Towns and Towns

[2019] FamCA 675

FAMILY COURT OF AUSTRALIA

TOWNS & TOWNS [2019] FamCA 675

FAMILY LAW – CHILDREN – Parenting – With whom the child shall communicate and spend time with – Best interest of a child – Where the children live with the mother and spend inconsistent time with the father – Where interim orders were previously made for the father to spend weekly supervised time with the children – Where the trial was completed in November 2018 and evidence was re-opened in early 2019 following the father’s interstate relocation – Where all the parties agree for the children to remain living with the mother – Where there are competing applications in relation to the time the children spend with the father and whether that time should be supervised – Where the children made disclosures to the mother regarding the father exposing them to adult sexuality in his care – Where the children have a meaningful relationship with the mother, the father and the paternal family – Where primary and additional factors under ss 60CC(2) and (3) of the Family Law Act 1975 (Cth) are considered – Where there are risks to the children in the care of the father, but not at an unacceptable level leading to their relationship with the father ceasing altogether – Where the father’s capacity to care for the children is impaired – Where the safety of the children is prioritised over the meaningful relationship between the father and the children – Where the presumption of equal shared parental responsibility is rebutted – Ordered the children live with the mother and for her to have sole parental responsibility – Ordered the father spend professionally supervised time with the children on the first Saturday of each school holiday period for two hours – Ordered the mother shall facilitate telephone communication between the children and the father, at each child’s request – Ordered the mother update the father, in writing, of any decisions made by her in relation to the care, welfare and development of the children.

Family Law Act 1975 (Cth) s 60B, 60CC, 61DA, 64B

APPLICANT: Ms Towns

RESPONDENT: Mr Towns

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1371 of 2017

DATE DELIVERED: 18 September 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 13-15 November 2018; 21 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bithrey

SOLICITOR FOR THE APPLICANT: Mullane & Lindsay

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Self-represented (not present on 21 March 2019)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McMahon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid

Orders

1. That all prior orders in relation to X born … 2009 and Y born … 2011, (the children) are hereby discharged.

Parental Responsibility

1. That the mother have sole parental responsibility for the children.

2. That the mother keep the father advised in writing of decisions made by her in relation to the long term care, welfare and development of the children, in particular any change of enrolment at school, progression to high school, specialist medical treatment and religious instruction.

Residence

1. That the children live with the mother.

Time and Communication

1. That the children spend time with the father on the first Saturday of each school holiday period which follows Terms 1, 2, 3 and 4 for two hours under the supervision of B Group (“the agency”) or such other professionally supervised contact agency that the parties may agree upon at least 21 days in advance of the visit date:

   (a)Each party must:

   (i)Contact the agency within 7 days of the date of these orders to arrange intake and schedule the date for the first supervised visit;

   (ii)Contact the agency at least 21 days prior to each scheduled visit to confirm the date and time and costs of the next scheduled visit;

   (iii)Equally share in the total cost of each supervised visit;

   (iv)Pre-pay the fees nominated by the agency for the provision of each supervised visit by the method nominated by the agency;

   (v)Comply with all reasonable rules and requests of the agency under its service agreement;

   (vi)Comply with all reasonable requests or directions of the staff of the agency.

   (b)In the event that the agency is only able to/prepared to offer supervised time at times that differ from the first Saturday of each school holiday period, then the time under supervision shall be scheduled at times which can be provided by the agency on no more than one occasion each school holiday period and the parties shall use their best endeavours to ensure such time takes place;

   (c)In the event that the father is non-compliant with Orders 5(a) and 4(b) and as a result of such non-compliance two consecutive supervised visits are missed, the visits shall thereafter cease and time for the children with the father shall be at the sole discretion of the mother.

2. The children are each at liberty to telephone/FaceTime the father on his mobile telephone in accordance with their wishes, and the mother shall facilitate such calls to the father on the request of either child at any reasonable time and the mother is permitted to monitor the content of such calls as she sees fit.

3. The father is not permitted to speak to or in the presence of either child about these court proceedings or any other court proceedings he may have in consideration, or to denigrate the mother or the court or any other person associated with these court proceedings, with respect to the process or outcome of these court proceedings or any evidentiary matter in these court proceedings.

4. That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.

5. That within 14 days of these orders and within 14 days of the child/ren’s subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child/ren may attend from time to time, that school forward directly to the father copies of all of each child’s school reports and merit cards, and any written material pertaining to each child’s academic and extra-curricular activities.

6. The father may attend a child’s school function if parents have been generally invited to attend.

7. The mother shall in the event of an emergency involving either child notify the father as soon as practicable and in the event that the mother is unable to make contact with the father on the day of the event the mother shall use her best endeavours to notify the paternal grandfather.

8. Each party shall within 14 days advise the other of a postal address (which may be a Post Office Box) for the receipt of correspondence in accordance with these orders.

9. Each party shall within 14 days advise the other of a telephone number (which may be a mobile number or landline) for receipt and provision of information about the children in accordance with these orders.

10. The mother shall assist each child to forward to the father any cards, letters, gifts which he or she wishes to send to him.

11. The father is restrained from contacting either child by telephone without the prior written consent of the mother.

12. The father is restrained from contacting the mother by telephone on any telephone number other than the one nominated by the mother pursuant to Order 13 and is further restrained from contacting or messaging the mother by telephone on the nominated number other than in accordance with these orders.

13. That before the first scheduled supervised contact visit under these orders the mother shall make arrangements, with the assistance of the Independent Children’s Lawyer, to bring the children to an appointment with the Family Consultant, Ms L, at the Child Dispute Services at the Court for the purposes of explaining these orders to the children and answering any questions they may have in an age appropriate way.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Towns & Towns has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC1371 of 2017

Ms Towns

Applicant

And

Mr Towns

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of two children, a boy named X aged nine and a girl named Y aged eight at the commencement date of the trial.

2. The parties began living together in 2006 and were married two years later in 2008. The children were then born in 2009 and 2011. The parties separated on 8 December 2014 and have subsequently been divorced.

3. Since separation the children have lived with the mother and spent inconsistent time with the father.

Parties

The Applicant Mother – Ms Towns

1. The applicant mother, Ms Towns, is now aged 36 years. The mother is employed as an educator.

2. The mother lives with the two children in the former family home at Town A in Region 1 in New South Wales (“NSW”).

3. The mother has re-partnered with a man named Mr C aged 39 years. The mother and Mr C have separate households and spend time together, usually at weekends, as they can.

4. Mr C has two very young children. He presently spends supervised time with them. His own Family Law proceedings are pending in another registry of this Court.

5. It is an agreed fact that the Notice of Risk filed by the mother of the C children, in the proceedings to which Mr C is a party, made no reference to allegations of abuse of those subject children.

The Respondent Father – Mr Towns

1. The respondent is the father Mr Towns, now aged 39 years. The father was a business manager in Sydney. He anticipated starting employment as an administrative officer in Melbourne in late February 2019.

2. At the commencement of trial the father lived in Town D, a township in Region 2. He shared a rented house with his own father, the paternal grandfather.

3. The father commuted from Town D by car or bike to Sydney, every day Monday to Friday. This is a journey of not less than two hours one way.

4. The father had re-partnered with a woman named ‘Ms F’. The father and Ms F had separate households. The Court was advised by the father that his partner Ms F lived in Victoria.

5. It is probable, but not certain, that the father is living with a new partner in Melbourne. In emails dated 9 February 2019 (annexed to the Affidavit of the Mother dated 8 March 2019) and 27 February 2019[1] the father referred to living in a suburb of Melbourne with “my fiancée Ms G” and her two children aged seven and five years.

   [1] Exhibit 17

6. The domestic situation of the father is quite unclear.

The Trial

1. The applicant mother was legally represented and had briefed counsel.

2. The Independent Children’s Lawyer (“ICL”) too had briefed counsel.

3. The respondent father was self-represented. When the litigation began in 2017 the father had a grant of Legal Aid. He was unemployed at that time. The father was no longer eligible for a grant after returning to employment. He subsequently consulted a barrister but was unable or unwilling to pay legal fees.

4. The father prepared and filed a trial affidavit.

5. In response to a question from me, the father indicated that he did have all the relevant Court documents but had not brought them with him to Court. He advised that he was aware of the mandatory considerations in section 60CC of the Family Law Act1975 (Cth) (“the Act”) and had been provided with a copy of that section by his former lawyers.

6. The father indicated at the outset that he did not have any questions for the mother by way of cross-examination, nor did he require the attendance of the Family Consultant. Accordingly the evidence of each is unchallenged.

7. My early impression was that although the father was present at Court, at all times presenting as courteous and contained, he did not truly participate in the proceedings.

8. By the end of the trial I concluded that the father, by his limited engagement, had been staging a protest over the injustice he perceived in having to press for the restoration of unsupervised time with his children.

9. I am confirmed in that view by the contents of a grandiloquent email sent by the father on Sunday 11 November 2018 to all parties and my associate, in response to a request relating to annexures. Amongst other things the father referred to a ten million dollar claim for compensation proposed by him to be made in the High Court of Australia in respect to “preposterous allegations” in this case.

10. The trial was allocated three hearing days commencing 13 November 2018 and concluded within that time. Judgment was reserved.

Re-Opening of Evidence

1. On 9 February 2019, the father advised the mother by email that he was moving to live in Melbourne.[2] There was further correspondence by the father to the mother, the ICL and the Court confirming his new residence.

   [2] Annexure to mother’s Affidavit filed 8/03/2019

2. The matter was relisted on the application of the ICL[3] to re-open the evidence, to enable the changed circumstances of the father to be considered.

   [3] Exhibit 17

3. On 19 February 2019, the father advised the Court by email that he “…would not be able to make the conference call nor attend in person – I have meetings all day that day”.

4. On 26 February 2019, directions were made for the filing of further affidavits and Amended Minutes of Order by the parties.

5. The mother filed an affidavit. The ICL tendered an Amended Minute of Order.[4] The father did not file an affidavit or an Amended Minute of Order.

   [4] Exhibit 18

6. The father had, however, sent another email to the Court on 15 February 2019. The email itself was grandiose in some respects especially the signing off “Best fraternal regards, [Mr] Towns [sic] – son of the Great Grand Architect of the Universe” but it was not otherwise disrespectful.

7. The father set out the orders he sought in a concise way within that email. In summary, he proposed:

   a)Sole parental “custody” of the children to the mother at her sole cost;

   b)He would not pay any child support;

   c)Skype/Facetime for 15 minutes with  the children three times per week at his cost; and

   d)For the child to spend 3 one week holiday periods with him per year, during each term break.

8. A tentative date for further hearing in March was appointed and subsequently confirmed.

9. On 21 March 2019, the additional evidence was heard. The father did not attend on that occasion.

10. The decision was again reserved.

The Applications

1. All parties agreed, at least, by the conclusion of the trial on 21 March 2019, that the children should continue to live with mother and that she should have the parental responsibility for them.

The Issues

1. The issues can be categorised and answered in the following way:

Should the children continue to spend supervised time with the father?

If so, should it be supervised?

If so, for how long should supervision continue?

1. The children love the father and enjoy his company but have also felt hurt and bewildered by his inconsistency with them. He has in the past behaved strangely on occasions.

2. Supervision creates a safe environment for the children to enjoy their time with the father and restore relationships with him.

3. Supervised time, four times per year leads to different possible outcomes:

   a)One is that the father travels to see the children and talks to the children by telephone and/or FaceTime on every available occasion, that his commitment reassures the mother and as a result the parties agree to more expansive periods of time;

   b)Another is that the father rejects supervised time, views it as insulting and unnecessary, and chooses not to travel to see the children or otherwise does so randomly. Time for the children would then cease to the likely detriment of the development of the children growing up.

Whether or not the children are spending time with the father should there be orders for communication?

1. Yes. The father should be able to send appropriate cards, letters and gifts to the children.

2. Likewise, the children should be able to communicate with the father in the same way which will require the cooperation and assistance of the mother.

If so, how should communication take place?

1. The children have mostly enjoyed talking to the father and seeing him on FaceTime. That could continue unless the father chose to use the opportunity to criticise the mother or question the children about the mother’s life.

2. In that case, communication will cease and the children will have to wait until they are young adults and can decide what the relationship between the father and themselves should be.

Brief History of Relevant Events

1. During 2014, the relationship between the parties deteriorated and then abruptly ended in December of that year.

2. The mother had become uneasy about the father’s interest in a particular society/organisation (the H Group) and in religion/philosophy around alchemy. Her unease and disapproval related both to her own negative view of those areas of interest and her assessment that the father was giving priority to them over the children.

3. She referred to the father distilling his own urine and condensing chlorophyll. She was particularly concerned when the latter procedure lead to the explosion of a heated glass flask in the kitchen of the family home.

4. The father conceded in the witness box that he had been distilling chlorophyll in pursuit of eternal life.

5. The mother became uncertain about the mental health of the father.

Separation of the Parties

1. In December 2014, the terminating event for the marriage took place. The mother received information from her sister to the effect that the father had suggested to the maternal aunt that both she and her husband become part of an open marriage with the parties.

2. The father went further and suggested to the maternal grandparents that land be purchased to accommodate the three family units and that the grandparents could care for all the grandchildren, including the subject children, while the two couples swapped partners.

3. The mother responded to the receipt of her sister’s information by telling the father to leave the family home, which he did.

4. The maternal aunt approached a court for an Apprehended Violence Order (“AVO”) for her protection from the father. There was probably an interim order granted, although a copy of it was not available. A final order was made on 19 November 2015, protecting the maternal aunt and her husband from the father for a period of 12 months.[5]

   [5] Exhibit 12

5. It is an agreed fact that, between December 2014 and October 2015, the father then flooded the mother with text messages, quite literally thousands of texts, many of them sexually explicit.

6. On 2 February 2015 the mother accompanied the father to an attendance on her doctor. The doctor is said to have diagnosed, at least on a preliminary basis, a condition in the father namely Bipolar 1. That illness is certainly referred to in the medical record[6] of that attendance. The mother says that Seroquel was prescribed for the father. Such a prescription is noted. The mother did not know whether the father had the prescription filled nor whether the father took any medication.

   [6] Exhibit 13

7. The father rejects the proposition of a diagnosis having been made. He now believes, or says that he now believes, that he was tricked by the mother into attendance on a doctor for tactical reasons of her own.

1. The evidence suggests that the reason the mother persuaded the father to attend on her doctor was because she feared the father was mentally ill and wanted help for him. The medical record on 2 February 2015 refers to the father thus: “has been thinking of suicide but also talking about science etc [sic]”.

2. I accept the evidence of the mother, supported as it is by the doctor’s records. I conclude that this is an example of denial by the father of facts which did not suit him.

3. In July 2015 the mother approached police for assistance. She was overwhelmed by messages from the father. Some of those messages were annexed to a police statement. They read as sexual fantasies of the father about the mother, with an angry disappointed overtone.[7]

   [7] Exhibits 3, 8 and 11

4. In January 2016 an interim AVO, and then on 4 March 2016, a final AVO for a period of two years were made at Town J Local Court after a hearing for the protection of the mother. The father was ordered not to contact the mother for any purpose other than to arrange contact with the children.

5. On 4 July 2016 the parties went to mediation. They entered a Parenting Plan for supervised day time visits and weekly telephone calls.

6. The mother recorded frequent distress by the children during the telephone calls between them and the father. On one occasion in September 2016, the father said to the children that he cried himself to sleep at night “…I miss you so much I just want to visit you.” Y cried.”[8]

   [8] Mother’s affidavit filed 11/09/2018, para 44.

7. In August 2016, the father missed a visit with the children and afterwards blamed the mother, he said to the children “Mummy has issues with Daddy”.[9]

   [9] Mother’s affidavit filed 11/09/2018, para 45(c)(i)

8. Whether or not the father was speaking the truth to the children it was unkind and irresponsible to say those things to children who at the time were aged seven and five years of age. They had no control over events. The father must have understood that he was using the children to put pressure on the mother.

9. On 3 April 2017 the father sent an email to X’s school[10] traversing his personal adult concerns, particularly the perceived unfairness of the AVO. He wrote “…they awarded the AVO anyway because Ms Towns [the mother] told the [c]ourt a lie saying she feared for her life…”. This was an act of advocacy by the father, in his own interests, selective about events. It was not the simple passing of a message to the child that his father would see him soon. It was manipulative.

   [10] Exhibit 14

Application to the Court

1. In May 2017, the mother initiated proceedings in the Family Court of Australia following certain recent disclosures made to her by the children. The disclosures can be summarised as follows, that the father encouraged them to secretly play out with each other “the sex game” they had learned about from watching sexually explicit material whilst in the care and supervision of the father. Further, that the father encouraged them to do so and to keep it as a secret from the mother.[11]

   [11] Mother’s Affidavit filed 11/09/2018, paras 50-54

2. Neither child said anything about that to the Family Consultant, although X said he had seen pictures on his father’s computer which were “rude pictures and he did not want to say what they were.”[12]

   [12] Children and Parents Issue Assessment dated 21/07/2017, para 24

3. On 21 July 2017, the Children and Parents Issues Assessment recommended that the children spend time with the father. Supervision was recommended, either at a Contact Centre or by the paternal grandfather, until there was a determination about the allegations of misconduct.

4. The Family Consultant was clear to say that the children loved their father and missed him. The recorded observation was described as “a joyous reunion”.[13] Likewise the children were delighted to see their paternal grandfather.[14]

   [13] Children and Parents Issue Assessment dated 21/07/2017, para 27

   [14] Children and Parents Issue Assessment dated 21/07/2017, para 32

5. On 16 August 2017, orders were made by consent, pending an interim hearing, for supervised time at a contact centre or by a contact service.

6. During supervised visits in September 2017, the father promised to buy things for the children but did not. The father felt resentful and did not hide his feelings. Visits towards the end of 2017 were cancelled by the father in the context of the cost of supervision.

7. Orders made on 3 October 2017 enabled the children to spend weekly supervised time with the father through a supervision service, B Group.

8. There was also provision for weekly telephone contact.

9. The father attended time, supervised by B Group. The reports reflect unalloyed enjoyment by Y of time with her father and some ambivalence by X. Overall, the reports were positive.

10. On 20 December 2017, the Family Report was released. The recommendations were dependent on findings of risk. If there was no finding of risk for the children in the care of the father then time should increase incrementally but if there was a negative finding then time should stop.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Mother – Ms Towns

   (a)Amended Initiating Application filed 18/05/2018;

   (b)Affidavit of the mother filed 11/09/2018;

   (c)Affidavit of the mother filed 08/03/2019.

   The Respondent Father – Mr Towns

   (d)Amended Response filed 28/09/2017;

   NO Trial Affidavits

   (e)Affidavit of the father filed 31/05/2017;

   (f)Affidavit of the father filed 27/06/2018 in support of Application in a Case filed 31/05/2018.

   Reports

   (g)Children and Parents Issue Assessment dated 21/07/2017;

   (h)Family Report dated 20/12/2017;

   (i)Addendum to Family Report dated 12/02/2018.

The Law

1. The objects of the Act in relation to parenting orders (s 60B(1)) are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(1) of the Act). The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or family violence.

4. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question (s 61DA(2) of the Act).

5. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between the children and parents as well as any other specific issues.

6. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. The mother proposes sole parental responsibility for herself on the basis that she is unable to communicate with the father. After the deluge of texts in over a ten month period in 2015, the mother is understandably wary of any contact with the father. The mother adheres to the view that the father has exposed the children to adult sexuality.

2. The father proposes equal shared parental responsibility acknowledging that the mother is a good parent who makes sensible decisions for the children. He fears being excluded from their lives. He is also impulsively critical of the mother at times and adheres to the view that she has brain washed the children against him.

3. It seems unlikely that the parties would be able to communicate in a sensible pragmatic way, even less likely that they could thoughtfully consider each other’s ideas and then compromise.

4. The children will continue to live with the mother. Logically, she should make the decisions and advise the father of decisions taken.

Primary Considerations

The benefit to the children of having a meaningful relationship with both of their parents

1. The children have a meaningful relationship with both parents. The relationship with the father is under strain. The father has felt resentful and irritated by supervised contact. As a result, his time with the children has been erratic. That has disappointed and bewildered them.

2. X in particular shows signs of becoming cynical about his father.

3. There would also be a benefit to the children of reconnecting with the paternal family. The children dearly love the paternal grandfather in particular.

Additional Considerations

Any views expressed by each child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The children have always expressed a wish to spend time with and talk to their father.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The children have their most meaningful relationship with their mother. She meets all their needs. The father is important to them but he has been inexplicably elusive from their perspective.

2. The paternal family have been important to the children and love them.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The father has failed to spend time with the children knowing it would disappoint them and cause them distress.

2. Likewise, the father has not always made weekly telephone contact with the children.

3. The children have started to regard the father as unreliable. He has been at times.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The mother works full-time as a teacher and uses her income to support the children.

2. The father in response to a question from me, stated that he paid $340 per fortnight in child support directly from his wages and was up to date. That information was not contested.

3. The outcome of the property settlement between the parties was that the mother and the children remained living in the former family home.

4. The father made his position clear in February 2019 that he would not be paying child support.

5. I conclude that the father has taken the stance that if he cannot see the children on his terms he should not have to support them.

6. It is entirely irresponsible. The children are being educated, fed, clothed and entertained at the cost of the mother alone.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The children have had a difficult time over the last, almost, five years since the separation of their parents.

2. They have revelled in their father’s expressions of love for them.

3. Losing the father entirely from their lives would be very disappointing. They could feel rejected. They are likely to blame themselves for not having been able to persuade their mother to allow more time between them and him.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. At the time of the trial, the parties lived reasonably close to each other, about 30 minutes drive apart. They both have a car and drive. They have telephones and screens for communicating by Skype and/or FaceTime.

2. However, that changed in February 2019 when the father chose to move interstate to live in Melbourne.

3. Both parties are employed and can afford to pay for professional supervision. Since the father does not pay Child Support, the cost of travel should be his responsibility.

4. There are now practical impediments to time and communication.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The capacity of the father to meet the needs of the children is impaired. For reasons that are not clear to me the father cannot routinely give priority to their needs, especially for his time and attention.

2. After separation, the father at times used periods of time with the children to engage with the mother or in her absence to question the children about what the mother was doing and who she was seeing, on one occasion who she was kissing.

3. In 2017 after orders imposing supervision were made, the father chose not to arrange visits with the children as often as he could have. Further he told the children what activities he would be doing instead including; visiting friends, attending a barbeque, going bull riding, and so on.

4. Finally his resentment over supervision and the cost of it regularly spilled over into his conversations with the children, by him saying on one occasion, “I shouldn’t have to pay to see you”.[15]

   [15] Mother’s Affidavit filed 11/09/2018, para 68(n and at)

5. All this conduct by the father was immature and self-absorbed on the face of it.

6. Of significance are the statements of the children to the mother about “the sex game”. I am asked to draw an inference to that the father did two things:

   ·Actively, or passively (by failing to supervise), allowed the children, but particularly the elder child, to play with his telephone and access photographs and apps depicting both nudity and adult sexual activity; and

   ·Enjoined the children to play “sex games” with each other in private and keeping it a secret.

7. In 2014, the father was focused on polyamory. He conceded that his boundaries were wrong at that time. It is possible that the father might have found it interesting to encourage the children to touch each other’s bodies and genitals.

8. I cannot rule out the possibility that the father suffers from an undiagnosed mental illness. His behaviour has been “odd” to use the term of the Family Consultant. His thinking is disturbed at times.

9. The father himself is inconsistent on that topic. During the trial, he scoffed at the idea that he suffered from any mental illness.

10. However he attributed his conduct between December 2014 and October 2015 (sending masses of graphic sexual messages to the mother) to depression. The latter is a mental illness. The father may have suffered from it, as he says. It would be understandable: his marriage broke down; his house was flooded out; and he was made redundant at work, all around the same time.

11. He probably did not seek professional help. But, even that is uncertain.

12. It is an agreed fact that on 22 December 2014, shortly after separation of the parties, the father sent two text messages to the mother on that topic:[16]

    ...

    2:51pm: “Yes they are looking at type 1 bipolar assessment…not sure how I’ll go. I may need my norepinephrine and serotonin chemical imbalances checked, monitored and controlled.”

    3:07pm: “… Sydney - my counsellor is Ms K, but I forgot the psychiatrist name Ms K is gonna get me to see [sic]. Hopefully I can resolve my issues and stabilize my manic depression/bipolar. I show all the symptoms apparently”

    (As per original)

    [16] Mother’s Affidavit filed 11/09/2018, para 30

13. In cross-examination, the father was asked about the content of those messages. He said no-one was going to see him or monitor him, he had made that up.

14. The father, knowing that the mother was worried about his mental health, may have sent those messages to falsely reassure her that he was seeking help and treatment.

15. Equally at that time, he may have been worried that he did have a problem and was trying to self-diagnose.

16. There are other explanations, including that he sent false information to tease the mother.

17. In February 2015, the parties went together to the mother’s general practitioner. The father was dismissive of that attendance on the doctor as either placatory of the mother by him or a trick of the mother’s to create evidence unhelpful to him.

18. Given that the father looks back with shame on his post-separation conduct towards the mother and believes he was depressed at that time, one thing he could have done was attend on a psychiatrist in a genuine attempt to facilitate assessment of the state of his mental health then and now.

19. Legal advice may have lead him in that direction. However, in final submissions the father stated:

    No-one could tell me about my mental health.

20. In response to my question as to why a psychiatrist could not do that, the father said this:

    …they don’t know my situation. I can only be the guide of my own soul.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The attitude of the father has been demonstrably immature.

2. Just as I concluded that the father had attended the trial, or at least the main part of it, to protest his obligation to be there, I concluded that the irregular attendance by the father for time with the children, once visits became supervised, has also been a staged protest. The father was so resentful about the imposition of supervision and the cost of it, that he allowed his children to suffer emotionally to prove a point.

3. The mother has been protective of the children. I conclude that she knew how much the children wanted to spend time with the father but needed protection from his inconsistency and from inexplicably strange conduct at times.

4. I do not consider that she took any pleasure in the Court proceedings.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. The children were exposed to family violence within the family. The father referred to “thousands of heated arguments”. As a toddler, X was present when his father in anger made a hole in the wall with his elbow. The damage would have carried less significance than the anger which gave rise to it.

2. The father damaged a security door in the same way in response to the mother leaving the home after an emotional argument.

3. The father blames the mother for “winding him up” to act in this way.

4. The father sent to the mother, and refused to stop sending, texts including graphic sexual references and his plans for reconciliation. The mother was offended by the father persisting with suggestions that her sister [the maternal aunt] and brother-in-law be invited into an open marriage with them. Hardly surprising when that suggestion when first made was what gave rise to final separation.

5. The mother obtained an AVO for protection from the father in March 2016.

6. In 2014, the maternal aunt obtained an interim AVO for her protection from the father when he unilaterally, and therefore brazenly, invited her and her husband to engage in a sexual relationship with himself and the mother.

7. Despite expressing regret and remorse for having behaved in these ways, the father during cross-examination described himself as never having harmed the mother and children in anyway.[17]

   [17] Father’s affidavit filed 27/06/2018, page 4

8. He feels aggrieved by what he repeatedly described as the mother’s “preposterous allegations” against him.

9. The father has revealed personal information about the marriage and separation to the children’s school and to the contact service. He feels the need to exonerate himself by criticising the mother and exposing personal information about her to third parties whose role is exclusively to educate, care for and supervise the children.

1. The father is unpredictable. He can be demanding and aggressive. He can be funny and entertaining.

2. He can be emotionally destructive then be readily able to forgive himself.

3. In August 2018, the father had an altercation with a neighbour and police became involved.[18] The father made threats “I’m going to burn your f’ing house down”. He concedes having bent the neighbours sign and threatened the neighbour that a third party would come after the neighbour.

   [18] Exhibit 15

4. In the witness box, the father denied poor impulse control or difficulty managing anger. In retrospect, he appeared to be pleased with his own behaviour outlined above.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the children

1. The ICL, at first, proposed time for the father with the children monthly and supervised.

2. Counsel for the ICL referred to the balance between the harm to the children of losing contact with the father and the harm of being exposed to emotionally destructive behaviour.

3. After the father moved away to Melbourne but forwarded no new proposals, the ICL revised his position to six times per year in the Newcastle area.

4. The proposal of the mother changed, reducing time to six periods per year, supervised, for the children with the father.

5. It was conceded on behalf of the mother that such a regime will not easily sustain a meaningful relationship between the children and their father as a permanent arrangement.

6. Despite experiencing him as unreliable, both children love their father and long to spend time with him.

7. There are risks to the children, but not at an unacceptable level that should lead to the relationship being closed down.

Any other fact or circumstance that the Court thinks is relevant

1. In her Amended Initiating Application, the mother proposed orders for the father to complete certain named parenting courses. She also proposed that evidence of completion be a condition to progression to unsupervised time with the children.

2. The father gave evidence that he would attend parenting courses if the Court made an order to that effect, stating “I would have to”.

3. I unreservedly accept the opinion of the Family Consultant that the father would benefit from undertaking such parenting courses. However, compelling attendance by order is to ensure the physical presence of a person, but nothing can compel a person to open their mind to new information and to learn.

4. The Court cannot predict what change, if any, completion of a parenting course would effect.

5. For that reason I have not made such orders. However the father would be well advised to take the advice of the Family Consultant. The recommendation was made in the Family Report for his benefit and the consequential benefit of the children.

6. The father worked away from home routinely prior to the separation of the parties. He did not have the same opportunity as the mother to learn about the changing needs of the children as they passed through developmental stages.

7. Likewise, in the four plus years since separation, he is not as attuned to their needs as he could be particularly in relation to supervision and engagement.

Conclusion

1. The father has the task ahead of him reassuring the children that he will do what he says he will. If he makes promises that he does not keep they will lose confidence and ultimately interest in him.

2. If he is reliable and pays attention to the needs of the children when they are with him their relationship could be restored.

3. In the event that the father undertook parenting courses, but much more so if the father consulted a psychiatrist for assessment of his mental health, the mother could develop some degree of trust in the father. Presently, in my view, there is no trust and for good reason.

4. Despite all that has happened, I am confident that the mother would give priority to the needs of the children and amplify time.

5. Otherwise, it will be a matter for the father to bring the matter back to Court. He would need to demonstrate at least a change of attitude to committing to time with the children and meeting their needs before his own. Clarity around his mental health would also be necessary.

6. Orders are made largely in accordance with the submissions on behalf of the ICL. The area of difference is that four visits per year have been ordered not six. The intention is for that regime to keep the relationship alive until either more time is agreed to (based on a genuine change of approach by the father which restores the mother’s confidence in the father) or time ceases.

7. The orders reflect the conclusion that the safety of the children has priority over the meaningful relationship between the children and the father which does exist.

8. Orders are made accordingly.

I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 18 September 2019.

Associate: 

Date:  18 September 2019