Whitfield and Donovan
[2017] FCCA 73
•19 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITFIELD & DONOVAN | [2017] FCCA 73 |
| Catchwords: FAMILY LAW – Parenting – where there are serious allegations of domestic and family violence – where the father has not spent time with the children for a period in excess of three years – where expert evidence suggests that there may be serious negative emotional consequences for the mother and therefore the children should orders be made for the father to spend time with the children – where consideration needs to be given to the principals as first enunciated in Russel v Close – where orders should be made that reflect the paramount consideration being the best interests and welfare of the children. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CA, 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE |
| Cases cited: In the Marriage of N v S (1996) FLC 92-655 Unacceptable Risk – A Return to Basics, Hon John Fogarty AM (2006) 20 Australian Journal of Family Law 249 |
| Applicant: | MR WHITFIELD |
| Respondent: | MS DONOVAN |
| File Number: | BRC 504 of 2015 |
| Judgment of: | Judge Coker |
| Hearing dates: | 12, 13 & 14 July 2016 |
| Date of Last Submission: | 7 December 2016 |
| Delivered at: | Townsville |
| Delivered on: | 19 January 2017 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms McDiarmid |
| Solicitors for the Respondent: | Springwood Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Cameron |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2006 and Y born (omitted) 2009 (herein after referred to as ‘the children’) including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
That the children live with the mother.
That within fourteen (14) days of receiving a written request by the mother, the father shall do all such acts and things and sign all such deeds, documents, instruments and consents as may be necessary to cause a passport to issue in the names of the children.
That in the event that either the father refuses or fails to do all such acts and things and sign all such deeds, documents, instruments and consents as may be necessary to cause a passport to issue in the names of the children then, notwithstanding s.11(1) of the Australian Passports Act 2005, a passport shall issue without requiring the father to sign the children’s passport/passport renewal applications.
That all extant applications be otherwise dismissed.
That each party be granted liberty to apply within 28 days of the date of this order in relation to any point of clarification of the orders and in respect of costs.
IT IS NOTED that publication of this judgment under the pseudonym Whitfield & Donovan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
BRC 504 of 2015
| MR WHITFIELD |
Applicant
And
| MS DONOVAN |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 21 January 2015 Mr Whitfield, whom I shall refer to as the father, filed an initiating application in this court seeking orders with regard to the parenting of two young children. Those children are X, born (omitted) 2006 and Y, born (omitted) 2009. The children are the children of the father and Ms Donovan whom I shall refer to as the mother. The matter has had a lengthy and unfortunate history.
It will be necessary during these reasons to address a considerable number of issues with respect to the parent’s relationship particularly as the orders that are sought to be made, at least from the perspective of the mother, are to entirely preclude the father from any relationship whatsoever with the children.
Before addressing the orders in relation to the matter, however, it is necessary to note one matter of particular concern with regard to the determination of these proceedings. That relates to the fact that the matter was heard in Brisbane on 12 and 13 July 2016. Significant amounts of evidence were called in relation to the proceedings, and it was noted that as the father was self-represented at the hearing, it was appropriate that written submissions should be provided, particularly by the legal representatives for the independent children’s lawyer and for the respondent mother.
That course would provide specifically an opportunity for the father to see what submissions were made and the basis upon which those submissions were made, so as to enable him to have the opportunity to respond and to raise any issues that might be considered significant in relation to those submissions, and allow him to counter or challenge assertions that might be made.
Order 1 of the orders made at the conclusion of the hearing on 13 July 2016 are, therefore, significant. Those orders were in these terms:
1)That the parties are to file written submission with the court and the other parties in the matter pursuant to the following directions:
a.the independent children’s lawyer file written submissions by no later than 29 July 2016;
b.the respondent file written submissions by no later than 19 August 2016; and
c.the applicant file written submissions by no later than 16 September 2016.
A considerable period was provided for submissions to be filed in relation to the proceedings, noting, as all did, that it was not suggested by any of the parties that orders with regard to the parenting of the children should be put into place at least until there was some clear understanding of what might be the position with regard to criminal charges brought against the father. I shall come to those a little later in the reasons.
However, it is noteworthy that whilst the independent children’s lawyer was directed to file and serve written submissions by 29 July 2016, for some reason which was unexplained those submissions were not filed until 25 October 2016. In other words, some three months late.
Further, the direction given with respect to submissions on the part of the respondent mother was that they be filed and served by no later than 19 August 2016. Whilst the delay in filing might be explained as a result of the mother awaiting receipt of submissions from the independent children’s lawyer, it is noteworthy that those submissions were not filed until 7 December 2016, in other words, some seven weeks or so after the submissions were filed on the part of the independent children’s lawyer.
It is troubling that the legal representatives for the independent children’s lawyer and the mother chose to completely disregard the directions that were made in relation to the proceedings, particularly when it is clear that there are very real issues and concerns that exist with regard to the welfare and the parenting of the children the subject of these proceedings.
Troubling also but perhaps understandable in light of the submissions made and the concerns raised by both the independent children’s lawyer and the legal representatives for the mother, is the fact that the father has not filed any submissions in relation to the final determination of these proceedings.
I have determined, however, that the welfare of the children require a decision to be made prior to the commencement of the 2017 school year, so as to provide certainty for all in relation to these proceedings.
THE APPLICATIONS:
The orders that were sought by the father in his initiating application were drafted in terms of both interim and final orders. However, the application that came before me and was heard over the two days, however, was the final application and in that regard I note that the final orders proposed by the father were as detailed in his initiating application of 21 January 2015. Those orders were in these terms:
1. That the Mother and the Applicant Father have equal shared parental responsibility for the long term care, welfare and development of the children X born (omitted) 2006 and Y born (omitted) 2009 (herein after referred to as ‘the children’).
2. That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:-
a. They shall inform the other parent about the decision to be made;
b. They shall consult with each other on terms that they agree;
c. They shall make a genuine effort to come to a joint decision.
3. That notwithstanding the provisions of Order 1:-
a. The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.
b. The Applicant Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
CHILDREN’S LIVING ARRANGEMENTS
4. That the children live with the Mother.
5. That the children are to spend time and communicate with the Applicant Father as agreed between the parties, but failing agreement as may be determined by this Honourable Court.
It should be noted, however, that the father when acting on his own behalf filed a case information document on 23 June 2016 and there detailed the orders that he proposed with regard to the parenting of the children and those orders were somewhat different to those detailed in the initiating application.
The terms of those orders were as follows:
1. That the Mother and the Applicant Father have equal shared parental responsibility for the long term care, welfare and development of the children X born (omitted) 2006 and Y born (omitted) 2009.
2. That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:-
a. They shall inform the other parent about the decision to be made;
b. They shall consult with each other on terms that they agree;
c. They shall make a genuine effort to come to a joint decision.
3. That notwithstanding the provisions of Order 1:-
a. The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.
b. The Applicant Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
4. That the children are to spend time and communicate with the applicant father as agreed by the court.
5. That the mother pay the Applicant Fathers cost with respect to these proceedings.
6. That the Father has communication with the children while in the responsibility of the mothers daily care and welfare at least twice per week.
The mother then filed a response on 10 June 2015. It is not exactly clear why so much time past in relation to the filing of the material, though I note that the original application by the father included what is commonly referred to as orders with regard to the provision of information from a Commonwealth department and I would presume that the father says that he had no information as to the whereabouts of the mother.
In any event, the response filed by the mother proposed final and interim orders with regard to parenting which were succinct and to the point. The orders sought by the mother on a final basis were in these terms:
1. That the father’s application for final orders be dismissed;
2. That the children, X, born (omitted) 2006 and Y, born (omitted) 2009 (‘the children’) live with the mother.
3. That the mother be excused from detailing proposal for father’s time with the children until she has had the opportunity of considering a family report.
The mother then filed an amended response to the initiating application on 16 June 2016. There the mother detailed more precisely the orders that she proposed in relation to the parenting of the children, though it should be noted that there were no proposals with regard to time to be spent by the children with the father and the only real additions were to the effect that the mother proposed that she have sole parental responsibility for decisions to be made in relation to the children and that orders be made with regard to the mother being able to obtain a passport for the children in the event of the father failing to complete an application for the issue of a passport in their name.
The orders sought by the mother in the amended response of 16 June 2016 were in these terms:
1. That the father’s application for final orders be dismissed;
2. That the children, X, born (omitted) 2006 and Y, born (omitted) 2009 (‘the children’) live with the mother.
3. That the mother have sole parental responsibility with respect to the children.
4. That within fourteen (14) days of receiving a written request by the mother, the father shall do all such acts and things and sign all such deeds, documents, instruments and consents as may be necessary to cause a passport to issue in the names of the children X born (omitted) 2006 and Y born (omitted) 2009.
5. That in the event that either the father refuses or fails to do all such acts and things and sign all such deeds, documents, instruments and consents as may be necessary to cause a passport to issue in the names of the children X born (omitted) 2006 and Y born (omitted) 2009 then, notwithstanding S11(1) of the Australian Passports Act 2005, a passport shall issue without requiring the father to sign the children’s passport/passport renewal applications.
6. That the father pay the mother’s costs with respect to these proceedings.
7. Further Orders as this Honourable Court deems meet.
Noting that the father was unrepresented in these proceedings, and particularly noting that a family report had been ordered at an early stage, an independent children’s lawyer was appointed to represent the interests of the children. At the commencement of the hearing, the independent children’s lawyer’s indication was that there was no particular preliminary view held in relation to what orders should be made but that there was a “primary issue” to be considered which was whether the mother made out a case pursuant to what is sometimes referred to as “the Russel & Close” considerations.
After the hearing of the matter and when written submissions were eventually received from the independent children’s lawyer, specific indications were given of the orders that would be recommended by the independent children’s lawyer. Those orders were again direct, short and to the point and were in these terms:
1. The children live with the mother;
2. The mother have sole parental responsibility for long term and day-to-day decisions relating to the children’s care, welfare and development;
3. The children spend no time with the father;
4. Orders relating to passports be made in accordance with the mother’s amended application filed 16 June 2016.
The position of the independent children’s lawyer, therefore, is generally supportive of the position taken by the mother. In other words, that she should have sole parental responsibility for decisions to be made with regard to the parenting of the children, that the children should live with her and that the children should have no relationship or contact whatsoever with their father.
THE EVIDENCE:
A considerable effort was made to gather evidence in relation to the thorny issues that arose in relation to these proceedings. To that end, as I indicated, a family report was commissioned and that report dated 6 August 2015, was released by Judge Spelleken on 7 August 2015. The report, under the hand of the family consultant Ms P, was relied upon and Ms P was required for cross-examination. The report was admitted into evidence as exhibit 10. I shall come to the evidence of Ms P in relation to this matter shortly.
Similarly, the legal representatives for the mother commissioned the preparation of a report by a psychologist, Ms C, and that report of 10 June 2016 is annexed to the affidavit of Ms C filed on 14 June 2016. Again, I shall come to the evidence of Ms C in relation to this matter shortly.
Both the mother and the father were required for cross-examination and lengthy cross-examination was conducted in respect of both the mother and the father. Also called was the paternal grandfather, Mr K. Mr K had filed an affidavit in support of the father on 27 June 2016.
I intend, somewhat unusually, to address the evidence in relation to this matter in a different order. In other words, I intend to refer briefly to the evidence of Mr K as a supporting witness, but then turn specifically to the evidence of the professional or expert witnesses, Ms C and Ms P. It is important that their evidence be clearly understood so as to provide a greater opportunity to consider the issues that were raised in relation to the cross-examination of the mother and the father.
Mr K, in his affidavit filed 27 June 2016, noted at paragraph 5 as follows:
In the interests of my grandchildren, I have endeavoured to stay impartial to Mr Whitfield and Ms Donovan’s family conflict as much as possible.
Mr K then goes on to note that he had the opportunity, with the acquiescence and approval of the mother, to spend time with the children, X and Y, subsequent to separation which he recalled occurred between the mother and the father some time in 2010. He notes that his time spent with the children was enjoyable and memorable and he goes on to note that, with the agreement of the mother, he was able to facilitate opportunities for the father to spend time with the children when the children were in his care following separation.
He notes, and I accept, that the children were excited when seeing their father and that the children expressed a desire for the father’s arrival so as to enable them to spend time with their father. Mr K went on to note at paragraph 10 that he was, “the entrusted guardian of X and Y” and that he was always discreetly observant of the father’s interaction with the children. He noted that the father was enthusiastic, considerate and attentive as a father to the children but then in a very general way, noted at paragraph 12 and onwards the following:
12. Approximately August 2013 Mr Whitfield and Ms Donovan had a dispute regarding Mr Whitfield’s access to the children for Father’s Day which culminated in Ms Donovan denying Mr Whitfield any further access to the children.
13. The dispute revolved around text messaging with implied threats from Mr Whitfield.
14. Ms Donovan did discuss these text messages with me.
15. I did raise Ms Donovan’s concerns over the threats with Mr Whitfield and he was firmly adamant that he had reacted out of frustration because he had no idea what to do next to see his children. Mr Whitfield was resolute that he had no intent whatsoever of harming Ms Donovan, Mr C or the children.
Mr K notes that he was satisfied from discussions with the father that the father was just posturing and blowing off steam and that the father had acted out of despair without any intent to act upon the threats contained within the texts that were exchanged between he and the mother.
Mr K also denied the suggestion by the mother that he had declined further opportunities for time with the children, out of a concern that it would conflict with his situation with the father. I shall come to that a little later in these reasons but also note that Mr K categorically denies information that was provided to the mother to the effect that subsequent to that occasion in August 2013, there had been an altercation between Mr K and his son and that threats of a serious nature were made by the father toward Mr K. Mr K says at paragraphs 26 and 27 the following:
26. I firmly believe that X and Y should be afforded their right to know and experience their father. As their young, enquiring minds develop they will want answers and it is my feelings that regular contact would go a long way to satisfying their need to know. I am of the firm belief that this would minimise probable hurts and regrets that would arise in their future lives.
27. I do firmly believe that Mr Whitfield should be given the chance to prove himself as the father of X and Y. In my discussions with Mr Whitfield, he has been resolute in his desire to re-establish a relationship with his children. Mr Whitfield has strongly indicated that he is prepared to be patient and take it slowly to show that he is sincere in his need to be with his children. It is my thoughts that a good starting point would be access through a contact centre where the onus would be on Mr Whitfield to prove that his intent and integrity are genuine.
Mr K was cross-examined about the various matters that were raised in his material. He denied the suggestion that he had chosen to have no contact with the children and, in fact, suggested that his position was exactly the opposite and that he had wanted to help negotiate arrangements with regard to the father spending time with the children. Mr K also was questioned about the issues with regard to whether the father had threatened to shoot him and had threatened to slit Mr K’s wife’s throat.
He responded that that was nonsense and that it was “malicious gossip” that had not come from him. What is clear, however, is that, the suggestions had come from the father’s sister, Mr K’s daughter Ms K, and it was noteworthy that neither the mother nor the father called Ms K. I would infer, however, that it was far easier, if it were not true, for the father to have called that evidence from his sister in relation to whether or not such threats were made.
And while it is difficult to determine one way or the other whether the statements by Ms K were a true reflection of what had gone on between the father and paternal grandfather, I am certainly of the view that there was something that arose, even if exaggerated by the father’s sister, which gave rise to concerns. The evidence of the father and the mother was that there was a significant altercation between the father and his sister, though the extent of threats made by the father are in dispute, but it is acknowledged that, at the very least, a threat was made to “firebomb” the sister’s vehicle.
Mr K acknowledged that his son had, “in the old days not been as attentive as he could have been” and that the mother was, “one heck of a mother”. He went on to note that his son was a young man learning to be a dad and that mistakes had been made. When asked to indicate what those mistakes were, he was unable to be specific other than to indicate that they were matters that he had become aware of through passing comments made by the mother and the father and that he tried not to interfere in their family life.
Mr K indicated that it was his view that his son had made mistakes, particularly with regard to his relationship with the mother and the parenting of the children, and that he needed to prove that he was “genuine” in his desires. In cross-examination by counsel for the independent children’s lawyer, Mr K was asked about his relationship with his son and acknowledged that there were “ups and downs”. He indicated, however, that his son had matured and that he had seen in him “a young man who wants to see and be with his children and that he is more open and forthright than he had been.”
When asked by counsel for the independent children’s lawyer whether the father had learnt his lesson, Mr K indicated that with the father having been jailed, he had very much learnt his lesson and that he, the paternal grandfather, hoped that the father was now on the straight and narrow. Mr K noted that in his younger days the father had some “serious issues” and noted that his son “always seemed frustrated”. He indicated, however, that from his recent observations the father now seemed more focused on the children and indicated that in his assessment, at least, the father had gained insight into his responsibilities and obligations with regard to the children.
It was noteworthy that Mr K acknowledged that his son had been the subject of abuse as a young child and that in his assessment at least some of the behaviours of the father and his frustration arose from that abuse as a young man. Touchingly, Mr K noted that part of the problems no doubt were as a result of his failure as a father to protect his son. I was impressed with Mr K senior. He was there to support his son but it was clear that he also had a significant degree of respect for the role of the mother and the job that she had done in respect of the parenting of these children.
I was concerned, however, that Mr K, at least to some degree, downplayed the significance of the behaviours of the father particularly when directed toward the mother and was specifically troubled by the fact that Mr K suggested that the text messaging in August 2013, “implied” threats made by the father to the mother, the children and to the mother’s then partner, Mr C. There was no inference or implication arising. The father’s actions and behaviours were threatening and no doubt terrifying for the mother and for those supportive of her.
Whilst I accept the genuineness, therefore, of Mr K’s stance in relation to this matter, I am concerned that there has been a minimising on the part of Mr K of the behaviours and actions of the father in relation to many years of failed parenting with regard to these children.
THE EXPERT EVIDENCE:
I turn then to the evidence of Ms C and Ms P. It is important that there be some understanding of their positions in relation to this matter, so as to put into perspective the evidence of the mother and the father. Ms C prepared a report regarding the mother on 10 June 2016. There she detailed with some particularity the personal history and relationship history as outlined by the mother. Ms C, after detailing those particulars under the heading, “Mental State and Risk Assessment”, noted the following:
Ms Donovan presented as a well-dressed and groomed 29 year old. She appeared her stated age and attention to hygiene and health was apparent. She was oriented to time, place and person and was able to concentrate and attend well throughout the sessions. Ms Donovan was warm and engaged well in the sessions and had good eye contact and a euthermic effect. Ms Donovan described her mood as okay. Ms Donovan became appropriately very tearful and upset when talking about incidents that occurred with Mr Whitfield and especially when discussing the impacts these may have had on her children and times when she was unable to protect them. She seemed embarrassed to cry, stating, ‘I am usually fine; I don’t like this to affect me”. Ms Donovan displayed an exaggerated startle reflex and jumped on several occasions when there was a noise in the corridor outside. Ms Donovan also seemed anxious at times with jiggling her leg and some hand wringing evident. She reported no indicators of obsessive or psychotic thoughts. She denied any thoughts to harm herself or others. There was no evidence of formal thought disorder. Ms Donovan’s mental state was consistent across both sessions.
Ms C then went on under the heading, “Mental Health Symptoms”, to note that the mother described symptoms “that meet the diagnostic criteria set out by the Diagnostic And Statistical Manual Of Mental Disorders, 5th edition (DSM-5) (American Psychiatric Association) for post-traumatic stress disorder (PTSD).” She then went on in her report to note that the mother met the following diagnostic criteria and particularised those in parts A, B, C, D, E, F, G and H of her report on pages 4 and 5 of that report. Those diagnostic criteria were in these terms:
A. Exposure to actual or threatened death, serious injury or sexual violence by directly experiencing the traumatic event (knife held to throat, text messages to kill her, threatening to stab her in the stomach).
B. The presence of one or more intrusion symptoms associated with the traumatic event and beginning after the traumatic event(s) occurred:
- Repeated disturbing memories, thoughts or images (rated Quite a bit)
- Dissociative reactions (e.g. flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring (rated Quite a bit)
- Intense or prolonged physiological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event (rated Quite a bit)
- Marked physiological reactions to internal or external reminders cues that symbolise or resemble an aspect of the traumatic event (rated Extremely)
C. Persistent avoidance of or efforts to avoid external reminders (people, places, activities, objects, situations) that arouse distressing memories, thoughts or feelings closely associated with the trauma (rated Extremely and Quite a bit)
D. Negative Alterations in cognitions and mood associated with the traumatic event(s) beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the listed symptoms.
- Inability to remember an important aspect of the traumatic event(s) typically due to dissociative amnesia and not due to other factors such as head injury, alcohol or drugs (Rated moderately)
- Persistent and exaggerated negative beliefs or expectations about oneself, others or the world (e.g. I am bad, no one can be trusted)
- Marked diminished interest or participation in significant activities
- Feelings of detachment or estrangement from others
E. Sleep Disturbance (rated as moderately) and Exaggerated startle response
F. Duration of disturbance (Criteria B, C, D and E) is more than one month
G. The disturbance causes clinically significant distress or impairment in social and relationship functioning
H. The disturbance is not attributable to the physiological effects of a substance (e.g. medication or alcohol) or another medical condition.
Ms Donovan scored a total of 60 on the PTSD checklist (Civilian Version) (PCL-C). A score above 33 is considered clinically significant.
Ms C then went on to note the psychological impact of such matters upon the mother and what she described as formulations or, I would think, evaluations made with regard to the information provided to her by the mother, as well as that which arose from her “structured clinical interview”. Ms C then noted under the heading, “Conclusion and Recommendations” the following:
- Ms Donovan’s concerns about her safety and the safety of her children should be taken seriously.
- I am concerned that at times Ms Donovan may minimise her concerns or they may be underestimated. Ms Donovan presents well and has coped by being positive, focusing on her children and downplaying her stress to avoid worrying people.
- I believe that Ms Donovan’s mental health would be impacted by X and Y having contact with Mr Whitfield. I would expect that her PTSD symptoms would be exacerbated and I would be concerned that these would significantly impact her functioning (caring for her children, working) and lead to the development of depression and disrupt the family stability.
- Ms Donovan would benefit from ongoing counselling to help her explore the ongoing effects of what she has been through, to process her emotions and to work through some of her ways of coping that, although helpful to her at the time with Mr Whitfield, may restrict her moving on in her life.
- Ms Donovan’s children may benefit from assessment and counselling
Ms C was required for cross-examination in relation to this matter. Ms C’s evidence was of particular assistance in relation to the determination of the proceedings, particularly with regard to the assessment of the genuine nature of the fears held by the mother and also her evidence shone a spotlight on the fact that the mother was coping, but that she may be, as Ms C put it, “more fragile underneath than she seems”. Ms C noted that in her assessment the mother would find it hard to cope with the children spending time with their father and suggested that such time spent by the children with the father would be a trigger and exacerbate the mother’s stress, noting, as she did, that in her assessment the mother still feared for her own safety.
When asked whether the mother was genuine in her fears and concerns as expressed, noting that the father has not repeated threats against the mother or acted in a way which could be considered intimidating or harassing for some considerable time, Ms C noted that the mother might respond to treatment but that there had been such a history of a repeated cycle of violence that the mother would find it hard to trust or believe the father because of previous breaches.
She then went on to note when asked what might be the effect upon the mother of there being a requirement for the children to participate in time spent with their father, and whether she might react in a manner which could be referred to as “decompensating”. She was asked how that might impact upon the mother’s parenting, and Ms C indicated that her worries for the mother were that she had coped so far post-separation by being resilient, but that there might be a “total collapse” if she was overwhelmed.
It was at that point that Ms C specifically noted that her concern was that the mother painted a brave face and that she may be more fragile underneath than was apparent. Ms C emphasised that if the mother did decompensate as a result of the father having the opportunity to spend time with the children, that there was a risk to the mother’s general wellbeing as well as her capacity to effectively parent the children. There would be, therefore, ongoing difficulties and perhaps flow-on effects, including effects upon the mother’s capacity to work and to provide a stable home for the children.
When asked if she could assess what might be the level of the risk, she rather tellingly noted that she, “felt the likelihood was into the high area” and that the mother had indicated to her that the idea of the father spending time with the children was terrifying, as she was still in fear of the father and his past threats. She indicated that one way of ameliorating or reducing those fears was to specifically order that the father have no time with the children or, alternatively, that the father show that he had really rehabilitated, that he was remorseful for all that had occurred in the past and that he was genuine in his wishes to have a relationship with the children.
The difficulty, of course, was that the mother was, as Ms C noted, so fearful of the father that she had no acceptance of the father genuinely being remorseful or being rehabilitated.
Ms C was cross-examined by the father in relation to the assessment made by her particularly with regard to the mother suffering from post-traumatic stress disorder. The father, I thought, astutely and intelligently questioned Ms C in relation to her assessment. He noted that there were no biological markers to confirm that the mother suffered from post-traumatic stress disorder and that her assessment was based purely on the mother’s self-reporting. Ms C acknowledged that that was the case.
The father then asked whether an experienced or competent liar would be able to “fake symptoms” and, therefore, convince a psychologist that he or she suffered from post-traumatic stress disorder or, in fact, any other psychological disorder. Ms C acknowledged that this could occur in theory and that, as was put to her, it was “easy to fake” the re-experience of traumatic events and then to refer to nightmares, flashbacks, emotional trauma and the like. Ms C acknowledged that all of those matters could be lied about and that there was the possibility of a person detailing circumstances which were, in fact, not a reflection of that person’s real psychological situation.
However, Ms C went on to indicate her own professional expertise and noted that she did not see any indicators of untruthfulness or dissembling on the part of the mother and that her assessment was made not only in respect of the self-reporting, but also upon her observations as well as the information that came from the structured clinical interview.
There was, as she put it, “a cluster of information available to her”, and she had relied upon that in relation to her assessment of the mother suffering from post-traumatic stress disorder and also indicating her concerns with regard to the possible decline in the mother’s mental wellbeing. I was assisted by the evidence of Ms C.
Ms P, a qualified social worker, prepared a report in relation to these proceedings. She acknowledged that since she had prepared the report in August of 2015 she had had the opportunity of accessing documents filed for the hearing and noted that the information contained there and otherwise had given rise to certain changes in her views. She was asked particularly whether any of the new material had caused any such change and she noted that in her report she had recommended supervised time being spent by the father with the children after the outcome of any criminal proceedings were dealt with, but that now she was questioning whether an opportunity for supervised time was appropriate.
She noted that that was because after reading the material and, in particular, the report of Ms C, she had further considered and felt that her concerns with regard to the mother’s anxiety had been reinforced. Ms P noted the concern of Ms C with regard to the possibility of the mother decompensating, but did not accept what was suggested to her, as the possibility of the “children losing their mother and that being catastrophic for them”.
Rather, Ms P noted that the significant concern was not the loss of the mother, but, rather, the loss of the mother’s capacity to parent the children and that that effect would depend upon the degree of decompensation, if any, that the mother might experience if the children were to spend time with the father. Ms P was asked whether, in her assessment, any order made with regard to the father spending time with the children would, “push the mother over the edge”.
Ms P provided a lengthy response in relation to that, indicating that, in her assessment, at the present time, with the father not having had any time with the children for a significant number of years, she would not describe the mother as “broken”. Rather, she indicated that the mother presented as being anxious and doing her best to contain her emotions. She said, however, that if the father were to spend time with the children, then the dilemma in the matter would arise.
She noted that the mother had given her an indication that she would “deal with it”, but noting as she did the concerns expressed by Ms C, there was a concern as to whether the mother would actually be able to deal with the stressors that were imposed upon her and that whilst the mother may come across as strong, she may not be as strong as the indication initially was.
Ms P was also asked about the questions directed by the father to Ms C, about whether the mother may not have not been genuine in the expressions of symptoms and anxieties indicated by her and she went on to note that she believed that, as an experienced practitioner, she could pick up whether a person was genuine and, in her assessment, the mother presented as genuine in her concerns and also in her response.
Ms P noted the close attachments of the relationship between the mother and the children and was asked what might be the impact on that relationship, particularly the mother/daughter relationship with X if X were to perceive that spending time with the father caused the mother to stress. Ms P noted that for any parent-child relationship to work, or in this instance, to be re-established, both parents would be required to work on that relationship and there were obvious issues of concern as to the mother’s capacity to do so.
Ms P noted that that would then lead to possible difficulties for X as she would be put in a situation where she may be curious about her father and knowing more about him, but at the same time being aware of the fact that her mother was anxious and stressed as a result of any time being spent with the father and that as there was already a loyal attachment between the mother and the daughter, that X may prioritise her mother’s needs ahead of her own wish to have some information about her father.
Ms P opined that, at the present time, X’s indication was to the effect that whilst she had some curiosity about her father, there was no real relationship in place and that, if anything, she was somewhat scared of any contact with him. She noted also that, whatever might be the situation from the perspective of the children, there was little likelihood that it would be able to be properly dealt with if the mother was not encouraging of the relationship despite her best endeavours. With regard to Y, Ms P noted that he was more standoffish when introduced to his father, but there was some curiosity.
Ms P noted that there was a distinction to be drawn between what is sometimes referred to as parental alienation and the situation that arises here. She was asked about the children possibly idealising their father as a result of not having a relationship with him. She noted, however, that alienation meant that children had poor relationships with the other parent, but in this instance, if it were explained that there was “a good reason not to have a relationship because of risks or safety concerns”, then the outcome, which would mean no time with the father, would be able to be explained and accepted by the children.
Ms P was at pains to emphasise the importance of dealing with any reintroduction of the children to the father in a very controlled and slow manner. She suggested that both the mother and the children would need counselling before any reintroduction was to occur, so as to help the mother and the children prepare for the contact that was to come. She said that it would be important to lay the groundwork to move forward and that only once that preparatory work had been done, would there be any consideration of time being facilitated between the father and the children.
She was then asked to look at the matter from another perspective and, in particular, what would be the case if it was determined that the mother simply would not be able to cope with time being spent by the father with the children. She was direct and to the point in answering such a question when she said that there should then be no time spent with the father. But Ms P went on to emphasise that the mother must then be responsible for ensuring that the children know about their father and the reason for them not spending time with him. She indicated that there would need to be therapeutic intervention, but that something must be explained to the children.
Ms P also emphasised that there were no halfway points and that, therefore, if there was no physical time to be spent by the father with the children, there would be little, if any, benefit in there being other opportunities for communication, such as by way of card, letter or the like. The position of Ms P was simply to suggest that there would be further difficulties for the mother and the children, particularly with regard to the mother’s reaction to any communications being received.
Ms P also acknowledged that the mother’s fear of the father was reflected in not just her beliefs, but was re-emphasised as a result of the father’s appearance. In that respect, she was asked about the father’s tattoos and the effect of the tattoos including, particularly, the facial tattoos upon the mother and the children. Ms P noted that X commented upon the father’s tattoos and that the father lacked any insight into the effect of the tattoos upon the children and their relationship with him.
Ms P acknowledged that any order that might be made with regard to the father spending time with the children, no matter how it was facilitated or what therapeutic intervention and involvement there might be before such time occurred, would still possibly be a trigger for the mother’s anxiety. And when asked whether it was “worth the risk” to effect time if it led to a diminution of the mother’s capacity to parent the children, she acknowledged that it was a concern that she had and that it was further enlivened as a result of the consideration of the report of Ms C.
Finally, Ms P was asked if what was being asked of the mother was too much, if she was required to accommodate time with the father. She acknowledged that it placed a lot of responsibility upon the mother and that it “possibly may be too much for her”.
Ms P also emphasised the need for some finality. She indicated that further interim orders, for example, with regard to therapeutic intervention, pending determination of what might be the circumstances for the father in relation to criminal charges, simply kept the trauma alive for the mother and that that would obviously impact upon the mother’s parenting.
Ms P succinctly summed up the concerns and issues in relation to this matter when asked what her position might be in trying to balance the fact that the father may genuinely have reformed his position, but that the mother may also genuinely still hold concerns. She indicated then that the path that must be followed was the path with least risk to the children and there needed to be a balance taken between the impact upon the mother and her capacity to parent, as opposed to the possible future impacts upon the children of not seeing their father.
Ms P’s evidence in relation to this matter was of particular assistance and reinforced the very real concerns that arose, with regard to the orders that might be made and how they may be formulated.
THE PARENT’S EVIDENCE:
As I indicated earlier in these reasons, it is necessary to be particularly mindful of the very real concerns that are expressed by the experts, in relation to this matter, when considering the evidence of the parties. In that regard, I had the opportunity of seeing both the mother and the father in the witness box for a considerable period of time. It was a confronting and difficult situation arising from a number of factors. The first of those was that the father was acting on his own behalf and there were the inherent difficulties that always arise in such situations, including particularly the concerns for the mother’s wellbeing, it being the case that there was strong evidence of a severely conflicted relationship and one that involved elements of domestic and family violence in all its possible manners.
The father was heavily tattooed. In fact, his face was covered in tattoos and it was a matter that was the subject of cross-examination by counsel for the mother and the reason for those tattoos. I shall come to that aspect of the matter a little later in these reasons, but I should note at the beginning that, I accept that the father is genuine in his desire to have a relationship with his children.
He brought the application in January of 2015, he said, as a result of a wish to emphasise to the mother that it was not simply harassing or intimidating behaviours by him when seeking time with the children, but a genuine desire on his part to have a relationship with the children.
The father I think, also genuinely, acknowledged that the mother was a good mother. Early in cross-examination by counsel for the mother, he indicated that the mother was a good mother, that she provided for the children’s needs and met those needs and I accept that that was a real attempt by the father to acknowledge the role that the mother had taken with regard to the parenting of children during the whole of their life, but, of course, particularly over the last three years, since the father had had little interaction with the children.
The father acknowledged that there had been a volatile relationship between he and the mother. He indicated, however, that there was only one occasion where there had been a physical altercation between he and the mother, being a situation that had arisen following a verbal dispute between them. The mother in her material detailed at great length the physical nature of the disputes between them and the concerns that she held for her own safety and well-being. The impression that I gained in relation to this was that, unfortunately, the father was to a significant degree minimising the extent of the physical disputation between he and the mother.
The father was an imposing man. His demeanour was that of a person who would not broach any dispute with his authority and position and I gained the impression that the father had simply denied or perhaps had chosen to forget the physical nature of his exchanges with the mother. I also gained the impression that the father was only willing to acknowledge the inappropriate nature of his exchanges and relationship with the mother, when there was independent corroborative evidence. In other words, he acknowledged that there were serious threats contained within text exchanges between he and the mother in or about August 2013, leading up to Father’s Day in 2013 and that he was, as he put it, “very remorseful” for those threats.
However, when questioned about many other, issues he simply indicated that he didn’t remember or recall what was or might not have been said in exchanges both by text as well as verbally between he and the mother.
The father had made the most horrendous threats to the mother. There was no inference or implied characteristics to the threats, they were direct. The father directly suggested that the mother, her partner and the children were, to differing degrees, at risk. Suggestions that the father was just letting off steam or acting in frustration might explain some nature of those behaviours but do not remove the obvious and real concern that the mother genuinely holds, with regard to the father and his threats.
The father, even in relation to the exchanges relating to Father’s Day in 2013 sought to minimise the nature of the texts that were sent and suggested that there were many altercations between he and the mother and that this was just one part of a continuing series of concerns including particularly issues with regard to child support. However, the father’s statements to the effect that it would be cheaper to put a bullet in a gun than to pay child support or that he would snap, such that the mother would then get to feel, “how I feel in not seeing the children” could not be seen as anything other than the most intimidating behaviours that could be imagined.
When the father was asked what he meant by such statements he was evasive. He said it was a spur of the moment text sent in anger. When asked directly whether it meant that he would take the children or harm the children, he said that he didn’t think that that was what he intended and what he meant was that he would take appropriate or proper action in court. It is noteworthy, of course, that if that was the case, the father then waited another year and a half before bringing proceedings in relation to any issues with regard to the parenting of the children.
Unfortunately, the only real inference that can be drawn in relation to the behaviours of the father in or about August/September 2013, but I would think generally, is that the father sought to intimidate and bully the mother into achieving his own ends. The father in fact acknowledged that he wished to scare the mother in some of the texts that were sent and noted that they did contain threats to harm the mother and that threats to ensure that she was, “crippled or dead”, were of a serious nature.
The father tried to downplay such issues by indicating that he didn’t intend to carry through the threats, but the fact is that they were made and that so much of the behaviours of the father related to intimidating and overbearing behaviours. The father downplayed entries on Face Book which had pictures of him with a weapon and wearing a mask and suggested that there were other less threatening connotations that could be drawn. The real issue here is that the father was an intimidating man. The father acted in a manner which would raise no other suggestion than that he intended to achieve what he sought, in relation to time with the children or otherwise, for example, with regard to the payment of child support or non-payment of child support and that the mother genuinely held and still holds fears, with regard to the father and his behaviours.
The father denied that he had ripped doors off hinges or that he had been violent towards others, notwithstanding independent police records of other domestic violence incidents, as well as the father having been arrested and charged for a brawl at a hotel, as recently as occurring in 2014. The father minimised such actions as well as suggesting that video footage sent by the father to the mother was not to harass or intimidate the mother but, rather, to just give him the opportunity to spend time with the children.
The father failed in any way, even at the hearing, to appreciate the threatening, intimidating and frightening nature of his exchanges with the mother. It was entirely beyond him to accept that his behaviours could be considered inappropriate and in fact when asked about instances as long as ago as, for example 2009, when there were multiple domestic violence orders and the mother suggested that she had been locked in the house by the father, he denied that that was the case and that she was there simply so that he could try and talk through with her issues, in respect of their relationship at that stage.
The father was asked whether he accepted that his behaviours were controlling and, interestingly, he responded that he wasn’t the controlling one, that the mother was. A clearer indication of what might be the father’s lack of insight into his behaviours and the concerns that were held by the mother could not have come more directly.
I referred previously to the issue of tattoos on the father. The mother had suggested in her material that the father was an enforcer for a Renegade motorcycle gang and that they were to intimidate or threaten persons, when the father was seeking to collect debts or act otherwise on behalf of the motorcycle gang. In particular the father was asked about a tattoo on his face, the number 187.
He was asked whether it related to a charge of murder under the California Penal Code and he indicated that it was something to do with the American penal code but that he had forgotten what it meant. Later, however, when further cross-examined, he acknowledged that it related to the California Penal Code and that it related to a charge of murder/death and kill.
When asked whether he had it for the purpose of intimidating others, he responded that that was not the case but that, rather, it was a brand of one of his favourite clothing lines and that he didn’t know anything about 187 relating to a murder charge under the California penal code. He was challenged in that regard and indicated that he had a different appreciation of what might be meant by the inclusion of 187.
It was suggested by counsel for the mother that that was nonsense and I can only wholeheartedly agree. The father suggested that the tattoos, particularly the facial tattoos, were not in any way for the purposes of intimidation. There could be nothing further from the truth and the father’s complete denial did him no credit whatsoever.
The father raised issues in his material about the mother having a member of her family who was also a member of an outlawed motorcycle group. When questioned about that, the father’s response was telling. He indicated that the reference was made there because the court needed to know that they, (the mother’s family), are not the “perfect little family they pretend to be”. When asked whether the comment was then included to besmirch the mother’s name he said that that was not the case.
The fact is that it could not have been referred to for any other purpose than to suggest that the mother was not an appropriate parent or person, and it reflects poorly upon the father, noting that he has suggested throughout the trial that he was remorseful and had greater insight into his own behaviours and the effects of his behaviours upon others and yet would make such a suggestion.
The father was asked whether he was just slinging mud at the mother and his response was to say that there were so many allegations against him that the court needed to again know that they were not the perfect little family but, of course, the only other inference is that the father was lashing out at the mother, as a result of such concerns.
The father indicated in cross-examination by counsel for the independent children’s lawyer that he was remorseful for his actions. Unfortunately, the impression I gained in that regard, was that the father’s remorse was far more an indication of his concern with not getting what he wanted by intimidating means and he was now utilising the court, for the purposes of spending time with and seeing the children, rather than any genuine appreciation of the horrendous nature of his behaviours toward the mother and others.
It was noteworthy that the father acknowledged a change in his attitude when he was imprisoned under the VLAD legislation passed in Queensland. It would not be unexpected that it was, as described by the paternal grandfather, “a wake-up call” for the father and, as the father indicated, his incarceration showed him that he could lose everything. The father became emotional at that time and I accept that the father genuinely sought the relationship with the children that had not previously existed.
If it were simply the case that the father wished a relationship with the children and that he was in a position to do so without other risk to the children, the decision to be made in relation to this matter would be far simpler. But it was noteworthy that during the father’s cross-examination and for a significant time, if not the entirety of that cross-examination, the mother sat at the bar table with her head bowed. She was sobbing quietly to herself and I thought, as assessed by Ms C and Ms P, was genuinely intimidated and fearful of all that had fallen in relation to the relationship with the father.
The father indicated that he was in court because he wanted to establish a connection with the children and to show that he was a changed person. I accept that he was before the court to prove to the court and to the mother, if he could, that he was there for the children and wished a relationship with the children. The concern, however, was not that the father had changed, but whether the mother accepted that the father had changed and could trust him and accept that what the father proposed in relation to the parenting of the children was genuine.
The father wishes a relationship with his children. I accept absolutely that that is a genuine and true desire held on the part of the father. I accept also that the father has had a, “wake-up call”, as a result of the charges that have been brought against him under Queensland State legislation. The issue, however, is not simply whether the father has something to offer the children, which, I would suggest, is open but, rather, whether the father having a relationship with the children could lead to a real diminution in the mother’s capacity to provide for the children.
As referred to previously, Ms P summed up the difficulties in this matter as being a balance between the possible benefits that would flow from the relationship being facilitated between the children and the father and the impact that might also arise if that were to occur and obviously the consequences for the mother’s capacity to provide for the children.
I also had the opportunity to consider the evidence of the mother and to see her both in the witness box and within the precincts of the courtroom. The mother impressed me enormously as the parent who had stepped up and had taken virtually the entirety of the responsibilities and obligations that arose with regard to the parenting of these children. She painted, I thought, a picture of herself as someone who would do her best for the children and, as assessed by both Ms C and Ms P, as someone who was perhaps more capable than she actually was to deal with the possible consequences of orders that might be made by the court.
She indicated, for example, she would comply with orders that were in place to facilitate the father spending time with the children. She acknowledged that she would find it difficult to do so and when asked having heard the father’s answers in relation to cross-examination whether she had taken comfort from the fact that he was remorseful and said that he had changed, she indicated quite truthfully that she took no comfort from that and that, in her assessment, it was an act or a mask on the part of the father and not a true indication of what the father would bring to any interaction with the children.
The mother truthfully, knowing that it may have even been to the detriment of her case, indicated that she did not believe that the father had turned his life around and did not believe that he would be positive in his parenting of the children. She rather tearfully, struggling with her composure, acknowledged that if it were true, though she did not believe that to be the case, then there might be benefits to the children in having a relationship with their father.
The mother struggled throughout her evidence in relation to these proceedings. She emphasised repeatedly that she wanted to protect the children and, to that end, was concerned that even if time spent by the father with the children was of a supervised nature, there would still be real risks of emotional harm to the children because, as she described it in cross-examination, he would make them feel worthless, picking on their weaknesses as he had done with her.
The mother was asked about the litany of domestic violence concerns that she had described in her affidavit material and became particularly distressed when asked about the relationship over the years that they were together and the cycle of violence that would occur. She was asked why they stayed together and why there were no repeated complaints to police of breaches of orders that were made.
The mother indicated that the father was constantly apologising and that she took those apologies to be an indication of remorse, but that it was simply a repeating cycle and one that she eventually was unable to continue. She continued, she said, to try to give the relationship a chance, but that she was continually let down by the father.
The mother was enormously distressed by the courtroom process and the calling of evidence, but I gained the distinct impression that she was willing to put herself through this most difficult of circumstances, to reinforce the genuine nature of her concerns, both for herself and for the children. The mother impressed me in so many ways with how she had behaved, noting, of course, that when she commenced the relationship with the father she was only a teenager herself and, yet, when she and the father separated, despite the appalling nature of the father’s behaviours, she had still sought to facilitate opportunities for the children to spend time with their father and members of the paternal family.
The mother genuinely wanted the children to have a relationship with their father, but it was only after the events and threats of August 2013 that the mother finally came to the view that there was little prospect of change on the part of the father and that there were still ongoing concerns with regard to the welfare of the children. The mother has been terribly hurt by the behaviours of the father and, in my assessment, continues and probably will be for the rest of her life hurt emotionally by the relationship that she had with the father.
It explains her fears and the very real concerns that she has as to how she might be able to facilitate a relationship between the father and the children. The mother acknowledged that she would, in all likelihood, be unable to come into contact with the father, and that she would therefore be required to seek the assistance of her parents or others to facilitate handovers. She indicated that the bringing of the application by the father had caused her huge upset, and she acknowledged that dealing with the application, including moving toward Court, had caused her a great deal of concern. And, as she put it, she “could not deal with it over and over again, every few weeks.”
The mother is enormously distressed at any suggestion of time being spent by the father with the children and has genuine and real concerns as to risks in relation to the children. More particularly the mother, I accept, would genuinely try to facilitate time if it were to be ordered, but would be fundamentally unable to put all of her concerns and fears to one side and, therefore, to not put the children in a situation where they were not aware of her fears and concerns.
The mother had insight beyond her years into the children and the circumstances that existed. She was asked, in particular, about the suggestion contained with the family report of Ms P that if the father were not to have a presence in the children’s life, that the children’s perception of their self-worth may in fact be affected. The mother astutely answered that she accepted that that would be the case, and that the children might question why they “aren’t good enough”. She indicated, however, that they were issues that would be addressed, and as she suggested in her evidence, she had attempted to alleviate concerns on the part of the children by indicating that the father had simply made different choices, and that it was nothing to do with the children or their worth.
The mother held genuine concerns as to the safety and wellbeing not only of herself and the children, but also of her parents and former partner, if she were to call upon them to assist with handovers. She genuinely indicated that she had concerns not as to how her parents or former partner might react, but how the father would react. The mother, when speaking about such matters however, indicated that whilst there may be difficulties in having her former partner facilitate handovers, he would be able to encourage the children where she might not be able to do so.
It showed a considerable appreciation by the mother of the difficulties ahead, and of the concerns that had to be addressed by the mother, the father, and the Court in relation to balance between the interest of the children, the desires of the father, and the concerns of the mother. The mother was an enormously disturbed young woman. She had, however, insight that I did not think was able to be seen from the perspective of the father.
She was asked, in cross-examination on behalf of the father for example, whether X knows that if she talks of the father that the mother would be distressed. The mother indicated that that was probably the case, and acknowledged that only the day before X had spoken about the court proceedings and had suggested that the mother not go, so that there would not be anything to be dealt with.
The mother then went on, however, to note words to the effect, “Unfortunately, they are feelings that I just can’t turn off. I do all that I can to control it.” The mother appreciates the difficulties for her and the children as a result of the situation that exists, and of the fears that she holds for her own welfare, and for the welfare of the children. The mother was genuine in her fears held with regard to the welfare of the children and to her own safety. They are not, as she described it, something that she can just “turn off”, and those fears and concerns held by the mother are directly as a result of the traumas of the relationship with the father and as a result of the behaviours of the father.
THE LAW – PARENTAL RESPONSIBILITY AND LIVE WITH/SPEND TIME WITH:
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, relating to the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010, his Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136]The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137]Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138]But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139]The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140]No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141]The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142]Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143]“Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144]Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145]Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146]Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147]A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148]The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149]If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150]The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151]An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152]Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75. In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76. We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, 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.
(2)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:
(a)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
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
In Heath & Hemming (No 2) [2011] FamCA 749, decision of Justice Kent, his Honour when discussing a parenting case, went on to comment about the decided law in respect of parenting decisions. His Honour said, at paragraph 87, the following:
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
In paragraph 87, his Honour detailed a checklist of those matters that need to be considered and, of course, they are reflective of the guidance also provided in Lansa & Clovelly (supra).
THE LAW – UNACCEPTABLE RISK:
Additionally, there is the significant consideration, at least from the mother’s perspective, of her ability to care for the children and whether that capacity to provide will be adversely affected or even significantly affected if the father were to spend time with the children.
In the Marriage of N v S (1996) FLC 92-655, Fogarty J said, in his dissenting judgment ([138] - [140]):
[138] [T]he 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 the particular case fall, and to explain adequately their findings in this regard.
[139] In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
[140] This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
Fogarty J's statement was endorsed by Warnick, May & Boland JJ in W v W (abuse allegations: unacceptable risk) (2005) FLC 93-235. There, the Court observed that, “the questions posed by Fogarty J in N v S and the separate representative ... provide a structure or framework which may assist the trial judge to assess future risks to a child.”
In M v M (1988) 166 CLR 69, the High Court considered the approach in Family Court proceedings where allegations of sexual abuse of a child had been made and are an issue. Relevantly ([25]), the Court said:
[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] VR 298 at 300 , “an element of risk” or “an appreciable risk” (In the Marriage of M (1987) 11 Fam LR 765 at 770 respectively), “a real possibility” ( B v B (Access) [1986] FLC 91-758 at 75,545), a “real risk” (Leveque v Leveque (1983) 54 BCLR 164 at 167), and an “unacceptable risk” ( Re G (a minor) [1987] 1 WLR 1461 at 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.
In Harridge & Harridge [2010] FamCA 445, Murphy J, having referred to the dissenting judgment of Fogarty J in N & S and the separate representative, formulated the following list of enquiries as regards the assessment of risk:
(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?
In Blinko & Blinko [2015] FamCAFC 146, the Full Court (May, Murphy & Tree JJ) discussed the approach to be adopted when dealing with issues of risk including the necessity for the court to consider whether the imposition of conditions or other safeguards would ameliorate those risks. In Blinko & Blinko (supra) the court was asked to consider the question in the context of the mother's case being advanced in reliance upon the principles enunciated in Russell v Close (unreported Full Court, 25 June 1993).
Their Honours said ([83]):
[83] It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
- If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
- If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
- Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
In Blinko (supra), the Full Court made it clear that in assessing risk, the Court must also consider what possible measures are open to ameliorate that risk. Their Honours said, in respect of that issue:
[27] A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because “[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child”: see Hon John Fogarty AM “Unacceptable Risk – A Return to Basics” (2006) 20 Australian Journal of Family Law 249 at 261.
Whatever be the Court’s conclusion, the Court is duty-bound to carefully explain its findings as regard the question of risk. The Full Court said, as regards the necessity for adequate reasons to be given, in Blinko (supra) ([28]):
[28] The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent. Particularly, if the Court ultimately accepts that there should be orders for communication and/or time, albeit surrounded by safeguarding conditions, then the Court needs to clearly explain the reasons why it is persuaded that those safeguards are sufficiently ameliorative of the risk. That is, amongst other reasons, so as the resident parent may scrutinise the adequacy of the reasoning process which underpins the orders, given the potentially grave consequences of exposing a child to risk.
Their Honours continued ([30]):
[30] Accordingly, where the Court makes no orders for time or communication because it is not persuaded that safeguarding conditions would sufficiently ameliorate the risk, again it should clearly explain the reasons for that conclusion. Looming large amongst the reasons for doing so, is because such orders will necessarily wholly prohibit the child, during their childhood and adolescence, from ever having any form of relationship with the non-resident parent, again, a potentially grave consequence. Such an outcome needs to be arrived at only after a careful evaluation of all of the other options which might work to enable the child to have the benefit of some kind of relationship with the non-resident parent, as indicated by the Objects and Principles of Part VII of the Act. Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
DISCUSSION:
Whilst there is obviously the need to consider the issue of unacceptable risk it would be appropriate to still follow through with the “logical and practical approach” which meets the “statutory imperatives” as discussed by Justice Kent. Accordingly the first step is to identify the proposals of each of the parties including any proposals of the independent children’s lawyer and they are detailed under the heading ‘Applications’ commencing at paragraph 12 of these reasons. It is clear that there were no other outcomes which were suggested during the course of the proceedings and it is clear that there is little room for movement between the respective proposals.
The second step then is to undertake the considerations that are detailed in section 60CC(2) & (3) being reflective of the objects and the principals set out in section 60B(1) & (2). Justice Kent in Heath & Hemming (No. 2) (supra) suggested that it may be preferable to look at the additional considerations before giving consideration to and making findings about the primary considerations. However, in this case the matters to be considered in relation to the primary considerations loom overwhelmingly large in the determination to be made. It is true that these children would no doubt benefit from a meaningful relationship with both of their parents if the parents respected each other, were able to communicate in a courteous and civil manner and trusted that each were able to make decisions appropriate for and in the best interests of the children.
Nothing could be further from the truth at least insofar as this matter is concerned. There is a huge amount of evidence available to suggest that the mother has genuine and understandable concerns with regard to the father’s capacity to provide for and to meet the children’s needs even of the most basic standard. The mother’s evidence which was compelling was to the effect that the relationship with the father particularly during cohabitation but even subsequent to separation was a relationship in which domestic violence, abuse, control and manipulative behaviours were a daily occurrence. The mother detailed at length the various elements of family violence that occurred during the relationship and more particularly detailed her genuinely held concerns with regard to the risk of such behaviours being directed toward the children.
The mother’s evidence was compelling, both as to the extent of such behaviours by the father in the past and to her real concerns now as to such behaviours reoccurring. That gives rise to the very real need to consider the second primary consideration arising pursuant to the provisions of section 60CC(2)(b).
The mother’s evidence, which is corroborated in so many of the documents that have been produced by subpoena, give rise to the obvious need to ensure that these children are protected from the risk of physical or psychological harm. It is noteworthy that section 60CC(2A) requires that the Court, understandably, give greater weight to that need to protect than the possible benefits that might flow to the children if they were to have a meaningful relationship with their father.
There is also a need to ensure that the children are protected and sheltered from the possible consequences for the mother should she be unable emotionally to cope with the father’s opportunity to spend time with the children. The overwhelming concerns expressed by the social worker, Ms C, and the report writer, Ms P was that the mother may ‘decompensate’ and that that could have significant consequences for her capacity to parent and flowing on from that for the children themselves.
That particular aspect of the matter was the subject of considerable evidence and was commented upon me during these reasons. In particular it was recognised by both of the experts that it is simply impossible to assess what might be the consequences for the mother and therefore the consequential effects upon the children. Ms P noted that it may not be the ‘loss of the mother’ though that might ultimately be the worst outcome but rather the loss to some degree of the mother’s capacity to parent the children. The mother has been the constant in the lives of these children. The consequences for the children therefore of a significant effect upon the mother’s capacity to provide for and meet their needs is a factor of very real significance for these children.
It is a matter that looms large therefore both in respect of the determination of what is in the best interests of the children as well as in respect of the determination of whether there is an unacceptable risk. The risk is not simply that the father himself would harm the children physically or emotionally. My assessment in that regard is that there is very little risk of such an issue arising. It was noteworthy that the High Court commented upon the risk of sexual abuse in M v M (supra) and noted the various formulations of the appropriate test. They came up with the determination that:
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.
Such a statement whilst relating to the unacceptable risk of sexual abuse can properly be applied to other forms of risk of abuse including physical or psychological harm however it might come about. The risk to these children of harm directly arising from the father is minimal. The risk of harm to these children emotionally and psychologically if the mother is unable to cope to whatever extent with the father spending time with the children is very significant. It is a factor that permeates every other consideration that might be looked at pursuant to the provisions of section 60CC of the Family Law Act.
These children must be protected from all possible harm that might arise from whatever orders are made and the very real consideration here therefore is whether any orders that provide for the father to spend time with or communicate with the children will in the end, cause real harm.
As I have indicated those two competing primary considerations loom large in relation to the ultimate determination. Of course there are other factors to consider but with respect they only reemphasise the need for the children to be protected from whatever might give rise to harm.
There are views expressed by the children but they are conflicting, for example noting that X had some curiosity about her father but was “somewhat scared of any contact with him”. Similarly, Y in a childlike way expressed some curiosity but also was standoffish when introduced to his father. It is also relevant to note that Y did not appreciate that the father in these proceedings was his biological father and that is of course another factor to be considered in relation to what orders should be made and if time was to be ordered how it could be facilitated.
The nature of the relationship that the children have with their mother and father could not be more different. It would not be unreasonable to suggest that the mother is everything to these children in the sense that she provides for their physical needs as well as their emotional and intellectual needs and is the constant that has been in the whole of their lives. The father has been absent for years and whilst it may be the case that in more recent times he has sought a relationship with them, there has been virtually no contact or communication, other than that facilitated during the family report interviews, for more than three years.
There is also a concern particularly with regard to X and her relationship with the father, arising from the fact that X has some recollection of the time when the mother and the father lived together and indicated to Ms P concerns with the father’s behaviour and attitude. There is therefore a very limited relationship at all with the father and what does exist, certainly from the perspective of X, is not positive.
Insofar as section 60CC(3)(c) is concerned, there are only positives for the mother noting of course that for the entirety of the children’s lives she has been the centre of their world. There are also however some positives for the father noting that he has brought these proceedings, he says and I accept, to show that he is genuine in his desire to be involved in the children’s lives. However, until about two years ago he has been absent or a negative for the children in the sense that he had no involvement from about August 2013 until the commencement of proceedings in January 2015 and prior to that had had some involvement but it more often than not lead to conflict between he and the mother, all of which was seen by the children or the consequences of that conflict was observed by them.
Passingly, I would comment simply that the father has failed in any real way to meet the responsibilities and obligations of parenting relating to the financial needs of the children. I would similarly comment that there would not be any real practical difficulty in the father spending time with the children if so ordered as it would occur at a contact centre convenient for the mother, though there might be some expense associated with that contact.
Almost as significant as the issues that have arisen with regard to protection of the children is an assessment of the capacity of each of the parents to provide for the needs of the children including their emotionally and intellectual needs as well as an assessment of each parents attitude to the children and to the responsibilities of parenting. The gulf between that offered by the mother and what has so far been offered by the father could not be wider. As previously noted, the mother has met all of the needs of these children and it clear that she has well and truly provided for the children’s physical, emotional and intellectual needs. The mother has displayed nothing but a caring and nurturing attitude to the children and their needs, even when it caused her real distress, as well as displaying a responsible and child focused approach to the obligations of parenting.
The father, at least until recent times, was unable or unwilling to meet any of those obligations and responsibilities associated with the parenting of these children. He abused, bullied and intimidated the mother and whether intentionally or not still continues to do so. His current attitude or approach is to suggest that the mother needs to forget the past, no matter how damaging it might have been for her, and to work with the father. He fails entirely to realise the consequences of his actions and the long term effects upon the children.
Such a determination reflects poorly upon any assessment of the father’s capacity to meet the children’s needs, especially their emotional needs and the protection of their psychological wellbeing as well as reflecting poorly upon the father’s insight into his behaviours and how they illuminate his understanding of the responsibilities of parenting. As indicated earlier, the gulf between what the mother offers and the father suggests might occur is enormous.
In light of all that has been said in the many paragraphs contained within these reasons, it is not necessary to make further comments with regard to the issue of family violence or the existence of domestic violence orders other than to say that the evidence shines a clear light on the genuine basis for the mother’s concerns.
Finally, insofar as a consideration of those matters which might assist the court in the determination of this matter, it is necessary to relate the evidence to the provisions of section 60CC(3)(l). There is never certainty with regard to orders being made that will bring an end to all litigation. What is clear here however, is that the two alternatives have a differing degree of risk for further litigation. I say that in the sense that if the father has no time with the children then the litigation is to all intents and purposes at an end. However if orders are made for the father to have some opportunity, however it may be configured, to spend time with the children then a number of unknowns must be grappled with.
Firstly, do such orders propose a transition towards greater amounts of supervised time and by whom such supervision should occur. Do the orders envisage a transition to non-supervised time and when and for how long does that occur. Of most significance however if the unknown arising from any possible effect on the mother of her capacity to parent and the consequences for the children. All of those possibilities give rise to the very real prospect of further litigation and keeping this dispute live has been commented upon by the experts as not being something that they would think the mother could endure.
There are real risks for the welfare of these children should litigation continue or be reinstituted and the orders which are least likely to lead to that further litigation arise from a total cessation of time with the father.
The third step suggested by Justice Kent as being required to be considered is whether issues of abuse and family violence arise. Nothing could be clearer in the evidence that has fallen in this matter than that there has been horrendous domestic and family violence and whilst it may be suggested that there is no evidence of such behaviours, at least since the commencement of these proceedings, the damage especially to the mother has been done and she continues daily to experience difficulties as a result of those actions.
Next it is necessary to indicate which matters have been of greatest significance, in relation to the determination of this matter. It is unnecessary to say other than that the issue of violence, its long term and ongoing effects upon the mother and the consequential risks for the children are of such significance that they overwhelm any other matter which might even in some small respect suggest benefits to the children of a relationship with their father.
Then it is necessary to consider the presumption of equal shared parental responsibility arising pursuant to the provisions of section 61DA of the Family Law Act. The presumption is one that can be rebutted and section 61DA(2) specifically notes that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse or family violence. The evidence which is all encompassing is that family violence in virtually all of its characteristics is evident in this case. It is hard to imagine a more clear cut example of that factor rebutting the presumption of equal shared parental responsibility.
It is perhaps unnecessary other than that there are also a multitude of other factors that would satisfy me that the presumption of equal shared parental responsibility is not in the best interests of these children and should clearly be rebutted.
Accordingly, these orders would not trigger the operation of section 65DAA and the decision is therefore necessarily to be made, consistent with the findings that I have detailed herein. Nothing other than that the mother should have sole parental responsibility and that the children should live with the mother would reflect an arrangement which was in the best interests of the children.
What is necessary to consider is what orders if any should be made with regard to the father’s opportunity to spend time with and communicate with the children. In Blinko & Blinko (supra) the Full Court discussed the approach to be adopted when dealing with issues of risk, though it should be noted that there the Court considered the matter in the context of the mother advancing a case as a enunciated in Russell v Close (supra). Counsel for the mother in this case emphasised that that was not a part of the mother’s argument but rather that the direct risks for the children, physical and emotional were such that the father should be precluded from any opportunity to spend time with the children.
That was not the stance taken by the independent children’s lawyer however, relying properly upon the concerns that were express by both Ms C and Ms P. Both identified the fact that the mother may have painted a picture of her being more resilient and able to cope than was really the case. Both of the experts emphasised the serious consequences for these children if their mother, despite her assurances and best endeavours, decompensated and was to be negatively affected in respect of her capacity to parent the children.
Ms P expressed the real concern that the mother might be “pushed over the edge” if any order we made with regard to the father spending time with the children. It is understandable that the independent children’s lawyer had such a concern in respect of the mother and therefore made submissions with regard to the issues raised in Russel v Close (supra). I must say that from my observations of the mother’s demeanour in court and her distressed state, especially during the father’s evidence, I similarly have concerns as to the mother’s capacity to cope with the children spending time with the father if such an order were made, particularly when she considers that such an order would be so damaging for the children. As noted by the Judges of the Full Court in Blinko & Blinko (supra):
[w]here the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child.
There is in my assessment overwhelming evidence that the mother despite her best endeavours would be unable to remove the children from a situation where her own genuinely held concerns would be observed by them or where her own ability to meet the needs of the children would be negatively impacted upon.
I am obviously required to consider what safeguards might be able to be put in place, that would ensure that some opportunity for the children to spend time with their father could be facilitated and be beneficial to them. Unfortunately, I am unable to envisage any arrangement for supervision or otherwise which would allow the children to spend time with their father and to hopefully benefit from that and at the same time ensure that the mother is able to continue her primary if not exclusive role in meeting all of the needs of the children without possible negative effects.
Accordingly, and being mindful of the fact that the best interests of the children must be regarded as the paramount consideration, I am satisfied that this is one of those rare cases where the only way to ensure that the best opportunities are available to the children, now and into the future are to make orders which remove any obligation or requirement for the children to spend time or communicate with their father.
I am of course mindful of possible detriment for the children that arises from such an order in particular I am concerned that the children may somehow idealise their father as a result of not seeing him or having the opportunity to know him. However, I am also mindful of the assistance that is available to the mother to deal with such issues and in particular the indication by Ms C and Ms P that such issues can appropriately be addressed and that the mother would take proper steps to ensure that the children, in an appropriate way, were aware of why they were not having a relationship with their biological father.
I am also mindful of the sometimes appropriate arrangements, for a parent, even if they are not to spend time with or communicate with a child or children to have some report or information provided as to the children’s progress as well as to be able to communicate with the child or children by card of letter. In this instance however there remains the genuine fears of the mother and the risk that any continued requirement for her to interact with the father, even by way of card or letter would continue the trauma for the mother and therefore put the children at risk.
I am also mindful of the fact that the mother seeks an order which will enable passports to be obtained for the children. Pursuant to the orders which I have indicated are to be made, the mother will have sole parental responsibility in relation to decisions to be made with the children, and accordingly can obtain a passport for the children. However, out of an abundance of caution, I shall include orders for the mother in that regard.
As such, the orders detailed at the commencement of these reasons, though restrictive in the extreme, reflect arrangements which meet the best interests and welfare of these children.
I certify that the preceding one hundred and sixty six (166) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 19 January 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Remedies
0
7
2