Walsham & Darracott

Case [2021] FCCA 1533

FEDERAL CIRCUIT COURT OF AUSTRALIA

Walsham & Darracott [2021] FCCA 1533

File number(s): BRC 3104 of 2015
Judgment of: JUDGE LAPTHORN
Date of judgment: 8 July 2021
Catchwords: FAMILY LAW – parenting – consideration of long term supervision order
Legislation:

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA

Evidence Act 1995 (Cth), s 140

Cases cited:

AMS and AIF (1999) 199 CLR 160 at page 207; 24 Fam LR 756

Betros & Betros [2017] FamCAFC 90

Champness v Hanson (2009) FLC 93-407

Donaghey & Donaghey [2011] FamCA 13

Fitzpatrick & Fitzpatrick [2005] FamCA 394; (2005) FLC 93-227

George & Nichols [2016] FamCA 519

Godfrey v Sanders [2007] FamCA 102

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

Heath & Hemming (No. 2) [2011] FamCA 749

M v M [1988] FLC 91-979; B & B [1988] FLC 91-957

M v S (2007) FLC 93-313

Mazorski v Albright (2008) 37 Fam LR 518

Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375

Sigley v Evor [2011] FamCAFC 22, (2011) 44 Fam LR 439
Number of paragraphs: 82
Date of last submission/s: 24 May 2021
Date of hearing: 12, 14 April and 24 May 2021
Place: Brisbane
Solicitor for the Applicant: Aylward Game Solicitors
Counsel for the Applicant: Mr George
Solicitor for the Respondent: Richard Zande & Associates
Counsel for the Respondent: Mr Thomas
Solicitor for the Independent Children's Lawyer: Legal Aid Queensland
Counsel for the Independent Children's Lawyer: Ms Dart

ORDERS

BRC 3104 of 2015
BETWEEN:

MS WALSHAM

Applicant
AND:

MR DARRACOTT

Respondent

ORDER MADE BY:

JUDGE LAPTHORN

DATE OF ORDER:

8 JULY 2021

THE COURT ORDERS THAT:

1.That the children X born in 2008 and Y born in 2007 (the children) live with the Mother.

2.That the children spend supervised time with the Father as agreed and failing agreement as follows: 

(a)For a minimum of 4 hours supervised by Ms B at times nominated by Ms B on a fortnightly basis and at such other times as advised by Ms B. 

(b)As in Order 2(a) on or in close proximity to the following dates, (if Ms B is available to supervise), being Christmas Day, Easter Sunday, Father’s Day, the children's birthdays and the Father's birthday.  If Ms B is unavailable on any of these dates the Mother is to ensure that the children telephone the father in lieu of spending time.

3.That in the event that Ms B is no longer willing or able to provide supervision, such other supervisor as may be agreed between the parties is to conduct the supervision.

4.That in the event there is no agreement as to an alternate supervisor, the supervised time is to take place at the City C Contact Centre or such other Contact Centre as nominated by the Mother.  The costs of the Contact Centre will be borne equally between the parties.

5.That the only time the children are to spend with the Father is to be as provided for in these orders…

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Walsham & Darracott [2021] FCCA 1533
Case
[2021] FCCA 1533
Decision Date

CaseChat Overview and Summary

This case concerned Ms Walsham (the Mother) and Mr Daracott (the Father) regarding parenting orders for their two children, X (born 2008) and Y (born 2007). The dispute centred on the nature and extent of the children's time with the Father, following a history of litigation and previous consent orders. The matter came before Lapthorn J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was to determine the children's best interests in relation to their time with the Father, specifically whether that time should continue to be supervised and, if so, to what extent and under what conditions. This involved assessing the Father's capacity to self-regulate his conduct, the potential risk of harm to the children, and the benefit of maintaining a meaningful relationship between the children and both parents, as mandated by section 60CC of the *Family Law Act 1975* (Cth).

Lapthorn J found the Mother to be an honest and forthright witness, while the Father was less impressive and minimised his involvement in certain events, with his account of a sexual assault on the Mother being found untruthful. The court accepted submissions that the Father could be uncontained, verbally aggressive, intimidating, and at times physically violent, and that he did not take responsibility for his actions. Consequently, the court concluded that the risk of the children being harmed, either physically or emotionally, by the Father remained at an unacceptable level, and his proposal for unsupervised time was not in their best interests. The court applied the principles from *Betros & Betros* regarding the undesirability of permanent supervision, but found that in this specific case, indefinite supervision was warranted due to the unacceptable risk factors.

The court ordered that the children live with the Mother and spend supervised time with the Father. This supervision was to be conducted by Ms B, as previously arranged, for a minimum of four hours fortnightly, with provisions for special occasions. If Ms B was unable to supervise, an alternate supervisor was to be agreed upon, failing which, supervision was to occur at a nominated contact centre with costs shared equally. The court also made orders restraining the Father from attending the children's school and limiting communication between the parties to email for specific purposes. A notation clarified that strict supervision was not required, but the supervisor must be physically present at all times.

Orders

Orders of the court

BRC 3104 of 2015

BETWEEN:

MS WALSHAM

Applicant

AND:

MR DARRACOTT

Respondent

ORDER MADE BY:

JUDGE LAPTHORN

DATE OF ORDER:

8 JULY 2021

THE COURT ORDERS THAT:

1. That the children X born in 2008 and Y born in 2007 (the children) live with the Mother.

2. That the children spend supervised time with the Father as agreed and failing agreement as follows:

(a) For a minimum of 4 hours supervised by Ms B at times nominated by Ms B on a fortnightly basis and at such other times as advised by Ms B.

(b) As in Order 2(a) on or in close proximity to the following dates, (if Ms B is available to supervise), being Christmas Day, Easter Sunday, Father’s Day, the children's birthdays and the Father's birthday. If Ms B is unavailable on any of these dates the Mother is to ensure that the children telephone the father in lieu of spending time.

3. That in the event that Ms B is no longer willing or able to provide supervision, such other supervisor as may be agreed between the parties is to conduct the supervision.

4. That in the event there is no agreement as to an alternate supervisor, the supervised time is to take place at the City C Contact Centre or such other Contact Centre as nominated by the Mother. The costs of the Contact Centre will be borne equally between the parties.

5. That the only time the children are to spend with the Father is to be as provided for in these orders and is to be supervised.

6. That the children be liberty to phone either parent at all reasonable times.

7. That the Father be at liberty to contact the children on their own mobile numbers from time to time, noting that the children are responsible for these devices and that they may not always be charged and/or answer such devices.

8. That each party is to keep the other informed of a contact email address and advise of any change within 7 days of such change.

9. That any communication between the parties is to be way of email and is to be limited to discussing the children or to inform the other parent of any significant issue that would impact their ability to care for the children pursuant to these orders.

10. That the Father is hereby restrained from attending within 400m of the children's school.

11. That in the event of childhood illness or injury requiring medical attention or emergency the parent with whom the child or children are with, will contact the other parent forthwith to inform them.

NOTATION:

A. For the purposes of the Father’s time with the children, strict supervision is not necessary in that the supervisor of the children's time with the Father does not have to be observable and within ear shot at all times during the contact. However, the supervisor must be physically present at all times when contact is occurring.

B. These orders are to be read alongside the orders made by consent on 12 April 2021.

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.

Background

Background to the litigation

On the first day of the trial I made orders by consent that provided for the mother to have sole parental responsibility for the children; that the mother not relocate the children’s residence further than a 30 minute drive from the father’s current residence; that the father be permitted to take the children to a particular church when they are spending time with him; and a number of other ancillary orders. Therefore the primary issue left for determination is the nature and extent of the children’s time with the father.BACKGROUND The mother who is 48 years of age is a public servant and lives at an undisclosed address in the City C area. She has re-partnered with Mr D who is a tradesman. He is home one week in every four. The father lives in Suburb E and is 46. He is on a disability support pension. He receives dialysis treatment for Kidney Nephropathy and has Type 1 Diabetes. He told the court he also has Post Traumatic Stress Disorder (PTSD), Depression and issues with his eyesight. He has not re-partnered. The parties commenced living together in a relationship in around 2003 and separated in March 2015. They have two children together: Y who was born in 2007 and X who was born in 2008. They have both been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder (ASD). After separation the mother moved to Melbourne with the children. In August 2015, following an application by the father, the mother was ordered to return the children to Queensland. She complied with that order. In February 2016, final orders were made, by consent, which provided for the children to live with the mother and spend time with the father on alternate weekends, from Thursday after school until Monday after school, as well as time during school holidays and on special occasions. The mother brought fresh proceedings on 18 July 2018 after becoming concerned that the children were exposed to family violence in the father’s household and had themselves been harmed by him. She was also concerned that the father was not taking the children to school on the days they were in his care. On 31 August 2018, orders were made suspending the 2016 orders and, in October 2018, orders were made providing for the children to have time with the father supervised by a family member. This arrangement has remained in place with the children living with their mother and spending time with the father supervised by his cousin, Ms B, for at least four hours each fortnight although sometimes more often.MATERIAL RELIED ON The mother relied on:(a)Her Amended Initiating Application filed 9 April 2021;(b)Her Notice of Risk filed 18 July 2018;(c)Her affidavit filed 12 March 2021; and (d)The affidavit of Mr D filed 9 April 2021 The father relied on:(a)His Response filed 12 October 2018;(b)His Notice of Risk filed 12 October 2018; and (c)His affidavit filed 12 March 2021. The ICL relied on:(a)The Affidavits of family report writers:(i)Mr F filed 4 January 2016, and(ii)Mr G filed 10 March 2021.

Evidence

Evidence Before The Court

A number of documents were tendered into evidence.[1][1] Exhibit M1 Email dated 9 April 2021 from Ms BTHE EVIDENCE In determining this matter I have had regard to all of the written evidence referred to above along with the oral evidence given. In order to avoid repetition and limit the length of this judgment, apart from setting an informative background, I will not repeat the evidence save that which is necessary for me to determine disputed issues and carry out my assessments in accordance with the legislative framework. Therefore throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[2] [2] Section 140 Evidence Act 1995 In assessing the credit of the witnesses, I found the mother to be an honest and forthright witness. She made appropriate concessions but was otherwise consistent in her evidence. The father was less impressive although for the most part he clearly aimed to be honest. However, he minimised his involvement in certain events, such that I did not consider him to be a good historian. I also found his version of events in relation to a sexual assault on the mother to be untruthful. Overall where their evidence differed I preferred the evidence of the mother. A significant issue before the court related to the ability of the father to self-regulate his conduct both in public and at home. The mother was concerned that the father had exposed the children to poor impulse control and had acted out on them both physically and emotionally. It is therefore necessary to look at the evidence to determine the extent of any inappropriate conduct on his part and what if any impact it has had on the children. I will, at this point, focus that assessment on events that have occurred since the making of the 2016 Orders although I will take into account the history of family violence when I consider the risk of harm issues later in this judgment. In August 2016 the mother made a statement to the police that the father had become upset and angry at Y’s school and threw things from Y’s schoolbag at an administration person who ran away from him. She made a further statement in September 2016 after the father got into a heated argument with the mother’s neighbour. During the argument the father produced a metal bar from his car and also had a knife. The police were involved. In October 2016 the father was charged with public nuisance after an incident at the child’s school with another parent. The police records reveal that on 3 November 2016 the father attended at the children’s school to collect the children early but was seen walking through the school yelling obscenities. He is reported to have had a physical altercation with a groundsman and had broken a lock on the school gate. At some point soon after the father received a notice from the school banning him from attending in future.

Decision

Reasons for decision

Although the children have been able to spend time with their father supervised by Ms B and there is no evidence to suggest that that cannot continue, if circumstances arise whereby she needs to withdraw her services the parties will need a fall-back position. The ICL’s proposal for the time to move to a contact centre if the parties are unable to agree on an alternate supervisor should reduce the prospect of further proceedings. The father’s counsel argued to the contrary. It was the father’s case that to move to a contact centre would necessarily reduce the children’s time with him. I accept that is a real possibility. However that needs to weighed up with the aim of limiting further proceedings. The parties have been litigating since 2015 and it needs to stop.CONCLUSION I was invited by the ICL to find that the father is at times quite uncontained, will be verbally aggressive and intimidating and at times physically violent to those he perceives to be in his way or not doing as he would like. It was submitted that he does not take responsibility for his actions and blames others. From the evidence referred to above I accept those submissions and find accordingly. When I take into account all of the considerations I have addressed above, I have come to the conclusion that the children’s time with the father needs to remain supervised. I reject the submissions made on the father’s behalf that despite the history of his conduct he does not pose an unacceptable risk of harm to the children. For this reason his proposal for a substantial and significant time order is not in the children’s best interests. The risk of these children being harmed, either physically or emotionally, by the father remains at an unacceptable level. It is not possible to predict the future in regards to the father’s ability to avoid periods of dysregulation as well as the children’s ability to cope with being exposed to his conduct during such periods. It is important to note here however that I do not consider it necessary for the supervision to be of an intensive or intrusive nature, at least whilst Ms B is doing it. This appeared to be the understanding of the parties as they have been able to arrange time in excess of that which has been ordered including overnight time whilst Ms B has been present in the father’s home. A notation to the orders to reflect this would be appropriate. The orders I propose to make provide for indefinite supervision notwithstanding the general undesirability of such long term arrangements. In this case however I am satisfied that a no time order would not be in the children’s best interests given they have, and want to continue to have, a relationship with their father and the risk factors weigh heavily against any unsupervised arrangement. To make a no time order is likely to have adverse consequences for the children’s emotional wellbeing. Given the children have a good relationship with Ms B and the supervised time is not to be intrusive I am satisfied that any long term negative impacts on the children will be minimised.

Ratio Decidendi

Legal Principle Established

In Betros & Betros[13] the Full Court said:[13] It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted (see Slater & Light (2013) 48 Fam LR 573 at 583-584; Champness & Hanson (2009) FLC 93-407 at [209]-[215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]-[41]; B and B (1993) FLC 92-357 at [79,780]). Consideration should usually be given to whether orders can be created to avoid the permanence of the supervision or, if that is not practicable in the circumstances of the case, whether the orders for permanent supervision are instead best made unconditionally, leaving the supervised party to decide if and when he or she might bring fresh proceedings to vary the orders upon proof of changed circumstances, in the manner envisaged by Rice and Asplund (1979) FLC 90-725, as s 65D(2) of the Act ordinarily allows (see Gorman & Huffman and Anor [2016] FamCAFC 174). [13] [2017] FamCAFC 90 per Thackray, Murphy and Austin JJ.DETERMINING THE BEST INTERESTS OF THE CHILDREN - THE S.60CC CONSIDERATIONS The court is required to determine a child's best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors and address the relevant ones below. THE CHILD'S RELATIONSHIPS[14] [14] Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents. The evidence suggests that the children have a close and loving relationship with their mother. Although the children have some concerns about their father’s conduct they also have a relationship with him that they want to continue. The father gave evidence of him being their primary carer during the relationship. The mother disputed this saying that although she worked full time she was the one left to care for the children. They were placed in professional care when she was at work. Although I have generally accepted the mother’s evidence in these proceedings I am satisfied that she has attempted to minimise the father’s involvement in the children’s care during the relationship. I am satisfied that at least up until separation both parties were involved in the care of the children with assistance from others. This level of care by both of them helped establish the current relationships each child has with the parties. The court is required to consider the benefit to the children in having a meaningful relationship with both their parents. The father claimed the mother’s attitude towards him and her insistence that any time be supervised has been an attempt at minimising his role in the children’s lives. He considers her attempts as a form of alienation of them from him. It was his case that in order for them to have a meaningful relationship with him, the amount of time needs to be increased and the burden of supervision lifted. He argued that unsupervised time including overnight time, weekends, midweek time and holiday time will foster a meaningful relationship.