Thompson and Edmond
[2016] FCCA 1509
•22 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THOMPSON & EDMOND | [2016] FCCA 1509 |
| Catchwords: FAMILY LAW – Parenting – unacceptable risk – parental responsibility – best interests of the child. |
| Legislation: Family Law Act 1975(Cth), Part VII Evidence Act 1995 |
| Amador & Amador [2009] FamCAFC 196 B & B (1988) FLC 91-978 Briginshaw & Briginshaw (1938) 60 CLR 336 Champness & Hanson [2009] FamCAFC 96 M & M (1988) FLC 91-979 Malburon and Anor & Waldlow [2013] FamCAFC 191 Moose & Moose [2008] FamCAFC108 Qantas Airways Limited v Gava [2008] FCR 537 |
| Applicant: | MR THOMPSON |
| Respondent: | MS EDMOND |
| File Number: | PAC 5487 of 2013 |
| Judgment of: | Judge Middleton |
| Hearing date: | 21 January 2016 |
| Date of Last Submission: | 22 January 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 22 June 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the respondent : | Mr Flaherty |
| Solicitor for the Respondent: | Markham Geikie Farrugia |
| Solicitors for the Independent Children’s Lawyer: | Mr Brown, Browns The Family Lawyers |
ORDERS
All previous parenting orders are discharged.
The children, X, born (omitted) 2008 and Y, born (omitted) 2012, (the children) live with the mother.
The mother shall have sole parental responsibility for the major long term issues for the children with such issues to include but not limited to:
(a)the child’s education;
(b)the child’s religious and cultural upbringing; and
(c)the child’s health.
Except in the event of an emergency involving the children, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)The mother shall inform the father about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing; and
(b)the mother shall give the father 14 days to respond; and
(c)the mother shall consider the father’s views/response when coming to her decision; and
(d)the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
The children spend no time with the father.
The mother and father shall:
(a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 48 hours of such change; and
(b)notify the other at least 21 days prior to relocating their residence; and
(c)inform the other as soon as is reasonably practicable of any medical emergency involving the children.
Within 14 days of receiving the same, the mother shall provide the father with a copy of any school report relating to the children.
Neither parent denigrate the other, their partners or their family to, or in front, or within hearing of, the children and shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the children and failing the third parties’ compliance with such direction shall remove the children from that environment immediately.
Neither parent shall discuss these proceedings with the children.
The mother has leave to provide a copy of the family report prepared by Ms Edmond, dated 28 March 2015 and the reasons for judgment delivered 23 June 2016 to any Counsellor the children may attend in the future.
The independent children’s lawyer is discharged.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Thompson & Edmond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
PAC 5487 of 2013
| MR THOMPSON |
Applicant
And
| MS EDMOND |
Respondent
REASONS FOR JUDGMENT
This is a dispute regarding parenting arrangements for two children: X (date of birth (omitted) 2008) and Y (date (omitted) 2012). The applicant is the father, Mr Thompson, born (omitted) 1968. The respondent is the mother, Ms Edmond, born (omitted) 1977.
The parties commenced cohabitation in November of 2000 and separated on a final basis on 6 June 2013. The initiating application was filed on 17 December 2013. An amended initiating application was filed on 26 March 2014 and the father last filed material in the court on 4 July 2014, that being his affidavit sworn on 4 July 2014.
At the time of separation the father physically assaulted the child, X, by hitting her with an open hand across the back of the head. The father had been drinking at the time. The father was charged with assault and an interim apprehended violence order was immediately put in place protecting the child and the mother. Upon being released from custody a few days later the father was then charged with a breach of the interim apprehended violence order that police had put in place following the initial incident.
Orders were made on 15 July 2014 for the children to spend time with their father at the (omitted) Children's Contact Centre once a place became available.
The first supervised contact between the children and their father occurred on 18 April 2015. As a result the children had not spent time with their father for 22 months since separation.
The mother and the children have since separation continued to live in the home formerly shared between the parents.
The issues
It is the mother’s case that the father presents an unacceptable risk of harm to the children because of the following issues:
a)the father’s alcohol dependence and abuse;
b)the father’s mental health, that being that he suffers from depression that has remained untreated;
c)the father’s poor anger management;
d)the father’s viewing of pornography;
e)X’s anxiety;
f)mother’s anxiety.
Short history of events
The father was made redundant in approximately mid-2009. At the time X was approximately six months old.
The father remained unemployed from that date until separation and, indeed, the father did not gain employment again post separation until January of 2015.
The mother worked throughout the relationship and accordingly, the father took care of the young children on a day to day basis whilst the mother worked.
The father says that when the mother returned home from work they would then share parenting duties, the mother, however, denies this and says that when she arrived home the father began drinking and paid little or no attention to his role as a parent.
It is asserted by the mother and to a degree conceded by the father, that after he lost his job he became depressed and relied more heavily on alcohol.
The mother, in her affidavit filed on 23 December 2015, says that the father began to drink heavily after he became unemployed. She says that once she came home from work he would spend the evening drinking.
It is the mother’s case that his drinking became more problematic as the years wore on prior to separation and that his alcohol abuse began to impact upon his anger management. The mother says that there were many, many violent outbursts by the father towards both her and the children. She says he would often tell them all to “fuck off” and at times he would leave the house and walk to the local hotel, The (omitted), where he would continue to drink.
The mother says that the father became increasingly aggressive towards the children, throwing things at them and smacking them often. She says that he would belittle her and the children frequently.
By early 2013 both the mother and father had discussed separation on a number of occasions.
On 5 June 2013 it is not in dispute that the father lost control and became angry with X. He said “Well, fuck you. Don’t ask me to do anything for you again” to X. X, again it is conceded, was crying very badly and trembling and at that time the father threw a bag of bread rolls at X. The father walked over to the child, continued to yell at her, calling her a stupid idiot. He then raised his right hand and hit X above her left ear with the back of his hand. The father left the house and returned a short time later whereupon he was arrested.
The evidence
The father relied on the following documents:
a)The amended initiating application, filed 26 March 2014;
b)an affidavit by himself, filed 17 December 2013, and;
c)an affidavit by himself, filed 4 July 2014.
The mother relied upon the following documents:
a)The response, filed 17 February 2014;
b)notice of child abuse, family violence or risk of family violence, filed 17 February 2014;
c)an affidavit of herself, filed 17 February 2014;
d)an affidavit of herself, filed 1 July 2014;
e)affidavit of herself, filed 30 November 2015;
f)affidavit of herself, filed 23 December 2015;
g)Case outline filed on the day of trial.
The independent children’s lawyer relied upon the following:
a)The family report of Ms L, dated 28 March 2015;
b)case summary filed on the day of final hearing.
Competing applications
The father on the first day of trial relied upon his amended initiating application.
He sought orders for equal shared parental responsibility and to spend time with the children each alternate weekend from 6 pm Friday to 6 pm Sunday, on his birthday and the children’s birthdays and for one week in the long term public school holidays each year.
The father, at the conclusion of the trial, informed the court that he consented to the orders sought by the independent children’s lawyer.
The mother sought orders pursuant to her case outline filed with the court. The orders she sought were for sole parental responsibility and that the children spend no time with their father. The mother sought an order for the issue of a passport for both children, that she have sole responsibility for decisions about where the children live from time to time, including whether within or outside of Australia and that she have sole responsibility for decisions about a change to the given names or surname of the children.
Counsel for the mother at the conclusion of the trial informed the court that the mother, by way of alternative to those orders, sought an order for ongoing supervised time.
The independent children’s lawyer sought a final order that the mother have sole parental responsibility for the children and that they live with her.
The independent children’s lawyer sought interim orders as follows:
a)That the children continue to spend time with their father at the (omitted) Contact Centre;
b)that the father undertake carbohydrate deficient transferrin test in the last week of each calendar month and provide the results to the ICL and the solicitor for the mother;
c)that the father shall undertake random CDT tests within 48 hours of being requested to do so by the ICL on no more than four occasions;
d)that the father attend upon his general practitioner for the purpose of obtaining advice as to his mental health and that he comply with any advice received;
e)that the father arrange therapy for himself with a registered psychiatrist;
f)that the father obtain a report as to his condition and progress from such registered psychologist each six months during the period of attending such therapy;
g)that the father seek assistance for depression, anger management issues, alcoholism and viewing of pornography;
h)that the mother attend upon a psychologist or counsellor for the purpose of assisting her to deal with her emotions relating to the children spending time with or having a relationship with the father;
i)that an updated family report be prepared by Ms L, such to be available at least six weeks prior to the hearing of the matter and that the matter be otherwise adjourned to a date in early 2017.
The rational underlying the competing proposals
The father says his proposal is in the best interests of the children because it will allow him to prove that he has properly dealt with the issues raised by the mother.
The mother says that the order she seeks are in the best interests of the children because the father poses an unacceptable risk due to the issues she has raised and that he has failed to address those issues appropriately or at all and it is unlikely that he will comply with any orders to treat those issues or, if he did comply with orders, that he would receive no benefit from any counselling because he does not see the need for any counselling.
The independent children’s lawyer says it is in the best interests of the children for interim orders to be made because the children, particularly X, are developing a very good relationship with their father at the contact centre and that to take the children away from the father at this stage would be devastating.
The law
Pursuant to section 60CA, I must regard the best interests of the children as a paramount consideration.
Accordingly, I must determine what is in the children’s best interests having regard to the objects and principles set out in section 60B of the Family Law Act 1975.
In determining what is in the children’s best interests I must have regard to the matters as set out in section 60CC.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
I must also make a determination in relation to parental responsibility. Section 61DA provides a presumption for equal shared parental responsibility unless the presumption does not apply or it is rebutted because it is not in the children’s best interests.
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If I make an order for equal shared parental responsibility then the provisions of section 65DAA are triggered.
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
The mother raises the issue that the father poses an unacceptable risk to the children due to the various issues previously outlined.
In B & B[1] and M & M[2] the High court unanimously determined and articulated the test to be applied in considering whether or not to grant custody or access (now living with and spending time and communicating with) under the Family Law Act in cases involving allegations of sexual abuse.
[1] (1988) FLC 91-978.
[2] (1988) FLC 91-979.
It was held that a court exercising jurisdiction under the Family Law Act would not make parenting orders granting custody or access to a parent “if that custody or access would expose the child to an unacceptable risk of sexual abuse”.[3]
[3] Page 77,081 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ
The High Court made it clear that a court hearing the case need not make a positive finding as to whether the alleged sexual abuse took place or not unless it is satisfied on the civil standard of proof with due regard to the factors in the earlier High Court decision of Briginshaw & Briginshaw[4].
[4] (1938) 60 CLR 336.
The factors set out in Briginshaw & Briginshaw[5] have been given statutory authority pursuant to section 140 of the Evidence Act 1995 Cth as follows:
[5] (1938) 60 CLR 336
140 Civil proceedings: standard of proof
(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; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
The correct approach to the standard of proof in civil proceedings therefore is that for which section 140 provides. That is, the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved and the circumstances in which it is sought to be proved.[6]
[6] Qantas Airways Limited v Gava (2008) FCR 537.
The unacceptable risk test has been applied to children’s cases and parenting orders as to where a child lives, with whom a child spends time and on what conditions and also to specific issues. It has been broadened to apply to other forms of abuse.
It is the mother’s case that the father perpetrated both family violence upon her and the children and in the presence of the children and abuse in relation to both children.
Section 4 of the Family Law Act defines abuse as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Family violence is defined in section 4AB of the Family Law Act 1975 as follows:
4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
In relation to family violence much of what the mother complains of was never reported to third parties.
In Amador & Amador[7] the Full Court said this:
“To the extent that it is submitted that the mother’s allegations of horrific domestic violence could only be accepted if objectively corroborated we do not find that any such requirement exists. Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such proposition”.[8]
[7] (2009) FamCAFC 196.
[8] Amador & Amador (2009) FamCAFC 196, [79].
Similarly, I am unaware of any authorities since 2009 which would support such a proposition.
An analysis of the evidence relating to the issues
Alcohol abuse
The mother asserts that the father drank a minimum of six standard alcoholic drinks every day of the week.
The father, in his affidavit filed 4 July 2014 at paragraph 27, says:
“During my relationship with Ms Edmond, I. generally had one longneck of beer each evening after Ms Edmond came home and I would take the dog for a walk. Sometimes I would have four cans of beer on Sunday when I was cooking the barbecue. I would also have a bit more beer on days when (omitted) played rugby league, but not always. I would try to make a carton of beer last more than two weeks and have a long neck each day”.
The father told the report writer at paragraph 27 of the report:
“He did drink as a means of coping with his depression, but not to anywhere near the extent that Ms Edmond had alleged. He would have a couple of beers at the weekend with a barbecue, and would have a few more if he was feeling depressed”.
The father told the report writer that at the moment, that being the time of the interviews in March of 2015, he drank only socially and at most he would have two beers per month.
Exhibit 4 in the proceedings, the father’s criminal history, reveals the following:
a)10 November 2000, drive with low range PCA;
b)2 December 2000, drive with low range PCA;
c)13.1.2001, drive with middle range PCA;
d)8 February 2001, drive with low range PCA;
e)7 September 2005, drive with low range PCA;
f)9 November 2005, special category, drive with special range PCA.
On 30 June 2013 the father was arrested for a breach of an apprehended violence order and at the time of his arrest he was under the influence of alcohol. On that day the father attempted to hang himself in a park near to the home in which the mother and children reside.
The family report writer made recommendations on 28 March 2015 that the father undertake carbohydrate deficient testing once per month. The father did not undertake any testing until orders were made and then when a request was made waited three weeks before undergoing the test.
In oral evidence the father admitted that he had a problem with alcohol saying:
“I suppose I did. I leaned on it a little bit harder than I should have”.
The father in his evidence initially said that he had three low range PCA offences. Under cross-examination he adopted his criminal history. It was put to him that he underestimates his drinking and plays it down and he answered, “I just forgot.”
With the greatest of respect to the father that simply is hard to accept. The father was gaoled for a period of 20 months commencing 9 November 2005. The father served some prison time until such time as his appeal was heard. It is very hard to believe that the father simply forgot about his extensive drink driving and driving whilst disqualified history.
In circumstances where the father has been found to downplay his own drinking and the independent evidence supports that he has a longstanding history of alcohol abuse, I am satisfied that the father has an issue with alcohol.
In circumstances where he was fairly put on notice that his alcohol abuse was a real issue in this matter and recommendations were made in a report that he received on 31 March 2015 and he did nothing about it I cannot be satisfied that the father has addressed this issue satisfactorily or at all.
The father says that he underwent 10 sessions with a psychologist to address his alcohol and depression.
The father concedes those sessions were court ordered and that he did not do it voluntarily.
The father admitted that he did not believe he needed to undertake those sessions with the psychologist and he repeatedly stated that at no time did he have an issue with alcohol.
Having regard to the many occasions in which the father has at best minimised his behaviour and at worst deliberately misled the court to the extent that he and the mother’s evidence contradict each other, I must prefer the evidence of the mother as I found her to be a credible witness who provided forthright and honest answers whilst being cross-examined.
Family violence
The trial judge in T & N (2003) FLC 93-172 said:
“It also hardly needs to be said that violent and abusive conduct by one parent against the other is highly detrimental to the wellbeing of children, whether they are witness to it or not. If they do witness it, anyone can see that such conduct can only be a traumatic experience for them. There is an abundance of research from social scientists about the highly detrimental effect upon young children on exposure to violence and the serious consequences such experiences have for their personality formation. They are terrified and simultaneously come to accept it is an expected part of life; they may learn violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure, and; they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence…one could go on to the impact upon their ability to form attachments, and so on”.
The abundance of research referred to by his Honour in the above passage only continues to grow. In my view, exposure to family violence is extremely dangerous to children and in circumstances where findings are made that a parent has been a perpetrator of family violence courts should take all steps necessary to protect that child or children from any future exposure to the risk.
The mother’s evidence is that the father’s aggression and as a consequence, the level of family violence steadily increased over the years of the relationship but increased significantly upon the father being made redundant.
The father conceded that he relied on alcohol too much towards the end of the relationship.
The father minimised his violence, both in his affidavit and at interview with the family report writer. I do not accept the father’s evidence.
The father was charged with common assault upon his daughter, X. He was ordered to undertake 50 hours of community service for that offence.
The father was charged with stalk/intimidate intend fear physical harm (domestic) on 6 June 2013 and was sentenced to undertake 75 hours of community service.
Furthermore, on 6 June 2013 the father was charged with a contravention of an apprehended violence order and was ordered to comply with 12 months supervision from New South Wales Probation Service.
The father was charged on 22 June 2013 for a further contravention of an apprehended violence order and, again, on 30 June 2013 for a contravention of an apprehended violence order. For those latter two charges he was, again, ordered to undertake 12 months supervision from New South Wales Probation Service.
The father admitted to striking the child. He said he just snapped. He admitted that the child was very upset and that he told the child “Fuck you. Don’t ask me for any help in the future.”
The father admitted to throwing a bag of bread rolls at the child and that he told the mother to “fuck off” in the presence of the child.
The father was asked why he would “crack the shits” and he replied: “I don’t know. Pressure would build up and I would blow my stack.”
The father admitted to hitting the children “probably once a week”.
The mother says that the father would often be very angry and would swear and yell at her and the children.
The mother says in her affidavit, filed 23 December 2015, that the father would be so angry that he would hit the child around the head, it is noted that he was charged with an assault for hitting the child around the head and she says that she had witnessed him do this approximately 15 times.
The mother says that she wanted to leave the father many times but she had nowhere to go and she was scared how he might react.
The mother says that on one occasion when Y was one year old the father yelled at him and smacked him very hard on the back, she saw the father then pick Y up, place him in the cot, yell at him: “I’ll give you something to cry about” and smacked him another two times, leaving Y screaming.
I accept the mother’s evidence.
This is a serious allegation and one that is made in the context of a parenting dispute. Having regard to section 140 of the Evidence Act there is a high standard of proof required.
In circumstances where I have found the mother to be an honest and credible witness and the father to have either minimised his actions or deliberately misled the court I, once again, must prefer the evidence of the mother over that of the father.
The father admits to the assault upon X at the time of separation. The father’s criminal history at around the time of separation not only records that offence but it records offences of stalk and intimidation and breaches of apprehended violence orders.
In all of the circumstances I am satisfied to the requisite standard that the father committed family violence and that the children were exposed to the family violence, both directly and indirectly.
In circumstances where the father has not addressed his anger or, indeed, the family violence that he has committed, save for 10 sessions with a psychologist after being ordered to attend upon same by a State Magistrate, I am satisfied that the father continues to pose an unacceptable risk of harm to these children.
Depression
The father gave evidence that he began to feel depressed from approximately 2006. He said in his oral evidence that his depression became worse in 2009 and continued to deteriorate.
At the time of separation the father was suicidal and planned to hang himself in a tree close to where the mother and children resided.
The father was transported from that location by police to the (omitted) Hospital Mental Health Unit where he stayed for a period of four days.
The father was at that time awaiting sentence for one breach of an apprehended violence order. During the adjourned period the father says in his affidavit, filed 17 December 2013, at paragraph 21:
“I was advised by my Legal Aid criminal law solicitor to attend a merit program in which I was accepted and commenced on 25 June 2013”.
At paragraph 22 of the same affidavit he says:
“On my own initiative I also enrolled in and on 1 July 2013 began attending an anger management class termed DEFUSE run by Catholic Care”.
In his oral evidence the father conceded that he undertook 10 sessions in total for his alcohol and depression.
As previously outlined he didn’t believe that he needed such counselling.
The father admitted that he stopped the counselling so that he could get to court quicker and by that he was referring to the criminal proceedings.
In 2014 the father was referred to a Ms T under a mental health treatment plan for depression and adjustment disorder.
The father admitted that he was prescribed anti-depressants but that he decided to stop taking those anti-depressants two months after receiving that prescription in 2013.
The father admitted that he has received no further assistance for his depression since that time.
The father further agreed that it is a well-known fact that people who suffer from depression should not drink alcohol to excess.
In circumstances where the evidence clearly shows that the father has not addressed his alcohol abuse nor his depression satisfactorily, I am satisfied that the children are at risk in the unsupervised care of the father.
Pornography
The father in his oral evidence whilst being cross-examined by the mother’s barrister admitted to having downloaded 1000 pornographic images.
When later cross-examined by the independent children’s lawyer the father admitted to downloading 6998 pornographic images.
This is just one other example of how the father minimised his behaviour or attempted to mislead the court.
The father in his oral evidence admitted that he saved those images on a computer used by his daughter, X. He accepted that she could have seen the images. He admitted that he was very careless about his use of pornography.
I was left with the impression, having heard the father’s evidence, that he really could not see the potential risk to his children of being exposed to pornographic images.
In those circumstances I could not be satisfied that the father would take appropriate safe measures to prevent the children from being exposed to pornographic images if they were left in the unsupervised care of the father.
X’s anxiety
Exhibit 5 to these proceedings were the notes of a Ms L, a registered psychologist treating X.
Handwritten notes on 22 August 2015 reveal that the child told the note taker that if Ms W, the supervisor, is not there she cries. The notes say that the child said, “I would not like to stay with Dad because Dad could do bad things.” And I note “yell or smack me”.
In the initial report, dated 26 May 2015, the psychologist says that the child is worried that something could happen to her mother because her father was very angry and screaming at her mother when she dropped bread rolls on the floor.
The results obtained via psychological testing and observed symptoms indicated that X had anxiety and moderate stress levels. It was further suggested that X would benefit from cognitive behavioural therapy, anxiety management, motivational counselling, management and supportive counselling in order to reduce her anxiety and depression and improve her life.
By way of letter dated June 15 2015 Ms L states:
“It is recommended that Ms Thompson remain with her mother as seeing her father increases her anxiety and depression”.
In relation to those notes it must be noted that Ms L at no stage contacted the father and was reliant upon the history provided by the mother.
Notwithstanding that, it is noted that the child remembered the father’s violent outbursts and in particular, the violent outburst on the day when he threw bread rolls.
The supervised contact centre's notes, exhibit 2 in these proceedings, show that both children have continued to develop a good relationship with their father.
The notes reveal that initially, that is, back in April of 2015, X was very teary and anxious and did not want to leave her mother. The notes reveal that as time progressed both children became more settled.
On 3 October 2015 it was noted that X was more affectionate and demonstrative than previously noticed.
On 17 October 2015, the supervisor was asked to go and play with Y, by X, so that X could be alone with her father.
Furthermore, as time continued, both children were happy to hug and kiss their father and it was noticed that the father was acting appropriately at all times, very caring and considerate of the children's needs.
The last contact notes available to the court at the time of trial were those of 9 January 2016. On that occasion, it was noted that the father had difficulty setting boundaries and settling the children's behaviour and that X had shown a poor attitude towards her father on that occasion.
It is obvious from comments reported to have been made to the supervisor at various times throughout the supervised contact periods that X has been exposed to the parent's conflict and is fully aware of her mother's own anxiety and fears around her children spending time with the father.
The report writer, in her oral evidence, indicated that in her opinion the contact centre notes are very positive. The overall tone is that over time there has been a gradual improvement in the visits.
Ms L noted that the father still needs assistance and perhaps a push to perform some of his parental roles.
Ms L indicated that X is a very intelligent child in her view and that she appears to be a child who is in conflict.
In Ms L's opinion, the child's conflict comes about as a result of the mother's overwhelming sense of anxiety.[9]
[9] Paragraph 20 of the family report
It is Ms L's opinion that the mother has very serious and credible reasons for her anxiety and that her anxiety is very genuine and that she will struggle to change her mind.
Ms L gave evidence that, in her opinion, the mother is not a "disruptive gatekeeper" but that she has real, credible and serious concerns for the welfare of her children if they are exposed to their father.
In those circumstances, it was quite apparent to me that the child's anxiety and the mother's anxiety are very interrelated.
Ms L was of the opinion that the mother and by extension, X, would be assisted in relieving their anxieties if the father addressed his issues relating to alcohol, domestic violence/anger management, depression and the use of pornography.
It is clear on any view of the evidence that it is now up to the father, if he is to have any time with his children, that he address all of those issues and provide proof of same.
Ms L was of the opinion that a responsible parent would go away and do what was recommended rather than wait until the 11th hour. She said the father's behaviour is consistent with the subpoena material and the narrative of the father is that he will act if pushed but not take the steps himself.
Is the father's behaviour and/or approach to parenting the children likely to change in the foreseeable future?
As previously stated, the father has been on notice for a considerable period of time (noting that these proceedings were responded to by the mother setting out the allegations on 17 February 2014) that he needed to address a number of serious issues.
The evidence reveals that the father has not addressed these issues satisfactorily or at all.
The father failed to comply with numerous court orders relating to his filing of material.
The father's criminal history reveals numerous offences for driving whilst disqualified, failing to appear at court and contraventions of apprehended violence orders.
It is clear that the father is not concerned and will not comply with orders made by courts.
Ms L, in her oral evidence and in answer to a question put to her said:
“It is likely that a person will not comply with court orders if they have shown a history of failing to comply with orders particularly in circumstances where a court has put them on notice that they must comply”.
I am left with the view that the father does not take the allegations seriously. He will not address these issues voluntarily and he may not indeed address the issues even by court order.
I cannot be satisfied that the father will change his approach to parenting the children and/or his behaviour in the future in those circumstances.
The family consultant
The family report writer in her oral evidence provided the following:
“(a) I think it is in the children's best interest for them to continue to have a relationship with the father;
(b) To take the father away from the children now would be devastating for them. The children are getting incredible value from their time at the contact centre;
(c) The emotional harm if it were stopped now would be significant”.
I must consider and assess that evidence in circumstances where I have found that these children have been exposed to family violence and abuse at the hands of their father and that the father's behaviour and/or approach to parenting his children is unlikely to change in the foreseeable future.
I have already set out the very serious real dangers that flow when children have been exposed to family violence and abuse.
I have already set out that X is a conflicted child suffering from anxiety.
If I make orders that the children spend time with their father at the Contact Centre then X, whilst not being exposed to family violence and abuse at the hands of her father there, must interact with a person who has perpetrated serious violence upon her, her brother and her mother. I cannot disregard the potential for ongoing serious psychological harm to X in those circumstances.
The legislation
The gravamen of this case is really the approach I must take to the competing primary considerations as set out in section 60CC(2).
Section 60CC(2A) says:
“In applying the consideration set out in subsection 2, the court is to give greater weight to the consideration set out in paragraph 2(b)”.
Having regard to the evidence as set out above and indeed to findings that I have made that the father poses an unacceptable risk to the children, I am of the view that these children need to be protected from physical and psychological harm.
The relevant additional considerations
The nature of the child's relationship with each parent and any other person (including any grandparent or brother or other relative of the child)
There is really no issue that the children have a primary attachment to their mother and that they have a secure loving bond with her.
The evidence reveals that the children have begun to develop a relationship with their father through the time they have spent at the contact centre.
The Contact Centre notes (exhibit 2 in these proceedings), reveal however that the relationship is still very much developing and that the father struggles to set boundaries and control the behaviour of the children.
The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about the major long-term issues in relation to the child, to spend time with the child and to communicate with the child
Prior to separation, it was the situation where the mother and father conjointly made decisions relating to their children.
Since separation, it has been the mother who has made the decisions about the long-term issues in relation to the children.
It is not in contest that the father spent no time and had no involvement with the children from 6 June 2013 until the commencement of his time at the contact centre on 18 April 2015 but for three brief periods of time in the intervening period.
The extent to which each of the child's parents has fulfilled, or failed to fulfil the parent's obligations to maintain the child
The mother has been responsible for the financial costs of maintaining the children since separation.
The father does not pay child support. The father commenced employment in January of 2015. He admits that he has not paid any child support and that he did not inform the child support agency of his employment until such time that the child support agency got in touch with him in December of 2015.
The father is currently assessed to pay $36 a month towards the maintenance of the children and there is no evidence that he pays anything more than that.
In answer to a question why he was not paying child support after gaining work, the father stated:
“I didn't know the process and I wasn't seeing the kids”.
In those circumstances I am satisfied that the father is deliberately failing to fulfil his obligation to maintain his children.
The likely effect of any changes in the child's circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person
This is a significant issue in this case. The family consultant referred to above clearly outlines there is a potential for these children to be devastated and suffer emotional harm if the time they spend with their father is stopped.
The mother has taken steps to address the emotional harm that X has suffered in the past.
I am satisfied on the evidence that the mother will continue to take all steps necessary to ensure that the children are appropriately supported in the event that they display signs of suffering psychological harm as a result of the orders I make.
I must weigh this potential harm against the harm of being continually exposed to their father who has committed serious family violence against them and their mother.
The capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs
The evidence satisfies me that the mother, notwithstanding her own anxiety, has the capacity to provide for the children's needs including their emotional intellectual needs.
Conversely, the evidence also satisfies me that the father has very limited capacity to provide for the children's needs including their emotional intellectual needs.
Until such time as the father addresses his issues, it is unlikely in the foreseeable future that he will have the capacity to meet the children's needs.
The attitude to the children and to the responsibilities of parent demonstrated by each of the child's parents
This consideration is particularly relevant to these children. The mother has acted protectively after being exposed to ongoing family violence over a number of years and witnessing her children being assaulted by the father.
The mother has also engaged a psychologist to assist X cope with her ongoing anxiety.
In doing so, the mother has demonstrated a very positive attitude towards her responsibilities of parenthood.
The father has been a perpetrator of family violence for many years. The father has not addressed his alcohol abuse, the family violence, his depression or the use of pornography. In circumstances where it has been very clear to the father that not only were those issues raised but that the court would protect children from being exposed to those issues, the father, through his lack of addressing those issues, has shown an extremely poor attitude to the children and to the responsibilities of parenthood.
Any family violence involving the child or member of the child's family
This aspect of the additional considerations has been considered above. I have found that the father committed family violence and that the family violence was committed upon the mother and both of the children.
The significance of family violence in the context of this relationship cannot be understated. It has impacted upon the mother's views in relation to her perceptions as to appropriate time between the children and their father and it has further impacted upon her views in relation to her ability to have contact with and communicate with the father.
The exposure to family violence has caused both the mother and the child X to suffer ongoing anxiety. As previously stated, their anxieties are now intertwined. It is the opinion of the family report writer that the mother and, by extension, the child's anxieties would be assisted if the father addressed the issues that have been raised in this case.
The father needs to properly address these issues if he is to have a relationship with his children.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
There are two matters to consider in relation to this area. Firstly, whether I should make interim orders as urged by the independent children's lawyer.
The formulation of the independent children's lawyer is based on the desire that the father will, by order of the court, address all of the outstanding issues referred to in this matter. It presupposes that the father will not only comply with the order but that in doing so he will satisfactorily treat his depression, his anger management, his use of pornography and his alcohol abuse.
I am not satisfied the father will comply with my orders. It is difficult to imagine that he will satisfactorily address all of the issues in circumstances where he admits that he does not believe he has any issue to deal with. He will need to provide appropriate evidence that he has satisfactorily addressed these issues.
If I make orders on an interim basis, these children will be exposed to ongoing litigation and therefore ongoing conflict and potentially be required to attend upon a family consultant in the future to once again revisit their relationship with their parents.
In circumstances where X is already displaying signs of anxiety and conflict, I am of the view that it is not in her best interests to continue the litigation.
Having regard to the finding that the father poses an unacceptable risk to the children, any time between the children and the father would need to be supervised.
The second aspect of this case that needs to be determined is this: Is long-term supervision appropriate for these children?
In Moose [2008] FamCAFC108, May J said:
“4...No provision was made for when such supervision would end or how the father could ask the Court to make different orders.
8...Should the father bring a further application asking for the provision in relation to supervision at the contact centre to be removed, his case doubtless would be met with an assertion that he may not do so because there have been no changes in circumstances. (Rice and Asplund).
10...In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would be need to be cogent reasons to support such orders. Apart from expressing, quite properly, a concern about the mother's emotional reaction to the children seeing their father which was consistent with the evidence (T/s page 135) his Honour did not provide reasons to support these orders. In addition, his Honour should have made orders which would allow for some review of the situation in the future”.
In the same judgment, Boland J said:
“119...The undesirability of, and the practical difficulties associated with long-term supervision in a children's contact centre, are referred to in the guideline for Family Law Courts and Children's Contact Services, January 2007, part C 4.1.1 and 4.1.2 (published by the Attorney-General's department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick [2005] FamCA 394; (2005) FLC 93-227, May J, having found that the evidence in the case "objectively reviewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised..." then referred to the difficulty associated with long-term supervised contact and said "the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children's best interests". Her Honour then explained, "whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored". (See also W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892; (2005) FLC 93-235, (2005) 34 FamLR 129 at paragraph 114)”.
In Champness & Hanson [2009] FamCAFC 96 the Full Court said:
“219...the Full Court has expressed concern about the absence of some kind of review mechanism when orders are made for long-term supervised contact. Part of the concern, expressed in cases such as H v K [2001] FamCA 687, is that the parties are left with "no mechanism for moving forward" and that the parents seeking to remove the supervision requirement will have difficulty in meeting the "changed circumstances" test in Rice v Asplund (1979) FLC 90-725”.
In Malburon and Anor & Waldlow [2013] FamCAFC 191, the Full Court considered the above authorities and said:
“141...In our view, while it is not necessarily erroneous to make an order for indefinite supervision it is necessary for cogent reasons to be advanced to justify such an order. In circumstances where the Federal Magistrate herself contemplated the possibility of it being appropriate for the supervision to be lifted when the child turns seven, and in light of the comments her Honour herself made about the undesirability of long-term supervision, we consider that she erred in leaving the matter entirely in the discretion of one party”.
Whilst a supervised Contact Centre will protect the children from any potential physical harm, the effect on their psychological well-being must not be ignored.
The family consultant is of the opinion that the mother’s anxiety will be lessened if the father addresses these issues.
Her level of anxiety impacts upon X.
X’s anxiety is impacted upon by being exposed to her father. The evidence establishes that she is conflicted.
Long term supervision is not desirable. The only mechanism available to review the orders is dependent upon the father properly addressing the issues raised.
I am not satisfied that the father will address these issues. He has been on notice for many years and has not properly addressed the issues and still maintains that he doesn’t believe he has any issues to address.
In the circumstances of this matter and having regard to the findings I have made about the father's capacity to change his behaviour and his approach to parenting, I am of the view that it is appropriate to frame orders to protect the children from any further physical and/or emotional harm.
Parental responsibility
Section 61DA of the Act provides that when making a parenting order 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.
That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.
Having regard to my findings above, the presumption does not apply.
The mother suffers serious anxiety, considered to be very serious and for credible reasons. The mother has been the victim of long standing domestic violence. She wants nothing to do with the father, not surprisingly.
Having regard to those factors, it is in the children's best interests for the mother to have sole parental responsibility in the terms that I have set out in the orders.
Having found that the presumption does not apply and having determined that the mother should have sole parental responsibility, section 65DAA is not triggered and as a result I may make such parenting orders as I think proper pursuant to section 65D(1).
Having found that the father poses an unacceptable risk to the children at this time and indeed until such time as he properly addresses and treats the issues that have been raised, I am hopeful that this will be the necessary impetus for the father to take positive steps to indeed properly address all of those issues.
I was persuaded by the evidence of the family report writer where she indicated that the mother was not a "disruptive gatekeeper". I am satisfied that in the event that the father properly addresses all of these issues, the mother would facilitate the children having a relationship with their father.
In those circumstances, I am of the view that it is important that the father continue to be involved in important decisions relating to the lives of the children as this will add to the significance and value of his relationship with the children in the future.
Whilst I have found that the mother should have sole parental responsibility, I am also of the view that it is in the children's best interests for the mother to invite from the father his views in relation to important decisions and to properly consider those views before making decisions.
It is in the best interests of the children for the father to be able to express his views and for that view to be properly considered. I am of the view that this will add to the opportunity of the children to have a meaningful relationship with the father in the future.
I am satisfied that the evidence supports the finding that the need to protect the children from the unacceptable risk posed by the father, outweighs the benefit to the children of having a meaningful relationship with both of their parents at this time.
Accordingly, I am satisfied that the orders I make are the orders that are in the best interests of the children.
I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 21 June 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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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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