Szczepanska & Amatore
[2024] FedCFamC1F 585
•2 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Szczepanska & Amatore [2024] FedCFamC1F 585
File number(s): NCC 1438 of 2022 Judgment of: SMITH J Date of judgment: 2 September 2024 Catchwords: FAMILY LAW – CHILDREN – Final hearing – Family violence - Where parties reached consent position on the first day of trial that the child should live with the mother and the mother have sole parental responsibility – Where only outstanding issue was mother and father’s joint proposal for child’s indefinite supervised time with father – Finding that the father presents an unacceptable risk of harm to the child – Child Court Expert does not support indefinite supervised time – ICL opposes indefinite supervised time - Finding indefinite supervised time not in child’s best interests –Orders made for no time and communication with the father – subject to Birthday and Christmas Cards permitted on mother’s review –Injunctions – DCJ to be provided with Orders and Reasons indicating there is no positive finding that the child is safe in the mother’s care. Legislation: Evidence Act 1995 (Cth) Pt 4.1, s 140
Family Law Act 1975 (Cth) Pts VII, IX, XI, XV, ss 60CA, 60CC, 60G, 65AA, 68B, 68C, 91B, 102NA, 117
Cases cited: Gorman & Huffman and Anor [2016] FamCAFC 174
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 126 Date of hearing: 22–24 January 2024 Place: Newcastle Counsel for the Applicant: Mr Allen Solicitor for the Applicant: Koulouris & Associates Pty Ltd Counsel for the Respondent: Mr Juhasz Solicitor for the Respondent: Ann Legal Counsel for the Independent Children's Lawyer: Ms Kaiti Solicitor for the Independent Children's Lawyer: Nls Law ORDERS
NCC 1438 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SZCZEPANSKA
Applicant
AND: MR AMATORE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
2 SEPTEMBER 2024
BY CONSENT AND ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Discharge all extant parenting orders.
Parental responsibility
2.The applicant mother, Ms Szczepanska (born in 1990) (“the mother”) is to have sole parental responsibility for making decisions about the major long-term issues concerning the child, X (born in 2016) (“the child”), including the care, welfare and development of the child. These issues include but are not limited to the child’s: education; religious and cultural upbringing; health; name; and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, or for the parties to comply with these orders.
Live with
3.The child live with the mother.
ON A FINAL BASIS, THE COURT ORDERS THAT:
No time
4.The child will spend no time with Mr Amatore (born in 1989) (“the father”).
No direct communication
5.The child will have communication with the father, and the father will have no communication with the child, except indirect communication as specified at order 9.
Injunction
6.Pursuant to s 68B of the Family Law Act 1975 (Cth), the respondent father, Mr Amatore (born in 1989) (“the father”) be restrained from:
(a)attempting to contact or contacting X (born in 2016) (“the child”) by any means, including through a third party; and,
(b)attempting to contact or contacting Ms Szczepanska (born in 1990) (“the mother”) by any means, including through a third party; and,
(c)approaching or coming within 100 metres of any place where the mother and / or child might reside from time to time; and,
(d)approaching or coming within 100 metres of any place where the child might attend day care or school from time to time; and
(e)approaching or coming within 100 metres of any place where the child might attend after school or extra-curricular activities from time to time; and
(f)approaching or coming within 100 metres of any place where the mother might work from time to time; and,
(g)approaching, or knowingly coming within 100 metres of, the mother; and,
(h)approaching, or knowingly coming within 100 metres of, the child; and,
(i)removing the child from the care of the mother, the child’s school or any other person or place; and,
(j)responding to any email sent by the mother pursuant to order 11 below.
Except as specifically permitted by these orders below.
7.Pursuant to s 68C the injunction in Order 6 above pursuant to s 68B of the Family Law Act 1975 (Cth), is for the personal protection of Ms Szczepanska (born in 1990) and X (born in 2016).
8.If a Police Officer believes on reasonable grounds that Mr Amatore (born in 1989), at which the injunction is directed, has breached the injunction they may arrest them without warrant.
Communication via mother
9.The father is permitted to send one birthday card and one Christmas card to the child each year to an address, including a post office box, to be provided by the mother within 14 days of these orders, providing that there are no letters in such cards.
10.The mother may, but is not required to, pass the birthday and or Christmas card to the child.
Health information from mother
11.The mother may, but is not required, to provide an update of the child’s health on one occasion a year by email to the father at an email address nominated by the father, to which email the father may not reply as noted in Order 6(j) above.
School information
12.The father is at liberty to request directly from the child’s school on one occasion each year a copy of the child’s school reports and school photographs at his own cost.
13.The school may, but is not required to, provide these, providing that the mother and / or child’s address is redacted from any such documents.
14.The father is not otherwise permitted to communicate with the child’s school.
15.The mother may provide a copy of these Orders to the child’s school from time to time.
Provision of orders
16.The mother may provide a copy of these Orders to the child’s school or educational providers, medical or allied health practitioner, or other people or organisations who care for the child from time to time, for the purpose of notifying them of her sole parental responsibility and that the child is to have no contact with the father.
Explanation to child
17.The Court requests the Independent Children’s Lawyer (“ICL”) and the Court Children’s Services (“CCS”) to liaise and to arrange for these Orders to be explained to the child in an appropriate manner.
18.A copy of this Judgment be provided to CCS and to the Court Child Expert.
Department of Communities and Justice
19.A copy of these Orders and Reasons for Judgment be provided to the Department of Communities and Justice NSW and their attention drawn to paragraphs [52]-[54] of the Judgment for the purpose of their records.
Costs
20.A party, other than the ICL, who seeks a costs order shall file an Application and supporting affidavit in accordance with the Rules.
21.If the ICL seeks costs they are to notify the parties within 28 days and either provide consent orders or notify the Court for listing for mention and determination of the ICL’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
These are proceedings to determine the appropriate Parenting Orders pursuant to the Family Law Act 1975 (Cth) (“the Act”) for X (born in 2016), aged 7 (“the child”).
The applicant is Ms Szczepanska (born in 1990), aged 33 years (“the mother”). She is a stay‑at‑home mother currently studying. The child lives with the mother, her new partner Mr B and his two children C (born in 2015) aged 9, and D (born in 2017) aged 7, in a home in Suburb E. The child has a maternal half-sibling, F (born in 2007) aged 16 who spends time with them. Mr B has another child G (aged 13) who lives with G’s maternal grandparents.
The respondent is Mr Amatore (born in 1989), aged 35 years (“the father”). The father currently resides in Suburb J with his mother, Ms K, his brother, Mr L and his nephew, Mr M.
The parties met in 2009. They commenced their relationship in 2016 when they became aware of the pregnancy. The parties separated on a final basis in January 2022.
The father has not spent time with the child since interim recovery orders were made on 27 May 2022 requiring him to return the child and restraining him from spending time with the child.
The mother’s evidence was that her relationship with the father was characterised by persistent domestic violence. The evidence of the father’s family violence was overwhelming, including the father’s conviction and imprisonment for family violence offences.
On the first day of trial the parents and Independent Children’s Lawyer (“ICL”) jointly proposed, and I agreed to, consent orders (part of MFI 8) for the mother to have sole parental responsibility and for the child to live with the mother. There were also agreed consent orders for injunctions under s 68B of the Act, enforceable by an arrest order under s 68C, restraining the father from approaching within 100 metres of the mother’s and child’s home or school, removing the child from any school or residence, and, subject to any order for communication or time made by the Court, from communicating with the mother or child.
The consent orders were implicitly premised on a finding that the father presents an unacceptable risk of harm to the child, inconsistent with unsupervised time and communication. That finding was inevitable on the evidence. I also make that finding.
By consent I make the agreed orders for sole parental responsibility to the mother and for the child to live with the mother.
The sole remaining issue was the parents’ joint proposal for the child to spend indefinite supervised time with the father. The parents proposed six visits spread equally across each calendar year for two hours per visit, at the father’s cost, with a form of order terminating the visits if the father failed to attend two consecutive visits without reasonable excuse. The proposed order referred to a contact service, however, was modified to commence with a contact centre for closer monitoring and greater security.
The ICL did not consent to indefinite supervised time without an exploration of the evidence and the opinion of the Court Child Expert, who had not addressed that new proposal in the Family Report.
In opening addresses, counsel for the father raised the possibility he would seek interim rather than final orders. In closing submissions that application was formally made, to address concerns about the making of indefinite supervision orders where there had been no testing of supervised contact.
The matter proceeded to trial on the discrete issue of indefinite supervised contact, including whether there should be interim rather than final orders to allow a testing of supervised contact.
For reasons set out below, I am satisfied firstly that it is not in the child’s best interests to make an interim order for supervised time now rather than making final orders, and secondly that it is not in the child’s best interests to make final orders for indefinite supervised time.
Accordingly, I make the no-time and no-communication orders proposed by the ICL.
I make the s 68B injunctions, formulated to give effect to a no-time and no communication order and the s 68C enforcement order.
The ICL proposed that the father should be permitted to send the child birthday and Christmas cards, and to obtain certain information from the child’s school, and for the mother to provide information concerning the child’s health which she had agreed to do (MFI 9 at orders 5, 6, 8 and 9). There was no objection and I make orders along these lines, modified to ensure that they are not justiciable to avoid the risks of further litigation or use of proceedings as a means of coercive control.
BACKGROUND
Post separation in January 2022 the child remained with the mother and spent regular time with the father as agreed between them.
Later in 2022 the father retained the child in his care. This resulted in a dispute at a shopping centre where he assaulted the mother in the presence of the child.
Following this the mother received numerous abusive voice mails and hundreds of phone calls. In one voicemail message the father threatened her. She later reported the phone calls and provided copies of the voicemails to police to police. Later in 2022 the father arrived at her residence and was verbally abusive to her and her then partner, including threatening her.
The father was later charged in relation to the threats. He was aware of the charges. He elected not to appear. He was convicted in his absence whilst, in his words to the expert (at [41]) “on the run from police”. He was sentenced to imprisonment, with a non-parole period for offences committed against the mother and for breaching the terms of an apprehended violence order (“AVO”) which was in place. He was incarcerated. He was released on parole in 2023. That parole expired in 2024.
The mother filed an Initiating Application on 24 May 2022 seeking Recovery Orders after the father unilaterally retained the child earlier in 2022.
On 27 May 2022, interim orders were made that the child be returned to the mother and live with her and restraining the father from removing the child. Further orders were made requiring both parties to undertake hair follicle testing, restraining both parties from consuming illicit drugs while the child was in their care, appointing an ICL and listing the matter for interim hearing. The father has not spent time with the child since.
A Child Impact Report and then a Family Report were both prepared and released. A mandatory order was made pursuant to s 102NA of the Act. The matter transferred to Division 1 of the Court. Pursuant to s 91B of the Act the Secretary of the Department of Communities and Justice (“DCJ”) was requested to intervene but declined.
The matter was set down for final hearing commencing Monday 22 January 2024. All parties were represented including by counsel.
THE TRIAL
The parties filed court books which were marked for identification only. The mother read her trial affidavit filed 16 January 2024 and relied on her amended Initiating Application filed 30 August 2023, Notices of Child Abuse, Family violence or Risk filed 24 May 2022, and her submissions bundle (MFI 5).
The father read his trial affidavit filed 12 January 2024, and relied on his Response filed 28 September 2023, Notices of Child Abuse, Family Violence or Risk filed the same date, and submissions bundle (MFI 6).
The ICL tendered the Family Report of Dr O dated 25 July 2023 (Exhibit ICL 1), the Child Impact Report of Ms P dated 21 October 2022 (Exhibit ICL 2) and relied on a Case outline (MFI 7).
The parties’ criminal histories and the child’s counselling notes were tendered during the trial (Exhibit ICL 3).
The parties did not cross examine each other given their joint consent proposal. The mother was cross examined by the ICL, including about why she supported the order for indefinite supervision and her understanding of what obligations it placed on her.
The father was cross examined by the ICL, including about his insight into his family violence behaviours, his acceptance of responsibility for those behaviours, and any steps taken by him to address his illicit use of substances, given that he largely attributed his family violence behaviours to mental health problems caused by his substance abuse.
The expert was cross examined, primarily on the issue of long-term supervision. The expert’s consistent, and firmly stated position was that she did not consider indefinite supervision was in the child’s best interests, and further that she was not aware of any supervision centre or service who would facilitate long term supervision.
THE MOTHER
The mother gave evidence of specific instances of family violence. She said that during one incident in 2019 the father seriously injured her during an argument, that in 2020 the father assaulted her during an argument in the presence of the child, that in 2021 the father again assaulted and injured her and that later in 2021 the father attempted to attack her causing damage to her vehicle. The mother said she did not report these events to police and mislead the hospital staff about the causes of her injuries, out of fear of the father’s reaction.
In oral evidence she maintained the family violence as alleged by her. She was not directly challenged on her evidence of family violence. I accept the mother’s evidence of family violence. To the extent to which the father denied the extent of family violence in his oral evidence, I prefer the evidence of the mother to that of the father. The mother’s evidence is consistent with objective material and proved events concerning the father’s conviction. The father’s denials of family violence generally, and concessions only in respect of the matters in respect of which he was convicted, were evasive, confused and I give it little if any weight.
I am comfortably satisfied, to the standard required by s 140(2) of the Evidence Act 1995 (Cth), that the father committed the alleged long-term acts of family violence as alleged by the mother, and that his family violence behaviours were not limited to the post separation period conduct in respect of which he was convicted.
The mother said she had ongoing anxieties about the family violence, which she had previously worked through with a counsellor, and that being in court with the father at trial had caused her a level of anxiety and stress. I accept that evidence.
The mother said she supported the child spending some time with the father, despite the history of family violence and the anxiety it caused her, because she believed it was important that every child have a relationship with both parents, and that she believed the child would benefit from knowing he had a father. She also said it would help prevent the child from blaming her for not being able to see the father, an issue she said had previously occurred. I accept the mother was genuine in her evidence on this topic, and that this involved a child focussed approach which prioritised the child’s long term best interests, as the mother perceived them, over her own anxiety.
When tested on her understanding of the effect of the proposed orders the mother was of the belief that supervised time would occur in a facility and that the interactions between the father and child would be on closely monitored including being camera. When it was explained to the mother that the orders proposed by her involved time occurring through a supervision service in the community, and not at a contact centre, the mother said she was not sure she could support such an arrangement. She said she would be content with a contact centre where there was always someone present to protect the child’s physical safety and who would listen in and intervene if the father said inappropriate things to the child. She was concerned that the father might say something inappropriate to the child.
Significantly, the mother gave evidence she was not aware that she would need to comply with the orders for the child to spend time with the father even if the child expressed a strong desire not to see his father for any reason. She gave evidence that, to the contrary, if the child said he did not want to see the father, for any reason, she would not make the child go to a visit.
While the mother’s desire to have the child maintain a level of relationship with the father is well intentioned, and even admirable given the violence she has suffered, and while I do not criticise the mother or her legal representatives for supporting the proposal, the mother’s agreement to the proposal is inconsistent with her firm evidence that she would not require the child to attend if he said he did not want to, for any reason.
The making of the consent orders proposed was inconsistent with her stated position and concerningly would put her at risk of being charged with a contravention, or contempt, if the child does not want to attend, for any reason, given she will not require him to attend. In this way the mother, as the victim of significant family violence, might be tried and found guilty in this court of a contravention, or contempt, and be liable to punishment for non-compliance.
It was submitted for the mother, in response to the court raising that concern, that if the father acted inappropriately at a supervised visit and that was reported she would have a reasonable excuse in defence to a contravention application for not requiring further attendance. That is correct. However, that submission does not deal with the possibility that the child decides he does not want to attend for reasons known only to himself and does not express, in which case the mother will not require him to attend, and she will have no reasonable excuse and be potentially liable.
The risk of the mother being subject to an application for contravention and found liable is significant given her evidence. I see this as a risk to the child, given it is not known how the time will go, and given that she is the primary carer and attachment. This weighs against the application.
Much of the father’s evidence focussed on the mother’s alleged family violence, her criminal history and drug use said to adversely affect her parental capacity. It is relevant that the mother has a history of drug and driving related offences dating back to 2014. In 2015 she was also fined for drug possession. In 2022 she received a conditional release order (CRO) relating to a separate offence, whilst later in 2022 she received a further CRO due to contravening an AVO. In 2023 the mother was charged with assault but has not yet faced court in relation to this offence.
The father’s affidavit evidence was that during the parties’ relationship he observed the mother use an illicit substance, which he also used with her on occasion. He said the mother would use an illicit substance daily, often while the child was at pre-school, and would sit in her room using the substance while he looked after the child including by taking him out of the house. He said that if she did not have drugs “all hell would break loose” and she would assault him and kick him out of the house. He said she also sold drugs. He said she also drank to excess and drink and drive, including with the child in the car. He said the mother took prescription medication which she told him was for her moods.
The father also said that to the best of his knowledge the mother continues to use illicit substances and that he had been informed “by mutual friends” that the mother and her new partner use an illicit substance daily and are selling large amounts from their current address.
He gave evidence that the mother would assault him at least once a week, often during arguments over minor matters and that the child observed these interactions. He gave evidence that in 2022 the mother attended where he was staying and assaulted him. He said that when he first attempted to return the child to the mother’s care, she assaulted him including destroying his property. He said he was also aware that the mother had assaulted the paternal grandmother and had been issued with an ADVO protecting the paternal grandmother. He said that the mother had told him she had been charged with assault and had numerous ADVO’s taken out against her.
The risks the mother poses, which were many as identified by the expert, were submitted by the father in closing to go to the benefit of the child maintaining some level of knowledge of and familiarity with the father in case the mother is incarcerated, and the father becomes the only available parent.
While her presentation to me at trial was relatively good demeanour is a poor measure of honesty, and the mother’s history of drug use, past poor relationship choices and significantly her failure to undertake hair follicle testing all raise real issues in my mind about the ongoing risks the child faces in her care.
While the consent orders providing for the child to live with the mother involve an acceptance by the father and ICL that the mother does not prevent an unacceptable risk of harm to the child, that is in the context where there was no other choice.
There is clearly much of concern in the mother’s background as identified by the expert in the Family Report and reflected in my decision to request the Secretary of the Department of Communities and Justice to intervene.
I make the point that my findings in these proceedings concern the unacceptable risk to the child presented by the father. There was relatively limited exploration of the risks the child is subjected to in the mother’s household as, in the absence of DCJ, there was no other alternative available.
In these circumstances it is appropriate to note that the orders I make for the mother to exercise sole parental responsibility and for the child to live with the mother are not positive findings that she does not pose a risk, or unacceptable risk, of harm to the child.
These orders should not be taken by DCJ as presenting any impediment to their future involvement in the making decisions concerning the child’s welfare if they deem it appropriate or necessary.
THE FATHER
The father was aware of the mother’s case on family violence but elected not to address it in his affidavit. Instead, under the heading “Family Violence & Criminal History” the father gave evidence about the mother’s family violence against him and others.
In the Family Report the expert noted that:
41.In relation to the family violence charges that led to his incarceration, the father described his behaviour as “stupid” but influenced by drugs which resulted in him not thinking clearly…
The father’s written submission in relation to that evidence was that “the father has shown some insight into his perpetrating of domestic violence”. However, his threats were not merely “stupid” but family violence of the most serious kind for which he was incarcerated. Further, in blaming the drugs and saying he was “not thinking clearly” he took no personal responsibility for his violent behaviour.
The father’s oral evidence in cross examination by the ICL was an exercise in denial and deflection, with occasional admission of specific facts, such as the threats for which he was convicted, but no genuine contrition, no acknowledgement of personal responsibility and no indication that he had any real insight into why he poses an unacceptable risk to the child. His own oral evidence weighs heavily against his case.
The father’s initial oral evidence was he was the victim during the relationship and not the perpetrator of family violence. He stated that he did not have a violent past and was never physically violent, though accepted being found guilty of numerous charges and destroy/damage property. He acknowledged that he did damage property, and that this did constitute family violence, but repeatedly stated that it was in retaliation for the mother damaging his own property, which he clearly felt justified in his behaviours.
When specifically questioned he admitted to threatening the mother, and then conceded that this was family violence.
He later accepted that this behaviour needed to change and stated that he had enrolled in the men’s behaviour change program and had completed four sessions to date. No mention of this enrolment was made in his trial affidavit filed, which only contained reference to an intake conversation, an omission which the father said was a mistake. There was no corroborative evidence of his participation. He gave evidence that this was a program he asked to complete and said that it was not a condition of his parole. I note that in relation to behaviour change the expert had noted (at [55] of the Family Report) that the father’s parole requirement was to engage in a Men’s Behaviour Change program. The expert confirmed in oral evidence that the father had told her this.
Initially the father denied that the child had witnessed family violence, but later acknowledged that he would have been traumatised by an incident involving the mother and her partner at the time, a Mr Q. That was an incident in which the father attended their property and threatened them. However, the father’s oral evidence was that it was not his attendance and threats which traumatised the child, but the mother’s response to the threats.
The father’s oral evidence makes it clear that he takes no responsibility for his violent behaviours. The father blamed his family violence behaviours on drug use causing mental health issues, implicitly proceeding on the basis that he had no control over or responsibility for his drug use.
The father said that he stopped using drugs in prison, does not require rehabilitation and has no ongoing issue with drugs. The father led no independent evidence that he has addressed either his drug use or his mental health issues. Of significant concern he did not complete the court ordered hair follicle testing. He said this was due to financial difficulties. He denied having issues with drugs, though admitted to being found guilty of various drug related offences. He stated he did intend to engage in drug and alcohol counselling, though maintained that drugs were not an issue, and the purpose of any rehabilitation would merely be to demonstrate this fact.
The father’s failure to address the critical issue of his family violence in his affidavit was troubling. However, his initial denial in his oral evidence that he perpetrated family violence, his maintenance of the proposition that he was the primary victim in the relationship, his excusing of his violence conduct on the basis that he was just responding, his evidence that the child became upset when he went to the mother’s house to threaten the mother and her partner because of her and her partner’s behaviour and not because he was there threatening them, together with the totality of the evidence comfortably persuaded me that while the father is able to mouth the required words about accepting responsibility and change he thinks the court wants to hear, he has no insight into, takes no responsibility for, and has no contrition for his past family violence behaviours.
To the extent the father intermittently accepted responsibility for family violence he sought to deflect responsibility to drug use and consequent poor mental health or cognition issues while impaired by illegal drugs. He took no responsibility for his decisions to use drugs, largely denied having a problem, and has not brought any independent evidence to court to corroborate his claims that he is not using drugs. He has not taken any steps to obtain independent help to put in place measures to maintain sobriety, even if, which I find unlikely, he is presently abstinent.
In that context I find that the father presents an unacceptable risk of harm to the child of unsupervised time or communication. I find that there is no basis on which to consider that there is any real prospect that the father’s behaviours will in change in the foreseeable future.
That finding is relevant both to the father’s application for interim orders for supervised time and in the alternative for final orders for indefinite supervised time. Both applications are premised on the likelihood of the father changing his behaviours so that unsupervised time will be feasible in the longer term. I find that there is no factual basis for that premise.
To the contrary, the father’s belief that despite his admitted conduct he is not a violent person, and that he was in fact the victim in the relationship, are very strong indicators, in my view, that he is likely to continue to carry out the same behaviours in future.
THE CHILD
The child attends R School. He commenced there in Year 1 in 2023. He was said to be developing a friendship group, to play sport and to have plans to pursue sport further in 2024.
The child had a medical condition at birth. That impacted his growth leaving him with a permanent impairment. He receives government support and attends an allied health professional one per fortnight and a paediatrician twice a year. The child appears to be doing well.
In the Child Impact Report (“CIR”) Ms P described the child as “as articulate, funny and engaging” but also as “as very guarded, wary of the CCE and anxious about speaking about his family…”.
In the Family Report the expert described the child as friendly but quiet. He engaged well with the expert once comfortable and was noted to be meeting age expected developmental milestones including pen use, flexibility and balance, participation in conversation and ready separation from the mother.
When speaking with the expert both parents described the child in similar terms. The father said he was very active, happy and social and determined to be independent despite his impairment. The mother said he was very intelligent and cheeky, that he enjoyed sports and being outdoors, and enjoys recreational activities.
The mother’s evidence is that while exposed to the parental conflict the child acted in oppositional and defiant ways, lied and used bad language.
Both the child and the mother have attended upon a counsellor, Ms S, for the purpose of counselling sessions through victim’s services. The counselling began in late 2022 and initial appointment notes indicate that the child and the mother were both struggling with the child’s behaviour. The child also noted that he loved and missed his father. The mother and the child haven’t returned to counselling since late 2022 but were invited to re-engage at any point in the future.
The mother says that since being removed from the conflict this he has settled, is happy, is no longer defiant and is going well at school and socially.
The child’s statements to the counsellor that he loved and missed his father were, as was submitted for the father in closing submissions, consistent with his statement he was worried he would never see his father again, at the CIR interviews (at [11]):
11.[X] identified his House of Worries as; I will never see dad again, dad being in jail, I have seen dad do lots of thing that I am worried about, that mum will go to jail, that dad is hurting mum and that mum is hurting dad. During this conversation [X] said he ‘was not surprised that dad went to jail’, however said he did not want to speak about this. [X] also said he did not want to talk about all the ‘scary things he has seen dad do’, and also said ‘Mum went to jail and I stayed with my brother [F]’. [X] identified his House of Dreams as; Dad would be with me again.
COURT CHILD EXPERT
The Family Report dated 25 July 2023 was prepared by Court Child Expert Dr O. She held in person interviews with the parents and the child and conducted in person observations of the mother and the child. The expert made a clinical decision not to conduct an in-person observation of the father and the child due to the nature of the alleged risks, the child’s expressed hesitance and the absence of the paternal grandmother.
The parties’ histories to the expert were quite different. The father said that prior to using drugs the parties had a good relationship and shared care of the child. The mother said things were “not too bad” when the child was first born but went “pear shaped” and that the father “shunted” the child to spend time with his family.
Before giving oral evidence, the expert was provided with the mother’s Amended Initiating Application filed 30 August 2023, the father’s Response filed 28 September 2023, the parents trial affidavits, their joint proposal for indefinite supervision and the ICL’s proposal for keeping the father informed but having no time or communication with the child.
The expert said that if the Court found that the father did not in fact accept that he was a family violence perpetrator that would be a matter of significant concern. Given my findings that weighs against the parents’ proposal.
The expert said that if supervise contact commenced, and the father did not attend, and time then stopped again after a re-introduction, it would have a major negative effect on the child. Given the parties proposal for a termination clause, premised on the possibility the father will not consistently attend, that also weighs against the parents’ proposal.
On a practical level, the expert also said she was not aware of a contact centre providing the level of scrutiny and enforcement of safety the mother apparently thought would be involved, and that she was not aware of a centre taking long term supervision only arrangements in this region. This also weighs against the proposal.
In cross examination for the father the expert acknowledged the many significant inherent negatives for the child of a no-time and no communication order. She said there were many psychological risks to the child which could potentially result from the father’s permanent removal from the child’s life. These risks include deep feelings of loss, noting the child’s stated fears of not seeing the father again even in the context of his apparent trauma, the risks of long term negative impacts on the child from the child taking responsibility for and internalising fault for the loss of the relationship, feelings of abandonment, developing a poor self-concept through thinking he is not good enough for the father, including a negative self-view and low self-esteem, with possible long term negative impacts on engagement with activities and others and on his capacity to develop and maintain relationships.
Despite all these grave potential psychological risks, the expert did not support an order for long term supervised time. The expert would not recommend indefinite supervision as a long-term regime, or in the absence of the end goal of unsupervised time in which a child could maintain a meaningful relationship with a parent.
Her evidence and opinion was that indefinite supervision orders are, in social science terms, designed to be short not long term. The expert said supervised time was a mechanism to build and strengthen a relationship as part of a progression towards unsupervised time in cases in which unsupervised time was the anticipated, or likely, end result.
The expert considered that no meaningful relationship was likely to be developed through the parents’ proposal and that in her view, although the matter is ultimately one for the Court, the risks to the child of the parent’s proposal outweighed the benefits.
The expert emphasised that the likelihood of these identified long term negative risks eventuating were highly dependent on how the process of informing the child of the outcome was managed. She said the orders needed to be in explained in a way that helped minimise the risk of the child taking responsibility for the loss of the relationship.
Given that evidence I will make orders around the provision of these Reasons for Judgment to Court Children’s Services and the expert for them to liaise with the ICL as to how best to inform the child of these orders in an age-appropriate way to minimise harm.
APPLICATION FOR INTERIM ORDERS
The father’s application for interim rather than final supervision orders was foreshadowed at the start of the trial and made at the conclusion of the trial. The application is intended to address the problem with an application for indefinite supervision by allowing supervised time to start, the father to demonstrate his changed behaviours, and consideration ultimately to be given to unsupervised time.
Whilst it is not generally desirable that a final hearing should result in interim orders, there are cases where after hearing the evidence it emerges that the child’s best interests require that course of action. This is not one of them.
The father’s application for interim rather than final orders, was made on the basis that he had only been out of prison since 2023, and so had not had time to attempt to implement a system of supervised time to test the regime and determine whether there were any difficulties in gaining the child’s compliance, and that the child’s best interests would be served by testing the supervision process.
Those submissions hold little weight given the fact that the father could have made an application for supervised time to commence between 2023 and the matter being set down for Trial, or in the intervening period but had not, and the fact that the father accepted these final hearing dates without objection.
More significantly, I find there is no factual foundation in this case for the making of interim rather than final orders given my findings that the father has not accepted responsibility for his family violence behaviours or taken any steps to address his drug use or consequent mental health issues.
According, I do not consider it in the child’s best interests for there to be interim rather than final orders.
APPLICATION FOR INDEFINITE SUPERVISED TIME
The expert’s evidence was consistent with the concept of a prospective meaningful relationship as understood in this Court (McCall & Clark (2009) FLC 93-405 citing Mazorski & Albright (2007) 37 Fam LR 518) and with the guidance provided by the Full Court of this Court on the question of indefinite supervision orders (see, e.g. Gorman & Huffman and Anor [2016] FamCAFC 174 (“Gorman”), especially at [252] and [290]-[302], which discusses the history of the Full Court’s guidance on the issue of indefinite supervision.)
An order for supervised time, including for indefinite supervision, is a discretionary parenting order to be made in best interests of each child depending on the specific facts of each case. There is no absolute prohibition against the making of such an order. The failure to provide an end point for supervised time, or a review mechanism, is not of itself necessarily an error of principle. So long as it is properly considered such an order does not, of itself, necessarily give rise to an error in the exercise of discretion.
In considering whether to make an indefinite supervision order I have, despite its absence from the parents’ proposal, considered whether the inclusion of a review mechanism within the orders might address the concerns I have about making an indefinite supervision order.
Given my factual findings regarding the father’s failure to accept responsibility for his behaviours, and the lack of any real likelihood of future change, I do not consider a review mechanism would ameliorate the issues and lead to a different conclusion.
BEST INTERESTS OF THE CHILD
The paramount consideration is the child’s best interests (ss 60CA, 65AA) taking into consideration the factors set out in s 60CC.
The two primary considerations, in order of weight, are firstly the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and the benefits to a child of having a meaningful relationship with both parents.
The proposed consent orders, which also deal with parental responsibility, are designed to protect the child from the father’s family violence.
I find it is unlikely that the child will maintain a meaningful relationship through six annual visits of two hours. However, there may still be a benefit to the child in having these visits, for the reasons proposed by the parents.
I note the child’s views are that he wishes to maintain relationship with and spend time with the father, however, those views can be given limited weight given his age and the serious family violence issues in this matter.
The mother and child have a good relationship. The father and child have had a strong connection, though marred by the father’s family violence. The child appears to have ambivalence about spending time with the father and it is not clear, given the time that has elapsed, what the quality of that relationship is now.
The mother has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and to communicate with the child. The father has, through his own actions placing him in prison and then in deciding to not take any steps to seek supervised time, had limited recent involvement in these matters.
The mother has, broadly, fulfilled her obligations to maintain the child. The evidence does not indicate that the father has not.
In the long run there is likely to be a significant adverse effect on the child of a no-time and no communication order which permanently deprives him of all contact with the father. All the matters the mother raised, and which lead her to support the indefinite supervised time order, and the expert’s evidence, confirm that a no-time and no-communication order pose real and grave risks to the child’s psychological wellbeing. That is a factor which weighs in favour of an order for what was referred to in evidence as “identification time”. Those risks may be capable of amelioration if the orders are well explained to the child.
There are no issues of practical difficulty and expense of the parents’ proposed orders.
The mother has prima facie, and the father has not, shown the capacity to provide for the needs of the child, including emotional and intellectual needs, as indicated by the father’s history of family violence, and exemplified by the father’s belief that the trauma suffered by the child when watching him threaten the mother was due to the mother’s response, not his threats.
There are no other aspects of the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child or of either of the child’s parents, nor any other characteristics of the child, not dealt with already, that are relevant.
The child is not an Aboriginal child or a Torres Strait Islander child.
The mother has, prima facie, shown a good attitude to the child, and to the responsibilities of parenthood. The father, for reasons discussed above and in particular through his exposure of the child to family violence, has not.
Issues of family violence and family violence orders are discussed above.
The orders I make will be least likely to lead to the institution of further proceedings in relation to the child.
ORDERS
I will discharge all prior orders and make the consent orders for sole parental responsibility and for the child to live with the mother.
I will make orders specifying that the child shall spend no time with, and have no direct communication with, the father. I will make the agreed s 68B injunctions and modify them to make them better confirm with my no time and no communication orders, and the agreed s 68C arrest order.
In relation to the ICL’s proposal for annual birthday and Christmas cards, I will order that the father may send one per year. I will order that the mother may, but is not required, to pass these on to the child. That will be subject to the mother’s assessment of the suitability of the cards and their contents, and of their likely impact on the child from time to time. I will make this discretionary to avoid any issues that might arise, or litigation, around whether the content of the cards is appropriate, or the mother has passed them on.
Similarly, I will make an order that the mother may, but is not required to, email the father concerning the child’s health as she indicated she would. I make this discretionary, noting my concerns about s 60G of the Act and the risks of ongoing family violence and of this communication potentially providing an avenue for coercive control or further litigation.
By making these orders discretionary, it is intended to make clear to the father that there is no possibility for enquiry into compliance or attempts at enforcement, so that contravention proceedings are not available and will not be a mechanism for coercion or control. Further, it emphasises that inappropriate communications will not be passed on to the child.
In line with the ICL’s proposal, the father will be permitted to obtain the child’s school reports and photos at his own expense, so long as the addresses are redacted. That is a matter for the school, and I will not order the school, as a third party, to take action. Any school the child attends may be provided with a copy of the Orders.
I will make orders permitting the mother to provide copies of these orders to the child’s schools and health providers from time to time, or other people in whose care the child may be, for the purpose of ensuring third parties are aware that the father is not to remove the child and that if he does police should be immediately called.
I will order that a copy of the Orders and the Reasons for Judgment be provided to DCJ, for their information that this is not a positive finding concerning the mother and for their records generally, and to Court Children’s Services and the expert for their information and to allow them to liaise with the ICL to inform the child of the results of these proceedings in a child appropriate way in the hope of minimising the psychological harm to the child from these orders.
If either party seeks costs they are to file an application in accordance with the Rules.
If the ICL seeks costs they are to notify the parties of the costs orders sought and to either provide consent orders, or notify the Court for relisting for determination of the ICL’s costs in the usual way, noting the usual order is for payment of the ICL’s costs subject to Legal Aid or other relevant factors pursuant to s 117 of the Act.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 2 September 2024
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