SOUTHWICK & SPARKE
[2018] FCCA 753
•29 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOUTHWICK & SPARKE | [2018] FCCA 753 |
| Catchwords: FAMILY LAW – Parenting dispute with admitted history by Father of significant domestic violence during the relationship and long history of alcohol abuse – fearfulness of Mother towards the Father and concern about the children spending time with the Father – positive observations of the children with the Father by the Family Consultant and their relatively confident and constructive engagement with him – Father agrees with Family Consultant’s recommendation for him to spend only supervised time with the children for a significant period of time then further assessment before any move to unsupervised time – best interest considerations. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC(3) (a) – (m), 61DA, 65DAA |
| Cases cited: Collu & Rinaldo [2010] FamCAFC 53 Mazorski v Albright (2007) 37 Fam LR 518 |
| Applicant: | MR SOUTHWICK |
| Respondent: | MS SPARKE |
| File Number: | CAC 253 of 2016 |
| Judgment of: | Judge Neville |
| Hearing dates: | 8 – 9 June 2017 |
| Date of Last Submission: | 21 July 2017 |
| Delivered at: | Canberra |
| Delivered on: | 29 March 2018 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Self -represented |
| Counsel for the Respondent: | Mr Wilson |
| Solicitors for the Respondent: | Friedlib Byrne |
| Counsel for the Independent Children's Lawyer: | Mr Stagg |
| Solicitors for the Independent Children's Lawyer: | Evans Family Lawyers |
ON A FINAL BASIS, THE COURT ORDERS THAT:
The Mother have sole parental responsibility for the children, [X] (born: (omitted) 2007), [Y] (born: (omitted) 2008) and [Z] (born (omitted) 2009) (“the children”).
The Mother is to inform the Father in writing of any major medical issues, or long term decisions or related issues with respect to the children.
The children live with the Mother.
The children spend time with the Father four (4) times per year under the following arrangements for 2 years:
(a)The time be supervised at the (omitted) Contact Centre;
(b)The time on each visit be for not more than two (2) hours per visit;
(c)The first three (3) visits per year to occur during each of the school holidays which fall at the end of terms 1, 2 and 3 each year;
(d)The fourth visit occur between the end of the school year and Christmas each year;
(e)The Father be solely responsible for arranging and meeting the cost of professional supervision.
Within 7 days of the date of these Orders being by close of business on 5 April 2018, each party will make contact with the (omitted) Contact Centre and do all things necessary to register with the service.
After the 2 year period stipulated at Order 4 of these Orders, the Independent Children’s Lawyer is requested to review the notes from the Contact Centre, and should nothing untoward be found in those notes, and should the Father have complied with Orders 4, 9 and 10, the Independent Children’s Lawyer is requested to arrange a mediation for both of the parents to attend, with the view of facilitating further time between the Father and the children.
At a minimum, and subject to written agreement between the parties, the agreed “time-with” arrangements at Order 6 will be that the Father spends time with the children for a minimum of 4 times per year, unsupervised in the (omitted) region, on each occasion for a minimum of 4 hours per visit.
Within 14 days of the date of these Orders, being by close of business on 12 April 2018, the Mother will authorise the children’s school/s to provide to the Father copies of all school reports for the children and all order forms for school photographs, at the Father’s expense.
Neither of the parents will discuss issues between the parents or say unkind or rude or critical things about the other parent to, or in front of the children, or allow any other person to do so.
Within 12 months of the dates of these orders the Father is to undertake a course or personal counselling, with an emphasis on anger management and post-separation parenting.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Southwick & Sparke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 253 of 2016
| MR SOUTHWICK |
Applicant
And
| MS SPARKE |
Respondent
REASONS FOR JUDGMENT
Introduction
The scope of this parenting contest, which concerns three children [X] (born (omitted) 2007, now aged 10½ or thereabouts), [Y] (born (omitted) 2008, 9½ or thereabouts), and [Z] (born (omitted) 2010, now aged 7½ or thereabouts) is very narrow, but nonetheless very significant.
The Applicant Father, who is semi-literate, in the course of his oral evidence:[1]
(a) admitted to significant alcohol issues in the course of the relationship with the Mother,
(b) admitted to significant domestic violence against the Mother during the relationship, some of which was observed by the children when they were relatively young, and in consequence of those matters (contrary to her post-trial submissions, noted later in these reasons, the Mother confirmed in her oral evidence that there was no domestic violence directed specifically at the children[2]),
(c) confirmed that he recognised his past, he apologised to the Mother in open Court for his past actions and life generally (I took his apology to be sincere; the Mother did not accept it, saying that she did not believe it because, in her view, it was conditioned by being in Court and the Father’s desire to see the children)[3], and confirmed that he would readily travel from (omitted), Queensland (where he now lives) to spend time with the children at a contact centre for a number of years, if only to re-establish his relationship with them.[4] More summarily, bluntly and candidly, the Father stated to the Family Consultant that the matter or issue before the Court was “about me being stupid years ago”[5], and
(d) confirmed that he wanted his children to know him now, as he is, not as he was during the relationship.[6]
[1] See Transcript (8th & 9th June 2017) p.12 where the Father confirmed that he is unable to “read properly.” Hereafter “T” followed by relevant page number.
[2] T 67.
[3] The Father chose not to ask any questions of the Mother in cross-examination. See T 73. The Mother’s negative response to the Father’s apology is at T 95.
[4] The Father had confirmed this position regarding the need and appropriateness of him having, for a not insignificant period of time, “supervised time” only with the children in the course of his discussion with the Family Consultant. Among other places, see Family Report, dated 19th May 2017, at par.65, Exhibit A1.
[5] See par.7 of the Family Report.
[6] T 25.
For her part, the Respondent Mother seeks Orders from the Court that the children spend no time with their Father.
It is not without significance that, in the course of the trial (a) the Mother confirmed that the child [X] had been indecently assaulted by a person in the Mother’s home, and that (b) the Father was not informed by the Mother (or by anyone else) of this incident. Thus he only heard of it for the first time during this trial. At the time of trial, criminal proceedings regarding this assault on the child had not been completed. In my view, subject to what is said later in these reasons, the Court may reasonably take some notice of the fact that the assault on [X] was likely to have played, and may still play, some cause in the child’s general levels of anxiety, to which the Mother referred in her evidence.[7] It was also the subject of comment by the Family Consultant.[8]
[7] See, for example, T 71 – 72 & 90.
[8] See, for example, pars.34 & 44 cf. pars.54 – 58.
Also of significance is that the Family Report, and the Independent Children’s Lawyer (“the ICL”), both support the children spending time with the Father, understandably cautiously and gradually and being for some time only at a contact centre with a process of review after some time has passed and assuming that there has been nothing untoward at the contact centre, with a view possibly moving to unsupervised time. For the reasons that follow, I agree with the position proposed by the ICL (and the Family Consultant) and make Orders as proposed by her with very slight amendment. In my view, they are in the best interests of the children, pursuant to s.60CA Family Law Act 1975 (“the Act”).
Orders Sought by Applicant Father
The Father did not file an updated Minute of Orders Sought since filing his Initiating Application on 16th February 2016. His [original] Final Orders sought were as follows:
1. That the parties have equal shared parental responsibility of [X] born (omitted) 2007, [Y] born (omitted) 2008 and [Z] born (omitted) 2010 (“the Children”).
2. That the Children live with the Mother and spend time with and communicate with the Father: -
a. Each alternate weekend from the conclusion of school Friday to 5.00pm Sunday;
b. From 5.00pm on the first Sunday of each NSW school holiday period until 5.00pm on the following Sunday;
c. From 3.00pm on Christmas Day to 3.00pm on Boxing Day in 2016 and each alternate year thereafter and from 2.00pm on Christmas Eve to 3.00pm on Christmas Day in 2017 and each alternate year thereafter;
d. For the weekend containing Father’s Day from 5.00pm on Saturday to 5.00pm on Sunday;
e. By telephone each Sunday from 5.00pm to 7.00pm with the Father to telephone the children’s mobile, and at any other time on any Child’s request (with the Children to be afforded privacy during all phone call); and
f. Such other times as may be agreed.
3. That changeover occur at the children’s school where applicable and otherwise at the McDonald’s Restaurant on (omitted).
4. That each parent authorise any school that the Children attend to inform the other parent of any information they require, copies of any progress report, examples of work, newsletters, notification of pre-school activities and inform the other parent of any emergency, remedial or correctional treatment required by the Children as soon as is practicable and that both parents be at liberty to attend any school event that the parents are usually invited to.
5. That, in the event that any of the Children suffers any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the Child has been taken.
6. That each party refrain from making critical or derogatory remarks about the other party or members of that person’s family in the presence or within the hearing of any of the children and that the mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the father or members of his family in the presence or within the hearing of any of the children.
In the course of his oral evidence, the Father indicated if not confirmed that he would effectively do “whatever it takes” (so to speak) to spend time with his children, including spending supervised time at a contact centre for, perhaps four times per year, for as many years as it takes, perhaps two or three.[9] As noted earlier in these reasons, the Father now lives in (omitted), Queensland which must necessarily have some impact, as a matter of practicality and expense (if nothing else) on the Orders that are in the best interests of the children. So too must his acknowledgement during the trial of his anger management issues, his abuse of alcohol in the past, and his admission of family violence during the relationship.
[9] T 25.
Orders Sought filed by Respondent Mother
The Mother’s Minute of Orders Sought, filed 21st July 2017, provided as follows:
Parental Responsibility
1. The Mother have sole parental responsibility for the children, [X], (born (omitted) 2007), [Y] (born (omitted) 2008) and [Z], (born (omitted) 2009), (“the children”).
Living arrangements and time with each parent
2. The children live with the Mother.
3. The children spend no time with the Father.
Orders Sought filed by the Independent Children’s Lawyer
The Independent Children’s Lawyer’s (“the ICL”) Minute of Orders Sought was as follows:
Parental Responsibility
1. The Mother have sole parental responsibility for the children, [X], (born (omitted) 2007), [Y] (born (omitted) 2008) and [Z], (born (omitted) 2009), (“the children”).
Living arrangements and time with each parent
2. The children live with the Mother.
3. The children spend time with the Father four (4) times per year under the following arrangements:
a. The time be supervised at the (omitted) Contact Centre;
b. The time on each visit be for not more than two (2) hours per visit;
c. The first three (3) visits per year to occur during each of the school holidays which fall at the end of terms 1, 2 and 3 each year;
d. The forth visit occur between the end of the school year and Christmas each year;
e. The Father be solely responsible for arranging and meeting the cost of professional supervision.
4. Within 7 days of the date of these orders each party will make contact with the (omitted) Contact Centre and do all things necessary to register with the service.
Information Sharing
5. The Mother is to notify the Father as soon as practicable, if any of the children suffers any serious illness or injury requiring hospital admission.
6. The Mother is to advise the Father by email or letter of decisions in relation to any major long-term issue in relation to the children.
7. Within 14 days of the date of these Orders the Mother will authorise the children’s school/s to provide to the Father copies of all school reports for the children and all order forms for school photographs, at the Father’s expense.
Other Matters
8. Neither of the parents will discuss issues between the parents or say unkind or rude or critical things about the other parent to, or in front of the children, or allow any other person to do so.
9. Within 12 months of the dates of these orders the Father is to undertake a course or personal counselling, with an emphasis on anger management and post-separation parenting.
The Court Notes:
A. Notwithstanding anything to the contrary in these orders, after a period of 12 months from the date of these orders and upon the father demonstrating compliance with order 9, the parents may by agreement in writing vary the arrangements for the time the children spend with their father including the frequency, length of time and requirement for supervision.
The Father’s Evidence
The Father’s relatively brief evidence, summarised here, was as follows:
(a)He confirmed that he had alcohol issues but had completed a “detox” program, as well as attending Alcoholics Anonymous;
(b)He has “relapsed” in his use of alcohol a few times, the last time being when his Father died in (omitted) 2015, although he later confirmed that there had been a couple of “relapses” since, including in 2016;[10]
[10] T 13 – 15 & 20.
(c)The Father said that he was currently unemployed but his intention was to get a (employment omitted) “locally” around (omitted);[11]
[11] T 16 – 17.
(d)He is in a relationship that is now of approximately 3 years’ duration;
(e)A number of matters were canvassed with him that involved violence and often alcohol based on police records: in one incident he said the person involved was not him, as alleged, because he did not drink “two cartons of beer” in a day.[12] He said that if this occurred “you would be in hospital with alcohol poisoning”.[13] The second incident he was charged with a breach of a domestic violence order for walking past the Mother’s house. He said that he did not know that the Mother had changed residence at the time;
[12] T 18.
[13] T 18.
(f)There was another incident in June 2016 where the police were called. It involved the Father and his partner. The police could not determine who was involved and ultimately left the residence. It would seem that no charges were laid. The Father said that the matter arose from his partner’s [lack] of medication for bipolar and schizophrenia;
(g)Then in February 2016 there was another “relapse” by the Father, and again in April 2016, in his use of alcohol, and which also involved allegations of domestic violence. His [current] partner said (according to the police) that the Father had assaulted her. He said that on the last occasion his partner hit him over the head with a jerry can and that no alcohol was actually involved but rather the partner’s [lack] of medication was the issue;[14]
[14] T 19 – 20.
(h)The Father denied strongly that in an incident on 29th June 2016 he had “thrown his partner around like a rag doll.” At the relevant time he said that he was not even present because he was “out camping”;[15]
[15] T 21 & 23.
(i)He said that any binges, which he was pretty sure had not occurred in the last 12 months were a result of him not coping. But he was in a “better place” now in (omitted) where he has family support and was away from (omitted) where there are/remain many “triggers”;[16]
[16] T 22 – 23 & 24 – 25. The Father later confirmed that he had formerly drunk at least one carton of beer per day until he passed out. T 26. He also confirmed that he started drinking when he was 13 years old. T 35.
(j)In my view, the Father plainly and candidly acknowledged that the children had been present on some occasions when he perpetrated domestic violence towards the Mother. He denied any domestic violence, on his part, with his current partner;[17]
[17] T 23 & 35 – 39. These latter references refer to the Father’s cross-examination regarding domestic violence against the Mother based on police records.
(k)The Father confirmed that he had been in bar fights in addition to domestic violence towards the Mother;[18]
[18] T 24.
(l)The Father confirmed that in order for him to see the children he did not care if he spent time only at the contact centre for 2 or 3 years “as long as I got to see my kids”;[19]
(m)He said that the benefit for the children seeing him even at a contact centre was that they would get to know their Father and, eventually, get to know his side of the family;[20]
(n)He is looking for counselling assistance/anger management courses in (omitted). However, because he will be in (omitted) for some months while his current partner nurses her Father who is ill, he may be able to attend such course(s) there;[21]
(o)He said that his relationship with his current partner is “good”, especially since she is back on her medication for her bipolar condition and schizophrenia;[22]
(p)He confirmed that he had formerly smoked marijuana. He also confirmed that his proposal to the Court was that his current partner not spend any time with the children the subject of these proceedings, at least not while he is seeing them at the contact centre;[23]
(q)A number of other incidents were canvassed with the Father regarding violence involving others (notably, in some instances, not the Mother), including a charge of “break and enter”. He received a good behaviour bond. The Father did not deny that he was involved in other incidents but either challenged the detail of them and or stated that he could not necessarily remember all the detail involved.[24] In my view, he was quite credible in his acknowledgements and equally so in not remembering all details;
(r)In the course of being cross-examined by the Mother’s Counsel, the Father was invited by the Court to apologise to the Mother for his actions directed towards her during [and after] the relationship. Simply he said, speaking to the Mother: “I’m sorry for everything that I have done to you and the kids.”[25] As noted earlier in these reasons, I took the Father’s apology to be genuine;
(s)Under sustained questioning by the Mother’s Counsel, which included him acknowledging that the Mother was scared of the Father whenever there was domestic violence during the relationship, the Father became visibly frustrated and agitated;[26]
(t)He confirmed that [at present] he does not pay any child support but was “happy to pay it” when he got employment. He also said that he believed the Mother was simply trying to stop the Father from seeing the children;[27]
(u)Finally, the Father said that he would not ask the Mother any questions in cross examination.[28]
[19] T 25.
[20] T 27.
[21] T 27 – 28.
[22] T 29 – 31.
[23] T 33.
[24] See T 42 – 44.
[25] T 48.
[26] T 49 - 50.
[27] T 51 – 52.
[28] T 55.
The Mother’s evidence, which was even shorter than that of the Father, summarised, was as follows:
(a)The Mother confirmed that, according to the Report of Ms S, the children’s time with their Father was positive. She went on to say that after each time they see their Father they are very unsettled and have nightmares. She confirmed that the children are having counselling;[29]
(b)The Mother confirmed that it was important for the children to know their Father, which included them knowing him without him being “demonised”. The Mother then, perhaps understandably but still inconsistently said that she did not want the children to spend any time with their Father.[30] The inconsistency obviously arises from stating, on the one hand, that she wanted the children to know their Father, but on the other hand, it begs the question how that is to be achieved if the Mother does not want the children to spend any time with the Father;
(c)The Mother confirmed that she did not have any issues with the children spending time with the Father at a contact centre.[31] In this regard she said that the issue for her was not safety for the children but more the [likely] disruption, although a little later she did raise the issue of the safety of the children, although there is no evidence that the Father had ever perpetrated violence on the children. They were traumatised because of the older two children having seen the violence of the Father towards the Mother;[32]
(d)The Mother confirmed that because she did not want to influence what the children “think or feel”, she had not directed them “not” to call her current partner “dad” and to call Mr Southwick “Mr Southwick.[33] By way of observation, this is in circumstances where the children are aged, as noted earlier around 10, 9 and 7 years of age. For my part, I have some reservation about children so young being given so little direction about such a significant thing as to who is called “Dad” in their lives;
(e)Of particular significance were questions put to the Mother regarding the sexual offence caused to [X]. The Mother confirmed that she had never advised the Father of what had happened to his daughter, saying that she “did not realise that he needed to know” about this terrible incident.[34] Such a perception or view, respectfully, is very concerning in my view. Whatever difficulties have occurred between parents, and which may have ongoing consequences for their co-parenting relationship (as they clearly do here), in my view it was a very significant lack of insight on the Mother’s part not to have informed the Father of such a grave incident and its ongoing consequences for the child;
(f)The Mother confirmed that it was her understanding that in seeking an Order for sole parental responsibility, its effect would be (if granted) to remove the Father from the children’s lives.[35] Again by way of comment: the mutual inconsistency of the Mother’s position was and remains concerning. On the one hand she stated earlier in her evidence that she wanted the children to know their Father. But she made plain that the purpose of seeking the Orders she was/is, she is seeking to remove the Father from the children’s lives;
(g)She confirmed that she was receiving counselling. She also said that if the Court ordered the children to spend time with the Father, she would cope. She further confirmed that she had “adequate support” should the Court make such an Order for the children to spend time with the children;[36]
(h)For my part, it was not completely clear if the Mother confirmed that [X]’s anxiety was in any way related to the Mother’s ongoing anxiety. But she was adamant that this child would not cope with seeing her Father,[37] notwithstanding the quite positive observations between each of the children and their Father as noted in the Family Report.
[29] See T 64 & 65.
[30] T 65 – 66.
[31] T 67.
[32] T 67 - 68.
[33] T 68.
[34] T 69 – 70.
[35] T 70.
[36] T 71 & 72.
[37] T 71 – 72.
The Mother’s partner, Mr O, was very briefly cross examined. For my part, his evidence was of little assistance to the Court.[38]
[38] See T 75 – 77.
The Family Report
The Family Consultant, Ms S, prepared a Report, dated 19th May 2017 (the Family Report”). It became Exhibit A1. An earlier, shorter Memorandum, prepared by Ms D, dated 4th August 2016, became Exhibit A2. Because of the detail contained in it, and the “no contact” Order sought by the Mother, it is important to set out, almost in toto, the following extracts from the Family Report (pars.7 – 69) (emphasis added):
THE ADULTS
Mr Southwick
7) Initially, when I asked Mr Southwick what the dispute was about, he responded, “Me being stupid years ago.” He volunteered that when he was with Ms Sparke, he had been drinking all the time. When he was in a relationship with Ms Sparke, Mr Southwick told me that alcohol abuse was the problem, rather than him using any other non-prescription substances. He said that on one occasion, he had gone out all night drinking and went on to say, “One thing led to another”. Mr Southwick recollected he came home and had a shower and said Ms Sparke accused him of cheating, an allegation he denied. He said the dispute escalated and he took responsibility for this, saying, “It was my fault”.
8) Mr Southwick said that he understood what he had done wrong and said that he was arrested and charged by the police. Mr Southwick said he received a 12-month suspended sentence and said that Ms Sparke was injured and had been bruised. She left him and went to her parents’ with the children.
9) Throughout his life, Mr Southwick said his problems were alcohol related and said that since the separation, he had been to rehabilitation and had done alcohol counselling. Mr Southwick said he relapsed when his father died almost two years ago. Nowadays, Mr Southwick said that he probably relapsed every now and again but had changed to drinking light beers.
10) Originally said that he was from (omitted) but now lived in (omitted) in Queensland. Mr Southwick said he had been in the (omitted) area for a little while but was returning to Queensland the following Monday.
11) Mr Southwick said that he just wanted to see his children and certainly did not want to take them away from their mother. He assured me that he was happy for Ms Sparke to care for the children. He said that he would like to see them and be able to take them out during the day.
12) When I asked Mr Southwick why he and Ms Sparke could not settle this matter out of Court, he told me that Ms Sparke would not talk to him at all. He went on to say that Ms Sparke had him charged twice with breaching the AVO, saying that this was “crap”. Mr Southwick said Ms Sparke alleged that he had walked past her house and called out to ask her to return the children to him. Mr Southwick said he had inadvertently walked past the house and said that as soon as he saw Ms Sparke, he had left the area without saying anything. He assured me that he did not know she lived there. Mr Southwick said that the other breach was also for being in the street where Ms Sparke lived. He explained that this was why he had moved to Queensland.
13) In response to my query, financially, Mr Southwick said he would only be able to come to visit the children three or four times a year. He was proposing that these visits take place at the (omitted) Contact Centre. Mr Southwick went on to say that he also wanted to be able to call the children for their birthdays, adding that at the moment he was not allowed to do so.
14) At the time of interview, Mr Southwick said that he was looking for work. He lived by himself. Mr Southwick said he had problems with his back but said he did not have any mental health issues. Mr Southwick advised he was no longer legally represented.
15) Regarding why he wanted to see the children, Mr Southwick responded that he loved his children. He thought that the children should see him because he was their father and wanted them to know him and his family. Mr Southwick was distressed that the children did not see his father before he died.
16) Mr Southwick told me that he had no problem with the children having a new stepfather. He commented this was not up to him anyway and said that it was entirely up to the children. Mr Southwick told me that he had a new partner, Ms A, but did not have any more children. He said that Ms A had children who were in care. Mr Southwick said that Ms A actually knew Ms Sparke and the children because she had stayed with them before they separated. Mr Southwick said Ms Sparke was aware of his relationship. He volunteered that she had made allegations that Ms A’s youngest daughter was his child but said that this had been disproved by DNA testing.
17) Mr Southwick reiterated that he was happy for the children to live with Ms Sparke and added that he did not have any care concerns.
18) Mr Southwick told me that his mother lived in (omitted) and said that his brothers and sisters all lived up there. Mr Southwick explained that his entire family moved to (omitted) after he separated. Mr Southwick said that he loved living in (omitted). He enjoyed going fishing. Mr Southwick assured me he would not denigrate Ms Sparke to the children and rather said that he was aware that he had “stuffed up”. He hoped Ms Sparke would forgive him and give him a chance.
19) Mr Southwick advised that his mother was currently undergoing testing to establish if she had an indigenous background. He said that his mother’s great grandfather was aboriginal. Mr Southwick said that his mother used to see the children all the time but had not done so for a long time.
Ms Sparke
20) At the beginning of Ms Sparke’s interview, Ms Sparke’s partner advised he had just been discharged from hospital after being admitted and kept there overnight with muscle spasms and back pain. Ms Sparke advised her mother had taken the children out for a hot chocolate.
21) Ms Sparke said she and Mr Southwick were in a relationship for eight years. She said that there was domestic violence throughout the whole eight years but said she did not report any incidents until the last one. During the last incident, Ms Sparke said she sustained a broken nose and bruises. After this, she said that she took the children and left because of the violence she experienced . When the children were younger, Ms Sparke said Mr Southwick was not really involved with them. She said that everything was left to her. Ms Sparke said that the violence had had serious consequences for both her and the children.
22) I heard from Ms Sparke that she still had an AVO against Mr Southwick which was to expire in April 2017. She hoped to extend it again. Ms Sparke advised that she was petrified of Mr Southwick. She understood Mr Southwick was only applying for visitation. When I told her Mr Southwick was only proposing seeing the children three or four times a year at the contact centre, Ms Sparke argued that this would be disruptive for the children.
23) Ms Sparke reported that she had had a terrible time trying to get the children to come to see me on the day of the interviews and said that [X] had been leaning on the bathroom door, crying hysterically that she did not want to go. Ms Sparke said that when they had got to my office, [X] continued to say that she did not want to see her father. Regarding the children actually seeing their father, Ms Sparke said that they had done so because when they were told to do something, they did so.
24) In Ms Sparke’s opinion, Mr Southwick did not really care about the children but was taking this Court action to try to get at her. She argued he wanted to see the children to use them against her. Ms Sparke explained that this was the way her ex-partner thought. Her partner argued it was to stop them living a happy life. Ms Sparke’s partner interjected to say that the children were having a happy life and that all they did was for the children. He said he had been involved with the children for nearly three years. He went on to say that he had a son, A, aged eight who he did not get to see. He said he last saw A in September last year. Ms Sparke interjected to say that A knew that he was always welcome to come around to their house.
25) In the event that the Court did order that her children were to see their father at the Contact Centre, Ms Sparke said, “I’ll do what I have to do”. She told me that she would have to take the children and added that she would also have to pick up the pieces afterwards. Ms Sparke went on to say that she would have to prepare the children mentally and emotionally for visits. Ms Sparke said that all she could do was to tell her children to be honest and not hold anything back.
26) Ms Sparke said she was unsure how she would be able to prepare the children for seeing their father. Ms Sparke said the children would have to go to counselling and said she had counselling after it all happened. Ms Sparke said she became very anxious still whenever she saw Mr Southwick or whenever his name was mentioned. Ms Sparke was shaking during her interview. Ms Sparke said Mr Southwick did not seem to understand how traumatic the violence had been for her. She added that the children had witnessed it.
27) When I asked Ms Sparke how she knew that Mr Southwick was not aware of the effects of what he had done, she queried how if he was taking responsibility, why he would continue to put the children through “any of this”. Ms Sparke commented that Mr Southwick was the children’s biological father but said the children were telling her that they did not want to see him. She went on to say that she was not putting “words into their mouths” and said the children had said the same to her mother and to their teachers.
28) Ms Sparke said that they did not badmouth Mr Southwick at all to the children. She said that during telephone calls, the children would ask Mr Southwick questions and he would go completely off the topic. Ms Sparke estimated the telephone calls ceased last year. Her partner added he thought it was around Easter last year. Ms Sparke said Mr Southwick would not call very regularly anyway. She said he would sometimes go months without calling and then all of a sudden would call.
29) In response to my query, Ms Sparke said that the children were going really well at school. Her partner added that the children were doing well at sport as well and said that they played hockey. At the time of interview, Ms Sparke said she was studying to be a (occupation omitted) and Mr O said that he was a (occupation omitted).
30) Ms Sparke continued to be very shaky. If the children saw their father, Ms Sparke feared that Mr Southwick would go on about her and that he could do the same to the children as he had done to her. Ms Sparke reiterated that Mr Southwick bashed her off and on for eight years.
31) Ms Sparke said that her parents lived close by in (omitted) and said that she also had her aunt and uncle up the road. She said she had siblings in (omitted) as well. Her partner’s family was also close by in (omitted).
32) In response to my query, Ms Sparke told me she did not have a mental health history. She had only seen counsellors in relation to the domestic violence she had sustained and in relation to this dispute. Ms Sparke said she only drank alcohol socially, which was not very often. Her partner said they did not go out very much. Neither she nor her partner used any other non-prescription substances.
33) If the children were naughty, Ms Sparke said she used time out. She said while they were in time out, the children would think about their actions. Both her and her partner said they did not smack the children. Ms Sparke said she and her partner assisted the children with their reading and homework. Ms Sparke completed Year 12 at (omitted) High School. She had almost finished her study as a (occupation omitted) and was looking forward to working, advising that there were plenty of jobs. She was pleased that she would be able to work school hours.
34) Ms Sparke told me that [X] had been diagnosed with anxiety by a visiting counsellor to the school. She said the children were having counselling in (omitted). Ms Sparke feared Mr Southwick would lie to the children and worried that visits would do more damage than good. Ms Sparke added they could only do what they could do. Ms Sparke said that the children asked her questions regarding why their father had bashed her. Ms Sparke said she suspected Mr Southwick had been abusing other drugs as well as alcohol. Ms Sparke said she had been told he used a concoction of drugs including Ice and marijuana.
35) Ms Sparke assured me that her new relationship was a happy one and that there was no violence with it. She described her partner as very reassuring towards her and very supportive. Ms Sparke told me that she played (omitted) with the children. She told me that she played in the same team as her mother. She added that her aunt played as well. Ms Sparke chatted about this.
36) If Mr Southwick’s supervision became unsupervised, Ms Sparke expressed concern about Mr Southwick’s frequent moves. She recognised that while the contact was supervised, it did not really matter where Mr Southwick lived. Ms Sparke commented that she just did not trust Mr Southwick. Ms Sparke expressed doubt as to whether Mr Southwick would stick to any arrangements made, based on his past history.
37) Ms Sparke was clearly very anxious about what arrangements might be put in place. She asked what would happen if the children felt very stressed, whether the sessions would still continue or not.
38) Ms Sparke went on to say that [Z] had anger issues. She explained that [Z] was very restless and would get physical from time to time. Ms Sparke said she and her partner were implementing everything that the counsellor recommended.
39) The day before the interviews, Ms Sparke said she had sat down with the children and watched a movie to try to keep the children calm. She said she only told the children of any proposed visits close to the time. Ms Sparke recognised facilitating any visits was going to be up to her and again argued that her ex-partner was trying to get at her through the children.
CHILDREN AND THEIR RELATIONSHIPS
The Children and their mother
40) When I went to ask [X] to come into the interview room, she was crying and upset and clinging to her mother. She immediately told me that she did not want to see her father, telling me that he was not her “Dad”. She told me that her mother was getting married to her “Dad” in (omitted), referring here to Mr O.
41) When the children came into my office, they were being so difficult, I had to caution them to behave in the office surroundings. Ms Sparke advised the children had not seen Mr Southwick for a few years. [Z] interjected to say it was a hundred years ago. Ms Sparke went on to say that the children had witnessed Mr Southwick being violent to her.
42) After I explained my role, I assured the children that I was not going to make them see their father on the day of interview if they did not want to do so. [X] asked if I would be there while they did see him. I assured her I would be. [X] asked if they were allowed to ask Mr Southwick questions. They later asked if they could use swear words. I told him I would prefer if they did not use swear words.
43) I suggested to the children that we perhaps saw them with their father quickly first and [X] responded by asking if they could do this later. [Z] suggested that they did it now so that they got it over with. [X] asked, “What if he takes us away from the office?” and I assured her I was not going to let this happen. [Z] suggested I put handcuffs on his father’s hands. I again suggested that I revise the schedule so that I saw the children with Mr Southwick first, and that then they could go out for something to eat briefly while I interviewed Mr Southwick by himself before asking him to leave and proceeding with the rest of the scheduled interviews and observations.
44) When I said that I was going to and get their father, [X] said, “I’m so scared”. She went on to say that she did not want to see him.
The Children and their father
45) After their father came into the room, [X] immediately told him, “Our Mum is scared of you”. She went on, “We don’t want you to ever do that again”. [X] told her father that it had been the wrong thing to do. Mr Southwick said to the children that he had not seen them for a long time to which [Z] responded, “You’re not our real Dad anymore”.
46) Mr Southwick said that he had not seen the children for four years. After asking Mr Southwick how old she was now, [X] asked her father if he knew when her birthday was and seemed surprised when he told her, commenting, “You remember all that”.
47) [X] said to her father, “You’ve got to stop driving past our house, we don’t like it”. Mr Southwick denied having done this and said that he lived elsewhere. [X] told Mr Southwick that they called their other “Dad”, “Dad” and that they called him “Mr Southwick”. She explained that this was because he used to hit them. She went on to say, “We don’t even want to live with you”. Mr Southwick assured the children that he just wanted to see them and was not applying for them to live with him. [X] told him they did not want to see him.
48) After I pointed out that it was important for children to know both their parents, I explained the role of a Contact Centre to the children. Mr Southwick said that this was actually what he was proposing. After I proposed the Contact Centre, [X] asked if she could ask a question. She asked, “Why did you even want to bash our Mum?” Mr Southwick responded that this had been because he was mixed up. They went on to talk about that whenever they heard screaming, they recalled their father bashing their mother.
49) [Y] commented, “I hate Ice”. Mr Southwick asked the children how they know about Ice. They told him they watched a television show about it. When the children referred to Mr O as “Dad”, Mr Southwick said that this was okay. They then talked about a telephone call when [Y] had referred to Mr O as “Dad” and he had told [Y] that he was his father.
50) The children began to ask Mr Southwick about other family members. This was quite difficult to follow. [X] referred to her father calling her “[X]” when she was little, saying “[X]” was her favourite character when she was in kindergarten on Sesame Street. The children referred to Mr Southwick’s parents and said that they no longer saw their “Nanny B” or Mr Southwick’s brothers. [X] asked where her aunt lived. They asked their father if he remembered various family members on their mother’s side.
51) Mr Southwick said that he did not have any telephone contact either. [Y] asked his father where he got his earring from. He commented that his father looked different than he remembered him. [X] commented that her father had more tattoos and the children asked him about the rings he had on. Mr Southwick told them that they had belonged to his father. [X] asked if he remembered various incidents when they lived in (omitted). This included learning to ride a bike.
52) The children visibly relaxed, chatting about bike riding. They again asked their father if he knew when their birthdays were and how old they were. [Z] told his father that he did not know what his last name was and Mr Southwick told him that it was the same as his. He told the children the name came from (omitted). The children talked about riding a four-wheeler. [Y] was very quiet and his father said that this was alright.
53) The children and their father talked about what car he had. The children speculated about Mr Southwick being dead by the time they grew up and an amusing, relaxed discussion ensued about how old people were. [X] announced that when they did the wrong thing, their current Dad smacked them. [Y] said that he did not but rather sent them to their room. He conceded that when they were real bad, he sometimes gave them a smack. The children argued about whether their new father smacked them or not. The children began to talk about school. The children left their father, farewelling him in a confident manner. Mr Southwick did not prolong their exit.
[X]
54) [X] immediately told me that she did not want to see her father. She told me that seeing him with me had “gone okay”. After I explained my role, [X] reiterated that she did not want to see her father and said that she did not want to go to Queensland. If the Judge told her that she had to go to see her father in Queensland, [X] said she would not go. She went on to say that she would see him locally if there was someone with her.
55) When I asked [X] why she did not want to see her father, she said that this was because he had bashed her mother. [X] said that when her mother was bashed by her father, she was not in the same room but was in the lounge room. She said she went to her mother and said that they went into another room and locked the door. [X] said it was very frightening.
56) In response to my query about what were the good things about living with her mother, [X] told me that she got more things. She said that she liked Mr O and called him “Dad”. [X] said that her stepfather had a sore back. She thought that he might have to go back to hospital.
57) If she had three wishes, [X] said she would wish for a laptop, an iPod and for her very own study desk. [X] told me that she had a lot of friends at school and told me that when she was not at school, she liked playing (omitted). [X] told me that she had chores at home including making her bed, doing the washing up and wiping, emptying her school bag properly, making her bed and cleaning her room. She told me that they were starting to get pocket money every Monday for doing these chores. She said she spent her pocket money on toys. We chatted about some little dolls she would like to buy and collect.
58) Towards the end of her interview, [X] reiterated that if the Judge said she had to see her father, she would do so but that she would be nervous. She anxiously asked if any visits would be in (omitted) and if there would be someone there. [X] asked what would happen if her father wanted to take her to McDonald’s or somewhere like that. I suggested to her that this might be possible perhaps after the first few visits if they went well. She wanted to go to McDonald’s because of the playground there. [X] was very chatty. She talked about playing hockey.
[Y]
59) When I asked [Y] how he had felt to see his father with me, he responded, “I was a little bit comfortable”. He acknowledged he had been worried beforehand and said that it still really hurt him to see his father because what he had done when he was young was still in his mind. If the Judge decided that [Y] was to see his father at the Contact Centre, in response to my query about how this would be, [Y] nodded his head.
60) [Y] told me that he was in Year 3 at school. He said that he was progressing well at school and that he had friends there. When he was not at school in weekends, [Y] said that they cleaned up the house and that sometimes they went out.
61) If he had three wishes, [Y] said he would wish to be rich; to have a friend of his father’s (motor vehicle) and to be a policeman. When I asked [Y] what were the good things at his mother’s house, he responded that it was good that they respected him and were pleased with him for doing his jobs. He said he got money each Monday if he did his jobs. [Y] said he was hoping to buy some more Pokémon cards with his money. He told me he already had about 65 cards. [Y] told me he was in Year 3 at school.
62) If the Judge said that he had to go to a Contact Centre to see his father, [Y] told me that he would be a bit nervous but said that he would go. He speculated a good thing might be that there might be a basketball hoop there and said his mother had told him this. [Y] told me that his mother did not say much about his father.
[Z]
63) [Z] told me he did not think it would be a good idea for them to see their father again. [Z] was extremely restless and difficult to talk to. In response to my query about what he had thought about seeing his father with me, [Z] said that he had not wanted to. He chatted about what they had done with their grandmother while I was talking to their mother. [Z] told me that he had a lot of friends and was happy at school. He estimated he had 81 friends. When he is not at school, [Y] said he wanted to do the mowing but his parents would not let him as yet.
EVALUATION
64) The parties’ relationship in this matter broke down as a result of Mr Southwick’s violence. It was to his credit that he now took responsibility for this and appeared to recognise how damaging it had been. Ms Sparke was understandably very anxious about Mr Southwick spending time with their children, given her experience of Mr Southwick’s behaviour. She also realistically expressed concern as to whether Mr Southwick would sustain any visits arranged, particularly in view of the distance involved and the associated cost. I share this concern.
65) Mr Southwick was only applying to see his children two or three times a year at the local Contact Centre. It was difficult to see why this could not be arranged. After a period of supervised sessions at the contact centre, following a review, if everything was going well, Mr Southwick’s sessions could progress to him collecting the children from the Contact Centre and taking them out for the day in the local area.
66) Although the children were understandably anxious about seeing their father, they relaxed and began asking him questions about what had happened and other family members. The children are entitled to know about their past and their origins.
67) In the event that the children did not see their father, there was a risk that they would continue to demonise him. This was not healthy for their future emotional wellbeing. The children’s current allegations that they had seen their father in a variety of different coloured cars was an example of them fantasising about his presence.
68) All three children showed signs of anxiety both in their interviews and in their questionnaire responses. It would be best to proceed slowly to try to allay the children’s and their mother’s anxiety, even though Mr Southwick did not impress as likely to physically harm the children or to expose them to further violence.
RECOMMENDATIONS
69) In my opinion, contact in this matter should commence via supervised contact at the (omitted) Contact Centre and be reviewed after a year, with a view to progressing to unsupervised day time contact with changeovers at the Centre.
Oral Evidence of the Family Consultant
At the outset of her oral evidence, Counsel for the ICL took the Family Consultant (Ms S) through the Father’s history regarding domestic violence and also his use of alcohol (including recent “relapses”). It was also confirmed to her that the Father accepted the recommendations in the Family Report, namely, (summarised) for the Father to have supervised time with the children for a period of time at a contact centre, followed by a review, and if that review was positive in all relevant respects, then perhaps the Father may spend time with the child unsupervised.[39]
[39] See T 83 – 85.
It was further confirmed to the Family Consultant that the Father’s partner would have no contact with the children.
Ms S confirmed that the Father’s “general anger management” was not, or did not, form part of her assessment. But she acknowledged, now that the Father would be spending a significant period of time in (omitted) that he could undergo anger management courses in that city.[40]
[40] T 85 – 86.
Ms S said that while she was aware of the Mother’s anxiety about the children spending time with the Father, the level or nature of the anxiety did not affect her recommendations for the children to spend time with their Father. She said that she hoped that the Mother’s anxiety would settle down over time, assuming that the children’s “sessions” with the Father went well. That said, she acknowledged that the Mother’s anxiety was understandable and a “realistic concern.” Nonetheless, Ms S said that she was of the view that the recommended “time with” arrangement she proposed “should be tried.”[41]
[41] T 87.
She also felt that the children probably had a “demonised” view of their Father and that it was important for them to have a more “realistic view” of him. Indeed, she agreed with the general proposition that it could ultimately be harmful to the children to have such a distorted view about their Father, which was not properly informed by reality.[42]
[42] T 87 - 88.
Ms S confirmed that, in her view, the engagement of the children with their Father during the observation sessions recorded in her Report were a “useful experience”, where they explored with him their “feelings and memories”. She also said that even if the proposed supervised time with the Father did not go well, the children would be “no worse off” than they are at the moment, but they would at least be better informed.[43]
[43] T 88 – 89.
By reference to an earlier, shorter Report prepared by Ms D and the comments in it, Ms S said that based on what the Father said to her he was now taking more responsibility for his actions than he had done with Ms D in the s.11F report.[44]
[44] T 91 – 92.
Finally, it is apposite to record the following exchange at the end of her cross examination by Counsel for the Mother, which simply but quite firmly confirmed her view about the utility and benefit to the children of spending time with the Father, albeit initially supervised:[45]
And the other children. Thank you, ma’am. You come down on the side of it is better for them to see the father at least for a period of supervised contact?‑‑‑Yes.
How strongly do you form that view? Is it a tentative view? Is it a very strong view? Is it a finely-balanced view or is it a clear-cut view?‑‑‑Well, it’s my opinion and recommendation for the judge to consider in the overall context of – of all the evidence and everything else that’s put to him. So, you know, it’s my firm view ..... on the basis of what I was aware of and – and how people presented to me on the day of the assessment and on my belief that it would be better for the children – my opinion that it would be better, as we talked about, for the – Mr Southwick not to be demonised. I’m not sure how I would measure how strong a view it is.
[45] T 94.
Submissions filed by the Applicant Father
The self-represented Applicant Father did not file written Submissions, in part for reasons given in the course of his evidence, not least because he confirmed that he was semi-literate. He was afforded a further opportunity after the trial to provide any written submissions, after seeking assistance from the ICL, but he did not do so.[46]
[46] See T 98 – 99.
Submissions filed by the Respondent Mother
The Mother’s Submissions, filed 21st July 2017, were as follows:
Introduction
1) The mother seeks the orders to the effect that:
a) the mother have sole parental responsibility for the children
b) the children live with the mother;
c) the father spend no time with the children.
2) Notwithstanding his Initiating Application the Father’s position at hearing is that he wants to see the children “three or four times a year”. The Father seems to be seeking that at least initially that this time be professionally supervised.
3) The ICL seeks orders that the children spend time with the father four times per year supervised at (omitted) Contact Centre
4) The Mother’s position is that the Father significantly abused alcohol throughout the relationship and perpetrated physical and other family violence on her and the children. The Mother contends that the Father continues to have significant issues with violence and alcohol abuse.
5) The Mother further contends that any benefit the Children may obtain from spending time with the Father would be far outweighed by adverse consequences. The Mother further contends that attempts to ameliorate the adverse consequences the Mother and Children by engaging in counselling would be both inadequate and unreasonably onerous.
History of violence
6) The Mother’s evidence is that father perpetrated significant violence against her and the children were exposed to and at times witnessed the violence. The Mother’s evidence is supported by the COPS entry dated 10 December 2013 [Exhibit “B”]. Notwithstanding this evidence the Father whilst conceding some violence in cross examination attempted to minimise the severity of violence. The Court would be comfortable in accepting the Mother’s evidence as truthful. Further, when the Father’s belligerent demeanour under cross examination is taken into account, the Court would be comfortable in rejecting the Father’s attempts at minimisation and conclude that the Father continues to have very limited control over his anger.
7) The section 69ZW material [Exhibit “B”] shows there were a number of incidences where the police attending the Father’s residence, or other places where the Father was present, because of reports that the Father was being violent. The material (selectively) includes:
a) June 2016 report that the Father had “thrown [his girlfriend] about the room like a rag doll”;
b) January 2015 incident where the Father “punched the victim in the face” and fractured the victims jaw;
c) February 2012 incidence where the Father broke and entered premises in company and assaulted the occupant whilst the occupant was holding a four month old child. The Father is reported to have encouraged another person to stab the victim whilst he was holding the child.
8) In cross examination the Father conceded that he was violent against the Mother on at least one occasion when the children were present in the house. In cross-examination the Father argued that the information about his violence contained in the subpoenaed police material was incorrect. The Father minimised his violence and made unhelpful comments in an attempt to obfuscate the depth of his violent behaviour.
Ongoing problems with alcohol
9) On his own admission the Father has a history a long history of alcohol abuse. The Father asserts that his alcohol abuse is under control but also concedes he binges on alcohol. According to his own evidence the Father continues to relapse and when he does he will go on a binge for weeks at a time and drink anything he can get his hand on to get himself into a stupor. Based on the Father’s admissions in cross examination, and despite the Father’s assertions that his alcohol abuse is more or less under control, the Court would be satisfied in finding that the Father’s alcohol abuse is not under control and that he continues to have significant difficulties with alcohol abuse.
10) In light of the section 69ZW material and the Father’s answers and demeanour in cross examination the court would be concerned the father was not honest in either:
a) his evidence of his level of alcohol consumption both post March 2014 and currently; or
b) the level of violence both during the relationship with the mother or in his current relationship.
11) Given the Father’s demeanour in cross examination there is a significant concern that the Father would not be able to control anger when challenged.
Parental Responsibility
12) The Mother has always had primarily care of the children. The Father has spent no time with the children since the parties separated and very little engagement with them during the relationship. The Mother and Father are unable to communicate with each other in any meaningful way about anything, let alone the children.
13) In light of the history of family violence the presumption of Equal Shared Parental Responsibility under s 61DA of the Family Law Act 1975, (“the Act”) does not apply.
14) The Court should also note that at final hearing the Father did not seek parental responsibility, notwithstanding his Initiating Application.
Expert Report
15) Ms S, in her 19 May 2017 Report, recommended that the Father have supervised contact with the Children two or three times a year and that the contact commence at the (omitted) Contact Centre.
16) Ms S’s recommendation is based on her opinion that:
a) The children’s entitlement to know about their past and their origins; and
b) Risk that if the children did not see their father they would continue to demonise him.
17) Ms S’s opinion was influence by her perception that the Father’s behaviours and attitudes were somewhat changed since he separated from the Mother.
18) It is respectfully submitted that Ms S’s views are founded on a false belief that the Father has changed his ways and are therefore misguided.
Submission
19) Given the Father’s long and ongoing history of alcohol abuse, violence and lack of control over his anger the Court would reasonably find that there would be an unacceptable risk of physical and/or psychological harm to the children if the children were to spend time with the father.
20) Considering the Father’s history of violence that includes assaults on the Mother the Court should find that the Father’s past conduct has had and is likely to continue to have a deleterious impact on the Children and the Mother’s capacity to parent the children properly.
21) The Children expressed to Ms S and to the ICL that they did not want to spend time with their father. The Children’s views should be given considerable weight [s 60CC(3)(a) the Act]
22) The Mother’s evidence is that she and the Children would not cope if the Children were required to see their father. Given the history of violence and abuse the Mother’s positon is reasonable.
23) In the context of the abuse and trauma to the children and the Mother it is most likely that the Mother will be unable to encouraging a relationship between the children and the Father [s60CC(3)(c) the Act].
24) The Children will not develop a meaningful relationship with the Father if supervised time is permitted and whatever benefit they might obtain from having “recognition time” with the Father will be outweighed by the detriment to the Mother and her ability to care for the Children.
25) The suggestion that the Mother and the Children should undertake counselling so as to survive the arduous task of the Children seeing the Father is unreasonable in the circumstances particularly where such time would be of little, if any, benefit for the Children.
26) The Father pays no child support and since separation has made no attempt to make any financial contribution to assist in caring for the Children (despite giving evidence that he has been engaged in paid work). The Father’s attitude to his responsibilities has (using the ICL’s words) been “deplorable” [s 60CC(3)(i) the Act].
Conclusion
27) There will be very little, if any, benefit to the children spending supervised time with the Father three or four times a year. Any (arguable) ‘benefit’ will be outweighed by the adverse consequence to the Mother’s ability to parent and the Children. Any attempt to meliorate the adverse consequences or such time with the father by having the Mother and children attend counselling is unreasonable and onerous.
Submissions filed by the Independent Children’s Lawyer
The ICL’s submissions, filed 26th June 2017, were as follows:
Evidence
2) Both parents filed affidavits in the proceedings and gave oral evidence. Ms Sparke also relied upon affidavit evidence from her partner, Mr O as well as her mother Ms R. Mr Southwick relied upon an affidavit dated 10 February 2016 filed when he was represented but otherwise relied upon his oral evidence. A family report from Ms Sparke dated 17 August 2017 and Child Inclusive Conference memo of Consultant Ms D were tendered in the proceedings. Ms Sparke also gave oral evidence.
3) The respondent mother asserts that the Applicant father abused alcohol to a significant extent throughout the life of the relationship and perpetrated family violence upon herself and the children. The father conceded a significant history of alcohol abuse and acknowledged at least one violent incident between himself and the respondent mother, albeit that in cross-examination he tended to minimise the level violence in the event over what was contained in subpoenaed police notes concerning the incident.
4)The father gave evidence to the effect that in Feb/March 2014 he undertook a 3 week residential detox program and since that date has largely not consumed alcohol. He did acknowledge a few “relapses” saying the last was in April 2015. The report of Ms S stated the father had told her he “probably relapsed every now and again but had changed to drinking light beers” (para 9), but under cross-examination the father denied saying this. Section 69ZW material obtained from NSW police showed that between March 2015 and July 2016 there had been several incidents involving the police where the father had been noted to have consumed alcohol. The father acknowledged the further “relapses” as contained in the police material.
5) The section 69ZW material also showed several incidences [sic: “instances” or “incidents”] of police attendance for reports of family violence between the father and his current partner, including a report in June 2016 that the father had “thrown [her] about the room like a rag doll”. The father denied any violence on his part giving evidence that his partner suffered schizophrenia and bi-polar and had been violent towards him.
6) It is submitted that the court would be concerned the father was not completely forthcoming in either:
a) his evidence of his level of alcohol consumption both post March 2014 and currently; or
b) the level of violence both during the relationship with the mother or in his current relationship.
7) It is further submitted that the father’s demeanour shown during his oral evidence was such that the court would be concerned about his ability to control anger when challenged
The Legislative Pathway
Parental Responsibility
8) It is submitted that the court would be satisfied that the presumption of Equal Shared Parental Responsibility (“ESPR”) under s 61DA of the Family Law Act 1975, (“the Act”) does not apply by reason of the history of family violence. Indeed, notwithstanding order 1 of his Initiating Application, the ICL understands that the Applicant father accepts that there should not be an order for ESPR. The ICL submits that an order for sole parental responsibility in favour of the Respondent mother is appropriate.
9) Consequently, if an order for sole parental responsibility is made in favour of the Respondent mother, the section 65DAA requirement for the court to consider equal time does not apply. Again, to his credit, the Applicant father did not press the orders sought in order 2 of his Initiating Application and that neither equal time, nor “significant and substantial time” is appropriate. In the family report and in his oral evidence the father indicated that he wanted to see the children “three or four times a year”. He agreed that initially having professionally supervised time was appropriate but that eventually he would like to be able to take the children to the movies or similar activities. He did not seek overnight time at this stage.
10) Accordingly, the only issue for the court to consider is whether it is in the best interest of the children to spend limited time with their father and, if so, under what conditions.
Best Interest
11) The test for any parenting order is that the order be in the best interest of the children, but in deciding what is in the best interest of the children the court must apply the primary considerations required under section 60CC(2) of the Act, noting that greater weight must be given to the need to protect the child.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
12) The mother’s affidavit material asserts a significant history of family violence, some of which the children have been directly exposed to. While the father denied the degree and severity of violence, it is submitted that the court can be satisfied that significant violence occurred and the father has difficulty controlling his anger both when intoxicated and, at least at times, when also not intoxicated.
13) In her report of 19 May 2017 Ms S recommended that supervised contact (2 or 3 times a year) commence at the (omitted) Contact Centre and be reviewed after a year, with a view to progressing to unsupervised day time contact with changeovers at the Centre”. (report p 26, l 962-965). The father accepted these recommendations.
14) The basis for Ms S’s recommendations is contained at paragraphs 66 and 67 of her report being:
a) The children’s entitlement to know about their past and their origins; and
b) Risk that if the children did not see their father they would continue to demonise him.
15) The ICL submits that given the Applicant father’s long history of alcohol abuse, that there continues to be some degree of regular “relapses” of alcohol use”, the history of family violence with a probability of ongoing violence and his anger management difficulties, it is open to the court to find there would be an unacceptable risk of physical and/or psychological harm to the children if the children were to have time with the father other than in a professionally supervised environment.
The benefit to the child of having a meaningful relationship with both of the child’s parents
16) It is submitted that the critical element of section 60CC(2)(a) is not a need to try and provide for a “meaningful relationship” between the children and their father but rather, what is the benefit of the children having a meaningful relationship with their father? (see Mulvaney v Lane [2009] FamCAFC 76; (2009) 41 Fam LR 418. per May and Thackray JJ, at [89].)
17) The fact that the children did appear to be interested in their father during the observations part of Ms S’s report supports the apparent benefit to the children having some limited time, notwithstanding the expressed views of the children that they did not want to see their father. While this limited time is unlikely to amount to a “meaningful relationship” it does nevertheless provide a “benefit” to the children’s ongoing wellbeing through maintaining a recognition of their father and resisting the likelihood of fantasising or demonising him in the absence of any contact.
18) The ICL submits it is in the best interest of the children to have some professionally supervised time with the father up to 4 times per year.
Additional Considerations as relevant
19) The ICL submits the following considerations of section 60CC(3) have particular application to the situation in these proceedings:
a) 60CC(3)(a) - The children expressed to Ms S and to the ICL that they did not want to spend time with their father. Their wishes should to be given some weight, however, their ages and the (probable but unintentional) influence of the mother’s anxiety about the father means the weight given to their wishes is limited. In contrast to their expressed wishes, the observations of Ms S is that they showed interest in their father when they saw him. This suggests a desire on some level to “know” their father notwithstanding their expressed views.
b) 60CC(3)(c) – It was the evidence of the mother that she did not want the children to have any relationship with the father and that the children would not cope with being required to see their father. This is an entirely valid concern and in the circumstances, it may be difficult for the mother to support or encourage a relationship between he children and their father. Notwithstanding the mother’s expressed concerns, it is submitted the court can be somewhat reassured by the fact both the children and mother are able to access counselling to assist in coping with the situation.
c) 60CC(3)(e) – The evidence of the father was although he had relocated to Queensland, he was going to be in (omitted) for about 12 months because his partner was caring for her invalided father. This will enable the time recommended by Ms S to occur for a period of a year or so without difficulty.
If the father were to relocate to Queensland again there would be some doubt about his ability to exercise regular time however, he gave evidence that he would ensure that he continued to exercise such time.
d) 60CC(3)(i) - It is submitted, and indeed largely accepted by the father, that historically the father’s attitude to the responsibilities of parenthood were deplorable.
It is submitted however that the court can be satisfied that the father does have a genuine desire to have a relationship with the children and this desire is based on the children getting a benefit from the limited time he seeks to see the children
The court can be satisfied that mother has to the best of her ability sought to meet the needs of the children physically and emotionally and will continue to do so.
e) 60CC(3)(l) – The recommendations of Ms S provide that the arrangement as recommended by her would be reviewed after a period of 12 months with a view to considering the ongoing need for supervision. This is not supported by the ICL as it would, in effect, mean interim arrangements continuing which the ICL submits would not be in the best interests of the children or the parties. Instead the orders sought by the ICL provide for the parents to agree to alternative arrangements should they agree such changes are appropriate.
Submissions by the ICL concerning remaining section 60CC(3)(a) considerations are otherwise encompassed in the earlier submissions herein.
Conclusion
20) The ICL submits that at the current time, the orders most likely to meet the best interests of the children are for the children to spend time with their father up to 4 times per year at the (omitted) Contact Centre.
The ICL submits that the court makes orders as sought by the ICL.
Consideration & Disposition
Before having regard to the relevant “considerations” set out in Part VII of the Act in the light of the evidence, it is as well to set out the most basic jurisprudential touchstones in parenting matters, noting that there were significant changes to Part VII in 2012, particularly in relation to the Court’s priority to the exercise of its protective responsibility, pursuant to s.60CC(2)(b) and (2A).
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[47]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[47] Mazorski v Albright (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[48]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s.60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[48] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Against this background of stated principle, I note the following by reference to what I describe as the “legislative scaffold” in Part VII of the Act.[49]
[49] Unless otherwise specified, I will follow sequentially the order of “considerations” in s.60CC(3) without necessarily mentioning each one of them by name.
First, as a general proposition, I agree with, accept and adopt both the recommendations of the Family Consultant, and the submissions of the ICL. The recommendations and the submissions consider the circumstances of the children and propose Orders that are in the best interests of the children.
Secondly, by reference to the legislative scaffold to which I have referred, I note the following (again following consecutively, unless otherwise stated) the order in s.60CC(3).
Given the ages of the children, their “views” are not relevantly decisive, or in all the circumstances, persuasive. Indeed, if the Court had regard only to their “views” as opposed to their conduct with the Father, they would never see him. However, as remarked by Ms S, the interaction of the children with the Father was both positive, and their exploration of various memories with him was genuinely positive. Ms S stated in her oral evidence, which I accept, it is worth trying the supervised time at the contact centre. I agree.
There is no question about the closeness of the children’s relationship with their Mother. The issue is their relationship with the Father. At the moment it is at best problematic.
Regarding s.60CC(3)(c), (ca), (f) and (i), it is not difficult to conclude that the Father’s action(s), especially historically, were not child-focussed and in fact were antithetical to both the best interests of the children and not infrequently hostile, not to mention dangerous and offensive to the Mother. His extremely poor record must be seen most recently against his engagement with the Court process, his apology to the Mother (and the children), and his acceptance of the need for supervised time for “however long it takes.” In short, the Father’s past is extremely poor in relation to domestic violence and his use of alcohol. I accept his evidence of his acknowledgement of the need for his continued rehabilitation and the Court’s protection notably of the Mother and to proceed with utmost caution regarding the children.
Sub-paragraphs (d) and (e) may be treated together. I am acutely conscious of the Mother’s anxiety as well as that of [X] regarding dealings with the Father. [X]’s anxiety is more complex, not least because of her sexual assault and the doubtless acute impact on her, which may impact on her ability to trust adult males. In any event, for a significant period of time, the only time the children will spend with the Father will be supervised at the contact centre in (omitted). Thus there will not be any relevant “separation” as such of the children from the Mother. Likewise, the issue of “practical difficulty” really only arises with the Father being either in (omitted) assisting his partner care for her ailing Father, or the Father travelling from (omitted). Such large travel may impact on the situation if, for any reason, the Father is unable to attend the contact centre.
To state the obvious, as I have already many times in these reasons, the issue of family violence is a highly relevant consideration.[50] It is specifically because of it (and the Father’s history of alcohol abuse) that the only possibility for the Father to spend time with the children, for some time, is at a contact centre. I also take the Mother’s evidence to be true that the Father was never violent towards the children, accepting that they witnessed much of it directed towards the Mother.
[50] See s.60CC(3)(j).
Because I propose making Orders for the Mother to have sole parental responsibility, it is unnecessary to consider either s.61DA or s.65DAA. However, in relation to any major, long term issues, and any major medical or related issue relating to the children, the Mother is required to inform the Father either by SMS or by email.
The supervised time proposed by the Family Consultant and the ICL, shall be for 4 times per year, at the (omitted) Contact Centre, for a period of 2 years. Following that time, the remainder of the Orders as proposed by the ICL shall be made with the following further Orders, pursuant to the recommendations of Ms S.
After a period of 2 years of supervision, the ICL is requested to review the notes from the contact centre. Assuming that there is nothing untoward in those notes, and assuming that the Father has complied with the Orders to attend an anger management course and the other matters set out in the ICL’s proposed Orders, the ICL is requested to arrange (e.g. through Relationships Australia) a mediation to facilitate the children spending time with their Father. This time, absent written agreement between the parties, is only to take place in the (omitted) region.
Finally, assuming that the supervised time proceeds relatively untroubled, and that mediation also proceeds, in the absence of agreement between the parties, the Father’s time with the children shall be for a minimum of four (4) times per year, for four (4) hours, unsupervised, on each occasion in the (omitted) region.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 29th March 2018
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Family Law
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