WALTERS & SNOW

[2015] FamCA 1022

FAMILY COURT OF AUSTRALIA

WALTERS & SNOW [2015] FamCA 1022

FAMILY LAW – CHILDREN – sole parental responsibility – children to live with mother – the father is to spend no time with the children – the father is restrained from contacting the children directly or indirectly – where the relationship was characterised by severe family violence – where no person is willing to supervise the father with the children – where the father is an unacceptable risk.

Family Law Act 1975 (Cth) s 4 s 4A s 60B s CA s 60CC s 61DA s 61DAA s 61 DAC
Evidence Act 1999 (Cth) s 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
Harridge & Harridge [2010] FamCA 445
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768
Re Andrew (1996) FLC 92-692
Blinko & Blinko [2015] FamCAFC 146
Slater & Light (2013) FamLR 573
Moose & Moose (2008) FLC 93-375

B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569

APPLICANT: Ms Walters

RESPONDENT: Mr Snow

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 85 of 2013

DATE DELIVERED: 20 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 4 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lawrence

SOLICITORS FOR THE APPLICANT: Cuthbertson & Co Lawyers

THE RESPONDENT: No appearance

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Susan Gray

Orders

1. All previous parenting orders are forthwith discharged.

2. Ms Walters (“the mother”) have sole parental responsibility for Y born … 2004 and M born … 2005 (“the children”).

3. The children live with the mother.

4. Mr Snow (“the father”) not spend any time with the children.

5. The father be restrained from initiating communication with the children, whether directly or indirectly.

6. The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

7. Otherwise all extant Applications be dismissed and the matter is removed from the list of active pending cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walters & Snow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC85/2013

Ms Walters

Applicant

And

Mr Snow

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By her Amended Initiating Application filed 20 May 2015, Ms Walters (“the mother”) seeks orders that Y (born in 2004 and hence presently 11 years of age) and M (born in 2005 and hence presently 10 years of age) (collectively “the children”) live with her and that she have sole parental responsibility for them.  She further seeks a specific order that the children spend no time with Mr Snow (“the father”).  She justifies those orders on the basis that the father presents an unacceptable risk of physical and emotional harm to the children.  She is supported in those orders by the Independent Children's Lawyer.

2. By his Amended Response filed 19 June 2014, it appears as though the father concedes that the mother should have sole parental responsibility for the children, and that they should live with her.  However he seeks weekly visits of supervised time with the children at the X Contact Centre, together with weekly telephone communication.  He also seeks, dependent upon availability, to have supervised time and telephone communication with the children on special days.

3. On 15 September 2015 I ordered that the trial of this matter commence on Wednesday 4 November 2015 before me in Cairns.  A notation to that order indicated that if the father did not then appear, the matter would proceed as an undefended trial.  The father in fact did not appear on 4 November, and the matter therefore proceeded as an undefended hearing in his absence.

BACKGROUND FACTS

The father

1. The father was born in 1971 and hence is presently 44 years of age.  He was adopted shortly after his birth.  There is some indication in the material that he identifies as aboriginal.  However in subpoena material tendered into evidence at the hearing, there is also an indication that the father has told others that he knows nothing of his birth family.  I am not persuaded that the father is indeed of aboriginal heritage or identifies as aboriginal. 

2. The father’s criminal history commences with a dangerous driving conviction on 2 June 1989.  He was then only 18 years of age.  On 29 August 1989 he was then convicted in relation to the possession of a utensil used in connection with smoking a dangerous drug, and then on 19 October of that year convicted of breaking and entering and stealing.  On 27 February 1992 he was convicted of the unlawful use of a motor vehicle, and then on 11 February 1993 convicted of possession of a dangerous drug.  On 20 October of that year he was convicted of possessing a weapon without a license, and then in the following year on 21 November he was convicted of possessing a dangerous drug and possession of a thing used in connection with smoking a dangerous drug.  On 24 January 1996 he was convicted of obscene language, and then on 15 October 2001 he was convicted of obstructing police, possession of a dangerous drug and failing to properly dispose of a syringe.  On 19 November of that year he was convicted of dishonestly obtaining property from another, and then on 27 May 2002 he was convicted of breach of a bail undertaking.  On 16 September 2002 he was convicted of creating a disturbance in a licensed premises and for a breach of probation order (seemingly imposed in consequence of the breach of the bail undertaking).

3. On 19 September 2002 he was convicted (in relation to offences committed in June, August and September of that year) of assault occasioning bodily harm while armed, together with break and entering a dwelling with intent to commit an indictable offence, and unlawful possession of a motor vehicle.

4. Otherwise I know little of the father’s life until when he was 29 years of age, he met the mother in September 2002. 

The mother

1. The mother was born in 1972 and hence is presently 43 years of age.  Her first relationship which produced children was with Mr R, with whom she had one child, L, born in 1990, and hence currently 25 years of age.

2. The mother then had a relationship with Mr S, which produced two children, E (born in 1995 and hence presently 20 years of age) and D (born in 1996 and hence currently 18 years of age).  The relationship with Mr S lasted for nine years, but four years after that relationship ceased, L informed the mother that she had been sexually abused by Mr S between the ages of seven and 12 years old.  The matter was reported to police and ultimately Mr S was convicted and sentenced to nine years in jail.

3. The mother was 30 years of age when she met the father in September 2002, and had the care of all of the three children to her previous relationships.

The relationship

1. The parties commenced cohabiting in November 2002 and the relationship finally concluded on 18 November 2012.  There were intermittent separations during those ten years.

2. In 2004 the parties purchased a farm near the mother’s parents’ property at Town U.  They farmed those properties until June 2011 when it is said “the farms went into bankruptcy.”  Certainly it appears as though the relevant financing bank required the parties to quit the property and it was sold.  They thereupon moved to live close to the father’s parents, in Town A.  They were apparently living there when final separation occurred.

3. The mother says that the ten years of the relationship were characterised by regular abuse and violence perpetrated by the father upon her and the children living with the parties.  I will detail that in due course.  However at the outset it is important to note that the father appears to concede that he was indeed violent during the relationship.  That is borne out by the father’s own affidavit and subpoena material.  The earliest contemporaneous acknowledgment by the father that he had problems is contained in an A Medical Service referral of 2 December 2003, in which his history is noted “long standing problem with “temper”… gets into trouble quite a lot because of fights…”

4. Further, in a mental health assessment undertaken by Queensland Health on 20 October 2011, the following history is recorded:

   [The father] said he has been like this all his life…  He said he has a problem with anger and says very hurtful things to people.  He has a criminal history for assault and drug possession…

   Has few friends due to aggression and violence.  Has a wife [Ms Walters] that he is violent towards.  He says that he says really hurtful things to her and then grabs her around the throat and squeezes.  He says this happens every few months and that he cannot control himself.  States that the children witness these occasions.

   …

5. Against the heading of “Psychiatric History” in the relevant assessment it records “[s]tates that since he can remember, he has had difficulty concentrating, impulsive and aggressive.”

6. Finally in his affidavit filed 3 April 2013, the father said:

   I am aware I have anger management issues… I am remorseful for dramatic situations that have occurred but they were out of frustration and concern for my daughters.

   …

   I am ready to start a new life with my daughters without drama and violence.

   ..   

7. Against those concessions by the father, I have little difficulty in accepting the mother’s allegations of violence in their entirety.  Further, on occasions there are convictions for the father associated with violent episodes as I shall shortly discuss.

8. It is unnecessary to recite all of the horrific detail of the violence which the father has perpetrated upon the mother and her children during the course of the relationship.  Rather, I shall briefly traverse the major incidents.

9. The mother says that the violence occurred in 2002 when the father attempted to choke her in front of many people at a tavern.  Another person intervened.

10. Then, after M was born in 2005, the mother says “it became a regular occurrence for the children and I to huddle together at night time as the father stomped around house, shouting and banging walls and smashing household items.”

11. In 2006 the father hit D so hard that he fell backwards and hit his head against the wall.

12. In December 2006 the father threatened to throw the mother off the balcony of a high-rise car park, whilst bending her over a railing with his hand against her throat.

13. At Christmas of that year the father threw the Christmas tree off the front patio of the house and abused and threatened to kill the mother.  He then chased her around the premises with a screw driver in his hands saying that he was going to stab her.

14. In December of 2007 the father lost his temper and drove a four wheel motor bike on to the patio of the parties’ home.

15. In March 2008 the father chased the mother and when he caught her, pulled her backwards by the throat.  He said that he was going to kill her.  This was in front of the children, who came running into the room where it was occurring and said “daddy, daddy, don’t hurt mummy.”  The mother then attempted to escape but the father dragged her out of the car and wrestled her to the ground. 

16. In April 2008 the father picked up a dish rack and threw it at D.  He later threw a carving knife at D which hit him on the forehead.  It hit him with the handle rather than the blade, but that was just fortuitous.

17. On 18 December 2008 the mother’s parents arrived at the farm and said that they were going to list their property for sale.  The father became angry and said that he was going to kill the parents and the real estate agent that was then accompanying them.  He ran off to the shed to get a shotgun, during which time the real estate agent drove into the orchard.  The father came running out of the shed into the rows of trees shooting at the mother’s parents and the real estate agent.  As he ran past the mother he said he was going to shoot her too.  Fortunately he ran out of ammunition.  He then recklessly drove a utility into a fence and proceeded to drive around with strands of barbed wire hanging off the car.  One of those strands almost entangled a niece of his.  Police were called.  The father was charged with unlawful possession of a weapon and discharge of a weapon on a private land without consent.  On 22 December 2008 he was convicted for those offences.

18. Subsequently the father promised the mother that he would not do anything like that again.  The mother and children returned to live with him.  However on 22 December 2008 a protection order was made in which the mother was the aggrieved and the father the respondent, under the terms of which the father had to be of good behaviour towards the mother and not commit domestic violence.  That order was made without admission, but given the conviction of 22 December 2008 in relation to the weapons offences, it is plain that such an order would have been made even if it had been opposed.

19. In mid-2009 the mother’s brother intervened in an altercation between the father and mother which saw the father lunge at her brother, push him, toss him to the ground, and then kick him repeatedly in the head, throat and body.  All of the mother’s four children who were then living with them were watching and crying.

20. On 3 June 2009 the father hit the mother’s head against a fridge and split her right eyebrow open.

21. On 14 June 2010, whilst the mother and father were in a car with the children, the father became angry and hit the mother across the face with an open hand.

22. After the parties were evicted from the farming property, their financial woes continued.  In October 2011, apparently in consequence of exasperation at dealing with bills, the father grabbed the mother around the upper body causing her to fall backwards off a chair in which she was sitting and hit a bed and then the floor.  The father then grabbed her around the throat and said “do you want to die today?”  The mother ended up with a cut to her eyelid and bruises around her throat from where he had tried to choke her.  She had other grazing on her arms, knees and back.

23. The mother says that throughout 2011 the father would often threaten to invade the home of the mother’s parents, and said that he would burn and bash them.  He also regularly threatened to “smash” E and D.

24. On Mother’s Day 2012 while the parties were camping with the children the father picked up a steel bar and threatened to “flog the mother and [E].”  He started smashing things around the campsite and said that he was going to leave them in the bush.  The mother interpreted that as a threat to kill them.  E and the children observed the whole incident and the mother says that they were terrified.

25. On 16 September 2012 the father threatened to “flog” M if she didn’t shut up, and the next day in front of the children he threatened to “smash” and “kill” the mother whilst he was chasing her around the house.

26. On 25 September 2012 the father smashed a lamp on the patio and commenced throwing household objects at the mother.  Police were called.

27. In October 2012 the father came at the mother with a metal spearhead of the kind used for stoking a fire.  She ran away from the father and kept on running until he stopped chasing her.

28. Plainly this was a relationship of the most violent kind, and I accept that the father was the perpetrator of that violence.

29. The relationship terminated on 18 November 2012.  The events of that separation however commence on the preceding Friday.  The mother had attended her son’s school formal.  The father was suspicious that whilst away, she had sex with another man.  Over the course of the weekend he attempted to have sex with her.  When she refused, he said things like “I am going to kill myself, you will be sorry then.”  And “I am going to stab myself in the neck with a knife” and “I am going to the shed and hang myself.  Would you even shed a tear at my funeral?”  After that last threat he walked out to the shed.  The mother then hid from him.  It appears as though he then stormed around the house for most of that night.  The next morning, whilst the mother was attempting to comfort the child Y, the father started to bang on the bedroom door.  The mother says that she was going to call the police, but the father kept banging on the door.  D, who was then 15, heard the commotion, came to the bedroom and offered to fight the father.  That enabled the mother to run out of the bedroom onto the front lawn, although by then the father had Y in his arms.

30. At some stage on the Saturday the father commenced to load up much of the parties’ personal chattels into a trailer.  At some other stage, the father’s sister arrived, and the father was trying to provoke her to attack the mother.  Eventually the father left the property with Y, but M stayed with the mother.

Post-separation

1. Initially Y continued to live with the father, and M with the mother.  The mother became concerned when Y was telephoning her, telling her that the father was “going off again.”  Repeated attempts by the mother to get the Department of Child Safety (“DoCS”) to check on the father appeared to elicit no action.  In consequence of her concerns, on 10 December 2012, the mother and E went to where the father was staying and observed that Y had scabs on her eyelids and under her eye.  The father then ran at E and threatened to smash him and break his neck.  The mother subsequently went to police and again contacted DoCS.  On that day a temporary protection order was made prohibiting the father from entering the mother’s residence, and included M and Y as named persons.

2. Because the mother continued to have no contact with Y, and was desperately worried about her, on 4 January 2013 she agreed to travel with father and both children to Cairns for a night out.  On the following day the father asked to have both children with him for the night, and promised that he would bring them back in the morning.  The mother acquiesced.  That night however, M asked the mother to come over to the house, and she did so.  She and the father had a coffee, but he became angry when she went to leave.  At one stage the father held a knife to her throat and threatened to kill her, but then stabbed the knife into the wall behind her.  When she tried to run away the father chased after her.  At one point he dragged her into a shed, and thereafter whilst screaming, put a knife to the mother’s throat in front of the children. 

3. By about 1:00 am the father had worn himself out and he agreed for the mother to take the children home.  However when she began to do so, the father again became angry and grabbed Y from the car.  In doing so he hit his head on the car door and it bled, but he only laughed hysterically.  Police arrived.  They required the mother to leave without either of the children.  In part that is likely because the mother had some time earlier consented, without admission, to a domestic violence order in which the father was the applicant.  I have considered the father’s affidavit filed in support of the application which led to those orders, and am quite satisfied that it was completely false.  The father has been the domestically violent one in this relationship, not the mother.  Whilst the mother was ill advised to consent to the order without admission, and likewise was ill advised to attend upon the property on the evening in question in breach of the order to which she had consented, I am satisfied that in doing so she was acting with the welfare of the children in mind, and in the face of inaction by the relevant authorities from which she had sought assistance.

1. Unfortunately, the mother was subsequently charged with a breach of the domestic violence order.  However I am satisfied that the sentencing Magistrate well understood the circumstances in which the mother had breached the order, because when the mother was dealt with for that breach on 11 February 2013, no conviction was recorded, and the mother was only required to enter into a good behaviour bond for 12 months.

2. It will be recalled that the father had had the care of Y since 18 November 2012.  From 6 January 2013, the father had both children in his care.  Understandably, the mother was very concerned about that.  On 10 January she contacted the X Mental Health Unit, and a worker from that Unit who later attended the father said that she could see that the father was “agitated” and “drug wrecked.”  On the next day the mother contacted the Child Protection Investigation Unit, but it appeared to be disinclined to do anything other than to undertake a welfare check.

3. The children remained in the father’s care.

4. On 21 January 2013 the father filed an application to vary the domestic violence order in his favour to prevent the mother from attending the children’s school.  The evidence does not permit me to conclude what happened in relation to that application, but in any event it appears as though the father did not permit either child to attend school until about 4 March 2013, and even then he remained in the classroom with them during the lessons.

5. The mother commenced these proceedings on 25 February 2013, and on 25 March 2013, Federal Magistrate Willis (as her Honour then was) made orders for the children to be returned to the mother’s care.  The mother forthwith enrolled them in another primary school.

6. On 11 April 2013 orders were made for the father to spend supervised time with the children, with such supervision to be conducted by the paternal grandmother and aunt.  However that was short lived.  Both of those women soon refused to supervise any further visits, as the father threatened to shoot them and “shoot the whole family.”  Thereafter there was no one willing to supervise the father’s time with the children, and hence no time occurred.

7. On 22 April 2013 the parties’ mutual protection orders were varied so as to permit them to talk to each other and see each other.  That proved to be very ill advised.  On 14 May 2013 the father attended the mother’s residence with a tomahawk and threatened to cut off the head of the person who she was then residing with (albeit not in a domestic relationship).  The father then proceeded to smash into that man’s car in a rage.  Police attended and arrested the father.  Unusually, I cannot find any reference to that charge in the father’s criminal history.  However I have no doubt whatsoever that the father did indeed act as the mother says.

8. On 20 May 2013 Judge Willis suspended those parts of the 11 April 2013 orders as permitted the father to spend supervised time and communicate with the children, and ordered instead that the father have no contact of any kind with the mother or the children.  She further ordered that the mother have sole parental responsibility and that the children live with the mother.  Those were the orders which prevailed at the time of trial before me.

9. Since then the children have only seen the father on one occasion.  That was in September 2013.  By then, for reasons I shall shortly detail, the father was incarcerated.  On Father’s Day in September 2013 the mother took the children to the jail to see the father which visit lasted for about an hour.  The children appeared glad to see the father, but were frightened by the experience of being swabbed for drugs and chemicals, and by the presence of prison dogs.  The father cried during their visit and the children spent a few minutes playing with him in the room.  However afterwards, the children told the mother that they did not like that experience, and did not want to return.

10. Since separation the father has regularly been in prison.  He was first incarcerated on 6 May 2013 having been remanded in custody for breaching a domestic violence order against the mother.  In Corrective Services records for that day, the following appears:

    [The father] reported that he had been using methamphetamine (ice) for three weeks prior to being in the … watch house (arrested Thursday 02 May), and had not experienced any negative withdrawal symptoms. 

    …

    .. He reported that he had been using ice for three weeks, and had no experience using ice prior.  The prisoner reported that he had a history of using “speed” in the community; however had not used “for a long time” and had had no issues with quitting.

    …

    [The father] reported recent self-harm behaviour: he reported that he had purposely blackened both his eyes in self-loathing…

11. It appears as though the father must have obtained bail on or about 14 May 2013, as the prison records stop for a period.  However on 1 July, the father was further charged with a raft of offences.  These included possession of dangerous drugs and utensils that have been used for the purpose of administering drugs, and a number of dishonesty offences, including four counts of break and enter premises with intent to commit indictable offences, five counts of stealing, and a count of receiving tainted property.  He was further charged with assaulting or obstructing a police officer.  In consequence of that, it appears as though he was again remanded in custody and went back into prison on 3 July 2013.

12. Unfortunately the prison records produced into evidence conclude on 17 August, but I note from the father’s criminal history that he was sentenced to a further three months imprisonment for the 1 July offences on 23 August 2013, and on that day he also had a previously imposed, but suspended, sentence fully invoked.  It was noted that he would be first be eligible for parole on 1 March 2014.

13. The prison records, even incomplete as they are, raise serious concerns.  In an entry for 7 August 2013 the father is recorded as having reported hallucinations.  The following appears:

    When questioned about his hallucinations he reported that he is hearing his children calling him “where are you dad” “come home dad”.  Prisoner also reported that the “voices” were telling him that he has to get out of prison, but he denied any current deliberate self-harm or suicide intention, plan or ideation.  He stated he just wants to do his time and go home. 

14. Other than being aware that the father has, since September 2013, been regularly in and out of jail, I know little about his present circumstances.  At paragraph 103 of the mother’s trial affidavit she says “I believe the father was sent back to jail in April 2015 for drug offences whilst he was on parole.”  It appears from the court file that he was out of jail in July of this year because he appeared in person before a Registrar, however I was advised from the bar table that at the time of the hearing before me, the father was back in jail. 

15. In December 2013 the mother moved to X.  The children then were enrolled in a new primary school, and appear to be doing well there.  The mother has now obtained part-time employment in X.  She is supported from time to time in the care of the children by her parents, and a friend who cares for the children if required.

THE ISSUES

1. Essentially this case involves only two issues, both of which are derived from the primary considerations in s 60CC(2).  The first issue is the assessment of the risk which the father poses to the children, were he to spend time or communicate with them.  The second issue is to what, if any, benefit the children would obtain from a meaningful relationship with the father.  After I have dealt with the relevant statutory provisions and legal principles, I will address those issues in advance of a general traverse of the s 60CC considerations, and then consider the appropriate parenting orders in the best interests of these children.

LEGAL STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.  Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]  In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

   [1]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b)      a person (the first person) involving the child in a sexual activity          with the first person or another person in which the child is used,        directly or indirectly, as a sexual object by the first person or the      other person, and where there is unequal power in the relationship    between the child and the first person; or

   (c)       causing the child to suffer serious psychological harm, including        (but not limited to) when that harm is caused by the child being     subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence.  Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence. 

The standard of satisfaction required

1. Section 140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the  parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

   [2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [25] the Court said as follows:

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

1. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

2. Moreover, it is incumbent upon the court to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk posed by the parent: see Blinko & Blinko [2015] FamCAFC 146 at [30].

RISK POSED TO CHILDREN BY FATHER

Overview

1. The mother and Independent Children's Lawyer contend that the father presents an unacceptable risk of both physical and emotional harm to the children.  I will consider each of those individually. 

Physical harm

1. The mother does not contend that the father has ever physically struck either of the children.  At paragraph 12(c) of her affidavit she says “the father has pushed, dragged and shoved [Y] and [M], but never actually struck them.”  However plainly he has assaulted both of the mother’s sons, E and D from time to time.

2. The mother also points to an occasion on 21 October 2009 when during a fire at the parties’ farm, the father, with both children, in his car, was driving around the property to try and fight the fire with a hessian bag.  She says “the children told me about the flames licking both sides of the ute and how hot they were and how hard it was to breathe.  Both girls said the flames, at one point, were over their heads.”

3. I am more than satisfied that the father has, since separation, had considerable involvement with drugs, and particularly the drug ice.  It is well known, and capable of judicial notice, that the drug ice can cause violent, and on occasion extremely violent, episodes in those who are under its influence.

4. Moreover, the father has from time to time been diagnosed with mental health issues.  The diagnoses however, are not at all clear.  It appears as though the father’s general medical practitioner as at December 2003 was suspicious that the father may have been suffering from bipolar disorder, but I am not persuaded that there was necessarily a diagnosis to that effect at that time.

5. The most prolific diagnosis appears to be one of adult ADHD and depression.  For instance, on 17 October 2011 the A Medical Centre referred the father to (seemingly) a psychiatrist, identifying that the father’s problem was “severe depression” arising from his then recent bankruptcy.  Also in the subpoenaed medical records tendered into evidence, were some Queensland Government Adult Mental Health Service records in relation to their treatment of the father between 21 October 2011 and 28 June 2012.  It is said:

   Dr [G’s] initial diagnosis was confirmed by Dr [K] (Psych Reg) and upheld by Dr [V].  He describes [the father’s] adult ADHD as severe.  Over the next eight months there were difficulties fine tuning [the father’s] medication…

6. In a later Mental Health Service report of 10 January 2013, it is recorded that his (seemingly) general practitioner was stating that the father “was unwell and eating his Dexamphetamines like smarties.”  A social worker went to see him around that time at his home, but ultimately left because the father was becoming increasingly agitated.  His behaviour was described as “very aggressive, pacing, shouting, pointing his finger and swearing.  White foam at the corners of his mouth.”

7. Plainly there are grave and disturbing mental health issues in relation to the father.

8. Moreover the father has a long history of violence.  At the commencement of these reasons I recited the father’s concession that he has been, for all of his life, an angry man.  Plainly for much of the relationship he was highly violent.  Although he says in his affidavit of 3 April 2013 that he has been to anger management courses and was then about to complete a Positive Parenting Program, since then he plainly has continued to have engagement with drugs, presumably ice.

9. Whilst it is impossible to precisely gauge the present risk of physical harm which the father may pose to the children, plainly it has to be acknowledged as a real and substantial risk.  The fact that he has not struck the children in the past is little reassurance if the father is under the influence of illicit drugs or excessively self-medicating with prescription drugs, or not taking prescription drugs, whilst he is in the children’s presence.

Emotional harm

1. The father has a long history of violence, to many people, not only the mother.  They include his own mother and sister, his in-laws, the mother’s parents, the mother’s sons, and even a real estate agent.  There is no reason to think he will now stop.

2. Moreover I am conscious that the father appears to have no disinclination to behaving in a violent way in front of the children.  It may fairly be said that the children, whilst living with the father, have been terribly exposed to family violence.

3. Although of considerable vintage, the Family Report of Ms W of 15 May 2013 does provide considerable insight into the effect which that has had upon the children.  In relation to the child Y, at paragraph 39 Ms W said:

   [Y] stated she could not remember a happy time with both of her parents and that when she heard her parents being angry she would simply go into her bedroom.  [Y] stated that she did not witness them hurting each other, however this report writer is of the opinion that [Y] was protecting her parents as she looked away and put head down when she made this statement.

4. In relation to M, Ms W opined:

   Like her sister, [M] stated that she could not recall a happy time with both of her parents, and that when she heard angry adult voices she would go to her bedroom.  Like her sister, [M] was loyal to both parents stating that she did not like when they were angry…

5. Ms W also noted that during a drawing task which she had the mother and the girls engage in during the course of her observation of them “both of the girls identified adults angry voices as something they disliked and were scared of.”

6. The risks of emotional harm to children that flow from being exposed to violence, and particularly family violence, are well known and do not need to be again stated.  Unfortunately the father appears to have, as a regular part of his behavioural repertoire, recourse to violence and threats of violence.  He will likely continue to be violent.  Moreover, whilst perhaps his violence is more marked towards domestic partners, it is plain that it is not restricted to them, but extends to other family members and even complete strangers.  Most concerning however, is that in the past the father has shown no hesitation in behaving in an outrageously violent way to the mother in front of the children.  He does not appear to have any insight as to the likely impact on the children of such exposure.

Evaluation

1. Whilst the father’s disengagement from these proceedings, including not attending Family Report interviews or filing up-to-date affidavit material, precludes a truly accurate assessment of the risk which the father poses, his failure to do so only excites greater concern, rather than mitigating it.  Moreover his continued involvement, it seems, with drugs, and what now appears to be a pattern of incarceration, only causes the concerns to increase.

2. On the material before me, and in the circumstances of this case, I am satisfied that indeed the father does pose an unacceptable risk of harm to the children, both of a physical and emotional kind.

BENEFIT TO CHILDREN OF RELATIONSHIP WITH FATHER 

1. Both of the children have expressed a desire to continue to have some form of contact with the father.  For instance, even though there were “no contact” orders made in April 2013, in fact the children subsequently expressed a desire to see their father, and the mother did take them to see him on Father’s Day 2013 at the jail.  Unsurprisingly however, the children expressed a disinclination to repeat that experience, given the prison environment. 

2. Although in the mother’s affidavit she says that Y has said to her words to the effect “I was scared daddy was going to take me” and told the mother that she does not want to talk to the father or write him any letters, M has told her that she is “thinking about writing him a letter.” 

3. I am satisfied that the children would likely obtain some benefit from a relationship with the father which at least allows them to have a knowledge of him, to assist them when formulating their adolescent and adult identities.  However the circumstances in which they experience that relationship must be one that keeps them safe from the risk of harm which the father poses.  Achieving that safety is the difficulty in this case.

SECTION 60CC FACTORS

1. It will be appreciated that I have already addressed the primary considerations and some of the additional considerations in discussing the two principal issues.  However I make the following further observations.

2. On the evidence before me, there is no expressed view by either child as to a desire to spend time or communicate with the father.  I acknowledge that there is no recent Family Report however.

3. The father, it seems, has never paid any form of child support since separation.

4. To the extent that the cessation of their relationship with the father is likely to affect the children, the reality is that they have not seen him now for in excess of two years, and hence the effects on the children are likely to have now played themselves out.

5. The capacity of the father to provide for the emotional needs of the children must be seriously doubted.  His regular exposure of them to domestic violence during the course of the relationship is a glaring illustration of a lack of insight into their emotional needs.

6. Plainly there have been many family violence orders and breaches of them by the father.  Although I have not addressed those earlier in these reasons, the father’s criminal record is replete with breaches of domestic violence orders.  The inference which I draw from those is that the father does not have any regard to domestic violence orders, and is a highly violent, aggressive and angry man.

PARENTAL RESPONSIBILITY

1. It appears as though the father does not contend that there should be equal shared parental responsibility.  In any event I am satisfied that there has been family violence, and hence the presumption of equal shared parental responsibility does not apply.

2. I am satisfied that the mother should have sole parental responsibility for the children.

WITH WHOM SHOULD THE CHILDREN LIVE

1. It appears as though the father does not contend that the children should live with him.  Plainly, given the father’s mental health issues, drug abuse and regular propensity for violence, he is wholly disqualified from being the primary residence parent for these children.  I am satisfied that it is in the children’s best interests that they live with the mother and will so order.

TIME AND COMMUNICATION WITH FATHER

1. The father seeks supervised time with the children.  He apparently sought that as a final order.  The Full Court has regularly identified that ongoing supervision of time between a child and a parent must cause the court to seriously enquire what benefit there is in the relationship, if it can only be enjoyed in such circumstances: see, for instance, Slater & Light (2013) FamLR 573 and Moose & Moose [2008] FLC 93-375.

2. However there is a more fundamental difficulty here.  Supervision of the father’s time with the children has been attempted, with his own mother and sister being the supervisors.   However the father’s threats of harm to them and their families saw them quickly withdraw their services, quite understandably.

3. Given the father’s extremely violent history, and extensive criminal history including numerous breaches of domestic violence orders, I would require evidence that a Contact Centre would be prepared to offer its services to facilitate time between the father and the children.  There is no such evidence before me.  The indications from the Independent Children's Lawyer were that she doubted that a Contact Centre would in fact be prepared to assist these parties, given the father’s extremely violent past.

4. Further, it may seriously be doubted, even if the Contact Centre were prepared to facilitate the father spending time with the children, that it would last.  The father appears to have a regular propensity for violence and threats, and one could readily foresee that attempts to coerce and control him at the Contact Centre might be met with such threats or actual violence, and hence he be disqualified from further attendance.

5. I am not persuaded that there is an available regime of supervision which could properly protect the children from the risk which the father poses.  Absent strict supervision in a controlled and safe environment, the risk which this father poses to these children is simply unacceptable.

6. As to communication, the mother does not seek any orders facilitating it, and although the father’s Response sought weekly telephone contact, he did not appear to argue that.  I am not satisfied that there should be any such order afforded to the father.  I have no knowledge as to his current state of mental health, or his current use of drugs, other than to say that both are highly problematic.  Moreover, he is likely to use any communication as a conduit for further hostility and threats towards the mother.  Further, the mother notes that whilst in the father’s letters to her post-separation “he did occasionally ask about the children” she said that the letters were not appropriate for the children to read and she threw them away.

7. Perhaps if the father was able to be properly medicated for his mental health issues and maintain compliance with that regime, was able to address his use of drugs, and was able to somehow obtain assistance in curbing his propensity for violence and threats, communication with the children could be countenanced.  However on the present state of the evidence I can discern no benefit from such a regime.  Of course in the event that the children wish to initiate communication with the father, he should be entitled to respond to them, whether it be by telephone or letter, depending upon how the child initiates such communication.

8. Otherwise there should be no orders in relation to time and communication between the children and father.

CONCLUSION

1. For these reasons there will be orders as sought by the mother and Independent Children's Lawyer.   

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 November 2015

Associate: 

Date:  20 November 2015