Watton & Watton
[2024] FedCFamC2F 727
•11 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Watton & Watton [2024] FedCFamC2F 727
File number(s): DGC 3852 of 2023 Judgment of: JUDGE JENKINS Date of judgment: 11 June 2024 Catchwords: FAMILY LAW – PARENTNG – Rice v Asplund – as now codified in the Family Law Act1975 (Cth) s 65DAAA – final orders in August 2022 – father having no time with children – significant mental health issues – drug use – family violence – father’s failure to obtain treatment – lack of insight – father’s regular attendance upon two psychologists and a psychiatrist – completion of lengthy Men’s Behavioural Change Program and provision of multiple clean hair follicle tests – demonstration of insight – significant change of circumstances – best interests of children for final orders to be reconsidered Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAAA Cases cited: Albert & Plowman [2022] FedCFamC1F 243
Watton & Watton [2022] FedCFamC2F 1095
Rice & Asplund (1979) FLC 90-725
Walden & Cooper [2020] FamCA 104
Walter & Walter [2016] FamCAFC 56
Division: Division 2 Family Law Number of paragraphs: 66 Date of last submission/s: 27 May 2024 Date of hearing: 27 May 2024 Place: Dandenong - via Microsoft Teams Counsel for the Applicant: Mr North SC Solicitor for the Applicant: Phaedonos Law Counsel for the Respondent: Ms O’Connell Solicitor for the Respondent: Fiona McGregor Family Lawyer Pty Ltd ORDERS
DGC 3852 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WATTON
Applicant
AND: MS WATTON
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
11 JUNE 2024
THE COURT ORDERS THAT:
1.Pursuant to section 65DAAA of the Family Law Act 1975 (Cth) the Court is satisfied that, in all of the circumstances, there has been a significant change of circumstances since the final parenting order was made and that it is in the best interests of the children for the final parenting order to be reconsidered.
2.The matter be listed for further case management before a Judicial Registrar on a date to be advised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This matter comes before me as an application by the father pursuant to what was known as the rule in Rice v Asplund[1] (“Rice v Asplund”) that is now codified in s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”).
[1] (1979) FLC 90-725.
Final orders were made on 18 August 2022 (“the final orders”) following a final hearing before her Honour Judge Bender. The final orders provide for the children X born in 2011 and Y born in 2016 (“the children”) to live with the mother, for the mother to have sole parental responsibility and for the father to spend no time and have no communication with the children save for sending letters and cards on their birthdays, at Easter and Christmas.
The father’s case is that since the final orders were made, he has addressed the concerns that were raised at trial including his mental health issues, his drug use, and his violent treatment of the mother and children. He says this constitutes a significant change in circumstances and that it would otherwise be in the best interests of the children to reopen the matter.
The mother says that the evidence provided by the father as to his treatment is deficient for various reasons including that the treaters have not demonstrated they understand the issues in this matter, nor explained in what way the father has developed insight into his behaviour. Furthermore, the mother submits that the court cannot rely upon his hair follicle testing because historically he has forged the results. In any event, the mother’s case is that if the matter was reopened that this would have a devastating effect on her mental health and would otherwise negatively impact the children.
DOCUMENTS RELIED UPON
The father relied on the following documents:
(a)Initiating Application filed 25 November 2023;
(b)His affidavit filed 26 April 2024;
(c)Affidavit of Dr S filed 29 April 2024;
(d)Affidavit of Dr BB filed 1 May 2024;
(e)Affidavit of Mr CC filed 21 May 2024;
(f)Hair follicle test dated mid-2024;
(g)Judgment of her Honour Judge Bender dated 18 August 2022;
(h)Affidavit of Dr Q filed in the previous proceedings on 3 May 2021; and
(i)Outline of Case filed 18 May 2024.
The mother relied on the following documents:
(a)Response to Final Orders filed 19 January 2024;
(b)Notice of Child Abuse, Family Violence or Risk filed 19 January 2024;
(c)Her affidavit filed 10 May 2024; and
(d)Outline of Case filed 17 May 2024.
In addition, the parties relied on the following exhibits:
(a)The father’s hair follicle test dated mid-2024 tendered on his behalf as exhibit ‘F1’;
(b)The father’s certificate of completion from the DD Centre tendered on his behalf as exhibit ‘F2’;
(c)Short medical report of Dr M tendered on the father’s behalf as exhibit ‘F3’;
(d)The father’s attendance record at a Men’s Behaviour Change Group, parenting after separation completion certificate and screenshots of Z Centre progress tendered on the father’s behalf as exhibit ‘F4’;
(e)The father’s hair follicle tests in the years 2022-2023 tendered on his behalf as exhibit ‘F5’;
(f)Dr S’s report at annexure S1 of his affidavit tendered on the father’s behalf as exhibit ‘F6’;
(g)Mr CC’s report at annexure CC1 of his affidavit tendered on the father’s behalf as exhibit ‘F7’;
(h)Dr BB’s report at annexure BB1 of her affidavit tendered on the father’s behalf as exhibit ‘F8’;
(i)Dr Q’s report annexed to his affidavit tendered on the father's behalf as ‘F9’; and
(j)The intervention order dated early 2024 tendered on behalf of the mother as exhibit ‘M1’.
THE EVIDENCE
This matter proceeded by way of Microsoft Teams. Although there was the occasional technical glitch, I was satisfied that this did not interfere with the overall running of the proceeding.
The matter otherwise proceeded on submissions. Although the mother’s counsel sought to cross-examine all of the father’s treating professionals, I did not allow this to occur. The father’s counsel submitted that at a preliminary hearing, cross-examination ought not occur as the father’s evidence should be taken at its highest. Whilst I do not accept the proposition that cross-examination should never occur at a preliminary hearing, a proper testing of the father’s case would likely require a multi-day hearing and in fairness to the father, would probably require cross-examination of the mother, given her assertions as to the impact on her of reopening the proceedings. In the end, I determined the matter ought to proceed by way of submissions, with no cross-examination of the witnesses.
Whilst I have taken into consideration all of the submissions made at the hearing, it is not necessary to refer to every aspect of those submissions in this judgment.
FINAL ORDERS – AUGUST 2022
The final hearing of this matter took place before her Honour Judge Bender on 26 - 28 April and 5 and 6 May 2022. Her Honour handed down her judgment on 18 August 2022 (“the judgment”) which I have read in its entirety.
A detailed history of this matter is contained in the judgment which I shall not repeat here.
As stated, her Honour ultimately determined that the father should spend no time and have no communication with the children, save for cards and letters on their birthdays, at Easter and Christmas.
The key concerns identified at the trial was that the father had done very little to address his mental health issues, his drug use and/or to acknowledge the impact of his violent behaviour on the mother and the children. Furthermore, that as a result of the father’s behaviour, the mother had suffered Post Traumatic Stress Disorder (“PTSD”).
At [241] – [242] of the judgment her Honour stated as follows:
The evidence before the Court makes it clear that the Father has struggled to accept his diagnosis of [a mental health condition] and has never accepted that he needs to undertake intensive treatment in order to assist him to better manage that condition. He believes the medication he takes to assist him with his depression and anxiety is sufficient to manage his mental health issues despite the very clear evidence this is not the case.
It is also evident from the Father’s evidence that he has no insight into the impact his mental health has on his behaviours and in turn how that impacts those around him, particularly the Mother, [X] and [Y]. [2]
[2] Watton & Watton [2022] FedCFamC2F 1095 (“Watton”).
Nonetheless, Her Honour stated the following:
I would however note that the door is not permanently shut for the Father to have a relationship with his children. If he is able to show that he has accepted the diagnosis of [a mental health condition], has fully engaged with the recommended DBT and has evidence from his treater of real change as a result of that engagement, that he is drug free and has been for a very long period of time and that he has developed insight into the impact of his behaviours on himself and others, then there is the possibility he could have a relationship with [X] and [Y]. [3]
(emphasis added)
[3] Watton at [261].
The father now comes to court having completed the following:
·50 sessions of Dialectical Behaviour Therapy (“DBT”) with a psychologist;
·8 sessions of general therapy with another psychologist;
·an updated assessment with his psychiatrist;
·20 sessions of a Men’s Behavioural Change Program; and
·5 hair follicle tests that are clear for illicit substances.
The father has produced reports from each of his mental health professionals which he says evidences that he has developed insight into his behaviour.
THE LAW
The “rule” pursuant to the case of Rice v Asplund has now been codified in the recent amendments to the Act as follows:
Section 65DAAA Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
The section confirms the two-step process pursuant to the rule in Rice v Asplund. That is, I must be first satisfied there has been a significant change of circumstances since the final parenting order was made and if so, that in all of the circumstances it would be in the best interests of the children to reopen the matter.
The authorities with respect to Rice v Asplund were summarised in Walden & Cooper [2020] FamCA 104, as follows:
The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
In order to determine the existence and materiality of the asserted change in circumstances, consideration should be given to (Marsden v Winch at [50]):
(a)the past circumstances, including the reasons for the original decision and the evidence upon which it was based;
(b)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; and
(c)if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause.[4]
[4] Walden & Cooper [2020] FamCA 104 at [9] – [11].
Whilst these cases predate the current legislation, the wording in the Act essentially mirrors the rule in Rice v Asplund, and until guided otherwise, I have no reason to believe those authorities do not remain good law.
THE FATHER’S EVIDENCE
As stated by the court in Albert & Plowman [2022] FedCFamC1F 243 as cross-examination was not permitted the father’s untested evidence should be accepted at its highest “unless it is inherently unreliable.[5]
[5] Albert & Plowman [2022] FedCFamC1F 243 at [26].
In this case, the mother argues exactly that; that the father’s evidence is inherently unreliable.
REPORT OF DR S
Dr S prepared an affidavit in this matter that was sealed on 29 April 2024. Annexed to the affidavit was a report dated 28 April 2024 which became exhibit ‘F6’.
Dr S is a consultant psychiatrist who has been treating the father since 2007. Prior to preparing his updated report, Dr S had further sessions with the father in early 2024 and early 2024.
In his report Dr S states as follows:[6]
In summary, his psychiatric conditions are well controlled, as per psychologist [Mr CC] report dated [early] 2024. He does not meet the criteria now for [a mental health condition]. I agree with [Mr CC]'s findings completely. He has completed men's behaviour programme and has gained insight into his behaviour.
…
Recommendation
I have no doubt that he is no danger to his children or to anybody, for reasons sighted above, i.e. his psychiatric problems are well controlled. He is free from illicit drug use, as his hair follicle test report dated [early] 2024 was clear.[7]
[6] Father’s exhibit F6 at page [2].
[7] Father’s exhibit F6 at page [2].
However, counsel for the mother points out that Dr S prepared an earlier report for the father on 8 September 2020 in which he stated that the father was in a fit mental state and posed no emotional threat to the children when both of those assertions were clearly untrue at that time. Counsel submits that I ought to place little or no weight on Dr S's report as a result and I tend to agree. Dr S is clearly a champion for the father who seemingly failed to identify significant concerns back in 2020, so his current assessment can have little weight in my view.
REPORT OF MS BB
Dr BB prepared an affidavit in this matter which was sealed on 1 May 2024. She annexes a report to that affidavit dated 29 April 2024 which became exhibit ‘F8’ in this matter.
Dr BB is a registered psychologist. She commenced working with the father in late 2022 on a fortnightly basis which then reduced to monthly. At [6] of her report, Dr BB states:
Treatment sessions have continued to focus on addressing [Mr Watton]'s symptoms of [mental health conditions]. In addition, family therapy, positive parenting and effective parallel parenting have also remained an important focus of intervention.[8]
[8] Father’s exhibit F8.
Dr BB administered a number of psychometric tests over time which suggest a reduction in symptomatology.
At [19] Dr BB concludes:
[Mr Watton]'s current psychological presentation indicates that he no longer fulfils the DSM-5 criteria for a [mental health conditions]. However, considering these previous diagnoses and his current psychological presentation, [Mr Watton] is diagnosed with a mild depressed mood and anxious distress as defined in the Diagnostic and Statistical Manual of Mental Disorders -Fifth Edition (DSM-5) of the American Psychological Association.[9]
[9] Father’s exhibit F8.
In regard to his insight into his behaviour Dr BB says as follows at [13]:
[Mr Watton] has been able to recognise his mistakes and accept responsibility for the parts of this behaviour during the marriage were not appropriate (e.g. verbal altercations and drug use), resulting in the separation from his two children. He described an endless cycle of mental health challenges, which he could not fix pre separation or initially post-separation. He accepts and recognises that interventions have helped him to gain insights about his mental health and learn to self-manage his symptoms, with the aid of a multidimensional approach to his treatment.
Furthermore, Dr BB’s opinion is that the father “impressed genuine change as an individual” and she reports:
With the aid of intervention, [Mr Watton] has been able to reflect and redefine his parenting style and parenting goals for his children consistent with positive parenting techniques. [Mr Watton] has gained insights into his previous behaviours and responses to stressors and understands how his inability to self-regulate his emotional response not only hurt others in the context of the separation, but also impacted his children's psychological well-being.[10]
[10] Father’s exhibit F8 at [27].
However, counsel for the mother says no weight should be placed on this report. She describes the psychometric testing as “questionnaires that tell me nothing”. Counsel says that Dr BB purports to be conducting family therapy and yet has never met the mother nor the children. Further to this, Dr BB appears to believe the father’s issues were confined to the marriage when their genesis was much earlier, makes judgements about the mother (who again Dr BB has never met), shows no knowledge of the father’s demeaning attitude to the mother, and makes recommendations about the children which is beyond her brief.
Whilst I accept many of these criticisms, I do not accept that the report should be given no weight or that it renders all of Dr BB’s conclusions invalid.
REPORT OF MR CC
Mr CC is a registered psychologist who prepared an affidavit in this matter which was sealed on 21 May 2024. His report dated 15 April 2024 was annexed and became exhibit F7 in this matter.
The father has attended 50 sessions with Mr CC since commencing therapy with him in mid-2022. These included individual and group sessions and completing weekly homework tasks. Mr CC, like Ms BB has also conducted a number of psychometric tests on the father.
Mr CC reports:
[The father] has been open and honest in sessions about his past behaviour and shown insight into those factors that may have contributed to the court's previous decision to restrict his access to his children.[11]
[11] Father’s exhibit F7 at page [5].
Mr CC goes on to conclude that the father has had a significant reduction in his symptoms and no longer meets the criteria for [mental health conditions] or major depression.
However, counsel for the mother submits that this report should be treated with a great deal of caution for a number of reasons including:
·Mr CC was only provisional psychologist when he commenced working with the father and in her view was not suitably qualified to treat the father;
·Mr CC appears to have taken a “tick a box approach” to therapy with the father;
·Mr CC does not appear to have read the judgment and therefore would not have the full views and ultimate recommendations of Ms W and Dr Q given in their oral evidence;
·The results in the father’s psychometric testing vary and are inconsistent with those of Dr BB;
·Mr CC does not refer to the serious psychiatric problems of the father or his demeaning attitude to the mother identified at trial; and
·The father is dishonest and is likely to have manipulated Mr CC.
I accept that there may be merit in many of these arguments. In particular, it is unclear exactly what Mr CC understood were the concerns and specifically how the father has shown insight. Accordingly, I accept that Mr CC’s report should be treated with some caution.
HAIR FOLLICLE TESTS
The father has completed hair follicle tests on the following dates which were all negative for illicit substances:
Tests conducted 2022 - 2024
The mother’s counsel argues that because the father forged at least one hair follicle test during the last proceedings,[12] the court can have no confidence that these tests are accurate.
[12] Watton at [55].
However, it was conceded that the mother was provided with at least four of these tests in 2023, with another provided in early 2024 and the last in mid-2024. At no stage has the mother sought to challenge those tests or to subpoena the records of the testing facility.
DETERMINATION
Whilst I place no weight on the report of Dr S, the reports of Mr CC and Dr BB indicate prima facie that the father has attended multiple sessions for treatment and that he has shown insight into his behaviour. Counsel for the mother points out a number of valid criticisms of those reports. However in my view the father’s attendance upon these experts, in particular attending 50 sessions of DBT, is in itself sufficient to demonstrate a significant change in circumstances.
At [138] of the judgment her Honour states as follows:
[Dr Q] agreed that the most effective treatment for people with [a mental health condition] is DBT. [Dr Q] also agreed that DBT requires enormous commitment from the person undertaking that therapy. He was asked whether the Father fitted into the category of someone who would be committed and could follow through with the intensive therapy that effective DBT requires. [Dr Q] responded:-
“I believe that in regard to aspects of his functioning he really does lack insight and he’s inclined to see the problems lying outside of himself. So that… his psychiatrist treatment notes do not refer to him being challenged in any way in regard to his behaviours and beliefs. So that’s the big if and I would have to say he’s a fifty-fifty bet at this stage.”[13]
[13] Watton at [138]..
Her Honour further states:
[Dr Q] then said “Can I make one more comment, your Honour?” and he proceeded to say:-
“One of the problems here is there’s no score on the board for the Father where upon he has actually done something to demonstrate to the Court that he ought to be seen in a better light and to have earned some points and I think that’s a big problem. That speaks to not only a lack of insight but also a certain lack of decency when it comes to being aware that obviously he’s going to have to prove himself to the Court in order to be the father that he requests to be. So I consider the fact that he hasn’t engaged in any such treatment is a big black mark really.”[14]
[14] Watton at [142].
It was evident that the doubts about the ability of the father to follow through with therapy was shared by her Honour who expressed the following:
Whilst it is hoped that the Father now genuinely understands the seriousness of his diagnosed mental illness and the necessity for him to fully engage in treatment that will assist him to change him behaviours, the tenor of his evidence both in his affidavit and during the hearing raises a real concern that he does not really accept his diagnosis, the necessity to engage in the treatment or that he will do so for the extended period of time and with the commitment such treatment requires. [15]
[15] Watton at [255].
Furthermore, there was concern about how the father might react if he did not have any time with the children:
[Dr Q] was asked what might be the reaction of the Father in the event that his application was unsuccessful and orders were made for him to spend no time with [X] and [Y]. [Dr Q] opined that people with [mental health conditions] act out when things happen against their wishes, which he suggests the Father did earlier in proceedings when orders were not made as the Father had hoped. He therefore suggested there is every chance that the Father would act out again and that it is very important his treaters be advised if there is such a decision, as some form of hospitalisation may be required. [16]
[16] Watton at [150].
However not only did the father not “act out again” nor require hospitalisation he appears to have defied all expectations and taken on board the necessity for treatment. What the father gained from this process, whether he has developed any insight and to what degree he has made progress is a matter that will ultimately require cross-examination of the father. However, the father now has, to use the words of Dr Q, “scores on the board”. This in my view represents a significant departure from the circumstances that existed when the final orders were made in August 2022.
BEST INTERESTS OF THE CHILDREN
Nonetheless, as indicated above this does not mean that it would be in the best interests of the children to relitigate the final orders.
Counsel for the mother submitted that when determining the best interests of the children the court must give careful consideration to each and every one of the factors in s 60CC of the Act. Counsel for the father argues that the court need not consider each of the matters but only those that are relevant to the enquiry in s 65DAAA(1)(b). In this regard he quoted [106] of the decision in Walter & Walter:[17]
Thus, although the children’s best interests is fundamental to each, in respect of the former question, the circumstances of a particular case might dictate that:
…[I]t is neither necessary or appropriate…to give detailed attention or consideration…to each of the various objects and considerations specified in [Part VII of the Act] of the kind which would necessarily occur if it was decided that the best interests of the child[ren] required relitigation of those issues... 17
[17] [2016] FamCAFC 56
I do not accept that s 65DAAA mandates the court to consider each of the sections in 60CC in detail. In keeping with authorities such as Walter & Walter, I have taken into account each of the considerations of s 60CC as well as the other matters in s 65DAAA(2), to the degree that they are relevant to the decision I have to make and to the degree that I am able on the evidence available.
Section 60CC(2) which came into effect on 6 May 2024 states as follows:
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)order that applies or has applied to the child or a member of the child’s family.
In this matter I have given particular consideration to the family violence perpetrated by the father during the relationship, towards both the mother and children, as well as the family violence he committed prior to the relationship with the mother which included assaulting a woman in 2005. I am also aware that her Honour concludes as follows:
As previously set out in this judgement [Dr Q] and [Ms W] are of the view that it was the Mother who was primarily the victim of the Father’s behaviours, threats and sexual coercion, a view shared by the Court. [18]
[18] Watton at [221].
I was provided with a copy of a final intervention order which was made for a period of five years on behalf of the mother and the children. This will not expire until early 2027.
However, if I take the father’s case at its highest, in addition to intensive therapy, he has completed an extensive men’s behaviour change course and shown insight into his abusive behaviour. The father has also been drug free for an extensive period of time.
Nonetheless, I am also aware that this is unlikely to give the mother any comfort. The mother has suffered PTSD as a result of the father’s violence. In this regard I note the following in her Honour’s judgment:
[Dr Q] was asked to comment on the observation in his report that the Mother conveyed a real sense of fear of the Father. [Dr Q] observed that the Mother’s fear was palpable. [Dr Q] was then asked whether the Mother’s fear was reasonable and genuinely held. [Dr Q] responded “Yes, yes, yes. It was… more than genuine… It was really apparent”.[19]
It was then put to [Dr Q] that the Mother’s PTSD would be exacerbated by an order for [X] and [Y] spend time with the Father given what she told him and what he observed of the Mother. [Dr Q] responded “particularly after what I’ve heard today, yes.”[20]
[19] Watton at [147].
[20] Watton at [149].
I have also read her Honour’s observations at [257] of the judgment:
The Father’s proposal that an order be made that if he does certain things then supervised time commence, also cannot be seen to be in the best interests of [X] and [Y]. The impact on the Mother of such an order being in existence will be distressing and would, I am satisfied, exacerbate her PSTD. This in turn would negatively impact her parenting capacity and impact her care of [X] and [Y].
Although this was two years ago, and the mother has provided no evidence of her current psychiatric state, it is a matter I have taken into serious consideration.
Otherwise, I have little evidence on which to make an assessment of the other matters in section 60CC. The current views of the children, their psychological and other needs, and the abilities of the parties to meet them at the present time are unknown.
However, her Honour, who had the benefit of hearing all the evidence at trial appeared to be of the view that if the father addressed all of the concerns it may be in the best interests of the children to have a relationship with him in the future. Her Honour stated as follows:
I would however note that the door is not permanently shut for the Father to have a relationship with his children. If he is able to show that he has accepted the diagnosis of [a mental health condition], has fully engaged with the recommended DBT and has evidence from his treater of real change as a result of that engagement, that he is drug free and has been for a very long period of time and that he has developed insight into the impact of his behaviours on himself and others, then there is the possibility he could have a relationship with [X] and [Y]. [21]
[21] Watton at [261].
In this regard I do not need to determine the likelihood that a court would make a new parenting order. Section 65DAAA(2)(c) merely lists this as a matter the court may consider. In this case, I do not know whether after all the evidence is heard, that the court will determine it is in the best interests of the children to vary the orders. However, in my view it is in the children’s best interests that the question of their relationship with the father be revisited. The children are still young, only 12 and seven years of age and if the father has truly changed, there may yet be time to re-establish this relationship.
In coming to this conclusion, I have factored in pursuant to s 65DAAA(2)(d), the impact on the children of being subjected to further assessments, as well as the impact on the children of any deterioration in the mother’s mental health. However, I note that counsel for the father advised the court the father would not be seeking interim orders but rather would agree to the matter going straight to trial. If so, the impact on the children and the mother will hopefully be ameliorated.
In any event, for all the aforementioned reasons I am of the view that the benefit to the children of potentially having a relationship with the father, with whom they currently have no relationship, outweighs these concerns.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 11 June 2024
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