TILLEY & EDWARDS
[2014] FamCA 424
•20 June 2014
FAMILY COURT OF AUSTRALIA
| TILLEY & EDWARDS | [2014] FamCA 424 |
| |||
| APPLICANT: | Ms Tilley |
| RESPONDENT: | Mr Edwards |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Carter |
| FILE NUMBER: | BRC | 11308 | of | 2009 |
| DATE DELIVERED: | 20 June 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 14, 15 March 2014 and 24 April 2014 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: SOLICITORS FOR THE INDEPENDENT | Mr Bunning Carter Farquar Lawyers |
Orders
All previous parenting orders be discharged.
The mother have sole parental responsibility of the children T born … 2006 and Y born … 2007.
The children live with the Mother.
During such time as the father is not incarcerated, the father spend supervised time with the children once each month on the following terms:
(a)the father shall contact the Relationships Australia Contact Centre at Suburb B and arrange and attend an intake interview;
(b)the father shall seek then that the Contact Centre make arrangements with the mother directly to attend an intake interview;
(c)in the event that the Contact Centre is available to conduct the supervised time, the time shall occur once a month on a Saturday at a time when the Contact Centre is available to supervise the time and the time between the children and the father will be supervised;
(d)the parties shall bear the cost of the Contact Centre equally and each party shall bear their own costs in relation to their intake interviews;
(e)pursuant to s121 of the Family Law Act 1975 the parties have leave to provide (and the father will provide at his initial interview pursuant to order 4(a)) the Contact Centre with a copy of both of the Family Reports of Mr A, the psychiatric report of Dr M and a copy of these Orders.
The father be at liberty to send to the children cards, letters and gifts at the mother’s address for service.
The father have Skype communication and/or telephone communication with the children at such times as may be reasonably requested by them, but in default of such requests then between the hours of 6:30pm and 7:00pm every Thursday.
The Independent Children's Lawyer is forthwith discharged, with the thanks of the Court, upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all extant Applications be dismissed and the matter be removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tilley & Edwards has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: BRC 11308 of 2009
| Ms Tilley |
Applicant
And
| Mr Edwards |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By her Amended Initiating Application filed 5 October 2012, the mother sought orders that the parties’ children T (born in 2006 and presently 8 years of age) and Y (born in 2007 and presently 6 years of age) live with her, and that she have sole parental responsibility for them. She further sought orders that, whilst the father may communicate with the children in writing, he is only to spend time with them at a supervised contact centre on the first Sunday of each month. By his Response filed 2 March 2010 (at which time the father was represented by lawyers) the father sought orders that the children live with each parent on a week about basis.
BACKGROUND FACTS
The mother was born in 1985, and is presently 29 years of age. The father was born in 1984, and is also presently 29 years of age. The parties formed a relationship in 2005 and finally separated in January 2008. On 18 February 2009 the parties consented to an Order in the Federal Magistrates Court that the children live with the parents on a week about basis, with changeovers on Fridays. Other orders made encompassed the parties not being under the influence of alcohol or drugs when with the children, and required them both to enrol in an anger management course.
On 31 October 2009 the father was arrested and charged by police over an incident which I will discuss later in these reasons in greater detail. Suffice to say that it involved an alleged assault by him upon his own father. At the time the children were in his care. In consequence of his arrest, the mother collected the children from the home of the paternal grandparents on 1 November 2009, and suspended the week about arrangement. There then followed a period of time during which the father only spent time with the children under the mother's supervision.
On 22 March 2010 orders were made in the Federal Magistrates Court that the children live with the mother, and spend time with their father during the day of each Tuesday and Saturday, save that in the event that he was able to supply the mother with a clean drug test, there would be a graduated increase to a regime which would see him spending unsupervised time with the children in week one from Saturday to Tuesday, and in week two from Tuesday to Thursday. Since the father immediately returned a clean urine test, that latter arrangement rapidly came to pass. That was apparently the situation when the Family Report writer in this matter, Mr A, made his first Family Report on 31 May 2010.
Subsequent to that report however, it appears as though the parties reconciled, or at least commenced cohabitation again. That proved to be a disastrous course, as in June 2010 an incident occurred in consequence of which the father was charged with attempted murder, together with charges relating to the setting of explosives. At the time he was on parole for other matters, in consequence of which he was immediately imprisoned, but released in November 2010. He was sentenced for the June 2010 episode in June 2012, and as at the time of the hearing before me, remained incarcerated.
By the time of the father’s incarceration, he had commenced resuming spending time with the children, pursuant to an order made on 3 October 2011, which time was supervised by his mother.
In 2011 the mother gave birth to another child of the parties, C, who is not the subject of these proceedings.
That was the situation that prevailed when Mr A gave his updated Family Report dated 31 July 2012.
THE ISSUES
The principal issue in this litigation is whether the father presents as an unacceptable risk of harm to the children, such harm being either physical, or emotional, or both. Additional issues are the benefit to the children of having a meaningful relationship with both parents, and their wishes. However it is fair to say that both parties and the Independent Children's Lawyer were focused upon the risk which the mother and the Independent Children's Lawyer say the father poses to the children. That focus was correct; in my view it is likely to determine these proceedings.
RELEVANT LEGAL PRINCIPLES
The statutory regime
A convenient starting point is section 61DA of the Family Law Act, which by sub-section (1), provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
The standard of satisfaction required
S 140 of the Evidence Act (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Plainly, conduct with a risk of physical harm to a child is very serious. On the other hand conduct intended to, or with a risk of, either emotionally or psychologically harming a child is not, of itself and without more, necessarily fraudulent or criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.
Further, the consequences attaching to a finding of the kind sought by the mother could potentially be grave. As is demonstrated by this case itself, based upon such a fact being established, a party could seek to use it to found an argument that the other parents’ time with the child should either be supervised for some period of time, or even permanently.
Therefore consistent with s 140(2), in taking into account the gravity of the mother’s allegations against the father, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1]
[1] See K v R (1997) 22 FamLR 592 and Re W (Sex Abuse – Standard of Proof) [2004] FamCA 768 at [15].
DOES THE SECTION 61DA(1) PRESUMPTION APPLY, OR IS IT REBUTTED?
There can be no doubt that there is a history of family violence here. It reached its high point in June 2010 when, as I shall shortly discuss, there was an attempt by the father to gravely harm the mother and perhaps also the children. The presumption of equal shared parental responsibility is displaced.
CONSIDERATION OF SECTION 60CC FACTORS
S 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents
Plainly the children would benefit from having a meaningful with their mother. Mr A, the Family Report writer, conceded that notwithstanding the past conduct of the father towards or in the presence of the children, there would still be a benefit for them in having a relationship with him, so long as it is experienced in a safe environment. Mr A could only see that benefit being obtained by the children under a supervised contact regime.
S 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Overview
This was by far and away the major issue in dispute between the parties. Both the mother and the Independent Children's Lawyer said that the father presents such a risk of physical harm to the children, that the need to protect them from that risk means that any time that the father spends with them, has to be in a supervised environment. On the other hand, the father denied that he had ever risked physical harm of the children, and denied many of the facts which underpinned the two events in question, being his alleged attack on his parents, and his attempt to gas and/or cause an explosion of gas, with a view to harming either the mother and/or all occupants of the home in which the parties were then residing. Therefore it will in due course be necessary to assess the father’s credibility, and this raises other issues beyond the immediate scope of this criterion.
The law
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
S 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. S 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
Is the father an unacceptable risk?
There are two events particularly relied upon by the mother and the Independent Children's Lawyer as demonstrating that his conduct in the vicinity of the children has put them at risk of physical harm.
The first occasion was said to be the 31 October 2009 event. The police report of it reads as follows:
On 31/10/09 the offender has been at his parents’ residence with his two small children. Offender has become involved in a verbal argument with his father over alcohol being stolen from the fridge. Offender has picked up an axe from the garage area and threatened the aggrieved. The aggrieved has taken the axe from the offender. The offender has picked up a beer can and poured it inside the aggrieved’s car. Offender has picked up a Billy club and used it to smash towards the door. Offender has used club to smash two glass panels beside the door. Offender has then picked up a concrete statute and thrown it through a glass window at the front of the residence. The offender has picked up smashed glass from the ground area and thrown it at the aggrieved causing minor cuts to his arm. Offender has then put two children inside a stroller and proceeded to walk away from the residence. Police have located the offender a short distance from the residence. The offender has returned to the residence with police. Whilst police were speaking to the aggrieved, offender has continued to yell and scream and smash his arms into the partition inside the police vehicle. Offender was removed from the vehicle to have handcuffs placed on him. At this time the offender has used his feet to kick at Detective [D] in the chest and leg area. CON [E] has requested the offender to release his arms at which time the offender has refused and physical force was required to restrain and handcuff the offender before being placed back in the police vehicle. A search of the back pack the offender was carrying has located a used syringe loosely placed in the bottom of the bag. Severity of DV is severe. Weapons were involved. The offender was wielding an axe. There were injuries. The aggrieved has minor cuts and abrasions. There is damage to three glass panes. The respondent has been drinking and appears to be under the influence of drugs. The child’s level of involvement in the DV incident is: was in view/hearing range of the incident.
In cross-examination, Mr Edwards, (“the father”) refuted much of that event. Particularly he denied using an axe, a beer can, a Billy club, or a concrete statue, and denied that he smashed glass panels. Moreover he said that the children did not experience any of the event – whatever it comprised – because they were out of sight at the front of the house at that time. Whilst he accepts that apparently there was some form of fighting with his father, he was unable to explain what the basis of the fight was about.
At this point it is convenient to note that considerable opportunity was afforded to the father to have both of his parents called to give evidence. Principally that was because the father was promoting them as potential supervisors of his time with the children.
The proceedings first came for hearing before me on 14 March 2013, at which time the father was in custody. He asserted that his parents were both willing to supervise, and willing to give evidence. The proceedings were ultimately adjourned in order to enable his parents to be called to give evidence. When some weeks later the hearing resumed, notwithstanding the father’s efforts, neither of his parents appeared to give evidence. Attempts by the Independent Children's Lawyer to contact them by phone only resulted in messages going to voice mail. Subsequently no attempt has been made to resume the hearing in order to receive their evidence. Of course their evidence would also have been relevant to ascertaining whether or not the father’s denial of the events of 31 October 2009 were honest. Absent them being produced – and plainly they were more within the father’s power to call them than anyone else’s – serious doubts as to the father’s denial of the events of 31 October 2009 must exist.
The second event relied upon the mother and the Independent Children's Lawyer to demonstrate risk was the event which occurred on an evening in June 2010. The relevant police report of it reads as follows:
At approximately 15:00hours on the … of June 2010, the offender has returned home from work, and has begun drinking. During the evening the offender and the informant have become embroiled in a number of physical arguments. During the evening, the offender stated to the informant that her and the victims are, “better off dead”. The informant has put the victim children to bed, and as the informant also went to bed. The informant was later woken by a strong smell of gas. The informant entered the kitchen to investigate and observed the gas cook top in the ON position, and could (sic) the gas emanating from the cook top. At this time, the offender entered and stated to the informant, “we just have to wait now until the fridge kicks in.” The informant has turned the gas off and opened the windows and front door to dispel the gas. The informant then returned to bed, and was again woken a short time later by the smell of gas. A few minutes later, the informant has heard the offender go back to the kitchen and turned the gas back on. The informant has entered the kitchen, which was again full of gas, at which time the offender has asked her for a lighter, with the intention to ignite the gas. The informant has refused, and the offender has then gone to the bedroom. The informant has then rung police and remained in the house. After police have arrived and arrested the offender has screamed at the informant “you’re dead, bitch.”
In her affidavit filed 7 November 2012, the mother gave a little greater detail as to the events surrounding that date. Relevantly they appear to have commenced four days earlier, when the father had been drinking, and began to get “worked up.” He was asking the mother whether he was the father of their children, but despite her saying that he was, he kept on becoming more “wound up”. The mother ultimately left the home in order to give the father’s anger an opportunity to dissipate, leaving the children there because they were asleep. She continued:
About an hour later, the police called me and asked me to return and collect the children. [When] I arrived they told me that [the father] had riding his motor bike dangerously and was trying to put a newspaper into the fuel tank whilst screaming death threats.
Then two days earlier the mother discovered that she was pregnant with what was later to be their third child. She and the father discussed her pregnancy, and the mother said that she did not wish to have another baby. This apparently made the father very angry and the mother says he screamed at her “if you kill my baby, I’ll kill you.”
As to the events of the date themselves, the precursor for the father’s behaviour – whatever it be – appears to have been that when he returned home from work earlier than would have been otherwise expected, he discovered that the mother had a male friend visiting. The mother says “he became uncontrollable, violent and extremely aggressive. I left to calm the situation and told [the father] that I would return later to talk to him when he calmed down. When I returned later, [the father] had been drinking heavily and was still very aggressive and abusive. He came with me to pick the children up from day care, abusing me the whole time. He continued to drink throughout the night and scream abuse and threats and he [became] extremely frightening.”
The father’s version of events is dramatically different to that of the mother and as recorded in the police reports. Whilst he concedes that he consumed some alcohol on the night in question, he contended that it was only about one or two glasses of rum. During his cross-examination of the mother, he asserted that he had been calm and collected when he went to bed on the night in question, at about 9:30. His evidence was that the next event that he was aware of was when the police came into his bedroom, at which time he became hostile and screamed threats at them.
Both the mother and father were, in the proceedings before me, self-representing. Rarely does that situation afford any benefits to the Court, however on this occasion it did enable the Court to assess – even years after the event – the father’s concerns about events surrounding the date in June. Particularly in the course of his cross-examination of the mother about this issue, the father asked questions as to why it was that the mother thought that he had become angry. The mother’s answer was that because “[Mr F]” had been at the house. The father then proceeded to inquire as to why he was there and further, whether he had visited the mother when he was in Melbourne. That was denied by the mother. The father then cross-examined the mother as to who was the male visitor that she had whilst he was in Melbourne. Given that it was some years after the events in question, this demonstrated to me that the father was still seriously concerned about the potential infidelity of the mother, and plainly would have been more concerned about it on the night in question in 2010. All of that makes it more likely that the father would have resorted to alcohol on the evening and less likely that the events which he asserted occurred during his cross-examination of the mother – namely that he made dinner that night comprising pasta sauce and pork chops – occurred.
Unsurprisingly given the police report, the father was charged with attempted murder. That appears to have been reduced to a charge of “attempt to injure by explosive or noxious substances”, to which charge the father pleaded guilty. Ordinarily, one would have thought that that was the end of the matter, in that necessarily by virtue of the plea of guilty, the father was admitting to each and every element of the offence, and the facts which proved that element. However that was not the case. Rather, the father asserted that he only pleaded guilty because while he was in jail, he and his new partner and their child were issued a death threat by a third party. The threat was “If I didn’t plead guilty, that would be the end of it”. He said he didn’t know the identity of the threatener until after he had been sentenced, however the impression he then had, which was later confirmed, was that it was a credible threat.
This was but one instance of a recurrent theme within the father’s evidence, namely that matters reported on his criminal record were not accurate reflections of events. For instance, although on 30 September 2009 he was found in possession of marijuana – and subsequently convicted – he denied that the marijuana was his. Likewise on 31 October 2009, police found a hypodermic needle and syringe in his possession, and again he was convicted in relation to that. His explanation was that the hypodermic needle was in a back pack and he had forgotten about it.
Another example of him minimising criminal behaviour related to his conviction on 21 October 2010 for entering premises with intent to commit an indictable offence. He simply said that at the time he entered the home because he was “looking for somewhere to sleep and the house was empty.”
A further example of the father’s approach to otherwise inconvenient facts, was in relation to a note in the prison counselling records to the effect that upon admission to jail, the father “reported experiencing withdrawals over the past week including the shakes, headaches, nausea, poor sleep and appetite. Prisoner reported that he was not medicated for his withdrawals in the watch house. Prisoner reported that his withdrawals have stayed the same in severity over the past week. Prisoner reported using: alcohol: one 750mm bottle of spirits daily. Last use: one week ago.”
In his evidence, the father denied that in fact he was then experiencing withdrawal symptoms, and denied that in fact he had been ingesting a 750ml bottle of spirits daily, but rather had only told the psychologist of this to get valium prescribed, to help him sleep.
A further, and ultimately more significant, example of his denials, related to a breach of his parole conditions, which saw him re-incarcerated. Apparently a condition of his parole was that he not have illegal drugs within his bloodstream, but in fact such drugs were detected upon a test being administered. In his evidence, the father sought to excuse the positive test on the basis that he had taken codeine, which of course was not an illegal drug. However between the first two days of hearing and the third, the Independent Children's Lawyer obtained a copy of the urine toxicology result, which was exhibit 2 in the proceedings. That makes it plain that in fact the test did not find codeine, but rather that there was a positive result for amphetamines and methamphetamines.
Plainly, the father’s evidence in relation to this was untrue, and was an attempt to minimise or negative the adverse inference which could be drawn from the breach of parole.
The issue of the father’s drug use was a live matter in the trial. Despite many requests by the Independent Children's Lawyer to submit to drug tests, the father had never done so. He gave a variety of excuses. Amongst those was his inability to afford them. Others included that such testing was prohibited under prison regulations. It will be appreciated however that the fact that in February 2013 he tested positive to amphetamines and methamphetamines is a serious matter. It is serious for two reasons. Firstly it casts grave doubt as to the reliability of his evidence, and particularly his denials of criminal involvement, and secondly it casts grave doubt upon his assertion that he has given up drugs and is not prone to excessive consumption of alcohol. Of course it was his behaviour whilst allegedly under the influence of alcohol and/or drugs on both 31 October 2009 and in June 2010 which lie at the heart of the risk of harm which the father is said to pose to the children.
In his evidence and submissions, the father asserted that he was now a changed man from what he had previously had been. He said that he had undertaken a PPP parenting course in 2010, two anger management courses, and that he had last offended at the end of 2012. He said that now if he thinks he might be tempted to commit a criminal offence, he talks to someone instead of undertaking it. He said that once he was out of jail, he intended to do a further parenting and anger management course, and try and find employment in a trade. He said that he had turned his life around.
Unfortunately the only person who so asserts that the father has changed his previous behaviours is the father. I have already identified that I have grave doubts upon the truthfulness of his evidence. He appears to be prepared to try and minimise part adverse behaviour with a view to achieving the desired outcome that he has in these proceedings, namely to be able to spend unsupervised time with his children. Whilst that motivation is entirely understandable, the fact that he is prepared to tell untruths to achieve that outcome necessarily casts doubt upon all of his evidence, including his evidence that he has reformed.
I am not persuaded that the father has reformed. I do not accept that the father has not abused alcohol in the past, or been a regular drug user. I do not accept that, upon his release from prison, he is unlikely to return to those ways. I find that both the events of October 2009 and June 2010 occurred when he was under the influence of alcohol and/or drugs. The fact that he has so behaved when under the influence of alcohol and drugs on two, and probably three, occasions when the children were in the vicinity, inevitably means that the children were placed at risk by virtue of his abuse of alcohol and/or drugs.
These conclusions were largely supported by a psychiatrist who examined the father, Dr M. In her affidavit filed 23 May 2011 she diagnosed the father as having oppositional defiant disorder and substance abuse, and had borderline personality traits. At para 50 of her report, she concluded as follows:
Both parents have considerable personal difficulties which have the potential to interfere with their capacity to parent adequately. The father was uncooperative during his assessment and I did not feel that his history could be relied upon. He allegedly has undertaken various acts of violence in the past. I consider it probably that he continues to abuse substances and that he may have suffered a substance induced psychosis. I believe that his parenting capacity is questionable.
Dr M was cross-examined by the father. The substance of that cross-examination was to challenge her ability to make any such diagnosis and conclusions after a mere 40 minute interview with him. However she clearly identified that her opinion was based not only upon that 40 minute observation, but also upon her perusal of relevant history and the statistical likelihood that by virtue of the father himself having had a hard childhood, and hence being deprived of good parental role models, it would be difficult for him to be a good parent.
I accept Dr M’s evidence and opinion.
The inevitable conclusion, based upon the father’s demonstrated conduct whilst under the influence of drugs and/or alcohol, and the real prospect that he will return to their abuse, is that at least for the foreseeable future, the risk which he poses to the physical safety of the children is an unacceptable one.
S 60CC(3)(a): Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
The children express no fear of spending time with their father, however they are presently aged 8 and 6 and I therefore give their views little weight.
S 60CC(3)(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)
The children have at all times have lived with their mother but have enjoyed a good relationship with their father and express no fear of him.
Although the father has re-partnered, his new partner was not called to give evidence. The children apparently have a good relationship with the paternal grandparents, but again they were not called to give evidence.
S 60CC(3)(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
It is fair to say that, in large part because of the father’s incarceration, he has had little opportunity to participate in decision making about the children, and it has also impacted upon his capacity to spend time and communicate with them. I accept however that he would be keen to do so. I do not think it can be said that this is a father who does not care about or love his children.
The mother has plainly been the person mostly in the children’s lives and responsible for them.
S 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
To the extent that the father has not contributed to the maintenance of the children, it no doubt largely arises from his incarceration from time to time. Little criticism can be made of him in that regard.
S 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(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
As at the time of trial, the children had not seen their father since mid-June 2010. To the extent that the orders sought by the mother and the Independent Children's Lawyer would effect separation between the children and their father, that separation and its consequences have already occurred. Both children appear to have adjusted their new circumstances.
On the other hand, the children have maintained connection with the paternal family by virtue of the mother facilitating the paternal grandparents spending time with them.
S 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
This not relevant in this case, save that it may be by virtue of the father’s criminal convictions, that there may be practical difficulty in obtaining professional supervision at a contact centre of his time with the children.
S 60CC(3)(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
I have already referred to Dr M’s assessment of the father’s parenting capacity. At para 51 she reported in relation to the mother as follows:
51. The mother by her own account has ceased illicit drugs and she appears to have a reasonable appreciation of her children’s developmental needs at this stage. It was my impression that she is genuinely afraid of the father and apprehensive about his capacity to care for the children.
I accept that evidence. It inevitably means that the mother has a better capacity than the father to provide for the children. I should emphasise that the father’s lack of capacity is largely related to his use or abuse of alcohol and illegal drugs, however I do note that he has been diagnosed by Dr M as having an oppositional defiant disorder, and also having borderline personality traits.
S.60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
This matter is not relevant beyond the discussion of the parents’ capacities.
S.60CC(3)(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
This is not relevant.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
This criterion has been sufficiently discussed in an assessment of parental capacity and risks.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family
The father’s use of violence within the presence or ear-shot of the children has already been discussed. There is a further episode of violence in which it is said that the father hit the mother, but although regrettable, it pales into insignificance compared to the father’s rampage at his own parents’ home, and his attempt to apparently blow up the family home together with its occupants in 2010.
S.60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(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
Whilst there have been family violence orders in place, they relate to the events of June 2010. The only relevant inference that can be drawn from that is identical to that which is drawn from the father’s conviction for the relevant offence. His behaviour represents a risk of physical harm to the children.
S.60CC(3)(l) Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Plainly it is desirable that this litigation between these parties finally conclude.
S.60CC(3)(m) Any other fact or circumstance that the Court thinks relevant
I can identify nothing that is warranting consideration under this criterion.
WHO SHOULD HAVE PARENTAL RESPONSIBILITY?
Mr A, the Family Report writer, did not comment upon allocation of parental responsibility in either of his two reports, but in his oral evidence expressed an opinion that parental responsibility should be with the mother, because it was difficult to see how the parents could negotiate given the high level of stress that had attended their communications in the past. His view was that to have an exercise of joint parental responsibility would simply cause more instability for the mother and the children, which could not be in the children’s best interests.
Also relevant is Dr M’s diagnosis of oppositional defiant disorder on the part of the father and borderline personality disorder traits.
Weighing the factors, I am firmly of the view that the mother should have sole parental responsibility for the children.
WITH WHOM SHOULD THE CHILDREN LIVE?
Ultimately the father appeared to recognise that it was completely impracticable for any order to be made that the children live with him. At the time of the trial he was in prison. His circumstances upon release were difficult to predict, but amongst the range of options he was considering was moving to New South Wales to live with a brother in a country town, apparently in an effort to minimise his risk of exposure to anti-social elements. Other options included him living with his parents, or with his partner.
I have concluded that the father is an unacceptable risk of physical or emotional harm to the children. In my view it is plainly in the children’s best interests that they remain living with the mother, with whom they have lived for all of their lives. In any event here is no other realistic option available.
WHAT TIME SHOULD THE CHILDREN SPEND WITH THE FATHER?
Ultimately the father appeared to accept that, in light of the Family Report recommendations and the facts generally, at least initially any time which he spent with the children had to be supervised. He anticipated difficulties in obtaining professional supervision at a contact centre. He therefore suggested that both of his parents be the supervisors. I have already referred to the fact that, despite the Court giving him the opportunity to have them called as witnesses, they did not appear.
There was evidence from the Independent Children's Lawyer that in a conversation which he had with the paternal grandfather on about 14 March 2013, the paternal grandfather had told him that he was not prepared to supervise, as he did not wish to be involved with the matter. On the other hand, on the following day when he spoke to the paternal grandmother, she apparently was prepared to supervise, and further intimated that apparently her husband had changed his mind, and was now prepared to assist her in that supervision.
Not only was the Court not able to assess their suitability as supervisors by virtue of the fact that they did not present to give evidence, but further, there is the father’s behaviour at their home in 2009 which would suggest that in fact they are unable to control his violent outbursts when they occur, and that the events of that day only were able to be brought under control by intervention of police.
Finally, there were some concerns raised by the Independent Children's Lawyer on the final day of hearing arising out of Department of Community Services records which were tendered into evidence relating to the paternal grandfather. The first area of concern related to his alleged playing of pornographic videos to a young family member; the second related to his alleged assault of a family member in 2002. The Independent Children's Lawyer made it plain that they were not seeking findings that in fact the paternal grandfather had done either of these alleged matters, but simply that there were live issues of concern in relation to the paternal grandfather, which would have needed to be explored in cross-examination of him. I accept that submission.
Given my findings that the father presents an unacceptable risk of physical harm to the children, his time must be supervised. The only two people who he put forward as potential supervisors – his parents – did not give evidence, and to the extent that there is evidence about their suitability as supervisors, it raises real questions are to whether they would be appropriate for that role.
It follows that the father’s time with the children will need to be supervised at a contact centre.
HOW, IF AT ALL, SHOULD THE CHILDREN COMMUNICATE WITH THE FATHER?
The mother seeks orders that the father only communicate with the children by way of letters, cards, photos and gifts via mail. The father did not seek any orders in relation to communication in his response, but nonetheless it seems appropriate that I should consider what, if any, communication other than that sought by the mother should be permitted.
As I have identified earlier in these reasons, the risk which the father poses to the children is primarily a physical one. Any risk of emotional harm is only derived from their exposure to his violence. Moreover, it is conceded that the children have no fear of the father, and other than remembering some poor behaviour on his part, they expressed no disinclination to engage with him. Further, there is the generally accepted evidence that children benefit from knowing both parents. I therefore conclude that it would be in the children’s best interests for them to be able to have telephone and Skype communication with their father, and propose to so order.
CONCLUSION
For these reasons there will be orders in terms as proposed by the Independent Children's Lawyer, save that there will be orders in relation to telephone and Skype communication between the children and the father.
I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 June 2014.
Associate:
Date: 20 June 2014
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