Timmins & Williamson
[2022] FedCFamC2F 512
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Timmins & Williamson [2022] FedCFamC2F 512
File number(s): DGC 2100 of 2013 Judgment of: JUDGE BURCHARDT Date of judgment: 28 April 2022 Catchwords: FAMILY LAW – Parenting dispute about children aged 13 and 11 – father being a recovering alcoholic and having extensive ongoing treatment – father clearly committing family violence during the relationship – father previously relapsing into alcohol and mother doubting his ongoing sobriety – whether father stalked the mother after separation and breached intervention orders – mother relocating to avoid the father – father having developed insight into his previous conduct – family report and family therapist recommending more time with the father despite mother’s fears – orders made as sought by the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 142 Date of hearing: 11-12 April 2022 Place: Dandenong Counsel for the Applicant: Ms Morkos Solicitor for the Applicant: Buscombe & Madden Lawyers Counsel for the Respondent: Ms Dwyer Solicitor for the Respondent: Marcou And Associates Pty Ltd Counsel for the Independent Children's Lawyer: Mr O’Connell Solicitor for the Independent Children's Lawyer: Mccormack And Co ORDERS
DGC 2100 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TIMMINS
Applicant
AND: MS WILLIAMSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS THAT:
1.The Mother and the Father have equal shared parental responsibility for the children X born in 2009 and Y born in 2011.
2.The Father spend time and communicate with the children as follows :
(a)Commencing 14 May 2022, each alternate weekend from 10.00 am to 6.00 pm Saturday and Sunday in Town B and with the substantial presence of the paternal aunt Ms C for first three such weekends
(b)Commencing 9 July 2022 from 10.00 am Saturday to 5.00 pm Sunday each alternate weekend in Town B with the overnight time to be in the presence of the paternal aunt for the three such weekends
(c)Commencing 11 November 2022 During school term as follows
(i)Should the Father relocate to Town B, each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday
(ii)Should the Father remain located in Melbourne , every third weekend from 5.00 pm Friday until 5.00 pm Sunday
(d)Commencing 2023, for the first half of all term holidays
(e)For one half of the Summer holidays on a week about basis commencing the first week.
(f)For Christmas as follows:
(i)From 5.00 pm Christmas Eve until 5.00 pm Christmas Day in odd numbered years; and
(ii)From 5.00 pm Christmas Day until 5.00 pm Boxing Day in even numbered years.
(g)For Greek Easter from the conclusion of school Friday (or 3.30 pm on a non-school day) until Sunday 2.00 pm.
(h)For Father’s Day from the conclusion of school on the Friday preceding Father’s Day (or 3.30 pm on a non-school day) until Sunday 2.00 pm.
3.If the children are in the care of the father pursuant to these orders the fathers time with the children be suspended as follows:
(a)The Friday preceding Mother’s Day (or 3.30 pm on a non-school day) until Sunday at 2.00 pm;
(b)From 5.00 pm Christmas Eve until 5.00 pm Christmas Day in even numbered years; and
(c)From 5.00 pm Christmas Day until 5.00 pm Boxing Day in odd numbered years.
4.Therapy with Dr D to continue to until it is assessed and recommended by Dr D that Family Therapy be concluded AND that the father’s sessions with the children occur outside of the father’s court ordered time with the children with the Father to fund same and Dr D to be provided with a copy of the Judgment herein.
5.The parties notify each other as soon as possible of any significant illness or injury suffered by either child whilst in their respective care and provide the other party with details of the treatment provided including the name and contact details of the treating health professional.
6.A copy of these orders may be provided to the children’s school and to each of the children’s treating professionals AND this order acts as authority for each of the parents to engage with and receive information from the children’s treating professionals.
7.The mother notify the father of any serious medical appointment made for either of the children at least 24 hours prior to the appointment being made (unless in the case of an emergency).
8.The mother and father be restrained from:
(a)Denigrating the other parent or the other parent’s family in the presence and/or hearing of the child, or allowing anyone else to do so;
(b)Discussing these proceedings with or in the presence and/or hearing of the child or allowing anyone else to do so;
(c)Passing messages through the child; or
(d)Involving the children in any form of conflict, between the parents or otherwise.
9.Each party keep the other advised of any change in contact telephone numbers within 24 hours of any such change.
10.The parties communicate about child arrangement via a parenting application as agreed between the parties in writing.
11.Both parties be authorised to contact the children’s school/kindergarten/childcare and request, at their own expense, copies of all school reports, school notices and school photographs in relation to the children.
12.Both parties be authorised to attend all school sports days, assemblies, concerts and any other event to which parents are ordinarily invited.
13.For 24 hours immediately prior to the commencement of any time spent with the children, and during all such time spent, the father be restrained by injunction from ingesting, consuming, using or otherwise being under the influence of alcohol or any legal or illegal drug or substance (or having a BAC above 0.05), save and except for:
(a)Any legal medication prescribed for the father by a registered medical practitioner, and taken or used by the Father strictly in accordance with such prescription; and
(b)Any over the counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine) and taken or used by the father strictly in accordance with the directions appearing on such medication or pharmaceutical substance
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Timmins & Williamson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a parenting dispute about the best interests of two children, X, born in 2009, and Y, born in 2011. The applicant father seeks to spend time and communicate with the children, who live in the primary care of their mother, moving to a regime of overnight time each alternate weekend and half school holidays. He proposes a number of ancillary orders designed to assuage the mother's acknowledged concerns as to the risk of his relapsing into the use of alcohol consumption, which, as a recovering alcoholic, he has apparently been prone to do in the past. The mother's position is that X should spend no time with his father (it is put that time be in accordance with his wishes, but this is the net effect of the mother's proposal), and that Y spend time supervised by a paternal aunt, Ms C. The Independent Children's Lawyer's position is that there should be orders requiring both children to spend time with their father, initially supervised by Ms C but moving to unsupervised time in due course.
For the reasons that follow, I am going to make the orders proposed by the Independent Children's Lawyer, together with some ancillary orders proposed by the father and accepted, as I understand it, by all the parties.
AGREED OR UNCONTROVERSIAL MATTERS
The father was born in 1973 and is of Greek extraction (something relevant to special days and the like). The mother was born in 1975 and is of British extraction. She came to Australia on a working holiday and has stayed ever since, notwithstanding that effectively all her close family are in the United Kingdom. She has had little opportunity to visit that family ever since.
The parties married in 2006 and separated in December 2012. As earlier indicated, X was born in 2009 and Y in 2011.
There is no question whatsoever that the father struggled with alcohol throughout the relationship and thereafter. There is a significant dispute as to whether or not he committed acts of family violence as a result, but there is no question that he drank very heavily, and on occasions yelled loudly at the mother, the children, and indeed members of his own family. He has endeavoured to wean himself off alcohol on more than one occasion but has been unsuccessful, although he has been alcohol-free since late 2019 and now undergoes an intensive regime to assist him in that regard, something that it will be necessary to return to in greater detail.
The mother repartnered with a Mr E, whom she married in 2015. In 2015, following an earlier tranche of litigation, an order for relatively substantial unsupervised time was made in the father's favour, but the mother ceased all such time in about August to September 2019 because of her concerns as to the father's conduct. The father spent very limited time with the children thereafter until court-ordered time was imposed in mid 2020 following an 11F report.
All parties agree that the children, and most particularly Y, have an excellent relationship with the father's sister, Ms C, who has facilitated time in the past.
THE PARTIES' AFFIDAVITS
The parties have been relatively energetic affidavit creators, but much of what they say is in fact canvassed in the agreed matters above. The father's affidavit material has given details of his relatively comprehensive endeavours to refrain from alcohol and his ongoing employment as an allied health worker in a clinic.
The mother's affidavit material gives details of the alleged assaults upon her by the father during the relationship, some in the presence of the children. She details the six intervention orders taken out from time to time, including a final order from 4 September 2013 to 4 September 2014 and a further intervention order which lasts from 3 May 2017 until 2025. The mother's first affidavit filed 29 April 2020 details at paragraph 53 an assertion that the father had held X under the doona, and detailed also an assault by the father on a third party at a skate park in November 2018.
The affidavit also details the mother's assertions as to the father's stalking of her (as she would put it) and her subsequent move from Region F to Region G, in effect to get away from the father.
Mr E, the husband of the mother, has also, in his affidavit on 12 August 2020, deposed to an incident on 28 February 2016, when the father came onto their property at Town H and had what he described as an aggressive conversation with him as to an allegation of Mr E smacking the children, something he denied. The father's responding affidavit version paints the visit as relatively benign.
The mother's affidavit material also details allegations that the children were traumatised by being driven by the father when drunk, particularly in 2019.
An affidavit filed by Ms J on 24 March 2022 details the father's treatment at K Hospital. Ms J is an addiction counsellor and was not required for cross-examination.
The mother's affidavit material details alleged breaches of the intervention order, and the father's trial affidavit responds in detail. It would be appropriate to come to those matters in dealing with the oral evidence.
An affidavit filed by Ms L on 6 April 2022 deposes to the father's participation in the 12-step program for recovery at the K Hospital. Ms L is the hospital director and was not required for cross-examination. Her most recent letter, dated 9 August 2021, notes that the father was then attending a booster program each Thursday from 6 pm until 9 pm and showing a strong commitment to the 12-step path to recovery.
An affidavit filed by Ms C on 6 April 2022 is better dealt with when I deal with her oral evidence.
It should be noted that the above admittedly somewhat scattergun precis of the past affidavit material should not disguise the fact that I have read the affidavit material carefully and have regard to it. Given the way the matter proceeded at Court, however, it is more appropriate to concentrate on what the parties actually said in the witness box.
THE FAMILY REPORTS
The 11F reports from 2021 are, of course, relevant, and I have read them and have regard to them. Nonetheless, it is clear that the march of events has rather left them behind, and I propose to concentrate on the family report of Ms M dated 9 March 2022.
The report commenced with the background as to current arrangements (paragraphs 1-5). The report noted that the father works as an allied health worker (paragraph 2) and that the mother had a non-disclosure in regards to her address, previously worked as a carer but does not work outside the home (paragraph 3). The distance between the two homes is approximately four hours drive (paragraph 4), and the children live with Ms Williamson and spend supervised time with the father every third Sunday from 10 am till 3 pm (paragraphs 4 and 5).
The report noted relevant family background, including the current intervention order valid till 2025 (paragraphs 6-9). The report noted the history of the dispute, including that there had been orders for overnight time made on 25 June 2021, this time being supervised (paragraph 13) and ongoing family therapy with Dr D (paragraph 14).
The report traversed the proposals of the parties and the risk factors, including the mother's assertions as to family violence and stalking by the father (paragraph 19), the issues in dispute including the total absence of communication between the parents due to the current intervention order (paragraph 25).
The interview with the father runs from paragraphs 26-61. I have regard to all of it. I note that at paragraph 29:
Mr Timmins spoke of relocating and being away from family and work but that Mr Timmins would do this to be closer to the children but is concerned that Ms Williamson will then make allegations that Mr Timmins is stalking Ms Williamson.
At paragraph 31:
Mr Timmins spoke of the email that Ms Williamson sent to Mr Timmins two months ago stating that she was “done with parenting” and that the children should go to Mr Timmins.
The report noted the father's concerns that the mother was abusing the intervention order with spurious applications for breach. In paragraph 37:
Mr Timmins gave another example of a supposed breach when Ms Williamson informed Mr Timmins that he needed to attend the kindergarten to pay the fees. Mr Timmins attended and Ms Williamson filed for a breach of the Intervention Order. Mr Timmins stated that on another occasion, he attended a sporting event for X and Ms Williamson came between Mr Timmins and X so that Mr Timmins would be in breach of the Family Violence Intervention Order. Police attended and Mr Timmins showed Police the Family Law Court Orders which allowed for Mr Timmins to be present.
The report noted at paragraphs 48-50:
Mr Timmins acknowledged that he has had alcohol issues but stated that he has now been sober for two years, two months and nine days. Mr Timmins is engaged with Alcoholics Anonymous as well as attending therapy regularly and continues to be engaged with the rehabilitation facility that he attended.
Mr Timmins stated that Ms Williamson has alleged that the children have reported seeing Mr Timmins consume alcohol and refutes this.
Mr Timmins is concerned that Ms Williamson is exposing the children to Mr Timmins' previous alcohol issues and the dispute with the children telling Mr Timmins that Ms Williamson has told the children that Mr Timmins is not sharing his money and is using the money for alcohol.
Mr Timmins' views were confirmed at paragraph 61 as:
Mr Timmins concluded that this is not about Mr Timmins fighting with Ms Williamson but about “sticking up” for the children and standing up for the children as they have a right to have a relationship with Mr Timmins. Mr Timmins is not seeking for the children not to have a relationship with Ms Williamson but to have a relationship with both parents
The interview with the mother goes from paragraphs 62-96. At 63-67, the report observed:
Ms Williamson presented as being angry but without emotion. Ms Williamson is English and the lack of affect, may be due to Ms Williamson's culture.
Ms Williamson stated that she has spoken to the children and the children are happy with the current Orders. The children and Ms Williamson do not want the time with Mr Timmins to be unsupervised due to safety concerns. Ms Williamson stated that Mr Timmins has a history of alcohol misuse, driving while under the influence of alcohol, road rage, picking up the children while intoxicated and a lack of boundaries such as attending events when uninvited.
Ms Williamson was very frustrated as she stated that she has contacted the Police in regards to breaches of the Family Violence Intervention Order but it seems that Mr Timmins can do as he pleases despite the Order as the Police are unwilling to issue a breach of the Order.
Ms Williamson stated that she is tired of "picking up the pieces for a non-cooperative, non-present co-parent".
Ms Williamson spoke of X's behaviour and that she has been seeking help with this. Ms Williamson stated that X does not want to spend time with Mr Timmins and the previous day did not want to get into the car. Ms Williamson stated that X was physically hurt in the marital home trying to protect Ms Williamson from Mr Timmins.
At paragraph 81:
Ms Williamson acknowledged that at one stage she wrote to the Court stating that she would give parental responsibility of the children to Mr Timmins and the children could live with Mr Timmins. Ms Williamson stated that she was feeling exhausted and unsupported stating that the Police would not do anything about the various breaches of the Family Violence Intervention Order.
At paragraphs 83-84:
Ms Williamson appreciates that Mr Timmins is the children's father but wants the relationship to be a safe one that the children can then build upon.
Ms Williamson is not denying the children a relationship with the paternal family stating that she has made arrangements for the children to spend time with the paternal family and encourages a relationship with the extended paternal family. Ms Williamson does not have any family in Australia and so this is the only family that the children have locally.
At paragraphs 89-90:
Ms Williamson has many concerns for the children in the care of Mr Timmins stating that she is concerned about the type of role model Mr Timmins is with his history of excessive alcohol use, illicit substance use and family violence. Ms Williamson stated that she made a safety plan with the children so that they would feel safe with Mr Timmins.
Ms Williamson stated that Mr Timmins has damaged his relationship with X and that both she and X have prayed for Mr Timmins to be healthy.
At paragraphs 92-93:
Ms Williamson agreed that she withheld the children from Mr Timmins in August/September, 2019 as the children were reporting that they were fearful as Mr Timmins had been consuming alcohol. Ms Williamson believes it is important for children to be heard and so Ms Williamson made changes informing Mr Timmins that any time with the children would need to be supervised.
Ms Williamson denies denigrating Mr Timmins stating that she wants him well and prays for his wellness.
The interview with Mr E was unremarkable.
Mr E repeated his affidavit assertion as to the father's visit onto his and Ms Williamson's property (paragraph 104).
The interview with Y runs from paragraph 107 to paragraph 123. Y denied any knowledge of family violence perpetrated by the father, and the father as being fun and smart (paragraphs 111-112). At paragraphs 113-114:
Y enjoys spending time with Mr Timmins but stated that he finds the travelling to spend time with Mr Timmins difficult due to the distance.
Y does not have any concerns regarding spending unsupervised time with Mr Timmins.
The report traversed the at times difficult relationship between Y and X and noted that Y enjoys spending time with the extended parental family (paragraph 118).
Perhaps surprisingly, when asked if he had a message for the judge, Y said he would like to live with his aunt, Ms C (paragraph 120), and that:
Y stated that he would like to be away from X and also Ms Williamson as Ms Williamson “gets angry around Court time”. Y disclosed that Ms Williamson shouts, swears and says “bad things” about Court and Mr Timmins.
Nonetheless, at paragraph 123:
Y stated that he preferred living with Ms Williamson than Mr Timmins as Y knows what is expected of him in the home of Ms Williamson. Y also has friends at school and is settled there.
X was somewhat different. At paragraphs 126-130:
X stated that he does not like spending time with Mr Timmins as sometimes Mr Timmins drives fast and yells. X stated that he would prefer not spending any time with Mr Timmins.
X stated that in the past Mr Timmins would consume alcohol to excess then yell and become aggressive. X also spoke of Mr Timmins arguing with people and yelling at other drivers. X expressed that he is having a difficulty forgiving Mr Timmins.
When asked what behaviour X would have to see from Mr Timmins, X stated that Mr Timmins would have to be “fine” for a while.
X spoke about enjoying the time that he spends with the extended paternal family during his time with Mr Timmins.
X stated that he would not be willing to spend time with Mr Timmins if the time was not supervised by Ms C as X does not like being alone with Mr Timmins.
Under the heading Evaluation, the report went on to note the unusual length of the intervention order (paragraph 135). At paragraph 136 and following:
Ms Williamson has stated that the violence was alcohol fuelled. It would stand to reason then, that if Mr Timmins is abstinent from alcohol that there should not be an issue with violence. This is not to minimise nor excuse Mr Timmins’ behaviour nor minimise the impact or experience for Ms Williamson and the children.
Mr Timmins has a history of excessive alcohol use and although Mr Timmins has been abstinent for over two years, Mr Timmins fails to understand that this history is not easily forgotten and that Mr Timmins has previously been abstinent and then returned to alcohol misuse.
It is positive that Mr Timmins has managed to maintain sobriety and that Mr Timmins has supports in place but it is understandable that Ms Williamson would be hesitant.
It is a concern, however, that this anxiety may be being placed on the children. X speaks of being fearful based on incidents that have occurred in the past. It is uncertain if X is truly fearful based on these incidents or is impacted by Ms Williamson’ anxiety.
If these are X’ own fears, it may be helpful if Ms Williamson, validated X’ feelings but also spoke about the changes that Mr Timmins has made and that he has not been a threat of late. This is something that could perhaps also be continued to addressed in counselling.
From the report supplied by Dr D, it seems that X is not as fearful of Mr Timmins as he once was.
The report noted the report of Dr D and continued, at paragraph 146 and following:
In the report provided by Dr D, Dr D spoke of Ms Williamson believing that Mr Timmins continues to be a threat and is unpredictable. Dr D also spoke of Ms Williamson being stressed and overwhelmed who struggled to engage in a way that focussed on the children but when able to focus on the children was a warm, cooperative and loving mother.
Ms Williamson has no doubt had some adverse experiences as a result of Mr Timmins’ excessive alcohol use but it appears that Ms Williamson is having difficulty letting go of this and this is impacting her currently. Ms Williamson may benefit from counselling to address this and assist in her wellbeing.
Y spoke of wanting to live with Ms C as Y wants to be away from X and also due to Ms Williamson swearing and being angry. Y disclosed that Ms Williamson denigrates Mr Timmins.
It is sad that Y feels caught in the centre of the dispute and is seeking to find refuge away from the parties. Ms Williamson spoke of praying for Mr Timmins and wanting him better. Mr Timmins is working to make those changes, yet Ms Williamson continues to denigrate Mr Timmins and not acknowledge the changes he has made, instead focussing on when he will fail. Mr Timmins is the children’s father and the children should not be exposed to Ms Williamson’ feelings towards Mr Timmins.
At paragraphs 152-153:
From all accounts the children enjoy the time they spend with Mr Timmins as well as Ms C and the paternal grandmother. This is important as it not only strengthens their connection with their paternal family but also their Greek heritage which forms part of their identity.
X stated that he would not attend if the time was not supervised. This view may have been influenced by Ms Williamson.
At paragraph 157 and following:
The Report Writer is aware that Ms Williamson does not want Mr Timmins to know her location, however, in order to prevent the children from having to travel long distances, it would be in the children’s best interests if the children were able to spend time with Mr Timmins in a location close to her home.
The children are of an age where they are not as dependent on adults for their care and safety. If there were any cause for concern, the children are at an age where they are able to protect themselves by notifying appropriate adults.
Dr D recommends that the children spend more time with Mr Timmins to further improve his relationship with the children. There do not appear to be any current risks and from all reports the time that the children spend with Mr Timmins has been positive.
Some weight should be given to the children’s views, however this should be tempered with the knowledge that Ms Williamson’ fears and anxiety may have been transferred to the children.
Although shared parental responsibility requires some level of communication, the Report Writer is reluctant to recommend that Ms Williamson have sole parental responsibility as the Report Writer fears that Ms Williamson may further keep Mr Timmins out of the children’s life.
The report went on to recommend equal shared parental responsibility, the children live with the mother and spend time with the father on alternate weekends, gradually increasing to overnight time and school holiday’s time. The report recommended that Ms Williamson attend with Dr D and generally recommended counselling on all fronts continue.
THE REPORT FROM THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
The department provided a report pursuant to section 69ZW of the Family Law Act, dated 7 February 2022. Much of it is historical in nature. Under the heading Current Situation, the report relevantly noted:
A further report was received on 21 October 2021 raising concerns for Ms Williamson mental health with concerns that Ms Williamson may have been making plans to end her life through suicide. The secondary report stated that Ms Williamson was making plans to relinquish care of the children to their father Mr Timmins, despite previous concerns regarding Mr Timmins perpetrating significant family violence and concerns related to his excessive alcohol misuse. It was reported that Ms Williamson had resigned from her employment and that while she was advising she planned to relocate to the United Kingdom to reside with her family there were concerns this may not have been accurate and that she may have been finalizing her personal matters prior to suicide. .
The report continued:
Contact was made with both Ms Williamson and Mr Timmins by phone on 21 October 2021. Ms Williamson expressed feelings of exhaustion and fear related to the ongoing Family Law Court proceedings and her concerns related to Mr Timmins continuing to pose a significant safety risk to her and the children. Ms Williamson denied any feelings of suicide however acknowledged that she was feeling overwhelmed and had contacted Mr Timmins' legal representative in an attempt to relinquish care of the children. Ms Williamson stated this was due to her feelings that she had been fighting the system for 10 years to keep her and the children safe and that Mr Timmins continues to perpetrate family violence on her through the system and through numerous breaches of the Intervention Order.
The report relevantly continued:
Through interview of both children, it was evident they are extremely aware of the conflict between their parents and the ongoing Family Law Court proceedings.
The children have clearly been exposed to discussions from both Ms Williamson and Mr Timmins in regard to the ongoing conflict and acrimony between parents.
The children repeated, on the part of Y, the desire to live with Ms C, and on the part of X, not to have contact with his father.
Under the heading Protective Assessment, the report relevantly noted the department did not assess the children to be at immediate or significant risk of harm. The report noted that there was no recent information to suggest that Mr Timmins was a current concern in respect of family violence or alcohol use, but:
Despite this, it is however acknowledged that Ms Williamson continues to experience the impacts of her experiences of family violence perpetrated by Mr Timmins and that this causes her significant stress and trauma.
THE REPORT OF DR D
Dr D's report was filed with his affidavit of 7 March 2022. Dr D noted that the family therapy with the father and the boys has occurred every three weeks to coincide with his access, starting in November 2021. Family therapy with the mother and the boys had only occurred twice, due to COVID restrictions and the mother's return visit to the United Kingdom. The report noted (page 2):
Mr E has also participated in the family therapy sessions with Ms Williamson and was a positive calming influence. It was apparent the boys are clearly fond of Mr E.
It is important to note that the family therapy session with Mr Timmins the day after Ms Williamson left for the UK was the least effective session with both boys highly dysregulated - possibly due to their mother leaving the country. Despite this, Mr Timmins was able to re-engage the boys calmly and effectively in the therapy process and in an appropriate manner.
I note the following relevant matters set out in the report (page 3):
Mr Timmins presented as a concerned and attached father who is worried for his boys. He seemed to struggle to accept some of the decisions made by Ms Williamson. He was calm when expressing his views, refrained from making negative comments about the boys' mother and validated Ms Williamson as a good person and capable mother. Mr Timmins has shown concern for the boys and acted in their best interest during family therapy.
In respect of the mother:
Ms Williamson has reported in the past her concerns about being judged by the Court system. Ms Williamson said she feels Mr Timmins is still dangerous and his behaviour remains unpredictable.
Ms Williamson engaged well in the limited family therapy sessions though at times struggled to engage in a way that focused on the boys. Of note, Ms Williamson said she felt she already does more than enough in the constant demands of parenting.
Ms Williamson presented as a devoting and caring parent whose life revolved around her children's daily lives. In the sessions she seemed highly stressed and exhausted from events in her life and concerned about the future emotional and financial security of the boys. When she was not overwhelmed with angst and anxiety about the current and future difficulties, Ms Williamson presented as a warm, cooperative, and loving mother.
X was described as:
X is an engaging polite young man who was actively involved in the family therapy sessions. Initially, he reported he had a significant fear of his father's behaviour becoming violent and unpredictable. Over the course of family therapy, this is now only a small fear. Over the time engaging in the family therapy, X has reframed his view and sees his father in a more positive light. Despite this change, he remains adamant he prefers the current living arrangements though is open to increased contact with his father.
X was quite reticent at the start of the family therapy sessions. However, he soon warmed and would smile and hug his dad and engage with his father in a positive manner.
The report continued:
When asked about the desirable changes in people around him, X shared that he is now less “scared” of his father but continued to worry his father would become violent and unpredictable again. At times, X felt he has been put in a difficult position because he feels his parents do not like each other.
I note that Y remained adamant he would prefer to live with his paternal aunt but was open to increased contact with his father:
Y was always the first to hug his father at the start of the family sessions, and he would smile and actively engage with his dad throughout the sessions.
Speaking about his wishes Y shared that he wished to live with his aunt Theia and for his brother not to hurt him anymore. He was not able to think of a third wish.
Under the heading Family Sessions Overview, the report noted, relevantly:
In their separate family therapy sessions with the boys, each parent was affectionate and attentive towards the boys, and the boys reciprocated positively. The boys seemed comfortable and relaxed and neither exhibited any difficulties in relating to either their father or mother.
Both parents seemed attuned to the needs of the boys and presented as keen participants in the therapy sessions.
At the last session with the father on 26th February 2022, it was evident that both boys were more guarded in their statements and general conversation about their life and activities.
Under the heading Evaluation and Recommendations, Dr D noted the mother's view that the father was an unsafe father and a negative influence on the boys. Dr D noted that neither child was able to express an opinion about spending any more time with their father, but continued:
It is important to recognise that some progress has been made in improving the relationship between the boys and their father. To determine future directions and to clarify more effective contact, further family therapy is recommended. A focus using more cognitive approaches may be a more effective intervention at this juncture.
The report continued:
The boys appear well attached to both parents. Their behaviour is similar with each parent, they are more guarded with their father, and they enjoy spending time with each parent. Each parent contributes positively to the physical, emotional and intellectual needs of the boys. It is unclear at this time if there is equal understanding of the behaviour and nature of the children's needs.
Both X and Y have special needs of a different nature. It will cause them immense emotional damage to see their parents maintain any form of negativity in a dispute over them.
In terms of future arrangements, the boys need to spend more than 5 hours a fortnight with their father if they are to build any sort of relationship. Being able to have extended leisure time with the boys would be an important part of building a positive attachment.
The parents need to be able to work together in a more collaborative manner for the benefit of their children. How this can be achieved in the context of the reported historic family violence from Mr Timmins towards Ms Williamson, in front of X, is not known.
It is evident from the family therapy sessions that X and Y remain conflicted in their emotional attachments. Such distress is likely to have long-term impacts. They go on to say, the strongest predictor of child mental health is parenting consistency. It is essential that the parents maintain a focus on the boys and achieving the best outcome based on their developmental needs.
THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT
What follows is taken from my notes.
The Opening and Evidence of the Father
In opening, Counsel referred to the fact that the father spent a lot of time with the children between 2015 and 2019 pursuant to the earlier orders. The issue is the father's alcohol use, and the mother says he is still at risk. He says he has been in counselling for over two years and works as an allied health worker. He has been sober for two years, and his testing shows him clear of alcohol use. Counsel formally read the affidavits of Ms J and Ms L.
The father was called and adopted his trial affidavit as true and correct.
He is an allied health worker in a clinic.
Under cross-examination by Counsel for the mother, the father confirmed that he was an alcoholic. He confirmed his regular attendance on Alcoholics Anonymous and other supports, which is ongoing and indefinite. The condition is not something that goes away. He addresses the steps to sobriety on a daily basis and is engaged with the process of recovery. He attends meetings every day and has his own meetings on the weekend. He has a sponsor. He is coming to terms with alcoholism. He sees Ms J weekly. Normally, it is every two weeks, but at the moment, it is one. He has also been seeing a psychotherapist for some time. He is sleeping right and eating right and identifying issues. When asked if he was taking ownership of his past actions, he said, "Absolutely." He takes responsibility for events past and present. He is making amends by the way he lives today. When asked if he acknowledged the things he did affected the mother and the children, he said, "Absolutely. I take responsibility." They have been separated and divorced for 10 years, and he has little to do with the mother. This is not taking away from her experiences of the marriage, which were very regrettable. There were effects upon Ms Williamson and the children from him drinking. He was the last to know he was an alcoholic. He does not feel anyone should just get over it. When it was put that it might be difficult for the children to let things go, he said there is a big difference in him not drinking at the moment. Spending time and continuous sobriety is building trust. Relationships are being restored. In the times he was drinking, it was challenging and difficult for the children. When it was put that this would take time, he said this has been happening. The kids are aware of his recovery program. He had showed the children his two-year token. They said that was great. He does not talk too much about it. They get a lot of information from the mother. He gets it, but he should not blame others. When taxed with paragraph 30 of the family report and the fact that the threat in the past was real, he said he did not blame the mother for the children not wanting to see him. When asked if he accepted that the children were at risk when he was drinking, he said it was unacceptable to be in charge of children when drinking. It was put that the children told the report writer he had driven them when drunk, but he said he did not think so. His drinking was usually when he was not in charge of the children. He could not say for certain.
Cross-examination turned to the incident in the skate park in November 2018. Counsel put it that this would make the children feel unsafe. The father said the children brought this up recently. They asked if he remembered the time he was punched in the head. He was at the skate park, and there was a person taking photographs of the children. He approached the individual, who said he was taking photographs out of nostalgia. He demanded to be shown the photographs, and the photographer ran away. The photographer fell over, and he fell over him. A person came up and helped him. He got up and went to the police. They did not even take a statement. He got the police to tell the mother. In response to a question from the Court, the father confirmed that, looking back on it, this was not a very clever way to have acted.
The father said he had not had any drinks since his rehabilitation, and when asked whether it was likely he would drink at all, said, no, it was not foreseeable in any way. When asked if he would agree with an order to be restrained to having alcohol under .05, he said he intends to be completely abstinent. He would agree to a 100 per cent restraint if it was most reasonable. Counsel put it that he had relapsed in a number of different years, but he said this was not correct. He was not into recovery until after separation. It is nine years from separation and divorce, and he has been sober for seven. He was not sober twice in that time. He has a sponsor and has regular meetings. He has not picked up a drink. Treatment will not cease. Some members have 20 or 30 years up. When it was put that he could not provide an absolute guarantee, he said he could not answer. He will take any tests. He has no intention to drink and has undertaken hair follicle tests. He is prepared to undertake breathalyser testing before and after his time with the children. His sister is very helpful as a supervisor. He had no problem with her telling the mother if he relapsed.
Counsel asked if he understood the children were hesitant about unsupervised time. The father said he has concerns that the children are exposed to adult issues and denigration in the mother's care. The children are loyal to the mother. He was not sure how Independent The Children's views were. It will help the children's trust if he is honest about things in the past. Counsel put it that he used to drive too fast and yell at other drivers. He said there was an incident in 2015 when he had an outburst towards another driver. It was not pleasant for anyone. Counsel put it that X's problems at changeover come from because he remembers the past driving too fast and dangerously. The father said this was not his memory. He recognised a hesitancy when time restarted, and X in particular. It faded very quickly. Now they approach him very quickly and are tactile.
Counsel put it that X has flashbacks about his drink driving, and he was not truthful. The father gave an elliptical answer which blamed the mother. He said he was not sure what X was referring to. He has concerns that the mother reminds them. There had been alcohol bottles in his car, because at the time, he was drinking. He was working away from home. Bottles remained in the vehicle. When asked how many drinks he would have been taking in 24 hours, he said a minimum of six stubbies. He denied never being under .05. He drank every day. He understood that violence was alleged. When Counsel put it that he had stalked the mother after separation, he denied this. Counsel put that he went to her home to confront her husband about the issue with smacking. The husband said he was not confronting. He just wanted to understand. He called the DHHS and the police, and called the mother but got no answer. The police advised that there was no intervention order at the time, and he wanted it cleared up before he was going to go to New South Wales. He and Mr E had a very civil conversation, and he took his word for it. It was a two-minute conversation. The children's safety is very important to him. It may have been better if Ms Williamson’s partner had responded and come to his place.
This answer is perhaps, I interpolate to say, typical of the extent to which the father, in some of his answers, sought to put the blame for his difficulties on everybody else.
Counsel traversed an incident at a skate park in 2013. He did not recall this. The mother was working 50 metres from where he lived. It was possible he had parked behind her in 2017, as there were very few car parks. He denied stalking her in August 2013. He admitted filming her in July 2015 while she was filming him. When asked about discovering an address through Y, he said he had taken Y to the hospital, and this is how he got the mother's address. When it was put that he had questioned Y about where he lives, the father said this just came up in conversation.
I interpolate again to say the father's answer to this question was rambling and non-responsive and self-serving.
He went on to say that he was not concerned where the mother lives. Counsel put it that X had told Dr D that he was anxious when the father yelled. The father said he did not know what X was referring to. He has sometimes disagreed with his sister and could not say that he has not raised his voice. He has not been aggressive to his own mother, as far as he can recall. He had done a men's anger management course and found it quite useful. When asked if he was aware that the children had behavioural problems, he said he gets limited information. He agreed that X has told the report writer he did not want to spend time. He believes the children are at ease with him. Counsel put it that the mother was justified in her anxiety about the children spending time with him. The father said she knows him from their marriage. They have had no contact in the last 10 years. Her concerns are justified given the history. He has had over two years of continuous sobriety, and this was a way of reassuring how he was addressing living his life today. Alcohol is no part of it. He understands the way he behaved was challenging for her. Counsel asked why he proposed to relocate to Region G in the next six months. The father said he was going to relocate within six months. He will move closer. The children are getting older and have friends, and this will increase as they get older. Four hours each way to spend time is the case regardless of who does the driving. He was asked how he would handle his work if he moved, and the father said he starts at 4 pm and finishes at 9 am. His work is very accommodating. He will work from Monday to Friday and finish at 9 am on Friday, which gives him time to get to Town B. He will have a base at Town B and has considered time in the school holidays. He will probably stay with his mother or sister. There is no shortage of work in Region G for him, but he can continue for the moment in Melbourne. When it was put that he and the mother do not get along, he said they do not interact. He would like information to pass between the parents. When asked how, he suggested the use of an app. When it was put that there were no communications between him and the mother without conflict, he said he had been willing. When it was put that there was little communication, he said it was not driven by him. He can understand the mother being reticent given the history.
Counsel noted that he had told Dr D that he wanted to support the mother in the best way for the children. When asked what he had done to do so in the last 10 years, the father said he had complied with the intervention order. He has not been convicted. He had sought to clarify her marriage, but he police told him, it was nothing to do with the children. He has paid child support as requested and encouraged the children's extracurricular activities. He has been quite amicable with her partner and is civil at changeover. He is not seeking to find out where she lives.
Counsel put it that he paid only $37 a month in child support. The father agreed and said he is now working full-time and had updated his income. He said the Child Support Agency had not agreed to increase his pay but wanted an application from the mother. He cannot communicate with the mother. She does not want money directly from him. He has sent her money. He has paid for sporting activities and schooling when the children were young. The last time he paid for extracurricular activities was probably 2017.
The Father under Cross-Examination by Counsel for the Independent Children's Lawyer
The father confirmed that he had not quite finished year 12. He has obtained a Diploma in 2015 and a further diploma since then. The organisation he studied with was based in City N. The course was a year and a bit, 18 months of part-time study. He was in recovery and was interested in working in the field and to gain information. The course taught him about mental health. It covered the effects of alcohol and other drugs on the community and individuals. He thought he would do counselling or work in that field. Counsel asked if he relapsed after his course. He said maybe in 2015 to 2016. His first recovery period lasted three years, but his house burnt down. It was arson but nothing to do with him. He lost all his belongings and had no insurance. It was a particularly challenging time and a very distressing experience. He was working in Region G at the time. Previously, he had worked in business for 20 years, and then, after separation, as a tradesman. He then moved to Employer P. He worked for Employer O for maybe two years and then Employer P maybe three. The longest period of time he has been unemployed is one year, which was early in his recovery in 2020 to 2021. He had to put a lot of effort into his early recovery. He tried to work, but it was too much at the time. He had never lost a job because of alcohol. When asked what he was like when he drank too much, he said it was unanimous that he was better when he does not drink. Once he has one drink, he thinks he wants another one. Counsel put it that he did not remember what happened when he was drinking. He said he does not see what others see when he is intoxicated. There are a lot of allegations by the mother, but the police records do not show assaults. He does not suffer from blackouts. It is not for lack of memory. He has made poor decisions. Counsel put it that he has to be abstinent, and the father said social drinking is not an option. If he is drinking, he cannot control the amount of alcohol he drinks. He drank after separation. Ms Williamson left in December, and he was in rehab at the end of that month. This was in December 2012 for four weeks. He was sober for four years. He started AA meetings but was not sure if he had a sponsor at the start. He got one after about six months. He had not been helped through the three years. He did not have regular therapy and was not doing AA thoroughly. He lacked awareness of how serious the condition was. He relapsed in 2015 to 2016 after the fire. He went to rehab a year later. He was seeing the children throughout each weekend and half school holidays. He was not drinking when the children were with him. He drank the day before the children and did not have hangovers. He was not irritable but did not know about happy. He went back to rehab in 2016 for four weeks. He had no sponsor and was working away. He had four weeks as an inpatient. He realised he could not stop himself drinking. Then his second relapse ended in December 2019. He had a year of drinking between 2018 and 2019. The previous detox was not as serious.
When asked what was different between now from his other relapses, the father said he realises that relapse is a real risk and is addressing it. Previously, he thought he was fixed, but he was not. He is an alcoholic. He had never had therapy before. He is quite sensitive to the issue of separation and the children. Therapy will continue fortnightly. He pays for it at $80 per session. He also has regular, frequent meetings at AA. A meeting a day is serving him well, and it is also online. He has one every other day or one per day. Normally, it is one hour, but it can be one and a half hours and as short as 45 minutes.
Asked about gambling, the father said he has not gambled for some time. He went to rehab for gambling. He spoke with K Hospital, and it was agreed that he should go to rehab in April 2020. He was a gambling addict but does not gamble now. He is an allied health worker. When asked what this entailed, he said a lot of it was practical. He facilitates meetings daily. He meets clients. He loads and unloads dishwashers and shuts the gates. He is on stand-by overnight. It is a stay-in facilitation. He works there. They have nine people over two facilities. There is one in Suburb Q and the other in Suburb R. There are four patients in the one he works in.
He had undertaken work in Town B. If he relapsed, he would lose his job. It would be fatal for future employment. He is paid about $90,000 per annum. He approached the Child Support Agency in about September 2021. He does not communicate with his ex-wife. He called the agency and told them his income had changed, but they said they go off the previous year's income. It can only be requested by the other party. There will be an increase in child support. He does not know how much. He would encourage the mother to request the increase.
He agrees to continue therapy with Dr D. He had told him he was happy to pay all of it last week. He has had six sessions. He has not sent him an invoice. He does not know how much the sessions are but guesses $90-$150 per hour.
The father confirmed that he has one sister, who is his only sibling. His father is alive in a nursing home. He lives with his mother in Suburb S. He works overnight and sleeps at his workplace. His mother is 71 or 72 and in good health and is close to the children. They are her only grandchildren. Her sister lives close by and sees the grandmother a lot. His mother does not see the children a lot because of the distance. Previously, she had seen the children independently of him. His cousin has children about the same age and lives in Suburb T. His uncle is a grandfather figure also but has not spent much time with the children in the last few years, and nor have the cousins. He has looked for a four-bedroom house in Town B, which will cost $400 per week. He has to await the Court's decision. He works from Monday to Friday 9 am. He is on stand-by but was not working the last month. His mother and sister would visit in Town B.
When asked about X being resistant, the father said that from what he had read, it was not the feeling he got. When asked if he had thought about how he could make time more attractive, he said he listens a lot. Y is quite talkative. He needs to make space for X. He needs to consider what he says and is aware of the activities they like.
There was no re-examination.
The Evidence of the Mother
The mother was called and adopted her trial affidavit as true and correct. Under cross-examination by Counsel for the father, the mother confirmed that her main concern was the safety of the children in the father's care and upholding their views. She was referring to family violence, including driving, yelling at his parents and the incidents at a skate park. She conceded that there had been orders in 2015 for alternate weekends and school holidays. It was put that these were made by consent, but she said she was never given an option. She did not know she had an option not to consent. She confirmed the incident at a skate park and that the police told her that the father was shaken but the children were okay. She also confirmed that she had accused the father for stalking because of another incident in 2013 at a skate park. There was a photograph of an incident in February 2019. The father was drinking at the time. When asked if she accepted that he had been sober since rehab in 2019, the mother said she was glad he had been sober for two years. It was a great achievement. He is violent and aggressive when he is drinking. She agreed that no charges have been laid against the father in respect of her. Counsel put it that there no assaults on the children. She said X had been bound in his bed a dozen times and thrown into the bedroom. The father denies everything. She had raised these matters before 2015. Private supervision commenced after she came back from U Centre. Counsel put it there was unsupervised time until March 2019. She said Ms C (Ms C) had contacted her in 2016 and suggested some time in the daytime for lunch. When she had sought supervision because of the father's drink driving in 2018 and 2019 on five occasions, Ms C arranged lunch. Counsel put it that there were no driving charges brought against the father. The mother said she had told the school. He took off drunk. She had received an email saying that they arrived safely. He has never been caught. There are beer bottles in his car. The children tell her he smells of alcohol and shouts at other children. The children tell her what has occurred. The children become more distressed, and X becomes more violent, and Y wets the bed. When Counsel put it that these matters had not provoked her to return to court, she said she had tried to mediate.
The mother confirmed that she had been living in Town H but moved to Region G in November 2019. She lost her job in June 2019. She discussed it with her husband. Mr E has family in Region G, so they sold and moved quickly. She did not discuss this with the father. She pointed out where she lives is nothing to do with him. Counsel asked if the father did not need to know where the children go to school or where she lives. The mother said he does not need to know where they live. He had never helped with school. She did not think the father wanted to have a relationship with the children when they moved. Only his sister had sought time. In March 2019, he had come to the school, and the children said they did not feel safe.
The mother confirmed following lunch that she had moved to Region G without contacting the father. She offered supervised contact, and he made no contact. Only the sister organised this once. There was no application to the Court. She confirmed that she had seen three different psychologists to seek therapy to support her. She had a couple of sessions with Dr D, which were $190 each. She also paid $90 for the children to see Dr D each time. V Family Centre has paid for the father's share with Dr D. She had only had two sessions with Dr D. She only missed one session because of COVID. She missed the previous weekend because they had attended a funeral. Dr D had been concerned about payment. The father has seen Dr D six times, and they have seen him twice. It was not their fault. When it was put that they had a better relationship over time, the mother said she did not think that therapy has changed anything. Counsel put it that Dr D's report talks about the progression of therapy, and she said she had read that. She said, "Mr W says that, but I'm not in the room with them. All I see is changeover and what they tell me." She accepted that X is less scared and better but still concerned. When asked if she could say anything positive about the father as a father and his relationship with the boys, the mother said she was glad he had taken steps to become sober. He has done three or four rehabs. It was required for the relationship. When Counsel asked if she accepted the boys should have a meaningful relationship with the father, she said, "Absolutely." She has suggested a 10/4 arrangement. It is the children's wish that the aunt be present. Her concern is that fast-tracking it could be detrimental to the children. They need trust with their father. Both seem comfortable with 10 to 3 every three weeks on a supervised basis. When asked if the father taking a breathalyser before and after time would alleviate her concerns, she said she would like to receive the results. She said she was concerned. She appeared to suggest the children want to see the results. When asked if she had ever encouraged a positive view of the father, she said yes (an answer I find impossible to accept). She does not discuss the father relapsing with the children.
She sees the phone ringing and says, "Dad is calling, and would you like to speak to him?"
The father continues to minimise his problems with alcoholism. He minimises and lies to disguise his violence to her, the elder child and his driving. He is an alcoholic. She did not support more time at this stage.
When asked about the email she sent to the father's solicitors in October 2021, the mother said he got the road name opposite to their house. The police would not help with a breach of the intervention order. He keeps stalking and knows that they live near Town Z. She does not feel safe with him present. The answer went off into what can only be described as a lengthy vent about the father. The mother said she feels completely unsupported and the intervention order does not function. Counsel repeated the question about the email on 20 October 2021. She conceded sending it. She wanted to be away from violence. She had reported to police, but nothing was done. She does not want him near their home. Her relationship with X is affected by the orders for spend time. The current time is not what he wants. When it was put that the father was prepared to undertake a random hair follicle test, the mother said she was concerned X would not want unsupervised time. When it was put that supervision could commence with Ms C to begin with, the mother said she was concerned how X will react.
The Mother under Cross-Examination by Counsel for the Independent Children's Lawyer
The mother confirmed that she was 29 when she arrived in Australia. She was on a one-year working holiday and met the father. Previously, she had worked in Employer AA. She had undertaken customer service work for nine years. She then worked for not-for-profit organisations. Then she trained to get a carers certificate to do Mum work. She was a carer on a freelance basis. All her family are in the UK except her husband, Mr E. She has only returned to England once. She has not been to the United Kingdom for eleven and a half years except for a one-month visit in January 2022. Mr E looked after the children while she was away. She has Zoom and the like contact with her mother in the United Kingdom. She also has frequent contact with her sister and father. Her niece and nephew send cards. When asked if time was spent with the paternal grandmother or aunt, the mother said Ms C was always the contact. They would meet up on the Region F or in Melbourne - monthly or six-weekly contact. When asked about recent visits, the mother said they went to Suburb BB and met Ms C and Ms CC (the grandmother) once in the school holidays. Since they have moved, it has been less, and usually in the school holidays. She has a good relationship with Ms C, who would act protectively. Ms CC also has a history of family violence and is very nervous and shies from aggression.
Counsel said he wanted to go into the past a bit. The mother said it is how it is, and counselling will not make it fine and dandy. Counsel asked if she was angry with the father, and she said no. When asked if she was sure, she said it was not anger to him. She has forgiven him. But it is difficult not to act protectively as a mother. She is still working through his treatment of the children. She trusts God will help her. The relationship with the father may affect the children’s future relationships. It can make them less trusting, but family violence can do that also. The mother confirmed that the therapy was going well. She conceded the husband had abstained from alcohol for two years and was helping others. All of this was commendable, but alcoholism is an illness. When asked if she held up what the father was doing as a role model for the children to follow, the mother said the boys have spoken about the father's medallion and praised this. The children want the father to be well. When asked if she was sure that her anger might stop this admiration, the mother said, "You keep saying I am angry, but I am protective." Counsel put it that her email was based on anger. The mother said no. It was trauma. She is in a court system that suggests nothing happened. "When he comes to our area, he will keep stalking us." When asked what she meant by "stalking", she said following her. Surveillance. Coming to her home without invitation.
Counsel dealt with the question of coming without invitation. This was said to have happened in 2013 in Suburb DD. He followed her home. The police said it was a coincidence. He had not entered her home. He was on the driveway parked, but not for long. When asked for another example, she said the skate park. He came in and eyeballed her in 2013 again. When asked for another example, she said he came to her workplace in EE Shopping Centre and filmed her getting in and out of her car and was waving at her. This was in 2016, after she married Mr E. When asked what other stalking had taken place, she said he came to Town H twice. He was outside in his work van. He was just at the kerb watching. She thought he was working for Employer P, and it could have been a job. When asked about others, she said there were changeovers. He was acting oddly in 2017. She has just got an intervention order in place. He was threatening and followed them through the plaza. When asked if anything was said, she said, "Something about shoes." Usually, it's to do with her not parenting well. It is about the children being dirty and her not keeping them clean. He had said to Mr E, "I will come over, and we will talk man to man. Know what I mean, Mr E?" He had also illegally obtained an address in 2016. He had badgered a junior member of staff at the centre, and they called and apologised to her. When asked how that was illegal, she said there was an intervention order in place. The effect was he got the address of his children. When asked if there were any other examples, she could not think of any.
When asked about breaches of the intervention order, she said, in 2013, he came to where she was studying. Ms FF, who was the manager, had asked him to come and pay fees. The police said she was flaunting the order but he was there to pay fees. The father did not come into the classroom (this appears to have been the incident where the father attended the kindergarten to pay fees at the mother's request).
Counsel asked about the incident at the school athletics. She had left after lunch, and the father came and tried to collect the children. It was not in his time. This was 2018. The father had thought it was his time, but it was not.
On 12 February 2019, he came to the school outside of contact time. He said he had arranged to see the principal, but he had not. This was about 12 noon. The children would not let him take them.
When asked if there was any other stalking or breaches of an intervention order, she said she was concerned about his drink driving in December 2018 to January 2019 five times. The children saw him drinking. Counsel put it there was not much concern or danger for her. She said, "It just keeps coming. I do not want him anywhere near me. The Court has decided he can move to my local area. For me, he has stalked us for three and a half years. He has followed me to school and to the doctor's surgery," she thought in 2015. When Counsel put it that she was making mountains out of molehills, she said she had had family violence. She had gotten an intervention order to get him away. There was no re-examination.
The Evidence of Mr E Knowles
Mr E adopted his affidavit as true and correct.
Counsel for the father cross-examined about the incident where the father came to the property. He said that there were reports that the children were being smacked. He quickly alleviated his anxiety and said no one was smacking the children. He had walked the father off the property.
In re-examination, Mr E said that the father's manner was threatening. His concern was coming through as a threat. It was more up-front and abrupt. On reflection, he realised that the father had violated their privacy. He walked 10 metres onto the property up to the yard. He is usually the one who organises changeover. Usually, it is him and Ms C or him and Ms Williamson. There is not much conversation with the father. They had one brief communications. He had thought it was supervised, but it was not. The children were not happy about unsupervised time. He checked with the children. He asked the children, "Do you want to go?" and they did not wish to.
The Evidence of Ms C
Ms C adopted her affidavit as true and correct.
Under cross-examination by Counsel for the mother, Ms C confirmed that visits were going well. She sees the father outside visits. She has not seen him drinking since December 2019, and she would be likely to know. She is aware of his behaviour when he is drinking and when he is not. When he is drinking, he is tense. When asked if her brother had been violent to her when drunk, she said she had no recollection of that. It was put that the children say that the father yells at her and her mother. Ms C said that would be true. He has raised his voice to her and to his mother. This was in front of the children. The children had not told her they were anxious. When she asked if they wished to see the father, they said they did not. This was only once, and there were no other times. The children are not anxious around the father. When asked if she had called the police in 2018, Ms C said he was fearful he would drink and drive with the children. She contacted the mother. There was no other occasion. She was prepared to continue to supervise and would let the mother know if the father was drinking.
Under cross-examination by Counsel for the Independent Children's Lawyer, Ms C was asked why she thought he was drinking in 2018. She said he was drinking in that period. She was not sure if it was to excess. She could not remember how much he was seeing the children. She told the father she would alert the police or the mother. She knows from his behaviour. He is tense and agitated. He is not so easy to talk to and not open to other people's perspectives. He is argumentative in a passive way. When asked if she had ever known him to be violent, she said he can raise his voice. He can be louder but does not swear, and there is no violence. She sees a lot of him. She has noticed a change. He is more gentle. He is easier to talk to and more aware of other people's feelings. He has more presence with the children. He is asking how they go at school and their subjects. He does research about activities to undertake with the children. The children are not reticent about school at all. When asked if they disclosed where the school was, Ms C said they had not said, and he does not ask. When asked what happens in the five hours of spend time, she says they are quite active children. They enjoy the skate park, and other activities. When asked if the children were different with the father, she said, "Not really." They had different characters. The father loves carrying Y on his shoulders. They often argue about who gets to sit in the front with Mr Timmins. Both are attached to him. Changeover is at Town GG Train Station. She walks over to the mother's car and her partner. She walks the children to his car. They see his car in the distance. They are usually running, and she runs after them. The children have never been reluctant. They are fine on return. They wish they could stay longer but understand the situation. She did not recall the children being reluctant to spend time. She did recall Ms Williamson sent her a text saying the children were not comfortable to go.
The Evidence of Dr D
Dr D adopted his affidavit as true and correct.
Under cross-examination by Counsel for the Independent Children's Lawyer, Dr D confirmed that he had read the family report. It covers all of the facts. It appears very accurate in its summation of what is happening. When it was put that the record recommended unsupervised time, Dr D said he would agree totally that there needs to be more contact with the father. Once every three weeks is not enough. The boys, however, would not be happy with half the school holidays. He was not opposed to longer time. He would like it to be a stepped progress, possibly providing for week-about time in the next long summer holidays. When asked if week-about was possible, he said once the relationship was established by the summer holidays, this would be good. The aunt plays an important role, particularly for X. It gives him some security. The aunt was to be available and contactable by phone. Counsel asked if the father said there was time in Town B, would telephone contact with the mother or aunt be enough, and Dr D said he thought so. The boys are old enough to extract themselves if there are problems. When asked about changeover between the father and the partner, Mr E, Dr D said that Mr E has good relationships with all the parties. He plays a good mediator role. He was in favour of the aunt being in substantial attendance initially, but it should move away from supervision to a more natural relationship with the father.
Counsel for the father had no questions for Dr D.
Counsel for the mother asked if he had seen the children alone. He said he had in the early stages. The children were free to express their concerns and wishes. Counsel put it that X had told the family reporter he did not want time unless it was supervised. Dr D said the nervousness X shows that he is struggling to build a more easygoing relationship. If there was more time, he could explore if X wants a better relationship with the father. When asked what would happen if the father relapses, Dr D says this would be traumatic, particularly for X. Y had not experienced the father's behaviour. The father needs to be careful to be safe. His observations were based on the current presentation and observations with the children. He did not think it was likely the father would relapse. Counsel put it that X tells his mother he does not want to spend time and pointed to the possible undermining of the relationship between the mother and X. Dr D said this was a perennial problem. He is a young man with his own thoughts and ideas, but he has not had the opportunity to have a relationship with his father. In his observation with both parents, X was very positive. He relaxes and engages very well. When asked how the mother would cope if there was unsupervised time, Dr D said it would have an impact. What she has experienced in the past is not resolved, and that is understandable. If the mother was to obtain additional support through Orange Door, it would be very useful to temper her anxiety.
Final Submissions by Counsel for the Independent Children's Lawyer
Counsel spoke to the minute that was provided. He sought equal shared parental responsibility and for time to start in May of 2022. He detailed the time on weekends, with the first three weekends to be supervised by the aunt and then progressing on. The order in respect of summer holidays should commence this year. Counsel referred to section 60CC of the Family Law Act and pointed to the need to maintain a relationship between the children and their parents. It was also necessary to protect them and keep them safe. The wishes of the children are relevant but not determinative. The children should not be empowered. It is a high-conflict situation. The ICL agrees with the family report and Dr D that five hours is not enough to maintain a relationship. The father's behaviour is adequate if he is not under the influence of alcohol. The evidence of his sister was telling. The father said he was sober for three years before, but then his house burnt down. The current therapy is very reassuring. It is more intense and longer than before. He is employed at the clinic, and he is providing advice. Unlike many others, he was not full of bombast. He was convincing in his efforts to overcome his difficulty, and he openly admits he is an alcoholic. There has been nothing untoward in the past 20 months. The sister would have reported it. She was a very good witness. The mother accuses the father of family violence. The marriage ended in 2012, and the father denies violence. But he is an addict at the moment. He may not remember or choose to remember what it was like. There was little cross-examination about the violence. The consent orders gave him generous time, but the mother still bears the scars. The mother is still very angry with the father and has not forgiven him. This has an effect upon X's reluctance. It is quite different to how he presented to Dr D and the father's sister. There is some wariness but not as much as the mothers says. The mother's evidence about the father's frequent stalking and breaches of the intervention order were shown through cross-examination not to have happened. The breaches of the intervention order were not frequent and minor. The father is no risk to the children. It is time to move on. Orange Door might assist the mother.
Final Submissions by Counsel for the Father
The father supports the Independent Children's Lawyer but has some minor differences reflected in his minute. His orders go further than the Independent Children's Lawyer and include a breathalyser at the start and finish. There is also the option of a hair follicle test at the mother's choice once per year. If there was a relapse, then there should be supervised time only. The father knows this is his last chance. The orders sought are in line with family report, and he accepts that holidays should start in the long summer holidays, as Dr D suggested.
Final Submissions by Counsel for the Mother
Counsel was content to rely upon the case outline. She sought changeover at Woolworths in Town B rather than McDonald's. Her concerns are continuing. She is not comfortable with making the decision herself and leaves it to the Court. The question is the risk of harm if the father takes alcohol. He is an alcoholic and is currently sober but admits relapsing twice. There are no guarantees he will not relapse again. The consequences of relapse are dire. The mother says she wants a meaningful relationship between the children and the father and has sought the assistance of the aunt. The father conceded that the mother was justified in her concerns. If the time was unsupervised, the children could be exposed to alcohol abuse and a risk of harm. He had driven while intoxicated. It was clear from Dr D and the family report the children had been harmed in the past. X is reluctant and wants supervision. He has a good relationship with the aunt. The children are beginning to build a relationship with the father. It is critical nothing goes wrong. There should at least be monitoring. If there is going to be more time, it should take longer to introduce. X is reluctant. He remembers the father driving erratically. More time may undermine the relationship between the mother and X. She does not consent to unsupervised time.
Some Very Brief Observations about the Witnesses
Neither of the parents was an entirely satisfactory witness. As already indicated, some of the father's answers were elliptical and non-responsive. At times, most particularly about X's flashbacks about drink driving, his answers were unbelievable and vague. As indicated, he had a tendency to place blame on the mother. Having said this, however, I should record that in the main the father was generally a clear and responsive witness. He openly faced up to his alcoholism. He does now take responsibility for his past conduct, even if he does not perhaps fully accept the extent of it, something to which I shall return when I deal with family violence. He did, however, at least in outline, accept the nature of his previous conduct.
The mother tended to give long, self-serving answers and did not, on a number of occasions, respond to the questions put to her. She had a tendency to answer questions with speeches of her own which did not answer the questions as put. Contrary to her denials, it is apparent that she is still absolutely livid with the husband for his prior conduct. I will return to this issue when I deal with family violence but for the moment would comment that her anger with him is entirely understandable. It is all too easy for third parties, including the Court, to just shrug their shoulders and say this was a long time ago and it is time to get over it. To a victim of family violence, the events do not necessarily at all lose their immediacy merely by effluxion of time. To be exposed to family violence is a terrifying experience and not one that one can reasonably suggest a victim simply put to one side as a matter of course. Nonetheless, she has this dire view of the husband, at least in part justified, and it suffused her evidence at every turn. Her own children have said she denigrates the father, and it is clear that she does.
Both Mr E and Ms C were excellent witnesses. I entirely agree with the submission of Counsel for the Independent Children's Lawyer that Ms C was a particularly excellent witness. She readily made concessions against her brother's interests when they were there to be made and answered every question put to her with what was transparently obviously a truthful series of answers.
It is not generally necessary to comment on professional witnesses. The family report writer was not required for cross-examination, which speaks for itself. I should, however, record that Dr D impressed me particularly. His answers were given in the most measured and reasonable way and clearly reflected his very considerable experience in the field. I found his answers persuasive and helpful.
THE STATUTORY PATHWAY
The statutory pathway is described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(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 and 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.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
The mother seeks an order for sole parental responsibility and points in her case outline to the presumption being rebutted by family violence. The father and Independent Children's Lawyer seek an order for equal shared parental responsibility.
As I will explain when we come to the issue of family violence, there is no question in my mind that family violence has occurred during the relationship. It has also occurred to the children when in the father's care on occasion when he has been alcohol-affected. Of course, all this means, pursuant to section 61DA(2), is that the presumption does not apply. Self-evidently, the Court is still required to consider the question of parental responsibility in the light of the various matters set out in section 60B of the Act, remembering also that the children's best interests are the paramount consideration pursuant to section 65AA.
Little was said in submissions by any of the advocates as to the question of parental responsibility other than indicating the orders sought. In my view, it is important to note that an order was made by consent before Judge Jones in 2015 for equal shared parental responsibility. I note that the mother says in effect that she was given no option, but the fact is that both she and the husband were at Court, albeit self-represented, and the order was made by consent. There has been no direct evidence, so far as I can see, that the making of that order, per se, has led to any disputation. Of course, the mother has taken a number of unilateral decisions of some considerable importance. Following her relocation to Region G, she alone chose the school in which the children were to be educated. The father does not seem to have cavilled with this course of conduct, and in my view rightly so.
In circumstances where the mother's attitude to the father remains so hostile, and in circumstances where, for reasons I will be developing, I am going to propose that the children spend substantial and significant time with their father, it is plain that an order for equal shared parental responsibility is in the children's best interests. Not only has the existence of such an order not been problematic (even though a number of other things have been), but the need for the children to have both parents involved in making major decisions about their lives is in my view self-evident. There will be an order for equal shared parental responsibility.
This, of course, brings into play the spend-time regime, and of course, once again, the requirement to consider equal time is displaced by the family violence that has occurred. Accordingly, I turn to the matters in section 60CC of the Act.
Section 60CC(2) - The Primary Considerations
All concerned agree that in principle there is a benefit to each of the children having a meaningful relationship with both of their parents. Where they differ, of course, and very significantly, is in the need to protect the children from physical or psychological harm. Although the question of family violence is, of course, an additional consideration pursuant to section 60CC(3), in my view, it is appropriate, given the significance of the matter, to deal with the question of family violence now.
As Counsel for the Independent Children's Lawyer correctly submitted, there was little evidence given in any detail about the question of family violence during the relationship. The mother did say in her affidavit material that she had been thrown onto furniture and otherwise been violently abused by the calling of very unpleasant names. So far as I can recall, this was not traversed at all in cross-examination. The intensity of the mother's position now, as I find, springs from the intensity of that experience. True it is that in the dreadful continuum that family violence represents, the assaults upon the mother are towards the lower end of the scale. To say this, however, is to miss the point. To be in your own home being called horrible names by a drunken partner who is yelling at you at the top of his voice must be terrifying in and of itself. To be physically assaulted as well by somebody far bigger and stronger than you, even if the assaults are not of the most serious kind, must likewise be incredibly traumatising. Everything the mother said and the way she said it supports the conclusion that this must have occurred. The fact that it is long ago does not mean it is long ago in her memory.
After separation, plainly, there has been no family violence as such by the father on the mother, save to the extent that he may have denigrated her. She has certainly denigrated him, and this, of course, is family violence within the expanded meaning contained in section 4AB(2)(d) of the Act. The children have told the family report writer and Dr D that the mother denigrates the father, and I have no doubt this is so. The father, in my view, presented better on this score than the mother. He accepts responsibility, at least in general terms, for his actions. To the extent that he has denied family violence during the relationship, I accept the inference sought to be propounded by Counsel for the Independent Children's Lawyer that he probably simply does not remember what occurred, owing to the degree to which he was affected by alcohol.
That the father yelled at the mother and has yelled at the children is borne out by the evidence of his own sister who confirms that he yells generally and has yelled at both her and her mother.
In the period post-separation, the father has committed family violence against the children by yelling at other drivers when he is driving them around, and yelling at the children.
These findings of family violence need to be given greater emphasis by virtue of section 60CC(2A).
I will return to the question of the alleged stalking (itself a form of family violence) and breaches of the intervention order when I deal with the matter under section 60CC(3)(j) and (k).
The Additional Considerations - Section 60CC(3)(a)
Y is clear. He has no fear of his father and no reservations about spending time with him at all and would like to do so. I note that he has said repeatedly that he would like to live with his aunt, Ms C, and this is concerning. I have not traversed the alarming elements of the material showing the difficult dynamic between X and Y at times but have no doubt that this expressed view springs from perceptions of favouritism in the mother's household.
X's position is much more nuanced. He appears to have expressed at times a disinclination to spend time with his father at all or even perhaps supervised time. I note that this view he has most particularly expressed to his mother, who undoubtedly discusses the court proceedings with him (as does the father). Against this, however, it is clear that X's behaviour, particularly in the presence of Dr D, strongly suggests that this disinclination is not as great as the mother puts it and may indeed largely spring from his perceptions of what the mother may wish to hear. Further, I should note that I accept the submission of the Independent Children's Lawyer that the children's views, and particularly given their age, are important but are not decisive. It is inappropriate to empower the children of this age and indeed burdensome for them to have to make major decisions about their own future.
Section 60CC(3)(b)
As already indicated, Y appears to have a warm and affectionate relationship with his father, perhaps particularly so with his aunt, Ms C, and with his paternal grandmother. He also has an excellent relationship with Mr E as well as his mother. Mr E emerges as a man deserving of considerable credit, and I entirely accept Dr D's observation that he is a very good facilitator for all concerned. Both Y and X have, of course, lived in the primary care of their mother all their lives and understandably have a very warm and close relationship with her, although, as noted, Y has expressed these reservations about life in his mother's household and a desire to live with his aunt. I note, however, that Y made it clear that if he had to choose between his parents, his mother's household was the one he would choose. There is no detailed evidence about relationships with any of the extended family on the mother's side. Self-evidently, her family are in the United Kingdom, which is a strongly limiting factor. The children have never apparently been there to see them. They do, of course, get cards and the like. There is no evidence that I can see as to a relationship with Mr E's extended family.
Section 60CC(3)(c)
The mother has, of course, taken appropriate opportunities to make decisions about major long-term issues in relation to the children. Indeed, she has done so at times without any reference to the father, for the reasons already discussed. She would have it that the father, in effect, did not want to spend time with the children once time was suspended in 2019. I entirely reject this exaggerated characterisation of the events. The father was in rehab and was commendably putting his resources very significantly towards that end. Given his struggles with his alcoholism, he would have had but little energy left over. He has pursued his case to judgment. Of course, he has always wanted to spend time and communicate with the children. The mother's demonisation of him in this regard is completely misconceived.
Section 60CC(3)(ca)
Plainly, the mother has fulfilled her obligations to maintain the children, assisted since 2015 by Mr E. The father's endeavours to maintain the children have been marred by a combination of his alcohol addiction and its sequelae, and more particularly his unemployment for a year. I note, however, that he has made it clear that he would not only not oppose but actively support any application the mother may make for a re-evaluation of his child support, and I note that there is no suggestion he does not pay as assessed. It would seem that any other financial contributions he made towards the children ceased a very long time ago.
Section 60CC(3)(d)
In the context of this case, this is a critical matter. Given what Y has said, there seems no reason to doubt that he could readily sustain an increasing time with his father. I note Dr D's unchallenged evidence that the current five hours every three weeks is just not enough, and I note his evidence also that X has never really had the opportunity to properly get to know his father (at least in recent times). Obviously, an increase in the children's time would be beneficent to their circumstances were it to be achievable. The question is the likely effect upon both X and more particularly his mother of any move towards increased or unsupervised time. The mother's opposition to unsupervised time springs both from her experiences of family violence and her continuing anger and hurt at its effects. It is most unfortunate that she is continuing to involve X in this proceeding as I have no doubt she does, whether unwittingly or otherwise. X must be encouraged to spend time with his father, as given the findings I am making, it is an outcome at least as sufficiently free of risk as it can ever be. I will return to this aspect of the matter somewhat later. Plainly, if I order extra time and unsupervised time, the mother would benefit significantly from counselling with an organisation such as Orange Door to enable her to cope.
Section 60CC(3)(e)
At the present time, there are considerable practical and expense-related difficulties with spending time. It involves a four-hour drive for the children, which the father, to his credit, acknowledged has to be done by the children in full, whoever does the driving. I note that he intends to move to Town B within the next six months, and his plans to do so struck me as well considered and thought out. It is more probable than otherwise that he will do so. This will sensibly diminish the travel time and be to everybody's best interests. I note that it would not be possible to order the father's sister, Ms C, to drive on a routine basis to Town B (although nobody put this proposition to her in terms), and indeed, she seems a devoted sibling. All that can be said is that the regime proposed by the Independent Children's Lawyer appears to be workable, in the light of past experience, in terms of practicability and expense even if the father stays in Melbourne, and will be more so should he move to Town B.
Section 60CC(3)(f)
The mother has always been the primary carer of these children, but her capacity to provide for their needs is to an extent compromised by the intensity of her views about the father. I have already said once and will repeat that she deserves no criticism for entertaining the fears that she does. Nonetheless, and this is perhaps an appropriate time to comment on this aspect of the dispute, the mother's fears about the father's conduct post-separation are indeed, when analysed objectively, exaggerated. I think it is fair to characterise the allegations of stalking as being essentially not made out on the evidence. When they were in Suburb DD, the parties were necessarily in relatively close conjunction. The things of which the mother complains are more probably accidental than otherwise. The complaints of trying to get her address and the like, while arguably misconceived, reflect no more than the father wanting to know where his children were. He has said he does not want to know her address now, and I accept that evidence. The mother's evidence that the father would be moving to Town B in effect to terrorise her again fails to take into account his love for the children and desire to be closer to them.
The father's capacity to provide for the children's needs must be enhanced by the measure of insight he demonstrated in his evidence about his circumstances generally, and I note his sister's unchallenged evidence that he is now more open to listening to the other person's point of view, something that will surely be of assistance in trying to handle X's reservations. One area where the father would be well advised to read this judgment and take notice is that while I do not doubt that the mother denigrates him to both the children and is a negative influence in that way, the fact is that X has genuine reservations springing from the father's own conduct. Merely to try and blame the mother (something I thought the father was tending to do, at least on one occasion in his evidence) is wholly counterproductive. He needs to own up for his previous misconduct and acknowledge the likely effects it is going to have on X and approach this with care and consideration.
Section 60CC(3)(g)
The father has a temper. He yelled and screamed at the mother and abused her during the relationship. He cannot even drive a car around without yelling abuse at other drivers. He is an alcoholic who has drunk an awful lot over a protracted period of time. He has driven the children when under the influence of drink on at least five occasions in 2018 to 2019. He is so lacking in self-control that he rushes up to another man in late 2018 at a skate park and ends up assaulting him. If he received a couple of biffs himself, it is no less than he deserved. Rushing up to someone you do not know and demanding to see photographs they have taken is an utterly ridiculous and immature piece of conduct and perhaps typical of the way the father was during this period of non-sobriety. His sister says he becomes harder to talk to and more tense and agitated, and this is plainly an illustration of it.
Having said this, of course, it needs to be borne in mind that the father has now been sober for well over two years. He is engaged in a far more intensive process of rehabilitation than he has ever undertaken before. The evidence about this is unchallenged and convincing. I agree with Dr D that the chances of relapse are not at all great. He is well understanding that any more relapse will be fatal to him both in employment and in his relationship with the children. He attends meetings daily and other meetings as well. I think he will make it through, and it is to his credit that he can do so. In this character, he presents as a man with a quite considerable degree of insight and humility. The sort of puerile aggression he has exhibited in the past (and, I should say, to Mr E, whose version of their discussion is plainly correct) is now a thing of the past. His sister has noted his improvement, and I accept that that is so.
The mother is a person who has had her ups and downs. As recently as October last year, things so overwhelmed her that she was contemplating going back to the United Kingdom, leaving the children, amazingly, in the father's care. I accept that this was because things simply overwhelmed her. It is her perception that she had been embroiled for many years with unsympathetic third parties, including police and the courts, whom, as she sees it, do not do enough to keep the father under control. For the reasons expressed, I think these fears are considerably exaggerated. She is plainly a woman of fortitude and character. She has made a fist of living in a country at the opposite end of the world to where her family are and done this largely on her own. During the relationship with the father, she must have been at her wits' end in terms of lack of support. It is no wonder that these experiences have scarred her so severely. She is obviously a devoted mother, albeit, as Dr D noted, somewhat distracted by some measure of self-preoccupation.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
While an important subsection, it has probably already been sufficiently dealt with above. Each of the parents loves the children. Each of these parents wants the orders that they particularly seek in respect of the children. They are both, as I say, loving and decent parents, but for the reasons expressed, they are not of one mind.
Section 60CC(3)(j)
I have already dealt with the actual violence during the relationship, and I have also dealt with the stalking and breaches of intervention order. These findings do not need to be repeated. For the sake of clarity, and in case I have missed it out, there is no doubt that the father has misbehaved at times when the children have been in his care. He has driven them when under the influence of alcohol, and they have noticed it. It has scared them.
Section 60CC(3)(k)
I have dealt with the breaches of intervention order, but it should be noted that the extant intervention order was made for a total of eight years. The father did not attend Court on the day, but an order for that length of time speaks for itself. It is, as the family report writer observed, an unusually long intervention order and must have been made because the Court was impelled to find a really significant ongoing risk.
Section 60CC(3)(l)
Everyone agrees it is appropriate to make final orders now.
Section 60CC(3)(m)
There are no other relevant matters.
CONCLUSION
In the end, a calibration of all of the above relevant considerations leads to the inevitable conclusion that the orders proposed by the Independent Children's Lawyer are appropriate, augmented by the additional safeguards proposed by the father. The parties should continue their therapy with Dr D, which has plainly been extremely helpful to them and will continue to be so. I note that Counsel for the mother said that in the end she would leave this matter to the Court, and that is greatly to her credit. The orders that the Independent Children's Lawyer proposes will undoubtedly cause the mother considerable concern. It is entirely understandable that that be so. But the expert independent evidence of both the family report writer, who was not challenged in cross-examination, and Dr D, who was a quite excellent witness, could not be more clear. The children need more time, and as Dr D puts it, they need to move to unsupervised time to have a real and not sort of artificial relationship with their father. The presence of Ms C on the first few occasions will unquestionably alleviate everybody's concerns, and I will require that the children have at all times, in addition to the mother's phone number, the mother of Ms C to phone if they have any concerns. The children, and in particular X, are at an age where I think they can be taken to, as Dr D put it, extricate themselves if anything goes wrong. Contact with their aunt or mother will surely be sufficient to do this. The family violence exercised during the relationship was undoubtedly horrendous, and it is no surprise whatever that the mother is still activated by it both in terms of repetition and anger at its having occurred. Nonetheless, the Court is required to consider the children's best interests as the paramount consideration, and the matters militating in favour of their developing a further relationship with their father, as these orders will permit, is plainly the outcome that is in their best interests.
I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 28 April 2022
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