Walsham & Darracott
[2021] FCCA 1533
•8 July 2021
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 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.
IT IS NOTED that publication of this judgment under the pseudonym Walsham & Darracott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LAPTHORN
INTRODUCTION
I am asked to make parenting orders in relation to two children: 12 year old X and 13 year old Y. Although final parenting orders were made by consent on 11 February 2016 (2016 Orders), the children’s mother, Ms Walsham, has asked the court to vary the orders. The 2016 Orders provided for the children to live primarily with the mother and spend time with the father from after school Thursday to before school Monday each alternate week and for half school holidays. The parents were to have equal shared parental responsibility.
The mother has asked the court to order that she have sole parental responsibility and for the father to spend only supervised time with the children. At the hearing, the father, Mr Darracott, indicated he would be seeking orders for the children to live with the mother and spend time with him on alternate weekends and for block periods in the school holidays. His time has been supervised since interim orders were made in August 2018. Currently that time is for four hours on one occasion each fortnight. The father’s cousin, Ms B, provides the supervision.
The children were represented in these proceedings and the Independent Children’s Lawyer (ICL) proposed that the father’s time continue to be supervised.
Throughout these reasons I will refer to Ms Walsham as the mother and Mr Darracott as the father. X and Y will be referred to collectively as the children. I mean no disrespect in doing so.
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.
A number of documents were tendered into evidence.[1]
[1] Exhibit M1 Email dated 9 April 2021 from Ms B
THE 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.
The mother obtained a temporary protection order against the father in November 2016 naming her and the children as the protected persons.
Notwithstanding the banning notice, the Father attended the school on 1 December 2016 and was ushered off the school premises and warned a further breach would result in the police being informed. Four days later the Father again attended the school and was charged with being at a State Educational Institution without lawful authority.
On 2 March 2017 a Domestic Violence Order (DVO) was made against the father naming the mother as the aggrieved with the usual mandatory conditions and two additional conditions prohibiting the father from contacting the mother unless for ‘child custody reasons’.
Whilst banned the father again attended the school on 23 March 2017 where he gave a letter to the staff for the principal, he yelled and was aggressive to administrative staff and the groundsman. The police notes record that the father smelt of alcohol. He was escorted off the school grounds. He sat in his car and proceeded to shout to the staff in a derogatory fashion. He was charged with public nuisance.
During April 2017 the father made phone calls to the school accusing staff of setting Y up to fail, in the process he was said to be disparaging of the principal.
After a referral from his treating general practitioner, the father attended at the J Centre in City C on 29 May and 5 June 2017 where he received an intake assessment from Ms K. Ms K produced a report of her assessment and requested the City C Acute Care team contact the father. In that report she observed that the father appeared to have anti-social personality traits, extensive history with the police, significant thought disorder and flight of ideas with no insight into his mental health. He presented as defensive when considering his own mental health and showed aggression at times during the appointment. When asked about his presentation and low mood he told Ms K that he was more likely to ‘homicide before suicide’, though with no direct threat to specific individuals.
On 3 June 2017 the police received a report that the father had been yelling at the children at a sports club in Suburb L. He had been yelling ‘Fuck this fuck that’ at the children and they appeared distressed. The informant was concerned for the safety of the children and tried to phone the local police station but was unable to get through. The informant considered that the father was under the influence of liquor or drugs due to slurred speech and was holding a can of unknown beverage wrapped in toilet paper. He saw the father physically carry the children to his vehicle whilst still yelling and abusing the children. It appears that no action was taken by the police.
On 22 June 2017 the Father phoned a social worker at Mental Health Services seeking support. During the call he became upset and was quite vocal with raised volume of speech. The social worker recorded that the father presented with poor emotional regulation and coping with distress. He appeared to blame others, particularly police and women, rather than take responsibility for his own actions. She also recorded that he had anti-social personality traits. He was referred to Dads in Distress and to Open Minds.
An incident occurred on 1 July 2017 at a McDonald’s restaurant car park where the parties were to affect a changeover of the children. The police notes indicate that the mother had been waiting inside the restaurant for the father to arrive. She had witnesses with her but they remained inside when she went out to collect the children from the father. The mother told the police that the father aggressively said to her ‘where are your fucking thugs, why didn’t you bring your thugs today?’ He then said to her ‘I’m going to get you where it hurts, in the back pocket’. When the mother was loading the children into her car the father kept opening her car door preventing her from leaving. When she did manage to leave she noticed the father following her in his car in a tailgating fashion. He then attempted to cut her off at a roundabout which caused her to take evasive action. She parked in another street but the father pulled up beside her and began yelling at her through his wound down window. One of the mother’s witnesses who had seen all of this pulled up and approached the father’s car but on seeing him approach, the father drove away only to return soon after on foot and minus his shirt. He ran off when the mother’s witness walked towards him. The father was charged with a breach of the DVO.
The father phoned Mental Health Services on 18 July 2017 wanting to make an appointment to see someone. He had missed his previous appointment as he overslept. The notes from the service record that he said he was getting more depressed as the mother of his children had taken out a DVO and he was banned from the school for a year because he got into a fight with the gardener and his ex-partner's neighbour. He said other people had complained to the police about his behaviour. He said his sleep was poor and that his ex-partner was now siding with the mother of his children. He denied any thoughts of self-harm, suicide or harm to others.
On 28 August 2017 Mental Health Services received a call from a security officer at the M Centre, a mental health facility, advising that he was extremely concerned for the father’s safety as he was extremely angry, upset and driving erratically on the road. When the Acute Care Team (ACT) phoned the father, he was extremely belligerent on the phone and said that no one had offered him help in the last twelve months despite him being to multiple agencies. The person from ACT trying to help the father had difficulty ascertaining the issues affecting him due to his non-stop talking and at times yelling. Although he denied having any self-harming thoughts he said that he had thoughts to harm the mother and her new partner but denied that he had any intention to carry it out because ‘she is the mother of my children and couldn’t do that to my children’. He reported previously using marijuana daily but had ceased do so some 16 weeks earlier.
A member of the public contacted police on 16 September 2017 in relation to an incident at the N Shopping Centre at around 6pm. The person said they had pulled up in the car park next to a vehicle and observed the father in his car hitting the children with an open hand in a ‘violent aggressive manner’. The father was said to be very angry and yelling at the children. People nearby were coming out of the shops to see what the noise was about. One of the children was seen cowering down in his seat after he was hit by the father. The father left the children in the car whilst he went inside the shopping centre. When he returned he told the children to get out of the vehicle. He then sat in the vehicle on his own while the children sat by themselves outside the shopping centre. He continued to yell and swear at the children. He got out of his car, went back to the children and kept yelling at them before the three of them went into the shopping centre. After about five minutes they returned. The father continued to yell at the children. He could be heard saying to the children: ‘your mum got me arrested’; your school principal and the other principal were in my face’; ‘you make life difficult for me’; and ‘you’re no help’. He told the children not to cry. The father was then seen to drive off.
The police conducted a welfare check at the father’s home on 19 September. They recorded no concerns as to the welfare of the children. The police however decided to interview the children on 25 September. The police record notes:
… Y stated that one day Dad wasn’t being nice, yelling for 3 hours, scared us and said was going to leave us at church. Y stated that X and him [sic] were crying. Y stated that they were coming back from the Region O beach and his Dad got lost. Y stated that his Dad stopped of [sic] near a church place and the people there thought his Dad was drunk. Y stated that he wasn’t drunk as he didn’t have any money for drugs then (clarified drugs as being alcohol and smokes). Y stated that they got lost because his Dad wasn’t looking, and that his blood sugar was low and he has diabetes. Y stated that his Dad was yelling a lot and saying God dam [sic] it, if it wasn’t for you getting dinner lost my blood sugar level would be fine, etc. Y stated that he said to one person call 000 to one of the church people there. Y stated that his Dad kept telling him he was going to leave them, however he didn’t. Y stated that his Dad smacked them whilst he was angry. Y stated that his Dad pushed X over at his house and that he didn’t see it but saw her crying. Y stated that the smack was an open hand smack and hurt a lot.
The police also interviewed X and recorded:
… X stated that he Dad scares them. X stated that her Dad pushed her over and was yelling at her because he was made that she broke his bike helmet. X stated that he pushed her by the shoulders and she moved backwards but not over. X stated that their Dad took them to the Region O and her Dad was trying to get dinner and lost the chook. X sated [sic] that her Dad kept yelling at them. X stated when they parked near the church her Dad kept pretending he was going to leave them. She stated that her Dad said I’m just going to leave you I can’t look after y ou [sic], if I can’t look after myself, I can’t look after you anymore, nice church go, go. X stated that she was crying and begging her Dad not to go. X stated that she was talking to people and told them to call the cops and stated that she went in someone elses [sic] car and her Dad told her to get out straight away.
Whilst the children’s understanding of time and place may not have been accurate, I am satisfied the children experienced first-hand the father’s dysregulated behaviour. The police came to the conclusion that there had only been one incident which occurred at the shopping centre and that the children were likely confused as to where it occurred. I cannot be certain that conclusion is correct, but assuming it is, it remains a very concerning incident as to the father’s inappropriate behaviour towards the children.
The father made a number of phone calls to the children’s school in December 2017 as well as in January and February 2018. During these calls he would ask for the ban on his attendance at the school to be lifted and would accuse the school of ruining his life.
In March 2018 he was charged with a breach of DVO as a result of him having entered a woman’s flat where an argument ensued. During this argument the father pushed the woman to the ground causing a cut to her forearm. A couch was overturned during this argument. Although the police records of this incident do not identify the victim during cross-examination of the father it became clear that he was subject to a DVO with his former partner, Ms P. The mother gave evidence of the children having told her they had seen their father and Ms P arguing.
At around this time the father was also charged with public nuisance and animal cruelty and was made subject to a Peace and Good Behaviour Order as a result of a confrontation with a neighbour. In May of that year the police received a complaint that the father had harassed a driver in another car.
The children’s school again recorded the father phoning the school making complaints about the mother and the children’s development during June 2018.
After the parties attended the court on 1 August 2018 the police were called as the father was reported to be abusing people on the footpath and he was seen walking in and out of traffic. He told the police he was frustrated from the court hearing, was sick of police harassment and unfair treatment. He was given a direction to ‘Move On’.
The ban imposed by the Education Department on the father’s attendance at the school expired in June 2018 but the father again came under scrutiny on 10 August 2018 after a volunteer or staff member reported the father making her feel unsafe after an incident at the breakfast club at the school.
The parties attended upon a family consultant on 17 August 2018 for the purposes of a Child Inclusive Conference. As a result of an incident, which the family consultant described as the father being intimidating and threatening towards the mother, security was called.
Following the interviews the father followed the mother, her partner and the children to the Q Railway Station and boarded the same train as them. Despite the DVO, the father sat in the same seats as the children and played recordings to them. The mother and her partner decided they and the children would break their journey and get off at the next station. The father followed them. He later attended at another station and made a complaint of assault against the mother's partner for throwing a can at him. The father was charged with a breach of the DVO.
Three days later on 20 August 2018 the father approached the mother when she was at the school to collect the children. She called the police. Despite knowing about the DVO and that the mother had called the police the father continued to approach the mother and the children. He was charged yet again with a breach of the DVO.
The police were again called to an incident involving the father on 14 October 2018. This occurred at a McDonald’s Restaurant. The supervisor at the time, the father’s sister, sought help from a stranger when the father took the children outside despite her telling him not to. The father and the stranger scuffled. The children were upset by this incident.
More recently in September 2020 the father asked his now supervisor, Ms B, to take him to R Store on the way to collect the children but then refused to get out of the car because he wanted her to take him to where the children lived. She refused. Earlier this year in January the father got into Ms B’s car when she was about to take the children home. He refused to get out of the car saying he wanted to know where the children were living. She was forced to wait it out until the father gave up and left the vehicle.
When I consider all that evidence there can be no doubt, and I find, that the father experiences poor emotional regulation. He is unable, at times, to control his reactions to events leading to him acting aggressively towards others and has at times physically harmed his children. The children have also been exposed to his conduct towards others potentially causing them emotional harm and adversely impacting their wellbeing and development.
The father’s conduct also needs to be seen in the context of the history of family violence within the parties’ relationship. The mother gave evidence that during their relationship the father would punch her, kick her, spit on her and throw objects at her. She gave as some examples giving her a bleeding nose and black eye after punching her in the face when she asked to use a mirror to get ready for work. She gave evidence that on one occasion in 2005 she told the father that she did not want to engage in sexual intercourse but he responded by biting her on her thigh so hard that she has been left with permanent scaring. He then proceeded to hold her down and vaginally rape her with the bristle end of a hair brush. The father denied this saying the use of the hair brush was part of a consensual sexual act. I found the mother’s evidence very compelling and the father’s version unreliable. I therefore preferred and accept her evidence.
The mother also gave evidence of the father pulling on the handbrake whilst she was driving. She said that she has had to replace six windscreens after the father had punched them. The mother has a bent finger as a result of the father jerking a seat belt whilst her finger was caught in it. She said that in 2006 the father had knocked her to the floor causing a nose bleed. The mother described the father laughing at her and saying that he would wash it off. He then proceeded to put his foot on her head and urinated on her. I accept her evidence in this regard. Just prior to separation in 2015 the mother was sitting in her car across the road from the family home when the father ran to her and started choking her. To escape she put the car into drive. This incident was the catalyst for her move to Melbourne with the children.
Y told the family report writer that when the parties lived together they used to “hit a lot…Dad was doing most of the hitting.” X told Mr G that her parents used to “fight all night”. In 2009 the children were removed from the parents by the child welfare authority as a result of family violence in the home.
I find that the father was violent to the mother during their relationship and this occurred at times in front of the children. The father’s denials and minimisations of his conduct continues to this day. When that history is seen in the context of his more recent conduct to members of the public, the mother, and the children, I am satisfied that he is unable to control his conduct and will from time to time act in an aggressive and violent manner.
LEGAL PRINCIPLES
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held:[5]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[3] Section 60B
[4] Section 60CA
[5] (1999) 199 CLR 160 at page 207; 24 Fam LR 756 at page 792
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children's lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[6] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child's best interests the principles are:
(a)Children have a right to know and be cared for by both their parents;
(b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
(c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)Parents should agree about the future parenting of their children; and
(e)Children have a right to enjoy their culture.
[6] Section 60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[7] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child's best interests for it to apply.[9] The presumption does not apply in this case given the history of family violence. The father, to his credit, agreed at the commencement of the hearing to an order for the mother to have sole parental responsibility.
[7] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[8] Section 61DA
[9] Section 61DA(2) and (4)
Given that concession, I am not required to apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. The father however is seeking an order that would fall within the definition of substantial and significant time with him. I will therefore consider if such an order is in the children’s best interests and reasonably practicable.
Both the mother and the ICL have asked me to find that there would be an unacceptable risk of harm to these children if they were to spend unsupervised time with their father. ‘Unacceptable Risk’ has been considered by a number of authorities.[10] In determining the case before me it will be necessary for me to assess whether an order for time or communication with the father and the children would expose the children to an unacceptable risk of harm. That harm was said to be both physical and emotional by way of the father’s conduct and violence to them and to others. In considering that issue I have also been asked to consider making a long term supervision order for the children. In Moose & Moose[11] Boland J commented on the general undesirability of long term supervised contact and expressed concern about orders not providing for their own review. In Fitzpatrick & Fitzpatrick[12] May J opined that in cases where the court is considering indefinite supervision it is also necessary to consider the effect on the children’s emotional well-being under such an arrangement.
[10] M v M [1988] FLC 91-979; B & B [1988] FLC 91-957; Donaghey & Donaghey [2011] FamCA 13; George & Nichols [2016] FamCA 519
[11] [2008] FamCAFC 108; (2008) FLC 93-375
[12] [2005] FamCA 394; (2005) FLC 93-227
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.
In Mazorski v Albright[15] Brown J said:
[26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.
The Full Court in Sigley v Evor[16] approved this approach. The Full Court also affirmed the jurisprudence that the legislation requires the court to promote a meaningful relationship not an optimal one.[17] The Full Court also went on to hold that "meaningful relationship" is a legal construct, not a psychological one and therefore it is for the court, not an expert, to determine what constitutes a meaningful relationship.[18]
[15] (2008) 37 Fam LR 518 at 526 [26]
[16] [2011] FamCAFC 22, (2011) 44 Fam LR 439
[17] See also M v S (2007) FLC 93-313; Godfrey v Sanders [2007] FamCA 102; and Champness v Hanson (2009) FLC 93-407
[18] See also Heath & Hemming (No. 2) [2011] FamCA 749
In adopting that approach, I am satisfied that in order for the children to have a meaningful relationship with their father their time needs to be consistent and free of the stressors experienced by them when they were having unsupervised time with him. Whilst I will consider the risk of harm issues later in this judgment, I am satisfied that despite the limited amounts of time spent with the father, the children have maintained their relationship with him in a positive manner because the time has been supervised by Ms B. This has also been enhanced by the mother’s and Ms B’s flexibility in enabling more periods of time outside the time provided for in the operative orders including some overnight time. I accept this falls far short of the time sought by the father but for the reasons that will become clear, without the option of supervision, the court would need to weigh up whether a no-time order should be made.
The father’s complaint that the mother has been alienating the children from him is without any merit. I found the mother to be supportive of the children having a relationship with him, despite the history of family violence. She has been flexible in the times spent and has agreed to more time than the current orders provide.
The family report writer considered that the children were fond of the father and that X in particular wanted to spend time with him. There was no doubt in the report writer’s mind that the father loved his children. I share that view. In giving his evidence it became clear that he desperately wants to be a part of their lives and loves them dearly. The report writer considered it beneficial for the children to continue with a relationship with the father. Ultimately that is a matter for the court to determine and I am so satisfied provided they can be shielded from the father’s dysregulated conduct and incidents of violence.
RISK OF HARM[19]
[19] Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
From the evidence outlined earlier in this judgment is clear that these children have been exposed to the father being violent to their mother and his former partner, Ms P. They have also experienced his physical outbursts in public with the police being informed that he has hit them repeatedly in the car and that Y has been seen cowering away from his father. They have also witnessed the father being aggressive to others in public.
Both the mother and the ICL argued that the children will be at an unacceptable risk of physical and/or emotional harm if they spend time with their father unsupervised. I accept that submission. Although the children are in their early teenage years, given their special needs, I consider them to be vulnerable. They have both been diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. I am not satisfied they are in a position to self-protect at this stage in their lives. I acknowledge the mother’s concession in cross-examination that there had been many times when the children had spent time with the father without harm. She remains fearful however that unless their time is supervised there will be occasions when the father’s conduct will be harmful to the children. Having regard to the history of the father’s conduct I am satisfied that there will be occasions in the future when the father is unable to manage his responses to incidences and will become dysregulated in his conduct. When this occurs the children are at risk of harm.
Although the father has at times contacted Mental Health Services there was no evidence before the court as to his current mental health. Given the potential for the father to act out in an aggressive and sometimes violent manner there is an unacceptable risk that he will do so in the presence of or indeed to the children such that they would be exposed to both physical and emotional harm. The supervision that has been provided to date has been largely free of this, although the children were exposed to the father’s aggression to a member of the public at a McDonalds prior to the current supervisor taking over. Fortunately, despite at times challenging Ms B, the father respects her and is grateful of her assistance in ensuring he does get to spend time with the children. The mother is also grateful for the help provided by Ms B, with whom she has a lot of confidence. I am therefore satisfied that the risk of harm issues can be managed by way of the current supervision continuing. Under the father’s proposal the unacceptable risk of harm could not be managed. Whilst I recognise the father would not intentionally harm the children I am not satisfied, given the history, he would be able to avoid periods of dysregulation which would in turn lead to the risk of harm issues supervision is designed to prevent.
Before leaving this topic, it is important to note that in January 2018, the mother whilst arguing with her current partner threatened to kill herself using a knife whilst the children were in the home. The police were called to this incident. Clearly this is a concern as to the mother’s ability to ensure the children are not put at risk of harm. The father, through his counsel, conceded that although this was of concern there was no unacceptable risk of harm for the children living in the mother’s household when the court considers all of the evidence. I share that view.
THE CHILDREN'S VIEWS[20]
[20] Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
I am satisfied, given the observations of the family report writer, the children want to spend time with their father. This was particularly the case for X who said she wouldn’t mind seeing her father a bit more often. Y was okay with the current arrangements. Whilst they may be less mature than other 13 and 12 year olds as a consequence of their special needs, I am satisfied that it is appropriate to give weight to their views.
PRACTICAL DIFFICULTIES[21]
[21] Section 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There is no practical difficulty in the children spending time with the father from the perspective of the parties’ geographical locations. Although the mother’s address has not been disclosed, the children have been able to spend time with their father on a regular basis. The mother consented to an order on the first day of the hearing preventing her from moving more than a 30 minute drive from the father’s address. Therefore this should not become an issue in the future.
The parties have been fortunate that the father’s cousin, Ms B, has graciously given of her time to enable the children to spend supervised time with him. The parents have been flexible in arranging the time to fit in with her own family and work commitments. There was nothing in the evidence to suggest this could not continue. Both parents described her assistance as a “God Send.”
PARENTAL CAPACITY AND RESPONSIBILITY[22]
[22] Section 60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
The difficulties the father has experienced with his mental health and dysregulation have, at times, compromised his parental capacity with significant consequences for the children. This is unlikely to change in the foreseeable future and therefore the children’s best interests would best be met by a conservative approach to their spending time arrangements.
Both parents have been intercepted by the police for driving under the influence of alcohol when the children have been with them. This is an example of them not acting with appropriate parental responsibility. Reprehensible as it may be, I am not satisfied either parent has made this a habit and that each of them are cognisant of the dangers of doing so. I do not consider it to be an ongoing risk in either household.
The children are well aware of the conflict between the parents and neither parent has shielded them from their views of the other. In cross-examination the mother conceded that she has been critical of the father and that she has argued with him over the phone whilst the children have been in the house. She maintained however that she has done this whilst in another room to the children. Whilst no doubt the mother was aiming to avoid the children hearing her conversations with the father, I am satisfied the children have been exposed to the parental conflict in the mother’s home as well as the father’s home. Notwithstanding that finding, I was pleased the parties entered into consent orders on the first day of the hearing which included a non-denigration order whereby they agreed to actively promote the children’s relationship with the other parent; to speak respectfully of that parent; respect the privacy of the other parent by not questioning the children about the personal life of the other parent; and not denigrate the other parent in the presence or hearing of the children or on social media. I have confidence the mother will abide by this order. If the father becomes dysregulated he might not be able to refrain from being critical of the mother to the children but I am satisfied that apart from these incidences he too will endeavour to abide by the order.
LIMITING FURTHER PROCEEDINGS[23]
[23] Section 60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The family report writer recommended that provision be made for the eventual progression to unsupervised time at a time agreed to by the parents. Given the level of conflict between the parties is high it is unlikely they will reach agreement as to when this should occur. The ICL did not support the making of such an order. In cross-examination the mother conceded there will come a time but she was unable to guess when that would be particularly in light of the children’s special needs. I respectfully agree with her opinion in that regard. Undesirable as an indefinite supervision order may be, in the circumstances of this case it is difficult to make provision for any future transition. Much will depend on whether the father has been able to avoid incidences of inappropriate conduct for a significant period of time and whether the children have been able to develop coping skills to self-protect if the father was to become dysregulated. For these reasons I will not make any provision for transition out of supervision.
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.
The orders proposed by the ICL aim to achieve the right balance between ensuring the children continue to have a meaningful relationship with the father whilst being protected from the risks associated with the father’s conduct. The mother largely supported the ICL’s proposal save she disagreed with the requirement to disclose a contact address or to undertake a Parenting Orders Programme. She also argued that in making provision for a contact centre as a fall-back arrangement for the children’s time with the father, the court should order the father to pay all of the costs associated with the supervised time.
In relation to the mother’s opposition to disclosing a contact address, in light of the history of family violence, the father’s attempts to find out the mother’s address at least twice with Ms B and Y’s comments to his mother that his father tricked him into giving him the street address in February this year I am satisfied it would not be appropriate to make such an order. It may however be necessary for the father to be able to get a message to the mother at some time in the future. I propose to make an order that would provide for each party to disclose a contact email address but limit the use to discussing the children or to inform the other parent of any significant issues that would impact their ability to care for the children pursuant to the court’s orders. For example if the father’s health deteriorates and is unable to see the children in his home he may need to contact the mother and Ms B to make other arrangements. The parties will of course be bound by the non-denigration orders in doing so.
Both parties were ordered to undertake a Parenting Orders Programme in the 2016 Orders. The ICL proposes they each undertake it again. The mother does not want to be bound by such an order. I am not satisfied such a programme will assist these parties at this stage in their lives. They do not co-parent and given the history of violence are unlikely to do so in the future. Despite the history of denigration perpetrated by both parties I will not make such an order.
The ICL proposed that in the event the parties had to move the supervision to a contact centre each party should bear the costs of that arrangement equally. The mother argued that the father should bear all of those costs. The father is currently on a disability support pension and this is unlikely to change. Therefore he would have difficulty contributing in any meaningful way towards the cost. The mother works as a public servant and receives very little, if any, by way of child support from the father. She is therefore left to carry the financial costs of raising the children. Despite merit in the mother’s argument I accept the submissions from the ICL that it is important for the children to continue to spend time with their father in the future and if the costs are shared lengthier periods may be able to be facilitated.
The ICL sought an order restraining the father from going within 400 metres of the children’s school. The father previously volunteered at the children’s primary school and has wanted to be involved with their education. Regrettably though, his conduct at their previous school led to him being banned from the school for more than a year. Both children have had behavioural issues at school in the past and have had periods of suspension. They seemed to have settled well into their high school with neither being suspended in the last 18 months. During cross-examination the father accepted that a lack of conflict may have contributed to X's improvement at her new school. Ordinarily, children benefit from having their parents involved in their schooling but in this case there is a risk that the father will experience dysregulated episodes at school or become aggressive with staff if he is not satisfied with the treatment of the children. The mother should also be free to attend the school without the risk of encountering the father. I am satisfied such an order is in the best interests of the children.
For these reasons I will make the orders set out at the commencement of this judgment.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lapthorn. Associate:
Dated: 8 July 2021
Exhibit M2 Letter dated 17 November 2020 from Dr H (In relation to Y)
Exhibit M3 Letter dated 23 November 2020 from Dr H Exhibit M3 (In relation to X)
Exhibit ICL 1 ICL Tender Bundle
Exhibit ICL 2 Family Report of Mr F dated 4 January 2016
Exhibit F1 QPS Incident August 2018
Exhibit ICL 3 OneSchool document student protection report for X
Exhibit ICL 4 OneSchool document student protection report for Y
Exhibit ICL 5 Child Inclusive Conference Memorandum to Court dated 17 August 2018
Aide Memoir ICL Chronology
Exhibit F2 QPS Solicitors Office Report dated 4 January 2018
Exhibit M4 Application for Family Violence Protection Order dated 26 March 2021
Exhibit ICL 6 ICL minute of order sought
Section 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).
Section 60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
Section 60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
Section 60CC(3)(j): Any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.
S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.
Section 60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
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