Vernell & Casselton
[2021] FCCA 1160
•24 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Vernell & Casselton [2021] FCCA 1160
File number(s): ADC 5635 of 2019 Judgment of: JUDGE BROWN Date of judgment: 24 February 2021 Catchwords: FAMILY LAW – interim hearing – nature of interim hearing – best interests of the children – significant degree of risk – domestic and family violence – involvement with child protection authorities – where children’s safety is in question – exposure to abuse, neglect and family violence – where father has not interacted with children for a significant period of time – application of paramountcy principle Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 60CC(2A), 68LA Cases cited: Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) 36 Fam LR 422
Marvel & Marvel (2010) 43 Fam LR 348
Number of paragraphs: 96 Date of hearing: 19 February 2021 Place: Adelaide Solicitor for the Applicant: Ms Annells Counsel for the Respondent: Mr Dillon Solicitor for the Respondent: Bersee Legal Solicitor for the Independent Children's Lawyer: Ms Atchison ORDERS
ADC 5635 of 2019 BETWEEN: MR VERNELL
Applicant
AND: MS CASSELTON
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
24 FEBRUARY 2021
UPON NOTING THAT:
1.That the Family Assessment Report has only been recently released in this matter.
2.That conflicting information is provided in the Report from each of the parents regarding the nature of their ongoing relationship as well as the time since the children have had contact with the father.
3.That the Family Report writer has indicated that it would be in the best interests of the children if the Department for Child Protection remained involved with the family.
4.That it is the intention of the parents and the Independent Children’s Lawyer to consider the commencement of unsupervised time between the father and the children if the report obtained from the City B Contact Centre in accordance with the terms of this order shows positive and appropriate interactions.
DURING THE PERIOD OF ADJOURNMENT THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.Until further or other order the children, X born in 2012, Y born in 2015 and Z born in 2017 do live with the mother who shall have sole parental responsibility for them.
3.That the father do spend time with X, Y and Z as follows:-
(a)For up to two hours supervised at the City B Children’s Contact Centre at such times and dates as may be nominated by the Centre NOTING THAT if possible, the visits occur on a weekly basis but no less frequently than fortnightly;
(b)At such other times as may be agreed in writing between the parents subject to such time spending being approved in writing by the Independent Children’s Lawyer if that time goes well.
4.That both parents do within seven days of the date of this order sign such documents to register with the City B Children’s Contact Centre and comply with all directions of the Centre staff including attending any appointments prior to the commencement of supervised visits.
5.That after the completion of the third visit in accordance with the terms of paragraph 3(a) hereof, the father at his expense do obtain a report from the City B Children’s Contact Centre as to the progress of visits between himself, X, Y and Z and file and serve a copy of the same on the mother and the Independent Children’s Lawyer.
6.That the mother do maintain her engagement with Ms C of D Family Services to continue to address her parenting deficits and improve her knowledge of the impacts of family violence on children.
7.That the father do maintain his engagement with Ms E at F Counselling to address the issues identified by the Department of Child Protection which impact on his parenting capacity and ability to be a safe parent, including his perpetration of family violence and the impacts of the same on the children.
8.That the parents shall notify the other via text message as soon as is reasonably practicable of any serious childhood illness or medical emergency affecting X, Y and/or Z whilst in his or her care.
9.That for the purposes of paragraph 8 only, the parents do keep each other informed of their current mobile phone number and advise in writing any changes to the same within 24 hours.
10.That both parents are hereby authorized to obtain such information from X and Y’s school as is usually provided to caregivers including but not limited to school newsletters, school reports and school photographs.
11.That the Independent Children’s Lawyer be at liberty to release to the Department of Child Protection a copy of the Family Assessment Report prepared in this matter by Mr G.
12.That the parents be restrained and injunctions are hereby granted restraining them from:-
(a)Abusing, denigrating, belittling, rebuking or insulting any of the other or the other’s partner in the presence of or within the hearing of X, Y and/or Z or allowing any other person to do so;
(b)Discussing these proceedings or any allegations made in these proceedings in the presence of or within the hearing of X, Y and/or Z or allowing any other person to do so;
(c)Permitting X, Y and/or Z to read any document filed in or produced for use in these proceedings or allowing any other person to do so;
(d)Consuming any illicit substance or misusing prescription medication for 24 hours prior to or during any period that X, Y and/or Z are in his or her care;
(e)Posting any information on any social media platform regarding these proceedings, any allegations made in these proceedings, any of the other parties, any of the other parties’ partner or families or allowing any other person to do so.
13.The applicant father file and serve an affidavit within fourteen (14) days of today’s date outlining the details laid against him in the Magistrate’s Court.
14.Further consideration of the matter is adjourned to 20 May 2021 at 9:30am in Mt Gambier for directions NOTING the parties are to dial in on 1800 132 423 followed by 7076931952 #.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Vernell & Casselton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore)JUDGE BROWN:
This is a difficult case, arising at the interim stage, concerning competing allegations of poor parenting, child abuse and exposure to family violence. I heard the submissions in the case in City B on 19 February 2021.
Due to the weight of material on the Court file, and the controversy that the case has created between the parties concerned, I elected to adjourn the case to read the file and the related material carefully, so that I had a full appreciation of the intricacies of the case.
Due to pressures of time, it has not been possible for me to reduce these reasons into writing. Accordingly, I have to deliver them orally. I apologise to all concerned, in advance for the burden, that listening to these orally delivered reasons will place on them. The reasons have been corrected and errors of expression and syntax corrected in an attempt to make the orally delivered reasons amenable to being read.
The parties are Mr Vernell “the father” and Ms Casselton “the mother”. They are the parents of X, who was born in 2012; Y, born in 2015; and Z, who was born in 2017.
As I say, the case concerns interim arrangements for the care of the three children concerned, particularly what time they should spend with their father and what, if any, conditions should attach to that time. The father seeks to spend substantial and significant time with the children. Whilst the mother’s position is that the time should be supervised.
The principal complexity arising in the case is that the Department of Child Protection “the Department” or “DCP” has been significantly involved in the case as a consequence of numerous notifications having been made to it.
The Department had a significant involvement with the family in November of 2019. As a consequence of those matters, at an early stage of the proceeding, an order was made that X, Y and Z be independently represented in these proceedings.
The children’s representative is Ms Nicola Atchison, who is an experienced family lawyer in City B. Her experience is particularly strong in the field of independent representation of children and protection proceedings in the Youth Court. Ms Atchison is to be regarded as a party of equal importance to the parents.
In addition, pursuant to section 68LA of the Family Law Act, she is under a statutory obligation to examine all the evidence relating to the children who she represents, and then advocate to the Court the outcome which she believes is in the best interests of the children concerned.
Accordingly, her views and submissions must be given significant consideration by the Court. This morning, before the case commenced, Mr Boehm, who has been briefed by Ms Atchison to appear before the Court, advised me that it was his client’s understanding that Mr Vernell was facing some significant criminal charges in the City B Magistrates’ Court this morning.
Those are issues which have been alluded to in a recent report of an expert, Mr G, who Ms Atchison has engaged to assess the family. Mr Boehm, on behalf of his client, wishes Mr Vernell to formally respond to these matters on oath and provide an explanation as to why he has not been forthcoming about them. I have elected to proceed with giving these reasons notwithstanding that submission, because I think it is important that there be some clarity provided to the family, including Ms Casselton.
At an earlier stage of the proceedings, I invited the Department to intervene in the proceedings. The Department has not formally taken up that invitation. However, during the course of the proceedings, the Department has produced three reasonably lengthy reports which detail its involvement in the case.
After the case concluded on 19 February 2021, because Mr Vernell had asserted that he had, in essence, done more than was required of him in respect of Departmental requests to undergo drug screens and alcohol testing, I asked the Department to provide me with its records as to what Mr Vernell had and had not done in respect of drug screen testing. To the Department’s credit, it has provided those records, for which I am grateful.
Today, the Department has sent along a representative who, in effect, has a watching brief in the case. It remains the position that the Department is providing assistance to the family and is greatly interested in what is in the outcome of the proceedings today. This is an interim hearing.
The Full Court, in a case called Goode & Goode, has describe the nature of the hearing at the interim hearing as being ‘significantly curtailed’.[1] As such, it has cautioned first-instance courts such as this one about being ‘drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible’.[2]
[1] (2006) 36 Fam LR 422, 442 [68] (Bryant CJ, Finn and Boland JJ), quoting In the Marriage of C (1998) 22 Fam LR 776, 780 [18] (Ellis, Lindenmayer & Jordan JJ).
[2] Ibid.
This is a case which is full of controversies. The parties disagree about many issues. I cannot resolve those issues in this context, although up to this stage, a substantial amount of material has been gathered by both the parties themselves and the Independent Children’s Lawyer. However, it is a case that is fundamentally about risk.
I am not in a position to ignore that risk merely because I cannot make a concluded finding about it. In a case called Marvel & Marvel, the Full Court indicated that decisions involving risk at the interim stage are ‘very difficult’. As such, it is very often the case that the Court concerned must adopt a ‘conservative approach’, or one which is directed towards avoiding harm coming to a child concerned.[3]
[3] (2010) 43 Fam LR 348, 375 [120] (Faulks DCJ, Boland and Stevenson JJ).
Such an approach is very often likely to cause great distress to a party who feels that he or she has been wrongly maligned, and as a consequence, has not been able to achieve the outcome which he or she wishes, or believes is in the best interests of the parties concerned. Those feelings or strong reactions are likely to be present in the current matter.
In this context, I point out that the orders that I am going to make in this case are not final orders. They will be interim orders. Necessarily, they will be provisional in nature, and will be capable of being changed at a later stage if more evidence comes to light.
However, I acknowledge that at least one party will feel that the decision I am going to make today is wrong and perceive that he or she has been unheard and disregarded by me. I regret that.
However, my focus must be on the best interests of X, Y and Z, and particularly the risk which arises in this case. Fundamentally, my responsibility is to assess that risk and put into place a response which I believe is proportionate to the degree of risk arising.
The father’s case is easily summarised. It is his case that the mother has an explosive temper and is liable to aggressive mood swings. He says she can swing from being a good mother to one who becomes angry without provocation, which leads her to be rough and physically violent to the children. This, in his perception, has led X to behave inappropriately.
He asserts that, sometime in the latter part of 2019, X needed discipline. As a consequence, he gave her a smack on her bottom, which was something he said he rarely did. In fact, he says the mother frequently criticised him for not being more robust in his physical discipline of the children.
It is his position that this resulted in the mother contacting police, who contacted DCP, who intervened in the family on 18 November 2019. It is Mr Vernell’s case that the DCP fundamentally misconceived what had happened from the beginning, and have wrongly characterised him as an abusive parent, and have erroneously believed that Ms Casselton has said about him.
Against this background, he commenced proceedings in this Court on 20 December 2019. The father’s case is supported by a number of witnesses – Ms H, and Mr J, but particularly, Ms Casselton’s mother, Ms K.
Ms K has filed an affidavit in the proceedings. She asserts that she is concerned about her daughter’s mental state of mind and describes her as a verbally aggressive and abusive person. Ms K supports the father in that she alleges that the mother’s mood shifts rapidly. It is Ms K’s position that the children’s best interests will be served if they can be co-parented, but they are probably much better off in their father’s care than their mother’s.
The father was born in 1976 in Western Australia. The mother was born, I think, in Country L in 1988, and there were concerns about the mother potentially moving to Country L with the children.
As I understand it, Ms K is currently living – or sharing accommodation, I should say – with Mr Vernell, which, for reasons I will come to in a moment, is a matter of concern to Ms Atchison. It is also the case that the mother has had three children previously removed from her care by authorities in Tasmania, and that occurred in 2009.
The mother responded promptly to the father’s application in February of 2020. It was her case that the father has an extensive criminal history which includes crimes of quite serious violence. She asserts that the father has significant issues with the consumption of alcohol and drugs.
It is also her case that, during the parties’ relationship, she was subject to quite significant family violence which resulted in her suffering two black eyes, photographs of which she has annexed to her material. It is her case that, in the past, she has been prevailed upon to withdraw charges against Mr Vernell because of concerns that he has raised with her that he may go to prison, the implication of that evidence being that there is a power imbalance between the parties concerned.
Regretfully, Ms Casselton has a poor view of her mother, describing her as a person who has had a heroin addiction. She asserts that there has been some form of sexual relationship between her mother and Mr Vernell quite recently. It is also clear, and I don’t think this is disputed between the parties, that X has been sexually abused by the father’s oldest son.
So, on any view, this is a very complicated family dynamic. It seems clear that the family has extensive involvement with various authorities. Against that background, in my view, it was clearly appropriate that the children be independently represented, so that as much information as possible could be gathered from the various authorities concerned.
One of the significant issues in this case is how closely Ms Casselton, on the one hand, and Mr Vernell, on the other, have engaged with the Department to assuage the Department’s protective concerns given each party’s, in the jargon, “extensive footprint” with authorities.
At the earliest stage, when the matter first came on for hearing, I elected to take a cautious approach. On 19 May 2020, the order was made for the Independent Children’s Lawyer.
At this stage, I decided that the children should spend time with their father at the Children’s Contact Centre in City B, and be subject to the Department’s, or the centre’s supervision. I also requested DCP to provide details of notifications received by the Department.
The Department sent an extensive letter on 12 August 2020, which was circulated to all concerned. In their report, the Department indicated that a meeting had been convened on 18 November 2019. The writer reported as follows:
During the father’s meeting, it become apparent he was dismissive of the worries the Department held about his use of domestic violence, and he presented in a hostile manner. It was determined that, due to the father’s lack of insight into how his behaviours had impacted on the mother and the children, his behaviour would create significant risk to the children.
On 18 November 2019, the Department removed the children from the father’s care due to ongoing concerns regarding domestic violence instances perpetrated by him towards the mother. The children had been present, and had witnessed the father’s assault on the mother, which was emotionally harmful to them.
X and Z were physically hurt due to being in close proximity to the violence. X especially had been impacted by everything she had experienced, and it was evident that she would require attuned, loving care and a safe environment to recover.
The mother agreed she would care for the children and separate from the father to create immediate safety for the children. So, pursuant to the Department’s statutory authority, the children were placed in the care of their mother.
Thereafter, it has been the Department’s impression that the mother has made gains in her parenting of the children and has some level of insight into what has happened before. It was the writer’s view that Ms Casselton was still locked in a cycle of domestic violence – that is, the father was violent towards her, she resolved to separate, but then was subject to some manipulation, particularly including the children, that would prevail upon her to return to the violent relationship, this pattern leading to the mother softening her views of the father and then the cycle repeating.
It was the Department’s view that the father had instituted the proceedings in February 2020 when he realised that the mother was not going to reconcile with him as she had done previously, and at least initially, the Department felt that the proceedings were a mechanism for Mr Vernell to exert control over Ms Casselton, particularly in the context of utilising Ms Casselton’s fear that she may ultimately lose the children.
I am not in a position to make a concluded finding of fact as to whether that dynamic, or some variation of it, is in fact the case. As I say, it is the father’s position that it is flawed, and the Department is flawed in its analysis, and it is he who is the victim of the mother’s violence rather than vice versa.
Essentially, the father says that the mother and the workers at DCP have an ideological bias and have been able to pull the wool over everyone’s eyes. It is also the father’s position that, notwithstanding his jaundiced view of the Department, he in effect did everything that was required of him by DCP at an early stage of the proceedings.
His lawyer, Mr Bersee, told me that his client had gone along for weekly alcohol and drug screen testing, and these had all proven to be negative. But nonetheless, the Department had not softened his attitude towards him, and had only allowed him to spend the most cursory amounts of time with the children, whom – each of whom deeply, deeply loved their father.
Ms Casselton had a different view. It was her understanding that Mr Vernell had missed 50 percent of the drug screen testing and had declined to engage in any therapeutic support surrounding drug and alcohol abuse, anger issues and violence issues perpetrated by him.
She was mistrustful of a report which had been prepared by Ms E on Mr Vernell’s behalf, and was of the view that there was very little to demonstrate that Mr Vernell had developed any significant degree of insight into the consequences of his behaviour for the children. Regrettably, the order for supervised time at the City B Children’s Contact Centre did not advance matters a great deal, and only one visit in fact occurred.
I have read the report that was produced in respect of that visit, and it is positive in its indications. The reason why the father did not continue to spend time with the children is given in the DCP report of August 2020, and it is also outlined in the parties’ more recent affidavit. On X’s birthday, a celebratory meal was arranged for X at a local hotel.
The mother has become involved with a person who was previously one of Mr Vernell’s friends. It is alleged that, outside the hotel on the night of X’s birthday, there was a confrontation when the father threatened the mother and her companion with a metal bar.
This occurred outside the hotel, and the children were also at the hotel. It is alleged that the father waited outside of the hotel for two hours to carry out his threats. In the view of the DCP, this behaviour was traumatising for the children and caused them to feel terror.
The father showed no regard for the safety of the children from the Department’s point of view. Later, a Departmental worker spoke with X, who was reported to be distressed and traumatised. In those circumstances, for obvious reasons, I think the Independent Children’s Lawyer did not support any further supervised time.
Needless to say, the parties themselves have different views about what did or did not happen on this occasion. From the mother’s perspective, it is indicative that Mr Vernell still has very serious anger and domestic violence issues, and at best only goes along superficially with any attempts to help him to gain insight.
It is in that context, I think, that Ms Atchison this morning, through Mr Boehm, raises the significant police charges which have, if anything, heightened her concerns.
The case returned to Court in November 2020. I should say that the passage of the case has been impacted by a number of factors. The first is that it is a City B matter, and the circuit to City B has been disrupted by the recent pandemic crisis.
So, it has been managed at a distance on the telephone, which I acknowledge is alienating and difficult for all concerned. And I mean Mr Vernell no disrespect, but he is a person who likes things, I think, in fairly cut-and-dried fashion, so he has found the delay in the case particularly frustrating.
In any event, on 26 November 2020, I was not prepared to move back to the City B Children’s Contact Centre. Ms Atchison opposed that, and it was her position that what was really needed was that there be some detailed and expert assessment of the family by a suitably qualified person.
It is difficult to get experts to go to City B at the best of times. It is very difficult in the midst of a pandemic, and it is even more difficult to get experts to that quickly. In any event, due to Ms Atchison’s great skill, and perhaps her persuasiveness, she was able to get Mr G, who is a social worker by profession, but a person who also has extensive experience in writing family reports, to visit City B and interview the parties in January of this year.
Of particular note, Mr G interviewed the older children, X and Y. What the children said is illuminating. X was about eight and a half at the time of interview. She was described as being an anxious and uncertain child. She wanted her mum to be present when she was interviewed.
Mum (Ms Casselton) was originally there, but when she left, Mr G reports that the child’s manner changed and she became confident and outgoing, and she was happy to speak with him. In this context, she laughed and said she had some news for Mr G. She said she wanted to live with her dad. When asked why, she said, “Dad is not mean to us, he loves us.”
Y was five years and 10 months when interviewed by Mr G. She told the writer that she likes living with her mother, but she said she also liked Dad, and she missed him. When asked if she was frightened of her father, Y looked puzzled and said, “No, why should I be?” The children were observed to interact with their mum in a relaxed, comfortable and familiar manner.
Z, given his tender years, wasn’t interviewed, but overall, Mr G had no concerns about the children’s interaction with their mum. Mr G, who is an affable and avuncular sort of person, interviewed each of the parties at some length, and the positions of the parties provided to him is essentially what they have maintained throughout the proceedings to date.
Ms Casselton’s view is that Mr Vernell is mentally and emotionally not safe enough to be significantly involved with the children at this stage. But she concedes that the children love their dad. She said to Mr G that Y bawls her eyes out every night because she misses her dad.
Interestingly, in light of Ms Atchison’s position this morning, Ms Casselton said that she understood that Mr Vernell may be liable to some custodial sentence because he had to front Court for some driving charges, and this was an issue I raised on 19 February, and I was told essentially that there were no such concerns.
For his part, Mr Vernell said to Mr G that he has been victimised and disadvantaged by the legal proceedings. He feels that he has been excluded from the lives of the children by Ms Casselton, who he thinks has lied to the authorities about what is – what he has done.
Again, he said to Mr G he had done everything asked of him by the Department for children protection – drug screen testing, parenting courses, the lot. So, in summary, Mr G said something with which I agree. He said the case is complex, confused and muddled.
I agree with all that. He said that DCP have been involved, and that is obviously the case. In Mr G’s view, credibility is an elusive element in the case. He took with a grain of salt Mr Vernell’s rejection of the assertion that DCP had a valid interest in the case, given that they remained a significant factor or feature in the families at the present time.
In terms of the parties’ relationship with one another, Mr G said it was chaotic and completely dysfunctional. He characterised it as dramatic, immature, abusive, violent and toxic. As such, it was impossible for him to calculate what were the emotional implications of this for the children concerned. Clearly, Mr G viewed the children as being vulnerable.
However, he conceded that X and Y miss their dad, and X wants to live with him. As a consequence, it was Mr G’s position that the relationship between the children and their father was likely to be largely intact, and that the children themselves had an emotional longing to spend time with their father.
At the same time, Mr G was concerned that there remained a risk that Ms Casselton might resume her relationship with Mr Vernell, which would trigger the involvement of DCP and result in the removal of the children from both parents. It was also Mr G’s view that the parties had at least the potential to remain in contact with one another outside of the scrutiny of DCP.
Overlying all those concerns was the fact that the maternal grandmother was boarding with Mr Vernell, which Mr G thought was potentially provocative. Mr G doubted that the parties themselves had any capacity to work together responsibly and consensually over time.
It was his view that DCP needed to remain involved in some way with the family on an ongoing basis. Against this background, Mr G recommended that Y, X and Z continue to live with their mother, but there be a graduated and incremental increase in the time they spent with their father.
He proposed that initially there be half of three consecutive Saturdays, then half of each Saturday and Sunday for four weekends, and then building to a full Saturday and a full Sunday on alternate weekends, but not to include overnight time.
The report was circulated, and it precipitated a further report from the Department which is dated 18 February 2021. It is the mother’s and the Independent Children’s Lawyer’s position that, given the complex dynamic in this case, the risk for a cycle of family violence to be reinstated given Ms Casselton’s vulnerability – and given that from their perspective, the father has not done the right thing by the Department in terms of drug screen testing – that the next logical step in the case is to attempt to return to professionally supervised time at the City B Children’s Contact Centre.
On the other hand, the father, with some reluctance, accepts Mr G’s recommendations as the first point of call. However, as an alternative, he would propose that Mr J – a person who he used to work with, and who has filed two affidavits in the proceedings – should be a lay supervisor. Mr J is a gentleman who is 53 years of age.
Mr J cares for three of his grandchildren, who are aged 15 to 10, and they apparently came into his care through the auspices of DCP. So, Mr J says he is a person who has successful vetting of the Department, and can help out Mr Vernell, particularly given, obviously, Y and X are longing to spend time with their dad.
Ms Atchison has some concerns about Mr J, and has submitted that although he is no doubt able to discharge such a role with his own grandchildren, it may be asking a lot of him to extend that role to this very complex family. The Department, in its letter, continues its view that Mr Vernell has been unable to accept accountability for his behaviour, and has not been able to meaningfully engage with the Department, and therefore he remains of concern to them. In this context, the Department advocates supervised time at the City B Children’s Contact Centre. They have formally put that position to the Court, although they are not a party to the proceedings.
On the other hand, it remains the Department’s view that Ms Casselton has made considerable progress in her efforts. Against that background, I asked the Department to provide details of what Mr Vernell had or had not done in respect of drug screen analysis, and I got that information yesterday.
The record indicates that, between 6 December 2019 and 12 November 2020, there were 19 requests for drug screen analysis. Of those, Mr Vernell attended 13. Six, he did not attend. So, he has about a 25 percent non-attendance rate. Only the first screen was positive, and that was positive for alcohol.
However, there is a skewing of the non-attendances after the involvement of court proceedings. He has attended only once, in July of 2020, immediately following the unfortunate hotel incident. So, I think I can infer from that that it is Mr Vernell’s view that, given that there are court proceedings on foot, he did not need to really do what the Department requested of him. I should say, he did attend in March and April of 2020.
In terms of the legal principles I have to apply, although the nature of the hearing at this stage is different to a final hearing where all evidence will be canvassed and cross-examination will occur, the principles to be applied are the same. In deciding whether to make any particular parenting order, I must regard the best interests of the child concerned as the paramount or most important consideration. In making that assessment, I have to consider a long list of matters set out in section 60CC of the Family Law Act 1975 (Cth). Those matters are put in two categories: two primary considerations, and a longer list of additional considerations.
The two primary considerations are as follows:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Given the objects and principles of the Act set out in section 60B, in general terms, the Court needs to give greater weight to the primary consideration, and in particular, as a result of the insertion of sections 60CC(2A), I am now directed to give greater weight to the primary consideration relating to protecting the children from harm.
In this particular case, I accept that the children concerned, particularly Y and X, do have a meaningful relationship with their dad. They clearly know him, they remember him, they love him. So – and that is the most significant aspect of the father’s case in this extremely difficult case.
On the other hand, it is also clear to me that the children have been exposed to both the physical and psychological potential to suffer harm as a result of being exposed to abuse, neglect and family violence. I am directed to give those considerations priority.
Accordingly, as I said at the outset, I have to assess the degree of risk that the father’s lack of insight and his particular propensity to engage in antisocial conduct poses for both the children and their mother, who is their undisputed primary carer.
In a case called Deiter & Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the Court must look to the degree of probability that a harmful event will occur in future, and what will be its severity to any individual – potentially any child – who will potentially affected by it.[4] Essentially, the Court is required to assess risk and put in place a proportionate response to the degree of risk involved.
[4] [2011] FamCAFC 82, [61] (Finn, Thackray and Strickland JJ).
At the same time, I cannot ignore the risk or the danger of the children being deprived of the benefits of having a meaningful relationship with one of their parents. This is an extremely difficult case.
Mr Vernell has demonstrated his frustration with the case on numerous occasions. He has vehemently asserted that he has done everything required of him, when the Department’s view is otherwise. There are issues to do with his ongoing involvement with the criminal justice system. The earlier period of supervised time was derailed because there was a very serious incident involving the children and Ms Casselton at a hotel.
In my assessment, at this stage, the degree of risk is a significant one, and although I can see that the children do have an important relationship with their father, and notwithstanding Mr G recommends it, it would imprudent of me to not pay heed to the submissions of Ms Atchison, and adopt a cautious approach.
The evidence also indicates that the children have not interacted with their father for a very significant period of time. That, in my view, behoves that there be some professional supervision. I mean Mr J no disrespect, but this is a very complicated family with many risk factors and matters to be considered.
For all those reasons, I have come to the conclusion that I should make the orders that are proposed by Ms Atchison and, at this juncture, direct that the next step is a further regime of supervised time at the City B Children’s Contact Centre.
I acknowledge that this will be frustrating for Mr Vernell, and he will feel once again that he has been mischaracterised. So, during the period of the adjournment, which will be a period of around three months until the case can be resumed, which I propose will be on 20 May 2021 at City B at 9.30 in the morning,
I will until further order direct that the children continue to live with the mother, who will have sole parental responsibility for them, and that the father have supervised time with the children at the City B Children’s Contact Centre, at times and dates as agreed between the parties.
Significantly, I will also authorise the parties and the Independent Children’s Lawyer to agree to other arrangements if that time goes well. I will make the order that there be a report after three visits, and direct that Ms Casselton continue on with her engagement with Ms C, and that Mr Vernell continue on with his engagement with Ms E.
I will direct that Mr Atchison be at liberty to provide the report to the Department. I think that has already occurred, and I will make the orders requiring the parties to exchange information regarding their addresses and informing the other of any illnesses or medical emergency affecting the children.
I will make the standard injunction regarding discussion of the proceedings, consumption of alcohol and denigration, including on social media, regarding the parties and the children, or allowing any matters to be circulated in those forums.
In addition, I will direct that the father file an affidavit within 14 days of today’s date setting out his details in respect of the matters said to have been laid against him in the Mount Gambier Magistrates’ Court.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 7 June 2021
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Procedural Fairness
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Natural Justice
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Remedies
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Jurisdiction
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Costs
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