STARCEVIC & WATSON
[2016] FamCA 391
•23 May 2016
FAMILY COURT OF AUSTRALIA
| STARCEVIC & WATSON | [2016] FamCA 391 |
| FAMILY LAW – CHILDREN – Family violence – standard of proof - definition of “unacceptable risk” - here greater weight attached s60B than s60CC of the Family Law Act 1975 (Cth) best interest of a child – best interests of the child balanced with perceived risk – mothers fear of husbands violence – where the mother has sole parental responsibility and an order that children spend no time nor communicate with father – where father disengaged from proceedings. FAMILY LAW – PROPERTY – where the father ordered to transfer his title and interest in matrimonial home – where mother indemnify the father in relation to the matrimonial home – whether it is just and equitable that the mother assume all of the parties net liability. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA(1), 61DA(2), 65DAA(1), 65DAC, 90SM(2) Evidence Act 1995 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Ms Starcevic |
| RESPONDENT: | Mr Watson |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Wright | ||||
| FILE NUMBER: | CSC | 442 | of | 2014 | |
| DATE DELIVERED: | 23 May 2016 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 12 February 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Mr Victoire |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Murray Lyons |
Orders
Parenting matters
All previous parenting orders be forthwith discharged.
B born … 2006 and C born … 2011 (“the children”) are to live with the mother.
The mother is to have sole parental responsibility for the children.
The father is to neither spend time nor communicate with the children.
The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Property
Within 28 days of these orders:
(a)The father transfer his right title and interest in D Street, E Town, to the mother; and
(b)Contemporaneously with that transfer, the mother cause the father’s name to be removed from the mortgage attached to that property.
In the event the father fails to comply with Order 6(a), then a Registrar be empowered to do all such things and sign all such documents as may be necessary to effect the transfer on behalf of the father.
Otherwise:
(a)Each party remain entitled to the assets presently in their possession or control to the exclusion of the other;
(b)The mother indemnify the father in relation to:
(i) The mortgage over the E Town property;
(ii) Any loans made to the parties by the maternal grandfather.
General
Otherwise all extant application be dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Starcevic & Watson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC442/2014
| Ms Starcevic |
Applicant
And
| Mr Watson |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By her Amended Initiating Application filed 22 May 2015 Ms Starcevic (“the mother”) seeks orders giving her sole parental responsibility for B (born in 2006 and hence presently 10 years of age) and C (born in 2011 and hence presently 4 years of age) (“the children”), who would live with her and have no contact with Mr Watson (“the father”). She justifies such orders on the basis that the father presents an unacceptable risk of harm to the children derived from his long history of domestic violence, including numerous breaches of domestic violence orders.
In the alternative, she sought orders that the father spend supervised time with the children during the first week of each school holiday periods conditional upon the father completing certain courses designed to change the father’s propensity for violence.
She also sought orders dealing with the parties’ property, and particularly sought an order that the former matrimonial home be transferred to her, and that she indemnify the father in relation to his liability under the mortgage with which the property is burdened.
The father did not deliver a Response to the mother’s Amended Initiating Application, but by his earlier Response filed 15 October 2014, he sought orders that the children spend equal time with the mother and father, and that there be orders for equal shared parental responsibility. As to property, he sought an order for sale of the former matrimonial home and for the net proceeds, after payment of the mortgage and a debt to the maternal grandfather, to be split equally between the parties. However the father has now for some period of time disengaged from the proceedings, and did not appear at the trial before me.
The Independent Children's Lawyer supported the parenting orders sought by the mother, but also indicated that he had no difficulty with there being no orders in relation to the father’s time and communication with the children, but that there be specific orders reserving the father’s right to seek time and communication pursuant to liberty to apply.
I will deal with the children’s proceedings first and then consider the appropriate division of the parties’ property.
BACKGROUND FACTS
The father
The father was born in Country T in 1978 and hence is presently 38 years of age. He told Dr F, a psychiatrist who examined him in December 2014, that his father was Country T and his mother Anglo-Saxon. He moved to Australia at the age of 7 years. He described his childhood as generally good but there was not much money in the household. He left school at the completion of year 10 and since then has engaged in what might essentially be described as manual labour. Otherwise I know little of his life until, when aged around 27 years, he met the mother in 2004 and in 2005 formed a relationship with her.
The mother
The mother was born in 1984 in Australia and hence is presently 31 years of age. She grew up in Far North Queensland. She completed schooling at 17 years of age and later obtained a Bachelor’s Degree. She was 20 years of age when in late 2004 she met the father, who later moved to Brisbane to live with her, at which time both parties identify they commenced their relationship.
The relationship
It seems likely that the mother was already pregnant with what was to prove to be B when cohabitation commenced. In October 2005, when approximately 13 weeks pregnant with B, the mother and father got into an argument about whether the mother should abort the pregnancy. The father, who was in favour on an abortion, pulled the mother over one of the kitchen stools in the house by pulling her hair, then struck her back and hit her in the stomach. This appears to be the first occasion of direct physical assault of the mother by the father.
Later when the mother was five or six months pregnant, the parties separated, as a result of what the mother says were “some violent incidents” between the parties. Then, seemingly after the parties had reconciled in February 2006, they moved from Brisbane to E Town in Queensland, so as to set up a house in preparation of the arrival of the imminent baby. However B was born six weeks prematurely before the parties had obtained accommodation, so in fact they initially resided with the maternal grandmother.
In May 2006 the parties purchased their home at D Street, in equal partnership with the maternal grandfather.
In June 2006 the father gave up his then employment, and the mother began to work four days a week to obtain some income. On 14 November 2006 she asked the father to look after B while she went to work, but he refused. An argument ensued, in which the mother asked the father to move out of the house, but he refused and got very angry. In the course of that argument he called her a “fucking slut” and said that she had slept around whilst she was pregnant with B.
In the mother’s subsequent application for domestic violence orders, the following appears as a report of the ensuing events:
[The mother] then went outside and put the child in the car, before getting in the vehicle and preparing to drive away. [The father] then came outside and started throwing clumps of small rocks and gravel at the car. [The mother] then exited the car and chased [the father] into the house and back out of the house and tried to trip him with her foot as she was very angry with him for trying to damage the car and scaring their child. [The father] has then punched [the mother] on the left cheek with a right clenched fist, whilst holding her head with his left hand. [The mother’s] head flew back as a result and she suffered immediate pain… Police could observe a large dark bruise on [the mother’s] cheek the following day. [The mother] is physically much smaller than [the father] who is of solid build.
On 22 November 2006 a Domestic Violence Order was made in which the mother was the aggrieved and the father the respondent, requiring the father to be of good behaviour and not commit domestic violence towards the mother. However on Christmas Day of 2006, during an outing with the mother and her family, the father grabbed the back of the mother’s head and slammed it into the steering wheel while she was driving. B was in the back seat and was screaming. Unsurprisingly, this cause the mother great distress, however she did not report the breach of the domestic violence order to the police.
On 28 April 2007 the mother and father were arguing again. During the course of that argument the father pushed the mother and held her to the ground. This was in front of the child who was distressed. At that moment, the mother’s sister arrived and took the child to the maternal grandfather’s business which was across from where the parties lived. The police were called and arrested the father, and charged him with a breach of the domestic violence order. After the father had been released, he returned to the maternal grandfather’s home who refused him entry. This led to a physical fight between the pair in which the maternal grandfather’s spectacles were broken, after the father had thrown the maternal grandfather to the ground and punched him in the face.
The father then moved away and went to live in G Town in the Northern Territory. In October 2007 the mother and the child also moved there, and it appears the relationship re-commenced and the parties resumed cohabitation.
In early December 2008 when the parties were at home, they were arguing because the father did not wish the mother to meet up with a girlfriend. He pushed her backwards so that she fell into a corner resulting in a large bruise from her elbow to her armpit. Police were not involved.
In September 2010 the mother told the father that she no longer wanted to be with him. It might be that at the time the father became aware that the mother had been engaging in sexual relations with other men, as that appears to be what he told Dr F. Whatever be the case, the father says that he “got drunk, took heaps of Valium” and then tried to hang himself. In consequence he was taken into a psychiatric facility for three days.
That same week the mother found out that she was pregnant with their second child, and in consequence moved back to North Queensland to be closer to her family. The father however continued to work in G Town for the next two years, seemingly on a three weeks on and one week off roster. During his week off he flew to North Queensland and spent that week with the mother and B, and later C, after she was born in 2011.
In August 2012 the father quit his job in G Town and moved back to live full time with the mother in the matrimonial home. During that time the father did not obtain alternative employment, but the mother was working full time.
Final separation occurred on 14 August 2013. In the course of an argument, the father threatened to shoot the mother in the head. This occurred in front of the children, and B said “don’t say that daddy.” The mother says that she believed that the threat was real because the father had previously shown her a sawn-off shotgun that he had hidden in the shed at the rear of the property.
The mother left the home with the children and went to live with her mother for the next nine months. She only took with her a limited amount of clothing and possessions.
On 28 August 2013 the mother sought and obtained a temporary domestic violence order from the H Town Magistrates Court. This order was continued on several occasions thereafter.
However on 1 September 2013 the father breached that domestic violence order by contacting the mother. The relevant police report records as follows:
[The father] has rung [the mother] 35 times during the night. A number of voice messages which were converted to text have been left. The nature of the voice/text messages and the volume of messages are a clear breach of the mandatory no-contact clause as set out in the current DV Order…
Later in that report it continues:
..[the mother] attended police station in a visibly distressed state, crying etc. Reporting officer has viewed on her phone, a very large amount of voice to text messages from the respondent home phone number. Voice to text indicate emotional harassment, inferring suicidal and aggressive thoughts..
This apparently led to the father being charged with contravention of the domestic violence order, and on 18 September 2013 he was dealt with for that offence in the H Town Magistrates Court, in consequence of which a conviction was recorded and he was placed on nine months’ probation.
Unfortunately however, that did not deter him from continuing to contact the mother. Part of the problem may have lain in the fact that both of the parties were living in a small town, and inadvertent contact between them was likely. Thus for instance in the mother’s trial affidavit she relates to having “bumped into” the father at Woolworths on 10 October 2013. Also during this period the mother was attempting to have the father commit to spending regular time with the children, and speaking to them over the telephone at stipulated times. However the father would use occasions when he was talking to the children on the telephone to also speak with the mother, in breach of the relevant domestic violence order, and likewise on occasions when there were changeovers of the children between the parties, would behave aggressively and argumentatively towards the mother.
The mother ultimately complained to police in relation to this, and the father was charged with numerous contraventions of domestic violence orders between 29 September 2013 and 21 October 2013. He was also charged with a breach of the Probation Order imposed on 18 September 2013. He was dealt with for these offences in the H Town Magistrates Court on 6 November 2013, in consequence of which he was convicted and fined a total of $2,000.00. However, sadly, not even this caused the father to comply with domestic violence orders, and he continued to repeatedly breach them in a variety of ways, including continuing to contact the mother by email, text and telephone, on occasions following her motor vehicle in his own, and on occasions shouting threatening statements to the mother.
Also by then a number of other features of the father’s conduct had become apparent. The first is that he used the threat – and actuality – of sending highly explicit images of the mother to other people, including an old boyfriend of hers. It also appears as though the father may have been secretly videoing the mother on occasions, including, it seems, perhaps of her having sexual relations with other men.
Further, the father commenced a campaign of using others to threaten the mother and her associates. For instance the father believed that the mother was having an affair with another man at the time, and the father’s sister then wrote to the gentleman in question by text message and said:
(Original spelling and grammar) [Mr I] if you don’t talk to me about this shit then im gonna assume its true. So u better watch ur back and sleep with one eye open cause ur a dead cunt. Go ahead and read it to [Ms Starcevic] and [Ms J] because im comin for them bitches to. U hav no idea what u hav started, im gonna get u fucked up so bad, police involved, I don’t giv a fuck. Bring it on ur a dead cunt to me.
Further, it appears as though there was some sort of website set up in which people were denigrating the mother and there were a number of aggressive and defamatory Facebook messages posted by relatives or associates of the father about the mother, including a message sent from the father’s sister to the mother on 8 November 2013.
Part of the difficulty was that the parties were obliged to negotiate in relation to the father spending time with the children. Moreover, the father would seek to see the children on short notice, or for short periods of time, which the mother disagreed with. Inevitably that led to conflict. For instance at paragraph 99 of the mother’s affidavit she says as follows:
On the 10th of January, [the father] called at 7:00pm telling me he was picking the kids up immediately. I tell him it isn’t suitable and I was cooking their dinner and suggest he have them for the remainder of the school holidays. He says I am “making him so wild he wants to break every door in the house” and he didn’t care about the DVO he was coming to pick up the kids anyway.
On 16 January the father was spending time with B. Whilst he was driving with B in his car, he saw the man he believed the mother was then in a relationship with. The father’s version contained in his affidavit filed 15 October 2014 is as follows:
I had seen [Mr I] driving in his car and followed him for about two minutes as I wanted to talk to him about sleeping with [the mother], as soon as he saw me he pulled over, got out of his car, took his shirt off and was yelling come on, I got out of the car said I just wanted to talk [Mr I], he come at me throwing punches, I then took my shirt off and started fighting. [Mr K] was in the car and witnessed [Mr I] start the fight. After the fight had finished, [B] was crying, I said daddy alright mate, drove off and explained to [B] what had happened, [B] calmed down straight away, I took him for a swim. I love my son and wish he didn’t see that.
Further hostile Facebook messages between the father’s family members and associates of the mother then followed. The mother says at paragraph 101 of her affidavit that on 24 January those messages included “saying that they would hit them in the head with a shovel and put them down a mine shaft. I believed this was a serious threat because [the father’s brother] is a miner with a mine shaft in [L Town].”
At some point in that dialogue the father’s sister contributed a comment “what they have coming is well deserved. I hate her the bad that comes to her is so deserved its gonna make me smile.”
Also on that day the father telephoned the mother’s phone over thirty times. The mother was in fear and took the children to a friend’s house for a few days.
On 27 January whilst the mother was at a car wash in her car with the children, the father pulled up behind her and asked if he could take the children. The mother refused, however the father grabbed C and put her in the front seat of car and locked the door. He then drove off. The mother says that “[B] was screaming having witnessed the whole thing…” The father then proceeded to retain C until 2 February 2014.
The father continued to attempt to telephone or email the mother. For instance on 29 January he sent her 25 emails on that day alone. On 31 January 2014 the father suggested in an email exchange with the mother that he would likely keep C and would apply for Centrelink benefits in relation to her.
At some stage which is not all together clear on the evidence, the mother again sought the assistance of police in relation to the father’s persistent breaching of the domestic violence orders.
Although at paragraph 79 of her affidavit the mother says that the father was arrested by police on 2 February 2014 for breaches of those DVOs and C was returned to her, that does not appear to be consistent with the relevant police records. Indeed the documents annexed to the mother’s affidavit suggest that the father contacted police, who advised him that the mother’s statement in relation to the breaches was still being finalised. Nothing really turns upon whether the father was arrested on that occasion or not, because it is plain that he was indeed arrested later on 21 March 2014 and charged with numerous breaches of domestic violence orders. According to the evidence[1] the events of that day are as follows:
At 9:00am on Friday the 21st of March 2014 [the mother] arrived at an appointment at [M Street, N Town]. On arrival [the mother] observed [the father] pull up in a vehicle behind her. [The father] approached [the mother] and started a conversation with [the mother]. Throughout the conversation [the mother] told [the father] to stop contacting her, to stop following her etc however [the father] continued to harass [the mother]. This conversation was recorded by [the mother].
…
Over the preceding eight hours prior to this contact [the mother] received a total of 64 phone calls on her telephone, including 38 missed calls with no caller ID, 4 missed phone calls from [the father’s] personal phone and 22 answered calls where [the mother] recorded the calls she answered and on 9 of these occasions [the father] confirming his identity. [The mother] also received a total of three voice messages where [the father] left a number of voice messages.
…
After the appointment [the mother] received a text message from [the father] depicting a noose made of rope and then a number of texts indicating self-harm and his intention to suicide.
…
Police attended [the father’s] home address after [the mother] reported the information to the [N Town] Police Station. [The father] was detained under the provisions of the Mental Health Act and taken to the [O Town] Hospital for assessment.
At approximately 10:00pm on 21 March 2014 police attended the [O Town] Hospital and arrested [the father] in relation to this and other matters.
[1]Tender bundle p 260.
In the course of being transported by police on 21 March 2014 the father behaved particularly wildly in the vehicle and effected considerable damage to it. Additional police vehicles were requested to deal with his aggression.
On 21 March 2014 the mother gave a statement to police in relation to the events of that day. Paragraph 92 of that says as follows:
Over the last eight months since separation I have lost 12 Kilograms, I have had to thrown in my job. It has been a long ongoing drama with continuous harassment and stalking and extremely scary time. I’m scared for my kids. I don’t let them play out in front of the house in fear that something will happen, because I know it has happened in the past. I am scared of [the father’s] suicidal tendencies. I am worried he will try and take me or the kids with him. I’m scared of his spontaneity; I think he is going to snap and one day I am going to wake up and he is going to have a knife above my head or a gun or one day he will walk in and take us all out. [The father] needs mental help. He needs a psychiatric assessment. Plus the fact he has breached this order over 10 times shows he show complete disregard for the law and this is not going to stop him. I am scared and physically exhausted.
Two things followed from the events of 21 March 2014. The first was that the father was then incarcerated and apparently not able to obtain bail. The second was that whilst the father was in prison, the mother cleaned out their house, and according to her affidavit “discovered a hole had been cut through the ceiling and a noose was hanging from the rafters, two besser bricks underneath it.” A photograph of that was in the mother’s affidavit at annexure 652.
The fact that the father was incarcerated did not stop the mother being harassed by other members of his family. For instance annexure 46 to the mother’s affidavit is a Facebook post made by the father’s sister, highly denigratory of the mother, including sentences such as “how do u sleep at night, knowing u put my brother away over a text message, …” The message concludes “you are a cunt.” In later posts added to this comment, it is plain that the purpose of that post was to have it brought to the attention of the mother, because the father’s sister said in a comment “I am being smart about this one, I just needed to vent and I know some crazy bitch has been showing her my shit on FB so decided if I can’t directly tell her I will tell the whole fuckn world.”
Whilst the father was in custody he wrote to his sister. For reasons which are not clear, the letter was delivered not to the sister’s address, but to the parties’ former home. On 5 April 2014 the mother checked the mail box, and found the letter, and in a police statement said:
10. When I saw the letter I became anxious immediately and was scared of what it might say. I have had a fear of [the father] asking his sister to harm me in some way.
11. During this break up [Ms P] has made numerous threats to my support network and others, that I should watch my back because she was going to get me.
12. I feel this is a possibility as [Ms P] has told me that she had previously served time in jail for forcing her way into a house and bashing a woman with a baseball bat for drug money which was owed to her and her boyfriend at the time.
13. Because of this when I saw the letter, I was afraid that the letter contained instructions to harm me in some way, or kidnap the children, so I opened it and read the letter. After reading the letter my fears were confirmed.
14. The letter began with [the father] expressing his anger towards me. The part which is of concern to me is about three quarters of the way down the first page which states “KARMA KARMA KARMA please get her.” I feel this is a threat against me an also breaches condition 1 of the order. I also think he has breached condition 3 of the order because on the bottom of the second page of the letter he has asked his sister to contact me. In this part of the letter it states: The 1 Thing I Hate!!!!!! 30 yo [Ms Starcevic], weighs about 35kg now but she not an addicted, [H Town] newest dealer. Ice. Pills. Slut Cunt. Starting to look old drawn out and ugly, Yay Karma. Has written off most her old friends. If you see her my MSG is -> FUCKING DIE CUNT!!!!!! He has then given her my home address of [Q Street, H Town] and my two contact phone numbers … and ...
15. Ever since I have opened this letter, I have been in fear for my life and my children’s safety. I am constantly looking over my shoulder and having panic attack’s thinking I have seen [the father] or his sister. I have not been sleeping, I’m stressed and have been in fear 24hrs a day.
…
It appears as though police took the view that this was a further breach of the domestic violence order, as I note that one of the charges which the father was ultimately dealt with for related to a contravention of the domestic violence order between 25 March 2014 and 6 April 2014, during which time of course the father was in custody.
At paragraph 148 and 149 of her trial affidavit the mother said as follows:
148. Two detectives attended the [detention] facility[2] to advise [the father] that I had received the letter he sent. As a result of their conversation with him, as well as their previously dealing with [the father] I was advised by police to relocate to ensure we were safe. I had also on previous occasions been advised by [H Town] Police to take the children to a Women’s Refuge for our safety because they didn’t believe they could protect us from [the father].
149. At no time did I think the children and I would be safe if we stayed in [H Town]. [The father] had continually stalked me using “find my IPhone” and had burnt many of my belongings including irreplaceable photos. I didn’t know what else he was planning on doing. Immediately after [the father] release from prison, [the father] went to my father’s [business] demanding to know where we were. My father did not disclose.
[2]This is the jail where the father was incarcerated.
The mother therefore took the opportunity, whilst the father was in prison, to relocate herself and the children in an effort to hide from him. Her present whereabouts remain secret.
On 5 May 2014 the father was dealt with by the O Town Magistrates Court for numerous breaches of domestic violence orders and a further breach of his probation order. There were also two breaches of bail. Although the precise terms of the sentence then imposed upon him are unclear, it seems as though he was sentenced to eight months imprisonment for breach of probation, 18 months’ imprisonment for nine breaches of a domestic violence order together with wilful damage to police property, and a further 12 months imprisonment for the breach of bail offences. However an appeal from that sentence was heard and allowed by the O Town District Court on 31 July 2014, and the father’s term of imprisonment was reduced to six months, of which he ultimately served only four.
Position at the time of trial
The father has not seen either child or communicated with them since sometime prior to his incarceration on 21 March 2014. After his release from custody, it appears as though he has moved from H Town to live in O Town suburb of Suburb R, and as at January 2015 told Dr F that he was just completing a course and was hopeful of working in the tourist industry. Since then there has been no updating material as to the father’s present whereabouts, employment and relationship status, and the most that I can draw from the material is that it does not appear as though he has been in any further trouble with Queensland Police. It is unclear even whether he continues to reside in the O Town district.
As I have indicated, the mother has relocated and has kept her whereabouts from the father. There has been no contact or communication whatsoever between the children and the father. She currently lives with the children in a three bedroom house with a large backyard close to the children’s school. B is doing well at school and is involved in a number of outdoor activities. The mother says she has “a part-time family focused job that allows a good balance between working life and still being home for my children. My job working [in social services] has ongoing training.” It appears as though her position involves dealing with parents in relation to their parenting of their children.
THE ISSUES
I identify the following are the issues raised by these proceedings, in that their determination is likely to substantially inform the parenting orders that in the children’s best interests. Once I have discussed relevant statutory provisions and legal principles, I will address those issues in advance of a general traverse of any residual s 60CC considerations, and then consider the appropriate parenting orders in this case.
1.What is the nature of the relationship between the children and:-
(a)The father;
(b)The mother.
2.Would the children benefit from a meaningful relationship with:
(a)The father;
(b)The mother;
and if so, how would it best be facilitated.
3.What, if any, risk to the children is posed by:
(a)The father;
(b)The mother.
4.What would be the likely effect on the children continuing to have no communication or time with the father.
5.What would be the likely effect on the mother of the children communicating or spending time with the father.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act 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. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either 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 family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[3]
[3] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law 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.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
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 persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[4]
[4] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[5]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[5] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. They are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed. The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests. Thus in Russell v Close (Unreported, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account. A re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].
It is incumbent upon the court to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk posed by the parent: see Blinko & Blinko [2015] FamCAFC 146 at [30].
WHAT IS THE NATURE OF THE RELATIONSHIP BETWEEN THE CHILDREN AND THE PARTIES
The father
The children have now neither seen nor communicated with their father for something in the order of two years. Moreover, the most recent interview of the children was by the Family Report writer, Ms S, in January 2015. At paragraph 68 of her Family Report filed 13 January 2015 Ms S said:
68. [B] described his mother as ‘usually nice; she teaches me to play the piano. Mum helps with my homework. Mum reads to me.’ [B] said he would not change anything about [the mother].
…
70. [B] spoke of his parents arguing; he remembered he would go to this grandfather’s house across the road. [B] was of the view his parents may have argued when he was either asleep or absent from home. He could not recall witnessing or hearing a parent argue with another person.
…
72. When given the hypothetical scenario, [B] nominated his parents and [C] (sic) as the three people he would most like to live with on an uninhabited island.
73. When offered three hypothetical wishes, [B] wanted (1) to live with dad and mum; to live with the whole family back in [H Town], (2) to have more friends and (3) to have even more friends.
Later Ms S noted “when canvassed about his future living arrangements, B said “I want to see dad every weekend.” If he could not spend time with his father every weekend, B expressed a preference for alternate weekends and on a Wednesday. However Ms S went on to say that because of his age, “significant weight need not be placed on his expressed wishes.”
C was not interviewed by Ms S given her age.
Obviously at least a little over a year ago B still had sufficient good memories of his father to wish to have him continue to be involved in his life. It is to be expected that since then his memory of his father is likely to have somewhat faded, but there is no reason to think that he would have forgotten him entirely. Plainly however, he has a clear recall not only of the good aspects of his relationship with his father, but also of the considerable arguments and domestic violence which he witnessed and otherwise experienced.
As to C, it is unlikely that she has much, if any, memory of her father.
The mother told Ms S “[B] loves his dad; he has many nice memories and many not so nice memories.” She later said “[B] does not ask much about his father.” She also said in relation to C “naturally she still misses dad; [C] loves her dad.”
The mother
The evidence demonstrates that there is a strong and loving relationship between the mother and both of the children.
WOULD THE CHILDREN BENEFIT FROM A MEANINGFUL RELATIONSHIP WITH BOTH PARENTS
The father
In the course of expressing his opinion in relation to the father’s psychiatric health, Dr F said as follows:
I am inclined to accept that if it were possible to establish a reasonable and safe way to re-establish a relationship with the children, [the father] may have quite a fair amount to offer.
Ms S, in her updated Family Report filed 11 March 2015 had a similar view where at paragraph 14 she said “having interviewed [the mother] [the father] and the older child [B], the writer is of the opinion that [the father] has strengths to offer [B] and [C].” At paragraph 24 she said that she saw “merit in the children being the given the opportunity to have a meaningful relationship with [the father].”
Perhaps a little unusually for an undefended hearing, Ms S gave some oral evidence before me. She was asked the likely effects on children of having a disconnected father. She said greater impact was likely to be experienced by male children, and the absence of a father in their life can reflect both in their academic and social performance. She said that it can lower the child’s self-esteem, and in the case of B, who she assessed as being introverted, if he were to suffer from low self-esteem, it could cause him to become even more socially isolated than he would otherwise be.
However Ms S also said that this is not a situation where the children could immediately commence spending time with the father, given the lapse since they last had any communication with him. She thought that as a precondition to the children spending time with the father again, he should be required to undertake certain courses which she recommended, and further the mother and the children would need to also participate in counselling with a view to the re-establishment of the father/child relationship. It can therefore be seen that, whatever benefits the children might obtain from the relationship with their father, there are a number of steps which would need to be undertaken before they could be enjoyed again.
Notwithstanding that, I am satisfied that both children would indeed benefit from having a meaningful relationship with their father, in the sense that they both appear to feel love for him at least as recently as January 2015, and no doubt a knowledge of their father would be of assistance to them in formulating their ultimate adolescent and adult identities.
However plainly the father has a poor history of domestic violence and an extremely poor history of adhering to conditions which have been imposed upon him in relation to interacting with the mother. It may fairly be said that he paid absolutely no regard whatsoever to the domestic violence orders which bound him. Moreover, he appears to have ready recourse to violence as a means of expressing himself and settling disagreements. It is not only in his relationship with the mother that he has been domestically violent; he was domestically violent to his previous partner as well. Further, he was physically violent with the maternal grandfather and with the person who he believed to be the mother’s new partner. Moreover his sister appears to have regular recourse to threats of violence, and on the mother’s evidence, has assaulted another woman with a baseball bat.
If the father were to bring any meaningful benefit to the children from a relationship with them, he would need to abandon his violent and disrespectful ways, and moreover not expose the children to environments or persons prone to, or promoting, violence and disrespect.
As to this, the father told both Ms S and Dr F that he had “learned his lesson” consequent upon incarceration for domestic violence order breaches. However Dr F correctly identified that “it has only been some five months or so since he was released from prison and we simply do not know whether he has learned his lesson and/or whether he will/would behave appropriately in the future. These are always difficult matters for a court.”
At paragraph 58 of her first Family Report, Ms S noted as follows:
58. When reflecting on his adverse behaviour that resulted in Domestic Violence Orders and repeated breaching of the Orders culminating in a prison sentence [the father] pointed out ‘I was wrapped up in [Ms Starcevic]. I was continually being told of another infidelity with my friends. There was a lot of anger. Throughout our nine year relationship I thought [Ms Starcevic] loved me. After separation I felt I did not know her. A lot of the time I did question [Ms Starcevic] about affairs but she would reassure me she was faithful.’ [The father] admitted ‘I did hold her down; I was never physical. I never punched her. [Ms Starcevic] can be pretty physical.’ He also admitted he has harassed and threatened [the mother]. According to [the father], ‘prior to jail thoughts of [Ms Starcevic] was consuming me.’ He said post prison ‘I realised I have no feelings for [Ms Starcevic]. I know I could not go back [reconcile]. I’m always thinking of the kids; [Ms Starcevic] is no longer part of my life. I no longer want her part of my life. I’m over seeking reconciliation.’
She returned to this theme at paragraph 78 where she said “at interview, [the father] associated some of his inappropriate behaviour with his feelings of rejection, intense jealousy and humiliation. It is not uncommon for such feelings to fuel domestic violence.”
There are five aspects of this part of her report which cause me some concern. The first is that the father does not admit to having ever punched the mother. I am well satisfied that he has indeed punched her on at least one occasion.
The second matter is that, in a sense, he appears to blame the mother for his domestic violence, based upon her unfaithfulness to him and his jealousy. Indeed he appears to be trying to justify his conduct by reference to some fault on the part of the mother. Certainly I do not read his discussion with Ms S as suggesting that he was remorseful.
Thirdly, he does not express any need for assistance in managing his anger and propensity for violence. Fourthly, he does not express any insight into the likely effects of his conduct upon the children. Finally, I certainly do not read those statements as some renunciation of his past ways or an indication that he would not likely respond that way again in similar circumstances in the future.
In her report Ms S strongly recommended that the father undertake certain counselling courses. There is no evidence that he has done so. There is no evidence that he has indicated that he would be prepared to.
Unfortunately the inference which I draw from all of that – accepting that the father did not participate in the trial before me – is that there is a strong prospect that the children, in experiencing a relationship with the father, would again be exposed to violence and the father is unlikely to respect orders where they conflict with his wishes or feelings.
All of this substantially erodes what benefit the children might otherwise obtain from a meaningful relationship with their father.
The mother
There is no doubt that the children will benefit from a meaningful relationship with the mother.
WHAT RISK IS POSED TO THE CHILDREN BY THE PARENTS
The father
It is not suggested that the father is a direct risk of physical harm to the children by way of excessive physical discipline or other like assault. Rather the risk which the father is said to pose is twofold. The first is further exposure of the children to domestic violence or other violent conduct, and the second is the prospect that he may harm them if he himself were to again experience suicidal ideation.
I have already sufficiently discussed the father’s violent past, and the absence of any remorse or renunciation of that sort of behaviour. The effects of children being exposed to domestic violence are well known, adverse, and need no further elaboration.
As to the risk of harming the children if he himself were to feel suicidal again, it must be conceded that the father has used threats of suicide as a means of coercing the mother over some period of time, and it appears as though he indeed has taken some substantial steps towards suicide. Certainly the mother identifies some of the threats which the father made about never seeing C again, when the father withheld her from the mother, as being at least consistent with a threat to ensure that she was never returned to the mother, but that material is insufficient to persuade me that the father was then threatening to kill her.
That said, the father was assessed by Dr F as not suffering from any psychiatric disorder, although plainly the father has in the past been prone to suicidal ideation.
Whether individually or collectively, I do not assess these risks as precluding the father from having a relationship with the children per se, however it must be conceded that the risks are nonetheless real and of some substance. They are not, however, of such a magnitude that I regard them as unacceptable.
The mother
No one asserted any risk attaching to the mother. To the extent that one could conjecture such a risk, it would only be that her fear of the father has made her alienate the children from him, however the extraordinary conduct of the father is more than sufficient to justify the mother wishing to have no contact with him. The father does not respect orders, or indeed the mother, and there is no reason to think he would do so again.
EFFECT ON CHILDREN HAVING NO COMMUNICATION OR TIME WITH THE FATHER
I have sufficiently discussed this in evaluating the benefits to the children of having a meaningful relationship with their father. Undoubtedly there will be adverse consequences to the children from not knowing their father beyond some very distant childhood memory, which may impact more upon B than C, and may impact more significantly upon B rather than another boy because he is introverted. That said Ms S did acknowledge that the fact that B seems to be doing well at school might suggest that he is what she described as “outlier” in that he is not within the statistical group of boys who tend to do poorly academically if their father is estranged from them.
LIKELY EFFECT ON THE MOTHER OF THE CHILDREN COMMUNICATING OR SPENDING TIME WITH FATHER
The mother was plainly terrified of the father when she fled H Town in April 2014. She had every good reason to be. He had been violent towards her in the recent past, appeared to be obsessed with her and could not be deterred from breaching domestic violence orders, even though he had been recently sentenced by the courts for precisely those sorts of offences. Moreover he was, from jail, inciting his own sister to physically harm the mother. As noted by Dr F, the father is a large man with considerable presence. He concluded “I can well understand her being frightened of the father and could understand and would have to support her in not having contact with him at all.”
Ms S was asked in cross-examination her opinion in relation to this issue. She said that the mother need counselling to help her deal with the transition of her relationship with the father from a personal one to, in effect, a business one, of co-parenting children. She said that particularly the mother needs to be able to identify “button pushing” by the father, and counselling could assist her to identify and develop strategies for coping with his “button pushing.” However I have to observe that at this point in the evidence of Ms S, the mother became extremely upset. The prospect of her having to have any form of future relationship with the father was plainly highly distressing to her. Given his conduct, which culminated in the mother being so fearful that she went into hiding, where she remains even two years later, I am comfortably satisfied that the prospect of the children spending time with the father or communicating with him, would be one of true horror for her. She is perfectly justified in that view and response, given the father’s appalling conduct towards her over many years.
Ms S went on to say that the mother has been a strong parent, and using appropriate mechanisms of counselling could help her reduce her anxiety, such that her parenting capacity of the children would not be diminished if the father were to again have a relationship with the children. For instance she proposed that the father’s time, at least in the first instance, would be supervised at a Contact Centre, so that the mother could have no fear of either coming into contact with the father, or of him harming the children. Moreover she thought that the mother’s fears of the father finding out their location could be sufficiently accommodated by Skype sessions taking place in public spaces without any identifying characteristics. She opined that this issue was not of such a moment as to require there to be orders for no time, because the mother has demonstrated resilience in parenting in the past. She went on to say that the mother needs domestic violence counselling if she has not already undertaken it, and rejected the suggestion put to her by Mr Victoire, who appeared as counsel for the Independent Children's Lawyer, that making her support the children having a relationship with the father, would be imposing too much upon her.
Whilst I think it likely that the mother would indeed demonstrate sufficient resilience if the children were again to have a relationship with the father, I assess that she would in the process be vastly distressed and fearful again, and that inevitably would to some degree erode her capacity to parent. However I accept Ms S’s evidence that, of itself and without more, it would not preclude the children from spending time with the father again.
SECTION 60CC CONSIDERATIONS
It will be appreciated that I have addressed the primary considerations and many of the additional considerations in discussing the issues. However to the extent that there are residual matters worthy of discussion, I make the following further observations.
There is no suggestion that the father has ever contributed child support for these children.
To the extent that the children might remain permanently separated from the father, it is unlikely to affect any further change upon them from that which they have already experienced.
It would appear as though the mother has, in the past, had good communication with the paternal grandmother, but I assume that has now all but ceased. It would appear as though the children have lost their relationship with all of the paternal family.
There is practical difficulty and expense of the children spending time and communicating with the father, in that the mother no longer lives in the O Town region.
There are very real questions about the father’s capacity to provide for the emotional needs of the children, given his exposure of them in the past to both domestic violence, and physical violence with non-family members. However there is no suggestion that he would not be able to physically provide for them.
The father is of Country T heritage and there is no evidence that the mother would be able to expose them to the benefits of that heritage without the father’s assistance.
There has been extensive family violence as discussed earlier in these reasons.
It would be desirable to not expose the children to further litigation in relation to them in the future, if at all possible.
PARENTAL RESPONSIBILITY
There are reasonable grounds to believe that there has been family violence perpetrated upon the mother by the father, and hence the presumption, of equal shared parental responsibility does not apply. In any event it could not possibly be suggested that the mother, who has been the victim of protracted, repeated and severe family violence over many years – would be able to effectively negotiate with the father.
The only workable order is that the mother have sole parental responsibility for the children.
I have considered whether aspects of decision making in relation to the children’s cultural heritage might be given to the father, however absent any request on his part for that, it is difficult to see how that could ever be facilitated.
WITH WHOM SHOULD THE CHILDREN LIVE
I know nothing of the father’s present arrangements in housing, employment or relationship. He is a domestically violent man and prone to violence as a means of resolving disputes. That alone would disqualify him from being a parent with whom the children would live.
The mother is an exemplary parent, provides well for her children, and the children appear to be flourishing in her care. It is in their best interests that they remain living with her. There will therefore be an order that the children live with the mother.
TIME AND COMMUNICATION WITH THE FATHER
This is the nub of the case. As I discussed with Ms S during the course of her evidence, there are really only three options. The first is that there be a no contact order. The second is that I attempt to fashion some form of supervised contact orders which could be invoked by the father in the event that he wished to re-engage with the children, sometime in the future. The third option is to make no orders in relation to the father’s time and communication with the children, but to reserve that issue, and give the father liberty to apply on notice to the mother. The disadvantage attached to that course is that the mother would be left with the constant prospect of the father in fact invoking that liberty to apply, and the prospect that there would then be further litigation.
If I were to make an order for some species of supervised time, it would be attended by a number of imponderable difficulties. The first is that it is unclear whether the father would ever wish to invoke such a right, and if so, when he might do so. He may not choose to do so for some years, at which time, as Ms S conceded, it would likely be traumatic for the children to simply be required to attend at a Contact Centre and forced to spend time with the father with whom they effectively, by then, would have no relationship. There would plainly need to be some period of reunification counselling undertaken by the relevant parties well prior to then. Indeed that reunification counselling may indicate that reunification is not possible, and hence supervised time may never occur.
Moreover there is the difficulty that I do not even know where in the world the father is presently residing. It would be therefore difficult to select any particular Contact Centre as being the appropriate place for supervised time to take place. All of this makes it plain that, to try and fashion some orders to permit the father in the future to spend time with the children, is simply not presently possible.
Therefore the only live options are as to whether there should be an order for no time, or whether the father’s time with the children should be reserved.
The following factors weigh in favour of a no contact order:
·The father poses a risk to the children by virtue of his propensity for domestic violence and violence generally;
·The father poses some risk to the children that he may harm them, in the event that he experiences suicidal ideation whilst the children are in his care;
·The mother is likely to be substantially adversely affected by the prospect and reality of the children again communicating or spending time with the father, which is entirely justifiable given the father’s appalling conduct in the past.
On the other hand the following factors tell in favour of there being no order in relation to the father’s time and communication with the children, but reserving to him liberty to apply:
·Both children do love the father;
·The children may obtain benefits from a meaningful relationship with him, although those benefits are substantially eroded if the father does not renounce his violent ways;
·There is the prospect that the lack of a father in the children’s lives may impact upon their emotional and academic development, particularly in the case of B, although it appears as though B is performing well academically notwithstanding the absence of the father from his life.
Ultimately this case is one which is finally balanced. However I have determined that there should be an order for no time or communication between the father and the children. In addition to the above factors, I also have taken into account the fact that the father failed to appear in the trial before me and has disengaged from the proceedings absolutely now for some extensive period of time. Given his appalling conduct towards the mother over many years, she is entitled to move on with her life without the threat of further litigation from the father. The father had the opportunity, should he have wished, to litigate for his rights at this point in time, but chose not to do so. It is simply ultimately unfair on the mother to keep alive the prospect of having to again litigate with the father in relation to the children, if he changes his mind and at some time in the future wishes to re-engage with them. If he wanted to engage with the children, he should have sought to do so in the trial before me.
Although with considerable hesitation, I am nonetheless satisfied that it is in the children’s best interests that there be an order that the father neither spend time nor communicate with them.
CONCLUSION AS TO CHILDREN’S MATTERS
For these reasons there will be an order that the mother have sole parental responsibility for the children, that they live with her, and that they neither spend time nor communicate with the father.
PROPERTY PROCEEDINGS
Introduction
Again the father did not participate in the property proceedings before me. Moreover, he has never even filed a Financial Statement, so the court is entirely reliant upon the mother for any evidence as to the pool. Indeed as shall be seen, whilst there are items of property in the pool, they are considerably exceeded by the liabilities attaching to them.
Assets and liabilities
The following are the parties’ assets:
·D Street, E Town – $280,000.00;[6]
·Mother’s household contents – $800.00;
·Mother’s motor vehicle – $3,500.00;
·Mother’s superannuation – $20,000.00.
[6]I have chosen to adopt the higher figure of the real estate appraisal at annexure 61 to the mother’s trial affidavit.
Total $304,300.00
The parties’ liabilities are as follows:
·Mortgage over D Street, E Town – $287,200.00;
·Loan from maternal grandfather arising from his sale to the parties of his interest in the E Town property – $28,988.00;
·Loan from maternal grandfather to mother to pay out mortgage arrears – $15,200.00.
Total $331,388.00
Therefore the parties have residual net debt of $27,088.00.
Consideration
The mother seeks an order that the father be required to transfer the E Town property to her, but in return that she indemnify him from any liabilities attaching thereto.
I pressed the mother as to why she would wish to in fact adopt all of the debt, and ultimately her answer was that she wanted to get the value for her payment of mortgage arrears of $15,200.00, which made no sense to me. However I could well understand that the mother would wish to have nothing further to do with the father, and if there were to be residual debt held by the father, it is likely that some form of communication might be necessary.
Given that the net effect of the mother’s orders are for her to take debt rather than net assets, it is unnecessary to traverse the parties’ respective financial and non-financial contributions, or indeed to review the s 90SM(2) factors. The ultimate question for my determination is whether it is just and equitable that the mother should, in effect, assume all of the parties’ net liability whilst having the benefit of all of the parties’ assets. In the circumstances I am satisfied indeed that such an order is just and equitable, although I would have to say that in the event that the mother had sought that some of the debt remain as part of the father’s liability, such an order would have been within the ambit of the discretion.
However given the mother’s strong argument that she wants to, in effect, assume responsibility for all of the parties’ financial debts, so as to avoid having to deal with the father ever again, I am content that she do so in the unusual circumstances of this case.
I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 23 May 2016.
Associate:
Date: 23 May 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Appeal
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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