TOWER & CALDERON

[2019] FCCA 1694

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOWER & CALDERON [2019] FCCA 1694

Catchwords:
FAMILY LAW – Children – family violence – mother diagnosed with Post Traumatic Stress Disorder – limited relationship between children and father – supervised time.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA

Cases cited:

Goode & Goode (2006) FamCA 1345

Applicant: MR TOWER

Respondent: MS CALDERON

File Number: ADC 1773 of 2015

Judgment of: Judge C. Kelly

Hearing dates: 19, 20 and 21 February 2018

Date of Last Submission: 21 February 2018

Delivered at: Adelaide

Delivered on: 20 June 2019

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Ms R Read

Solicitors for the Respondent: Noarlunga, Legal Services Commission of South Australia

ORDERS

1. All previous parenting orders are discharged.

2. The children X born … 2011 and Y born … 2012 live with the mother who shall have sole parental responsibility for their care, welfare and development.

3. The children spend time with the father under the supervision of the Suburb C Children’s Contact Service as follows:

   (a)on one occasion each calendar month for a period of two hours on dates and times to be nominated by the Service and under the supervision of the Service;

   (b)alternatively on one occasion each month at their premises for a period of two hours, under the terms of the Onsite Unsupervised Access programme;

   (c)the parties comply with all reasonable requests or directions from staff at the Service, including any request to vary the times or dates;  and

   (d)this order is subject to the Service’s capacity and availability to assist the parties.

4. In the alternative the children spend time with the father as follows:

   (a)on one occasion each month for a period of between two and four hours, under the supervision of an agreed supervisor (including an independent supervisor or Contact Supervision Service);

   (b)the visits take place on dates and times to be agreed between the parties, taking into account the availability of the supervisor;

   (c)the visits take place at a venue to be agreed between the parties and the supervisor; and

   (d)where relevant, the father meet all fees charged by the supervisor and all other costs associated with the supervised visits.

5. The father is permitted to take photographs of the children during their supervised time together.

6. The mother provide copies of the children’s mid year and end of year school reports to the father by delivering a copy to him at the next supervised visit, noting the mother is permitted to redact all information that would identify the children’s school.

7. The father is restrained and an injunction is granted restraining him from:

   (a)knowingly attending within 50 metres of any school the children may attend;

   (b)knowingly attending within 50 metres of any venue where the  children are participating in extracurricular activities;  and

   (c)posting or publishing on Facebook or other social media website any photographs of the mother or any other material that may threaten, intimidate, harass or embarrass the mother.

8. All proceedings are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Tower & Calderon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1773 of 2015

MR TOWER

Applicant

And

MS CALDERON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to the parenting arrangements for two young children, X, aged 8 years and Y, aged 6½ years.

2. Their parents separated in 2013 and the children have lived in their mother’s primary care since that time. X and Y have spent limited supervised time in their father’s care through the Suburb C Children’s Contact Service (“Suburb C”).

3. The father seeks to re-establish a more meaningful relationship with the children and to spend regular unsupervised time with them.  The mother is opposed to the father’s Application and seeks orders for sole parental responsibility and for the children to live with her. She further seeks an order for the children to spend no time with the father.

Background

1. The father was born on in the United States of America on … 1975 and the mother was born in Australia on … 1985.  The father was a professional sportsman and moved to Australia to join the Sports Team in 2003/2004. The mother was studying at E College in Western Australia at that time.

2. The parties met in Perth and soon commenced a relationship. The father pursued his sports career in numerous locations including Melbourne, Queensland, Country M and Country N. Both parties agree that their relationship was tumultuous. The mother says the father was violent towards her during the relationship and they separated a number of times but he was always able to convince her to reconcile. The father acknowledges that there were difficulties and arguments within the relationship, but denies the mother’s allegations of family violence.

3. The parties’ first child X was born on … 2011 while the parties were living in Adelaide. The father moved to Country N for a period of time to play with a sports club there.  The mother and X remained living in Adelaide and the mother obtained employment as a professional at Suburb O. The father returned to Adelaide after his Country N contract ended and the parties’ relationship continued, but the conflict and arguments between them also continued.  The parties’ second child, Y, was born on … 2012.

4. The parties separated finally on 14 October 2013 following an incident when the father assaulted the mother. The mother made a police report and was granted an interim Intervention Order. The police assisted the mother to return and collect the children and they have remained in her care since that time. The father was charged with aggravated assault but the charges were ultimately withdrawn upon the father consenting to a final Intervention Order on 10 December 2014.

5. The father initiated family dispute resolution in 2014 and the parties were successful in negotiating a parenting plan, but the terms of the parenting plan were never implemented and ultimately the father commenced these proceedings.

Court proceedings

1. The father filed his Initiating Application on 29 July 2015 seeking orders to spend time with the children, gradually increasing to equal care The mother filed her Response on 5 November 2015 seeking orders for sole parental responsibility and for X and Y to live with her and spend no time with their father.

2. The first return date proceeded on 10 November 2015 and both parties were represented. The father consented to an order that the children live with the mother until further order and the Court directed that the father file and serve a responding Affidavit within 28 days, given the serious allegations raised by the mother. The Court also directed the parties attend a Child Dispute Conference and the proceedings were adjourned to 5 February 2016.

3. The Child Dispute Conference took place on 22 December 2015. A family consultant prepared a Memorandum for the Court[1] in which she noted that the children were highly vulnerable given their young age and recommended that a Family Assessment Report be prepared.

   [1] Child Dispute Memorandum dated 22 December 2015

4. At the next interim hearing on 5 February 2016, the Court proceeded cautiously, noting that X and Y had not spent any time with their father for over two years. The Court ordered the parties obtain an external family assessment, to be undertaken by an agreed psychologist or counsellor. The parties instructed Ms F and her first family assessment report was completed on 30 June 2016.[2]

   [2] Ms F’s first Family Assessment Report dated 30 June 2016, Affidavit of A filed 19 July 2016, Annexure “01”

5. The matter was next argued on 6 July 2016 and both parties made submissions in relation to the family assessment. Following submissions, the Court ordered that the father undertake counselling with an appropriately qualified therapist as recommended by Ms F and that he endeavour to obtain a report from his counsellor by 30 November 2016. The Court further ordered that upon the father commencing therapy, the parties enrol with a Children’s Contact Service to be nominated by the mother, noting that supervised time would not commence until a report had been obtained from the father’s therapist. The proceedings were then adjourned to 14 March 2017, to allow time for the counselling and supervised visits to proceed. 

6. The father undertook counselling with Mr G, a social worker with acknowledged experience in family violence prevention. Mr G prepared a report on 29 November 2016.[3]

   [3] Counselling Report from Mr G dated 29 November 2016, Affidavit of Ms B filed 1 December 2016, Annexure “B01”.

7. Interim parenting issues were again considered on 14 March 2017. The supervised time had not yet commenced and the Court directed that the parties register with the Suburb C CCS in that regard. In addition, the proceedings were listed for a three day trial to commence on 19 February 2018.  A trial directions hearing took place on 11 October 2017.  On that occasion the Court ordered that the children continue to spend supervised time with the father, subject to the availability of the Suburb C.  The parties were directed to obtain an updated family report from Ms F, which was released on 22 January 2018.

The trial

1. The father’s solicitors withdrew from the file on 22 January 2018 and accordingly the father represented himself on the first day of hearing. The Court declined his oral application for an adjournment, given that the proceedings had been before the Court for over two years, but allowed him to rely upon earlier Affidavit material filed by him on 29 July 2015 and 9 December 2015.

2. The Court also permitted the father to rely upon the report from Mr G, provided Mr G could be made available for cross-examination. The father was invited to provide a summary written statement but indicated that he felt unable to do so.

3. The mother relied upon the following documents:

   a)her trial Affidavit filed 8 February 2018;

   b)trial Affidavit of the maternal grandmother Ms H filed 6 February 2018;

   c)trial Affidavit of Ms J filed 6 February 2018;

   d)Report from the mother’s treating psychologist Mr K, annexed to the Affidavit of Ms D filed 14 February 2018;

   e)Ms F’s family assessment reports dated 30 June 2016 and 22 January 2018.

4. The father relied upon the two Affidavits referred to above and arranged for Mr G to be available for cross examination.   In the course of the hearing he also filed an Affidavit of his friend Ms L on 20 March 2018, but Ms L declined to attend for cross-examination and accordingly her Affidavit has not been received into evidence.

5. Both parties gave evidence and were cross-examined. As with many cases before this Court, the parties had a very different recollection of their life together. The father maintained his denial of past violent or aggressive behaviour, save in the context of arguments and mutual aggression between the parties, however his evidence was inconsistent at times.  For example, in his Affidavit filed 29 July 2015 the father acknowledged that he would “sometimes slap her back or push her away from me in reaction to her hitting me”,[4] but in his oral evidence the father repeatedly denied ever slapping the mother.

   [4] Father’s Affidavit filed 29 July 2015, para.46

6. At times the father’s responses in the witness box were generalised and appeared rote.  He was unable, or unwilling, to appreciate the relevance of incidents that occurred before the children were born and likewise events that occurred in his later relationship with Ms J.

7. The mother was given the opportunity for cross-examination to occur by video link with the father in another courtroom but declined that option. She was cross-examined directly by the father and her evidence remained clear and consistent. 

8. Taking into account all of the evidence in this matter, including each party’s demeanour in the witness box, I conclude that the mother’s recollection of past events between the parties was more reliable than the father’s recollection.

9. As to the remaining witnesses, the maternal grandmother Ms H presented as a witness of truth.  She conceded that much of her evidence came from conversations with her daughter, rather than her own direct observations. Her evidence is important nonetheless, because it confirms that the mother made contemporaneous complaints about the father’s violence. 

10. Ms J was an impressive witness.  She was clear and consistent during cross-examination and I accept her evidence.

11. The Court had the benefit of expert evidence from Ms F, who has prepared two family reports during the proceedings. [5] Ms F attended as the Court’s witness and was cross-examined by both parties. Her reports and her oral evidence were of great assistance to the Court and I will address her evidence within my discussion of the relevant s.60CC criteria.

    [5] Ms F’s first report dated 30 June 2016 (see footnote 2) and her second Family Assessment Report dated 22 January 2018, Affidavit of Ms D filed 8 February 2018, Annexure A

12. The mother’s psychologist, Mr K, gave his evidence in a calm, professional manner and his diagnosis was not shaken during cross-examination. The father’s counsellor, Mr G, attended via telephone link.  He also gave his evidence in a calm, professional manner and was prepared to amend his opinion where appropriate, based on further information provided to him, particularly the evidence contained in Ms J Affidavit.  Mr G’s oral evidence proved to be highly significant.

The parties’ proposals

1. The father told the Court that he was seeking orders for equal shared parental responsibility and regular unsupervised time with X and Y. Ideally, the father sought an outcome where the children are living equally in each parent’s care, but he acknowledged that this was unlikely, given the limited role he has played in the children’s lives.  In the circumstances he conceded that X and Y should remain living with their mother, but sought to spend time with the children on a weekly basis, to re-establish their relationship with him.

2. The mother proposed that the children continue to live with her and that she have sole parental responsibility for their care, welfare and development. She also sought the protection of certain injunctive orders.  Her formal position was to seek an order for the children to spend no time with the father.  In the event the Court accepted Ms F’s recommendation for the children to spend limited time with the father, then the mother proposes that the children continue supervised visits at the Suburb C, to take place once every two months.

Legal principles 

1. In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper. When making a parenting order the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles that govern the Court’s decisions making responsibilities.  This section focuses on the importance of children being meaningfully involved in their children’s lives, fulfilling their parenting duties and obligations and upon the need to protect children from harm.

2. Section 60CC sets out the factors the Court must consider in determining the child’s best interests. As discussed in the Full Court in Goode & Goode[6], s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case.

   [6] Goode & Goode (2006) FamCA 1346

3. First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:

   a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)the need to protect the child from the physical or psychological; harm from being subjected to, or exposed to abuse, neglect or family violence.

   In the event these two considerations are in conflict, s.60CC(2A) clarifies that concerns regarding the children’s safety must prevail. Section 60CC(3) then sets out a range of additional considerations that must also be taken into account.

4. The Court must also ensure that any parenting orders do not expose children to an unacceptable risk of family violence (s.60CG). Section 4AB defines family violence to include violent or threatening or other behaviour used to coerce or control a person, or to cause them to be fearful. Violent behaviour includes physical or sexual assault, sexually abusive behaviour, taunts, stalking, intentionally damaging a person’s property or exercising financial control over a person.

5. Section 61DA presumes that it is in a child’s best interests for the parents to have equal shared parental responsibility, unless the Court finds that the presumption does not apply or is rebutted. An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it is in the child’s best interests to spend equal time with each parent, or substantial and significant time which each parent. Substantial and significant time is defined to include weekday time as well as time during weekends, school holidays and on special occasions.

6. I will discuss the evidence within the context of the relevant s.60CC criteria. The Court is not required to address every allegation or to make findings of fact upon every issue in dispute. Rather, I will focus upon those matters that are most relevant to my decision regarding the children’s future care and welfare.

Section 60CC – Primary considerations

(a) the benefit to the children of having a meaningful relationship with both parents

1. There is no dispute that the children enjoy a loving and close relationship with their mother, but the same cannot yet be said of their relationship with their father.  X and Y did not spend any time with him for nearly four years, until formal supervised visits commenced in May 2017.

2. The Suburb C has prepared two reports, the first dated 12 September 2017 relating to the visits from 14 May – 23 July 2017 and a second report dated 17 September 2018, relating to visits from 3 February 2018 – 14 July 2018.[7]  The reports indicate that the children settled reasonably comfortably into these arrangements. X and Y appeared to enjoy spending time with their father and engaged in a range of age appropriate activities with him.

   [7] First Suburb C CSS report dated 12 September 2017, Affidavit Ms B filed 25 September 2017, Annexure “B01”: second Suburb C CCS report dated 17 September 2018, Affidavit of Ms D filed 20 September 2018, Annexure “A”

3. Difficulties arose during the visit on 16 June 2018, as discussed in the second report. The children were due to be collected by the maternal grandparents, but Y refused to leave.[8] There was no clear explanation for Y’s behaviour.  The father believes that Y was reluctant to end their time together, but equally there may have been other explanations. Whatever the reason, I am satisfied all of the adults involved behaved appropriately, responding to Y’s behaviour in a child-focused manner and encouraging him to depart with his grandparents.  The subsequent visits appear to have proceeded smoothly.

   [8] Ibid second Suburb C CSS report, at page 15-16

4. In her second report Ms F acknowledged that the supervised visits were proceeding well, but commented that the children’s relationship with their father remains in its formative stage. In the course of cross examination Ms F was asked what benefit would flow to X and Y if their relationship with their father was limited to ongoing short supervised visits.  Ms F conceded it would provide for a limited relationship, but noted that monthly supervised visits would at least give the children a sense of “who their father is”.

1. I am satisfied that X and Y have established a relationship with their father and enjoy their time with him, but it is difficult to describe this as a meaningful relationship. The father may argue that this situation has arisen because of the mother’s determination to block the children’s relationship with him, but that ignores the legitimate concerns raised by her. As discussed elsewhere in these Reasons, the Court also has significant concerns about the father’s capacity to play a substantial role in the children’s lives.

2. The Suburb C CCS reports clearly suggest there is the potential for the children to establish a meaningful relationship with their father in the future, but it is difficult to see how that relationship could progress unless the Court was satisfied that X and Y should eventually spend unsupervised time in their father’s care.

(b) the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

1. The mother submits that the children would be at risk if they were to spend unsupervised time in their father’s care, based on his violent behaviour and his use of drugs and alcohol. She says the father has not demonstrated any commitment to addressing his past violent behaviour and therefore she argues the children will remain at risk in his care. Accordingly, the Court must give close consideration to the parties’ evidence in relation to allegations of family violence.

Family Violence

1. The mother’s allegations of family violence are set out in detail in her Affidavit.[9]  The mother says that the father became violent, abusive and controlling towards her very early in their relationship and that this behaviour continued until their final separation in October 2013. The mother’s allegations lacked forensic details in terms of precise dates and times, but she provided extensive details of the context in which various assaults occurred, such as where the parties were living, who she contacted for help, and a clear description of the father’s assault or abuse. Significantly, her evidence about these matters has been consistent throughout the Court process, including her interviews with Ms F and Mr K.

   [9] See Mother’s trial Affidavit filed 8 February 2018, paras 43-54

2. The father has also alleged that the mother behaved in a violent and aggressive manner towards him. Both parties acknowledge that their relationship was marred by ongoing conflict, which the father said would spiral out of control at times. He said that on such occasions the mother had thrown things at him, pushed him or slapped him and conceded that he had responded physically in response to her attacks upon him.

3. In contrast to the mother’s evidence, the father provided little context or detail in relation to his allegations of physical violence by the mother. The father’s evidence on this topic was generic and unconvincing. I reject his claim that the mother was the instigator of physical violence between them.

4. Aside from the assault in October 2013, the Court acknowledges that there is little independent corroborative evidence to support the mother’s claims. Nonetheless, the mother’s evidence regarding the father’s past violent behaviour was convincing and was supported by the maternal grandmother. 

5. I find that the father assaulted the mother on 14 October 2013, which led to the parties’ separation. I am not in a position to make formal findings in relation to other specific incidents or assaults, but I am satisfied that the mother was subjected to physical, emotional and verbal violence from the father throughout their relationship.

6. The Court must then determine whether that history of violent behaviour places X and Y at risk of harm in the future, including any risk that the children may be exposed to their father behaving in a violent or aggressive manner.

7. I consider that the children are unlikely to be at risk of their father directing violent behaviour towards them, but the evidence suggests a pattern of violent and aggressive behaviour throughout his adult life. In that regard the father’s behaviour, both prior to and subsequent to the parties’ relationship, is highly relevant.

8. The father acknowledges that he has a criminal history in the United States including convictions for domestic battery and resisting or obstructing a police officer.[10]  He was charged with aggravated assault against the mother, arising from the incident on the 14 October 2013. Those charges were eventually withdrawn, but only on the basis that he consented to a final Intervention Order.  

   [10]  Copy of FBI records regarding father for the period 1997-2010, Mother’s trial Affidavit filed 8 February 2018, Annexure 4

9. Subsequently the father entered into a relationship with Ms J. Ms J Affidavit details the father’s aggressive and threatening behaviour towards her and her evidence in the witness box was compelling. She obtained an Intervention Order in May 2016 but subsequently applied to revoke the Order.  The Order was revoked in January 2017, as detailed in her Affidavit.[11]   The father attended at Ms J’s home immediately upon the Order being revoked, which led to a new Intervention Order being granted in her favour on 30 January 2017.

   [11] Affidavit of Ms J filed 6 February 2018, paragraph 22

10. The father was then charged with various breaches of that second Intervention Order during 2017, together with charges of knowingly distributing an invasive image of a person. This latter charge related to the father distributing intimate photos of Ms J on social media websites, which caused her great distress and personal embarrassment. The father eventually pleaded guilty and was convicted of these offences in early 2018.   These convictions must raise concerns about the father’s capacity to control his reactive behaviour within his personal relationships. 

11. The mother further argued that the father’s aggressive behaviour is exacerbated when he is under the influence of alcohol or illegal drugs. The father acknowledged that he had a problem with alcohol use in the early years of their relationship, but denies it is an ongoing issue in his life. According to the father, he and the mother were equally involved in using and consuming alcohol and illegal drugs during that time.

12. The mother concedes that she consumed alcohol and illegal drugs occasionally, but not after the children were born, and never to the extent of the father’s usage.  I accept her evidence in this regard.  I also accept the mother’s evidence that the father’s alcohol and drug use was excessive and that it affected his behaviour within their relationship and his performance within his career as a sportsman.

13. There is independent evidence to support the mother’s concerns.  The father has had three convictions for driving under the influence during his adult life.  On … 2017 the father was injured in an altercation after he had been consuming alcohol. The father was hospitalised following this incident and the Discharge Summary notes that “he [the father] had tried to break up a fight (being involved in the altercation) having been drinking heavily prior, [my emphasis] and being found by passerby whom called SAAS…”. [12] 

    [12] Royal Adelaide Hospital Interim Separation Summary dated 9 December 2017, Exhibit F1

14. The father suffered a brain injury and required inpatient care for four nights before being referred for outpatient management and rehabilitation through the SA Brain Injury Rehabilitation Service.[13]  There is no suggestion that the father was the aggressor, or provoked this altercation, but it is an example of the risks and dangers associated with his excessive use of alcohol. The Court’s concerns are heightened by the father’s unwillingness to acknowledge that his use of alcohol has been problematic or in any way relevant to his parenting capacity.

    [13] SA Brain Injury Rehabilitation Service Medical Report dated 21 March 2018, Exhibit F3

15. Section 60CC(2A) directs the Court to place greater weight upon the need to protect the children from exposure to any violence, abuse or neglect. In assessing the children’s best interests, I place significant weight upon the need to protect the children from exposure to violent behaviour by their father. The Court is further concerned by the father’s lack of insight into the impact his behaviour has upon others around him (including the mother) and the potential impact of such behaviour upon the children.

16. It is useful at this point to consider the evidence from the parties’ counsellors, as this evidence provides further information regarding each party’s emotional response following the breakdown of their relationship.

Mr G

1. The father consulted with Mr G across a period of three months in 2016. Mr G assessed the father as engaging fully in the counselling process and noted that the father was able to acknowledge the effect of his yelling and verbal abuse upon the mother and upon the children.  The father acknowledged that he was responsible for his part in their conflict, whilst still denying he was physically violent towards the mother, except in the context of self-defence. At the time of his report Mr G concluded that the father “has a credible foundation for meaningful ongoing participation as a father in the lives of his children”.[14]

   [14] Affidavit of Ms B filed 1 December 2016, Annexure B01, p.9

2. In the course of cross examination, Mr G acknowledged that he was unaware the father had been subject to an Intervention Order for the protection of Ms J, which was in force during the father’s appointments with Mr G. Mr G agreed that this undermined his assessment of the father’s openness and insight during their counselling process.

3. Mr G noted that Ms J Affidavit raises serious allegations of violence and stalking behaviour and commented that the level of detail in her Affidavit made her evidence read credibly. Mr G acknowledged that he had not heard the father’s evidence regarding his relationship with Ms J and he agreed with the father’s contention that there may be “two sides to the story”.  However, Mr G also commented that, in his experience, men often seek to minimise their responsibility for relationship violence by these mutualising responses.

4. Mr G was further concerned by the father’s subsequent behaviour in sending intimate photos of Ms J over the Internet, describing such behaviour as “inexcusable and unacceptable”. In response to a question from the Bench, Mr G said that if the Court made findings of physical violence by the father, then that would undermine his conclusions regarding the father’s emotional and psychological readiness to commence unsupervised time with the children.  Mr G further commented that even if the Court made favourable findings in relation to the father’s past behaviour, he would still recommend the father attend ongoing counselling.

5. I conclude that the father’s failure to tell Mr G that he was subject to another Intervention Order must compromise the reliability of Mr G’s report.  Indeed, Mr G himself conceded this.  Further, the father has minimised the extent of his violent and aggressive behaviour towards the mother and was not open with Mr G in that regard. In the circumstances, I place no weight upon Mr G’s report, particularly in light of his very cautious evidence under cross-examination.

Mr K

1. The mother commenced consulting with Mr K in August 2017, seeking support to manage her stress and anxiety relating to her past relationship with the father and the ongoing Court proceedings.  Mr K diagnosed the mother as suffering from post-traumatic stress disorder (“PTSD”) resulting from the father’s abusive behaviour during the relationship.

2. Mr K considered the mother presented very credibly during their sessions, noting that her physiological stress responses matched her emotional presentation when discussing her relationship with the father. Mr K gave evidence that the repeated pattern of separation and reconciliation was common in domestic violence relationships and that victims of violence often develop a sense of “learned helplessness”.  They perceive they are “in love” and become dependent upon the abuser, often remaining in the relationship to their long-term detriment.

3. The father asked Mr K to consider that the mother was already suffering stress and anxiety when the parties first met, because she had a difficult relationship with her parents. Mr K responded by saying that even if that were correct, the father’s violent behaviour during their relationship would have greatly exacerbated the mother’s condition. Mr K further noted that during his consultations with the mother he did not observe any evidence of a poor relationship between the mother and her parents.

4. I accept Mr K’s evidence.  I find the mother is suffering from PTSD arising largely, if not solely, from the father’s aggressive and violent behaviour towards her during the relationship. I accept that the mother’s condition may be exacerbated and her PTSD symptoms may increase in the event orders are made for X and Y to spend unsupervised time with the father.

5. I am further satisfied that the mother may require ongoing counselling and intensive therapy to assist in her recovery and to support her day to day parenting of X and Y. This is a significant factor in my assessment of the children’s future best interests.

Section 60CC(3) – Additional considerations

(a) any views expressed by the children

1. X was six years and nine months old at the time of her interview with Ms F in January 2018, but Y was too young to be interviewed. X said that she “feels happy” to spend time with her father at the Children’s Contact Centre and enjoys playing on the playground.

2. Ms F reported that X spontaneously said “… she did not like how Daddy [Mr Tower] threw toys at Mummy [Ms Calderon]” but nonetheless X said that “she would be happy to continue to spend time with Mr Tower at the Children’s Contact Centre.”[15]  This suggests that the Suburb C is providing X with a safe and supportive environment, but she still holds uncomfortable memories of her father’s aggressive behaviour.

   [15] Affidavit of Ms D filed 8 February 2018, Annexure “A” paras 41-43

(b) the nature of the relationship between the children and each parent and significant others

1. As discussed above, both X and Y have a strong and loving relationship with their mother, which reflects her role as the children’s primary caregiver.

2. Both children are reported to interact comfortably with their father during the supervised visits.  Based on those observations, there is a foundation for the children to establish a more meaningful relationship with their father, but the Court must assess the benefit to the children of such relationship against the risks to the children, and the negative impact that unsupervised time would have upon the mother, and her role as the children’s primary parent.

3. The children have an established relationship with their extended maternal family that will continue into the future.

(c) the extent to which each of the children’s parents has participated in parenting arrangements

1. The father has not had the opportunity to participate in making decisions regarding the children’s welfare and his capacity to spend time and communicate with them has been severely curtailed.  It is unfortunate that the father’s own behaviour has led to his exclusion from their lives.  Nevertheless, the father hopes to play a more substantial role in the children’s lives in the future.  

(ca) the extent to which each of the children’s parents have met their obligations to maintain the children

1. The father acknowledged that he is in arrears of child support payments but could not confirm whether his debt was as large as the mother claimed.  Nonetheless, the father conceded that he had not paid child support for a long time.

2. The evidence suggests that the father is engaged in relatively casual part-time paid employment as a sportsman and he estimated that he would have earnt no more than $15,000 to $20,000 in the previous year (2017).  While any child support payment he contributes may be modest, the father’s failure to provide any financial support for X and Y does not reflect well on him.

(d) the likely effect of any changes in the children’s circumstances including the effect of any separation from either parent

1. In the event X and Y commence spending regular unsupervised time with their father, this would be a major change for them. Whilst the children interact comfortably with their father in the structured confines of the Suburb C, it is impossible to predict whether that relationship would transition smoothly to unsupervised time in the future, or how it would affect their emotional stability in their mother’s care.

2. By contrast, it is far easier to predict that the mother would find it very difficult to support the children spending unsupervised time with their father.  Based on Mr K’s evidence, there is a significant risk that her diagnosis of PTSD would be exacerbated in the event the children commence spending regular unsupervised time in their father’s care.

3. In the event that the Court made findings of violent and aggressive behaviour by the father towards the mother, Ms F recommended the children continue to spend limited supervised time with their father, as discussed above, to minimise the risk that X or Y may “…find themselves either “demonising” or “idealising” the absent parent”. [16]

   [16] Second Family Assessment Report para. 56

4. Ms F optimistically suggested that the mother could nominate an informal supervisor to enable the children and the father to spend time together away from the Contact Service, but neither party has been able to nominate a suitable person in that regard.

(f) each party’s parenting capacity to provide for the children’s emotional and intellectual needs; and   (i) the attitude each parent demonstrates to the children and to the responsibilities of parenthood

1. It is useful to discuss these considerations together, as they are inter-related.

2. The mother is a caring and devoted parent who is committed to the children’s welfare. The father agreed that the mother is “a good mother”, his only complaint is her ongoing hostility towards him. Ms F also commented favourably upon the mother’s parenting capacity.

3. The father is in a more difficult position, given his very limited involvement in the children’s lives. The Suburb C reports confirm that he engages warmly and affectionately with the children and is able to divide his time between X and Y’s activities whilst still engaging with both children.

4. The father’s lack of insight into the impact of his past violent behaviour remains a matter of concern, however. His intimidating behaviour towards Ms J continued during 2017 after his counselling with Mr G. This suggests the father did not gain any benefit from that counselling. His behaviour towards Ms J also indicates that the father remains unable to regulate his reactivity when he is feeling angry or aggrieved. The risk of the children being exposed to their father reacting in an aggressive or violent manner is a significant and ongoing concern.

(g) the children’s maturity, sex, lifestyle and background

1. X and Y are both still young and emotionally dependent upon their primary caregiver. The reports provided from X’s school and Y’s pre-school suggest that both children are progressing well.

2. The father is American and the children presently have very little opportunity to explore their paternal heritage. I take this factor into account, but it cannot override the Court’s focus on the children’s emotional safety and welfare.

(j) family violence; and

(k) any family violence orders

1. I refer to my earlier discussion regarding family violence issues and do not need to add any further comment in this regard.

2. The remaining s.60CC(3) considerations do not affect my decision in this matter.

Conclusion

Parental responsibility

1. Taking into account the above findings, I conclude that the mother should be granted sole parental responsibility for X and Y. She has effectively been exercising sole parental responsibility since the parties separated in 2013 and both children are flourishing in her care. 

1. An order for equal shared parental responsibility would require ongoing communication between the parties, an outcome that is fraught with difficulty. The parties have not communicated with each other for over five years.  The mother has no confidence that the father is able to interact with her respectfully and remains frightened of him. There is a real concern that this could exacerbate the mother’s PTSD, thus undermining her parenting capacity and her emotional availability to these two young children, which would not be in their best interests.

2. I acknowledge that this outcome will be very distressing for the father.  He loves X and Y and wants to be involved in decisions affecting their welfare. Sadly, I conclude that any attempt to share parental responsibility is likely to create stress and uncertainty in the children’s lives, rather than enhance their childhood experience.

What parenting arrangements are in the children’s best interests?

1. It is clearly in the children’s best interests that they continue living in their mother’s primary care, where they are settled and progressing well. The question then remaining is whether X and Y should continue to spend time with their father and if so, whether their time together should progress to unsupervised visits.

2. This is a very difficult decision. Children generally benefit from maintaining a meaningful relationship with both of their parents and the Court should be very careful about severing the possibility of such a relationship. Nonetheless, the children’s best interests remain the Court’s primary consideration. The Court holds significant concerns regarding the impact of the father’s past violence and substance abuse and his failure to acknowledge these concerns, or to take any meaningful action to address them. Mr G was particularly troubled by the father’s abusive behaviour towards Ms J, which occurred well after the parties had separated and continued after the father’s attendance at counselling that was specifically directed to addressing relationship violence.

3. X and Y enjoy spending time with their father at Suburb C CCS, but the supervised setting has ensured that the children’s emotional welfare is protected. They are not at risk of being exposed to any aggressive or violent behaviour by their father, nor are they at risk of their father being affected by alcohol or illegal drugs during their time together.

4. At the same time, the opportunity for the children to develop a meaningful relationship with their father is curtailed by the constraints of spending time at a Children’s Contact Service. Their time together is brief and takes place in an artificial environment, with limited activities on offer.

5. The mother would prefer an outcome where the children spend no time with the father.  I accept that this outcome would minimise any negative impact upon her psychological welfare, but the Court’s obligation is to pronounce orders that are in the best interests of X and Y, not orders that suit one or other of the parents.  

6. Based on the evidence before me, I conclude that an order for unsupervised time is not in the children’s best interests. X and Y need to be protected from the risk of being exposed to any dysregulated or aggressive behaviour by their father.  In addition, Mr K gave clear evidence that the introduction of unsupervised time was highly likely to exacerbate the mother’s PTSD.  He was less concerned regarding the impact of ongoing supervised visits upon her mental health, as the mother would know the children are safe in that setting.

7. The Suburb C CCS reports support Mr K’s conclusion, as they indicate that the mother adopted an appropriately positive and supportive demeanour when delivering and collecting X and Y.  This demonstrates her capacity to prioritise the children’s emotional welfare despite any fear or uncertainty she may be experiencing.

8. As discussed above, the mother’s emotional/psychological welfare is a significant factor in determining the children’s best interests, but it must be considered and weighed up against the other relevant factors.  In that regard, Ms F’s evidence is crucial.  She acknowledged the seriousness of the mother’s allegations of violence, which the Court has largely accepted. Notwithstanding this background, Ms F concluded that the children would benefit from maintaining a relationship with their father, even if that relationship was limited.

9. Ms F acknowledged that supervised time was restrictive, but felt this was preferable to an outcome which severed the children’s relationship with their father altogether.  She again noted the comfortable interaction that took place between the father and the children and reiterated her concerns that if they are no longer able to spend any time with him, X or Y may come to either ‘demonise’ or ‘idealise’ the memory of their father.  I accept her opinion that such an outcome has the potential to be psychologically damaging for the children as they mature.  This is a very significant factor in my determinations.

10. The Courts have generally been reluctant to pronounce a final order for ongoing supervised time between children and a parent. However Ms F’s evidence was compelling.  Significantly, Ms F took into account Mr K’s report and altered her recommendation regarding the frequency of visits.  She suggested that monthly visits, rather than fortnightly visits, would be appropriate as this would reduce the emotional toll on the mother, while still preserving some relationship between the children and their father.

11. There may still be practical impediments to such an order, not least of which is whether Suburb C CCS is able to offer indefinite supervised visits to the family.  Contact Services are limited resources, with limited funding, but I note that the Suburb C CCS also offers an option of an Onsite Unsupervised Service, where the child/parent interaction is monitored by staff, but without constant “one to one” supervision.  I am confident this option would be sufficient to ensure the children’s safety. It would be a suitable alternative for X and Y and may be more readily available in the long term.

12. Ms F also raised the option of informal supervision.  This has the benefit of allowing more flexibility, but neither parent was able to nominate a potential supervisor who could take on this role.  Another option the parties may wish to investigate is to engage a professional supervisor service. If such services are available, there would be considerable fees involved.  I conclude the father should meet these costs, if this was to occur, given he makes no other contribution to the children’s financial support.

13. The order will specify a period of two hours, as that is the time offered for supervised visits at Suburb C CCS. If the parties move to an external supervisor, some flexibility in the time may be needed taking into account travel time and the greater range of activities that would be available.

14. The mother proposed that any order for ongoing supervised visits should specify a bi-monthly regime, but I do not consider that six visits each year would be sufficient for X and Y to maintain the level of relationship envisaged by Ms F. A monthly regime brings a predictability that the children will be better able to adapt to and understand.

Additional parenting orders

1. It is appropriate that the father receive copies of the children’s school reports, in order to remain informed regarding their educational progress. This information may also serve to provide an opportunity for the father to engage with the children regarding their schooling.  The mother has previously redacted any details identifying the children’s school. I accept that this adds to her own sense of personal security and she will be permitted to continue to do so. I am hopeful that staff at Suburb C CCS would be willing to pass on a copy of the reports to the father, given that this will occur only twice each year.

2. The father will be seeing the children each month and will be in a position to take photographs of X and Y.  I will make a precise order in this regard, for the benefit of supervising staff.

3. There remains the ongoing uncertainty regarding the availability of the Suburb C CCS.  The Court has been informed that the Service has been unable to facilitate any visits between the children and the father for some months, but it appears there is some capacity going forward and the Court is grateful for their assistance.  The parties must remember that the Court cannot and will not compel a Contact Service to provide supervised visits; their involvement is always subject to their availability and agreement.

4. The mother also sought injunctive orders, seeking to restrain the father from attending at the children’s school or activities and to prevent him posting any photos or information about her or the children on Facebook.  The father does not presently know which school the children are attending, but an order restricting his potential attendance at their school or activities will provide a level of reassurance to the mother.   In light of the father’s previous behaviour directed to Ms J, I will restrain him from posting or publishing any material that may threaten, intimidate, embarrass or harass the mother. I consider that is sufficiently protective.

5. I now make orders as published at the commencement of these Reasons.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge C. Kelly

Date:       20 June 2019