Ward and Merry (No 2)

[2010] FamCA 677

FAMILY COURT OF AUSTRALIA

WARD & MERRY (NO. 2) [2010] FamCA 677

FAMILY LAW – CHILDREN

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C(1), 61DA, 64A, 65AA, 65DAA, Pt VII

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Ward

RESPONDENT: Mr Merry

FILE NUMBER: (P)NCC 2962 of 2008

DATE DELIVERED:  5 AUGUST 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 26 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Craney Family Lawyers

Mr E Craney

SOLICITOR FOR THE RESPONDENT: No appearance

INDEPENDENT CHILDREN’S LAWYER Mr S Marks

Orders

1. All prior parenting orders and injunctions in relation to the children L born … February 2004 and E born … March 2005 are discharged.

2. That the Applicant Mother Ms Ward have sole parental responsibility for the children.

3. The children are to live with the mother.

4. The father shall not communicate with or spend time with the children.  This is an order for the personal protection of each of the children.

5. Without admissions, for the personal protection of THE MOTHER, THE FATHER is restrained from:

   (a)Assaulting, molesting, harassing, stalking, abusing or otherwise interfering with THE MOTHER;

   (b)Entering upon or loitering near the premises known as … or any other premises at which THE MOTHER is residing, employed or studying;

   (c)Entering or contacting the place of work or study of THE MOTHER in any manner whatsoever;  and

   (d)It is noted that these are orders for the personal protection of THE MOTHER, a breach of which attracts the power of arrest without warrant pursuant to s 114A of the Family Law Act 1975 (Cth).

6. In the event the children or either of them or the mother attends a counsellor or therapist the mother is at liberty to provide the therapist with a copy of the report prepared by Dr B dated 6 December 2009.

7. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ward & Merry is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC2962 of 2008

MS WARD

Applicant

And

MR MERRY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application by Ms Ward (the mother) for parenting orders in relation to the parties’ children, L born in February 2004 and E born in March 2005.  The mother started these proceedings on 19 November 2008 when she applied for final and interim parenting orders.  The interim orders, in effect, sought the children’s return to her (by a recovery order if necessary) and thereafter that they spend time with Mr Merry (‘the father”) at a contact centre.  It is unclear whether, in accordance with the interim orders made on 25 November 2008, the father returned the children to their mother or whether the recovery order, which was issued the same day, was needed.  In any event, since late November 2008, the children have lived with the mother. 

2. Again, the evidence is not entirely clear when the father last spent time with the children.  However, it is beyond dispute he has not spent time with them since 12 December 2008.

3. There are two primary reasons why the children have not spent time or communicated with the father for such a long time.  The first is the mother believes there existed an unacceptable risk of family violence and emotional abuse to the children from him.  The second reason, which is connected to the first, is that in order to keep her and the children safe, she moved from S in regional New South Wales to the Newcastle area.  In so doing the mother put a vast distance between herself and the children and the father.  This made it difficult for him to spend time with the children.  However, as will become clear, the Court accepts had the mother and children remained in S, there existed an extreme risk of serious harm to her and commensurate risk exposure to family violence by the children.

4. This hearing was determined on the mother’s application and undefended by the father.  Because of the serious issues raised an Independent Children’s Lawyer was appointed to represent the children’s interests.  At the end of the hearing, the Independent Children’s Lawyer submitted in favour of orders proposed by the mother, which included an order that the father not spend time, or communicate with the children.  In short, it was the position of the Independent Children’s Lawyer the evidence demonstrated the mother and children would be exposed to a grave risk of family violence if the children had any type of contact with the father. 

5. As a review of the file would reveal, prior to this hearing, the mother’s application had been listed for an undefended hearing on three occasions.  This was because the father failed to comply with directions for the filing of his response and affidavits and, on a number of occasions, also failed to appear.  In this regard, it is noteworthy that whenever the father sought to appear by telephone, he was permitted to do so. 

6. On 26 February 2010, I listed the matter for final hearing.  The orders and directions I made are set out below:

   IT IS ORDERED:

   1.This matter is listed for final hearing before me for 3 days commencing 10.00 am on 26 July 2010.

   2.The parties shall file and serve all affidavits upon which they rely by 25 June 2010.

   3.No later than 23 July 2010 the parties and Independent Children’s Lawyer shall file with my associate and serve a Case Outline document which contains the following:

   (a)Chronology;

   (b)Summary of Argument; and

   (c)List of Authorities.

   4.No later than 2.00 pm on 22 July 2010 the Independent Children’s Lawyer shall provide to my Associate a List of Documents to be relied upon.

   5.I give the parties and Independent Children’s Lawyer leave to issue subpoena for the production of documents relevant to the matters in the hearing.

   THE COURT NOTES:

   6.[The father] has been refused legal aid.

   7.That having regard to the issues raised in the proceedings it is of the view that the facilities available for the hearing in Sydney are more apt and for this reason of the Court’s own motion the venue will be Family Court of Australia, Lionel Bowen Building, 97-99 Goulburn Street, Sydney.

7. I note that on that occasion the father appeared personally by telephone and a sealed copy of the orders was sent to the address identified on his Notice of Address for Service, which is where he resided with his mother.  This is where the father’s mother continues to reside.  Records produced by the Department of Corrective Services establish later that day the father was taken into custody.  He was charged with wound with intent (grievous bodily harm) aggravated break and enter, stalk/intimidate, steal from a  motor vehicle, drive whilst disqualified and reckless wounding causing grievous bodily harm.  It would appear these charges resulted in the revocation of the s 12 Bond imposed upon him in the District Court in December 2009, as a result of which the 18 months term of imprisonment, which had been suspended, was activated.

8. The father did not comply with directions to file affidavits for this hearing.  Thus, on 30 June 2010, I made the following orders:

   THE COURT NOTES:

   1.The respondent father has not complied with Order 2 of the orders dated 26 February 2010.

   IN CHAMBERS IT IS ORDERED:

   2.Of the Court’s motion all applications and responses are listed for further hearing before the Honourable Justice Ryan at 9.30am on Friday, 9 July 2010.

   3.On 9 July 2010 consideration will be given to whether or not the respondent father’s response filed 8 July 2009 should be struck out for want of prosecution and the mother’s application listed for final hearing on an undefended basis.

9. A sealed copy of these orders was sent to the father’s address at S contained in his Notice of Address for Service, which is where the father’s mother continues to reside. 

10. The matter came before the Court on 9 July 2010.  The mother and Independent Children’s Lawyer appeared.  There was no appearance by or on the father’s behalf.  Nor had the Court received any request from him to appear by telephone or video.  As a consequence, I made the following orders:

    IT IS ORDERED:

    1.That the Response filed by [the father] on 8 July 2009 be struck out for want of prosecution.

    2.The applicant mother shall file and serve an Amended Application within seven days.

    3.The applicant mother’s Amended Application referred to in the above order is listed for hearing before the Honourable Justice Ryan in Sydney on 26 July 2010 as an undefended application.

    4.I vacate the further dates of 27 and 28 July 2010.

    5.The Independent Children’s Lawyer has leave to photocopy documents produced under subpoena for provision to Dr [B].

    6.I give the applicant mother and the Independent Children’s Lawyer leave to make an oral application for costs against the respondent father.

    7.The respondent father to pay the costs of the Independent Children’s Lawyer in the sum of $130.00 plus GST within 21 days.

    8.The respondent father to pay the costs of the applicant mother in the sum of $130.00 plus GST within 21 days.

11. A sealed copy of the above orders was sent to the S address identified in the father’s Notice of Address for Service. 

12. Thus, I am satisfied the father was aware the matter was listed for final hearing on an undefended basis.  Although he remains in prison, it is common place for prisoners to appear by telephone or video, at least from gaols within New South Wales.  While it may not have been without a degree of difficulty, had the father sought to file affidavits, handwritten if necessary, or to appear he could have done so.

13. At the end of the hearing I made the orders identified at the start of this judgment and indicated I would publish my reasons later.  These are those reasons.

The general law in parenting applications

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A).  They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects.  In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to the best outcome.  Where there are no countervailing factors, the s 60B principles may be decisive.  Section 60B is set out below.

   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).

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement                   necessary:

   (i)     to explore the full extent of that culture, consistent     with the child’s age and developmental level and the           child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations.  The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).  Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance. 

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3).   Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities:      s 60CC(4).  In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG.  Ultimately the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important.  If the Court is satisfied that a child’s parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA).  In the context of s 65DAA 'consider' means to consider positively the making of an order.  Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time and its practicability must be considered. This concept is defined in s 65DAA(3).

6. The child’s best interests remain the overriding consideration.

7. Where neither of these delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. 

8. Where the Court has decided against ordering that the parents have equal shared parental responsibility s 65DAA considerations do not apply. 

Background facts

1. The father was born in 1972.

2. The mother was born in 1985.

3. Mr P, who is the mother’s partner, was born in 1986.

4. In 1991, the father was convicted of high range PCA, assault, resisting arrest and assaulting police.

5. In 1998, the father was convicted of resisting police.

6. In 2001, the father was convicted of break and enter with intent, drive mid range PCA and driving whilst his license was cancelled.

7. In 2002, the father was convicted of possession of a prohibited drug, entering a building with intent and defray. 

8. The parties commenced a relationship in about April 2003.  They lived in S.  From early in their relationship the father verbally and physically abused the mother.  Following the children’s birth they witnessed the father’s abusive treatment of the mother. 

9. The parties elder child, L, was born in February 2004.

10. In 2005 the father was convicted of assaulting police, drive mid range PCA and driving whilst disqualified.  On the assault police charge, he was sentenced to two years imprisonment.  The father appealed the severity of the assault police sentence which, in July 2005, the District Court allowed and reduced his term of imprisonment to 18 months. 

11. In mid 2006 the father witnessed the accidental death of a close relative.  The circumstances were gruesome and have continued to cause the father considerable distress. 

12. The parties separated for the first time on New Years Eve 2006 following which the mother moved with the children to Newcastle.

13. The circumstances of separation were contained in the mother’s affidavit.  She said:

    9.… On New Year’s Eve at the end of 2006, [the father] was verbally abusing me after [MS D} [hereinafter referred to as ‘[Ms D]’] and I asked him to go and have a sleep as he was drunk.  He started saying to me words to the effect of:

    ‘You’re a whore, slut.’

    10.[The father] called me other names, but I mainly remember these two.

    11.He then physically assaulted one of [Ms D’s] friends who was in the house, whose name was ‘[J]’.  I say that [the father] then grabbed a knife out of the kitchen.  I ran into [Ms D’s] bedroom where [Ms D] and the kids were already located.  [The father] came into the room waving the knife and said to me words to the effect of:

    ‘Do you want me to kill you?’

    12.I was petrified.  This was occurring in front of the children.  [The father] then said to [Ms D] words to the effect of:

    ‘Do you want me to kill you instead?’

    13.[Ms D] went to pick up the phone.  I understand that [the father] thought [Ms D] was calling the police.  We got [the father] to put the knife down and leave the house.

    14.      This all occurred in front of the children.  

1. A few months later the father returned to Newcastle, from S, in the hope the parties would reconcile.  Although they did not reconcile, their relationship improved and in about mid 2007, the mother and children returned to S.  She hoped the children would be able to spend more time with the father.  This was achieved and, for a while, the situation between the parties was reasonably companionable. 

2. In early 2008 the situation deteriorated.  The father was again often violent towards the mother and threatened to kill her and her sister. 

3. On 30 March 2008, whilst drunk, the father smashed a hole in a wall of the mother’s home, during which he broke his left hand.  After his hand was repaired surgically at G Hospital, they transferred him to F Hospital.  This is a psychiatric hospital.  In the F Hospital notes it is recorded the reason he was referred from G Hospital was because of his “ongoing thoughts of wanting to harm others.”  The father remained at F Hospital until 7 April 2008.  There, he was diagnosed with an anti-social personality disorder and was assessed as being a “long term risk of serious aggression and self harm.  However, this is not amenable to treatment in hospital.  In hospital he is a risk to other vulnerable patients.”

4. On 17 May 2008 the father entered a hotel, from which he was barred.  The mother was present and he approached her, pulled a weapon out from under his jacket and held it to her throat.  He threatened, unless she left with him, he would hurt her.  The manager telephoned police but before they arrived the father departed. Although the mother understood police took out an Apprehended Violence Order for her protection from the father, it does not appear this happened. 

5. The father was admitted to F Hospital overnight in early June 2008. During this admission he was heard, “boasting in court yard re previous behaviour when threatening girlfriend.”  That is, about his violence towards the mother. 

6. Surprisingly the mother continued to make the children available to the father and it would appear they spent about two weeks with him from late September 2008. 

7. On 4 October 2008, while the children were with the father, the mother moved to Newcastle.  By arrangement with him, the children were delivered to her about a week later. 

8. On 17 October 2008, the father was charged with home invasion and indecent assault.  He was bailed to reside in S and in effect, was house bound.  These offences did not relate to the mother.

9. In mid November 2008 the mother permitted the father’s brother, R, to collect the children so they could spend a few days with the father at S. 

10. On 18 November 2007 at 1.27 pm the mother received an SMS on her mobile telephone from the father which said:

    Ur a good mother?  Not!  Ur a joke!  Sandwiches & fuk all else, theior (sic) growin bodies need more u thing!  But that’s right u dnt like 2 buy food do ya!  Rather blow it on drugs/alcohol/clothes then feed ur children, clap clap big round of applause 4 the neglecter.

11. The mother contacted the father in response to which he sent her another email which is set out below:

    Well ya daughter dnt wanna go back and she aint goin back!!!  U wanna carry on?  B my guest bt ul loose big time even if the court gives u a win k lowlife, b like ya sister go breed with some other mutt and leave my children here with me where they ll b cared 4 properly k girl, try remove them & c wot happens c wot fuckin happens right dog.

12. According to the mother the language the father used in these SMS messages was mild in comparison to the language he routinely used to her.  Later that afternoon the mother received another SMS from the father which said: 

    U tell that hep c slut that this bone yarda all kill any of her so called hard men.

13. Reference to the words “bone yarda” is a term used amongst prisoners. 

14. On 19 November 2008 the mother commenced these proceedings.

15. On 25 November 2008 the Court made the following orders:

    IT IS ORDERED:

    1.That both parties have leave to inspect all documents produced on subpoena by the [F] Hospital and have photocopy access thereto.

    2.That an Independent Children’s Lawyer be appointed for the children [L] born […] February 2004 and [E] born […] March 2005 and the Court requests the Director of the Legal Aid Commission of New South Wales to make the appropriate arrangements.

    3.That the solicitors for each of the parties forward forthwith to the said Director a copy of all documents filed by their clients respectively in these proceedings.

    4.That these proceedings are adjourned to the Judicial Registrar’s Duty List at 10am on 10 December 2008.

    5.That until 6pm on 10 December 2008 the said children reside with their mother.

    6.That the father arrange for the children to be delivered to [S] Police Station at 2pm on 29 November 2008 and the Court requests the Officer in Charge to assist in the children coming into the care of the mother at 2pm on 29 November 2008.

    7.That a Recovery order be issued directed to the Marshal and all officers of the Australian Federal Police and the New South Wales Police authorising and directing them to locate and recover the said children and deliver the children into the care of their mother, such Recovery Order not to be executed until after 2pm on 29 November 2008.

    8.That in the event that the documents are produced on subpoena by the New South Wales Police all parties have leave to inspect such documents and make photocopies thereof.

    9.That the subpoena addressed to the New South Wales Police be adjourned to 9:15am on 1 December 2008.

    10.Pursuant to s.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

    IT IS NOTED:

    11.That these orders shall be sent to Mr Nicholson at Matthews Williams Solicitors in the first instance by facsimile transmission on fax number […].

16. On 10 December 2008 the Court made the following orders by consent:

    PENDING FURTHER ORDER, IT IS ORDERED THAT:

    1.The children   [L] born […] February 2004 and [E] born […] March 2005 will live with the Applicant Mother.

    2.The children will spend time with the Respondent Father as follows:

    2.1For up to two hours once per fortnight;

    2.2Each party must:

    2.2.1Contact the [Children’s Contact Centre] (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for the children spending time with the father;

    2.2.2Attend the assessment;

    2.2.3Comply with any appointments made by the Contact Centre for supervised time;

    2.2.4Comply with all reasonable rules of the Contact Centre;

    2.2.5Comply with all reasonable requests or directions of the staff at the Contact Centre;

    2.3If after assessment the parties are accepted by the Contact Centre, the father is to spend time with the children at the Contact Centre on two occasions in each calendar month;

    2.4In the event that the Contact Centre offers supervised time only at times which are less regular or less frequent than specified in orders 2.1 and 2.3, then the times shall occur at the times that are offered by the Contact Centre;

    2.5The time the children spend with the father under order 2.1 is to be supervised by the Contact Centre and the father must pay the reasonable fees for the supervision on each occasion of supervision.

    3.Both parties are restrained from consuming alcohol to excess or any illicit substances during any time the children are spending time with that parent and for a period of 48 hours immediately prior to the commencement of such time.

    4.In relation to the father and his time with the children at the Contact Centres:

    4.1In the event that the nominated supervisor or their delegate, in their sole and absolute discretion, forms the view that the father is affected by alcohol or illicit substances, such contact will be immediately suspended.

    4.2In the event that the father provides a positive result for an illicit substance pursuant to Order 5, his time with the children will be immediately suspended until he has provided two clear results for illicit substances in accordance with Order 5.

    5.Both parties will provide a sample to a pathology service for drug urinalysis testing which complies with Australian/New Zealand Standard 4308:2001 each Monday and will immediately provide the solicitor for the other party and the solicitor for the Independent Children’s Lawyer with the results of such testing upon such results becoming available.

    6.Both parties undertake not to denigrate the other party, their family or their friends to or in the presence or hearing of the children and will use their best endeavours to ensure that no one else does so and will remove the children from any environment when the same is occurring.

    7.Without admissions, for the personal protection of [THE MOTHER] until further order [THE FATHER] is restrained from:

    7.1Assaulting, molesting, harassing, stalking, abusing or otherwise interfering with [THE MOTHER];

    7.2Entering upon or loitering near the premises known as […] or any other premises at which [THE MOTHER] is residing or employed;

    7.3Entering or contacting the place of work of [THE MOTHER] in any manner whatsoever;

    7.4It is noted that these are orders for the personal protection of [THE MOTHER], a breach of which attracts the power of arrest without warrant pursuant to section 114AA of the Family Law Act 1975.

    8.Order pursuant to part 15.5 that an expert as agreed between the parties, or failing agreement nominated by the Independent Children’s Lawyer be appointed to enquire into and report upon matters relating to the welfare of the children [L] born […] February 2004 and [E] born […] March 2005 and in preparing such report the Court expert to be requested to consider the following matters:

    8.1Whether or not either parent suffers a mental illness (including a depressive illness) or disorder, and if so, the nature and extent of such illness or disorder, and whether or not it is intractable or amenable to treatment, and recommendations as to treatment.

    8.2Whether or not either parent suffers from or has suffered from suicidal ideation or tendencies.  If current, the nature and extent of such ideation/tendencies, and whether or not same are intractable or amenable to treatment and recommendations as to treatment.  If past, the likelihood of such ideation/tendencies re-emerging, and the psychological triggers for such re-emergence.

    8.3Whether or not either parent is at risk of substance abuse, and if so the nature and extent of the risk and assessment of prospects of eliminating or minimising such risk by treatment and recommendations as to treatment.

    8.4Whether or not either parent is the victim or perpetrator of family violence and if so the impact thereof on his/her capacity to care for and parent the children.

    8.5Each parent’s attitude to the other parent, the extent of the parenting role (if any) he/she foresees for the other in the life of the children, and whether or not each parent is capable of encouraging and supporting the relationship between the children and the other parent and the impact of such on each child.

    8.6Each parent’s capacity to identify the physical, intellectual and emotional needs of each child and his/her capacity to meet such needs.

    8.7Recommendations as to programs, counselling therapies and/or community based services to assist the parents in addressing any identified deficiencies or problems.

    8.8Whether or not it is in the children’s best interest to live predominantly with their Mother or their Father; and if with the Mother whether or not it is in their best interests to spend time with the Father, and if so, recommendations as to the nature, frequency and duration of such periods; and if with the recommendations as to the nature, frequency and duration of such periods.

    8.9Any other matter the Court Expert considers relevant.

    9.That leave be granted to all parties and the ICL to make Application to the Court on short notice for the purpose of extending the terms of reference of the Court Expert enquiry and report based upon material produced on subpoena.

    10.That leave be granted to the ICL to copy and make available to the Court Expert all documentation filed and produced on subpoena in these proceedings.

    11.That unless the Legal Aid Commission agrees to pay the Court Expert fees, or otherwise Ordered by the Court, each of the Mother and Father shall pay and be responsible for payment of one half of the Court expert’s fee.

    12.That leave be granted to all parties and the ICL to relist the matter on 7 days notice.

    NOTATION:

    A.It is noted that these orders shall be sent to Mr Nicholson at Matthews Williams Solicitors initially by facsimile to facsimile number […].

17. The father refused to spend time with the children at a contact centre.

18. On 7 July 2009, which was the day prior to the matter being listed in this Court, the father arrived unannounced at the mother’s home.  He entered the house and said to her:  “At court tomorrow, you are going to agree to let me have the children in the holidays, and let me take them after Court.”

19. The mother was frightened and said:  “You can have the kids in the holidays so long as the court approves it.”  The father became verbally aggressive and said:  “You’re trying to keep my kids away from me.  Don’t make me resort to violence.  I will resort to violence.  When I get this money, I can easily get these kids taken off you.”  The father continued to “go on about court and what he wanted [the mother] to say.”  To her, he appeared to be under the influence of amphetamines and because she was scared, she agreed to his demands.

20. The father turned up at the mother’s house again the following morning.  Later that day he went to the maternal grandmother’s home where he threatened he would “put a bullet between [the mothers] eyes.”

21. In November 2009 the father received a substantial compensation payment.

22. In November 2009 the father entered a plea of guilty to a charge of assault with an act of indecency which was accepted in full discharge of the indictment presented in relation to the October 2008 offences.  The next day he was sentenced to 18 months imprisonment which was suspended upon him entering an s 12 Bond.

23. On 4 January 2010 an Apprehended Violence Order was made against the father for protection of his female cousin.

24. In January 2010 the father was involved in a police pursuit the result of which he was charged with drive manner dangerous, drive whilst disqualified and exceed speed.

25. On 23 February 2010 an Apprehended Violence Order was made against the father for the protection of three people with the surname H.

26. In late February 2010 the father was remanded in custody.  On admission it was recorded he had been using amphetamines on a daily basis for months.

27. During the Easter 2010 school holidays, the mother made arrangements for the children to spend time with their paternal grandmother at S.  Whilst there the father telephoned and spoke to L.

The expert evidence

1. Dr B, who is a Child and Adolescent Psychiatrist, was appointed single expert to investigate and report upon the parties and children.  On 1 October 2009, he interviewed the father and paternal grandmother.  On 26 February 2009 he interviewed the mother and children. 

2. Dr B described the father as off-hand and irritable.  The father told him he had been a binge drinker in his twenties and had a significant criminal history.  He had a long history of drug use, which included marijuana and amphetamines.  He had last used amphetamines two or three weeks prior to the assessment.  He described himself as an easy going person who, although generous, did not “tolerate shit”. 

3. In relation to the father, Dr B said: 

   [The father] said there had been ongoing arguments with [the mother].   He said he did threaten to kill her but he wasn’t serious.  He said he was fooling.  He said that he had a threat from her mother.

   [The father] said he wanted to see the kids and he wanted them to be able to see his family in [S].  He was concerned that his son had been assaulted by [the mother’s] mother.  He acknowledged that he had tried to choke her mother to teach her a lesson so that she wouldn’t endanger his children.  Her mother’s boyfriend was there and threatened to kill him.  There were lots of threats.

   [The father] said he had a very good relationship with the children.  They moved to Newcastle in August 2008.  He said that he had no contact with the children since December 2008.  “I might have to threaten to kill again to get action.”

4. Dr B asked the paternal grandmother about the father’s threats to kill people.  He reported:  “She said that he gets into a rage but he’s never hurt anyone.  He threatens me and then says sorry when it’s over and when he’s off the drugs and alcohol.”  According to the paternal grandmother the father had “calmed down a great deal”.  She did not believe he would hurt the children.

5. Dr B decided it was unsafe to interview the children with the father.  However, he took a detailed history from the mother and spoke with the children. 

6. Dr B’s opinion and recommendations are set out below:

   1.I recommend the children continue to live with the mother whom I believe is a capable parent and who is trying to establish a stable life.  She needs to have some protection from the father and it would be very destabilising if she were to be uprooted with her residence and the children’s schooling on a regular basis.  She appears to have formed a stable relationship with [Mr P] and this could be an ongoing positive support for her.

   2.I recommend when the children are eight and nine years of age that there be identification supervised day contact with the father perhaps twice a year.  The aim is to prevent the children from developing unrealistic fantasies about their father.  I believe in the short term there is too great a risk of destabilisation of the children and the mother if contact were established because of the father’s personality difficulties and his unpredictability.  Therefore I believe the potential for conflict, threat and aggression in front of the children is great and outweighs the possible benefits of seeing the father.

   3.I recommend that neither parent denigrate the other parent in front of the children.

   4.I recommend that no adults use any drugs or alcohol when the children are in their care.

   5.I recommend that both mother and father have their own respective individual counselling in order to help stabilise their lives.

   6.Both parents would benefit from parenting courses to increase their understanding of children and parenting.

   7.The father may choose to undergo extensive rehabilitation in order to stabilise his life in terms of antisocial activities and drug use.  If he is able to undergo thorough rehabilitation which would probably take months to years, then this could probably change whether he’s able to have a more active role in the children’s lives.  However, unless he was able to undergo such extensive rehabilitation I don’t believe that he should have contact with the children.

   8.Another possibility could be if the paternal grandmother were to allow herself to be assessed perhaps by the department of community services.  If she were deemed suitable there could perhaps be brief contact in the form of holiday for perhaps a day or two twice a year.  From the ages of eight and nine during this time if she were deemed competent the children could be under the responsibility of the paternal grandmother and [the father] could have some brief recognition contact in that context under her guidance.

   9.Should the father attempt to further destabilise or threaten the mother and the children I would recommend no contact at all.

1. I accept Dr B accurately reported his consultations.  Indeed, the history given to him by the father of threats and drug use was consistent with the records produced from F Hospital, Department of Corrective Services and NSW Police.

2. Consistent with Dr B’s recommendation, as I have already found, the mother arranged for the children to spend time with the paternal grandmother in S over the Easter 2010 school holidays.  Before the children went to S she obtained the paternal grandmother’s agreement the children would not speak with the father.  Unfortunately the paternal grandmother did not cooperate and L spoke with the father when he telephoned from gaol. 

Conclusion

1. I am strongly satisfied the father presents a grave risk of harm to the mother and children.  His threats to kill the mother have been made on numerous occasions.  The father has shown he is capable of extreme violence and it is a matter of good fortune he has not hurt the mother more seriously than the abuse and assaults inflicted upon her.  These are important matters.  Although the children were able to speak in favourable terms of the father and would be willing to see him, they lacked the maturity to appreciate the risks to them or the mother which this would entail.  Thus the children’s views warrant little weight.

2. In order to keep the mother and children safe, I do not propose to recite details of their circumstances.  It is sufficient to observe the mother and children are settled and happy.  In her care the children’s needs come first and they are well provided for.

3. The mother and children live at an address known to the Court but not the father.  It is fundamentally important to the mother’s ability to keep herself and the children safe he does not have this information.  While it would not be reasonably practicable for the children to regularly spend time with him, even if it was, the risks issues countermand such an approach. 

4. Even if the children were able to understand the importance they keep their whereabouts secret from the father and paternal grandmother, if the children were to have contact with either of them it is highly likely this information would be revealed.  I do not intend to say the paternal grandmother would pressure the children to reveal information for the purpose of relaying it to the father.  However, children inadvertently reveal personal information and unfortunately because she does not accept how dangerous he is to others, possibly also to her, she too might inadvertently provide information which would lead the father to the mother.  In this regard she has demonstrated an inability to prioritise the needs of others, even her own, when compared to the father’s. 

5. Because of my findings in relation to the father’s violence, the presumption of equal shared parental responsibility does not apply.  Because of the father’s long history of drug abuse, anti-social behaviour and the grave risk of harm he presents to the mother and children, he has demonstrated he lacks the capacity to prioritise the children’s needs or care for them adequately.  The father would be well advised to undertake long term drug rehabilitation and engage in intense and long term therapeutic support in order to take at least some first steps to address his anti-social behaviour and establish a framework which might see him able to turn his life around.  Unless he takes steps such as these, he is likely to remain a poor role model for the children and too great a risk to them and the mother to contemplate future contact. 

6. It would be an impossible situation to expect the mother to confer with him in relation to matters concerning the children, or facilitate a relationship between the children and the father, even on the limited basis recommended by Dr B.

7. For these reasons, I am satisfied the orders proposed by the mother and which had the support of the Independent Children’s Lawyer are in the children’s best interests. 

8. For these reasons, I made orders at the end of the hearing, which orders are set out at the commencement of this judgment.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  5 August 2010