WHITLOW & CRANE

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITLOW & CRANE

[2019] FCCA 2439

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 61DA, 65DAA, 65D

Applicant:

MR WHITLOW

Respondent:

MS CRANE

File Number:

PAC 3353 of 2017

Judgment of:

Judge Newbrun

Hearing dates:

29, 30 July 2019

Date of Last Submission:

30 July 2019

Delivered at:

Parramatta

Delivered on:

24 September 2019

REPRESENTATION

Counsel for the Applicant:

Ms Friedlander of Counsel

Solicitors for the Applicant:

Ms Roland

Solicitor for the Respondent:

Mr McAuley

Counsel for the Independent Children's Lawyer:

Ms McConaghy of Counsel

Solicitors for the Independent Children's Lawyer:

Ms Tuaileva

ORDERS

That the mother have sole parental responsibility for the children, X born … 2003, Y born … 2005 and Z born … 2006.
That the children spend no time with the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3353 of 2017

MR WHITLOW

Applicant

And

MS CRANE

Respondent

REASONS FOR JUDGMENT

Introduction

This final parenting hearing relates to the children X born … 2003, Y born … 2005, and Z born … 2006 (the children).

Proposals

The father in his Case Outline sought final parenting orders that the mother have sole parental responsibility for the children, and that the children live with the mother and spend supervised time with the father. Later, following the conclusion of the oral evidence, he sought “Interim Orders”, inter alia, that the mother have sole parental responsibility for the children; that the children live with the mother; that the children spend a minimum of 2 hours a fortnight at the Suburb K Contact Centre with the father for a total of 13 visits; that after 13 visits have been completed the matter returns to court for submissions regarding final orders; and other ancillary related interim parenting orders (see exhibit D).
The mother and ICL both sought final parenting orders that the mother have sole parental responsibility for the children, that the children live with her, and that the children spend no time with the father.

Material relied upon

The mother relied upon the following documents:
a)Affidavit of the Mother filed 12 August 2017 and her affidavit affirmed 12 June 2019 and filed 8 July 2019.
b)Affidavit of Mr A filed 8 July 2019;
c)Affidavit of Ms C filed 8 July 2019;
d)Affidavit of Mr B filed 8 July 2019;
e)Affidavit of Ms D filed 8 July 2019.
The father relied upon the following documents:
a)Affidavit of Mr Whitlow filed 8 July 2019 (affirmed 5 July 2019).
The following exhibits were relied upon by the parties and ICL:
a)Exhibit B: Family Report dated 30 October 2018 and Child Inclusive Conference Memorandum dated 6 November 2017;
b)Exhibit C: Tender Bundle;
c)Exhibit D: Father’s proposed orders titled ‘Interim Orders’.

Evidence

Throughout these reasons (including the Court’s discussions under s.60CC of the Family Law Act 1975) the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. The court does not propose to set out the entirety of the parties’ evidence and the evidence of the lay witnesses, nor the entirety of the family report writer’s evidence. It does not propose to set out the entirety of the documentary evidence in the proceedings.
The father is aged 67 years, and the mother is aged 47 years.
The parties commenced cohabitation in about 1989 and they separated on about 8 October 2016 when the mother was assaulted by the father.
The parties’ adult children are Ms C now 28 years, Mr A, now 27 years, and Mr B, now 19 years.
Following the party separation the children live with the mother, the father having left the family home.
During the parties’ relationship the father was not significantly involved in the children’s day-to-day lives. For example he did not spend significant and regular time with them after school and he did not help them with their homework. He did not carry out significant housework, usually sitting on the lounge watching the news.
The children suffer from various disabilities and their original diagnoses are referred to in the reports of health professionals contained within the tender bundle. X suffers from autism spectrum disorder and mild intellectual disability. Y suffers from mild to moderate intellectual difficulties and memory disorder. Z suffers from anxiety, autism spectrum disorder and moderate developmental delay. The adult child Mr B had learning disabilities throughout his life. The mother asserts that the child Y also has ADHD.
The father on occasions would kick the child Z while watching television and would trip him over when he walked past the father. The father on occasion would call the child Z “turd”.
A final apprehended domestic violence order was made for 12 months against the father for the protection of the mother on 8 February 2017. That order related to an assault upon the mother by the father that occurred on 8 October 2016. The father was convicted of that assault.
The Court finds that in relation to the assault by the father upon the mother on 8 October 2016, after the mother pushed the father in the family home, the father pushed the mother up against a freezer and put his hands around her throat such that she had difficulties breathing.
The Court finds that prior to this incident in October 2016, and some months before, the mother had dislocated her knee. In the days following hurting her knee, the parties had an argument. The mother began to throw items at the father and the father, in an effort to stop the mother doing this, kicked out at the mother hitting her in the knee.
The mother is currently unemployed and has a full-time role in caring for the children who have special needs.
The mother is very worried that the children will suffer further family violence should they spend time with the father.
The children attend Town E high school. The child X is in year 10. The child Y is in year 9. The child Z is in year 7. The children are in the support unit at the high school. They are performing well and the children’s teachers have told the mother that they are very happy with the work they do.
The father has not seen the children since separation on 8 October 2016.
The children have told the mother that they do not wish to see the father and are fearful of him.
The child X is currently on the National Disability Insurance Scheme (NDIS) and receives funding to engage in Outdoor Explore, which enables him to participate in various outside activities with other children with similar disabilities, namely autism. This child enjoys these activities and has made many friends. The mother believes his autism is being managed adequately. He engages with people in the community on a regular basis and is generally of a happy disposition.
The child Y is also on the NDIS. He currently receives counselling and is enrolled in relationship courses to help with his communication and social interaction. He has not yet engaged in any of these services, but the mother expects him to do so in the near future. He currently does not take any medication.
The child Z sees a counsellor at school and at home through a service provided by the NDIS. The other children also see counsellors through NDIS, both at school and at home. The child Z is also doing the Outdoor Explore with the child X and enjoys it. The mother observes that the child Z is generally a happy child and his social interaction skills are improving. Z’s main problem regarding his anxiety is that he is fearful of people, and has a distrust which makes it difficult for him to make friends and social acquaintances.
The mother ensures the children eat regular, healthy meals and get sufficient sleep of an evening. They are all properly clothed and the mother ensures that they shower once a day and are clean. The mother cleans the house, she also washes all the children’s clothes each week, and they live with her in a residence at Town F.
The mother gave oral evidence.
The mother stated that she left high school in year 10. She then did a course at TAFE. She worked in customer service for six months and then obtained a position at Employer L.
The mother stated that she had become the father’s carer in about 2008 following his eyesight becoming bad and being unable to do things for himself.
When it was suggested to the mother in cross examination that she argued and screamed, she stated that she raised her voice and she threw things out of frustration because the father wouldn’t listen to her. She stated that mostly it was throwing things at the ground in front of herself.
The mother stated that the father had physically chastised the child Z with a cane in 2008 in circumstances where this child had “missed the potty”.
The mother stated that in 2011 the father was ingesting antidepressants and he was acting a lot better.
The mother stated that X reacted to the father’s yelling by leaving the room, putting his hands over his ears and rocking himself. She stated that this child likes to skip up and down the length of the house to regulate himself.
In relation to the child Y and his asserted diagnosis of ADHD, the mother stated that he can go 100 mph and be “hyper”.
In relation to the child Z, the mother stated that anxiety is the main factor in his life. He experiences panic attacks and wants to run from what has caused such attacks. There is a need to stop him running onto the road. These panic attacks have reduced significantly since the father left the family home.
The mother stated that she has not turned the children against the father. She stated that she has told the children that they can see the father if they wish, and she would facilitate such contact at a contact centre initially. She reiterated that the children do not want to see the father. She stated that the children feel unsafe around the father.
The father annexes a psychological assessment report of himself dated 25 April 2017 and prepared by clinical psychologist Ms G. This report appears to have been commissioned by the father’s criminal law solicitor in the context of assault proceedings brought against the father and arising out of the assault upon the mother on 8 October 2016. The author of the report states at the outset that the report was specifically requested to investigate whether the father meets criteria for consideration under section 32 of the Mental Health (Forensic Provisions) Act, 1990.
The father was interviewed by the psychologist on 19 April 2017.
The psychologist stated that the father’s verbal skills impressed as low, “but reasonable and he appeared open in his responding”.
The father stated that he witnessed domestic violence between his parents when they were mutually intoxicated. He stated that when he performed poorly at school punishment included being hit with a cord. (In passing, the Court observes that the father stated in his trial affidavit that his own father would come into his room and beat him).
The father stated that he did not particularly enjoy his schooling as he struggled with learning and literacy. He refrained from seeking support. He was expelled in year 8 because he assaulted a teacher who pulled his hair and he did not return to education thereafter. The father advised the psychologist that he has not completed further education or vocational training.
The father told the psychologist that he had consistent employment from his adolescence until he was about 38 years. He was employed in labouring roles. He then had a period of unemployment having met the mother. He returned to labouring thereafter until he was 48 years of age. At that time he was diagnosed with type 2 diabetes and other related medical issues. He became a recipient of a disability support pension which he continues to receive.
The father explained that for the last six years he has been isolated and spent most of his time with his family, until the dissolution of his marriage in October 2016. As such the father endorsed himself as lonely and lacking in support at present, which “is affecting his depressive symptomatology”.
The father stated to the psychologist that he met the mother when he was 38 years and the mother was 19 years of age.
The father stated that he felt the relationship with the mother began to diminish when the mother became his carer after he was diagnosed with diabetes.
The father confirmed that he has had no contact with the children since October 2016, which is significantly distressing for him as he is of the perception that the children have been turned against him.
The father stated that at present he is living independently in a home in Town M with support bi-weekly from a community nurse.
The father referred to being prescribed various medications for his health including an antidepressant medication. He stated that he has been on the same dose of antidepressant medication for the past 17 years.
The father advised of alcohol use between 18 years of age and his 40s at a few standard drinks once a week.
In relation to the charge of assault the subject of the psychologist’s report, the father asserted that the mother had initially pushed him as she walked to the front of the house and that he reactively pushed her back like a reflex.
The father reported that he initially experienced depressive symptoms at age 48 years after he was diagnosed with diabetes and permanent eyesight problems. He recalled that he felt low in mood because he was no longer able to work and he “got down on things” that he couldn’t do.
After the father was charged with assault in October 2016, he noted problematic functioning. The psychologist stated that the father endorsed symptoms including consistent low mood, lack of motivation, hopelessness around his future, insomnia and an attempted suicide in the evening he was charged. Specifically, the father reportedly consumed a significant amount of his antidepressant medication and he was treated in hospital with charcoal. Whilst the father endorsed continued sporadic suicidal thoughts, he denied any current intent or plan. The psychologist states that overall, since shortly after his charge and due to the end of his long-term relationship, along with no contact with the children, the father has experienced a crisis of coping and poor psychological functioning.
The psychologist made a diagnosis of Major Depressive Disorder, Recurrent Episode, Severe, of the father, “which has been occurring since he was charged and persists”.
The father, the psychologist noted in her formulation, denied any prior aggression in his long-term relationship with the mother (or any proclivity for violence in other areas of his life for several decades) before his relationship with her was in dire straits.
The psychologist opined that it seemed more likely that during a period of increased emotionality, in the context of an argument, the father retaliated against the mother in an uncharacteristic manner.
The father participated in an electronic record of interview with the police on 8 October 2016 in relation to the assault against the mother; that record of interview is attached to his trial affidavit.
In his trial affidavit, the father confirmed that during his time at the police station on 8 October 2016, he overdosed on certain medication and was taken to Suburb K hospital. He states that he was distraught at the situation and unable to cope. He states that he took this action after he watched the recording of the mother’s police interview in relation to the assault.
The father attends Church. He asserts that he has found a degree of solace in his faith in the people of the church who have provided guidance and support to him. He attends that church regularly. The father asserts that that church has been the only real source of support to him since the breakdown of his relationship mother.
In his trial affidavit, the father denies that he is an abusive or violent person. He asserts that the mother has alienated the children from him.
The father gave oral evidence.
The Court does not propose to set out the entirety of the father’s oral evidence.
In evidence in chief, he admitted that he did yell at the children but it was not all the time.
The father stated that there had been a lot of yelling but that was between himself and the mother.
The father stated that he did use to yell at the children when they did not do what they were told. He stated that he did yell and scream at the children if they were playing up.
As to the adult child Mr A’s assertion in his affidavit that the father would sometimes throw things “at us”, the father denied throwing things. He stated that he used to play a game with Mr Whitlow whereby he would throw a plastic bucket at him and Mr A would throw it back.
The father admitted calling one of the children “a dickhead” but in the context of the child possibly hurting himself.
In the context of the adult child’s Ms C’s assertions that the father had physically abused the child Z, the father denied such physical abuse and stated that he had hit the child Z with his hand.
In the context of the adult child’s Ms C’s assertions that the father was always yelling and putting the mother down when she was growing up, the father stated that disputation between himself and the mother for the last 12 months of their relationship was bad.
The father stated that he may have called the child Z a “turd”.
The father stated that he was no longer ingesting antidepressant medication.
The father stated that he had got on “good” with the mother until the last 12 months of their relationship.
The father stated that the parties yelled and pushed each other during the last 12 months of their relationship.
The father agreed that the child X was sensitive to loud noises.
The father stated that he had hit the children Z and Y with his hand. He had not hit the child X with his hand.
The father referred to the child Y losing his temper in seconds.
The father stated that he had called the children “dickheads” after discovering a crack in a wall for which he held the children responsible. He stated that he used to call the adult child Mr A “a dickhead”. He stated that on about one occasion he had called the adult child Mr B a “turd”.
In relation to the bail conditions imposed by the Local Court following the father being charged with an assault upon the mother on about 8 October 2016, the father stated that he had walked out on a male psychologist having seen him for about two months. He stated he did not attend the Town E Men's Shed.
The father confirmed that he did not comply with the treatment plan of the psychologist Ms G, being appendix A to her report dated 25 April 2017. Rather, he carried out his own treatment plan involving joining a Church at Town N and saw psychologists there.
Cross-examined by counsel for the ICL as to whether the father accepted any responsibility for the relationship he had with the children, the father stated that he didn’t do anything differently to what a father does.
The father agreed that the children had been exposed to 10 years of arguing, including yelling between himself and the mother, during the years 2006 and 2016.
The father stated that he and the children had all got on pretty well until he and the mother started fighting.
When it was suggested to the father that his way of disciplining the children was to hit them, the father responded that the way to discipline the children was to yell at them. The father admitted to physically disciplining the children when they swore at people.
The father referred to having difficulties in the past verbally communicating with the child Z.

The father stated that he wanted to spend supervised time with the children. In this context he stated that if the children did not want to spend such time with him than they did not have to do it. He would not force it.
The father stated that he refused to allow the child Y to go on certain medications to calm him down as requested by his teachers. He believed that such medication would make him a “zombie”.
The adult child Ms C swore an affidavit and gave oral evidence.
Ms C stated that she last saw the father around the time the parties broke up, about three years ago.
Ms C stated that growing up the father was pretty angry all the time. She states that the father would take out his anger on the adult child Mr A a lot.
She stated that the father took a lot of frustration out on the child Z; she stated that the father kicked him, pushed him, hit him with a belt, and used a bamboo stick on him. Ms C states that she left home when the child Z was about two years old. She stated that she visited the parent’s home when the child Z was about three or four years of age. She stated that the child Z missed the toilet and “got the belt”.
Ms C stated that the father was always yelling and putting the mother down when she was growing up. She stated that after the mother had gone to bed, the father would tell her and her brothers that the mother was a slut and a hooker and other disgusting things which were not true.
Ms C was cross-examined in relation to her assertions that the father had physically abused the child Z. She confirmed that this abuse had occurred when the child was turning two years of age. She stated that the child Z had been in trouble because he wouldn’t stop crying. She stated that she had not reported this abuse to the police because she had trouble talking back about it, she was young and scared herself, she didn’t know if she would get hurt, and she didn’t know how to handle it.
Ms C stated that the father had kicked her daughter O when she was two years old. The father had been sitting on a lounge chair and he had kicked this child so that she landed on her hands and knees. As a consequence of this incident she had stayed physically closer to the child and had brought her husband with her.
Ms C stated that the father had hit her after an argument when she went on to a diet. She stated that the father had got her out of bed and slapped her.
Ms C stated that she had observed the father to yell at and hit the children both before and after she left the family home in 2009.
Ms C stated that the children told her that they would run away if they had to spend time with the father.
Ms C stated that if the Court made an order that the children spend time with the father supervised at a contact centre, the child X would shut down, the child Y would get angry and upset, and the child Z would have an anxiety attack.
The adult child Mr A swore an affidavit and gave oral evidence.
Mr A stated that he moved out of home about 4 to 5 years ago. He last saw the father about three years ago. He calls the father Mr Whitlow now having used to call him Dad.
Mr A stated the father was always yelling and screaming at the children growing up. He stated that the children were playing with their toys and if the father thought they were making too much noise the father would yell at the children.
Mr A stated that the father used to hit him quite often. He states that, for example, if his room was messy he would cop a belt.
Mr A stated that when he was around 13 years of age, the father belted into his back with a belt leaving bruises all up his back.
Mr A stated that sometimes the father would throw things at him.
Mr A stated that he does not want to see the father because of how abusive the father has been in the past. He stated that the child Z has bad anxiety around the father. He stated that he was scared of the father when he was younger.
Mr A stated that there were odd times when the mother threw things at the father.
Mr A stated that “after Town P” the father changed and became angrier.
Mr A stated that the father would yell at the children if they were playing with their toys and being loud.
Mr A stated that he had returned to the family home to visit at least once each month since he moved out. He stated that the children and the mother seem a lot happier since the father moved out. He stated that the child X is not as anxious as before. The child Y generally seems happier and Z’s anxieties are less and he doesn’t get anxiety attacks as often.
The adult child Mr B swore an affidavit and gave oral evidence.
Mr B stated that he last saw the father a couple of years ago when the parties broke up.
He stated that the father never calls the child Z by his name.
Mr B stated that the father “constantly yells and screams at everyone”.
Mr B stated that the father kicked and threw things at the mother such as shoes and boxes.
Mr B stated that the father didn’t help “us” in any way. He states that the father barely got out of his chair.
Mr B stated that sometimes the mother threw things. When asked whether the mother threw things at the father, his reply was “probably”.
The maternal grandmother swore an affidavit and gave oral evidence.
The maternal grandmother stated that the father used to yell at the children. She stated that the father sometimes would call them awful names.
The maternal grandmother stated that the children had a lot of birthday parties at her place.
The maternal grandmother stated that after the father left the family home the difference in the children was huge. She states that the children had changed since the father left. She states that the children are happy and smiling.

Subpoenaed documents in evidence: exhibit C

The Court does not propose to refer to all documents contained within exhibit C.
Bail conditions (varied) were imposed upon the father by the Town E Local Court on about 9 May 2017 and which provided, inter alia, that the father was to comply with a treatment plan requiring him to attend a GP at least once per month; attend a psychologist at least once per month or as directed by a particular psychologist; take all medication as prescribed by the GP or psychiatrist; continue to have a community nurse visit his home at least twice per week; regular contact no less than once per month with a social worker from community mental health either at his home or at a location determined by the social worker; to comply strictly with any current ADVO for the protection of the mother; to contact Town E Men's Shed and attend at least one meeting of the group.
A FACS contact record from October 2016 states that following the incident on 8 October 2016, the children were quite distressed about the weekend’s events. The child Y called the police and they came and arrested the father. The child Z “has anxiety and wants to sleep with Mum now.”
The police COPS record for 8 October 2016 states, inter alia, that the mother informed police that her relationship with the father has been deteriorating over the past nine years. She stated that the father has become more angry and aggressive towards her and their children during this time. She has not reported any prior incidents that have taken place in the family home for fear of reprisal by the father. The mother stated that the father’s mental stability has become progressively worse in these years.
A paediatrician’s report for the child Z dated 2 March 2014 states, inter alia, that the child almost certainly has autistic spectrum disorder which is familial and in association with this he has some issues with anxiety. A later report from the paediatrician dated 26 April 2014 states, inter alia, that the child Z was identified as having moderate developmental delay, having very significant anxiety with what is probably selective mutism. It states that the child has anger outbursts which are said to be worse at home and a lot worse when people don’t understand him. He was particularly non-compliant for the father. He has some marked sensory issues. The paediatrician stated his belief that the child has autistic spectrum disorder and concentration issues which need to be further resolved.
There is a locum paediatrician’s report dated 10 April 2012 from the Region H hospital, in relation to the child X. It states that in summary this child has autism spectrum disorder and mild global development or delay. He also has challenging behaviour at home.
A paediatrician’s report for the child Y dated 11 August 2011 states, inter alia, that this child has been assessed with mild intellectual difficulty, but presenting functionally at a lower level than this in terms of personal-care skills, language/communication and learning outcomes. In addition to cognitive difficulties, he presents with significant language difficulties affecting everyday communication and learning. The later report of the paediatrician dated 6 October 2011 for this child confirms that the child has moderate intellectual difficulties and still has outstanding needs for developmental intervention.
A report from a school counsellor relating to the child Y and dated 19 October 2016 states, inter alia, that the child Y volunteered the following information before the father was taken into custody in early October 2016:
1. Y hated that his father used to trip his brother over again and again because his dad thought it was funny but his brother didn’t like it and his brother got hurt.
2. His brother used to run away when his dad tripped him – sometimes the police had to go looking for his brother because his mother couldn’t find him – he used to run a long way.
3. Y’s father punched Y.
4. Y didn’t run away because he thought by him getting punched his brother wasn’t getting tripped and hurt.
A Bond to Comply with Conditions dated 4 December 2017 records the father being convicted of common assault on 4 December 2017 and provides that the father is directed to enter into a good behaviour bond for 12 months.

The child inclusive conference held on 2 November 2017

Ms J, family consultant, conducted this conference.
The father did not attend this conference.
The mother proposed that the children only spend time with the father according to their wishes. She envisaged that this would mean that the children would spend no time with the father.
The mother told the family consultant that the children were terrified of the father. She stated that the father would constantly scream and yell at them and he had them all walking on eggshells. She stated that the children have been physically abused by the father.
The mother told the family consultant that the father was once a good father and stated that her two older children, Ms C and Mr A had some memories of the father assisting them to dress and take them to school.
The mother stated that the children all have disabilities and require additional assistance with many of the tasks of daily living. She stated that the father never involved himself with the children and would be poorly placed to manage their additional needs.
The child X was interviewed by the family consultant. He could not think of anything good about the father and stated that the father used to kick him and would throw things when he got angry. This child was adamant that he did not want to see the father because, “all he ever did was hit us and yell at us. It’s much better now he’s gone.”
The child Y told the family consultant that he could not remember when the father was nice and that all he remembers is the father getting angry. He stated that when the father got angry he would throw stuff such as cans and bottles and “hit us with a belt”. He stated that the father would whack him even when he had not done anything wrong. This child stated that he saw the father strangle the mother, and that the mother started to turn blue so he called the police. He stated that on another occasion the father kicked the mother on her knee when it was already injured. This child considered that the father was angry every day and stated that the home was now peaceful, nice and quiet. The child stated that he would not want to go near the father and that he would be scared and would try to run off. He stated that he would not want to see the father, even under supervision, and that he would rather not see him at all.
The child Z told the family consultant that it was good that the father wasn’t at home anymore. He stated that the father used to yell and hit “us” with a stick. He also stated that the father called him names like “turd” and “fuckwit”. He clearly stated that he did not want to see the father and could not think of any circumstances under which he would want to see him. When the child was shown some bear cards depicting emotions, he selected a happy card for the mother and a scared card for the father.

The family report

Ms J, family consultant, prepared a family report dated 30 October 2018. She interviewed the parties and the children on 24 September 2018. Inter alia, she reviewed certain subpoenaed material as referred to in her family report. An observation of the three children with the father was not conducted because of the children’s refusal to participate.
The family report writer stated that the mother lives with the children in a rented home in Town F. The mother relies on a carer payment, which she receives for the children, for income. She has a driver’s licence and a car.
The father lives in a two-bedroom rented apartment in Town M and has lived there for about 18 months. The father has not worked for about eight years. He stated he has poor eyesight, and peripheral neuropathy as a result of his diabetes. He is not allowed to drive because of his poor eyesight. He is not in a relationship.
The mother alleged that the father was violent and controlling in the relationship. The father alleged that the mother threw objects which also hit him on occasion.
The father told the family report writer that he has a lot to offer the children. He stated that he used to teach the children certain things and take them camping. He spoke of helping the children with their studies and that he can teach them to do electrical work and how to build a house.
The mother told the family report writer that she was asking that the children have no contact with the father, on their behalf, because they don’t want to see the father. The mother stated that she has talked with the children about seeing the father, and has instructed them that she will make it happen if they want to see him.
The mother told the family report writer that she sometimes threw things out of frustration.
The father told the family report writer that on the day the parties separated, the mother had been “going on” about a pump he bought and he “pushed her over to the freezer” to “stop her going on.”
The father told the family report writer that he denied making anyone in the household feel scared and said that, because of his hearing problem, he sometimes speaks loudly, however, he was sure that the children and the mother were never frightened of him.
The father stated that he sometimes gave the children smacks across the back side with his hand but denied any other intervention with the children.
The father told the family report writer that he was upset emotionally at the time of separation and still gets upset. He stated that he twice attended a court ordered psychologist but that the psychologist did not listen to his side of the story so he did not return. He confirmed that he attends Church each Sunday and that the people there have given him back some confidence.
The mother told the family report writer that her mental health was much better now. She stated that the domestic violence support services in her area referred her to a counsellor in Town E and that she attended her for most of 2017 until March 2018. The mother stated that the counsellor helped her greatly in relation to post-traumatic stress disorder.
The father stated that he thinks the mother is a good mother and that she always looked after the children and got them to school. He stated that he thinks that he stepped back and let the mother look after the therapies for the children.
The mother told the family report writer that the father was a pretty good father to the two older children. She stated that he was supportive of them and listened to them. She stated that the father became progressively less interested in the children and that he showed no interest at all in the lives of the children Y and Z.
The mother told the family report writer, when asked about the future for the boys, that she believes all three would be unable to cope without some assistance and support. She stated that they require prompting and instruction to ensure that they move through the day and that all require instructions to be kept simple.
The family report writer interviewed the children.
The child X was interviewed. He referred to being verbally abused by the father and being hit with a belt. He referred to the child Z being called “a turd a lot”. He clearly stated that he didn’t want to see the father ever again. He spoke of hearing the mother cry when the father was strangling her.
The child Y was interviewed. He stated that living with the father was like hell and “we got yelled at every day after school”. He reported that the father whacked him on the bottom with a belt and that he did this lots of times. He referred to the father kicking the mother in the knee and strangling her. He stated that he saw the father do this. He stated that he contacted the police because the mother was going blue after the father strangled her. He claimed that he was scared each time he got home and that the mother was also scared of the father. He stated that he did not want to see the father and did not want to be observed with him for the assessment.
The child Z was interviewed. He stated that the father annoyed him because “he kept on telling me to shut up when he was watching TV” and the father called him “a turd” all the time. He stated that the father would grab him and used a belt to hit him on the back. When this child was asked about spending time with the father he stated that this would be “really really bad” and that he would be scared to see the father. He stated that he does not want to see the father, even for an observation.
The father made certain statements to the family report writer about Z. He stated that the child Z was autistic “but plays on it a lot.” When asked about this by the family report writer, the father stated that “he uses it to his advantage”. The father stated that he found Z to be more difficult and that “he (Z) never really liked me.” The father stated that Z “did not like authority”.
The family report writer provided an “Evaluation” in her family report.
She stated that the children appear to have an established and warm relationship with the mother and a more fraught relationship with the father. She stated that all three children were adamant that they did not wish to spend time with the father, and both Z and X would not participate in an observation with the father.
The family report writer stated that the children’s views were given clearly and consistently in the assessment. In this context the family report writer referred to the children’s disabilities (and see paragraph 80 of the family report). She stated that all three children were able to express clear views that their life was now better and gave reasons for this which was consistent with their expressed views. It was recommended that some weight be given to the children’s views.
The family report writer observed that, unlike the mother, the father did not appear to be as aware of the needs of the children, nor of any interventions which may be required. Whilst the father was able to give some account of the children’s personalities and disabilities, he appeared to regard their behaviour as naughty, rather than possibly related to their disabilities, and seemed puzzled about why they may require additional interventions.

The family report writer stated that the disabilities of the children are such that they will likely require lifelong assistance in managing their lives. She stated that while there are many services which may assist, this assistance will be greatly enhanced if a caring parent is involved. She stated that the mother seems to have accepted this challenge and appeared appropriately involved in addressing the children’s needs. She stated that the father displayed little knowledge of the children’s disabilities and any interventions. He acknowledged that he left much of the planning and organisation to the mother, and said that he now regrets this.
The family report writer stated that all three children made allegations regarding the father’s treatment of them, particularly the use of physical punishment. She stated that if the father were to have disciplined the children by using a belt or by kicking them, this would be considered physically abusive and hence would be of concern. She stated that in addition to the risk of physical injury, physical abuse of a child is associated with significant and enduring psychological impact on children and can contribute to a range of internalising or externalising disorders. She stated that if the children’s accounts have veracity, their reported fearfulness regarding the father, and their unwillingness to spend time with him, would be understandable.
The family report writer stated that the effects on children of exposure to physical abuse can be wide-ranging, from fear and mistrust of adults to hypervigilance, problems with academic achievement, aggression and anger management, depression, anxiety and low self esteem. The behaviour of children with a disability may also be more challenging and it would be expected that physical punishment would impede their ability to learn or to think through their actions.
She stated that it was of particular importance that the behaviour of children with a disability is understood in a functional sense and behaviour management strategies put in place, which seek to render undesirable behaviour inefficient or unnecessary. The use of punishment is not generally included in these strategies, rather the use of positive reinforcement for desirable behaviour is recommended.
The family report writer stated that the father’s denial of physical violence towards the children, if the violence actually occurred, would place doubts on his capacity to substantially alter his behaviour in the future.
In relation to the parties’ mental health, the family report writer stated that it was concerning that the father did not seem to continue any recommended treatment, and his apparent reluctance to seek assessment or treatment of possible mental health difficulties is concerning and may mean that the children could be exposed to deleterious effects of any difficulties he may have.
The family report writer stated that if the allegations regarding family violence and/or child abuse are shown to have veracity, the children may be at risk of harm, were they to spend time with the father. The family report writer stated that it was therefore recommended that, in this instance, either no time is spent with the father or that time spent is supervised at a contact centre.
The family report writer gave oral evidence. The court does not propose to set out the entirety of such oral evidence.
The family report writer stated that the “recommendations” contained within the father’s bail conditions (of 9 May 2017) were sensible and it was regrettable that the father had not complied with them. She stated that the conclusion that one might draw was that he didn’t think he needed help.
The family report writer stated that the recommendations within the treatment plan (referred to in the report of psychologist Ms G and dated 25 April 2017) would be helpful for the father.
The family report writer stated that the father’s non-compliance with the recommendations within his bail conditions and within the treatment plan were of concern. She stated that if the father has not complied with the treatment plan, then the children face being cared for by someone with poorly managed mental health issues. Such circumstance, the family report writer stated, would preclude the children spending unsupervised time with the father.
The family report writer stated that physical punishment of the children was inappropriate particularly given their levels of understanding. For example, the family report writer stated that in respect to the child Z, he experiences anxiety and physical punishment would increase his anxiety such that he could not think.
The family report writer stated that with a parent yelling at children, the children think less well. In relation to yelling and the child Y, the family report writer stated that children with a diagnosis of ADHD had difficulties managing their behaviour and yelling is unproductive.
The family report writer stated that children with autism prefer structure. She stated that the school place was a very structured environment. She stated that if there was less structure in the family home with yelling, it would be distressing for the children generally.
The family report writer stated that the sense she got (from the family report interview assessment) was that the children were scared of the father. She was asked whether supervision of the children’s time with the father could overcome the children being scared of the father. She stated that it was possible. However she stated that she had a reservation that introducing the children to a contact centre could be anxiety provoking in that the children would not know the people or the place. She stated that such introduction may create new anxieties for the children. The family report writer stated that if you are scared of someone, such anxiety would remain even within supervision at a contact centre.
The family report writer stated that generally supervised time at a contact centre was more suitable for younger children (rather than teenagers).
The family report writer was asked to comment upon the oral evidence of Ms C wherein Ms C had stated her view that if the court made an order that the children spend time with the father supervised at a contact centre, the child X would shut down, the child Y would get angry and upset, and the child Z would have an anxiety attack. The family report writer stated that it would not be unlikely that the children would so react. The family report writer proceeded to state that the children did not participate in the family report interview process with the father despite her inducements.
The family report writer stated that it was appropriate that the father did not want to force the children to see him.
The family report writer stated that if the court made a finding of family violence against the father, the court might well find that the father has not taken responsibility for his actions.
The family report writer’s attention was drawn to paragraph 96 of the family report wherein she had stated that if the court finds that allegations of family violence and child abuse have veracity, it was recommended that the children either spend no time with the father or spent limited time with him under supervision. The family report writer stated, in explanation in relation to supervised time, that it was neither practicable nor desirable for an order to be made for indefinite supervision.
The Court asked the family report writer that if the children were likely to experience anxiety if spending supervised time with the father at a contact centre, how would it be in the children’s best interests to order supervision. The family report writer responded by stating that it would not be (in their best interests). She stated that the only possible advantage to the children in spending such time with the father would be if they were able to experience positive aspects of their former relationship with the father, however these positive experiences were few and far between.
The family report writer stated that it was not necessarily inconsistent with the mother’s allegations of family violence by the father that she did not report the father’s alleged family violence to the authorities. She stated that there were a number of reasons why the mother may not have informed the police or others, for example, reasons of fear of retribution.
Counsel for the father suggested to the family report writer that supervised time between the children and the father could take place for six months, with the matter being brought back to court after this time to see if the children’s relationship with the father had developed. The family report writer responded by stating, inter alia, that it would have been better if that had occurred earlier. She stated that the children were almost at an age where they will make up their own minds (as to spending time with the father).
The family report writer stated that she saw no evidence of alignment between the children and the mother. Her impression of the mother was that she was not hellbent on the children being alienated from the father. She stated that if the children were alienated from the father, it was most likely by reason of the father’s conduct.
The Court accepts the evidence of the family report writer.

Relevant legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
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: section 61DA of the Act. 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: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The children have a meaningful relationship with the mother and will benefit from a continuance of those relationships.
The children do not have a meaningful relationship with the father. They have not spent time with him since the parties’ separation in about October 2016.
It is unlikely that the youngest child Z ever experienced a close and warm relationship with the father historically. The father himself told the family report writer that this child never really liked him.
As discussed below, all the children’s lived experience with the father was significantly punctuated by exposure to his family violence, verbal abuse and yelling. This lived experience of the children appears to have been so personally significant for them that they do not appear to have any significant fond memories of the father.
The Court is not satisfied that the children would benefit from Court orders that they spend time with the father, whether supervised or unsupervised, with a view to them developing a positive if not a meaningful relationship with the father. As discussed below under the need to protect primary consideration, there is an unacceptable risk of harm posed to the children in spending supervised or unsupervised time with the father.
The Court should state that it does not accept that the mother has sought to alienate the children from the father. The Court does not accept that the mother sought to align the children with herself. The mother, during the parties’ relationship, sought to act protectively in relation to the children in circumstances of family violence, verbal abuse and yelling at the instance of the father. Post separation, the Court accepts that the mother told the children that she would facilitate them spending time with the father if they wished to do so. As discussed below, under the need to protect primary consideration, the children’s fear of the father and unwillingness to spend time with him has significantly arisen out of their own lived experience with the father, having been the subject of family violence, verbal abuse and yelling from him.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

There is an unacceptable risk of the children being exposed to abuse, neglect or family violence should they spend unsupervised time with the father.
The Court finds that the mother and the children were exposed to abuse and family violence from the father during the relationship, and they experienced both significant physical and psychological harm in this context.
The Court finds that the father sought to control the mother’s behaviour during the relationship, through, for example, telling the mother what she could, and could not, wear, and the mother was subjected to regular verbal abuse and denigration from the father over a significant period of time.
The father physically abused the mother during the relationship by pushing her (albeit mutual on the part of the mother towards the father), he kicked her knee, and he assaulted her on 8 October 2016 (see the Court’s earlier findings). The Court finds that both parties threw things at each other during their arguments on occasion. On the balance of probabilities the Court is not satisfied that the father otherwise physically abused the mother as alleged by her.
The children were not only exposed to physical abuse from the father but they were subjected to significant yelling and verbal abuse from him. It is likely that they heard the father verbally abusing and yelling at the mother. Further, the child Y observed the mother being strangled by the father in the October 2016 assault (and had called the police accordingly) and X had heard the mother crying during this assault.
The evidence of the adult child Ms C is supportive of the evidence, inter alia, relating to the father physically abusing the children. It is supportive of the evidence relating to the father verbally abusing and denigrating the mother during the parties’ relationship.
The evidence of the adult children Mr A and Mr B is supportive of the evidence relating to the father yelling at the children. Mr A’s evidence of his own experience of physical abuse from the father is at least consistent with the children’s experience of physical abuse from the father.
The evidence of the maternal grandmother is supportive of the children’s experience of yelling and verbal abuse at the instance of the father.
The Court is not satisfied that the father has adequately dealt with his mental health issues. The father had been diagnosed by psychologist Ms G of Major Depressive Disorder, Recurrent Episode, Severe, in April 2017. The father had been distraught following his arrest on 8 October 2016, was unable to cope, and overdosed on medication resulting in him being taken to Suburb K Hospital. He adduced no contemporary health professional evidence relating to this diagnosis nor to his current mental health. There is no relevant material in this context from members of his church or psychologists from that church. He did not fully comply with his bail conditions relating to the assault conviction (relating, in particular, to psychological treatment) and nor did he comply with the treatment plan of psychologist Ms G. The children are at least at risk of neglect if spending unsupervised time with the father in circumstances where he has not adequately treated his mental health issues as previously recommended.
There is a significant risk of the children being exposed to family violence if spending unsupervised time with the father. The court has found that the children were subjected to physical abuse at the instance of the father, and the father has denied such behaviour, thereby leading the Court to have a significant doubt as to the father’s capacity to substantially alter his behaviour in the future.
The Court has a significant doubt as to whether the father could appropriately discipline these children with significant disabilities, particularly noting the father’s historical failure to involve himself in the implementation of the children’s therapies for their disabilities, including his failure to adequately comprehend the reasons for the children’s behaviours by reference to their disabilities. In these circumstances, the Court is of the view that there is a significant risk that the father would resume his previous yelling and abuse of the children if spending unsupervised time with them.
There is an unacceptable risk of psychological harm posed to the children if the children were to spend any time with the father, whether supervised or unsupervised.
The children are scared of the father and do not wish to spend time with him. This fear of the father has arisen by reason of their lived experiences with him. They have previously experienced not only significant physical abuse from the father but also psychological harm. These children are particularly emotionally vulnerable by reason of their significant disabilities. There is a significant prospect, if not a likelihood, that if the children were to begin to spend either unsupervised or supervised time with the father, they would experience psychological harm. The children’s emotional health has significantly improved since the father left the family home in October 2016. A deterioration in the children’s emotional health would carry the significant risk that they would experience unhappiness, absences from their important routines, including regular attendance at school and other activities. This in turn may well place an increased parental burden upon the mother which might adversely affect her parental capacity for these children with special needs.
The father proposes, on an interim basis, for a six-month period, supervised time between the children and the father at a contact centre for a minimum of two hours a fortnight. The proceedings would then return to court for submissions regarding final orders. The father would be hopeful that over the course of such supervised time the children would have spent positive time with the father with a view to the development and maintenance of a meaningful relationship with him. The court is of the view that even such limited supervised time would expose the children to a significant and unacceptable risk of psychological harm; they would have to confront the father whom they fear, by reason of their lived experience of physical abuse and psychological harm, together with being placed in a new environment with which they were not familiar.

The evidence of the family report writer is consistent with the Court’s above views.
The Court attaches substantial weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The Court takes into account that the children are aged 16 years, 14 years, and about 12 years and 9 months, whilst not overlooking their disabilities. This is consistent with the evidence of the family report writer.
The Court attaches some weight to the children’s views not to spend time with the father, in particular by reason of their past lived experience with him (discussed above under the need to protect primary consideration). This is also consistent with the evidence of the family report writer.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The court refers to its discussion above under the meaningful relationship primary consideration. The children also appear to have a positive relationships with the maternal grandmother and the adult children.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

The mother took such opportunities.
The father failed to adequately acquaint and involve himself in the diagnoses of the children’s health issues including their ongoing therapies for these issues. As to the children’s time with the father during the parties’ relationship, the Court refers to the evidence of the family report writer and its discussion above under the meaningful relationship and need to protect primary considerations.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

Both parties appear to have contributed towards the financial maintenance of the children, consistent with their limited financial resources, during the relationship. Post separation, with the father on a disability support pension and not working, it appears that he has been unable to significantly assist with financial child support.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The court refers to its discussions above under the primary considerations.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Not applicable.

(f)The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs

The mother has such capacities.
The father lacks adequate capacity to provide for the emotional needs of the children, and in this regard the Court refers to its discussion above under the need to protect primary consideration. The father probably has a capacity to provide for the children’s intellectual needs.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The children each suffer particular disabilities and have special needs. The children are progressing well in the mother’s care and she is committed to addressing their needs.
The father suffers from diabetes, has poor eyesight and cannot read. The court refers to its discussion above under the need to protect primary consideration in relation to the father’s failure to adequately treat his mental health issues.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

Subject to the Court’s discussion above under the need to protect primary consideration, the mother has demonstrated appropriate attitudes.
As to the father, the Court refers to its discussions above, in particular under the need to protect primary consideration.

(j) Any family violence involving the child or a member of the child's family

The Court refers to its discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

The Court refers to the ADVO made against the father, for the mother’s protection, following the October 2016 assault.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The final parenting orders sought by the mother and ICL would be least likely to lead to the institution of further proceedings in relation to the children. As discussed above under the need to protect primary consideration, there is a significant and unacceptable risk of the children experiencing psychological harm were they to be the subject of the father’s proposed order that they spend supervised time with him at a contact centre.

m) Any other fact or circumstance that the Court thinks is relevant

Although not an order sought by any party, the Court is of the view that it would not be in the best interests of the children to make an order that the children spend time with the father in accordance with their wishes. Such an order may well lead to disputation between the parties. Further, the children themselves may well experience psychological harm or distress, particular noting their disabilities, if the onus is placed on them to make a decision to spend even supervised time with the father; this view is consistent with the evidence of the family report writer.
It will not be in the best interests of the children to make the father’s proposed orders in exhibit D relating to proposed limited supervised time and the Court refers to its discussion above under the need to protect primary consideration.
As to the father’s proposed orders in exhibit D that relate to matters other than supervised time, in the view of the court, they are not necessary to be made in the best interests of the children. The mother has no significant plans to move residential address; the children are attending school consistent with their health and special needs; and there is a not insignificant risk that the mother and children’s mental health will be adversely affected if the father is able to contact the family through, for example, the telephone (and in this respect, the court refers to its discussion above under the need to protect primary consideration).
The Court should state that it recognises that an order that the children spend no time with the father is a very serious and grave order. The Court accepts that the father loves the children and wants to spend time with them with a view to developing a meaningful relationship with them. However, the Court refers again to its discussions under the primary considerations, including the children having been exposed to and subjected to past family violence from the father with adverse effects upon them, and its view that the children would be exposed to an unacceptable risk of harm if spending time with the father, whether supervised or unsupervised.

Parental responsibility

The parties consent to an order that the mother have sole parental responsibility for the children.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
1. That the mother have sole parental responsibility for the children, X born … 2003, Y born … 2005 and Z born … 2006.
2. That the children spend no time with the father.

I certify that the preceding two hundred and thirty eight (238) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 24 September 2019

[2019] FCCA 2439

24 September 2019

Key Legal Topics

Areas of Law

Family Law