Whittaker & Dales
[2022] FedCFamC1F 370
Federal Circuit and Family Court of Australia
(DIVISION 1)
Whittaker & Dales [2022] FedCFamC1F 370
File number: MLC 11417 of 2016 Judgment of: MCGUIRE J Date of judgment: 25 May 2022 Catchwords: FAMILY LAW – CHILDREN – Application by mother seeking final orders that children spend no time with the father – Application opposed by father who seeks time with the children on a graduated basis culminating in a week about regime and for half of all school holidays – Allegations of family violence – Issues as to mental health of both parents – Children’s views – Capacity of parents – Allegations that children are at risk in the care of the father – Orders that children live with the mother – Order that mother have sole parental responsibility for the children – No prescriptive orders made in respect of the father spending time with the children – Orders that children spend time with and communicate with the father according to their wishes – Injunctive orders Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 65DAA(3)
Cases cited: Champness & Hanson [2009] FamCA 96
M v M (1988) FLC 91–979
Mazorski & Albright (2007) 37 FLR 518
McCall & Clark (2009) FLC 93-405
N & S and the Separate Representative (1996) FLC 92-655
Napier v Hepburn (2006) FLC 93-303
PST & CPR [2006] FMCAfam 36
Sigley & Evor (2011) 44 Fam LR 439
Division: Division 1 First Instance Number of paragraphs: 205 Date of hearing: 28 and 29 March 2022 and 1 April 2022 Place: Hobart Counsel for the Applicant: Mr Ambrose Solicitor for the Applicant: Maloney Anderson Legal Solicitor for the Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Ms McNamee Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 11417 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WHITTAKER
Applicant
AND: MR DALES
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
25 May 2022
THE COURT ORDERS THAT:
1.All extant parenting orders be dismissed.
2.The children X born in 2008, Y born in 2010 and Z born in 2013 (‘the children’) live with the mother, Ms Whittaker.
3.The mother have sole parental responsibility for the children.
4.The father, Mr Dales, be permitted to communicate with the children by card, letters or gifts on one occasion in the first week of each month and on each of their birthdays, Easter and Christmas and the mother will encourage the children to respond to the father.
5.For the purposes of Order 4 herein the mother will provide to the father, within seven days (7) from the date of these Orders, an email address or P.O. Box to enable him to correspond with the children.
6.For the purposes of Order 4 herein the mother may review any cards, letters or gifts sent to the children by the father to ensure they are appropriate and if she considers an item to be inappropriate then she shall advise the father in writing and such item shall be withheld from the children.
7.The children or any of them spend time with the father as agreed between the parents in the event of any child expressing to the mother a wish to spend time with the father.
8.The parents will keep each other informed of their email addresses and P.O. Boxes and will advise the other parent within forty eight (48) hours of any such change occurring.
9.The mother will keep the father advised by email as to the children’s educational progress.
10.The mother will notify the father by email, as soon as is practicable, in the event the children suffer from any serious illness, injury or are hospitalised.
11.The father be and is hereby restrained by injunction from contacting the children, or any of them, or the mother save as provided for in these Orders.
12.The father be and is hereby restrained by injunction from abusive or threatening to abuse, denigrating or belittling the children, or the mother to the children, in any email or written communication or otherwise.
13.The appointment of the Independent Children’s Lawyer be discharged twenty eight (28) days from the date of this order.
14.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
15.That all extant applications, other than costs, be and are dismissed.
16.Any application as to costs to be made in accordance with the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021(Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Whittaker & Dales has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J
APPLICATIONS
These are parenting proceedings in respect of the parties' three children namely:
(a)X born in 2008 (aged 13 years);
(b)Y born in 2010 (aged 12 years); and
(c)Z born in 2013 (aged nine years).
The mother, Ms Whittaker, is the applicant. She proposes orders whereby the children live with her and she have sole parental responsibility for them. She argues that the children's relationship with the father be limited to the sending of cards and letters once per month with injunctive orders preventing the father contacting herself or the children.
The father, Mr Dales, represents himself. An order was previously made pursuant to s 102NA of the Family Law Act 1975 (Cth) (‘the Act’) providing representation for the father where there are issues of family violence and intervention orders. The father disengaged with the appointed lawyer. He accepted that he would not be permitted to cross-examine the mother. My observations of the father were at all times that he conducted his trial in a well prepared and informed manner and with appropriate courtesy to counsel and the Court.
In his case summary the father seeks orders whereby the children live primarily with the mother but with the parents to have equal shared parental responsibility. He argues for time for the children with him on a graduated basis commencing on Saturdays from 10.00am until 2.00pm and culminating in the children spending time between the parents on a week–about basis and for half of school holidays. In respect of the oldest child X the father concedes that time with him should be in accordance with X's wishes, but with an order that the mother encourage and facilitate time between X and the father.
The father also asks for time with the children on specific special days.
The Court has the benefit of an independent children's lawyer (‘ICL’) instructing counsel at the trial. The ICL proposes orders for sole parental responsibility for the children in the mother with the children to live with the mother. In her Case Outline the ICL argues for orders in respect of time between the children and the father as follows:
(1)The children spend no time with the father save as follows:
(a)in the event L Services is prepared to facilitate two identity visits each year supervised at their service;
(b)such visits to occur for one hour in November and May of each year or as can be accommodated by the Service;
(c)provided that attendance at such visits is subject to the wishes of the children;
(d)the father be responsible for any costs associated with such visits;
(e)each parent to make application to the Service within 7 days of the Orders being made and to follow all directions and requirements of the Service for such time to take place;
(f)the mother to provide L Services with a copy of these Orders with her application for service; and
(g)in the event the time can take place the first visit not to occur before November 2022.
(2)The father be permitted to communicate with the children by letter, cards or gift on one occasion in the first week of each month and in addition on each of the children's birthdays, in the week before Christmas and in the week before Easter provided:
(a)the mother shall provide the father in writing, within 7 days of these Orders, an email address to which to send correspondence and an address or P.O. Box address to which to send gifts;
(b)the father shall provide the mother in writing, within 7 days of the date of these Orders, an email address and an address or P.O. Box address to which the children can send the father cards, letters or gifts, if they wish to do so and the mother shall facilitate such correspondence; and
(c)the mother shall review any cards, letters or gifts sent by the father to the children to ensure such are appropriate and if she considers an item is not appropriate she shall advise the father in writing.
THE MOTHER’S CASE
The mother says that the presumption of equal shared parental responsibility is rebutted due to family violence of a physical, emotional, and verbal type perpetrated by the father on her and the children.
The mother argues that the children are unlikely to benefit from spending time with the father given their exposure to his violent acts and propensity for such violence and resultant trauma on the children.
The mother says that expert psychiatric evidence indicates limited, if any, awareness, acknowledgement or improvement in the father's behaviour despite him having completed courses and undergone psychological therapy where he still presents as a high risk to the children.
The mother says that the children have expressed views and preferences contrary to spending time with the father. She says that they do so independently and without influence from her.
The mother says that the children have a poor relationship with their father grounded on their poor experiences of spending time with him.
The mother says that high conflict and the potential for such conflict into the future remains in her own relationship with the father due to his history of perpetrating family violence on her.
Further, the mother says that the father's capacity to care for the children and establish and maintain relationships with them is compromised by his propensity for violence being a potential risk to the children's physical and emotional welfare.
The mother argues that options such as supervised time have failed due to the father's attitude towards the children and to the Contact Centre which has suspended the father's time with the children on two separate occasions.
The mother postulates that her own parenting of the children is compromised in any ongoing direct contact between the children and their father in that they return from him traumatised where he cannot refrain from exposing them to emotional violence such as inappropriate questioning of them in respect of the mother and other issues.
According to the mother the situation is compounded by X having being diagnosed with high functioning autism.
THE FATHER’S CASE
The father says that he acknowledges past instances of inappropriate behaviour towards the mother and the children but not so far as to concede all of the allegations made by the mother. He says that he has undergone psychological therapy and completed courses so as to both appease the mother's concerns and to address his own issues where in court he himself suggested that he may suffer from Asperger’s Syndrome or similar.
The suggestion from the father's argument is that the mother has an alternative agenda to pursue a family unit with her new partner and the children and to exclude the father from the children's lives accordingly.
The father says that the children have previously stated a wish to have an ongoing relationship with him but that the mother has influenced the children to the contrary. The father's affidavit material and his evidence in court suggests that the mother herself suffers from undiagnosed or untreated mental health issues which influence her behaviour and her conduct contrary to his relationship with the children. The father's suggests that the mother suffers from bipolar disorder. His contention here extends to other members of the maternal family in respect of mental health issues and discouraging his children in their relationship with him.
The father says that he has an established, close and loving relationships with the children albeit frustrated by the mother refusing time–with for the children and him and the Contact Centre unreasonably suspending visits between he and the children.
The father says that he acknowledges and regrets certain of his behaviours including quizzing the children about previous failures to attend the Contact Centre (see [75] of the father's trial affidavit). He says he takes full responsibility for his actions, that he has apologised, and that such behaviour will not be repeated.
The father does not, however, concede all of the allegations of family violence alleged against him by the mother or and/or the particulars thereof. On a number of occasions in court he expressed his anticipation to have previous findings of guilt set aside.
The father relies on and gleans support from the family consultant, Mr C, and his treating psychologist, Dr B, both of whom gave evidence. He says that he has completed Men's Behavioural Change Programs and a Post Separation Parenting Program. He says that he provides evidence to the Court that he is drug-free.
The father acknowledges X's autism diagnosis and, in all the circumstances, concedes that time between he and X should be in accordance with X's wishes but urges orders that oblige the mother to positively encourage and facilitate that relationship.
THE ICL CASE
The ICL argues that the three children have been exposed to erratic, volatile and aggressive behaviour of the father and that each of the children is suffering the consequences and now expressing a preference for no time with the father.
The ICL argues that the children should feel safe, physically and emotionally, in any contact with the father in order to derive benefit from that contact.
The ICL notes the positive aspects of the relationship between the father and the children observed by the family consultant, Mr C, in his report of 13 January 2021 and also the positive comments made by Mr C in respect of the father but where Mr C’s optimism was tempered in the witness box by he being informed of recent events during supervised time and particularly as evidenced in the Contact Centre notes.
In her final submissions, counsel for the ICL urged the Court to place some weight on the demeanour of the father in this trial which she says gives some corroboration of the observations of the medical experts and of his behaviour towards the children during contact visits and, importantly, that the father’s behaviour remains volatile, unpredictable and aggressive.
BACKGROUND
The father is 45 years of age and the mother is 40 years.
The parents commenced a relationship in 1999. They married in 2010 and finally separated in February 2015.
In 2012 the father was charged and convicted of assault on members of the mother's family and received a sentence of imprisonment.
In early 2015 the mother was admitted to H Hospital and later to J Hospital suffering from mental health issues.
On 28 February 2018 final parenting orders were made in respect of X, Y and Z in the Federal Circuit Court at D City providing inter alia for the children to live primarily with the mother and to spend time with the father.
In May 2018 the children's primary school contacted their legal department and notified the father in writing of alleged unacceptable behaviour at the school and advising him to desist in engaging with staff without an appointment.
In 2018 the father completed a Men’s Behavioural Change Program.
In September 2018 the mother received communication from the Z’s kindergarten about bruises and disclosures by Z of the father having locked the children out of the house whilst he sleeps.
On 3 February 2019 a family violence incident took place at the mother's home whereupon the father was charged and convicted in November 2019.
On 4 February 2019 the father attended the Z's first day at school resulting in the school principal asking the father to leave the school premises.
On 8 February 2019 a Police Family Violence Order (IVO) was granted in favour of the mother and children with the father as respondent. The orders were made final on 30 July 2019 with the father consenting to the orders but without admissions.
On 12 February 2019 the mother alleged a breach of IVO following which the father was charged and convicted in November 2019.
On 26 February 2019 the mother deposes that the school chaplain advised of disclosures by Y that the father threatened to hit her with a bike inner tube.
On 27 February 2019 the mother deposes that the father breached the IVO by attendance at the children school. He was removed by police and charged with a breach.
In February 2020 the father completed a Post Separation Co-Operative Parenting Program.
On 2 May 2020 the child X attended for supervised contact with the father at L Services (‘L Services’). X has not engaged in further visits with father.
On 2 May 2020 the mother suspended the children's time with the father due to she asserting that the father was interrogating the older two children.
On 14 May 2020 the L Services suspended their provision of service for supervised contact.
On 30 June 2020 an order was made in these proceedings for a family report and orders that the father be permitted to communicate with the children by letter/card monthly.
On 17 October 2020 the father completed a further Men's Behavioural Change Program.
In October 2020 the mother made an application for extension of the IVO protecting herself and the children.
On 20 November 2020 the Court ordered a psychiatric report and assessment of the father to be completed by Dr E.
In January 2021 the family report of Mr C was released.
In April 2021 the father consented to an extension of the IVO for two years but without admissions.
Between January 2020 and February 2022 the father completed 10 of 11 requested supervised urine drug test screens providing negative results.
On 13 May 2021 the L Services released a further report in respect of visits between the children and the father.
On 19 May 2021 the L Services reinstated low vigilant child context services which were attended by Y and Z.
On 21 December 2021 L Services again suspended service further confirmed on 10 February 2022.
In or about September 2021 Y disclosed to the mother that the father “grilled” her during supervised contact and thereafter she refused to see the father. The child Z also made disclosures of her being interrogated by the father.
THE EVIDENCE
The mother
The mother relied on her comprehensive affidavit of 2 March 2022. She confirmed that she suffers from a mental illness but that her condition has now stabilised without medication where she is properly professionally monitored. She confirmed that she is in a stable same–sex relationship where the children are ordinarily and happy members of that family unit.
The mother gave her evidence in a calm and candid fashion where she was not required to endure cross-examination by or on behalf of the father but where she was cross-examined by counsel for the ICL. I saw her evidence in court, as in her affidavit, to be child focused and insightful towards the children's needs. I detected no ulterior motive or agenda but, rather, that the mother has historically encouraged the relationships between the children and their father including previously encouraging and facilitating a reinstatement of such relationships after they had ceased. My observations were of a mother understanding and empathetic of the distresses of her children following visits with their father but where she now feels somewhat encumbered by that situation.
The mother reports a relatively long 15 year relationship with the father but where she herself was the victim of the father’s propensity for anger manifesting at times in violence and where she undoubtedly carries the emotional scars of the volatility of her relationship with the father including post separation.
Despite limited cross-examination, I find the mother to be an honest and child focused witness but with a personality, perhaps consistent with her diagnosis, of some fragility and vulnerability.
The father
The father represented himself after having disengaged with any lawyer appointed pursuant to s 102NA of the Family Law Act 1975 (Cth). He provided a comprehensive affidavit filed 8 March 2022. The affidavit is informed in respect of the issues in dispute and the presentation of the father’s case. It contains copious annexures and is generally relevant and of some real assistance to the Court and the father's presentation of his case.
During the course of his evidence the father volunteered that he may suffer an undiagnosed condition of Asperger’s Syndrome or similar. Such may explain some of my observations of the father's demeanour in court, his alleged behaviour towards the mother and others, his exchanges and relationship with his children, and his dealings with the L Services.
My observations of the father in court were variously of him being passionate, spontaneous, and impulsive. He was frequently verbose in his responses and questioning of witnesses. There were moments and indications of insight and lucidity but where his focus moved unpredictably between the interests of his children and his relationship with them to a blaming of the mother where a tenet of his case was that the breakdown in his relationship with the children is a result only or mainly of the mother's mental health condition and her “brainwashing” of the children against him. Strangely, at other times he appeared acknowledging and understanding of his own behavioural faults including during times with the children and where he was contrite and remorseful. However, without apparent reason or indication his demeanour and focus would spontaneously change back towards an aggressive blaming of the mother or the L Services. Similarly, and whilst acknowledging his instances of violence towards the mother (evidenced by pleas of guilty) he would then proclaim innocence and a quest to have his conviction set aside. As a result, there was a lack of continuity of focus and theme in the father's evidence but where at all times I gleaned a great love for his children and a profound regret in him and sense of loss by the breakdown of those relationships.
Overall, the father's evidence was subjectively honest but not always objective where he predominantly presented himself as the victim. His understanding of the issues and insight into the children's needs seemed often clouded by these claims of victimisation and the mother’s manipulation of the children.
Family Consultant – Mr C
Mr C’s report is dated 13 January 2021 and importantly predates the cessation of time by the L Services on a second occasion in December 2021 and the events that premised that cessation. Mr C admits that his conclusions and recommendations may have been influenced differently by a consideration of these later events and issues.
Mr C was informed by the mother that she had been subjected to emotional, physical, and psychological violence from the father over a number of years including a physical attack in front of the children and her partner in her home in February 2019. As mentioned above, the father does not necessarily admit the particulars alleged by the mother although he did enter pleas of guilty to two charges in the Magistrates Court in 2019.
The father’s history of alcohol and substance use is noted as is the mother’s diagnosis of bipolar disorder.
Mr C understands the lack of any cooperative parenting relationship or communication between the parents after a long history of conflict.
Mr C interviewed the children. At this stage X was in Year 7 and was not seeing his father. X reported at [31] the father's criticism and questioning of him at the visits to be the impetus for him ceasing attending. X reported the physical punishment and generally a fear of his father. X refused to be interviewed or observed with the father.
Y was then in Year 5 at primary school. She is reported as presenting as “confident and outspoken”. Y was aware of the incident of violence at the family home in 2019 and reported “I hated his guts for a whole year but gave up hating him because I got sad that I wasn't seeing him and didn't know when I would”.
At [39] of the report appears the following:
After the 2018 Court Orders, she saw her Dad every fortnight for four days. She didn't like him “smacking us in the back of the head just because we were having fun”. [Y] spoke of an incident when her father was mad at her when she saw her mother and [V] at Coles at a time she was with her father. After she said she missed them, her father threatened to hit her with a tube from a bike tyre. [Y] said he would hit her harder if she told anyone. Her father told her that he is mean to his children because his parents were mean to him.
At this stage, however, Y reported that she would see her father again but would prefer to “start slowly and see how it goes”.
Z was almost eight years of age when interviewed and in Year 2 at primary school. She reported that it was good seeing her father at the L Services and understood that the time had stopped due to him “making [Y] and [X] cry”. She recalled the father locking her out of the house but that she was clear that she still wanted to see him and began crying when recalling that she had not seen him for the a long time. Z reported that she likes the letters that the father sent her.
At [25] Mr C reports the father regretting his behaviour at the L Services which led to his time with the children stopping. He acknowledged that Y became upset because he was questioning her about X's reluctance to see him. He acknowledged the inappropriate conversations and behaviour with the children leading to the L Services ceasing their service.
All three children were observed with the mother to be comfortable in her care with Mr C noting at [46]:
… They have a good relationship with their mother and look out for her well – being after what they have seen her go through with their father”. …
Y and Z agreed to be interviewed with the father. They both greeted him warmly and appeared comfortable in his company.
The evaluation by Mr C at [50] – [56] is important for a number of reasons. Firstly, it gives a temporal indication of the children's views and preference at that time where X was refusing to spend time with the father, but the where the girls were still then keen to see him and comfortable in his care.
Secondly, the report shows the father acknowledging his failings including a propensity to interview or interrogate the children during visits in circumstances where the evidence suggests repetitions of that behaviour and where Y and Z were then refusing to see him.
Mr C acknowledged these temporal and contextual considerations including the reintroduction of time for the children with the father with alleged repetition of his previous behaviour and resulting in all three children refusing to spend time with him.
At [50] Mr C reports:
[The father] admitted that he was a terrible partner with [the mother] and that he regrets what he has done to her in the past. He is aware that he has problems with his moods and they can lead to violent outbursts. Consequently he is seeking help from a range of services and appeared to genuinely want to address his short-comings.
Despite these sympathetic observations, I observed the father in court to be still keen to blame the mother by reason of her mental health, her manipulation of the children, or her dishonesty in respect of the later breakdown of his relationship with the children and the action of the L Services in stopping their service. For example, he repeatedly volunteered to the Court that he was seeking to overturn his convictions for violent offences towards the mother. He accused her of “brainwashing” the children. He was vicariously critical of her partner. He showed a lack of insight in making statements such as “… I didn't hit the children. What's wrong with asking them why they didn't come to the last contact visit…”.
At [52] Mr C notes Y and Z having a strong affection for their father and wanting him to be a part of their lives and generally being positive towards their father in circumstances where they understood and recognised the “risks in recommencing time with him”. In his evidence in court, Mr C agreed that subsequent events may have influenced the children to the contrary in their preferences and wishes.
At [53] Mr C noted “… They are not afraid of him if they can see him for short periods of time to assess how he is”. Mr C was informed that later evidence suggests that Y, in particular, and perhaps Z, both now show some fear and certainly reluctance in resuming direct time with the father.
Interestingly, and also at [53] Mr C opines that the time for the children with the father, as he recommends, might not necessarily need to take place at a Contact Centre. In this respect he notes relevantly “the presence of a supervisor at the Contact Centre didn't stop [the father] from grilling X and Y while under observation”. I comment only that this behaviour appears to have been repeated and was a catalyst, at least in part, for both the L Services withdrawing their services and for Y and Z to refuse contact.
Also almost prophetically at [55] Mr C opines:
I believe [the father] is aware that he is likely to lose all contact with the children if he is abusive toward them and/or their mother again. He is an emotional person who places a high value on being a father, as it helps him affirm his identity as a significant person to others. He has attended a number of courses and received counselling for a long time. However his growth so far has been minimal and needs to improve.
Mr C makes the following recommendations at [57] and following:
[57]It is recommended that [the father] commences time with [Y] and [Z] according to what is outlined in the previous paragraph.
[58]It is recommended that he commence spending time with the girls for two hours a fortnight on three occasions and that all his time is unsupervised.
[59]Following the two hour visits, his time should be extended to half a day a fortnight for three visits before moving to a whole day a fortnight.
Mr C gave evidence and was cross-examined. His opinion was that the children had not been coached when he saw them and indeed this is evidenced by the positive attitudes expressed by Y and Z towards their father and spending time with him. Mr C agreed that this was indicative and corroborative of the mother’s evidence that she had previously fostered and encouraged the children's relationship with the father contrary to the father's position throughout the trial that the mother had “brainwashed” the children against him.
Mr C advised that he was now aware that time for the children with the father had resumed in April 2021 and occurred for 16 occasions until 18 December 2021 (the girls only) when it was again ceased by the L Services. He agreed that the behaviour of the father noted in the L Services notes of the latter period of time constituted emotional abuse.
Specifically, during his cross-examination by the father, Mr C stated:
What disappointed me in reading the 2021 Contact Centre notes was that you were actively asking [Y] all those questions.
Mr C remained cautiously optimistic in respect of the father but was visibly, and admittedly, disturbed by the lack of progress for the father and the repetition of his behaviours following the report of January 2021.
Dr E
Dr E is a forensic psychologist who has specialised in psycho–legal assessment for over 18 years. She completed a Psychological Evaluation of the father. The date of assessment was 5 November 2020. She was apprised of material filed with the Court and also had the benefit of reading an affidavit of Ms F who is the manager of the L Services.
Dr E reports the father presenting as intense in his emotional expression being an observation that I share from his presentation in court. She describes him as engaging in “black and white thinking rather than effortful positive impression management”.
At [19] – [20] Dr E reports:
[19][The father] acknowledged having difficulties managing the emotional and behavioural needs of all three children simultaneously. He stated that he often put the children in time–out in their bedrooms, but claimed that it was only for the same number of minutes as their age. [The father] denied that he ever used physical punishment against the children, but threatened it on multiple occasions, acknowledging that his children would have been scared. He stated that he had only locked a child outside on one occasion, which he described as inadvertent rather than intentional.
[20][The father] reported that he now understood that there were more appropriate ways to communicate with his children, such as thorough talking. He stated that because of the children's ages, they would be more self–reliant and patient, explaining that they would now know the difference between right and wrong and would also be able to cook meals, giving him more time to sit down with his children. [The father’s] perception of child development did not appear normative (emphasis added).
Dr E’s assessment had the benefit of a psychological report prepared by Mr G (provided as an annexure to the father’s affidavit material) opining that the father did not qualify for a mood disorder diagnosis but that his behaviour was more consistent with an Autism Spectrum Disorder (Asperger’s) with impulsive features. I note that the father himself volunteered in court that he considered he might suffer from Asperger’s syndrome. Dr E did not consider, however, that such a diagnosis was available but stated:
… He did not present with severe and sustained impairment in social interaction, or the development of restricted, repetitive patterns of behaviour, interests and activities that have caused clinically significant impairment in social, occupational, or other important areas of functioning. His difficulties in emotional and social functioning appeared more related to the presence of rigid and maladaptive personality traits.
At [35] Dr E’s reports of the father as follows:
[The father] reported that he either got along with people or he did not. He stated that he was opinionated, and would express these ideas, terminating relationships with people he perceived as making the wrong decisions, such as taking drugs, or yelling at their kids. …
Dr E completed a Psychometric Evaluation of the father and concluded:
[37][The father] profile on the PDS (IM Low, SDE Low) is usually found in individuals who are aware of their strengths and weaknesses and whose responses are not influenced by what others may think of them. Individuals with this profile tend to be blunt and direct in style, and their responses to inventories are likely to be honest and valid.
Dr E completed a Personality Assessment Inventory (PAI). She did not find the father to have engaged in positive or negative impression management. At [40] she concludes:
While [the father’s] profile did not identify any marked elevations that could be considered to indicate the presence of clinical psychopathology, he presented with a number of elevations across a variety of clinical scales suggesting a combination of personality difficulties, with a tendency towards antisocial behaviours, identity problems, a sense of persecution, some tendency towards overconfidence, as well as affective symptoms of anxiety. Additionally, there is a marked elevation for alcohol which suggests the potential for past alcohol use. His profile raises tendency towards impulsively more generally but also potentially in relationships. There may also be the tendency for the individual to have difficulties in the interpersonal domain, with the potential for being egocentric and potentially defensive.
Significantly and in respect of her brief assessment, Dr E concludes at [42]:
In this case parental needs outweigh parental strengths significantly and the overall parental risk of abuse or neglect in Ms (sic) [the father’s] care was assessed as being in the High range. There are multiple static needs factors which represent risk, including personality vulnerabilities, parenting skills, and serious domestic discord. There were few mediating strengths which would reduce the effect of the issues in question. The issue highlights the need for [the father] to obtain assistance to improve his interpersonal skills.
Dr E recognises the father as experiencing intense episodes of anger, depression and anxiety and having difficulty controlling his impulses, particularly related to aggression, and possibly substance use. She suggests the father having a limited capacity to integrate both positive and negative qualities of others in the sense of being “black and white”. She identifies the father experiencing feelings of “persecution and identity problems”.
At [47] of her conclusions Dr E opines:
Parental risk evaluation identified [the father’s] parental risk to be high, with concerns regarding exposing his children to verbal, physical, emotional and substance-abuse. He lacked the capacity to moderate his emotions or behaviours during his interactions with his children, which was perpetrated by a poor understanding of child development, in particular [X's] neurodevelopmental difficulties. Ongoing monitoring of [the father’s] alcohol and drug use is recommended. The safety of the children being cared for by [the father] without supervision should be considered (emphasis added).
Dr E noted that the father had completed Men's Behavioural Change Programs and individual counselling but thought there to be insufficient reflection from the father to suggest that his attitudes and behaviours had changed sufficiently to allow unsupervised contact with his children. She recommended individual therapy with a clinical psychologist with experience in “borderline and antisocial personality presentations”. She recommended that the therapy be intense on a weekly or fortnightly basis over a 24 month period. She recommended that further contact with the father and the children should occur with professional support.
Dr B
Dr B is a clinical psychologist. She provided a report on the father under affidavit affirmed in May 2021. The father was referred to her for psychological therapy by his general practitioner. She reports the father “is always punctual…, pleasant and cooperative”. She observed “nil evidence of any psychomotor agitation or retardation”. She observed his mood as “stressed” and his affect as “labile, tearful, guarded, expansive and expressing full range and congruent with his thought content.” She understood the father’s thoughts as “clear, logical and coherent, with no formal thought disorder evident”. She described him as having fair insight with his judgement being “intact”. She observed his thought content as “focused on distress at not having contact with his children, stress (sic) and feeling worn out by the protracted court process” including a frustration with systems and a love for his children.
Dr B was of the view that the father presented with “no delusional thought processes and no hallucinatory phenomena”.
Dr B noted, however, that the father “… certainly has shown evidence of inflexible thinking, being very black and white in his comprehension of ideas and processes. His communication can be brash, and he does miss some social cues … He can become fixated on ideas and beliefs and difficult to shift in those beliefs”.
Dr B did not find the father to meet the criteria for an Autism Spectrum Disorder diagnosis.
Dr B opined at page 4 of her report as follows:
[The father] would also be considered to be experiencing an Adjustment Disorder with Mixed Anxiety and Depressed Mood (original emphasis). This diagnosis is considered to relate entirely to the stress associated with the Family Court proceedings and feeling he has such limited control over his life. The recurrent nature of the court intervention, coupled with a long period of time until recently where [the father] was unable to have face to face contact with his children, had resulted in increased anxiety and stressed mood.
It has been noted that [the father] has shown poor ability to manage his emotions and stress, particularly in relationship to his interpersonal relationship with [the mother]. He reported there was significant conflict in the relationship, with this mostly being verbal. [The father] acknowledged his struggle to cope with his ex-wife's mental ill health, reporting she was diagnosed with a bipolar disorder. [The father] has previously shown great difficulties regulating any negative mood or emotional distress. This lack of regulation was expressed as verbal outbursts, and his black and white thinking inflexibility would have appeared to contribute to him being unable to engage in calm and rational discussion.
Dr B recommended appropriate problem-solving therapy and “defining appropriate boundaries of how [the father] can communicate with the children…”.
For her report, Dr B was armed with Dr E’s report. She agreed that the father “has shown highly dysregulated emotional outbursts, significant anger towards [the mother] and her partner, and that his mood has fluctuated considerably in response to the ongoing constant environmental stresses of a volatile relationship, poor coping with his ex–partners mental ill-health, consequent separation and lack of access to his children”.
Dr B does not find the father to meet the criteria for a diagnosis of a Borderline Personality Disorder (DSM-5).
Significantly, Dr B opines at page 6:
[The father] has engaged with the parenting support service at [K Services] and is agreeable to their ongoing support. He also reported he was completing a parenting skills program. If the supervised contact centre visits have gone well, then [the father] should be given the opportunity to see the children in a far less clinical and artificially stressful environment, with the ability to access the extra support… The writer does not consider there has been any evidence within the timeframe of current therapeutic engagement that would suggest [the father] poses any physical, substance use or verbal risks to the children. … (Emphasis added)
I note that Dr B’s report was prepared prior to the most recent reinstatement and subsequent cessation of the children's time with their father
Dr B was not required for cross-examination.
Mr G
The father represented himself and made repeated reference to material from his previous psychologist, Mr G. The father urged me to, and I have, read a document dated 16 February 2020 from Mr G. He says that the father was referred to him by a general practitioner in September 2018 to help with anxiety and depression related to marital separation.
The father reported to Mr G symptoms of anxiety, depression and anger. He thought he may have been previously diagnosed with Asperger’s syndrome.
Mr G describes the father as being “highly intense”, but with an “overwhelming need to care for his children in a loving and protective way”. Significantly, Mr G identifies the father as showing insight into his own behaviour yet maintaining a state of anxiety. He described the father as “invasive, closed and agitated to the extent that he is barely able to finish the sentence”.
Mr G reports the father attributing blame for his own circumstances and insecurities on the mother.
Mr G provides an opinion as follows:
[The father] appears to have two almost contradictory aspects to his personality. When he is not anxious and agitated, he presents as personable, insightful, caring and balanced in his insights to his own behaviour and that of his estranged wife. He takes full responsibility for his own behaviour and is often quite disapproving of his own actions and demands better of himself. However when he is agitated, he speaks quickly, seldom finishes a complete sentence, is often distant, and presents a fragmented world view. He is difficult to follow tends to put distance between himself and others. He has a tendency to be impulsive but at the same time is aware that this can be a problem for him. …
In this sense, and despite the father urging me to read this report, I find Mr G's opinions to show strong agreement with those of Dr E and the successor to Mr G as a therapist for the father, Dr B.
Ms F
Ms F provided an affidavit filed 21 February 2022. She gave evidence for the ICL. She is the manager of the L Services. The L Services notes are annexed to her affidavit.
Those notes are relevant and significant to the primary issues before this Court and provide summaries and observations of the children's time with their father over some lengthy period. For example, a note of 7 December 2019 shows all three children attending and greeting their father affectionately. The indications are of a comfortable and enjoyable visit. Nothing improper is observed in the father's behaviour. The following visits suggest similar observations. However, by early 2020 the case notes show some stress and distress developing in the children. The mother reported that the children were returning to her “visibly upset” and the L Services was noting “inappropriate conversations” (13 February 2020).
On 2 May 2020 the father was observed to question X as to his failure to attend previous visits, with generally inappropriate comments. Around this time both X and Y were observed to be leaving the L Services “distressed and crying at the conclusion of the 30 minute High vigilant supervised contact with their father”. Contact with the father was resumed for Y and Z in April 2021. The children were initially observed to be keen and comfortable in their relationship with their father. Initially, the father refrained from any inappropriate conversations. Contact visits continued with apparent success and moved to “low vigilant supervised contact”. The report suggests inappropriate conversations again occurring towards the end of 2021 and by such time Y was refusing to attend. A review was conducted by the L Services resulting in a suspension of time and confirmed by subsequent review of February 2022.
The tenor of the L Services notes suggests periods of enjoyable and appropriate interaction between the father and the children but later tending towards the father questioning the children inappropriately and a blurring of boundaries by him in respect of their relationship.
THE RELEVANT LAW
The focus in parenting proceedings such as these is on the best interests of the children which is to be my paramount consideration in determining their living and parenting arrangements pursuant to s 60CA of the Family Law Act 1975 (Cth)(‘Act'). In determining the best interests of X, Y and Z I am to reference the parties’ proposals and the probative evidence to the numerous and mandatory factors set out in s 60CC(2) and (3) of the Act against a background of the objects and principles of the legislation set out in s 60B which provides as follows:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In a broad context the balancing process for the Court here is on the one hand endeavouring to make orders which benefit children in having meaningful relationships with both their parents in circumstances where the children's relationship with their father is virtually non-existent at the moment and, on the other hand, making orders where necessary which protect children from family violence or abuse whether that be of a physical, emotional or moral type. Other factors such as the children's own views and preferences together with the capacity of each of the parents to attend the children's physical, intellectual and emotional needs are also relevant.
Consequently, in parenting matters where the best interests of the children is the focus then neither parent carries an onus of proof in the general sense although where one or other makes assertions of fact or allegations then that party does have an onus to prove that fact on the balance of probabilities pursuant to s 140 of the Evidence Act 1995 (Cth) which provides as follows:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Section 61DA of the Act provides a presumption that it be in children's best interests for their parents to exercise equal shared parental responsibility for them. Section 61B of the Act defines this “responsibility” as relating to the “… duties, powers, responsibilities, and authority which, by law, parents have in relation to children”. In a practical sense, it normally refers to the decision making process for long–term important decisions for children as opposed to the more mundane day–to–day decisions which parents habitually make for children. Matters of education, religious affiliation, and medical procedure are often given as examples of the obligations of “parental responsibility'”. It is a consideration and common requirement for such an order that parents have a demonstrable ability to communicate and co-parent in the practical discharge of this obligation. In the matter before me the mother asks for an order for sole parental responsibility to be vested in her. The father, after confirming in his evidence that he thinks the parents are capable of co-parenting, asked for an order for equal shared parental responsibility.
The presumption at 61DA does not apply if the Court is satisfied that there has been family violence or abuse of a child within the broad definitions of those terms in the Act. The mother here, of course, argues a culture of family violence perpetrated on her and the children and of a physical, emotional, and collusive type by the father. Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the Court that it would not be in the best interests of the children for their parents to exercise this responsibility.
There is a significance in the presumption of equal shared parental responsibility applying or such orders made within the discretion of the Court in that the Court is then mandated to enter into a pathway of the considerations in respect of the children's best interests and ultimately their living and parenting arrangements where, firstly, the Court is to consider whether it is both in the children's best interests and reasonably practicable for the children to live in an equal time arrangement between the parents. Such is the regime ultimately proposed by the father. If the answer to either of those questions however is in the negative then the Court turns to consider whether it is both in the children's best interests and reasonably practicable for them to live in an arrangement of “substantial and significant time” between their parents. Substantial and significant time is defined in s 65DAA(3) of the Act as follows:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The mother here argues for orders for no time for the children with the father and hence not sitting comfortably with either of the definitions above. Consequently, where the ambit for the orders sought by these parents is broad with the father ultimately seeking equal time and the mother asking for no time for the children with the father, it is important to note that the Court is not constrained to a simple choice between the options presented by the parties but rather its determination is based squarely on the best interests of those children.
The crux of the mother's argument here is that the father presents as a risk to the children in having any relationship with him even if supervised. The task for the Court here is a complex one where the notion of risk is a predictive and prospective one although also one which must be based to a degree on the Court making findings of historical fact and subject to clarification by a superior court, there is current judicial debate in respect of the notions of “probability” in respect of a finding of fact and “possibility” in the prospective determination of risk and whether s 140 of the Evidence Act applies to the latter.
There is nevertheless a broader perspective for the Court and as noted in M v M (1988) FLC 91–979 where the High Court noted:
Viewed in this setting, the resolution of an allegation of… abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted both by supposed need to arrive at a definitive conclusion on the allegation of… abuse. The Family Court’s wide -ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the cases as if it were no more than a contest between the parties to be decided solely by reference to the acceptance or rejection of the allegation of… abuse on the balance of probabilities.
In considering an allegation of… abuse, the Court should not make a positive finding that an allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw[1]… it does not follow that if an allegation of … abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that … abuse has taken place. …
In resolving the wider issue the Court must determine whether on the evidence there is a risk of … abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of … abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. …
[1] [1938] HCA 34.
The notion of the risk being “unacceptable” is of real significance to the consideration here where it may be that tools are available to a court to turn an “unacceptable risk” into an “acceptable risk”.[2] Supervision is the most obvious of such tools available to courts to mitigate the risk to children and therefore perhaps enable a continuation or establishment of meaningful relationships.
[2] PST & CPR [2006] FMCAfam 36, at [71].
Where the task of these courts goes further than that of juries in the criminal jurisdiction making findings of “guilty” or “not guilty” but where the overall consideration is the best interests of the children then it is not simply a process of moving by “default finding”, where a court is unable to make a positive finding of abuse, to a finding of “unacceptable risk”. Rather, the consideration as to unacceptable risk must be an independent one based on the weighing of evidence. As Fogarty J noted in a dissenting judgement in N & S and the Separate Representative:[3]
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content of the notion of “unacceptable risk”. Though the purpose behind the notion is to assist the Court in determining what is in the child's best interests, the importance of asking the question separately lies in its specific guidance to Courts faced with the difficulties which cases of … abuse raise. There is a danger that it will be treated just and as an expression which must be ritually used in judgments which involve questions of … abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of … abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts have to make some effort to quantify the relevant risk. In S and S, supra, Thomas J addressed the difficulty involved here. At 670 his Honour said:
Qualifying words such as “acceptable”, “real”, “serious” or “appreciable” are merely methods of expressing the fact that the risk is a foundation in the evidence which is incompatible with the welfare of the child.
[3] (1996) FLC 92-655 at 82,713.
As the Full Court in Napier v Hepburn[4] observed:
[84]There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
[4] (2006) FLC 93-303.
Consequently, the consideration of risk is an evidence–based predictive and prospective exercise within the wider issue of the children's best interests and including consideration of what might mitigate the risks.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit of the children of having a meaningful relationship with both of the children's parents;
All of the evidence is of a current close, loving and supportive relationship between the mother and the children. The relationship between the father and the children is fractured and with no direct contact for some considerable period.
The crux of the father's case is to enable him to re-establish a previously good relationship with the children. He says that the mother has manipulated and “brainwashed” the children against him although at times he concedes his own contribution to these difficulties albeit then perhaps resiling from his contrition.
The father asks for time to be reinstated and then graduated towards an equal time arrangement for the children between the parents.
Whilst this consideration is a ''primary” one, it is not of itself determinative of the children's best interests as noted by the Full Court in Champness & Hansen[5] where the Court noted in response to a submission by counsel for the father:
[103]The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. …(original emphasis)
[5] [2009] FamCA 96.
The Full Court in Sigley & Evor[6] citing Brown J in Mazorski & Albright[7] found the concept of a meaningful relationship to be one which is “important, significant, and valuable to the child” and must be defined within the circumstances and factual platform of each case.[8]
[6] (2011) 44 Fam LR 439 at [132].
[7] (2007) 37 FLR 518.
[8] Godfrey & Sanders (2007) 208 FLR 287 at [36].
The consideration of a meaningful relationship at s 60CC(2)(a) is a qualitative one rather than simply quantitative in dividing up the children's time between the parents.[9] That is, it is the benefit to the children and hence the quality of the particular relationship which is the focus of the consideration rather than simply allocating time between the parties. Further, the consideration by its very nature is a prospective or predictive one into the future but obviously one based on a consideration and findings of past and current facts.[10]
Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
[9] Mazorski v Albright (supra).
[10] McCall & Clark (2009) FLC 93-405
Unsurprisingly this is the crux of the mother's case, as is common, there is a balancing task for the Court between this consideration and that at s 60CC(2)(a) in respect of meaningful relationships. Significantly, Parliament has decreed that the Court “should give greater weight” to the protective considerations over those at subsection (2)(a).
The mother alleges current and historical risk to the children and herself from the father's propensity for violence of physical, emotional, and coercive types.
She says that the Magistrates Court of Victoria has made interim and final intervention orders and subsequent orders under the Family Law Act suspending the children's time with the father after final orders of 28 February 2018. The mother asserts convictions of the father on criminal charges including on his own pleas of guilty.[11] The violence alleged was perpetrated against the mother and the children and at times in public.[12]
[11] The mother's affidavit 2 March 2022 at [21] – [54].
[12] Ibid at [51].
The mother alleges emotional, verbal and coercive violence by the father to the children at the L Services. She references the effect on the children. For example, at [63] and following of her affidavit appears the following:
[63]On Saturday, 2 May 2020 [L Services] resumed their services with the children and had arranged for each of them to spend 30 minutes with the father individually.
[64]I encouraged [X] to attend and he reluctantly agreed. The children waited at their maternal grandparent’s home as I delivered and returned each child from the venue.
[65]On picking up [X] after his visit, I found him distraught and crying because of what he said was the way the father had behaved at his visit. [X] told me and I do verily believe that the father was pressurising him with constant questions, which made him feel extremely uncomfortable and scared. I felt terrible for [X] that he had been emotionally abused by the father. I took [X] back to his grandparent’s and then took [Y] back for her visit.
[66][Y] also came out of her half hour visit traumatised, crying and in a similar emotional state to [X]. She was crying hysterically and clinging to me when we got into the car. [Y] said words to the effect that “Dad blamed me for the whole situation in Court”, and that the father had said she “was putting things into [X], [V's] and my head about him”. [Y] could not stop crying. After eventually calming her down she told me words to the effect that “Dad would not stop questioning me and blaming me, making me feel bad”. She was very upset because she had spent a week making a special card for him. I believe that Y felt completely rejected by him. [Y] also told me words to the effect that she didn't know what to do in the visit and that she felt scared. I had yet one more child to deliver that day as the visits had not been stopped.
The notes from the L Services tendered in these proceedings corroborate the mother's evidence on this occasion and indeed on other occasions in respect of the father's behaviour.
There is a current to IVO protecting the children and the mother and to which the father consented without admission on 26 April 2021 for a period of two further years.
The family consultant Mr C, who is sympathetic in his report from January 2021 as to the reintroduction of time, notes, however, that “the presence of a supervisor at the Contact Centre didn't stop [the father] from grilling [X] and [Y] while under observation”. Mr C had cause to reconsider his recommendations when confronted in court with the evidence of later and repeated culpability by the father in respect of these issues.
Where the Court is required to engage in a form of risk assessment then it must also consider any tools available to ameliorate that risk including the use of supervision. Notably, where the father has previously acted inappropriately during supervised time in his engagement with the children; where the L Services has ceased such time; where the father acknowledges to Mr C his culpability; where the mother agrees for contact to be resumed for the girls; where the father again acts inappropriately in his engagement with the children; and where the L Services again withdraws its services; then the Court must consider whether supervision in this case is an appropriate tool to protect the children when it is apparent that the father has infringed in this way even whilst under supervision.
Of further concern here is the lack of apparent insight of the father in the witness box where he seemed incredulous as to the allegations against him damaging the children where he responded on a number of occasions to the effect “I have not hit the children”. He displayed little or no understanding of the impact on the children of verbal or emotional abuse, although strangely at times expressing his remorse and contrition and therefore acknowledgement. Such was typical of the father's behaviour in court generally from my observations where he would move almost spontaneously from remorse for his own behaviour to blatant blame of the mother.
The father's behaviour has attracted the interest of the Child Protection authorities over a number of years with reports received in respect of the father's verbal, physical and emotional abuse of the children including physically threatening the children, allegations of withholding medical treatment, allegations of locking the children out of the home and engaging in illicit substance use whilst having care of the children.
Whilst I note a specific and particularised assessment was not conducted on the mother, the Court had the benefit of observing the mother give her evidence (albeit not under cross-examination from the father), and then her demeanour whilst sitting in court to hear the father give his evidence and cross-examine other witnesses including experts. I note the mother’s conceded diagnosis of bipolar disorder. I observed a woman of some fragility and vulnerability and certainly of timid disposition relative to the overt confidence and assertiveness of the father. Her affidavit alludes to the impact on her personally of family violence perpetrated by the father including in her home after separation and, relevantly, the impact on her as primary parent of the children and the impact on them of exposure to their father’s verbal, emotional and physical violence. I must, therefore, consider the impact of the mother’s parenting capacity of potential repetition of these events.[13] From the evidence it is the mother's firm belief that the father will continue to exhibit similar behaviour and where she has experienced a 15 year relationship and significant post separation instances of that behaviour.[14]
Section 60CC(3)(a) any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks relevant to the weight it should give to the children's views;
[13] Re: Andrew (1996) 20 Fam LR 538.
[14] Sedgley & Sedgley (1995) FLC 92–623.
X, Y and Z are now 13, 12, and nine years of age respectively. All of them are currently reluctant to spend time with the father. X and Z are firm and informed in their views and preferences. X refuses even to respond to cards or letter sent by him. Notably X suffers an autism diagnosis.
Y did wish to see her father and was perhaps a motivator in her mother agreeing to a reinstatement of time. She now expressly refuses to see the father and alleges that she feels a sense of blame put on her by the father.
Z, at a younger age, is perhaps less informed than her older siblings but gleans support from considering herself a unit with her older brother and sister.
X has now not seen his father for two years. The father concedes that his relationship with X should be based only on, “[X’s] wishes” but seeks an order that the mother encourage X to attend. The ICL has met with the children and reports that X remains adamant in not wishing to see his father. He is now joined in that preference with Y.
There is no indication from the experts, the mother’s evidence, or my observations of the mother in court that she has coached or manipulated the children in their views. Notably, she was relatively recently prepared to reinstate time for Y and Z with the father. On the evidence, it is abundantly clear that the catalyst for the children's negative views of the father is the behaviour of the father himself when engaging with the children more recently at the L Services against the history of them recalling their own exposure to his violent and unpredictable disposition.
Section 60CC(3)(b) the nature of the relationship of the children with:
(i) each of the children's parents; and
(ii) other persons (including any grandparent or other relative of the children)
By reason of being their primary and now sole carer, the mother has an established bond and supportive relationship with each of the children. Their dependency on her is undoubtedly strengthened by the lack of their father in their lives. All of the indications from the evidence are of the mother being a capable, skilful and loving parent. Again, and despite she herself being the victim of physical, emotional, verbal and coercive violence over a number of years, the mother has shown an objective willingness to encourage and facilitate the children's relationship with their father most notably by the reinstatement of supervised time in 2021 and where this must have been contrary to her own personal inclinations.
The children's relationship with their father has more recently been dysfunctional and fractured. They refuse physical contact. They have rejected him emotionally. Nevertheless, there are indicators of a previous positive relationship and most notably in the comments of the children to Mr C. The mother herself concedes that the children did want a relationship with their father.
However, the father’s problematic engagement with the children has clearly weighed heavily on their young shoulders. It is reasonable to conclude that there is no current relationship of any type or any connection between the children and their father. The question for the Court is therefore as to whether there is any benefit for the children in making orders reinstating that relationship and where the basic premise of that consideration would be the father’s willingness and ability to acknowledge his past errors and to refrain from their repetition.
Section 60CC(3)(c) the extent to which each of the children's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about long – term issues in relation to the children; and
(ii) to spend time with the children;
(iii) to communicate with the children; and
Section 60CC(3)(ca) the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
The Child Support Agency have directed that the mother be exempt from the requirement to seek child support from the father due to the extent and gravity of the family violence alleged and in many cases conceded by the father. Consequently, the mother receives no financial assistance from the father for the support of the children.
By reason of the circumstances set out above, the mother has the sole responsibility for the children's care and actual support.
Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
(i) either of their parents or
(ii) any other children, or other person ( including any grandparent or other relative of the children) with whom the children have been living
This is a matter which the father emphasises in his argument for reinstatement of time with the children. It is generally accepted by the experts that children benefit by having both of their parents in their lives during childhood and adolescence and may well suffer their own emotional and social consequences of being deprived of a relationship with one or other of their parents.
In a practical sense, however, the children have now not seen their father for some period of time. The evidence suggests that the catalyst for the cessation of time was the father's own behaviour repeated and not consistently acknowledged by him. It is fair to assume, therefore, that the children have achieved a relative degree of peace in their own lives.
Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a 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;
This is not a relevant consideration are in these proceedings.
Section 60CC(3)(f) the capacity of:
(i) each of the children’s parents; and
(ii) any other person (including grandparent or other relative of the children)
to provide for the needs of the children, including emotional and intellectual needs;
This consideration is a focus of the Courts determination as to the best interests of the children. The mother has a demonstrated capacity to care for the children, physically and emotionally. A question remains, however, as to her coping ability should there be a reinstatement of time for the children with the father and a repetition of his behaviour when engaging with the children. This must be seen within the context of the mother’s own diagnosis of bipolar and of she being a victim of the father's behaviour over a lengthy period of time.
The mother and the ICL argue that the father’s capacity to care for the children emotionally is compromised by a lack of insight into his own failures. He has repeatedly engaged the children in inappropriate conversations even during supervised time. He has a propensity to blame the children themselves or the mother for the difficulties in his relationship with the children. Whilst his intentions in respect of the children are admirable and he has consistently sought to reinstate time and undoubtedly has a strong and profound love for his children, the question remains as to the father's psychological or emotional welfare which involves a rigidity of thought patterns accompanied by restricted and repetitive patterns of behaviour. Put simply, his intentions towards his children, admirable as they are, are not reflected in his empathy of their circumstances.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant;
The children are all in the formative years of their lives. X suffers a diagnosis of Autism albeit high functioning. It is fair to assume that he requires a high degree of certainty and routine in his life where the evidence of his relationship with the father is one of disruption and accusation. It may not be surprising, therefore, that X himself has a preferred to cease direct contact with his father.
Y is soon to enter her teenage and formative years. It is a time when she would ordinarily assimilate influences from her parents as role models. She herself wanted to reinstate a relationship with her father but was disappointed in that reintroduction. She is at a stage of her life where she will be developing strong peer group relationships and needs a different level of support and understanding from her parents.
Z is the youngest of the unit of three children. She herself derives support from her siblings as well as her parents. She is currently less informed in her preferences than are her older brother and sister but has recently experienced their upset during times with their father.
Section 60CC(3)(h) if the children are Aboriginal children or Torres Strait Islander children:
(i) the children’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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration those proceedings.
Section 60CC(3)(i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents;
It is here that the father is culpable on the evidence. He craves a relationship with his children. He undoubtedly has a strong love for them. The irony is that during visits he seems unable to refrain from interrogation of them and blame towards them and their mother resulting, of course, in less than enjoyable experiences for both children and father. The father at times expresses regret and remorse for his behaviour but then repeats it. Similarly, in court he acknowledges the errors of his ways and his contrition only then to lay blame on the mother. It might well be, therefore, that the roots of this conundrum lay in the psychological profile of the father himself.
To the contrary, the mother has shown a child focused and objective insight into the children's needs including their need to have a relationship with their father in circumstances where she herself has been the victim of his violence and her coping mechanisms have been tested to their fullest.
Section 60CC(3)(J) and (k) – any family violence involving the children or a member of the children's family, and whether any family violence order applies;
The history of this family unit has involved the mother of the children taking out various family violence orders and intervention orders to protect them from the father's volatile behaviour. There have been breaches of those orders. The father himself has been charged and convicted of various criminal offences including assault. The mother's case outline succinctly summarises her understanding of family violence in this family as follows:
•The mother has been exposed to extensive family violence throughout the relationship and post separation including physical violence and verbal and financial abuse. The father has been convicted of physical abuse on 2 separate occasions.
•The children have been physically abused, threatened with physical abuse, neglected by being locked out of the father's home on several occasions, verbally abused, denigrated, interrogated, and embarrassed when having spent time with the father either unsupervised or supervised.
•The children have also witnessed the father's physical violence and verbal abuse towards the mother on more than one occasion.
•Despite the father's treatment of her and the children the mother has never denigrated the father to them but has tried to build him up to them by telling them in the past that he wanted to change and to give him another chance. She has also been quick to stop [X] when he has tried to speak ill of the father to his sisters.
•The mother’s positive approach has been mirrored in the attitude of the girls to the father leading up to them forgiving the father before his more recent outburst at the contact centre.
•The mother now feels guilt that she has been encouraging time spent for the children with the father at the contact service in accordance with the Orders, which has led to them being further abused by him, causing them further emotional distress and trauma.
•The mother is of the view now that due to the long–standing history of the matter, the cycle of domestic violence by feeling sorry for the father, accepting his remorse, and taking him back or giving him further chances has not resulted in any meaningful change in the father to date. She is concerned for the children's long term emotional wellbeing and the high risk the father still poses children.
The father variously concedes and retreats from the allegations of violence against him. He has entered pleas of guilty of and was convicted but now in this Court, and in the presence of the mother, argues that he is seeking to have the findings of guilt in the state courts set aside. He variously expresses remorse for his behaviour and claims to have bettered himself whilst, virtually immediately, attributing blame to the mother and disputing the particulars of matters to which he has pleaded guilty.
The mother’s affidavit and the notes from the L Services show a course of consistent and disturbing conduct by the father. He shows rigid thought patterns with spontaneous reaction often being physically violent or threatening. He shows a distinct lack of understanding of the impact on the children of his interrogations of them and his aggressive and violent demeanour.
Section 60CC(3)(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 children;
The father asked for reinstatement of time with the children. He concedes that this should be sympathetic and gradual to them re-establishing a relationship with him. In this sense he seems to understand that he might be the author of previous difficulties. Nevertheless, the mother argues that the father has been given previous chances to show insight and improvement in his behaviour. The result has been further improper engagement of the children and cessation of the services of the L Services. My own observations of the father in the witness box are of a man still inclined to deflect blame for his own failures on others including the mother.
The fear of the mother, and the question for the Court, is whether there can be confidence in the father refraining from such behaviour in the future should time with the children be reinstated. The effect on the children, particularly on the two girls of the more recent reinstatement of time, has been significant, Y is said to suffer social problems at her school. X and Y are clearly distressed by the nature of the breakdown of their relationship with their father as well as its fact. Any further repetition of such behaviour and a reinstatement and ultimate cessation of time for the children will add to the weight already carried by this mother and her ability to cope.
FINDINGS AND CONCLUSIONS
I find that there is, for all practical purposes, no current relationship between any of the three children and their father. Effectively X and Y have rejected him and Z is inclined towards her siblings but without being as informed as they might be.
I find the mother to be a skilful, loving and objective parent. She is, however, burdened by her own mental health problems and of she being a victim over many years of the father's family violence and his propensity toward such violence. The evidence of numerous intervention orders, breaches of intervention orders, and criminal charges/convictions in respect of the father speak heavily of the load carried by this mother.
I am satisfied on the evidence, however, that the mother has remained objective and positive in the main in respect of her children’s relationships with their father and despite her own experiences of him. Significantly, she facilitated a reinstatement of time for the children with their father in 2021 only to see that fall over for the very same reasons that it had previously ceased. On the evidence, therefore, I reject totally the father's assertion that the mother has manipulated or “brainwashed” the children against him.
I find that the objective evidence of the L Services notes are corroborative of the mother’s position that it is the behaviour of the father himself that has solely contributed to the breakdown of his relationships with his three children.
I am satisfied that the children themselves currently prefer to have no direct contact with their father.
I find the mother to be a capable, skilful and child focused parent not limited in any practical sense by her own mental health diagnosis.
On the evidence, I find that the father is of a historical and continuing violent disposition. He has suffered numerous intervention orders against him to protect his children and their mother. He has breached those orders. He has been convicted of criminal assault. Yet in the witness box his tendency remained to deflect the blame to others and primarily the mother.
I generally prefer the evidence of Dr E over that of Dr B although there are certain parallels and concerns in respect of the father emanating from both assessments. My own lay observations of the father in court accord with the professional psychological evaluations of Dr E that the father appears to experience intense episodes of anger, depression and anxiety. He has difficulty controlling his impulses and acts spontaneously and at times aggressively. His thought patterns are rigid and he engages in “black and white thinking”.
I accept Dr E’s conclusion at [47] of her report that the father identifies as a high parental risk with regard with “concerns regarding exposing his children to verbal, physical, emotional and substance abuse” albeit on the evidence perhaps now not in respect of the latter. The evidence suggests that the father lacks insight into the parameters or boundaries in his engagement with the children including a lack of understanding of the impact of on them of his interrogation into what are effectively adult matters and hence showing a poor understanding of the delicate and formative psyches of his children.
I accept that the father has a profound love for his children and a consistent desire to experience positive relationships with them. It is his inability to draw boundaries in those relationships and refrain from inappropriate behaviour that is the issue.
I am not given optimism in any improvement in the father’s behaviour. Whilst at times he expressed some acknowledgement and remorse for his behaviour, he was quick in court to deflect blame from himself towards the mother.
The indications from the evidence, particularly from the mother herself, are that the children are now experiencing a relatively peaceful existence in their lives by being freed from the process of aggressive blaming attributed to them by the father and as evidenced by the L Services notes. I note, however, that there have been periods evidenced by the L Services notes where the father has been able to act appropriately and show all the signs of the loving and altruistic father that he claims to be. It is this contradiction in his demeanour which causes concern to this Court.
Put simply, on a balancing and consideration of all of the evidence, I am of the view that the father continues to present as a risk to the emotional health of these children and perhaps potentially to their physical health. His demeanour remains rigid, volatile and aggressive. I am not satisfied that he fully acknowledges or accepts the errors of his ways. As such, a repetition of his behaviour remains a distinct likelihood. That behaviour is potentially damaging to the children emotionally both in the short and long-term. Further, the father remains blaming of and aggressive towards the mother and indicated most clearly by his evidence under cross-examination in this Court.
Whilst the father might not suffer any particular psychiatric diagnosis, I accept the evidence of Dr E that the father would benefit, personally and in any future relationship with his children by intense psychological therapy with a clinical psychologist “experienced in borderline and adverse antisocial personality presentations”.
Where I identify a risk to the interests of the children in reinstating a relationship for them with their father, I am of a view that this risk remains “unacceptable” where the mitigating tool of supervision is not realistically available or advisable in circumstances where the use of the L Services has previously been available, removed, again available, and finally further removed. This fact alone where the father seems oblivious to his behaviour being observed by supervisors is in itself a matter of concern in respect of his psychological make-up and his inability to restrain his own emotions.
Generally, where the children have suffered negative emotional experiences during supervised time with their father, a question remains as to whether there would be any benefit for them in returning to the constraints and limitations of a supervised relationship with their father and where the older two children, in particular, appear to continue to wear the scars of their previous experiences.
Taking all of these matters into account, I am of the view that there should be an order that the mother have sole parental responsibility for the children. I am satisfied that the presumption of s 61DA of the Act does not apply by reason of the profound family violence perpetrated on both the mother of the children and variously by physical, emotional, verbal and coercive means. The mother shows herself to be a very capable and child focused parent. She has effectively discharged this role solely now for some time. An order that she keep the father advised as to the children’s educational progress and important medical matters would be appropriate.
It follows from the evidence and my findings that an order that the children continue to live with the mother would be in their best interests.
I cannot find on the evidence that there is any benefit to the children currently in there being an immediate reinstatement of their relationship with their father. I have no confidence that he would understand or utilise a Contact Centre for its intended purposes. The father’s responses and demeanour in the witness box before me show a continued lack of insight into his own previous conduct and failings. He remains aggressive and assertive to his own entitlement and empowerment in respect of his children. He remains ready to deflect blame to the L Services or the mother.
I am unable to find any other tools or constraints/facilities which would allow me to order time for the children with the father that would sufficiently protect them from what I find to be further potential damaging behaviour.
I note that the father himself concedes that any time with X should be in accordance with X's wishes. It may be, of course, with maturity and confidence, X himself comes to a decision whereby he can contemplate, negotiate and experience a relationship with his father on his own terms. If this was to be the case then there would obviously be benefit to both X and the father where the relationship might be on a more equal basis than the previous relationship between the two. I am of the view, similarly, that any relationship for Y with her father should be left on the same terms where she has made an informed decision to stop that relationship. She has previously been desirous of a relationship with her father and I expect retains a basic love and affection for him. She, however, decided that the detriments of that relationship outweigh the benefits. The pity is that the father did not have a similar insight. However, like X, maturity and confidence may cause her to want to reinstate that relationship on her own terms and such should remain available for her.
Z has not reached the same level of mature rational thinking as have her older siblings. The suggestion on the evidence is that she might still desire a relationship with her father for whom she clearly holds some real love. She has, however, experienced the distresses of her siblings during and following the most recent visits at the L Services. The evidence suggests that this in itself has had an impact on her. I am not of the view, therefore, that any order for Z to have direct time with the father, supervised or not, absent her older siblings would be of her benefit and particularly where I retain concerns as to a likely repetition of the father's behaviour.
Should the children or, or any of them, express a desire to re-establish a relationship with their father then my observations of the mother and those of others give me every confidence that she would remain objective in the children's interests and would facilitate and encourage that relationship.
Consequently, I am of the view that there should be no orders particularising any time for the father with the children but that each such relationship should be left, as the father concedes with X, to take place only in accordance with the wishes of the children with the mother then to facilitate such time.
I will maintain orders permitting the father to communicate with the children by letter, card or gift monthly and on birthdays, Easter and Christmas which should give some frequency to the communications with an order that the mother encourage the children to respond, but without any positive obligation on them to do so.
I will not make orders in respect of the father undertaking therapy as indicated by Dr E. If he were, however, inclined to act on those recommendations and to successfully deal with the psychological issues identified in the reports of the various experts including Dr E, Dr B and the father's previous psychologist, Mr G, and does show a genuine commitment to the children and an insight into his own behaviour then it may be that the mother or the Court might revisit the issue of his relationship with his children.
I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 25 May 2022
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