Umarov & Faerber
[2024] FedCFamC1F 898
•23 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Umarov & Faerber [2024] FedCFamC1F 898
File number: BRC 14597 of 2021 Judgment of: CAREW J Date of judgment: 23 December 2024 Catchwords: FAMILY LAW – CHILDREN – Whether the father poses an unacceptable risk to the children –Where there is a history of the father perpetrating family violence against the mother, including coercive and controlling behaviour and a conviction for breaching a protection order – Where the father has a criminal history, including child sex offences and breaches of his consequent reporting obligations –Where the task of assessing the risk posed by the father is complicated by the father’s Autism Spectrum Disorder and personality vulnerabilities – Where the father disregards court orders and externalises responsibility for his actions –– Where the father is to spend no time nor communicate with the children save for sending a card and a gift on special occasions. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 64B, 102NA
United Nations Convention on the Rights of the Child
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Eastley & Eastley (2022) FLC 94-094
Isles and Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Number of paragraphs: 149 Date of hearing: 12 – 13 December 2024 Place: Brisbane The Applicant: Litigant in person Counsel for the Respondent: Mr Duplock Solicitor for the Respondent: Aegis Law Group Counsel for the Independent Children's Lawyer: Mr George Solicitor for the Independent Children's Lawyer: Ms Jennifer Boulton ORDER
BRC 14597 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR UMAROV
Applicant
AND: MS FAERBER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility and decision making authority for the major long-term decisions in relation to the children, X born 2016 and Y born 2018.
2.The children live with the mother.
3.Subject to the provisions of paragraph 4 of this Order, the father spend no time nor communicate with the children.
4.The father be at liberty to send a card and gift to the children on special occasions, being the children’s respective birthdays, Easter, and Christmas, to an address or post office box nominated by the mother.
5.The mother keep the father informed of any changes to the postal address to enable the father to send cards and gifts in accordance with paragraph 4 of this Order.
6.The mother forthwith engage a psychologist for the children to explain the Order to the children and to address any issues arising out of their lack of a relationship with their father.
7.Leave be granted to the mother to provide a copy of the Family Report dated 18 November 2024 and the Reasons for Judgment dated 23 December 2024 to the children’s psychologist.
8.The father be restrained and an injunction hereby issues restraining him from:
(a)Attending within 100 metres of the children’s schools;
(b)Attending within 100 metres of the mother and children;
(c)Attending within 100 metres of the mother’s workplace or residence; and
(d)Contacting the mother and children through any means other than in accordance with a court order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Umarov & Faerber has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
X is eight years of age and her little sister, Y, is six years of age. The children live with Ms Faerber (“the mother”) and have not spent any time with Mr Umarov (“the father”) since September 2021 apart from one visit at a contact centre on 4 October 2023. The children last spoke to the father via a video call sometime in 2023.
Notwithstanding what appeared to be a common understanding between the parties about the father’s last contact with the children, during the trial the father contended that he had spoken to the children and photographed them at a local park and spoken to them at their home on an occasion or occasions in 2024. The father is prohibited by the current protection order from going to the mother’s home. If he did so, he may well have been in breach of the protection order. The father has already been convicted of breaching a previous protection order.
The mother contends that the father poses an unacceptable risk of harm to the children by reason of his history of convictions for child sex offences, his alleged history of family violence, his personality vulnerabilities, and his unwillingness or inability to comply with court orders. The father has been diagnosed with Autism Spectrum Disorder (“ASD”), although on the milder end of the spectrum. The father represented himself at the trial.
For the reasons which follow, the children will continue to live with the mother, and the father will have no contact with them other than by sending a card and gift on special occasions.
ISSUES
On 25 July 2024, when all parties were legally represented, the following issues (1 – 4) were identified by the parties as the significant issues requiring determination:
(1)Whether the father poses an unacceptable risk of harm to the children arising from:
(a)His historical convictions for offences in relation to a minor;
(b)His personality vulnerabilities as identified by mental health professionals with whom he has engaged; and
(c)Allegations he perpetrated family violence against the mother including in the presence of the children;
(2)If the father does not pose an unacceptable risk, whether the mother has the capacity to facilitate a relationship between the father and the children;
(3)Whether the father has the capacity to parent the children safely;
(4)Whether the parents have any capacity to co-parent the children; and
(5)The utility in making any order for the children to spend supervised time with father when he is allegedly unwilling to comply with contact centre service agreements.
The fifth issue was added at the trial and the parties confirmed that these five issues accurately and adequately identify the significant issues for my determination.
Notwithstanding the agreed issues, the father’s trial affidavit is replete with criticisms of the mother’s care of the children, alleging variously that the mother:
(a)neglects the children;
(b)is not concerned with the children’s education and advancement in life;
(c)leaves the children while she works at night, to be cared for by the mother’s aunt, Ms B, who has health issues;
(d)fails to ensure the children have appropriate social interaction and engagement in extracurricular activities;
(e)fails to discipline the children;
(f)fails to provide a routine for the children;
(g)does not properly feed the children;
(h)forces the children to eat her cooking by locking them in a room with her while they cry and scream until they have finished eating;
(i)fails to attend to their medical needs; and
(j)is a risk of absconding to Country C with the children.
Given the matters raised in the father’s trial affidavit, I will consider any independent evidence relating to the mother’s care of the children having regard to the fact that the father has not had contact (or at least very limited contact) since September 2021.
On 25 July 2024, this matter was set down for trial and directions made for each party to file material. Neither parent complied with the trial directions by filing an affidavit of evidence in chief or a case outline although the mother filed a case outline the day before the trial was due to start in which she relied on an affidavit filed in 2022. The Independent Children’s Lawyer (“ICL”) filed a case outline indicating her intention to rely upon a family report by Mr E and a bundle of documents produced pursuant to subpoena which were ultimately tendered by consent (exhibit 7).
On the morning of the first day of trial, the father said that he did not think the trial would be proceeding because his lawyers had withdrawn, and he thought there would be an adjournment to enable him to “get organised”. Notwithstanding the father’s pronouncement, he did not make an application to adjourn the proceedings.
Applications by the mother and the ICL to have the matter proceed on an undefended basis were not pressed.
The father relied on one affidavit filed 12 December 2024 and a report by Dr D annexed to an affidavit filed 21 April 2023. The mother relied on one affidavit filed 22 March 2022. The father was also granted leave to adduce further evidence in chief orally. The mother did not seek leave to adduce further evidence in chief.
As the mandatory provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) applied, the father was not permitted to cross-examine the mother. He was invited to provide a list of questions to counsel for the ICL who indicated his preparedness to ask some but not all the questions in the list.
PROPOSALS OF EACH PARTY
The father’s proposals changed on numerous occasions throughout the trial but ultimately, he was granted leave to rely upon a Further Amended Initiating Application filed on the second day of the trial. The father seeks an order for equal parental decision making, for the children to live with him and spend time with the mother. The father’s alternative orders were that he spend week about with the children and his further alternative order was to spend alternate weekends with the children, after spending time with the children under the supervision of Ms B. Ms B has been referred to in various documents in the proceedings as the mother’s foster mother, but she is in fact the mother’s aunt. The precise terms of the order sought by the father, in the various alternatives, are set out in his Further Amended Initiating Application filed on 13 December 2024. There was no objection to the father relying upon the Further Amended Initiating Application.
The mother’s proposals also changed from her Amended Response filed 22 March 2022 in which she had sought sole parental decision making and for the father to spend limited time with the children supervised professionally. The mother adopted the ICL’s recommended minute of order. There was no objection to the mother formally amending the order she sought to align with that recommended by the ICL.
The ICL recommended that the mother have sole parental decision making responsibility for major long-term issues and that the father spend no time nor communicate with the children other than providing a card and gift on special occasions. The precise terms of the order recommended by the ICL are set out in exhibit 4. It was apparent from the ICL’s case outline filed 9 December 2024 that the ICL would recommend that the father’s contact with the children be limited to providing a card and gift to the children on special occasions.
BACKGROUND
The father was born in Country F and relocated with his family to New Zealand in his mid‑teens. The father relocated to Australia in his early twenties. The father is 44 years of age and self-employed as an allied health professional working between 15 to 20 hours per week. The father lives close to the mother’s residence although he declined to provide his address in open Court. The father’s address is held in a sealed envelope not to be opened without an order of the Court. The father's residential address is not as stated in his solicitor’s Notice of Ceasing to Act filed on 24 November 2024. The mother did not press for the disclosure of the father’s address.
The mother was born in Country C and relocated to Australia to marry the father. The mother is 33 years of age and variously employed in hospitality, service and in an unknown capacity in allied health. The father does not pay child support. The mother lives in a five bedroom rented house with Ms B. Ms B raised the mother in Country C as the mother’s mother had a child with special needs and required assistance. However, the mother remains very close to her parents and siblings in Country C with whom she communicates regularly. Ms B is widowed and a retired educator in Country C. She is 69 years of age.
The mother and the two children share a large bedroom and Ms B has a separate bedroom. The remaining three bedrooms are rented out by the mother to three female students. This is the house in which the mother and father and children previously lived in together. Ms B also lived in this house for part of the parents’ marriage. Sadly, Ms B’s husband died in 2020.
The status of the mother’s entitlement to remain in Australia permanently is not entirely clear. The mother’s current visa apparently entitles her to stay until 2028.
The parents initially met online in 2015 through some of the mother’s extended family who knew the father in Australia. The father and mother met several months later when the father travelled to Country C. They quickly became engaged to be married and travelled to New Zealand to meet the father’s family. The mother became pregnant in New Zealand. The parents commenced cohabitation in 2016 and married in Australia in 2017. The mother had to return to Country C as she was at that time only on a tourist visa. After obtaining a New Zealand citizen partner visa, the mother returned to Australia.
The parents have two children, being X born 2016 and Y born 2018.
The parents separated in late 2018 after an argument (“the 2018 incident”) about the father allegedly not helping the mother in the household tasks and caring for X. The father told the mother to pack her bags and leave. The father then pushed the mother and she fell to the ground. The father then kicked her. The mother was heavily pregnant at the time, and police obtained a protection order for the protection of the mother and referred the matter to the Department of Families, Seniors, Disability Services, and Child Safety (as it is now known) (“Child Safety”).
At some point, it seems the parents moved into the five bedroom share house in which the mother and children and Ms B currently live. The parents were in separate bedrooms. Ms B and her husband lived downstairs. The mother worked full time. Ms B’s husband was dying and being cared for by Ms B. The father did not provide financial support for the mother or children. I reject the father’s evidence to the contrary. Ms B supported the mother’s version.
In late 2019, there was another family violence incident involving the father pushing the mother. The father was arrested and charged with breaching the protection order.
In early 2020, a further final protection order was made by consent without admissions for the protection of the mother.
In early 2020, the father was convicted and fined for breaching the protection order in late 2019.
At some point, the mother agreed to the father spending weekends with the children at his home. She was working full time and Ms B was caring for her dying husband. The mother stopped that arrangement in or about January 2021 when she became aware that the father was leaving the children with his flat mates while he worked or leaving the children with strangers when he went out.
The parents attended family dispute resolution on 15 June 2021 and agreed that the children would spend each Saturday with the father from 10.00 am to 8.00 pm. The mother stopped the arrangement in September 2021 when the father failed to return the children one night.
The father commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2) on 3 November 2021. On 16 November 2021, a chambers order was made by a registrar, in the absence of the parties, which, among other things, appointed an ICL and allocated priority to the matter by placing it in the ‘Evatt List’ for hearing. Several further orders were made by various registrars in chambers, in the absence of the parties
The first interim hearing occurred on 31 March 2022 when, among other things, an order was made for the father to spend two hours per fortnight with the children, supervised at a contact centre and for telephone contact with the children.
On 27 April 2022, the matter was transferred to this Court.
On 4 May 2022, the matter was not ready for trial as the parents were to be psychiatrically assessed and it was adjourned to be managed by a registrar. It was noted on 4 May 2022 that the mandatory provisions of s 102NA of the Act applied which prevented the parents personally cross-examining each other. At that stage, both parties were legally represented.
By October 2022, the matter was still not ready to proceed as the father was undergoing assessment for ASD. The contact centre originally engaged by the parents had withdrawn their services to the family and the father had not spent any time with the children.
At further directions hearings before the docket registrar throughout 2023, the matter remained in a state of unreadiness for trial as the father had still not spent time with the children and the parents contended that the Court would find it difficult to make an order if the father had not resumed contact with the children. A second contact centre ceased to be able to offer their services to the family.
On 4 October 2023, the father spent time with the children at G Contact Centre, but this centre also withdrew their services.
In early February 2024, an updated family report was ordered. The father failed to attend for the scheduled interview on 6 November 2024, or for the rescheduled interview on 8 November 2024, but agreed to be interviewed by telephone.
On 25 July 2024, trial directions were made for the trial to commence on 12 December 2024.
The father has retained three different firms of solicitors all of whom ceased to act. The father’s most recent solicitor withdrew on 24 November 2024. The father had not filed his trial material which was due to be filed by 14 November 2024. The father volunteered that his solicitor withdrew because the father would not sign his affidavit.
There is no evidence that any person or contact centre is willing to supervise the father’s time with the children.
APPLICABLE LEGAL PRINCIPLES
Parenting proceedings are regulated by the Act, and s 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects of Part VII of the Act are set out in s 60B and are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to the matters set out in s 60CC and generally include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child’s needs; the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc.
Abuse in relation to a child is defined in s 4 of the Act and means, among other things, involving a child in a sexual activity or as a sexual object, or causing the child to suffer serious psychological harm including by being exposed to family violence.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 (“M v M”).
[4] Ibid.
[5] Ibid; N and S and the Separate Representative (1996) FLC 92-655.
When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities in relation to all relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley (2022) FLC 94-094 at [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93-344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen (2022) FLC 94-092 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles (fn 7) at [7].
[9] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e., all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).
Section 61D provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[12]
WHETHER THE FATHER POSES AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN ARISING FROM:
(a) His historical conviction for offences in relation to a minor;
(b) His personality vulnerabilities as identified by mental health professionals with whom he has engaged; and
(c) Allegations he perpetrated family violence against the mother including in the presence of the children.
[12] Banks & Banks (2015) FLC 93-637.
Father’s criminal history – child sex offences
In 2006, the father was convicted of two child sex offences.
In relation to count one, the father was sentenced to a term of imprisonment to be served by way of an intensive correction order. In relation to count two, the father was sentenced to a term of imprisonment wholly suspended. There were special conditions that the father undertake “such medical, psychiatric and/or psychological counselling and treatment as deemed appropriate.”
Details of the offences include the following:
… [the father] has engaged in an online internet chat with agirl [sic] he believed to be [underaged]. During this online chat, suspect has satin [sic] front of his computer naked and masturbated. Offender has had a web cameraon [sic] himself, and has transmitted himself masturbating to the alleged [underaged] girl [sic]. Offender has also given instructions on how the girl could masturbate and has also attempted to make arrangements to meet for the purposes of engaging in sex.
…
[In] 2005 detectives located the [father] at [a shopping centre] during which time he approached a police officer purporting to be the child in this instance. At that time the suspect was arrested, and subsequently charged in relation to these matters for [multiple offences].
The father was found in possession of a backpack with alcohol, condoms, massage wax and mints.
The father pleaded guilty to the offences.
The father was 25 years of age at the time he committed the offences for which he was convicted. The father was on the sex offenders’ register for several years after his conviction which required him to regularly report to authorities.
The father was convicted of multiple breaches of his reporting obligations over the period 2007 to 2012. The reporting requirements which the father failed without reasonable excuse to comply with included: failing to complete his annual report, failing to notify of change of address, failing to report a change in his vehicle details, failing to report travel out of Australia, and failing to report his return to Queensland after a period of absence.
The father states in his trial affidavit at [12] that he was “ordered to undertake counselling”. There is no evidence the father undertook any counselling.
In or about 2016, the mother found out about the father’s conviction via a family member who had ‘googled’ the father’s name. When the mother’s family member broached the topic with the father’s mother, she allegedly said the father was framed by police. It seems that the mother accepted this story as she proceeded to marry the father. She was of course already pregnant in 2016.
History of violence involving others
Police records forming part of exhibit 7 reveal that the father was the perpetrator of domestic violence on a woman in 2009. A statement was taken from the woman by police in 2009 where she was a patient at the Mental Health Unit at H Hospital. The woman alleged that the father attended her home at her invitation where they ate a pizza and drank alcohol. The father disappeared into the woman’s bedroom and when she went looking for him, he asked her to perform oral sex and when she declined, the father grabbed her by the back of the head and attempted to force her head towards his groin area. The woman punched the father several times to get him to stop. The father responded by punching her in the left eye causing her to lose consciousness. When she regained consciousness, she realised that the father had ejaculated over her face. The woman did not want to make a complaint against the father. She said she was afraid of the father because he had assaulted her numerous times in the past, but she had been afraid to contact police. In late 2009, the police obtained a protection order against the father for the protection of the woman. The order remained in force until late 2011.
When asked about this incident during cross-examination, the father admitted he knew the woman but denied the allegations contending that the woman was mentally ill and had in fact been assaulted by her ex-boyfriend.
The police records reveal that in late 2021 the police received multiple calls regarding property breaking and a female screaming. When police attended, they observed the father and a woman who stated they were not in a relationship but had been engaging in sexual intercourse. Police observed the father’s shirt was ripped and the female had a small bruise on her arm. There was a smashed plate and wine bottle on the floor. The father left the address, and the police advised the woman to attend a police station to make a complaint of assault if she wished but only when she was sober.
History of violence involving the mother
Police records forming part of exhibit 7, reveal that a member of the public called police in late 2017 after witnessing an argument between the parents in a car park. The member of the public spoke to the mother after the incident who was reportedly upset. When the parents were approached by police, they downplayed the incident saying they had just had a small argument in the car which ended when the father took X into the public pool.
While the father concedes he pushed the mother during the 2018 incident, he contends that she fell because she tripped over a laundry basket. The records produced by police provide the father’s quite detailed version of the incident, including that the mother had thrown his keyboard and computer mouse out the front of the house. The police noted the keyboard and mouse were connected and undamaged. There is no mention in the father’s version of the mother falling over a laundry basket. The father contends in these proceedings that he did give that information to police. The father told police he had pushed the mother after she grabbed a cooking pan from him and that in the process she had fallen to the ground. The father initially said to police that the mother could not get up straight away but later said she was trying to make a scene and it was at this point that he kicked her in the buttocks to try and get her up. The father said the kick was more of a tap with his foot. I do not accept the father’s evidence that the mother fell over a laundry basket.
Police records indicate the mother was upset and shaken after the incident and was complaining of pain. The ambulance attended and due to the mother’s advanced pregnancy she was taken to hospital.
Additional information was provided by the mother to the police at the time, namely, that the father had hit her in the head on a previous occasion, but she had not reported it, and that the father puts her down daily by calling her lazy and hopeless.
A protection order was made in late 2018 with the following conditions:
(1)The father must be of good behaviour towards the mother and not commit domestic violence against the mother;
(2)The father is prohibited:
(a)From remaining at;
(b)Entering or attempting to enter;
(c)Approaching to within 100 metres of
the mother’s place of residence.
The protection order was to remain in force until late 2023 unless otherwise ordered.
Later in 2018, on the father’s application, the protection order made in late 2018 was suspended but the above conditions remained, and an additional condition was added in the following terms:
(3)The father may, without contravening this Order, return to the premises:
(a)In the company of a police officer;
(b)With prior notice to the mother;
(c)Within 14 days;
to recover work tools and personal property.
The temporary protection order made in late 2018 included a notation that the father was present in court when this order was made.
While Child Safety recorded “serious worries” that the mother had been assaulted when she was heavily pregnant and in the presence of X, it was noted that the mother had left the home and was residing in a safe place with extended family. The mother was assessed to be a parent both willing and able to ensure the care and protection of the children at that time and no further actions was taken.
In early 2019, the police attended the father’s home in response to reports of a disturbance. Both parents told the police that the mother had moved into the father’s home so that both parents could care for the two children. The police separated the parents. No charges were brought.
Child Safety undertook a further assessment upon being informed that the parents were again living together. A home visit occurred in early 2019 when the mother, father, and baby Y were observed. A home visit at Ms B’s home (the five bedroom home) was also undertaken where X was present. The parents were referred to J Family Services for family assistance. This service reported that over a 10 week involvement they experienced difficulties in contacting the parents. The service had attempted to work with the family in addressing the father’s violence towards the mother, managing X’s behaviour and assisting the father to access mental health services as “encouraged by the court”. The service tried to support the mother to leave the relationship on numerous occasions but had been unsuccessful due to complicating factors such as the mother not being an Australian resident and therefore not being eligible for government support, the mother struggling to manage the children on her own, and the father’s “coercive behaviours”. Concerns were raised about the parents’ minimisation of the family violence and the impact on the children. The parents were referred for an “Intensive Family Support Service” to work with the family.
In early 2019, the temporary protection order made in late 2018 was varied to incorporate the three conditions set out above at [73] and [75]. The protection order included a notation that the father was present in court when the order was made. The protection order was to continue in force until further order.
In late 2019, the mother sought assistance from the father in caring for the children. Both children were crying. It was about 8.00 pm or 9.00 pm. The mother knocked on the father’s door several times. The father told her to go away. After the mother knocked again, the father responded by opening the door and grabbing Y from the mother’s arms. X ran out of the room. The father and mother argued. The father told her to pack her bags and leave. The father then slapped the mother in the face and pushed her in the chest causing her to fall backwards onto the floor. As the mother attempted to get up, the father pushed her face into the couch. The mother contends she was fearful, and I accept that she was. The mother also contends that she experienced pain behind her left ear where the father scratched her. Ms B came upstairs with X and the father released his grip on the mother’s face. The mother grabbed Y and went downstairs with Ms B. The mother called the police. When interviewed by police, police records reveal the father’s version that he had slapped the mother in the face and pushed her into a nearby couch as he thought this would be the best way to control her. The father was arrested and taken to the police station where he was charged with breaching the protection order. During his oral evidence, the father said he had been injured by police during the arrest when he tried to run away and was tackled to the ground and handcuffed.
Child Safety again became involved. The records reveal that despite being contacted by Intensive Family Support Service on numerous occasions, the parents did not engage with them. The parents were no longer living together but the father said he wanted to reconcile with the mother. The father denied any family violence. The mother consented to engage with J Family Services. The mother said she was agreeable to the father spending time with the children. The records note that the mother’s “insight into her experience of domestic violence is likely to develop further, with the increased level of distance that she is able to gain from [the father’s] coercion and control”. The records also note that the father “displayed nil insight into his domestically violent behaviours” and “[i]f [the father] is unable to be accountable for his behaviour, then he will not be able to make the necessary changes. This will likely result in him continuing to commit domestic violence against [the mother] and the children”.
Child Safety made the following recommendations:
(a)That the mother continue to engage with J Family Services;
(b)That the mother actively manage her mental health with her GP and use community and family connections;
(c)That the mother report any breaches of the protection order;
(d)That the father engages with a psychologist or men’s behaviour change program to address his behaviour and use of domestic violence;
(e)That the father adheres to the conditions of the protection order.
In early 2020, a protection order was made by consent without admissions with the following conditions:
(1)The father be of good behaviour towards the mother and not commit domestic violence against her;
(2)The father be of good behaviour towards the children and not commit domestic violence against them or expose them to domestic violence;
(3)The father is prohibited from remaining at entering or attempting to enter; approaching within 100 metres of the mother’s usual place of residence;
(4)The father is prohibited from following or approaching to within 100 metres of the mother when at any place.
Exceptions to the above conditions are if the mother gives her written permission for the father to pick up and/or drop off the children as approved by the mother. The protection order will remain in force until early2025.
Report by Dr Lynagh
For the purposes of his sentencing hearing in 2006, the father was assessed by Dr K, consultant psychologist, who was retained at the recommendation of the father’s defence lawyer. The father admitted the charges as alleged against him although it was noted that the father “tended to externalize blame and to avoid addressing the more adult issues and responsibilities in his life”. Dr K opined that the father experienced “significant functional difficulties of a cognitive and psychosocial nature”. The father’s idealistic account of his life growing up was significantly at variance with his mother’s account of his life. She described the father as having “never grown up emotionally”, being unable “to develop normal social skills”, being “bullied and ha[ving] trouble making friends”, and as “extremely naïve … impressionable … impulsive, spontaneous and at times highly irrational”. His mother said that the father “gets on well with 12 to 15 year olds” and that she has “tried to protect him his whole life”.
Dr K opined that the father “is a clinically disordered young man having virtually a lifelong history of disturbed personal and social adjustment which has impaired his functional capacity in many aspects of his life”. Notable among his major areas of dysfunction were his “lack of insight”, “communication problems” and “impairment in cognitive processing”. Dr K opined that the possibility of the father having “undiagnosed Asperger’s Disorder since childhood, should not be discounted”. Dr K described the father as a “vulnerable young man … in need of appropriate psychiatric/psychological assistance” and recommended that the father have “[o]ngoing support and guidance from a concerned, informed adult (eg parent), preferably on a live-in basis”.
It was a condition of the father’s sentence to undergo psychiatric or psychological therapy as deemed appropriate. There is no evidence the father undertook any therapy.
I note that in or about March 2019, Child Safety recommended the father undertake counselling as recommended “by the court” and, in or about March 2020, Child Safety recommended that the father undertake counselling with a psychologist or men’s behaviour change program to address his history of family violence. There is no evidence that the father undertook any such counselling.
Report by Dr D
On 11 October 2022, the father was interviewed by Dr D, psychiatrist “for the purposes of preparing a psychiatric report that ascertains whether the [father] has [ASD], or an impairment, or other condition”. Dr D was provided with Dr K’s report and a family report that had been prepared by Ms L.
At the time of interview, Dr D noted that the father was “self-employed [in allied health] supporting himself 15 to 20 hours a week, plus occasional unskilled jobs”. The father reported that he had not had “official contact with the children” since September 2021 but that “un‑officially” he would see them “regularly” at a monthly barbeque held by a neighbour to the mother’s residence. This arrangement ended in April 2022 when the neighbour told the father not to come anymore. It is unclear whether the mother knew this was occurring.
The father told Dr D that things became complicated by a domestic violence protection order taken out by the mother in late 2018. The father denied violence and “felt the essence of the matter was [the mother’s] emotional overreaction”. The father said he had tried to maintain contact with the children through a contact centre but “conflict arose with management”.
The father told Dr D that he had had “some interactions with women he would engage with sexually, that he has met in internet chatrooms”.
In relation to the father’s 2006 convictions, Dr D opined that “it would appear (on the evidence of this one interview), that his desires were not paedophiliac but emotionally immature and with very poor judgment. He describes continuing sexual interaction with women over chatrooms but now ensuring all are over the age of maturity”. Dr D noted that on the father’s account, he “did not have a strong circle of friends in Brisbane”.
Dr D opined that the father has “personality difficulties” and “significant lack of insight in getting the overall picture, communication difficulties, and impaired cognitive processing”. The father informed Dr D that the mother complained of the father drinking up to a bottle of wine each day. The father said he would consume about half a bottle of wine each night with dinner.
Dr D noted Ms L’s assessment that the father had an “unclear grasp on sexual boundaries”.
In Dr D’s opinion, the father “tried to present his situation in a positive light and to minimise negative factors”, and that “[t]here were some significant limits to his capacity to grasp the perspective of others” and further noted he “could become quite tangential”. Dr D opined that the father “did present as having awareness of maintaining appropriate sexual boundaries with respect to age and awareness of appropriate behaviour around children” but that he “did not present as having a particularly sophisticated grasp of adult relationships”.
In Dr D’s view, the father suffers from ASD but on the “milder end of the scale”. The presenting features of which are “empathic deficits, which has led to quite self-centred thinking, communication difficulties with others, occasions misunderstanding in conflict. There has been significant element of immaturity in [the father’s] relationships, I think consequence [sic] upon this where he has frequently been repeated[ly] bullied or exploited, often by males and has not been able to establish a mature and lasting relationships with the females. These [have] often been over sexualised and simplified fashion.”
Dr D described the consequences for the father as “significant” but “not catastrophic”. The father is a “slow learner” and “would miss social cues and might find it more difficult to correct social errors when he has made them”. In Dr D’s opinion, the father “risks not being particularly sensitive to the children’s emotional situation” although he thought the father would meet the standard of “adequacy” in his parenting.
In conclusion, Dr D was “strongly supportive” of the recommendation by Ms L for a series of supervised visits for the children at a contact centre so that “an experienced observer can grasp the nature of interaction”. Dr D observed that while he did not “expect things to be particularly problematic, this is an essential step for considering unsupervised access”.
Contact centre involvement
Pursuant to an order made by consent on 31 March 2022, the father was to spend time with the children at the M Contact Centre and communicate with the children via telephone or facetime each Tuesday to be initiated by the father between 5.30 pm and 5.45 pm. It was further ordered that the supervised time occur once per fortnight for up to two hours.
The first contact centre withdrew its services. The father told Dr D that there was some conflict with the contact centre and in his trial affidavit the father states that “there was a disagreement between myself and the contact centre manager such that the contact centre declined my request to book time with the children”.
The father contends that on 27 October 2022, he suggested the parties use N Contact Centre and, on 4 November 2022, the mother agreed.
On 6 April 2023, an order was made for the father to do all things and sign all documents necessary to register with N Contact Centre by no later than 13 April 2023, and for the mother to do the same by no later than 20 April 2023.
The second contact centre never provided their services because of delays by one or both parents registering and then undergoing an intake session. The father blames the mother for this failure. The mother contends she did all she could to facilitate the parents’ use of this contact centre. Whatever the case, by the time the parents were ready to use the centre it had a considerable wait list.
On 3 October 2023, an order was made by consent for the supervision to occur at G Contact Centre.
The third contact centre withdrew their services after the one and only supervised visit on 4 October 2023. The supervisor’s notes of that day reveal the following:
·Upon arrival the children did not approach or acknowledge the father at all even when he asked them questions;
·The father was noted to wander around without direction;
·The father worked hard to chat with the children;
·The father engaged in silly play which caused them all to giggle;
·The father asked X - “do you love dad?” - and the supervisor intervened and redirected the conversation. The father asked the question again. The child smiled politely and said “yes” but was noted to be uncomfortable;
·The father commented that Y was following him around because she never knows when she will see him again;
·X was observed to be worried about making a mess, but the father did not recognise the child’s discomfort;
·The family were asked to come inside to say goodbye, but the supervisor was ignored. The request was repeated five times before finally the father and children complied. The father would not release the children and had to be told by the supervisor in a raised voice to release them immediately;
·The father then watched the mother through the door until he was moved along by staff.
On 12 December 2023, the father sent a text message to the contact centre:
I think you are cool so I wan2 reconcile and deep down you know what is best for the children you can see it my intentions are pure and good I want to help I miss my wooden sunglasses but I have seen the light I think you are a nice lady I also am a genious and can help you with […] any possible ailment in your body I have 20 yrs experience and have maintained a 5 star my rating my entire career I can offer u a free fortnighty [allied health service] for free check it out and book it in asap!
(As per the original)
On 22 November 2024, the father sent a series of text messages to the supervisor including the following two:
I think U made God very angry look at the sky
3:43pm
Did I not warn u even [X] warned u look again what she drew it was a lightening bolt Dont try and separate what God has put together I warn u that the rain will come and the storms will come if u do that
When asked about the appropriateness of the above texts, the father clearly saw no problem with them. In relation to the one sent on 12 December 2023, the father doubled down, commenting that he recognised that the supervisor was stressed, and he could “relieve her stress”. It did not occur to him that he may have made her feel uncomfortable by offering her a service.
Family report – Mr E
As a result of the father failing to attend the scheduled interview on 6 November 2024 at 9.00 am, or to answer his phone and failing to attend the rescheduled interview on 8 November 2024 at 2.30 pm, Mr E was only able to interview the father by telephone and there was no opportunity for Mr E to observe the children with the father.
The father failed to provide any evidence to explain his failure to attend the interviews. Mr E received an email from the father at 3.56 pm on 6 November 2024 merely stating he was not available to attend the interview and requesting the interview be rescheduled and it was rescheduled for 8 November 2024 at 2.30 pm. At 2.00 pm on 8 November 2024, Mr E received three emails from the father indicating he was working and again requesting the rescheduling of the interview. Notwithstanding the father’s indication that he was working, he answered Mr E’s call at 2.30 pm and agreed to participate in a telephone interview.
The father told Mr E that he lives in a suburb (which he named) that shares the same postcode as the mother.
Mr E noted that the mother lamented that the father has not tried to develop a relationship with X. She said that X “really wants to talk to her dad” and is so “disappointed” when he has cancelled phone calls with her. The mother was teary as she spoke. The mother’s demeanour during her oral evidence was also teary at times. It is apparent that the mother has found these proceedings, and the father’s inability to meet the expectations of the orders for supervised time with the children to be very draining. The mother was unable to suggest a proposal to Mr E other than expressing a willingness for the father to send the children a letter or gifts on special occasions.
Mr E noted that after the parents separated, the father initially spent overnight time with the father on weekends but that the mother ceased this time when she discovered that the father was leaving the children with other adults. I reject the father’s contention that the mother ceased his time because he had commenced a relationship with one of the people in his household. I accept the mother’s evidence that she agreed to the father initially spending time with the children because she had to work full time and needed assistance in their care.
Mr E noted that the parents reached agreement in June 2021 that the father would spend daytime only with the children, but he withheld the children overnight and the mother again stopped the father’s time. Interestingly, at the time the father was interviewed by the family report writer, a little over a month ago, he said he was seeking an order for alternate weekends from Friday to Sunday.
It was noted by Mr E that the father “denied perpetrating family violence, criticised the mother’s parenting and externalised blame for his lack of contact with the children”. The father alleged the mother was violent to him, but he did not report her to “save her from being deported”. The father said that police involvement “made our lives difficult”. He admitted that when the mother asked him to pay the rent after they separated, he insisted that she “take me back” before he would consider her request. Such behaviour was coercive and controlling. The father said he and the mother had “squabbles” during the relationship and that the mother became “hysterical” when she was heightened. The 2018 incident was described by the father as the mother being angry at him “about something” because she was pregnant and “hormonal”. The father admitted pushing the mother but said she “tripped over the laundry basket”. The father was critical of police contending that he “did not even do anything”. The father minimised his behaviour in relation to the 2006 convictions.
In relation to his telephone communication with the children, the father told Mr E that these calls were facilitated by a third party who declined to be further involved. The father admitted that there were occasions when he was “accidently late” for the calls. The father said that supervision had been imposed when he had done “nothing wrong”. The father said he had accused the first contact centre of having a “dodgy set up” and of “doubling the price”. It is perhaps unsurprising that the centre refused to provide their services.
The father said that N Contact Centre advised him that they would not supervise his time with the children but could not “disclose the reason why”.
In relation to the third contact centre, the father said he had parked in the wrong place and arrived late. He said his contact with the children was “awkward at first” though “we had a good time”. The father said the supervisor had yelled at him “to release the children” and he questioned why staff “were treating me like this”. He said he contacted the contact centre after the incident but the person he spoke to was “hostile” and told him she would not facilitate further contact because he was “late and did not release the children”.
The mother said during her interview that her neighbour had volunteered to facilitate the father’s calls with the children but withdrew his offer which he described as a “waste of time” and complained that the father was contacting him “late at night”. The mother said her friend had offered to facilitate the calls but withdrew her offer after the father sent her messages, said he was “busy”, or he called at the wrong time. The mother said that the children had been pleased to see the father on 4 October 2023. The mother was told by staff that the father was not in his “right mind” because he did not actively engage with the children and accused a staff member of “stealing” his glasses. The contact centre cancelled all further bookings.
The mother said the children wanted to see the father though they are left “disappointed” when he cancels with them. She lamented that the father “cannot even spend 30 minutes” communicating with the children reliably. The mother cried as she spoke. The mother doubted the father would send cards or gifts because he was not even willing to spend money on a “contact centre let alone toys”.
The mother complained about various forms of family violence including restricting her access to food and money. The mother said the father masturbated in front of the computer in the living room “every night” despite her requests for him to stop. She said the father repeatedly threatened to have her deported and accused her of being “crazy”. Again, this conduct was coercive and controlling.
Discussion
The task of assessing the risk posed by the father is complicated by the father’s ASD and personality vulnerabilities. The opinions of Dr K, Dr D, and Mr E have been very helpful. The father did his best during the trial but, despite redirection on several occasions, he did little to advance his case by repeating his almost completely negative views of the mother which occupied his entire submissions. This is despite the father making it clear on many occasions that he sought to reconcile with the mother. There is no prospect of reconciliation. The father went to some lengths to malign the mother even suggesting to the family report writer that she came from a country where they “engage in child trafficking prostitution”.
The mother spoke little English when she met the father and I have no doubt she experienced the father as overbearing. Given the father’s personality vulnerabilities and ASD, he has little ability to show empathy and is very self-focussed. He deflects criticism and externalises any shortcomings by blaming others for his predicament in not having a relationship with his children when that is almost entirely down to his own behaviour. Notwithstanding his admissions of assaulting the mother on more than one occasion, including when she was heavily pregnant, he denies any family violence.
The father engaged in conduct during the marriage which coerced or controlled the mother. The family report writer opined, and I accept, that there was a power imbalance in the relationship which favoured the father. I accept the mother’s evidence that the father on occasion denied her and the children basic needs such as food and medical care and used the threat of deportation to control her. The mother relied upon Ms B and her husband for financial support both during the marriage and after separation. The father does not pay any child support yet criticises the mother for working full time to meet the needs of the children.
The father contends that the mother suffered from post-natal depression after each child was born yet did little to assist her in providing for the children.
Child Safety were very concerned about the father’s pattern of coercive and controlling behaviour and tried to assist the mother to leave him and find alternate accommodation. Due to the mother’s residency status, she was ineligible for many services.
It is most concerning that the father contends he has been to the mother’s home this year when she is absent. The mother was told by her neighbour that the father had dropped off an iPad at the home and that he returned later to collect his phone. The father said he spoke to the children and gave X the iPad for her birthday in 2024. Ms B (who was present) denies the children spoke to the father or personally received the iPad. Ms B said that the father has come into the home on other occasions when the mother is not present, and she has told him to leave. The father is prohibited by the protection order from going to the mother’s home. The father contends that he thought the protection order expired in early 2024. I do not accept that that was his belief. The current protection order was consented to without admissions by the father.
It is not in contention that the father was violent to the mother in late 2018 and in late 2019. Even on the father’s own version, in late 2018, he pushed and kicked the mother when she was heavily pregnant, and, in late 2019, he pushed her in the face. His attempts to minimise his behaviour do him no credit. X was present in late 2019 and no doubt on other occasions when the father perpetrated family violence against the mother.
The father disregards court orders and externalises responsibility for his own actions which has had serious consequences for others. The father was required to undergo counselling after the 2006 convictions. He did not do so. Despite pleading guilty to a heinous crime involving a child, the father now minimises his behaviour. The father repeatedly breached his reporting conditions, a requirement when on the sex offender register. The father was convicted of breaching the protection order against the mother in late 2019. The father has most likely breached the conditions of the current protection order by turning up at the mother’s home. The father has also acted contrary to the current parenting order by turning up at a park where the children have been in attendance with Ms B. The current order limits his time with the children to contact at a contact centre.
The father also has a possible history of violence against two other women. One incident occurred in 2009 and another in 2021. The police took out a protection order against the father in relation to the 2009 incident.
I conclude that the risks posed by the father are unacceptable. The risks of future harm from the father to the children and to the mother include physical, emotional, psychological, and possibly sexual due mainly to problems recognising appropriate sexual boundaries. The risks are heightened because of the father’s lack of empathy, lack of insight, and his externalisation of blame for his predicament. The father’s lack of insight, lack of empathy, and externalisation have been a constant feature of his personality, or as a result of his ASD, since the 2006 report of Dr K, and despite repeated advice over the years for the father to seek therapy, he has failed to do so.
IF THE FATHER DOES NOT POSE AN UNACCEPTABLE RISK OF HARM, WHETHER THE MOTHER HAS THE CAPACITY TO FACILITATE A RELATIONSHIP BETWEEN THE FATHER AND THE CHILDREN?
I have found that the father does pose an unacceptable risk of harm. If I am wrong in that finding, I find that although the mother might find it difficult to facilitate a relationship between the father and the children, the evidence does not support a finding that she would lack the capacity to do so. The mother has been supportive of the relationship in the past and has been disappointed by the father’s lack of commitment to maintaining a relationship with the children.
WHETHER THE FATHER HAS THE CAPACITY TO PARENT THE CHILDREN SAFELY?
This issue does not arise given the earlier findings but having regard to the father’s ASD, history of family violence and exposing the children to family violence, and his apparent immaturity and lack of boundaries regarding sexual matters, I find the father is lacking capacity to care for the children without assistance.
WHETHER THE PARENTS HAVE ANY CAPACITY TO CO-PARENT THE CHILDREN?
The parents would not be able to co-parent the children given the history of family violence and the father’s unreliability (which is no doubt exacerbated by his ASD and personality vulnerabilities).
THE UTILITY IN MAKING ANY ORDER FOR THE CHILDREN TO SPEND SUPERVISED TIME WITH FATHER WHEN HE IS ALLEGEDLY UNWILLING TO COMPLY WITH CONTACT CENTRE SERVICE AGREEMENTS.
Dr D opined that supervision was at least initially “essential”. He considered it important to have an experienced supervisor observe and assess the children’s interactions with the father. The only supervised visit that was able to proceed was spectacularly unsuccessful with the supervisor refusing to be further involved.
Even if I were persuaded that the risks posed by the father could be ameliorated by supervision, there is no evidence that any centre or professional person would be prepared to supervise. There would be no utility in making an order for further supervision even if I were satisfied that the father would reliably attend, and I am not so satisfied.
WHAT ORDER IS IN THE BEST INTERESTS OF THE CHILDREN?
The father focussed throughout the trial on the mother’s alleged poor parenting and risk to the children. To counter those concerns, I note the independent evidence suggests that the children are well cared for and doing well at school.
In 2019 and 2020, Child Safety twice assessed the mother as a parent capable of appropriately caring for the children.
The family report writer, Mr E, observed the children separately and with the mother and raised no issues of concern about their presentation. X is in grade three and spoke about her friends at school. The child spoke positively about the mother and said she felt safe living with her mother. Y is in prep and also has a friendship group. She spoke positively about the mother and said she felt safe living with the mother. Both girls said they would feel good about seeing the father in the future, but X said she was not sure that she would feel comfortable spending overnight time in his care.
X was referred to the school guidance officer, Mr O, in 2023. His report dated 22 May 2023; indicates she was referred to him by the Support Team to examine her cognitive profile. Mr O opined X “has a unique cognitive profile with average scores in some domains with a significant weakness in fluid reasoning”. The fluid reasoning index “measures the child’s ability to detect the underlying relationship among visual objects and to use reasoning to identify and apply rules”. Mr O recommended that when providing instructions for assignments or tasks, this should be done in a step-by-step fashion rather than all at once so that she can see and understand sequential actions and patterns.
The children’s 2024 school reports raise no issues of concern. In her semester 1 report, X’s progress in her subjects is still developing but her effort is consistently very good to excellent. In her semester 2 report, X is noted to have shown some improvement in her knowledge in some subjects but is still developing in others. Again, her effort is described as very good to excellent. She is noted to have a good sense of humour and to get along well with her classmates. The child is described as a pleasure to teach. In her semester 1 report, Y is reported as a “bright and bubbly” child with “a big smile and a ready to learn attitude”. She is said to have an “easy-going personality” which makes her “a wonderful friend to many”. In her semester 2 report, Y’s behaviour is described as “exceptional”, and the report shows she is progressing well at school.
I have found the father poses an unacceptable risk of harm to the children and the mother and that even if supervision could ameliorate the risk, there is no utility in making an order for supervised visits as there is no evidence that anyone is prepared to undertake that task. The father has been very successful in driving away all those who have been prepared to help.
The evidence does not support the father’s contentions that the mother is neglecting the children and uninterested in their advancement. To the contrary, she alone is providing for their emotional, educational, and financial support.
The parents have no capacity to make joint parenting decisions and as the children will remain living with the mother, she will have sole responsibility for making all parenting decisions for the children including obtaining passports and travelling overseas with the children if she so chooses. The children will remain living with the mother and spend no time nor communicate with the father, save that he will be at liberty to send a card and gift to each child on their respective birthdays, at Easter, and at Christmas.
As the current protection order expires in early 2025, and the father has demonstrated a history of turning up unannounced at the mother’s home, I propose to accede to the ICL’s recommendation that injunctions issue restraining the father from attending the mother’s home, the children’s school, or approaching the mother and or children.
I will include a provision in the order requiring the mother to engage a psychologist for the children to assist them to deal with the absence of the father in their lives and to explain to them the order I propose to make. For this purpose, the mother will be at liberty to provide a copy of these reasons and the family report dated 18 November 2024 to the counsellor. I have not included the reference to the mother obtaining a mental health plan for the children. That is a matter between the mother and the children’s GP and primarily assists with the funding of the assistance which would no doubt be helpful to the mother.
The ICL made a recommendation (exhibit 4) adopted by the mother that the mother and father keep each other informed of their email address, but later in the minute recommends that the father not communicate with the mother other than as permitted by the order. The only exception in the order is for him to be at liberty to send a card and gift to the children on special occasions. In the absence of any explanation for the inclusion of a provision requiring the parents to keep each informed of their respective email addresses, I do not propose to include it.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 23 December 2024
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