WILLIAMS & MORTON

[2015] FamCA 1068

FAMILY COURT OF AUSTRALIA

WILLIAMS & MORTON [2015] FamCA 1068

FAMILY LAW – CHILDREN – where the parties are agreed the children will live with the mother –where there are allegations of significant domestic violence against the father –amelioration of risk -  how the children’s time with the father should occur.

Family Law Act 1975 (Cth)

Banks & Banks [2015] FamCAFC 36
Cox & Pedrana (2013) 48 Fam LR 651

M v M (1988) 166 CLR 69

APPLICANT: Mr Williams

RESPONDENT: Ms Morton

INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

FILE NUMBER: BRC 6543 of 2011

DATE DELIVERED: 2 December 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 13, 14, 29, 30 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cooper on 13, 14 October 2015; 
Mr Edwards on 29, 30 October 2015

SOLICITOR FOR THE APPLICANT: R J Cutler Solicitor on 13 and 14 October 2015; 
Bradley Munt & Co Solicitors on 29, 30 October 2015

COUNSEL FOR THE RESPONDENT: Ms Pendergast

SOLICITOR FOR THE RESPONDENT: Ms Gallagher, Gallagher Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous orders and parenting plans are discharged.

2. The children B, born … 2006, and C, born … 2008, live with the mother.

3. The father and mother have parental responsibility for the major long term issues for the children in the following manner:

   (a)the parents shall have shared parental responsibility for the children in relation to major long term issues about:

   (i)the children’s names; and

   (ii)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent; and

   (iii)the children’s religious and cultural upbringing; but

   (b)the mother shall solely have parental responsibility for the children in relation to all other major long term issues including:

   (i)the children’s education (both current and future); and

   (ii)the children’s health.

4. Before making a decision about any issue falling within the purview of Clause (3)(b), the mother shall:

   (a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and

   (b)allow the father twenty-eight (28) days after the provision by her of the information referred to above to respond to the same in writing; and

   (c)consider the father’s response, if any, when coming to her decision about any such issue; and

   (d)make a genuine effort to come to a joint decision with the father about any such issue but, if no agreement is reached, then she shall make the final decision about such issue; and thereafter

   (e)inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

5. The mother shall be responsible for the daily care, welfare and development of the children when they are living or spending time with her.

6. The father shall be responsible for the daily care, welfare and development of the children when they are spending time with him.

7. The children shall spend time with the father at all times as may be agreed between the parents in writing but, failing agreement as follows:

   (a)from 9.00 am until 4.00 pm on the first, second, third and, if it occurs, fifth Saturday of each calendar month; and

   (b)from 9.00 am until 4.00 pm on the third and, if it occurs, fifth Sunday of each month; and

   (c)from 9.00 am Christmas Day until 4.00 pm Christmas Day in even numbered years; and

   (d)from 9.00 am Boxing Day until 4.00 pm Boxing Day in odd numbered years; and

   (e)from 9.00 am until 4.00 pm on Father’s Day; and

   (f)from 9.00 am until 4.00 pm on each Tuesday and Thursday of any school holiday period if the father gives the mother no less than 28 days’ notice in writing of his intention to spend time with the children on these occasions.

8. If the mother gives the father notice in writing by 4.00 pm on 6 December in any year of a period not exceeding fourteen (14) consecutive days between 27 December that year and the recommencement of the first school term the following year, the operation of Clause (7)(a), (b) and (f) of this Order shall be suspended during that period.

9. If the children would not otherwise be spending time with their mother on Mother’s Day, they shall remain in her care that day and shall spend time with their father from 9.00 am until 4.00 pm on the next Sunday on which they would not otherwise be spending time with him in accordance with this Order.

10. The father and mother shall conduct all changeovers:

    (a)        until 31 May 2016: at the E Town Contact Centre; and

    (b)thereafter: unless otherwise agreed by the parents in writing - at the carpark of the D Town Shopping Centre.

11. Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the children.

12. If they have not already done so, each parent shall, within seven (7) days, do all acts and things necessary to enrol at the E Town Contact Centre.

13. The costs of the E Town Contact Centre in facilitating changeovers shall be paid as follows:

    (a)until the father discharges the amount currently owing by him in respect of child support assessed as payable to the mother: the father shall be totally responsible for paying such costs; and

    (b)after the father discharges the amount currently owing by him in respect of child support assessed as payable to the mother: each party shall be responsible for paying half of such costs.

14. The father shall not consume or be under the influence of alcohol at any time when the children are spending time with him.

15. Within fourteen days (14) of the date of this Order, the mother do all things necessary to ensure that the children start to attend upon a counsellor or psychologist specialising in supporting children who have been exposed to domestic violence and abuse and, thereafter, ensure that they attend upon such counsellor or psychologist for as long as that counsellor or psychologist reasonably considers beneficial for them.

16. The mother has liberty to provide a copy of the Family Report prepared by Mr F (dated 3 November 2014) and a copy of the Reasons for Judgment delivered in support of this Order to any counsellor or psychologist upon whom the children attend.

17. At any time when the children are in their care, neither parent shall:

    (a)use illicit or illegal drugs or allow the children to be in the presence of persons using illicit or illegal drugs;  nor

    (b)perpetrate acts of domestic violence upon the children or allow the children to be exposed to persons committing acts of domestic violence against others.

18. During the time the children are with either parent, that parent shall:

    (a)respect the privacy of the other parent and not question the children about the personal life of the other parent; and

    (b)speak of the other parent respectfully; and

    (c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

19. The mother and father shall:

    (a)keep each other informed at all times of their residential address and landline and mobile contact telephone number; and

    (b)keep each other informed of the names and addresses of any treating or other health practitioners who treat the children; and

    (c)inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children; and

    (d)keep each other informed of any school or educational facility at which the children attend.

20. By this Order, any doctor, health care and other treatment provider upon whom the children attend is hereby authorised to provide each parent, at that parent’s request and cost, with all such information as they are lawfully able to provide about the children.

21. By this Order, any school or educational facility at which the children attend is hereby authorised to provide each parent, at that parent’s request and cost, with such information as they are lawfully able to provide about the children.

22. Subject to any conditions imposed by the children’s schools, each parent is at liberty to attend school functions to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

23. The father shall:

    (a)       attend upon and complete an anger management course; and

    (b)participate in and complete a programme designed to assist perpetrators of domestic violence to refrain from violent behaviours,

    with such organisation/s as notified by the Independent Children’s Lawyer in writing within twenty-eight (28) days of the date of this Order.

24. The father has liberty to provide a copy of the Family Report prepared by Mr F (dated 3 November 2014) and a copy of the Reasons for Judgment delivered in support of this Order to any counsellor, therapist or psychologist upon whom he attends as required by Clause (23) of this Order.

25. The Independent Children’s Lawyer has liberty to provide the Chief Executive of the Department of Communities, Child Safety and Disability Services with a copy of the following documents:

    (a)       affidavit of Mr Williams filed 8 October 2014;

    (b)       affidavit of Mr Williams filed 17 August 2015;

    (c)       affidavit of Mr Williams filed 3 September 2015;

    (d)       affidavit of Ms Morton filed 8 October 2014;

    (e)       affidavit of Ms Morton filed 6 August 2015;

    (f)       affidavit of Ms Morton filed 4 September 2015;

    (g)       Family Report by Ms G dated 13 March 2014;

    (h)       Family Report by Mr F dated 3 November 2014.

26. The mother shall deliver the children to Child Dispute Services, Family Court Australia Brisbane Registry at 4.00 pm on 3 December 2015 for the purposes of enabling Mr F to explain this Order to them.

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. For a period of three (3) years from the date of this Order, the mother is restrained and an injunction issue restraining her from leaving the children in the care of any male person other than:

   (a)       educational and health care professionals; and

   (b)a parent of any of the children’s friends in whose care they may be for the purpose of events like sleepovers and/or camping trips; and

   (c)       the maternal grandfather, Mr H Morton; and

   (d)       her brother, Mr I Morton; and

   (e)       her brother-in-law, Mr J.

2. For a period of three (3) years from the date of this Order, the mother is restrained and an injunction issue restraining her from sharing her accommodation with any male person other than:

   (a)       the maternal grandfather, Mr H Morton; and

   (b)       her brother, Mr I Morton; and

   (c)       her brother-in-law, Mr J.

3. The mother will attend upon a general practitioner within seven (7) days of the date of this Order for the purpose of obtaining a referral to a clinical psychologist for the purpose of undertaking psychotherapy in respect of:

   (a)the impact of domestic violence upon her and her children; and

   (b)understanding why she has repeatedly entered into abusive relationships; and

   (c)developing and implementing strategies to improve her confidence; and

   (d)developing strategies to ensure the children are protected from domestic violence and abuse.

AND IT IS FURTHER ORDERED THAT

1. For the purposes of Clause (29) of this Order, the mother has liberty to provide  her general practitioner and any clinical psychologist, upon whom she attends for the purpose of undertaking the psychotherapy referred to above, with a copy of:

   (a)the Family Report prepared by Mr F, dated 3 November 2014; and

   (b)       this Order; and

   (c)       the Reasons for Judgment delivered in support of this Order.

2. The mother shall attend all appointments and interviews and follow all reasonable instructions provided by the clinical psychologist upon whom she attends for the purpose of undertaking the psychotherapy referred to above.

3. The process used for resolving future disputes about the children or the terms or operation of these Orders shall be as follows:

   (a)the parents shall consult with an agreed Family Dispute Resolution Practitioner at a Family Relationship Centre to assist with resolving any dispute in relation to the children; and

   (b)the parents shall pay the costs of the Family Dispute Resolution Practitioner equally; and

   (c)in the event that, for any reason, they are unable to have an appointment with the agreed Family Dispute Resolution Practitioner or cannot agree on an alternate Family Dispute Resolution Practitioner, the father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability; and

   (d)the mother shall choose one of the listed practitioners with seven (7) days of the receipt of the list; and

   (e)if the mother fails to choose one of the listed practitioners within the prescribed time, then the father may choose one of the listed practitioners.

4. Unless there are some emergency circumstances, before an application is made to a Court for a variation of this Order to take into account the changing needs of the children, each parent is to take the steps referred to in Clause (32) of this Order.

5. The Independent Children’s Lawyer is discharged upon compliance with the terms of Clause (23) of this Order.

6. All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.

7. 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 to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Williams & Morton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6543 of 2011

Mr Williams

Applicant

And

Ms Morton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On the fourth morning of the trial, the father’s Counsel informed the Court that the father no longer sought orders that the children, B, born in 2006 and C, born in 2008, live with him. This formal concession reflected the evidence given earlier in the proceedings by the father during the course of his cross-examination. Whilst it means that it is no longer necessary to determine many of the parties’ factual disputes, it remains necessary to determine, by reference to the relevant considerations[1], the time with their father which will be in the children’s best interests.

   [1] Contained within s 60 CC of the Family Law Act 1975 (Cth).

2. The mother and Independent Children’s Lawyer joined in proposing that the children spend time with their father from 9.00 am to 4.00 pm on the first, second and third Sunday of each calendar month and from 9.00 am to 4.00 pm on the third Saturday of each month. Specific proposals – in respect of which both joined again – were also advanced for Christmas, Boxing and Father’s Day.

3. It is obvious that none of the time proposed by the mother (with the support of the Independent Children’s Lawyer) includes overnight time.

4. In stark contrast, the father now seeks a return to the regime previously agreed between the parties[2] – a regime by which the children spent each alternate weekend and half of the school holiday periods with him.

   [2]          Order made 5 December 2012 by consent.

5. The mother and Independent Children’s Lawyer contend that the children’s time with their father should be limited to time during the day only to ameliorate the risk to them arising from exposure to the domestic violence perpetrated by him and/or occurring within his home.

6. This contention arises in circumstances where, whilst in the mother’s care, the children have been exposed to acts of aggression and, arguably, violence by various of her intimate partners and, it seems, sexually abused by one of them on an occasion in March 2012 when the mother asked this person to care for them whilst she attended Court.

7. Two Family Reports have been prepared to assist the Court in this matter. The first, prepared by Ms G in March 2014, recommended that the children live primarily with the father. This recommendation arose out of Ms G’s assessment that the mother’s choice of intimate partners exposed the children to significant risk, that the father and his partner (Ms K) demonstrated insight into the domestic violence which had, on their account, historically occurred in their home and that they represented the option which provided the children with greater stability and safety.

8. In contrast, the report prepared by Mr F[3] after interviews in October 2014 recommended that the children continue to live primarily with their mother and spend time with their father each alternate weekend and during the school holidays: this recommendation arose from his assessment that the father and Ms K minimised the extent of the domestic violence in their home, that the children expressed concerns about the arguments between their father and Ms K and that the mother appeared to have acted protectively toward the children once she became aware of the abuse perpetrated by her former partner.

   [3]          Dated 3 November 2014.

9. After he was shown material obtained by the Independent Children’s Lawyer[4]– which revealed that, in February this year, the father hit Ms K to the back of the head a number of times, head-butted her more than once and, to use the father’s descriptor, ‘lost it’ and that police had attended the home on another occasion this year to respond to the father’s aggressive behaviour toward Ms K – Mr F amended his recommendation to support an order that the children spend only daytime time with their father.

   [4]          Pursuant to subpoena issued to the Queensland Police Service.

10. To the extent that it is necessary – given the father’s ultimate position – I record that I prefer the evidence given by Mr F to that given by Ms G. I do so because, whilst the interviews for both of the reports predated the father’s violent assault of Ms K in February 2015 and his aggressive behaviour on other occasions this year, Ms G did not have the opportunity Mr F did of reviewing the evidence obtained by the Independent Children’s Lawyer from the Queensland Police Service in relation to these events.

11. In expressing this preference, I also note that, when told during her cross-examination about the matters summarised in paragraph 9, Ms G confirmed that such events were very concerning, particularly given her assessment that one of the primary issues for the children was that they had told her they felt safe in their father’s home but not their mother’s home: she noted that, where there was an incident as outlined, which involved significant family violence, it may well have been that the children did not then feel safe in their father’s home.

12. The mother is apparently currently not in an intimate relationship. Those persons with whom she has had intimate relationships since her final separation from the father in about 2006 appear to have shared his anger management limitations to varying degrees.

13. An appreciation of these limitations can be gained by noting that the father conceded during cross-examination that he had behaved violently toward the mother during their relationship: he had pushed and shoved her with sufficient force to cause bruises, punched her (including to the body) on occasions, kicked her, thrown things at her, sworn at her and used abusive language to refer to her, and kicked and ripped screens from doors. Whilst he said he did not remember whether he had ever punched the mother in the head, I consider it more likely than not that, as she said, this occurred. That those violent behaviours toward the mother occurred when he was not under the influence of alcohol is, of course, relevant to an assessment of the risk to the children in spending unsupervised time with him and the measures likely to ameliorate that risk.

1. The father remains in an intimate relationship with Ms K. She has four daughters, two of whom, aged approximately 17 and 10 years, live with her and the father.

2. As is the case with the mother, Ms K’s prior intimate relationships have been with partners who have manifested the same difficulties in anger management as the father.[5] Additionally, Ms K has demonstrated difficulties in managing her aggression, anger and behaviours (both when under the influence of alcohol and not): in fact, her history of violent altercations with intimate partners includes an occasion when she hit her previous partner over the head with a vodka bottle and another occasion on which she stabbed him with a knife when, on her account, he was trying to kill her.

   [5]For example: in May 2004, Police attended at a domestic dispute between Ms K and another person; in June 2005, Police attended at a domestic dispute between Ms K and another person; in August 2005, Police attended at a domestic dispute between Ms K, another person and her daughter (born … 1998): a domestic violence order was made naming Ms K as the respondent.

3. Prior to this year, the following events during the father’s relationship with Ms K which have come to the notice of authorities have included:

   a)on 26 April 2012, Ms K’s daughter made a report to police that she and her mother had been driving in the car and having an argument and Ms K pulled the car over to the other side of the road and said “I want you to see what it’s like when someone is responsible for another person’s life”. Another car was coming from the opposite direction, and after a short time, Ms K returned to the correct side of the road.[6] Ms K admitted to police she did this to prove a point to her daughter after a disagreement about her babysitting a younger sibling; and

   b)on 26 April 2012, the father and Ms K were involved in a verbal argument during which Ms K threw property at the father and smashed decorative ornaments. Both the father and Ms K were affected by alcohol at the time. Ms K’s children were present and witnessed the incident. Both the father and Ms K told the police that a domestic violence incident had occurred in the presence of the children; and

   c)on 29 April 2012, the police attended at the father’s residence following an argument between him and Ms K. On that occasion, Ms K had told the father to leave the house as their relationship was over: she then used a golf club to smash the windscreen of his car. This incident occurred within the view or hearing of the children;[7] and

   d)on 11 July 2012, Ms K was dealt with at the L Town Magistrates Court for a charge of breach of a domestic violence order: no conviction was recorded; she was ordered to pay a $200.00 recognisance and placed on a good behaviour bond for 12 months;[8] and

   e)in March 2013, the father and Ms K were again involved in an argument, this time arising out of Ms K allegedly sitting in the father’s spot on the couch. A verbal argument ensued; Ms K took $25.00 of the father’s money: the father took some of her nail products, smashed a table and pushed her against a wall in the garage; and[9]

   f)in May 2013, the police were called in relation to a dispute between the father and Ms K and another person which became physical;[10] and

   g)in October 2013, the father and Ms K were involved in a verbal dispute during which Ms K asked the father to leave. He said he needed money to find alternative accommodation and took some jewellery he had previously given her to sell. When she called the police, Ms K told them the father made her so mad she wanted to stab him with scissors. Whilst she later said she told police this to ensure they responded rapidly (and not because it was a truthful recounting of her feelings), both B and C (and Ms K’s daughter) were present in another room during the argument. 

   [6]          Exhibit 1, p 56

   [7]          Exhibit 1, p 36

   [8]          Exhibit 1, p 25

   [9]          Exhibit 1, p 41

   [10]         Exhibit 1, p 43

4. Neither the father nor Ms K brought any of these events to Mr F’s attention. In fact, the father denied the mother’s assertion about ongoing family violence in his relationship with Ms K: he said that, whilst when he first met her he was “an angry man” and used to “break things and go off”, if arguments between them became too loud, they would go to a separate room away from the children. Ms K told Mr F that, while she and the father had arguments, they did not let the children see these: she also said she thought the father previously had problems controlling his anger but was on a “different path” now. Subsequent events belie this assertion.

The children’s time with their father

1. The children have spent fairly regular time with their father since their parents separated: for example, they initially spent time with him in their mother’s presence until agreement was reached in late 2012 – after this, their time with him increased progressively until they were spending alternate weekend and holiday time with him.

2. It seems that the parties became aware in about May 2013 that the children had been assaulted in March 2012 by the mother’s former partner. It also seems that the father concluded that the children had told their mother about this before that time: a matter which she strenuously denies. Despite this, the parties continued to facilitate the children spending at least some time in each household.

3. After a changeover (at which the children were distressed) in early August 2013, the mother did not provide the children to spend time with their father for nearly seven weeks. The mother’s account of this changeover included that the children were crying loudly, both had vomit on their clothes, Ms K’s face was swollen and her daughter, M, was in the back seat, crying. The father agreed that the children were crying and B had become so distressed she had vomited and that M was also upset. Ms K denied that any child had vomited. Neither the father nor Ms K accepted that she had a swollen face nor that they had punched each other.

4. Given the inconsistency in their account in so far as the issue of vomit is concerned, and their overall history of violent interactions when stressed and/or under pressure - as was the case when returning the children to their mother on this occasion – I think it highly unlikely that some aggression did not occur that day.

5. Whilst I have significant doubts about their recounting of what happened in the car on the way to KFC that day and easily conclude that it is more likely than not that, at the very least, they engaged in a heated verbal argument, subsequent events of 2015 are such that a definitive conclusion about the exact details of this occasion is unnecessary.

6. When the children resumed spending time with their father, he failed to return them to their mother at the conclusion of the school holidays and retained them in his care for nearly seven weeks. Orders subsequently required that the children return to live with their mother and they did.

7. The children thereafter continued to spend time with both of their parents. The mother raised concerns about whether the children were being exposed to domestic violence in their father’s home. The father denied this to her. He deliberately lied to her when he told her that the occasion in February 2015 when he head-butted Ms K was nothing more than him and Ms K having a verbal argument behind closed doors and that exposure (presumably of the children) to this was not ‘toxic’.

8. Ironically, he continued to raise concerns about whether the children were being exposed to domestic violence in the mother’s home.

9. The father retained the children in his care for two days in July 2015 and for about three weeks from early August 2015. Ironically, given:

   a)his violent assault of Ms K in February 2015 - which happened when his children and her daughter were at the home; and

   b)his behaviour in March 2015 - when, after a verbal argument with Ms K and having consumed a large quantity of alcohol he returned to the home and, when she would not let him enter, removed two security screens from windows, damaged the ceiling of the deck and threw chairs from the deck onto the ground; and

   c)his behaviour in May 2015 - when he threw keys at Ms K’s face causing cuts to her face,

   he did so because he said he wanted to protect them from being exposed to the domestic violence he said was happening in their mother’s home. During this time he did not send the children to school because he was concerned the mother would attempt to take them back into her care from there. Again, an Order[11] was made requiring that the children return to their mother’s care.

   [11]         Made by consent.

10. Thus, the only occasions during which the children have not lived primarily with their mother have arisen as a consequence of the father’s decisions not to return them to her despite the existence of Orders requiring that course.

Applicable Principles

1. In these proceedings, subject to s 61DA of the Family Law Act 1975 (Cth) (the Act), I may make such parenting order as I think proper. [12] I must have regard to the Objects of Part VII of the Act and the Principles which underpin those Objects.[13] The paramount consideration when making parenting orders is the children’s best interests.[14]

   [12]         s 65DAB of the Act. 

   [13] s 60B of the Act.

   [14]         s 60CA and s 65AA of the Act.

2. The matters which must be considered in determining those parenting orders which are in the children’s best interests are found in s 60CC of the Act. The requirement to consider each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[15]

   [15]see: Banks & Banks [2015] FamCAFC 36 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).

3. I must consider whether there is benefit to the children of a meaningful relationship with both parents as an affirmative finding does not depend simply on there being a lack of danger of physical or psychological harm to them arising from time and/or communication with that parent.

4. I accept that B and C have, to some extent at least, a good enough relationship with each of their parents and that they love each of them. I accept that each of the parents love their children. I accept that the children will benefit from the opportunity to have a meaningful relationship with both of their parents.

5. The real question then is whether the children’s opportunity to spend time with their father should be restricted in order to protect them from harm, from being exposed to abuse or family violence. As already noted, the mother and the Independent Children’s Lawyer contend that the risk the children will continue to be exposed to violence between their father and Ms K whilst in his care can only be mitigated by reducing their time with him to daytime time only.

6. In advocating against such a conclusion, the father’s Counsel advanced, via cross-examination of Mr F and in submission, that, as the children had been subjected to the adverse effects of exposure to domestic violence in their mother’s home also, there was no proper basis upon which their time with their father should be curtailed.

7. I enjoin with Mr F in his rejection of this suggestion. I accept his evidence to the effect that, whilst the children are likely to have been exposed to family violence in both of their parents’ homes, a relevant distinction can be drawn between the two: namely, that in the father’s home, he is the major perpetrator of family violence whilst, in the mother’s home, she is not: that is, the risk to the children in the mother’s home is that she is highly vulnerable to entering relationships with men who are the primary perpetrators of family violence whereas the risk to the children in their father’s home is that he is a primary perpetrator of family violence.

8. I accept Mr F’s analysis that, to some extent, risk factors for the children exist in the homes of each of their parents. However, as he said during his cross-examination, the fact that the father has not hit the children or embroiled them directly in the significant family violence which has occurred this year in his home is irrelevant: I accept that this is because the effect on the children of exposure to, or the witnessing of, family violence is the same as the effects arising out of “direct” involvement in family violence.

9. I accept as likely that once the mother became aware of matters involving the children or which may be adverse to them in her home, she has acted to end the relationships in which she has then been involved.

10. I consider that another distinction between the households is that Ms K has herself (in the past at least) been a primary perpetrator of family violence but there is no persuasive evidence that the mother has ever acted so as to place herself within this category.

11. This distinction is relevant because Mr F’s lingering concern – which underpinned the recommendations outlined in his report and which is echoed by the Court – is that exposure to the pattern of family violence which appears to be a theme in the father’s home may erode the benefit to the children of having a meaningful relationship with him.

12. Given Ms K’s past behaviours and reactions – especially when under the influence of alcohol – I am persuaded that it is more likely than not that, on occasions, she has been a contributor to this pattern of family violence.

13. I note that, having had the opportunity to read the material from the Queensland Police Service about the events of 2015 in particular, Mr F concluded that these events illustrated that family violence appeared to be a pattern of the father’s behaviour in his relationships. As I understood it, the effect of his evidence - which I accept – is that these events ‘probably’ confirm that violence and/or aggression is an embedded feature of the father’s manner of interacting in, and resolving issues within, intimate relationships.

14. I accept that the father’s past behaviours suggest he has relied on violence and aggression to resolve differences and difficulties in personal interactions. I also accept, to use Mr F’s terms, that the potency of the father’s behaviour toward Ms K in February 2015 was ‘remarkable’ – that is, I accept that it was extremely explosive, aggressive and unpredictable. I also note, as Mr F did, that, despite the extreme nature of the February 2015 assault, there were two later occasions on which the father behaved aggressively toward Ms K.

15. Nothing in the evidence suggests that police have attended at the father’s home since May 2015. Both the father and Ms K say there have been no further incidents of violence between them since then.

16. Even if this is the case – and I have some doubts about this given that the father was an entirely unsatisfactory witness and I was left with the sense that Ms K may not have been completely candid about the manner in which the parties have interacted since February 2015 – their shared and individual histories of aggressive and violent behaviours on occasions (both when under the influence of alcohol and not) suggest that any significant optimism about their future may be unwise.

17. I accept the tenor of Mr F’s evidence to the effect that, whilst the children continue to desire an ongoing relationship with their father and will probably obtain a benefit from the opportunity to maintain an ongoing connection with him, there is now a necessity to place safeguards around their time with him.

18. I also accept Mr F’s evidence that, in arriving at his recommendations for daytime time only at this stage, he attempted to balance the benefit to the children of the opportunity to have an ongoing relationship and time with their father and the imperative of protecting them from further exposure to the potentially lifelong, debilitating and deleterious impacts of domestic violence.

19. Such weighing of the benefits to the children of the opportunity to have an ongoing relationship and time with their father with the imperative of protecting them from exposure to an unacceptable risk of harm[16] is that which the Court must undertake.

    [16]         M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.

    Mr F’s evidence

20. Mr F outlined that, as the pattern of the father’s violence appeared associated with his consumption of alcohol, eliminating overnight time and decreasing the time the children spent with him to daytime time only may be one way to minimise the risk the children will again be exposed to an event like the violent assault of February 2015.

21. Mr F opined that, given that C appeared to be demonstrating behaviours which included scanning his environment and being startled on hearing raised adult voices, it seemed he was, at present, easily triggered by exposure to such matters. From Mr F’s perspective, given this, C would benefit from having his time with his father limited so that the risk he is re-exposed to further family violence is minimised, particularly as any such re-exposure is likely to prolong his recovery from the impact of that to which he has already been exposed. Against this background, Mr F suggested that the children would benefit from having more frequent but shorter periods of time with their father. He did not support the children continuing to spend overnight time with their father because of the risk that they may once again be exposed to the explosive family violence which erupted in February 2015.

22. My concerns about the risk are heightened and not minimised by Ms K’s evidence that, before she was assaulted by the father in February 2015, she thought things between them were going well: that is, she did not notice anything in the father’s behaviours toward her or in the home to suggest that she may be at risk of harm at any time before he head-butted her on that occasion.

23. I accept Mr F’s evidence that, whilst he considered whether supervision of the children’s time with their father was necessary to ensure that they were not placed at an unacceptable risk of harm, he concluded that supervision was not beneficial for them because of the limitations such supervision would impose on their ability to develop and maintain a meaningful relationship with their father in the medium to long term.

24. I accept his evidence that a decrease in the time the children spend with their father at this time and limiting this to daytime time only is likely to minimise – to some extent at least – the possibility that they will again be exposed to significant family violence in the father’s home.

25. It was suggested that an order that the father refrain from consuming alcohol whilst the children are in his care would completely ameliorate the risk to them sufficiently to permit a conclusion that their best interests are served by continuing to spend alternate weekend and block holiday time with their father. However, as noted above, the father’s evidence is that he had been physically abusive of the mother whilst not under the influence of alcohol.

26. I accept that, should the father consume alcohol when the children are spending time with him, it is more likely than not that his capacity to control his impulsivity when stressed will be further reduced. Given this conclusion, an order restraining him from consuming alcohol at all when they are in his care is something I consider in their best interests as this will assist in minimising the risk that they may be exposed to a repetition of the father’s explosively violent behaviour.

27. I accept Mr F’s evidence that, whilst the reduction in the time they are able to spend with their father may well have some impact upon the children, it is likely to involve a short period of adjustment – even for C, taking into account his overall vulnerability. I also accept that it is hoped any short term loss felt by the children is outweighed by the long term gain to them of being protected from exposure to the significantly detrimental and lasting impacts of exposure to occasions of physical violence between a parent and a person with whom that parent is in an intimate relationship.

1. B told Mr F she got a bit scared when her father fought with Ms K. When Mr F asked C whether there was anything that worried or scared him about being at each of his parents’ homes, he said he wished his father and Ms K would stop fighting. Given these comments, a reduction in the children’s time with their father may well lift the burden of this fear and worry from them.

2. I also note that Mr F’s recommendations for the change to the children’s time with their father is based very much upon their respective ages – at present, nine and seven years respectively – and that it may well be that, when they are adolescents, the situation may be quite different: for example, they will then be able to act more readily to remove themselves from situations they found confronting and personally emotionally harmful and they will be able to articulate and/or demonstrate their displeasure at, and opposition to, being exposed to such situations more readily.

3. For these reasons, Mr F’s recommended that daytime time only between the children and their father occur until each of them are adolescents. In C’s case, that would mean it continue for the next five years or so.

4. The orders proposed by the mother and the Independent Children’s Lawyer do not envisage a change to the proposed daytime time occurring when the children reach a nominated age: rather, it is, in essence, submitted that the onus should fall squarely upon the father to demonstrate that his underlying attitudes and behaviours have changed sufficiently so a conclusion could comfortably be reached that the risk of a repetition of his aggressive and violent behaviours has so diminished that the children would not be at an unacceptable risk of exposure to harm if their time with him extended to a full alternate weekend and block time during the school holidays.

5. Counsel for the father took up this positon in a sense during his cross-examination of Mr F and in submissions. He submitted, in essence, that if there was no police involvement or attendance at the father’s home for a nominated period of time there should then be no impediment to the children simply resuming their previous overnight time with the father.

6. The difficulty in accepting this submission is, I think, obvious: it would mean that the external pressure imposed on the father and his household would not be actually to improve the skills necessary to properly manage his behaviours when stressed or under pressure but, rather, upon not involving authorities.

7. I accept Mr F’s evidence to the effect that, in proposing a reduction in the children’s time with their father, he is not saying that the father is the parent responsible for the totality of their exposure to violence within a family environment. In fact, he was clear in stating that, whilst he assessed the mother as having acted protectively once aware of harmful behaviours by the person with whom she was then in an intimate relationship, she is, in fact, responsible for entering into relationships with such men who perpetrated abusive behaviours - the father being one in a line of such perpetrators.

8. Mr F did not suggest that the disturbed behaviours C has recently exhibited and any adverse impacts for B were caused solely by the father. Rather, whilst concluding that both parents bear some responsibility for exposing their children to family violence whilst in their respective care, Mr F simply considered that the prospects of correcting things in the mother’s home were a bit better than in the father’s home. In essence, he suggested that decreasing the children’s time with their father would ameliorate the risk to which they are likely to be exposed in their father’s household and operate as a means by which they can be protected from re-exposure to such harm.

9. I accept that less time with the father at this point in their lives is something that is more likely to safeguard the children from exposure to explosive family violence. I conclude the father is the primary perpetrator of ‘highly potent’ family violence and that he has exhibited an entrenched pattern of family violence: I also conclude that the chances the children will be exposed to his aggressive behaviours and the aftermath of the same will increase if they spend more time with him and decrease if they spend less time with him.

10. Given that the medium and long-term outcomes for the children if repeatedly exposed to family violence are negative and highly detrimental in terms of their future functioning, I am persuaded that all reasonable efforts should be made to reduce the possibility of that eventuating.

11. In outlining the rationale underpinning his recommendation that C spend only daytime time with the father until he reached the age of twelve years, Mr F stated that, by then, C would be able to self-protect and, hopefully, would himself no longer exhibit disturbed and aggressive behaviours and the father would, hopefully, himself be out of the worrying cycle of demonstrating abusive behaviours. I accept that, at such time, provided the father has demonstrated greater stability in this regard in his home, at that age, C may appropriately have more of a voice about the extent of time with his father and the manner in which it occurs.

12. Daytime time with the father will enable the children to continue their relationships with the father, Ms K and her daughter. If, in the future, the father can produce cogent evidence to the Court that he has dealt with the issues identified by Mr F to the extent that time with him for periods greater than during the day only can be thought not to place the children at an unacceptable risk of exposure to a repeat of his explosively violent assault of Ms K, he may be able to obtain orders which will see them spend more expansive time with him.

13. Until then, however, I consider that the orders outlined at the commencement of these Reasons reflect what is currently in the children’s best interests given the imperative of protecting them as much as realistically possible from exposure to significant family violence.

14. Whilst it was advanced that an order for daytime time could be made to operate until C was 12 years old - with an automatic change then to overnight time - I accept the submissions made in opposition to such an order on the basis that it is impossible now to determine whether, at some time in the future, an order for more extensive time will then be in the children’s best interests.

Parental responsibility

1. The mother seeks, and is supported in this proposal by the Independent Children’s Lawyer,[17] that she and the father have shared parental responsibility in relation to the issues of the children’s name, religious and cultural upbringing and changes to the children’s living arrangements which would make it significantly more difficult for them to spend time with either parent. She seeks sole parental responsibility for all other major long term issues in relation to the children, including in respect of the children’s education and health.

   [17]see Minute of Orders handed up by each of Counsel for the mother and Independent Children’s Lawyer on 30 October 2015.

2. The father proposes an order for equal shared parental responsibility.

3. Given the father’s violence toward the mother and Ms K, the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them[18] does not apply - the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of the children being the paramount consideration – see s 60CA; s 65AA).[19]

   [18] s 61DA of the Act.

   [19]         Cox & Pedrana (2013) 48 Fam LR 651, [19].

4. In determining whether it is in the children’s best interests that an order requiring their parents to share parental responsibility is made, it must be remembered that, if the Court makes an order that the parties share parental responsibility for the children and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to them, such order requires the decision to be made jointly by the parties.[20] Additionally, such order also requires that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it.[21]

   [20]         s 65DAC(2) of the Act.

   [21]         65DAC(3) of the Act.

5. The father’s view of the communication between the parties - as expressed to Ms G in March 2014 - was that it was generally very poor. From the mother’s perspective, she found their communication difficult, but hoped to be able to communicate sufficiently well with the father to be able to manage joint decisions.

6. Mr F opined that each parent believed C’s problems were caused by and/or maintained by negative experiences whilst in the care of the other. He considered each of their claims and arguments surrounding this issue an example and manifestation of their respective attitudes to the task of co- parenting: namely, that each had rigid, adversarial and uncooperative attitudes toward that task.[22]

   [22]         Paragraph 50, Family Report dated 3 November 2014.

7. Given this evidence, if the mother had not proposed the form of order she has, I would not necessarily have been persuaded that the parents are likely to be able to reach necessary decisions jointly in the future and/or that it is in the children’s best interests that an order which requires them to do so is made. However, I accept that the mother clearly considers that, at least about the matters detailed in her proposed order, the parents are more likely than not to be able to reach decisions jointly.  Predominantly for this reason, I am persuaded that such an order is in the children’s best interests.

The manner in which the children shall spend time with their father

1. For the reasons already expressed, I am persuaded that the children’s current best interests will be met by an order which provides their time with their father occur between 9.00 am and 4.00 pm on weekend days. Whilst Counsel for the mother proposed this time occur on Sundays predominantly, I consider it preferable it occur on Saturdays unless otherwise agreed between the parents. I arrive at this conclusion because time on Saturdays will enable the children to deal with any disruption to their behaviours which may follow time with their father, before returning to school.

2. I also consider it is appropriate that, if there are five weekends in a month, the children have the opportunity to spend time with their father on that weekend also.

3. In balancing the risk of harm to the children and the importance of providing them with the opportunity to continue their relationships with their father, I am also persuaded that it is in their best interests to be able to spend some daytime time with him during holiday periods.

Other specific Orders

Changeovers and responsibility for the costs of changeovers

1. Mr F considered that the children transitioning into their father’s care could be a “flashpoint” for further conflict between the parents and, as such, further safeguards ought to be implemented to protect them from this. He believed that as the children had seen and heard enough and ought to be shielded where possible changeovers should occur with the assistance of a Contact Centre so as to minimise the prospect the children will be exposed to further inter-parental conflict.

2. I accept that, at least for a period of time after the finalisation of this matter, it is more likely than not that changeovers may provide a flashpoint for aggression between the parents. Exposure to this is not beneficial for the children and, accordingly, I am persuaded that changeovers should occur at a Contact Centre to ensure that they are not exposed to any such behaviour.

3. Whilst it was initially submitted that changeovers should occur in this manner indefinitely, the harsh reality is that neither of these parents can financially afford for this to occur. Consequently, it was submitted that an appropriate period for supervised changeover was six months to allow the parties to become used to the changed parenting regime.

4. Doing the best that I can on the basis that a balance needs to be achieved between the duration of the period during which supervision of changeovers is necessary to minimise the prospect that the children may be exposed to aggression between their parents and the reality that meeting the costs associated with this will impact negatively upon the funds available for the children’s support, I have concluded that changeovers should be supervised for a period of three months. After that, they can be carried out at the carpark of the D Town Shopping Centre.

5. Whilst neither party specified this location, it appears it is a public place located approximately equidistant between the current residences of the parents. In the event that another public place is more accessible or convenient to the parties, it is always open to them to agree to change the location at which changeovers outside the Contact Centre will occur.

6. I accept the submission made by Counsel for the mother and supported by Counsel for the Independent Children’s Lawyer to the effect that, given the father is currently $3,000.00 in arrears in his payment of child support, he should be solely responsible for meeting the costs of changeovers until such time as these arrears are discharged.

7. Whilst I fully appreciate that, for the currently unemployed father, this may well be a not insignificant impost, I also take into account his evidence that he purchased a motor vehicle for about $20,000.00 about three months ago and that he appears to have an ability to engage in at least some paid employment of some kind (given that Ms K has apparently been encouraging him to find paid employment so as to assist her in financially supporting their household).

   Injunctive orders proposed by the mother in relation to her living arrangements

8. The mother’s Counsel informed the Court that the mother proposed an order be made restraining her, for a period of three years, from leaving the children in the care of any person other than those specified in the proposal  and also that she be restrained from sharing her home with any person other than those specified in the proposal.

9. In assessing whether such orders are likely to be in the best interests of the children, it is, I think, relevant to note that the mother has not ‘shared her home’ with any of the men with whom she has had intimate relationships since separating from the father: despite this, such persons have acted in aggressive and possibly threatening ways toward her and/or the children and/or manifested disturbing and upsetting behaviours in the children’s presence.

10. In such a circumstance, it may well be thought that, absent the mother’s agreement to such an order, no evidentiary basis underpins it. I have reflected significantly about the utility of an order restraining the mother in the manner in which she determines to live her life. I have done so out of a concern that such an order may, in fact, expose the children to the very real risk of future parental conflict (and, possibly, future legal proceedings) associated with whether the mother has complied with such an order or remains compliant with it into the future.

11. I also take into account Mr F’s sensible comments about the difficulties inherent in monitoring compliance and that it is an internal rather than an external change which is required by the mother if she wishes to support her children by refraining from forming intimate relationships in the future with men who struggle to manage their anger.

12. Given that the mother herself may gain support from an order restricting her living arrangement choices and because she herself proposes that such an order is made, I am persuaded that the children’s best interests are served by making both of the orders she seeks.

13. In doing so, I record my conclusion that the most significant way in which the mother can support her children as they mature is to participate fully in the supportive therapy designed to assist her not to choose to enter into relationships with perpetrators of domestic violence. As Mr F noted: what is needed for success in this regard is an internal motivation rather than an external restraint.

    Injunctive orders about therapy

14. I accept Mr F’s evidence to the effect that, if the children continue to be re-exposed to instances of family violence and/or aggressive and dysregulated behaviours between adults whilst in the care of either of their parents, the highly likely consequences for them of such exposure include:

    a)for B: that she will grow up thinking – wrongly - that violence and abuse perpetrated by males against females is an acceptable part of intimate relationships or, in some way, a means by which men demonstrate love and/or affection for women; that such violent and harmful behaviour is to be accepted and/or tolerated and that she is worthy of nothing more and can expect nothing more from any person with whom she enters into an intimate relationship – in effect, that that is how life and relationships are conducted; and

    b)for C: that he will grow up to replicate his father’s behaviours and become a man who perpetrates violence against those with whom he forms intimate relationships; that he will think – wrongly, but, in one sense, understandably, given that he will have been shown no other way - that violence and aggression are the ways through which conflict and differences of opinion are resolved and that being aggressive and violent is an acceptable way of interacting in the world.

15. Because of my concern for C’s future, I reiterate Mr F’s evidence that continued exposure to family violence is more likely than not to result in him having poor problem solving skills and, unfortunately, encountering ongoing difficulties with authority and/or developing mental health issues. In fact, given C’s relatively recent aggressive and uncontrolled behaviours at school, it is much more likely than not that he is already manifesting and/or mimicking the violent and aggressive behaviours to which he has been witness whilst in his parents’ care.

16. I consider that, unless C’s parents each demonstrate how much they say they care for him and want the best for him into the future by addressing their own difficulties in intimate relationships, there is every likelihood he will become an aggressive adolescent who will struggle to solve the problems he will inevitably encounter as he matures by any means other than violence.

17. Should this occur as a result of their respective inabilities to make appropriate decisions about their own behaviours, then his parents will share entirely in the responsibility for that eventuality: they will have no one to blame but themselves and C will arguably be entitled to hold them to account.

18. Through her Counsel, the mother proposed that an order be made requiring her to engage in psychotherapy to assist her to appreciate the impact of her personal decisions about intimate partners on the children. Such an order finds significant support in the evidence given by Mr F.

19. I record Mr F’s opinion that the mother’s functioning in this regard is, perhaps, more amenable to change than the father’s recurrent pattern of aggression.

20. Further, he expressed the opinion that interventions aimed at modifying the mother’s behaviour – namely, to assist her to avoid forming intimate relationships with men who are primary perpetrators of family violence -  are  probably more likely to be successful than those modifying the father’s behaviours. He thought this to be the case because, for the mother, interventions would likely involve psychoeducational therapy based around issues of identity whereas, in the father’s case, therapeutic interventions would have to grapple with the reality of an established pattern of high potency family violence – something which may well be extremely resistant to intervention.

1. Whether this is or is not to be the case, I accept that, when he gave his evidence, the father was genuine in saying he wanted to change his behaviours. The difficulty for him, it seems to me, is likely to arise when asked to continue to act to modify these behaviours during stressful times. Even if potentially limited in its results, I consider that any therapeutic intervention which assists the father in any way to continue to develop the skills to enable him to manage his aggressive behaviours is something which will ultimately be beneficial for the children.

2. For these reasons, each parent will be required to participate in therapy to assist each of them to address those limitations which, if not rectified, have the very real potential of continuing to impact adversely on their children.

   Therapeutic support for the children

3. Given the potential consequences for C as outlined above, I accept Mr F’s recommendation that the mother engage him in ongoing therapeutic support to assist him (C) to deal with his exposure to abuse and family violence.

4. I record Mr F’s evidence that the mother’s descriptions to him of C’s behaviours and reactions was consistent with his expectations, given that he thought C a child ‘saturated’ in (or by) family violence: further, given this, he considered that anything reminiscent of the past violence to which C has been exposed may well trigger his own behaviours.

5. I also accept Mr F’s assessment of C as being a child in need of additional support because, as well as seemingly developmentally vulnerable, he has been exposed to antisocial behaviours by both his father (the February 2015 assault of Ms K and, I suspect, other occasions during which aggressive and argumentative behaviours between the adults in that home are likely to have occurred) and in his mother’s home (where he has been abused by one of her former partners and, seemingly, exposed to the argument).  

6. Mr F did not specifically address whether it was likely B would benefit from the opportunity to be supported via attendance at therapeutic counselling also. However, I consider that the abuse apparently inflicted on her by one of her mother’s former partners and the fact that she, too, has been exposed to and witnessed aggressive and antagonistic behaviours between the adults in her parents’ homes impels a conclusion that she, too, is more likely than not to benefit from such support.

7. For these reasons, I intend to require that the mother ensure the children attend upon a counsellor or psychologist specialising in supporting children who have been exposed to domestic violence and abuse. In the hope that it may assist the effectiveness of this therapy, the mother will have liberty to provide such therapist with a copy of Mr F’s report and these Reasons.

Matters relevant to any future parenting application

1. I have no doubt that the father will be genuinely upset by the Order which will restrict the children’s opportunity to spend time with him to daytime time only. Given that I accept he loves his children, I also have little doubt he is likely, in the future, to seek to increase the time they spend with him.

2. In the event it is not already apparent from the reasoning expressed earlier, I consider that, in order to be able to persuade a Court in the future that circumstances have changed sufficiently to warrant a reconsideration of the parenting orders supported by these Reasons, the father will, at least, have to be able to demonstrate that he has:

   a)genuinely and effectively addressed his pattern of domestic violence via therapeutic intervention/s; and

   b)refrained from engaging in such violent and aggressive behaviours for long enough to support a conclusion that the entrenched pattern identified by Mr F has been changed; and

   c)learned and successfully implemented strategies of managing his reactions to situations he finds stressful such that the children would not be at an unacceptable risk of harm if their time with him was extended.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 December 2015.

Associate:     

Date:              2 December 2015