WILLCOX & WILLCOX
[2017] FCCA 3142
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILLCOX & WILLCOX | [2017] FCCA 3142 |
| Catchwords: FAMILY LAW – Parenting – where father is seeking to have equal shared parental responsibility and spend time with one child of the relationship aged 13½ and no time with the other child aged 11½ – where children at emotional risk with the father due to a history of violence within relationships and inappropriate treatment and involvement of children in adult issues –– where father’s behaviours and attitudes have caused a rift in children’s sibling relationship – where father is derogatory towards the mother – Held that it is not in children’s best interest to spend time or communicate with father as the father poses an unacceptable risk to children with mother to have sole parental responsibility for children. |
| Legislation: Family Law Act 1975 ss.4AB, 60CA, 60CC, 61DA, 64B, 65DAA, pt VII |
| Cases cited: Hardie & Capris [2010] FamCA 1046 |
| Applicant: | MS WILLCOX |
| Respondent: | MR WILLCOX |
| File Number: | BRC 6051 of 2009 |
| Judgment of: | Judge L. Turner |
| Hearing date: | 2 May 2017 |
| Date of Last Submission: | 2 May 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | Simonidis Steel Lawyers |
| The Respondent appeared in person |
| Counsel for the Independent Children’s Lawyer: | Ms Oakley |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
FINAL PARENTING ORDERS
That all previous parenting plans and parenting orders are hereby discharged.
That the children X born (omitted) 2004 and Y born (omitted) 2006 live with the mother.
That the mother have sole parental responsibility for the children.
That the father not spend time with or communicate with the children.
That the father is hereby restrained from attending at or contacting any educational facilities where the children are enrolled or any medical facilities where the children may be receiving treatment.
That the mother be permitted to provide a copy of this order to any educational facility or treating health professional for the children.
That within seven (7) days of the date of these orders the independent children’s lawyer explain to the children individually and then together the nature of the orders and the consequences of the orders.
That the independent children’s lawyer is hereby discharged after fulfilling their obligations in accordance with Order (7).
IT IS NOTED that publication of this judgment under the pseudonym Willcox & Willcox is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 6051 of 2009
| MS WILLCOX |
Applicant
And
| MR WILLCOX |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are the parents of X aged 13½ and Y aged 11½.
Issues
A dispute has arisen as to:-
a)Who should have parental responsibility for the children.
b)What time, if any, should X spend with the father.
Agreed orders
At the final hearing the parties agreed to the following parenting orders on a final basis:-
a)That all previous orders be discharged.
b)That the children live with the mother.
c)That the mother have sole parental responsibility for Y.
Proposals
The mother and the independent children’s lawyer (ICL) are seeking that the court make the following final parenting orders:-
a)That the mother have sole parental responsibility for X.
b)That the children spend no time with or communicate with the father.
c)That the father be restrained from attending at or contacting the school where the children attend.
d)That a copy of the orders be provided to the school and the children’s treating medical professionals.
e)That the ICL explain the final orders both separately and together to the children.
The father is seeking that the court make the following final parenting orders:-
a)That the parties have equal shared parental responsibility for X.
b)That the father spend time with X in accordance with the 2009 orders and that time increase to equal shared care of week about.
Evidence
In considering these issues regard has been had to:-
a)The material as marked on the court file.
b)Notices of Risk.
c)Previous final and interim orders.
d)Family report released by Mr J in 2015.
e)Psychiatric report of the father released by Dr V in 2016.
f)Family reports released by Mr S in 2016 and 2017.
g)Exhibits.
h)Submissions of the parties.
i)Part VII Family Law Act 1975.
j)Relevant authorities.
The mother is legally represented.
The father is self-represented.
The court has the benefit of an independent children’s lawyer (ICL).
On the morning of the first day of the final hearing the father admitted that he had failed to file any affidavits of evidence in chief.
It was agreed between the parties that the matter proceed based on the material already filed together with oral submissions and that cross-examination not occur.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Comment as to the parties
The proceedings have been long and at times complicated but throughout the mother has been cooperative, attentive, reasonable and prepared.
I find the mother to be a genuine litigant who has been child focussed throughout the whole of the proceedings.
The same cannot be said of the father.
The father has chosen when to be involved in the proceedings and has struggled to follow many of the procedural directions and orders made by the court.
During those times the father chose to be part of the process, the father presented as rude, belligerent and self-entitled and spoke only of his needs or wants rather than reflecting on what might be best for the children.
The father conducted himself in a similar manner during the 2016 family report interviews where the father refused to be interviewed on the same day as the mother and forwent his opportunity to be observed with the children due to the conditions he wanted to impose before the observations took place.
The family report writer noted that:-
a)The father “was difficult to interview. He was garrulous, speaking at length and often irrelevantly to direct questions” ([20] 2016 family report).
b)“It was necessary to stop him at times to return him to the point of the question and whilst he was initially cooperative with this, he expressed growing frustration that he could not vent or divert to those issues he felt were of most importance” ([20] 2016 family report).
c)“It was difficult to encapsulate with X any distinct summary of issues, thoughts or views as he is extremely animated and verbose, making it difficult to interpret. He is emotionally charged in the language that he employs” ([23] 2016 family report).
The father failed to file his affidavit of evidence in chief and did not provide an updated affidavit from his partner.
The father did not want to proceed to a proper hearing of the issues.
I find that the father has not been credible in his conduct and does not take notice of court orders or directions.
Before moving on to the issues, comment must be made to the children.
X
In 2017 the family report writer observed X as “well-spoken, respectful and thoughtful” ([24] 2017 family report).
The mother describes X as being “sensitive, very touchy-feely, chatty and quite bright when he puts his mind to it….He tried to do the right thing but he pushes the boundaries a little. Not sure if its age or due to the circumstances” ([53] 2015 family report).
The father describes X as “a kid with a big heart…he grabs things with impatience but enthusiasm….he puts me to shame even though I feel like I am a decent bloke, he is so giving and kind….his cognition is so high that he thinks about others in such a deep way….He is so beautiful, loving and affectionate” ([56] and [57] 2015 family report) and as being “honest to a fault” ([25] 2016 family report).
Y perceives X as being favoured by the father and “that X is just trying to be on dad’s side…..X never stood up for mum, when dad is talking about mum….” ([104] 2016 family report).
The mother explains that “the children are treated differently by their father… ‘he will buy stuff for X and she will get nothing’” ([16] 2016 family report).
The family report writer notes that the father categorises “X positively” stating that “X has ‘heart and emotional sensibility and sensitivity’” and is “expressive and clear” whereas the comments about Y are negative ([24] 2016 family report).
The father stands up for X stating that the child is “‘lambasted’ by his mother when he returns to her” ([31] 2016 family report).
X stands up for the father and tries to “justify” his father’s actions ([16] 2016 family report).
The family report writer concludes that “with X he is providing his father with information consistent with what he feels his father wants or needs to hear” ([131] 2016 family report) and that “there are no examples of conflict between he and his father because X avoids conflict. There is no point in having conflict with ‘the father’ because of the fear of it escalating” ([44] 2017 family report).
Y
The family report writer notes that “Y was outspoken with an especially good vocabulary for her age” ([24] 2017 family report).
The mother describes Y as being “very chatty, bubbly, outgoing and energetic. She loves (hobbies omitted). She’s a goody-two-shoes. She likes to do the right thing….I think when she grows up she will be one of those people that tell the truth and live with the consequences” ([55] 2015 family report).
The father refers to Y “with some sadness” saying “I don’t think Y knows who she is, she fears to step outside of her mother’s shadow. When she let her guard down and doesn’t overthink, she can be a free spirit. When she is relaxed she is great fun, but she is so schedule orientated it scares me….three different Y’s. Quite pensive, tense and guarded; the devil don’t care relaxed Y; the superiority complex. She can be very structured and very inflexible to change” ([58] 2015 family report).
Unlike X, who the father holds in the highest esteem, the father “categorised Y entirely negatively” describing Y as “bland with a lot of anxiety, particularly with her feelings and emotions” and that “Y is more susceptible to her mother’s apparently negative comments about him” ([24] 2016 family report).
The father views Y as a liar as illustrated by the following:-
a)In 2015 at the child inclusive conference the father informed the family consultant that Y had fabricated her allegations about his drinking.
b)In 2016 the father sent a text message to the mother which read “Y tells as stupid lies as you do”.
c)In 2016 the father explained that Y “is not honest, she is far from honest and she wasn’t always like that. I catch her in lies all the time” with the father providing “examples …of Y telling lies which are all connected with what he believes to be Y’s connection with her mother” ([25] 2016 family report).
d)The father further stated that “Y is ‘heading down a path I can see is not a good path’ with her ‘dishonesty and selfishness and elitism’” ([26] 2016 family report).
The father blames the mother for Y’s lying stating that “he expressed his horror and surprise as the ‘length of the lies that she (the mother) has told” ([30] 2016 family report) and that “‘there is a lot of love there, she loves them’ but ‘she is teaching Y it is okay to lie’” ([30] 2016 family report).
The father has shared these views with X telling X that Y has “mental problems and serious issues” (Child Inclusive Memorandum to Court).
X informed the family report writer that Y lies and “just disses dad and she says all these bad things and I tell dad” ([82] 2016 family report).
Y explained that “she feels she get accused for telling lies all the time” by the father and that she “only tells mum the things I think” and that the father finds out as “X tells him” ([98] 2016 family report).
As a consequence of these “lies” the father has become angry with Y but never at X ([99] 2016 family report).
X confirmed that “his father has been angry with Y about” the lies ([82] 2016 family report).
The father explains that X feels the same way that the father feels about Y and that X was “extremely angry with Y and he blames her a lot for what has been going on” and does not want Y there when X is spending time with the father ([27] 2016 family report).
As a consequence of the father’s anger, he has been openly critical of Y.
In addition to the lies, the father and X feel that Y is aligned with the mother.
The family report writer opines that:-
a)“Y…is providing information to her mother as a means of release of the tension and anxiety she feels when she is in the father’s care” ([131] 2016 family report)
b)“Features of her conflict with her father arose from her retained loyalty with her mother” ([43] 2017 family report).
In 2016 the father decided to sever his relationship with Y informing the family report writer that Y is to go “one hundred percent to Ms Willcox, I’ll put that in writing” ([32] 2016 family report).
The father in an email to the mother’s legal representatives in July 2016 wrote “I propose that Ms Willcox is granted 100% care and parental responsibility for Y on a permanent basis, on the condition that no child support or school fees are payable by me given that I have been denied a fair and reasonable opportunity to have a relationship with my daughter”.
Relevant History
I now turn to the relevant history in this matter:-
a)The father is aged 45 and is unemployed.
b)The mother is aged 45 and is employed as a (occupation omitted) in the (employer omitted).
c)In 1988 the parties commenced cohabitation.
d)In 1995 the parties married.
e)In 2004 X was born.
f)In 2006 Y was born.
g)In 2008/2009 the parties separated.
h)In 2009 the parties reached final parenting orders by consent whereby:-
i)The children live with the mother.
ii)The parties have equal shared parental responsibility for the children.
iii)The children spend time with the father on alternate weekends, some weeknights and special events provided the father refrained from consuming alcohol.
i)In 2010 the mother re-partnered with Mr P (Mr P).
j)In 2010 the father re-partnered with Ms L (Ms L).
k)In 2011 the parties divorced.
l)By 2011/2012 the father had stopped spending time with Y and time with X was intermittent.
m)By October 2012 the children were not spending time with the father.
n)For the remainder of 2012 the children had day visits with the father.
o)In or around 2012 the father’s relationship with Ms L ceased.
p)In January 2013 the father spent overnight time with the children.
q)In September 2013 the father spent time with the children but Y left with the mother after the mother had organised a welfare check for the father as X contacted the mother stating that the father was drinking.
r)In 2014 the father re-partnered with Ms K (Ms K) who has three young children.
s)In 2014 the children spent overnight time with the father with Y not wanting to stay due to the father’s alcohol intake.
t)In 2014 the father commenced cohabitation with Ms K (Ms K).
u)After an incident following the Father’s Day 2014 weekend where the father reportedly drove the children to school whilst intoxicated the mother commenced parenting proceedings.
v)In early 2015 the father retained X after not sending the child to school.
w)In October 2015 it was court ordered on an interim basis that all time and communication for the father with the children be suspended.
x)In October 2015 the parties consented to interim orders whereby the children obtain counselling, the children communicate in writing to the father and the father attend children’s sporting events.
y)In November 2015 by way of interim court order, the father’s time with the children recommenced in accordance with the 2009 orders.
z)In May 2016 Y’s time with the father ceased.
aa)In July 2016 the father’s time with X was suspended.
bb)In August 2016 interim court orders were made whereby the children live with the mother, the mother have sole parental responsibility for the children and the father’s time with the children be suspended.
cc)In May 2017 the matter proceeded to a final hearing.
As at the date of the final hearing:-
a)The children are living with the mother at (omitted).
b)The children are attending school at (omitted).
c)The father has not spent time with the children or communicated with the children since 2016.
The law
I will now turn to the law.
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence, when making a parenting order, the court must consider what is in the best interests of the child pursuant to section 60CA, but, as succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48]:-
“‘Best interests’ is not the application of a theoretical construct, but rather the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child of this parenting relationship.”
As discussed by the Full Court in Moose & Moose [2008] FamCAFC 108 at [66], the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interest having regard to:-
“The matters set out in section 60CC(2) and (3) guided in consideration of the provisions by the object set out in section 60B(1) and the principles underpinning it contained in section 60B(2).”
As for the primary considerations, in the leading authority of Mazorski & Albright (2008) 37 Fam LR, Brown J refers to such considerations as the “twin pillars” where:-
a)The first pillar is the importance for a child to have a meaningful relationship with both parents; and
b)The second pillar is the need to protect children from physical and emotional harm.
In deciding what is in the best interests of the individual child, section 61DA and section 65DAA come into play, and, if the child is subject to an equal shared parental responsibility order, then the amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.
The distinct pathway which applies to parenting matters where an equal shared parental responsibility order has been made is the subject of much discussion by the High Court in MRR & GR (2010) 263 ALR 368.
I now turn to the primary and additional considerations in section 60CC Family Law Act 1975.
Primary considerations
Benefit to the children of having a meaningful relationship with both of the children’s parents
What is meant by the term “meaningful” was discussed at length by Brown J in Mazorski with the Full Court in Moose stating at [68] that “Her Honour’s discussions is helpful and her conclusions about s60CC(2)(a) are cogent.”
At [26] Brown J concluded:-
“What these definitions convey is that ‘meaningful’ when used in the context of ‘meaningful relationship’ is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or of ‘consequence’ ….a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.”
Kay J in Godfrey & Sanders (2007) 208 FLR 287 spoke of the legislation promoting a “meaningful relationship, not an optimal relationship.”
The children have a meaningful relationship with the mother.
Since 2016 the children have not had any time or communication with the father.
Despite this interruption in time, however, the evidence supports that X still has a close bond with the father and wants the opportunity for that meaningful relationship to continue.
However, for Y, the evidence supports that any meaningful relationship with the father has been severed and that Y does not have the inclination to rekindle that relationship.
Whether it is in the best interest of the children (and in particular X) for a meaningful relationship to continue is a major factor in determining the future parenting arrangements for the children and, therefore, this primary consideration weighs heavily in this matter.
Need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Abuse
The mother maintains that the father has been inappropriate in his treatment of the children since separation, such as:-
a)In October 2012 the father, when drunk, fell on X when X was attempting to do a “jumping cuddle” which caused X to hit his head on the tiles. X was taken to the doctor and subsequently given the all clear.
b)As a consequence of the October 2012 incident Department of Communities Child Safety (DOCS) became involved and Child Concern Report recorded that “there is information to suggest that the children are currently experiencing emotional harm whilst in the father’s care”.
c)In September 2013 the father verbally abused Y because Y did not want to spend time with the father.
d)In September 2014 (on the Monday after Father’s Day) the children were taken to school by the father whilst the father was intoxicated with Y telling the family report writer that his breath and clothes stunk and Y reporting to the mother that she was scared as the father was driving really fast and she was worried that they would crash. The father and X maintain that Y lied and no such incident occurred.
e)In February 2015 the father failed to take the children to school. Y was returned to the mother but the father refused to return X.
f)In 2016 Ms K informed the family report writer that the father “certainly has found it difficult to hold back with his emotions with the kids and when it comes to the kids” ([63] 2016 family report).
g)In 2016 X reports that the father told the child that “your mum is not letting me take you” ([79] 2016 family report).
h)In 2016 the father yelled at Y in front of her friends and got angry with her when Y did not say hello to him at a (hobby omitted) game (Y said she did not see him) with Y telling the family report writer that “he knows I don’t like going. I’ve told him before heaps of times, I don’t like him yelling” ([95] and [96] 2016 family report).
i)The father then told Y that “she wouldn’t see him the kids or Ms K ever again” and that “he got really really angry” and after she had been crying the father told her that “he was just testing her” ([96] and [97] 2016 family report).
j)In 2016 Y informed the family report writer that “she does not like that he (the father) and Ms K stay in their room a lot and she hears inappropriate things and she gets scared and she has told her mother that she feels unsafe” ([99] 2016 family report).
k)In 2016 X explained that the father would talk to X about letters received from the mother’s solicitors and “give me a brief description of what mum is trying to do” ([89] 2016 family report).
The father acknowledges that the children “are aware of the conflict and they ‘live and breathe it’” ([31] 2016 family report).
The mother informed the family report writer that X’s “just gotten mixed up in this too much” ([53] 2015 family report)
The father explained that X has “tried to take on the role of the negotiator in all this….he’s tried to soften the blow for me and his mum, he is the one who has been affected the most” ([57] 2015 family report).
Family violence
The mother is concerned as to the family violence the father has perpetrated towards the mother and other partners:-
a)In (omitted) 2012 at the father’s 40th birthday the father became intoxicated and was physical with Ms L.
b)In March 2012 police were called to the father and Ms L’s residence due to a reported disturbance where the father admitted saying to Ms L “I’ll fucking kill you I’ll rip your fucking head off”. This incident occurred when the children were with the father.
c)In September 2012 police were called to the father and Ms L’s residence due to a reported disturbance where the father came home at 3.00am intoxicated, woke Ms L, was verbally abusive and told Ms L to “get off my fucking bed, it’s my fucking bed”, pushed Ms L into a wall and damaged property. This incident occurred when the children were with the father. Police then took out a Domestic Violence Order (DVO) for two years for Ms L (including the children) against the father.
d)In September 2012 police were called to the father and Ms L’s residence due to a reported disturbance where the father, who was intoxicated, was verbally abusive to Ms L and used a knife to unlock the door and push the door off the hinges. After police arrived the father resisted arrest and it took four police officers to restrain and handcuff the father. This incident occurred when the children were with the father with the children reporting to the mother that the father had been drinking and the father and Ms L had been arguing and yelling at each other most of the night. The father was breached on the DVO, convicted and sentenced to jail.
e)In September 2013 there was verbal altercation between the parties in front of the children about the father drinking alcohol whilst the children were in his care which resulted in Y returning home with the mother.
f)In August 2014 there was a verbal altercation between the parties in front of the children because the mother attended the children’s sporting event.
g)In January 2016 police received a complaint from Ms K’s mother that the father had strangled her causing her to become unconscious and had threatened to kill Ms K’s pets. When police attended upon Ms K, Ms K did not want to talk about the incident saying she was leaving the father. A small bruise was noticed on her chin. ICE may have been involved. The children were not with the father at the time of the incident. Ms K informed the family report writer that the incident happened when she informed the father that she was leaving him and that “‘he didn’t like that and he restrained me…he held me down to stop me from leaving’….it was in a ‘sleeper hold’” and that “I think I blacked out” ([70] and [71] 2016 family report).
h)In a text message to the mother the father wrote “you are controlling coward of a woman and I am ashamed to have once known you”.
i)In an email to the mother dated July 2016, the father wrote “you are a fuckwit….just send me the relevant contact information you complete retard and next time I see you I will explain in graphic detail how I feel about you taking the piss in such a smart ass manner toward me. How about you try to grow the fuck up before you cause more damage to your own children you piece of shit…….Water finds its own and correct level over enough time. I shall help you find yours Ms Willcox. I would appreciate some respect and decency from you moving forward, otherwise I will make a habit of responding as I have this evening”.
j)In an email to the mother dated July 2016, the father wrote “you will tell me what the arrangements are ….you idiot……Do you need it explained any other way you dumb cunt?? I can’t wait to sort you out”.
k)In an email to the mother’s legal practitioner in July 2016 the father referred to the mother as “vile” and “irresponsible”.
In 2016 Y told the family report writer that the father said “that he would shake her (the mother) until she didn’t do anything wrong again’….X was there at the time” ([100] 2016 family report).
The father had the following to say about the family violence:-
a)The father admitted that when communication broke down between the parties in 2014 the father “spoke to” the mother “on the phone and …said ‘I let fly, it was one of my best, I was rude and was angry and I don’t often get angry and I gave it to her and it was her birthday’….he did not apologise as he felt that he was in the right……. ‘I had nothing to apologise for’” ([53] 2016 family report).
b)That in respect to Ms L, “there were ‘occasions we would argue and sometimes anger’ and attributes the violence between them to her assaults on him as ‘I never hit her’” although the father “conceded to one occasion where he shoved her out of the door and locked it and pushed her after she punched him in the face” ([41] 2016 family report).
c)That there were two occasions where the mother had to collect the children from the father due to domestic violence between the father and Ms L.
d)The father “conceded that his parenting of the children up until that point was ‘disgusting and horrible’ and also that “the mother may have been within her rights to restrict his time with the children when she did not. He felt bad that the children had been exposed to his partner Ms L, who ‘wasn’t a good mother and she didn’t care about the kids that much’” ([54] 2016 family report).
e)In respect to the altercation with Ms K in 2016, the father explained that there had been an argument and the father “chose to restrain her” so as to “prevent any physicality” by “holding her from behind ‘in a sleeper hold’ so that she could ‘kick and carry on’” and that “‘initially she moved until she realised the position she was in, she fought against it’” ([64] and [65] 2016 family report).
f)The father denied that he had choked Ms K and that he believed “she has elaborated on things in an emotional state to her mother” ([66] 2016 family report).
g)When asked “whether he thought that this was a normal way in which people partake in relationships” the father replied “I don’t know if you can say what a normal relationship is, I have no issue with it and I will tell you why. The stress and the pressure” ([68] 2016 family report)
h)However, after a toilet break the father had a change of heart “saying that he wanted to clarify his previous comment and to revise it to say it was not acceptable and that they had made a mistake” ([68] 2016 family report).
Concerns of family report writer as to abuse and family violence by father
The family report writer makes the following comments about the father and his treatment of the children:-
a)“I am of the view that there are a number of continuing and alarming elements to the father’s care of the children and his insight” ([125] 2016 family report).
b)“The emotional abuse of the children by their father is extreme. His vigilance to any comments by the children – mainly just Y, as X complies – which might imply a rebuff of him, are reacted to punitively” ([128] 2016 family report).
c)“The problem for the children with their father is that he is a vulnerable and self-absorbed man who is unable to see the children’s interests separately to his own and is quite prepared to excise his relationship with Y as she does not give him complete loyalty” ([135] 2016 family report).
d)The father “is a dangerous man without a modicum of responsibility” ([135] 2016 family report).
The family report writer makes the following comments about the father and his propensity for family violence:-
a)“There is a coherent and continuing pattern of instability and violence in the father’s circumstances and an abject denial by him. It is relevant to note that the (omitted) 2016 incident between he and Ms K is not isolated, but the most recent of a chronic pattern of past violent events in which” the father “had been instrumental” ([126] 2016 family report).
b)“In this case he choked Ms K into unconsciousness and could have killed her ….the couple have seen no need to subject their relationship to any scrutiny and/or counselling, as any further scrutiny would be unwelcome by” the father ([127] 2016 family report.
c)“It is relevant to consider that the assault occurred because she (Ms K) was trying to leave him (the father). He does appear to have a particular problem with rejection” ([127] 2016 family report).
d)The father “is an intensely controlling man, with the incident of violence between he and his partner as merely one extreme example of his behaviour in this regard” ([43] 2017 family report).
e)“The need for control is also demonstrated in his relationship with his children, wherein it has been necessary for them to show undivided loyalty to him and supress or reject their feelings for their mother” ([43] 2017 family report).
Impact of the father’s actions and behaviours on X
In 2015 X was hospitalised with seizure type symptoms which after extensive testing were later diagnosed as a possible panic attack due to anxiety from the ongoing issues with the children’s time with the father.
The father blames the mother for X’s anxiety writing in an email to the mother’s legal practitioners in July 2016 that “X has already suffered an emotional breakdown due to not having the coping mechanisms necessary to deal with his mother refusing to communicate with me on parenting matters and continually trying to take him from my care”.
The family report writer expresses a differing view stating:-
a)“I think that the stress upon X over the years has been more covert than that experienced by Y, and internalised, but the emotional abuse by his father has nonetheless been just as harmful” ([44] 2017 family report).
b)“X’s role….is consistent with a child attempting to contain the conflict between his parents and to meet his father’s implicit or explicit expectations of him…….that would incur considerable distress and I do not think that any child can sustain such a role without a cost” ([45] 2017 family report).
c)“I am of the view that this has caused X considerable distress over the years and it is a strange and confused web of loyalties for any child to navigate. Although nearly 13, I think he remains very vulnerable” ([46] 2017 family report).
d)“The physical violence in the father’s home is of an extreme form and can be distinguished from other forms of family violence by the control and coercion in his behaviour. Even if X was not exposed to this directly, it is difficult to see the benefit to X of continued exposure to ingrained attitudes of violence and power against women” ([47] 2017 family report).
Impact of the father’s actions and behaviours on Y
During the 2016 family report, the mother explained that Y would get anxious and upset and vomit before spending time with the father ([15] 2016 family report).
X confirmed this explaining that “Y was anxious for a long time” and “wouldn’t last a night without vomiting and would feel anxious when she was not with mum” and “Y told me herself she was totally scared of dad” ([91] 2016 family report).
Y has made it very clear that she does not want a relationship with the father.
Overall conclusion as to abuse and family violence
I find that the evidence supports that the father has subjected the children to abuse.
I make this finding based on the following:-
a)The father has put the children’s safety at risk through his drinking.
b)The father has verbally chastised Y which has taken place in front of X.
I find that the father has been the perpetrator of family violence in accordance with the definition contained in Section 4AB(2) Family Law Act 1975 as the father has:-
a)Made repeated derogatory taunts towards the mother in his emails and text messages (section 4AB (2) (d)).
b)Assaulted Ms L and Ms K (his former and current partner) (section 4AB (2) (a)).
c)Destroyed Ms L’s property (section 4AB (2) (e)).
I further find that in accordance with section 4AB (3), the father has exposed the children to the family violence as the children have seen, heard and otherwise experienced the effects of the family violence.
I make this finding based on the following:-
a)The children were present when the father was violent towards Ms L and when the police attended these incidents.
b)The mother was required at the father’s request to remove the children from these violent situations.
c)The children have heard the father saying derogatory remarks against the mother.
d)Y has experienced verbal taunts from the father which has caused her fear (section 4AB (1)).
Lastly, I find, taking into account the observations and opinions of the family report writer, that the children have suffered psychological harm due to the father’s abuse and perpetration of family violence and are likely to continue to experience psychological harm if further exposure to abuse and family violence was to continue.
As section 60CC(2A) requires that greater weight be given to this consideration, then I find that this consideration factors heavily in determining the future parenting arrangements for the children and supports that significant safeguards be put in place for any spend time with arrangements with the children.
Additional considerations
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views
X
In 2015 and 2016 X was very clear in his views that he wanted to spend week about with the parties ([61] 2015 family report and ([80] and [93] 2016 family report).
Time between the father and X ceased in mid-2016 as a consequence of a court order.
It has been very difficult for X to accept time ceasing with the family report writer noting that his “cessation of time with his father was not of his own volition but rather imposed upon him by the current court order. X’s reactions were always going to be more acute due to that attachment difference” ([36] 2017 family report).
In 2017 X’s desire to spend time with the father has not abated with X telling the family report writer:-
a)“Asked how hard it has been for him not seeing his father, he said it was ‘not fun’ and sometimes he might cry about it” ([10] 2017 family report).
b)“I do want to go back really bad and it’s on my mind because I miss everyone over there, that is my other family” ([6] 2017 family report).
c)“He said that he didn’t care how he got to see his father, he just wanted to see him….perhaps see his father once a week ‘at this facility and talk to him and have contact with him for a day’. He said he would like to do that” ([7] 2017 family report).
d)“‘If I had some contact, it wouldn’t be half bad’. If he had to wait until he is 18 without seeing him, he said ‘I don’t think I would handle that, I really want to see him’” ([12] 2017 family report).
The family report writer opines that “X misses his father and has a strong preference to seeing him again, as well as seeking an explanation as to why he has not been able to do so” ([34] 2017 family report)
The family report writer concludes that “he is nearly 13 years of age and his wishes necessarily carry weight” but that “concurrent with this, there are complex features to the nature of his relationship with his father which are relevant to whether even at his age – his wishes should be acceded” ([42] 2017 family report).
The family report writer warns that “it is a question of whether there is a risk to X in the resumption of a relationship with his father and if so whether this risk outweighs the possible benefits of his doing so” ([42] 2017 family report).
Y
Y has of her own choosing not spent time with the father since May 2016.
For Y her “final disruption in her relationship with her father was the result of direct conflict, after which she refused to return” ([36] 2017 family report).
Y explained to the family report writer that she had her own reasons for not wanting to see the father explaining “I have written them down, like the night he just yelled and screamed at me, just at me and just me and no one else” ([20] 2017 family report).
Y, during the 2017 family report interviews, said that “she feels better now that they are not seeing their father… ‘it is better at home now, like I feel safer at home and more comfortable and like everyone is nice, not yelling and being mean, it’s so nicer and safer’”.
The family report writer opines that “Y does not want to resume seeing her father and expresses a sense of relief that she has ceased doing so” ([34] 2017 family report) and that “given her sense of her father’s rejection of her and the isolation which she experienced in his care, it is my view that it would be extremely difficult for Y to resume a relationship with him and that in any event it is not in her interests to do so” ([41] 2017 family report).
Conclusion as to children’s views
The leading authority on children’s views (previously referred to as wishes) is the Full Court decision of R & R: Children’s Wishes [2000] FamCA 43 where after analysing the earlier decisions of H v W (1995) FLC 92-598 and Doyle & Doyle (1992) FLC 92-286 the Full Court states at [44]:
“It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so”
As to the weight to be given to such wishes the Full Court states at [54]:
“There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.”
Given their ages and their level of maturity, I find that weight must be given to the views of the children.
This is, therefore, a consideration which must be factored in when determining the future parenting arrangements for the children.
However, this is only one of many of the additional considerations which must be balanced with what is in the best interests of the children when making that determination.
Nature of the relationship of the children with each of the children’s parents and other persons
Father
X describes having “a good relationship with the father” ([65] 2015 family report).
X describes the father “as a funny guy” who “listens to him and normally doesn’t judge people” and “if they break a rule, his father does not yell at them but he raises his voice. He does swear” ([87] and [88] 2016 family report).
For Y her relationship has deteriorated with the father:-
a)In 2015 Y reported having “a good relationship” with the father ([74] 2015 family report).
b)In 2016 when asked if there were good times with her father said that “sometimes he is nice”. ([103] 2016 family report).
c)By 2017 Y explained that “when she was at her father’s place ‘I would cry every night about mum and he would say and use swear words’” ([21] 2017 family report).
The family report writer concluded that “their attachment to their father has differed historically” ([33] 2017 family report).
Ms K
X informed the family report writers that Ms K is ‘nice and helpful and she likes to do things and interact with us’” ([92] 2016 family report) but Ms K thought that “Y seemed uncomfortable around me” ([62] 2016 family report).
Mother
Both children report having a good relationship with the mother.
X says that “he gets along with his mother”, that he has a “good relationship with mum”, that “they joke around a lot with each other” and that he “will take any chance I have to spend with mum” as “they have a lot of things in common and he enjoys her company” ([11] 2017 family report).
X explains that “his mother doesn’t swear at all. If his mother is angry with them… ‘she would talk to me and sometimes take my thing away that I was doing wrong’” ([87] 2016 family report).
Y “described life at her mother’s home as very happy” ([16] 2017 family report) and “we are all happy together….we don’t worry about anything” ([19] 2017 family report).
Y says that “her mother just explains things to them but ‘dad gets angry with me because I don’t know the answer (to homework) and mum never gets angry with us” ([103] 2016 family report).
When the children were jointly asked “to rate how happy they might be feeling at their mother’s home now…they both said that they felt they were at least eight out of ten” ([23] 2017 family report).
The family report writer concludes that “they both articulate a uniform attachment to their mother” ([33] 2017 family report) and that “the common emotional reference point has always been their bond with their mother….this has sustained them over numerous areas of conflict, which can be gleaned through history” ([38] 2017 family report).
Mr P
Mr P “describes a good relationship with the children and no problems with their behaviour” ([76] 2016 family report).
X said that “he…gets on well with Mr P and does a lot of things with him” ([92] 2016 family report).
With each other
In the past the children’s sibling relationship had been strained.
The family report writer explains that “Y had become isolated in her father’s care over her loyalty to her mother, and … the sibling relationship was at a crisis point given the stress of the opposing positions of the children” ([35] 2017 family report).
The family report writer partly put this down to the children becoming “emotional hostages to their parent’s communication breach and a conduit between their parents over the key elements of the dispute between them. It has driven a wedge in their relationship in the sense that it highlights the separate loyalties that they have with each parent and places them in conflict with each other” ([123] 2016 family report).
However, the family report attributes most of the blame to the father due to his behaviours stating that:-
a)“I am of the view the father is mostly responsible for this situation and that his recent rejection of Y and comments about her of which X is privy is tantamount to an attempt to dismember the sibling relationship” ([132] 2016 family report).
b)It was due to “the father’s views of the personality differences of the children and his harsh commentary about Y’s relationship with her mother, and Y herself” ([35] 2017 family report).
Since 2016 (when time ceased between the children and the father) the sibling relationship has improved.
X says that “they are getting on much better these days. As to why, he said ‘it might be the fact that I don’t go to dads now’….that Y… ‘hissy fits are unnecessary’ and they are no longer speaking about what has or has not happened at their father’s home….he stated generally Y seems to be in a better mood these days’” ([5] 2017 family report).
Y explains that they now “do fun things together and she gets on with X better…. ‘he is good, we play……..he is nicer and I think I am nicer too….we don’t fight as much and we are able to decide on the same things’” ([17] and [18] 2017 family report).
The family report writer observes that when “interviewed together the children were very humorous and they both have a good sense of fun. Both children agreed immediately that they thought that they get on better than they did a year ago” when it was rated “a three out of ten” but where “together, they agreed” that their relationship is “about a six out of ten” ([22] 2017 family report).
The family report writer concludes that “currently the children present with a closer relationship with each other. It could be observed in their language, in their non-verbal cues, and in their comfort of each other” ([39] 2017 family report).
The mother is concerned that if X was allowed to attend visits on his own with the father, then this may widen the division between the children even though they are quite close ([17] 2017 family report).
Conclusion as to nature of relationships
I find that the children have a loving and strong relationship with the mother which is well balanced, enduring and child focussed.
I find that the children have a solid relationship with Mr P.
I find that X has a strong relationship with the father and Ms K.
I find that Y has no relationship with the father and Ms K.
I find that the children, when not spending time with the father, have a healthy relationship.
This is, therefore, a consideration which weighs heavily when determining the future parenting arrangements for the children.
However, this is only one of many of the additional considerations which must be balanced with what is in the best interests of the children when making that determination.
Extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions, to spend time with and to communicate with the children
Since 2016 the father has been given the opportunity to spend supervised time with X which has been refused.
The father made it very clear at the final hearing that if the court was to order supervised time with either child then the father would not attend.
This, unfortunately, may limit the options available to the court for spend time with arrangements for the children.
This is, therefore, a consideration that must be taken into account in determining the future parenting for the children.
Extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children
In 2010 the parties entered into a Binding Child Support Agreement
In 2015 the father ceased work.
Court orders were made in favour of the mother against the father in November 2016 as a consequence of the father being in arrears for over $42,000 for child support pursuant to the agreement.
The father has not paid any further child support and the mother is solely responsible for the financial support of the children.
This is a further consideration that must be factored in when determining the future parenting arrangements for the children.
Likely effect of any changes in the children’s circumstances, including the likely effect on the child of any separation from either parent or any other children, or other person
The evidence supports that if time resumes between the father and X, it will have a huge impact not only on X but the family dynamic in the mother’s household.
The family report writer warns that “one difficulty posed by attempting to retain the relationship between the children and their father is that it comes at the cost of their sibling relationship….I am of the view that preserving the sibling relationship is of greater importance than the relationship between the children and the father” ([134] 2016 family report).
This is, therefore, a consideration which weighs very heavily in determining the future parenting arrangements.
Practical difficulty and expense of children spending time with and communicating with a parent and whether that will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
As the parties live in close proximity to each other there is nothing in the evidence that suggests that this is a consideration which will impact on the final orders to be made in this matter.
Capacity of each of the children’s parents and any other person to provide for the needs of the children
Father
The mother has concerns that the father’s mental health and his abuse of alcohol impact on his ability to care for the children and meet their needs.
The evidence supports the following history of mental health issues pertaining to the father including references to his use of alcohol:-
a)In March 2011, the father’s General Practitioner (GP) referred the father to a psychiatrist Dr S as the father was “depressed in past and ?manic for a few years…had episode last Fri. Overreacting to situations. Living alone. Please see diagnosis ?bi polar”.
b)In July 2011 the father attempted suicide by trying to gas himself in the car and had texted the mother and his girlfriend saying goodbye.
c)In July 2011 the father commenced sessions with Dr S where it is noted that the father was unwilling to address his alcohol dependency and where the father was advised of a higher risk of suicidal behaviour due to his drinking. It was further noted that it is difficult to shift the father and to look at coping strategies. Father prescribed Mirtazapine (an antidepressant).
d)In (omitted) 2012 the father informed Dr S that he had been intoxicated at his 40th birthday party and had tried to drive off intoxicated and had suicidal ideation but was wrestled to the ground by a friend. The father further informed Dr S that he has decided to stop drinking and had ceased taking Mirtazapine. Dr S noted that the father was more insightful as to the detrimental effect of alcohol use but concerned as to the ongoing binge drinking.
e)In January 2012 the father ceased sessions with Dr S.
f)In July 2013 police were called to attend upon the father who had threatened suicide by gassing himself in the car. Police noted a hose attached to the car and that the father had been drinking. Police noted the father to be extremely erratic and emotional. Father conveyed unwillingly in handcuffs to (omitted) Hospital.
g)In July 2013 (omitted) Hospital noted that the father had rung Lifeline and was suicidal and that the father had a history of alcohol abuse including binge drinking with his mother having problems with alcohol and suiciding in 1997.
h)In July 2013 (omitted) Hospital suggested during a follow up visit that the father attend ATODS. Father admitted to drinking alcohol the night before, said that he had alcohol in the house but that he had good self-control.
i)In November 2013 the father contacted Lifeline making threats to harm himself and as a consequence police were called and the father was admitted to the mental health unit at (omitted) Hospital.
j)In December 2014 the father presented at emergency at the (omitted) Hospital with shortness of breath and twitches and admitted to taking dexamphetamine the previous week and smoking cannabis that contained “something else”. The father was diagnosed with drug withdrawal symptoms.
k)In October 2015 the father attended a GP where he obtained a mental health plan and was referred to a psychologist.
l)In April 2016 the father’s GP Dr Z noted that the father drinks two to three days a week and consumes ten or more drinks on each occasion.
m)In May 2016 the father failed to attend upon the recommended psychologist.
n)In July 2016 notification received by Department of Child Safety (DOCS) that the father and Ms K are using drugs with children in their care and Ms K has been on methamphetamines (ICE).
The father’s history of drug and alcohol testing is as follows:-
a)In February 2015 a CDT test showed that the father’s alcohol intake was below the equivocal level.
b)In August 2015 a CDT test showed that the father’s alcohol intake was below the equivocal level.
c)In August 2015 a urine drug test (performed late) showed no drug usage.
d)In May 2016 the father refused a further CDT test or urine drug test as the father stated that he could not afford it.
The father had the following to say to the family report writers about his mental health and drinking:-
a)In 2015 the father admitted to the family report writer that “the children were exposed to situations in the past that he now regrets” and that “at the time I was selfish and I wasn’t doing the right thing by others. I was drinking too much and in a volatile relationship” ([36] 2015 family report).
b)The father “acknowledged being so depressed that he attempted suicide in 2011. He described the attempt as more a cry for help. He denied any further attempts” ([36] 2015 family report).
c)The father “also acknowledged being taken by police to (omitted) Hospital in November 2013, although he denied feeling suicidal at the time” ([37] 2015 family report).
d)The father acknowledged that he drank during the relationship with the mother and it got worse as the relationship deteriorated ([36] and [37] 2016 family report).
e)“He concedes that his drinking escalated although it was difficult to ascertain from” the father “the exact amounts” ([37] 2016 family report).
f)The father was “silent in any examination of the effect of his drinking” on the mother and the children ([37] 2016 family report).
g)The father “conceded that he was very depressed” ([43] 2016 family report).
h)The father initially denied making a suicide attempt by gassing but when asked about it admitted that he did so but that is was “not serious but ‘a depressed drunk man throwing his toys out of the cot because he feels sorry for himself’ and denying that his intent was to kill himself” ([43] 2016 family report).
i)The father admits that “yes, I behaved deplorably at times” ([44] 2016 family report).
j)The father denies that he ever drove the children to school whilst the father was intoxicated and maintains that Y made it up ([57] 2016 family report).
In the 2016 family report neither child reported seeing the father drinking alcohol recently with X maintaining that the father has given up alcohol.
The father had the following to say to Dr V about his mental health and drinking:-
a)“There were allegations I was on alcohol. I was after a fashion”
b)“I went through depression at the end of the marriage”
c)“He denied any suicidal ideation”
d)“He denied suffering any anxiety or panic attacks”
e)“He denied any compulsive behaviours”
f)“He did see a psychiatrist after a suicide attempt. This was in 2012. ‘I got very drunk’”
g)“He also saw a psychiatrist on six other occasions. He was never diagnosed with any condition”
h)“He has never been prescribed any mood stabilisers”
i)“He denied any other psychiatric admissions or presentations”
j)“He denied any episodes of self-harm”
In 2016 the father admitted to Dr V that there was a time during his alcohol use where “I really struggled with a few things but woke up one day and I was 110kg and the children weren’t safe in my care”.
In July 2016 Dr V in the psychiatric report of the father said:-
a)“I could find no evidence of any major mental illness, in particular there was no evidence of psychosis”
b)“In terms of his personality vulnerabilities, there does appear to be some Cluster C and B traits to his personality presenting as somewhat obsessional and mildly narcissistic “
c)“There does appear to be a degree of emotional instability but this again is likely to have been exacerbated by his alcohol abuse at that time as well as significant psychosocial stressors”
d)“There does not appear to be evidence of a Personality Disorder per se on the history provided by the father although one suspects these vulnerabilities become more apparent in times of stress or when intoxicated”
Dr V in his recommendations suggested that:-
a)The father obtain the services of a “suitably qualified mental health practitioner to assist him in more appropriately controlling his emotions as well as protecting the children from his own negative views with respect to the mother”.
b)That the father would benefit from an “exploration of his past substance misuse as well as apparent difficulties within intimate relationships so as to develop skills and strategies to protect the children from recurrence of problematic substance abuse or domestic violence within future relationships”.
c)The father “may also benefit from engagement in specialist drug and alcohol counselling (even if he has in fact remained significantly abstinent from alcohol in more recent times) so as to further protect him from the risk of relapse of problematic drinking within the future” .
The father has not followed any of the recommendations of Dr V.
Mother
In 2015 the father informed the family report writer that the mother was a “good person and a good mother” ([34] 2015 family report).
In 2016 the father informed Dr V that “if the children are left in her (the mother’s) care 100% they are not in danger of physical or emotional harm and they will be provided for, they have nice cars and go on nice holidays, but they are stilted emotionally. They have daily planners. They do their homework at the same time and then they get 15 minutes of play and they are scheduled to an inch of their lives…….there is no room for creativity or expression”.
Conclusion on capacity
I find that there are serious concerns as to the father’s capacity to meet the children’s needs and that the father has not been proactive in addressing these concerns by seeking professional assistance.
This consideration, therefore, factors heavily in determining the future parenting arrangements for the children.
As to the mother, I find that the mother does have capacity to meet the children’s needs.
Maturity, sex, lifestyle and background of the children and parents and any characteristic of the children that the court thinks are relevant
This factor has been considered but has no application in this matter.
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 the likely impact any proposed order will have on that right
This factor has been considered but has no application in this matter.
Attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
The evidence supports that the father is not interested in co-parenting the children with the mother.
The mother describes her relationship with the father as “void’ and states that “I can’t parent at all with him” with the father in the past refusing to open the communication book or often not replying to her emails regarding the children and when he does it is abusive ([18] 2016 family report).
The father in an email to the mother’s legal representatives in July 2016 wrote “I honestly can’t see my relationship with your client declining any further, as it is bad as it could possibly be”.
Attempts by the mother to engage the father in productive discussions about parenting issues have proved fruitless with the father failing to respond or sending abusive texts such as:
a)July 2015 “You seem to be confused yourself, which is no surprise given all the lies spewing out of you recently”.
b)July 2015 “You will use an alternative tone in your communication with me if you wish to communicate successfully”.
c)July 2015 “I am ashamed I ever knew you….You are so stupid”.
The father describes the mother:-
a)As being “dreadfully insecure” ([30] 2016 family report).
b)Relying “heavily on the children for a sense of definition or purpose” ([30] 2016 family report).
c)As not being “a good mother to them as she is seeking to pull the children away from him” ([30] 2016 family report).
X informed the family report writer that the father speaks negatively about the mother and that “Dad says mean things about mum” with the father calling the mum “a cunt and a lying bitch” ([89] 2016 family report).
X further said that the “father ‘says things I know aren’t true towards mum that she tries to brainwash us into thinking she is perfect’….. ‘I know she’s not perfect but I know she doesn’t try to brainwash us’” ([90] 2016 family report).
X explained, however, that he has not heard the mother saying bad things about the father other “than she worries that he drinks a lot” ([90] 2016 family report).
Y said that “‘dad always says mean things about mum, that mum only cares about money” ([100] 2016 family report).
Y complained that “I just don’t like him lying…he says a lot of nasty things about mum and I don’t like it, I don’t think it is true” and “it had been like that for the last year” ([101] 2016 family report).
As to the mother, Y explained that “mum doesn’t have a hate for dad but she doesn’t like what he has done. She doesn’t say anything at all about dad that is nasty” ([103] 2016 family report).
In the joint interview with the family report writer in 2016, the children agreed that the “father often talks in a derogatory fashion about the mother” ([106] 2016 family report) and “the father does disparage their mother to an extreme degree in her absence, this placing the children in conflict with one another” and that “their mother does not disparage their father in his absence” ([130] 2016 family report).
The father, however, “had trouble answering as to whether he makes derogatory comments about the mother to the children. He put it in the context of hearing negative things from the children about Ms K which ‘massively change. I find this unacceptable that they are rude to her when she has been loving to them’” ([107] 2016 family report).
Conclusion as to attitude and responsibilities
I find that the father is unable to co-parent with the mother and has not demonstrated the attitude and responsibilities required to be child focussed.
This is, therefore, a consideration which factors heavily in determining the future parenting arrangements for the children.
Family violence involving the children or a member of the children’s family
A finding has been made that the children have been subjected to family violence by the father.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
This is a matter where a final order is needed so as to enable the parties, and more importantly the children, to move on with their lives.
Any other fact or circumstance
This factor has been considered but has no application in this matter.
Overall conclusion as to the parenting arrangements for the children
Parental responsibility
The mother is seeking sole parental responsibility for X.
The father has agreed to an order whereby the mother have sole parental responsibility for Y.
The law provides pursuant to section 61DA Family Law Act 1975 for the presumption that the parties have equal shared parental responsibility for the children.
However, if there is a finding of family violence then pursuant to section 61DA(2)(b) the presumption of equal shared parental responsibility does not apply.
Conclusion as to parental responsibility
I find that as there has been a finding the father has perpetrated family violence then the presumption of equal shared parental responsibility does not apply.
The question then arises as to what order should be made for parental responsibility.
The power of the court to make a parenting order for parental responsibility is contained in sections 64B(2)(c) and (d) which provides that “a parenting order may deal with…. the allocation of parental responsibility for a child” and “if 2 or more persons are to share parental responsibility for a child, the form of consultations those persons are to have.”
The court is required, pursuant to section 60CA, when making a parenting order to “regard the best interests of the child as the paramount consideration”.
I find that it is not in the best interest of X for the parties to have equal shared parental responsibility because:-
a)The parental conflict is such that the parties are unable to engage in productive conversation regarding decision making for the children.
b)The parties have the inability to communicate.
c)The father has a low opinion of the mother and most likely will not give weight to the mother’s views.
d)The mother has historically made well informed and child focussed major long tern decisions for the children.
I find that it is in X’s best interests for the mother to have sole parental responsibility for the child based on the following:-
a)The mother is the primary carer for the children.
b)The children are living with the mother and have not, since 2016, spent time with the father.
c)The mother has been responsible for making all decisions for the children, both long term and day to day since 2016.
I, therefore, order that the mother have sole parental responsibility for the child X.
Spend time with arrangements
The father is seeking unsupervised time with X building to equal shared care.
The mother and the ICL are seeking no time between the father and X.
In 2016 the family report writer had one recommendation; that the father’s “time with the children should cease” ([135] 2016 family report).
In 2017 the family report writer concluded in respect to X that the “ideal outcome for X would be if he could spend time with his father safely, and without duress. I am of the view that this could only occur if the Court were to determine that the father could provide assurances regarding his propensity and responsibility for violence; that he does not drink, and that he is receiving ongoing mental health support, and even then, only if he presented as genuinely committed to maintaining these changes” ([50] 2017 family report).
Unacceptable risk
The question then arises; does the father pose an unacceptable risk to the children?
The standard of proof in determining whether unacceptable risk exists is the civil standard based on the balance of probabilities.
The factors to be considered in applying the civil standard were addressed by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at [362]:-
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inference.”
As to what amounts to unacceptable risk was the subject of extensive discussion by the Full Court in Johnson & Page [2007] FamCA 1235.
In conclusion, the Full Court adopted the seven principal points to be applied in determining acceptable risk as set out by Hon. John Fogarty A.M. in his paper ‘Unacceptable risk – A return to basics’ within the Australian Journal of Family Law:
In summary the seven points are as follows:-
a)The best interest of the child will always be the decisive issue.
b)Unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
c)Where past abuse is alleged, the court is not required to reach a conclusion as to its existence but if the court does consider its existence then the Briginshaw civil standard of proof applies.
d)A failure to prove past abuse in accordance with the Briginshaw test does not prevent the court from considering the circumstances in determining whether unacceptable risk exits.
e)Focus in these matters should always be on the question as to whether there is an unacceptable risk for the child.
f)The onus of proof to be applied in reaching any conclusion as to unacceptable risk is the ordinary civil standard.
g)The individual components in reaching that conclusion need not be proven on the balance of probabilities. The court may reach a conclusion of unacceptable risk based on an accumulation of factors where none or only some of which are established to that standard. The Full Court, however, expressed a word of caution in making a finding of unacceptable risk where none of the components are proven on the balance of probabilities.
Conclusion on unacceptable risk
I find, having considered the findings made in respect to the primary and additional considerations, the application of the Briginshaw test and adopting the seven points, that the father presents as an unacceptable risk to the children based on the following:-
a)The father has repeatedly exposed the children to derogatory comments about the mother and is highly critical of the mother to the children.
b)The father has on several occasions exposed the children to family violence with different partners including the mother.
c)The father has put the children at risk of harm due to his alcohol abuse and mental health issues.
d)The father has systematically destroyed his relationship with Y by isolating Y, abusing Y verbally, accusing Y of lying, being critical of Y and openly rejecting Y.
e)By ostracising Y and favouring X, the father has damaged the children’s sibling relationship; a relationship which has only been mended since time with the father has ceased.
f)By enlisting X as a confidant and supporter, the father has placed X under enormous pressure which has impacted on the child’s health.
g)The father lacks any insight into his behaviours or attitudes and takes no responsibility or accountability for the negative impact that the father has had and continues to have on the children.
h)The father lacks any insight as to his own shortcomings in respect to his violent behaviours, his substance abuse and mental health issues and how this can impact on the children if not under control.
i)The father has failed historically to follow through on any effective treatments and has not taken heed of the recommendations of the family report writer or Dr V to get professional assistance for these issues that pose a risk to the children.
j)The father has made no attempts to self-improve so as to be a better parent such as parenting courses.
k)The reintroduction of the father into X’s life has the real potential of:-
i)Severely damaging the sibling relationship between X and Y.
ii)Causing stress on X which may adversely impact on the child’s physical and mental health.
iii)Exposing X to further denigration and criticism of the mother and forcing X to take sides.
iv)Exposing the children to parental conflict at the instigation of the father.
v)Exposing the child to family violence within the father’s household.
I, therefore, find that the father poses an unacceptable risk to the children.
As a finding has been made that the father is an unacceptable risk to the children then consideration must be had as to what time if any is to be spent between the father and X.
As succinctly put by the Full Court in Moose at [79] now that a finding has been made as to acceptable risk is it “possible or appropriate to make orders to promote a meaningful relationship for the children with the father both in the shorter and more significantly the longer term.”
I find that because of the father’s blatant refusal to spend supervised time with X then the only option available to the court (as recommended by the family report writer) is for no time to occur between the father and X.
I, therefore, order that no time occur between the father and the child.
Explanation of orders
The children in their understanding as to why the father is no longer in their life are at very different levels.
Y knows through her own assessment that it is because of the way that the father treated her.
X does not have the same understanding as Y.
X desperately wants someone to explain to him as to why he cannot see his father.
X told the family report writer that:-
a)“His mother had not explained it to him fully, just saying to him that his father was not capable of taking care of him. He wanted to know why and if there were any other reasons” ([8] 2017 family report).
b)“He felt frustrated in not seeing his father adding ‘because no one has told me why, which is even harder’” ([8] 2017 family report).
c)“He himself did not see any reason. He said his father had ‘given up drinking and he takes good care of me and puts food on the table….and ‘he never gets angry for no good reason’” ([9] 2017 family report).
d)“‘I have accepted the fact that it up to the Judge and up to mum and dad and Ms J to do what is in my bests interests’ pausing to say it would be lovely to find out a reason why, that would be fantastic’” ([14] 2017 family report).
I find, therefore, that it is necessary for the orders and the consequences of the orders to be explained fully to both children (especially X) individually and to the children together.
This will provide the children with an equal understanding as to why the children will not be spending time with the father.
I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 15 December 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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