap and asked the children to their face if they had talked to me. At this point I intervened to close down this element of the conversation, as it appeared to me that the father was about to interrogate the children or at least make the children feel uncomfortable about any comments they made to me. It seemed to me that [C] at this point was starting to experience some withdrawing behaviour because of the incessant vilification that the father was engaging in about the mother.
(Emphasis added)
Finally, while there is no evidence before the Court that the father has caused physical harm to the children, I am concerned that the father’s propensity to lose his temper is, in itself, a risk to the children. In that context, I note that Dr L commented:
Whilst he does have some transient depression he is nonetheless an extremely angry man, very bitter and vindictive and I suspect a person who can be quite dangerous to others if he feels that he has no other options.[51]
[51] The First Report at paragraph 200.
Further, Dr L expressed concern regarding the potential for the father’s anger to be exacerbated by substance abuse which Dr L said:
will not only increase the delusional content of his thought processes and cause psychological harm to the children, but also raises the risk of there being an anger response to the children should they wish or seek to assert some autonomy in their behaviour in regards to the father.[52]
[52] Ibid at paragraph 233.
The children are now at an age where it can reasonably be expected that they will seek to assert some autonomy in respect to their behaviour.
In conclusion, I am of the view that the prospect of the children spending time with the father presents an unacceptable risk to them of both physical and psychological harm. By way of summary, I have arrived at that conclusion because of the following:
a)The concerns I have regarding the father’s mental health as described in those extracts of the reports of Dr L to which I have referred. Of most concern Dr L’s observations of the father’s anger and the opinion, expressed by Dr L, that there is an element of danger in the father’s presentation.
b)The father has a history of drug use. This is referred to at paragraph 231 of the First Report of Dr L. In that respect, I have also referred to Dr L’s concerns about the potential for substance abuse enlivening the father’s anger response, particularly in circumstances where the children attempt to assert some autonomy.
c)There is clear evidence that the father has engaged in threatening and intimidating behaviour towards the mother. As Dr L noted, the father also engaged in conduct that was indirectly intimidating of Dr L himself.
d)The father’s conduct in these proceedings, especially during the final hearing, has been erratic and, on several occasions, has been unrestrained. That presentation satisfies me that it is highly unlikely that the father would comply with any order of the Court requiring him to spend time or communicate with the children conditionally so as to not to present a psychological risk to them. This is the case even if that time was to be supervised.
e)As stated by Dr L:
…this is a situation where the boys will need to be protected from the malign influence of the father inasmuch as he attempts to damage the mother’s reputation and thereby create fresh psychological pressure for the children.[53]
[53] The Updated Report at paragraph 72.
Orders
In his oral submissions, the father described himself as a “dangerous” man. However, he denied that he has caused physical harm to the mother or the children or that he presents a danger to them. I am satisfied, however, on the evidence that is currently available, that the children should not spend time, supervised or otherwise, with the father nor should the children communicate with him. To do so would expose the children to an unacceptable risk of physical and psychological harm.
As noted, I have considered adjourning these parenting proceedings to provide an opportunity to the father to receive therapeutic intervention to address his mental health. For the reasons previously outlined, however, I am satisfied that any such treatment is unlikely to be successful unless the father first acknowledges his mental health issues and takes steps to address those issues.
In summary, and for the reasons that I have outlined, I do not propose to make any orders that the children spend time with or communicate with the father. As a result of the elements of risk that I have referred to, I also find that it is appropriate to make the remaining orders (namely Orders 4 to 8) as sought by the mother.
I note, in the Updated Report, Dr L referred to the complex question as to whether the children should spend time with the paternal grandmother and Mr D. For the reasons that I have outlined, I am of the view that the paternal grandmother and Mr D have adopted a partisan position in favour of the father that prevents them from objectively recognising the risk that the children spending time with the father presents to the children. I am also not confident that either the paternal grandmother or Mr D will be capable of preventing the father from exploiting any time that the paternal grandmother and Mr D spend with the children so that he, himself, can spend time with or communicate with the children.
In the circumstances, I therefore decline to make orders for the children to spend time with the paternal grandmother and Mr D.
I note that the paternal grandmother proposed that any orders made facilitating the children spending time with the paternal grandmother and Mr D not be disclosed to the father. With respect, I do not consider that it is appropriate for a copy of orders that directly impact upon a party not provided to that party.
For the reasons that I have previously referred to, however, it is important for the children to recognise their Croatian heritage by maintaining contact with the paternal grandmother and Mr D. Accordingly, I propose to make orders as proposed by the ICL for the paternal grandmother and Mr D to send the children letters, cards and gifts.
ICL’s Costs Application
At the conclusion of the final hearing, the ICL sought her costs in respect to the parenting proceedings. In this matter it was entirely appropriate for the best interests of the children to be represented. The ICL has undertaken that role diligently and professionally and has been of great assistance to the Court. In those circumstances it is entirely appropriate that the Court makes the orders for costs as sought by the ICL.
The solicitor for the paternal grandmother, however, objected to the paternal grandmother being ordered to pay one-third of the ICL’s costs in relation to two interim hearings which predated her being a party to the proceedings. I am of the view that it is appropriate for the paternal grandmother’s share of the ICL’s costs to be recalculated to exclude those two interim hearings.
The solicitor for the paternal grandmother also sought that any costs ordered to be paid by the paternal grandmother be framed to allow a payment period of at least three months due to her status as a pensioner. The ICL for her part was willing for the parties to pay the ICL’s costs following the conclusion of the property proceedings. However, as the property proceedings are yet to conclude and it is unclear at this stage when that will occur, it is appropriate that the parties all be given three months to pay their respective shares of the ICL’s costs.
Finally, I note that the father was granted leave to make submissions within seven days in relation to the ICL’s application for costs. No submissions were received from the father.
Conclusion
Therefore, for all the reasons above, I shall make orders in accordance with those set out at the commencement of these Reasons for Judgment.
I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 16 December 2016.
Associate:
Date: 16 December 2016
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