TRENGOVE & CARLISLE
[2014] FCCA 809
•23 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRENGOVE & CARLISLE | [2014] FCCA 809 |
| Catchwords: FAMILY LAW – Children – three children, one with special needs – father seeks unsupervised time – best interests – findings that father has problem with alcohol, anger and violence – supervised time to continue with guillotine order – father able to approach the Court after 12 months if he addresses welfare concerns – difficulties associated with ongoing supervision considered – sole parental responsibility order in favour of mother. |
| Legislation: Family Law Act 1975, Part VII, ss.68LA, 60A to 70Q, 60B, 60CA, 60CC, 65DA, 64B, 65D, 61DA, 65DAA |
| P & P (1995) FLC 92-615 Mazorski & Allbright (2007) 37 Fam LR 518 Guidelines for Independent Children’s Lawyers (6 December 2007) |
| Applicant: | MR TRENGOVE |
| Respondent: | MS CARLISLE |
| File Number: | BRC 10128 of 2012 |
| Judgment of: | Judge Purdon-Sully |
| Hearing dates: | 10 & 11 December 2013 |
| Date of Last Submission: | 11 December 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 23 April 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondent: | Self represented |
| Counsel for the Independent Children’s Lawyer: | Mr G Andrew |
| Independent Children’s Lawyer: | Rice Naughton Buckley |
ORDERS
That all previous Orders and Parenting Plans be discharged.
Parental responsibility
That the mother have sole parental responsibility for the major long term issues affecting the children, [X] born [omitted] 2004, [Y] born [omitted] 2006 and [Z] born [omitted] 2007 (“the children”).
That except in an emergency situation, prior to making any long term decision in relation to the children:
(a)the mother will give the father two (2) weeks written notice of the decision she proposes to make and the basis for her proposed decision;
(b)the father will respond to the mother if he wishes to suggest any variation or alternative proposal within seven (7) days of receiving the mother’s notice;
(c)the mother will consider any feedback given by the father by reference to the best interests of the child/children; and
(d)the mother will make any final decision concerning the major long term issue and will inform the father of her decision in writing within seven (7) days.
Living arrangements
That the children live with the mother.
Time with the father
That the children shall spend time with the father as follows:
(a)each alternate Saturday at [omitted] from 9.00am to 12.00 noon; and
(b)such time is to be supervised by the maternal grandmother, Mr H or the mother.
That for the purposes of the children’s time with the father in accordance with Order 5(a) hereof:
(a)the father shall provide written confirmation by text message to the maternal grandmother by no later than 8.00am on the Saturday of the scheduled time with the children, by the father sending a text message to the phone number [omitted], and failing receipt of same the father shall forego his time with the children that weekend; and
(b)in the event of wet weather the children will spend time with the father at the McDonalds at [address omitted], with the father to confirm same at the time of providing his notice of intention to spend time with the children pursuant to Order 5(a) hereof.
That in the event that the father fails to attend any visit with the children which are to occur pursuant to Order 5(a) hereof, except for emergent circumstances or illness of the father, then the time that the children shall spend with the father shall cease.
Communication
That the children communicate with the father as agreed between the parties and failing agreement as follows:
(a)by telephone between 6.00pm and 6.30pm each Wednesday with the mother to cause the children to initiate the call;
(b)by email at all reasonable times; and
(c)by post.
That in the event that the children are unable to telephone the father on Wednesdays in accordance with Order 8(a) hereof, the mother shall notify the father of same by text message and shall facilitate the children phoning the father the following evening, being Thursday between 6.00pm and 6.30pm.
That neither parent will denigrate the other, their family, their partner or their friends to, or in front of, or within the hearing of the children and shall direct third parties to refrain from denigrating either party or their family, their partner or their friends to, or in front of, or within hearing of the children and failing their compliance with such a direction shall remove the children from that environment immediately.
That neither parent shall discuss these proceedings with the children.
That each parent keep the other parent informed at all times of their residential address and a contact telephone number and an email address and are to notify the other parent within twenty four (24) hours of a change.
That the parties will communicate about issues regarding the children by email.
Health and education
That the mother shall inform the father as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children.
That by this Order the mother does authorise and direct [W] School or any other educational institution or extra-curricular organisation upon which the children may attend to provide to the father, at his expense (if any), such information and documentation as may be requested by him from time to time.
That by this Order the mother does authorise and direct any medical or associated practitioner providing treatment to the children to provide to the father, at his expense (if any), such information and documentation as may be requested the father from time to time.
That the mother be granted leave of the Court to provide a copy of these Orders to [W] School or any other educational institution or extra-curricular organisation upon which the children may attend.
Other Orders
That the father be restrained from consuming alcohol for twenty four (24) hours prior to and during any period when the children are in his care.
That the parties shall undertake a Parenting Orders Program at Relationships Australia at Chermside.
That the parties, within seven (7) days of the date of service upon them of these Orders, shall contact the Parenting Orders Program Coordinator (or nominee) for intake into the Program.
That the parties shall comply with any reasonable direction of the Program Coordinator and in particular:
(a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;
(b)advise the Program Coordinator of their contact telephone number and advise the Program Coordinator of any change in that number;
(c)attend and participate in any program as requested including attending referrals to treating health professionals as recommended by the Program Coordinator (provided that either party may refuse at their election to participate in joint sessions); and
(d)in the event that either party refuses or fails to attend the program or any part thereof without reasonable excuse or refuses to accept a reasonable direction of the Program Coordinator, then the matter may be relisted by either party on the giving of twenty four (24) hours’ notice.
That for the purposes of the Program the parties shall provide a copy of these Orders to the Program Coordinator together with the family report of Ms B prepared for the purpose of parenting proceedings.
That each parent will provide the other parent with written evidence that they have completed the Program to the satisfaction of the Program Coordinator.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
B.That the Court may consider that there has been a materially significant change of circumstance such as to require the revisiting of the Order with respect to the children’s arrangements were the father to:
(i)attend pursuant to Order 5(a) for no less than twelve (12) months;
(ii)complete no less than four (4) Carbohydrate Deficient Tests over a period of twelve (12) months, with the mother to provide written notification to the father and the father to attend for such tests within twenty four (24) hours of the request and such test results confirm no detection of alcohol;
(iii)attend and complete a course/counselling to assist him with overcoming alcohol abuse; and
(iv)attend and complete a course to overcome anger management issues.
IT IS NOTED that publication of this judgment under the pseudonym Trengove & Carlisle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 10128 of 2012
| MR TRENGOVE |
Applicant
And
| MS CARLISLE |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings involve competing applications under Part VII of the Family Law Act 1975, as amended (“the Act”) with respect to three children [X] born [omitted] 2004, [Y] born [omitted] 2006 and [Z] born [omitted] 2007.
The children’s parents, Mr Trengove and Ms Carlisle, are unable to agree on the parenting arrangements for their children and ask the Court to make that decision for them.
In these reasons I shall refer to Mr Trengove as “the father” and
Ms Carlisle as “the mother”.
There is no issue that the children will continue to live with the mother, their historical primary carer. The father, however, is seeking to move from supervised to unsupervised time with the children. Pursuant to interim Orders the father spends time with the children each alternate Saturday at [omitted] from 9.00am to 12.00pm supervised by Mr H, the maternal grandmother (“the grandmother”).
The father’s case, shortly put, is that he is the father of the children and has a right to see the children on an unsupervised basis.
The mother opposes the father moving to unsupervised time with the children. She raises welfare concerns centring on the father’s extensive history of alcohol related offenses, including offences for assault, indecent assault and violence. It is the mother’s case that the father lacks insight into his alcohol and anger issues; that he has a problem with alcohol and can become aggressive and violent when he drinks alcohol. She raises concerns about his lack of stable accommodation and limited experience in day-to-day parenting. The mother deposes to a problematic parenting relationship in support of an order for sole parental responsibility in her favour. Her case is that if the father addresses her concerns and evidences meaningful and consistent change then she would not object to unsupervised time.
The father dismisses the mother’s concerns. He asserts that the police have made false allegations against him. He asserts that he is a good father. He takes comfort from the fact that his criminal history records only three convictions.
The matter proceeded to trial on 10 and 11 December 2013. The children were separately represented by an Independent Children’s Lawyer (“ICL”). At the conclusion of the trial and pending the Court handing down its decision the interim parenting Orders were varied to permit the mother and the grandmother to alternate as supervisors of the father’s time with the children.
Personal details
The father is aged 32 having been born in [omitted] on [omitted] 1982. The father asserts that his actual birth date is [omitted] 1985.
The father came to Australia as a refugee on 12 December 2002. He is employed on a casual basis as a [omitted] which involves him in weekend and mid-week work.
Since 1 May 2013 the father has been living in a one-bedroom unit in [omitted], a suburb of Ipswich.
The mother is aged 26 having been born in Brisbane, Australia on [omitted] 2002. She is employed four days a week as a [omitted]. Her hours of employment are from 8.00am to 6.00pm. The mother is nearing completion of a Degree in [omitted] although she has deferred her last semester due to her work commitments.
For the past four years the mother has been living with the grandmother and the children in a three-bedroom Housing Department home at [omitted], a suburb of Brisbane. The grandmother is retired. She cares for the children outside of school hours when the mother is unavailable.
The parties commenced a relationship in September 2003 whilst in high school. The mother left school in year 11 because of pregnancy.
The parties started living together in July 2005 following the birth of their eldest child, [X]. They briefly separated in October/November 2006 before separating on a final basis in 2009. They did not marry.
Following separation the children remained in the care of the mother.
From January to September 2011 the father resided in Victoria for work reasons.
The children attend the [N] School. At trial [X] was in grade four, [Y] in grade two and [Z] in grade one.
[Y] is a special needs child. Shortly before trial she was diagnosed with a rare form of [omitted], a congenital life-time condition which involves a malformation of a particular chromosome. (Exhibit 25). As a consequence [Y] presents with certain physical characteristics, symptoms and behavioural issues which include delayed motor development and communication, speech problems and an intellectual disability. [Y]’s speech and communication is such that she also communicates by a sign language known as Makaton. Makaton is a simple version of sign language used for children or those with learning difficulties. [Y] will be unable to live independently. She will require care for the rest of her life.
Parenting proceedings
The father commenced proceedings for parenting orders on 9 November 2012.
On 30 January 2013 orders were made that the children live with the mother and spend time with the father each fortnight on Saturday mornings to be supervised by the grandmother at [omitted]. Orders were made for phone time. The parties were required to undergo drug testing and an ICL was appointed.
Further interim parenting Orders were made by consent on 3 July 2013 which whilst continuing supervised visits at [omitted], expanded the nominated supervisors and required the father to text the supervisor one hour before a scheduled visit to confirm he would be attending on time. This arose as a consequence of the mother’s complaint that the father would either not attend a scheduled visit or would arrive late. Variations were made to the father’s phone time with the children. The father was also restrained from consuming alcohol 24 hours prior to a scheduled visit.
The father was further ordered to undergo a random blood test of his Carbohydrate Deficient Transferrin Levels (“CDT”) and a urine alcohol and drug screen as required by the ICL. This Order arose following the Court’s consideration of material produced under subpoena by Queensland Police, including the father’s criminal history.
On 22 August 2013 the parties and the grandmother attended family report interviews with Ms B, a Court expert. Ms B’s affidavit was filed on filed 4 September 2013.
On 30 September 2013 the matter was listed for trial.
The evidence
The father relies upon the following documents:
a)Initiating Application filed 9 November 2012;
b)Affidavit of father filed in support filed 9 November 2012;
c)Further affidavit of father filed 27 August 2013; and
d)Further affidavit of father filed 20 September 2013.
The mother relies upon the documents listed in Part C of her Case Document filed on 29 November 2013 as follows:
a)Response filed on 14 June 2013;
b)Notice of Child Abuse filed 14 June 2013;
c)Affidavit of mother filed on 14 June 2013;
d)Affidavits of the grandmother filed 14 June 2013 and 15 November 2013;
e)Affidavit of Ms L filed 14 June 2013; and
f)Further affidavit of mother sworn 30 September 2013 and filed by leave on 10 December 2013.
The ICL relies upon the material outlined at Annexure C of her Case Document filed on 3 December 2013 as follows:
a)Affidavit of Ms B filed 4 September 2013; and
b)Subpoenaed material.
There are 28 exhibits.
The parties gave evidence, as did the grandmother and Ms B. Ms L was not required for cross-examination.
Credit
The mother and grandmother
The mother and grandmother impressed as witnesses of truth and reliability. Both presented as balanced, thoughtful and insightful. Their evidence was corroborated in material respects.
The mother was prepared to make reasonable concessions when invited to do so. She presented as being well prepared and conversant with the issues under consideration.
The father
The father presented as a poor witness. There were inconsistencies in his evidence. He was often evasive and argumentative. He displayed concrete and incongruent thinking, was unable to make reasonable concessions and was combative and accusatory in his interactions in the Court room. It was the mother’s evidence that the father’s behaviour in Court and his style of communication was indicative of his behaviour and communication during the relationship.
Whilst I acknowledge that the father conducted his case in a language not his mother tongue, he has lived in Australia for over eleven (11) years. He attended high school in Australia. He has tertiary qualifications in [omitted] from an Australian university. Further, his history suggests that he is a man who is able to navigate the legal system, including accessing legal advice and/or legal aid when needed. He accepted under cross-examination that he was well versed in and aware of his legal rights and the pursuit of those rights. The evidence further suggests an historical level of confidence on his part in being able to engage with police, lawyers and the immigration authorities.
In the context of a complaint by the father that the Counsel for the ICL had been pointing and/or gesturing at him (something that the father acknowledged he also did during the trial) and whilst acknowledging the likelihood of some cultural issues, the father’s tone and manner of communication was at times confronting. His questioning of the grandmother about the mother “hitting” on him and having sex with some unnamed boy was offensive. It had no relevance to anything and was probably designed to denigrate the mother because she had raised a concern about his drinking, a concern shared by the grandmother. His suggestion to the grandmother that she would be happy if “I told you now take the kid with your daughter and … I dump them your daughter’s boyfriend” did not reflect well on him.
The father presented as a man focussed on his rights and the pursuit of those rights. He evidenced a limited appreciation of the correlation between rights and responsibilities and a modest insight into the issues, including the mother’s legitimate welfare concerns about his drinking and anger issues. The Court would accordingly have concerns about accepting the father’s evidence on factual disputes unless unchallenged, corroborated or inherently probable.
Ms B
The father raises issues to do with Ms B and the ICL which I shall address now.
Whilst the father contends that Ms B did not do her job properly I do not accept that to be the case for the following reasons:
a)Ms B’s Curriculum Vitae discloses that she holds Bachelor degrees in Arts and Social Work, a nursing degree in psychiatry and a Diploma in Child Protection. She discloses twenty-five (25) years’ experience as a social worker, counsellor, mediator, family therapist and report practitioner including as a Court appointed counsellor. She has significant experience in working for the Court. I accept that she is well qualified and evidences the necessary qualifications and expertise to express the professional views in her report and at trial.
b)Ms B’s report, which runs to 34 pages, discloses in detail her interviews with the parties and others, the documents she perused, the issues, her evaluation and recommendations. I accept her evidence in response to questions posed by the father that whilst she did not include in her report everything said during her interviews, she did include what she viewed as being important. Nothing, in my view, turns on the fact that Ms B incorrectly referred to the father informing her that the mother had remarried as opposed to re-partnering. Nor do the matters asserted by the father to have not been included in the report present as being relevant to the issues. This is not a case about a change of residence of the children or about the mother’s inability to care for the children by reason of her having or not having in the past other men friends. Nor is a finding as to whether the mother did or did not “cheat” on the father likely to assist the Court in its determination as to whether the father’s time with the children should be extended and move from supervised to unsupervised time.
c)What is relevant is that in preparing her report Ms B deposes to:
i)having made all enquiries she believed necessary and appropriate and relevant;
ii)having recorded all of the facts she viewed as being relevant;
iii)the opinions expressed by her were independent and impartial;
iv)that she understood her duties as an expert witness; and
v)she had complied with her professional codes of conduct and protocols.
I find that the recommendations of Ms B are consistent with and supported on the whole of the evidence before the Court. I accept that her recommendations reflect not only her expertise and experience, but also the advantage afforded to her by her interviews with and evaluation of the parents, the grandmother and the children. I propose to rely upon her report, to which I accord significant weight, together with her expanded oral evidence at trial as an evidentiary basis for findings I propose to make with respect to the parenting issues and upon the opinions expressed by her to inform and explain those findings.
The ICL
I do not accept the submission of the father that the ICL was bias in favour of the mother or engaged in discrimination because the father was “black” and the mother was “white.” A number of issues present in this case, however race and the colour of the parents’ skin is not one. The children, whose interests the ICL represent, are, of course, bi-racial.
Nor am I able to conclude that the ICL or Counsel for the ICL failed in their statutory or professional responsibilities as prescribed (s.68LA of the Act), as discussed in a number of Full Court decisions (see P & P (1995) FLC 92-615) or as outlined in the Guidelines endorsed by this Court and published on 6 December 2007 as a public document on the Court website at
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As part of their independent role, the ICL is entitled to inform the Court and the parties at the commencement of the trial of any preliminary views held on the parenting arrangements that will meet the best interests of children and detail any Orders sought.
The very nature of the role of the ICL may result in one or both parents being disappointed or unhappy with the ICL’s view. That does not suggest bias. Nor does the ICL exploring difficult topics with one or both parents as part of the testing of their evidence connote bias. The Court recognises that parents may present with strengths and weaknesses as people and as parents. However, the nature of the Court’s enquiry requires a consideration of parental conduct if that conduct has relevance to the issues (see Brandon & Brandon (No. 2) [2012] FamCA 374 at [30] per Kent J).
I do not propose to make further comments on issues of credit. What further findings I intend to make will be done during my discussion of the considerations I view as relevant.
I have had the benefit of considering the written submissions of Counsel for the ICL, Mr Andrew (Exhibit 28). I have also taken oral submissions from the ICL and the parties. I do not propose to respond to every submission, however in reaching my decision as to what orders I should make in the best interests of the children I have considered all submissions.
Competing proposals
As clarified under cross-examination and in oral submissions the father seeks orders that would enable him to spend time with the children:
a)each alternate weekend from 5.30pm Friday to 5.30pm Sunday, with an extension if Monday is a public holiday;
b)during half of the school holidays; and
c)on Christmas day.
However, if the Court is not minded to make those orders then in the alternative he seeks time with the children on Sunday from about 9.00am to 3.00pm, the father’s intention being that they would spend time with him at Church that day.
The orders sought by the ICL are as detailed in a Minute of Order dated 11 December 2013 (Exhibit 27). If I made those orders then:
a)the mother would have sole parental responsibility for the major long-term issues affecting the children and in that regard save for emergent circumstances she would make those decisions only after notifying the father, seeking his input and taking into account his views before making any decision;
b)the children would live with the mother;
c)the children would spend time with the father each alternate Saturday from 9.00am to 12 noon such time to be supervised by the grandmother;
d)For the purposes of such time the father shall provide written confirmation by text message to the grandmother by no later than 8.00am on the Saturday of such scheduled time and failing his doing so then he will forgo his time;
e)in the event of wet weather, time will take place at McDonalds [address omitted];
f)save for emergent circumstances or illness of the father, in the event the father fails to attend any visit then his time with the children shall cease;
g)the children will communicate with the father unless otherwise agreed:
i)between 6.00pm and 6.30pm each Wednesday, with the mother to initiate the call with alternative arrangements detailed if the children are unable to do so;
ii)by email; and
iii)by post.
h)there are specific issue orders which address the father being able to receive medical and school information, non-denigration orders and an order that the parties attend a Parenting Orders Program at Relationships Australia at Chermside;
i)There is an order prohibiting the father from consuming alcohol 24 hours before he spends time with the children; and
j)there is a notation to the order which reads as follows:
“The Court may consider that there has been a materially significant change of circumstances such as to require the revisiting of the Order with respect to the children’s arrangements were the father to:-
(a)attend pursuant to Order 5(a) for no less than 12 months;
(b)that the father complete no less than four Carbohydrate Deficient Tests over a period of 12 months, with the mother to provide written notification to the father and the father to attend for such tests within 24 hours of the request and such test results confirm no detection of alcohol;
(c)attend and complete a course/counselling to assist him with overcoming alcohol abuse;
(d)attend and complete a course to overcome anger management issues.”
The mother supports the orders sought by the ICL save that on her proposal supervision will alternate between the grandmother and herself to afford some relief to the grandmother.
Legal principles
Part VII of the Act, sections 60A to 70Q, provides the statutory framework in which the Court exercises its power to make parenting orders.
The legal principles to be applied have been considered in a number of Full Court decisions commencing with Goode & Goode (2006) FLC 93-286 and by the High Court in MRR v GR [2010] HCA 4.
Section 60B of the Act sets out the objects of Part VII to ensure that the best interests of children are met and details how those objectives are achieved (s.60B(1)) and the principles which underlie those objects (s.60B(2)). Section 60B(1) provides:
“(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Section 60CA of the Act requires that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
In informing its discretion as to what orders will meet the best interests of a child the Court is required to consider the matters detailed in s.60CC of the Act. Section 60CC of the Act identifies the “primary considerations” (s.60CC(2)) and the “additional considerations” (s.60CC(3)) the Court must consider.
Section 64B defines a “parenting order” and identifies the matters that may be dealt with by a parenting order.
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”.
Section 65D(1) provides that subject to sections 61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) the Court may make such parenting order as it thinks proper.
Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in sub-section (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s.61DA(4)).
If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then the Court must go on to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider an order for substantial and significant time with each of the parents (s.65DAA).
When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests. The child’s best interests remain the overriding consideration
Process to be followed
In the circumstances of this case having identified the proposals of the parties and the ICL I propose to adopt the following process in determining the best interests of the children:
a)Firstly, informed by the objects expressed in s.60B(1) and the principles underlying those objects in s.60B(2) to consider, weigh and assess the evidence adduced on behalf of the parties and make findings about the primary and additional considerations set out in s.60CC. In this regard I propose to look at the additional considerations in s.60CC(3) first before embarking upon a consideration of and findings about the primary considerations in s.60CC(2) (Collu & Rinaldo [2010] FamCAFC 53; Sigley & Evor [2011] FamCAFC 22; Moose & Moose [2008] FamCAFC 108);
b)Secondly, to consider parental responsibility and the pathway to a result provided by s.61DA and s.65DAA, having regard to any best interest findings made under s.60CC, including any findings as to family violence or abuse; and
c)Thirdly, outline my conclusion and the orders I intend to make in the children’s best interests.
Additional considerations
s.60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
[X] who is nine years of age was interviewed by Ms B. His views are reported at [55] of her report as follows:
a)“I’ll see Dad at [location omitted] as long as Grandma can come”;
b)“I like to see Dad every second Saturday not more often; all of us like it the way it is”;
c)It would make him happy if ‘Mum and Dad could see each other and get on and be friends’.”
[X] impressed Ms B as being “a lovely youngster who seemed to have a fair idea of the purpose of the day’s interviews” (at [54] of her report).
[Y] who was aged seven at trial reported to Ms B that her favourite “grown-ups” were her mother and grandmother. She did not express any views about her relationship with her father. Ms B noted at [56] of her report that [Y]’s teachers had observed her having an aversion to working with male staff.
Ms B described [Y] as “a delightful and somewhat vulnerable child”. In the interview she was “able to focus very well for a limited time.”
[Z] who is aged six years told Ms B that her father “takes us to the pool; I like [location omitted]. I am happy to go there; we leave when Daddy goes home.” She nominated as her favourite grown-ups “[first name omitted], Mummy and Grandma.”
[Z] was described by Ms B as “cheerful and talkative”.
There is no persuasive evidence to suggest that the children’s views have been improperly influenced by the mother or grandmother as asserted by the father at [42] and [43] of his affidavit filed 27 August 2013. Nor was it inappropriate for the children at their age to be interviewed by Ms B. It is a requirement of the Act the Court consider any views expressed by children and make an assessment as to the weight to be given to those views. One process to enable that to occur is through interviews conducted by Court expert.
I place some weight on the views of [X] that he is happy with the current arrangement which supports the proposal of the ICL and mother.
s.60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)
The children’s primary attachment is with their mother. She has been their historical primary carer. Ms B observed the relationship between the children and their mother as being a close and secure attachment. [1]
[1] at [66] of the family report
She further observed that “the interactions observed between Ms Carlisle and the children came across as warm and supportive; the children were entirely comfortable in her presence. [X], [Y] and [Z] gave the impression of belonging to a loving, encouraging and accommodating home environment.” [2]
[2] at [66] of the family report
The children are yet to develop a close attachment with the father, although Ms B felt that [X] and [Z] were enjoying their outings to [omitted]. Ms B referred to the relationship as “having just a nice outing with a good friend.”
[Y] is yet to develop an attachment with her father. The father appears to acknowledge this. He questioned the grandmother as to why it was that [Y] does not “want to get close to me”. In his examination of the mother he appeared to blame her for the fact that, in his view, [Y] did not love him.
The children enjoy a close attachment with their grandmother. There is no persuasive evidence to support the father’s concern at [15] of his affidavit filed on 20 September 2013 that the grandmother does not support the children’s relationship with him or that she is not an appropriate supervisor. The children’s comments to Ms B suggest that they find comfort in their grandmother being present during the time they spend with the father at [omitted]. Further, the evidence is that the grandmother has been a significant support for [Y].[3] The supervision arrangements involve a significant commitment on the part of the grandmother. The evidence suggests that as supervisor she has acquitted herself in an exemplary child-focussed manner.
[3] at [64] of the family report
The children also appear to have a positive relationship with the mother’s partner. They also appear to maintain contact with other members of the mother’s extended family.
I place significant weight on my findings with respect to this consideration which support the proposal of the mother and ICL.
s.60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
This is a significant consideration in this case.
The mother has taken up the primary responsibility for making decisions about the major long term issues to do with the children including management of the children’s schooling and extracurricular activities and [Y]’s health needs.
There is no persuasive evidence to enable me to conclude that the mother has been excluding in making these decisions. The evidence suggests that the father has been a largely uninvolved parent who has absented himself from the lives of the children for periods of time, including interstate for work opportunities and who has failed to prioritise his responsibilities towards them.
The father has also been inconsistent in spending time with the children. There have been a number of occasions when he has failed to spend regular time with them under the Court Order, notwithstanding that time being modest in duration and frequency. Whether there are cultural and/or personality factors at play as suggested by the mother to Ms B to explain the father’s conduct, I accept that the father has (as the mother further informed Ms B) “drifted” in and out of the lives of the children. I accept that his decision to seek accommodation in Ipswich as opposed to Brisbane made it more difficult for him to see his children, a fact that he was not prepared to acknowledge at trial.
I accept the evidence of the grandmother and the mother where each has deposed to the father either failing to attend contact visits, cancelling visits, arriving late and/or not availing himself of the opportunity to spend the allotted time. For example, with respect to the father’s failure to attend [omitted] on 20 April 2013 because he was moving house, whether or not he told his friend Mr K to text the grandmother at 6.00am or 7.00am that day and not later (and the father did not produce an affidavit from Mr K supporting his version) and putting to one-side why, if he asked Mr K to send the message, he would then need to check with him “seven times” to ensure he did send the text, and putting further to one-side why he did not text the mother from the pay phone he used to ring Mr K, it was the responsibility of the father, not Mr K, to ensure that the text message was sent on a timely basis in accordance with the Court Order.
Further, it was the responsibility of the father to do everything he could, including re-organising his arrangements where necessary, to be at [omitted] given the limited time he was spending with the children. The father acknowledged the consequences to the children of not turning up for a scheduled visit. It exemplified a failure on his part to prioritise his arrangements with respect to the children.
I further accept that the father failed to avail himself of regular phone time with the children and that there have been multiple occasions when the children’s calls to the father have gone unanswered.
In the context of this issue, the father’s late arrival on the first day of trial of parenting proceedings initiated by him was concerning. It is difficult to accept his explanation as to why he could not get to Court on time.
There is no persuasive evidence to conclude that either the mother or the grandmother has not evidenced a preparedness to support the children’s relationship with the father notwithstanding what I accept is inconvenience to them, particularly the grandmother. Nor is there persuasive evidence to conclude that there were occasions when the father attended and the grandmother was not present other than when he has been late when on her evidence they would have left. I accept Ms B’s evidence at trial that the grandmother went out of her way to facilitate the contact visits. The grandmother’s evidence with respect to these visits is detailed and persuasive. She annexes as “CAH1” to her affidavit filed 14 June 2013 a diary of the time supervised by her including telephone calls made by the children to the father and text messages exchanged since the making of the orders on 30 January 2013. Her evidence is supported in material respects by the unchallenged evidence of Ms L.
The father’s capacity and level of interest in the children is further evidenced by his failure to learn Makaton the sign language used by [Y] (Exhibit 26). The mother’s sworn evidence outlined [Y]’s needs at [93] of her affidavit filed on 14 June 2013 including her use of Makaton. It is also referred to in Ms B’s report. The father confirmed that he had read this material and yet his evidence at trial was that he did not know what Makaton or Auslan was. Nor had he undertaken any investigation into sign language. Nor did he appear to be aware that [Y] communicates with a number of people by sign. Either the father had not comprehensively read the court material or he failed to evidence a sufficient interest to follow up and inform himself about something of significance to one of his children and her ability to communicate with others. The evidence is that tutorials are available online to learn the language. The father was seemingly content with the fact that he communicated with [Y] verbally even though the mother’s evidence is that [Y] signs if she wants to go to the toilet.
Whilst the father loves the children – he became emotional at one point in giving his evidence - he has not demonstrated an appropriate level of commitment to the children and his relationship with them or insight into the efforts required by him to develop that relationship. Nor does he evidence insight into the impact on the children of his failure to prioritise his relationship with them. He instead blames the mother and/or the grandmother, both of whom have diligently provided a high level of care for the children in his absence.
The father’s evidence that he would forfeit spending time with the children rather than do so at a contact centre pending an appeal (it was the father’s evidence he would appeal the Court’s decision if unfavourable to him) – notwithstanding his acknowledgement that he understood the impact of that on his children and the length of time that may result in them not seeing him – underscored his lack of insight.
There is evidence from the mother and grandmother that the children have experienced disappointment when the father has not shown up for contact visits. I find that the father’s lack of consistency and prioritisation is likely to have a detrimental impact on the children’s emotional and psychological well-being, including causing the children to be anxious about whether or not he will be there with potential negatives implications for them, including for their self-esteem. I accept the evidence of Ms B in this regard.
I place significant weight on my findings with respect to this consideration which support the proposal of the mother and ICL.
s.60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The mother meets the financial needs of the children. I accept her evidence that there have been periods of time when the father has not made any contribution to the financial support of the children.
The evidence suggests that the father has struggled financially. Whilst the father has been assessed to pay a modest $14.98 per fortnight child support for the three children he accepted at trial that his child support was likely to increase as a result of his employment and he evidenced an intention, at least at trial, to assist the mother with the additional costs associated with [Y]’s medical needs.
s.60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The proposal of the father would result in a change to the children’s circumstances which would be contrary to their best interests at this stage in circumstances where:
a)the father has shown himself to be an inconsistent parent who has no history of caring for the children on a day to day basis and has evidenced a failure to prioritise the children’s needs;
b)the father has a poor regard for the children’s mother, their primary attachment figure or for the grandmother with whom the children also enjoy a close attachment;
c)the father has failed to address his alcohol problems and the impacts of that for the children; and
d)the father has a limited understanding of [Y]’s special needs (Exhibits 18, 20, 21 and 22) and a present inability to sign.
Further, it is unclear, on his proposal, how the father would accommodate alternate weekend and school holiday time given his accommodation, transport situation and work commitments. For example:
a)at trial the father was reliant on public transport with the parties living a significant distance apart;
b)the father who does not have a history of stable accommodation was at trial looking to again relocate from his one bedroom unit to a two bedroom unit, however he did not know where that would be;[4]
c)the father’s work commitments involve mainly weekend work and whilst his evidence is that he has some work flexibility, in the week before the trial he had been required to work on a Friday and Saturday finishing both days at 10.00pm.
[4] On his evidence the father moved to Ipswich because it afforded cheap accommodation and it enabled him to put some distance between himself and the mother
The proposal of the ICL continues a familiar arrangement. The evidence of Ms B is that the children are “settled into their established routine; they came across as happy and contented children of being loved and well cared for.”[5] It is her evidence that the children convey a sense of security in their current arrangements.[6] I find that a change from supervised to unsupervised time in the father’s home on the weekends as proposed by him would be detrimental to them.
[5] at [80]
[6] at [64]
A continuation however of supervised time is supported by Ms B who expressed the following opinion at [89] of her report as follows:
“I formed the view that the time Mr Trengove spends with the children should continue to be supervised whether at [omitted] or a conveniently located ‘Contact Centre’.”
The difficulties that present with an ongoing supervision order are well known. I shall discuss this when I consider the s.60CC(2) factors. It would be preferable for the children’s time, if supervised, to continue at [omitted] than at a contact centre. I accept the evidence of Ms B in this regard. To her credit, the grandmother would be prepared to continue the current arrangement in the best interests of the children.
The issue of the guillotine order proposed by the ICL and the impact of that on the children is a significant factor. The effect of that order would be that if the father does not comply with the order and spend time as provided in the order (save as provided) then his time with the children will cease. Whilst Ms B recognised the benefits of affording the children time with their father, she accepted that if he did not avail himself of that time, if he did not comply with the Order and prioritise his time with the children, then the risks of ongoing harm to the children were such that provision should be made for his time to cease. I accept the evidence of Ms B as to the benefits of the guillotine order as opposed to the making of a further interim order. I accept her evidence that it would indicate to the father that there was a limit. It would protect the children from consequential ongoing disappointment and the psychological impacts of inconsistent time. The mother outlined her efforts to encourage the children to spend time with the father, the mental preparation involved for all concerned and that those efforts had become more constant the less the father showed up. I accept her evidence.
I place significant weight on my findings with respect to this consideration which support the proposal of the mother and ICL.
s.60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The mother lives at [omitted] in Brisbane and the father at Ipswich. Currently the father’s time is spent at [omitted]. Notwithstanding the father’s evidence to the contrary, I find that the distance between the parents’ residences present practical difficulties for people of limited financial means.
The mother originally proposed that time between the father and children take place at contact centre at Ipswich. However, her position changed by the end of the trial. Whilst I accept that ongoing supervision by the grandmother at [omitted] poses a significant impost on her, as noted earlier, she is prepared to continue the arrangement. It is an arrangement with which the children are familiar. The mother proposes to provide relief to the grandmother by supervising the time herself once a month.
I place significant weight on my findings with respect to this consideration which support the proposal of the ICL and mother as varied at trial.
s.60CC(3)(f) the capacity of: (i) each of the child's parents and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
This is a significant consideration in this case.
The mother has evidenced capacity to meet the needs of the children including the capacity support [Y]’s special needs.
Whilst the father raises as an issue that the mother did not comply with a Court order to undertake drug and alcohol screening I accept that she had financial constraints which prohibited her from doing so. Further, the issues in this case do not centre on the mother’s capacity to care for the children or welfare concerns centring on her. The father is not seeking that the children reside with him.
The father evidences significant limitations in his parenting capacity at a practical and a psychological level. I accept the mother has legitimate concerns as expressed to Ms B that the father “does not realize what is involved in parenting or how to be a parent”.[7]
[7] at [50]
The father’s evidence that it was his belief the mother was using the children as pawns to keep him out of their lives and causing them psychological and/or emotional harm is not supported on the evidence. Further, if that was his view his proposal that they should continue to live primarily with her because “both of us have a right to the children” evidences insight deficits. It supports the mother’s view that the father “does not realize what is involved in parenting or how to be a parent”. The mother’s questioning of the father and his evidence with respect to his decision to take the children to work on the first day of his employment as a [omitted] highlights a lack of parental judgment.
Ms B was of the view that there were some limitations upon the father’s ability to provide for the needs of the children until he participates in various programs including Triple P, alcohol counselling and anger management.[8] The father’s evidence was that he saw no value in engaging in the recommended interventions. I accept the evidence of Ms B at trial that his lack of willingness to do so is not only disappointing but evidences “very little insight” into his need to make adjustments and take steps to move forward.
[8] See [91] to [93] and [96] of family report
Of particular concern is the father’s lack of insight into and lack of preparedness to address his alcohol issues and the likely negative impacts of that for the children and his relationship with them. The mother’s evidence is that during the entirety of their relationship the father would misuse alcohol, that he would drink alcohol to excess and do so on multiple occasions during the week, that he would frequently arrive home drunk, sometimes in the company of other men and that he would become violent when drunk. She details her concerns in this regard at [43], [55], [58] – [59], [63] – [67], [71] – [84], [86] – [88] of her affidavit filed 14 June 2013.
Although denied by the father, there is evidence independent of the mother’s testimony to support a finding that the father has a problem with alcohol, anger and violence as follows:
a)There is the evidence of the grandmother. The grandmother, a retired [omitted], gave evidence that from her knowledge of the father over a number of years he drank to excess and becoming violent when he drank. (See [10] & [11] and [16] – [25] of the Affidavit of the grandmother filed 14 June 2013).
b)There is the evidence in the form of the Queensland Police subpoenaed documents. There is no persuasive evidence to enable the Court to conclude, as asserted by the father at [12] of his affidavit filed 20 September 2013, that the police made up the allegations against him and/or engaged in racism or police corruption.
Nor is there evidence to suggest that the father had “won most of the accusations” against him. Whilst the father’s evidence is that he was found guilty of three charges, I accept the submission of Counsel for the ICL, Mr Andrew, that there are numerous entries where the father is reported as being drunk, where he was arrested and taken to the watch-house which do not involve a Court hearing, but where a person forfeits bail and there was a drink driving matter which did not appear on the father’s criminal history.
I accept the submission that whether the father was convicted or not in a Court of law and whether a Court was satisfied to the requisite criminal standard is ultimately immaterial in the circumstances of these proceedings. The relevance of the evidence is that the father has a lengthy history involving the police where he was engaging in drinking alcohol to excess and anti-social and/or aggressive and/or violent behaviour.
In this regard the father’s credit was significantly impugned under cross-examination. The father was taken through each of the entries in the police records. Collectively, his evidence cannot be accepted and in the end was wholly unbelievable. Given the number of incidents and nature of complaints involving disorderly conduct, creating a nuisance and/or being intoxicated, I am unable to conclude that the father was, as his evidence would suggest, an innocent party who on multiple occasions came to the adverse attention of the authorities, repeatedly in the wrong place at the wrong time at hours of the night or early hours of the morning when sober members of the community are not usually out and about, a victim of multiple false accusations by police and third party witnesses and various complainants, the subject of repeated inaccurate police record-keeping, a victim of identity theft with persons unknown using his name, and a victim of an incompetent and/or unethical lawyer and an interpreter who exceeded his or her brief to simply interpret.
I find according to the requisite standard that the father is the person referred to in the police documents and that he was the person who had a litany of encounters with the police over an extended period of time, those encounters frequently involving alcohol use, abuse and aggression.
The relevance of the father’s evidence on this significant matter is that it evidences not only a lack of insight into his problem with alcohol and anger, which he is not prepared to acknowledge let alone address, but a lack of insight into the impact of his conduct on his capacity to care for the children.
The father failed to comply with requests for CDT testing made on 19 August and 28 November 2013 (Exhibit 17). Whilst I accept that he does not present as a man of financial means, he was at trial in employment and the testing responded to a significant issue in the proceedings.
I find that until the father recognises he drinks to excess and when he does, can become intoxicated and can then become aggressive and/or anti-social and/or violent and that his violence is not only directed to members of the public, but also the mother and until he is otherwise prepared to address those matters, his lack of capacity and insight pose significant risks to the children’s physical and/or psychological well-being.
I place significant weight on my findings with respect to this consideration which support the proposal of the ICL and mother.
s.60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
The father is [nationality omitted]. He is involved in the local [omitted] community. The culture and traditions of the father’s heritage would be important to the children as identified by Ms B.
I find that the mother has an appreciation of and is likely to encourage and support the children’s need to understand their heritage.
I repeat and rely upon my earlier discussion relevant to this consideration.
s.60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration in this case.
s.60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The mother has evidenced an appropriate attitude to her parental responsibilities. Ms B’s evaluation was that the children were happy children and had had a commendable upbringing.
Whilst the father evidenced some understanding of the responsibilities of parenthood, albeit modest, - for example, he informed Ms B that the reason that he was “fighting for my children” was that he wanted to educate them and “I will be able to help and teach them” - his evidence in relation to a possible future intention to run for public office in [country omitted] and what his response would be to an unsuccessful outcome in these proceedings (“find another kid”) raises concerns about the father’s commitment and attitude. I repeat and rely upon earlier findings relevant to this consideration.
I place significant weight on my findings with respect to this consideration which support the proposal of the ICL and mother.
s.60CC(3)(j) any family violence involving the child or a member of the child's family;
s.60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter
These are significant considerations.
The evidence of the mother is that the father was abusive towards her during the relationship, including whilst pregnant and following separation.[9] She gave evidence of weekly arguments. The father denies any violence towards the mother. [10] It is his evidence that the parties only ever had one argument in the entirety of the relationship, the relationship was almost perfect and they never fought at all.
[9] See [42] – [43], [55], [58] - [84] of mother’s affidavit filed 14 June 2013
[10] See [14] affidavit of father filed 20 September 2013
The father’s account does not accord however with the evidence including, for example, his evidence that when the mother was pregnant with his child and accused his housemate [Mr D] of sexually touching her he preferred to believe [Mr D]’s version that the mother had tried to seduce him - as opposed to the version of his partner and mother of his children.
The father’s case is that the mother has made up the allegations of abuse against him, however I accept the mother’s evidence. I find that there are reasonable grounds to believe the father has engaged in family violence which meets the definition of s.4AB of the Act causing the mother to be fearful including engaging in assaults of her.
I further find that that there is an increased probability of the children’s exposure to family violence and the potential for harm to them as a consequence if the father fails to address his alcohol problem.
I further find that is open for the Court to conclude that the violence against the mother occurred on many occasions over a protracted period of time.
On 10 October 2011 a Protection Order was made in favour on the mother on police application (Exhibits 10 & 23). This arose from an incident at the mother’s home on 8 October 2010 when the father attended at the home of the mother in an intoxicated state, refused to allow her out of her car and the police were then called by the grandmother who rang the triple 0 number. The police application noted that the mother felt harassed and fearful for her safety; that the mother had secured an earlier Temporary Protection Order in her favour in 2007;[11] that the father had been “violent to her in the past, mainly when he is intoxicated and that he has also behaved in a controlling manner. These incidents include [the father] pushing and shoving [the mother] whilst she was pregnant”.
[11] Exhibit 23
In making the Protection Order the Court was satisfied inter alia, that the father had committed an act of domestic violence against the mother and that he was likely to commit an act of domestic violence again (Exhibit 23). The evidence is that the father breached that order on at least three (3) occasions.
The father applied to have the order revoked on 14 June 2012. The application was dismissed on 26 September 2012 inter alia on the following bases:
a)The Court was not satisfied that the existence of the order affected his ability to work as a translator particularly where it was noted that he had a criminal history including sexual assaults;
b)He was unable to produce evidence that he had not been accepted as a translator because of the existence of the Protection Order and the application he did produce did not require him to disclose any current Domestic Violence orders; and
c)While the father denied contacting the mother, it was found that he had rung the mother on three (3) occasions while intoxicated.
Whilst the Protection Order expired on 11 November 2013, on the proposal of the mother any supervision of the children’s time with the father by her would occur in a public place thus responding to an identified risk factor.
I place significant weight on my findings with respect to this consideration which support the proposal of the ICL and mother.
s.60CC(3)(l) whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child
It is preferable to make orders on a final basis. The proposals of the ICL and mother are likely to meet that end. Their proposal provides an opportunity for the father to spend regular time with the children should he choose to do so, however in a manner which also provides protection to the children from the any risk of harm in his care.
The proposal enables decisions to be made with respect to the children in circumstances where the parents have a dysfunctional co-parenting relationship evidenced by poor communication. For example, the father who was aware that [Y] had developmental delay was unaware that she was seeing a paediatrician. The father was not prepared to accept any responsibility for the communication difficulties choosing to blame the mother and the existence of the Protection Order.
I am not persuaded by the father’s belief that there is likely to be improvements in this regard in the future.
Conversely, the proposal of the father is likely to lead to further dispute in circumstances where the parents have evidenced no capacity to collectively make decisions for the children. The father’s proposal would disrupt a care arrangement which is tried and working in the children’s best interests in terms of stability, routine and security.
I place significant weight on my findings with respect to this consideration which support the proposal of the ICL and mother.
s.60CC(3)(m) any other fact or circumstance that the court thinks is relevant
There are no other relevant facts or circumstances.
Primary considerations
s.60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
This is a significant consideration.
There can be no argument that there are benefits to the children in having a meaningful relationship with both parents.
In the case of their mother, their relationship with her is strong and of meaning to them and they will continue to benefit from the relationship. It is a relationship that needs to be preserved in the circumstances where the mother has done an excellent job in raising the children and where by his own choice and conduct the father has not been a consistent figure in the lives of the children and where it cannot be said that the children currently have a significant relationship with him.
Whilst the children would benefit from a relationship with the father, it is unlikely to happen unless he prioritises that relationship in his life. Further, the children’s relationship with the father is unlikely to develop unless the children feel safe. The evidence is that they feel safe and supported in the care of their grandmother during their time with their father.
Whilst it may be that the quality of the children’s relationship with the father will be affected by the constraints of ongoing supervision, the orders proposed by the mother and the ICL afford the father an opportunity to develop a relationship of meaning to the children should the father choose to so do, given that a meaningful relationship does not mean that it must be an “optimal” relationship or necessarily the same quality of relationship the children may have with their mother (Godfrey & Sanders [2007] FamCA 102 at [36] per Kay J; see also the definition of “meaningful” in Mazorski & Allbright (2007) 37 Fam LR 518 at [24] per Brown J, cited with approval by the Full Court in Moose & Moose (supra) at [69] per May J).
I have concluded that the orders proposed by the ICL and mother afford the children an opportunity to develop a relationship of “value” to them whilst addressing the risk factors that present on the evidence. There is evidence that the eldest child views the relationship as having some value to him because he did not inform Ms B that he wanted less time, but rather he wanted the present arrangements to remain as is. There is also evidence, as earlier noted, that the youngest child enjoys her time at [omitted] with her father. There is no persuasive evidence to suggest that supported by the presence of her grandmother [Y]’s time with her father, along with her siblings, would not be of value to her.
s.60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This is also a significant consideration.
There is no persuasive evidence to enable the Court to find that the children are put at an unacceptable risk of harm by reason of:
a)the mother not taking care of the children properly or being neglectful of their needs (see [13] of father’s affidavit filed 9 November 2012). I accept the grandmother’s evidence at [15] of her affidavit filed 14 June 2013 that the mother is a very capable and caring mother, evidence which is supported by Ms B’s evidence;
b)the mother’s use of illicit drugs and any negative impacts of that on her care of the children (see [16] of father’s affidavit filed 9 November 2012). I accept the evidence of the mother in relation to the extent of her past drug use. It does not present as a risk factor for the children.
The father’s application which is predicated on the children remaining in the primary care of the mother is inconsistent with his stated welfare concerns.
There is however a need to protect the children from exposure to conflict and family violence from the father. I find that the evidence objectively viewed reveals the potential for an unacceptable risk unless the father’s time with the children is supervised. [Y] in particular is a vulnerable child who requires the additional security of a familiar and trusted carer.
Having found that there is support for the mother’s evidence that the father can become violent when drinking alcohol, I find that this poses a significant and unacceptable risk to the children. There is no evidence that the father has any insight into the need for him to address his alcohol use. Without the comfort of the outcomes afforded by consistent objective CDT testing to evidence that the father has not been over-using alcohol over a lengthy period, a cautious approach must be adopted. The evidence in the form of the material subpoenaed from the police support such an approach.
Further, the father’s antisocial behaviours, which have attracted the attention of the police and Courts, suggest that he poses an unacceptable risk to the children unless his time with them is supervised.
Supervised time is an outcome supported by the Court expert, Ms B who maintained that view at trial. It is also supported by the ICL, seized with the responsibility of separately representing the children’s interests.
Ms B was questioned at trial with regard to the balancing factors when considering an indefinite or long-term supervision order in considering the best interests of children.
In Moose & Moose (supra) at [119] the Full Court discussed this issue and said:
“The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).”
The evidence does not enable me to conclude that the impacts on the emotional well-being of the children of a long-term supervision order as proposed in this case pose a greater risk to the children than the risks I have identified. Whilst I accept that the father’s ongoing supervision of the children may have some practical impacts for the children developing their relationship with him and pose constraints that are not optimal, those difficulties do not outweigh the need for a cautious approach being adopted to respond to the risk factors that present for the children in the unsupervised care of their father. I am unable to conclude that the potential practical long-term effects of such an order suggest that it should not be made.
Parenting orders are in a sense never final even if termed such. If the father is able to meaningfully address the issues identified, it is open to him to seek a lifting of supervision. The notation to the orders proposed by the ICL says as much. If the father responds consistently to the opportunity to spend time with the children it is probable their relationship with him will develop. If he undergoes random CDT tests and counselling, that will be objective evidence that he is responding positively to his alcohol use and similarly with respect to the issue of anger management.
The mother did not present as a parent who is obstructive and not open to change. Her welfare concerns are supported on the whole of the evidence. The orders proposed by the ICL appropriately balance the risks whilst affording the children an opportunity to spend time with the father whilst leaving the door open for him in the future to advance to unsupervised time.
The order also responds to the need to ensure consistency of response by the father in the best interests of the children. Whilst on the assessment of Ms B the children present as well-brought up, happy children who would have built up some resilience, it would be contrary to their emotional and psychological wellbeing if the father failed to consistently spend regular time with them. I accept the evidence of
Ms B at trial that notwithstanding their demeanour and resilience “that doesn’t mean to say that they can be stretched and stretched and that this should go on indefinitely, of course not.” The proposal of the ICL responds to that concern without the need for the mother to come back to Court.
As Brown J observed in Mazorski & Allbright (supra) at [3] the provisions of s.60CC rest on “twin pillars”, the first being the importance of a child having a meaningful relationship with both parents and the second pillar, being the need to protect children from physical and emotional harm. The amendments to the Act operative from 7 June 2012 which apply to these proceedings require the Court in applying the considerations set out in s.60CC(2), to give greater weight to the consideration set out in sub-paragraph (2)(b) (s.60CC(2A)).
Whilst I place significant weight on my findings with respect to both primary considerations, I place added weight on my findings with respect to the second primary consideration.
My findings with respect to both primary considerations support the proposal of the ICL and mother.
Conclusion on s.60CC considerations
I have identified the considerations to which I attach significant weight. I have considered and balanced the impacts for the children of an ongoing supervision order. My findings support the proposal of the ICL and mother.
Parental responsibility
Having regard to my findings under s.60CC I am satisfied that the presumption in favour of equal shared parental responsibility does not apply in these circumstances or is to be taken as having been rebutted by reason of the best interests of these children in the circumstances.
Having not then made an order for the parents to have equal shared parental responsibility, the Court may make parenting orders, consistent with the s 60CC findings.
I find that the children’s best interests would be served by an order for the mother to have sole parental responsibility for decisions to do with them. Whilst a serious order to make, it reflects the reality of decision-making to do with the children’s parenting to-date. It also reflects the reality of the parent’s communication and inability to make joint decisions. The father’s evidence was that he and the mother had not communicated for two years. He further accepted that he and the mother had no ability to communicate and work together to collectively make decisions in the best interests of the children. The mother’s evidence is that it would be very difficult for her to work with the father and make meaningful decisions together. Sadly, I accept that to be the case.
Ms B had no confidence that the mother and father could make important decisions for the children and that the mother should be the one to make those decisions. I accept her further evidence that the father does not have real insight into [Y]’s complex disability.
In short, I find that there are exceptional circumstances and there is cogent evidence that warrant the making of such an order in favour of the mother. The order proposed by the mother and ICL will however allow the father to participate in and have his views considered before the mother makes any important decisions.
Conclusion
For these reasons I make orders as proposed by the ICL and mother which I find meet the best interests of these children.
Whilst I acknowledge the father’s affection for the children, his stated desire to be a part of their lives and his strong view that it is his right to have unsupervised time with them, I am unable to conclude that he has demonstrated the requisite parental capacity, skill-set and insight to care for them without supervision or evidenced a present level of insight into the need to address significant issues that impact on their welfare. The orders provide an opportunity for him to do so and if done so successfully to seek to move to unsupervised time.
I accordingly make orders in line with the ICL’s Minute of Order which orders appear at the commencement of these reasons.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully
Associate:
Date: 23 April 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Remedies
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