FAMILY COURT OF AUSTRALIA
| FLEMING & TILMAN | [2018] FamCA 131 |
| FAMILY LAW – CHILDREN – Whether the children should spend any time or communicate with the father – Family Violence – Father convicted of criminal offences related to Family Violence – Family Violence witnessed by one of the children – Use of illicit drugs – Father assisted by a “McKenzie friend” – Where the father had been spending supervised time with two of the three children – Injunctions restraining the father from contacting the children or mother – Utility of orders. |
| Family Law Act 1975 (Cth) |
| MRR v GR (2010) 240 CLR 461 Rice and Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Fleming |
| RESPONDENT: | Mr Tilman |
| INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan Lawyer |
| FILE NUMBER: | SYC | 5946 | of | 2015 |
| DATE DELIVERED: | 6 March 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 12-15 February 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Barnett |
| SOLICITOR FOR THE APPLICANT: | McDonnell Schroder |
| THE RESPONDENT: | Mr Tilman for and on his own behalf |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Breeze |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan Lawyer |
Orders
All existing parenting orders in relation to the children:
● B born on … 2005
● C born on … 2007
● D born on … 2010
(“the children”) are discharged.
The mother has sole parental responsibility for the children.
The children live with the mother.
The children spend no time with the father.
The father and the children communicate with each other as follows:
5.1the father may send cards, letters and gifts to the children on their respective birthdays and at Christmas in each year
5.2within seven (7) days of receipt of such cards, letters and gifts the mother request that the children’s school counsellor read such communications and authorise their reading to the children if the school counsellor deems their contents to be appropriate for that purpose
5.3in the event that the children’s school counsellor is unable or unwilling to offer assistance in accordance with Order 5.2, the mother nominate another person to carry out those responsibilities within seven (7) days of her becoming aware of the unavailability of the children’s school counsellor
5.4within 28 days of the date of these Orders, the mother nominate to the father a post office box address to which he may send letters, cards and gifts to the children in accordance with Order 5.1 and the mother retain that post office box until the child D attains the age of 18 years
5.5the mother check the contents of the post office box not less than 72 hours before and 72 hours after the events prescribed by Order 5.1
5.6the father is restrained from including any material concerning the mother and/or these proceedings in the material prescribed by Order 5.1.
Pursuant to section 68B of the Family Law Act 1975 the father is restrained from:
6.1 approaching any of the children
6.2communicating with the children otherwise than as prescribed by these Orders
6.3approaching the mother
6.4communicating with the mother otherwise than as prescribed by these Orders
6.5entering or remaining within 200 metres of the residence of the children
6.6entering or remaining within 200 metres of any school attended by one or all of the children.
The mother advise the father:
7.1as soon as is practicable of any serious illness or injury suffered by the children
7.2of the names and contact details of the health professionals who deal with such illnesses and injuries and authorise those practitioners to provide to the father all information which he may request in relation to the child’s health.
The mother do all things necessary to cause the children to attend an appointment with the ICL for the purpose of explanation of these Orders.
9.1 The mother request each child’s school counsellor to meet with the child, after the appointment with the ICL prescribed by Order 8, with the intent of offering psychological support in relation to the implementation of these Orders.
9.2If the children’s school counsellor(s) are unable or unwilling to offer assistance as envisaged by Order 9.1, the mother request a referral from the children’s general practitioner for a Medicare Better Mental Health Plan to a counsellor for the same purpose.
The mother provide a copy of these Orders to the practitioner prescribed by Order 9 and the principal(s) of the children’s school(s).
11.1 The mother is permitted to apply for and obtain passports for the children without having first obtained the consent of the father.
11.2The mother is permitted to travel outside of the Commonwealth of Australia with all or any of the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fleming & Tilman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5946 of 2015
| Ms Fleming |
Applicant
And
| Mr Tilman |
Respondent
And
| Independent Children's Lawyer |
Mark Whelan
REASONS FOR JUDGMENT
The proceedings
Mr Tilman (“the father”) and Ms Fleming (“the mother”) are the parents of three children:
· B born in 2005 (13)
· C born in 2007 (10)
· D born in 2010 (8).
These proceedings concern parenting arrangements for the children and, specifically, whether they should spend any time with the father and under what conditions. There was also a dispute as to whether the parties should have equal shared parental responsibility for the children.
At the conclusion of the trial the Independent Children’s Lawyer (“ICL”) submitted a Minute of Proposed Orders in the following terms:
1. All previous parenting orders are discharged.
2.The mother shall have sole parental responsibility for the children [B] born …2005, [C] born …2007 and [D] born …2010 (“the children”).
3.The children shall spend no time with the Father.
4.The father shall communicate with the children as follows:
(a)By sending cards, letters and/or presents to the children on their respective birthdays and at Christmas each year;
(b)The mother shall within 7 days of receiving same request that each child’s school counsellor read such communications and authorise them to be read to the children if their content is not inappropriate;
(c)In the event that a school counsellor is not able or willing to assist, the mother shall within 7 days of learning that a school counsellor is not able or willing to assist, nominate a substitute person to carry out the responsibility referred to in order 4(b);
(d)The mother shall within 28 days nominate to the father a post office box that he can send the communications to and shall maintain that box, or nominate an alternate box, until the youngest child attains the age of eighteen (18);
(e)The mother shall check the nominated post office box not less than 48 hours prior to the events referred to in Order 4(a) above, and again check the post office box not more than 48 hours after the events referred to in Order 4(a) above.
(f)The father is restrained in such circumstances from writing anything about the mother or these Court proceedings;
5.Pursuant to section 68B the father is restrained by injunction from:
(a)Approaching any of the children;
(b)Approaching or communicating with the mother, save as specifically authorised by these orders;
(c)Entering or remaining within 200 metres of any residence of the children;
(d)Entering or remaining within 200 metres of the children’s schools;
6.The mother shall advise the father as soon as practicable if any of the children suffers any serious illness or injury and provide details of the treating health professionals and authorise such professionals to communicate freely with the father about the child’s condition.
7.The mother shall speak only positively and politely about the father to or in the presence of the children and shall use her best endeavours to ensure other people do so as well.
8.The mother shall not discuss with the children the evidence filed or given orally in these proceedings.
9.The mother shall bring the children for an appointment with the Independent Children’s Lawyer on the date and time nominated by the Independent Children’s Lawyer for him to explain the orders to the children.
10.The mother shall request each child’s school counsellor to meet with the child after the orders have been explained to them, with a view to offering them emotional/psychological support regarding the implementation of the orders; in the event that a school counsellor is unable to do so then the mother shall request that the children’s General Practitioner make a referral with a Medicare Better Mental Health Plan to a child counsellor for the same purpose.
11.The mother shall provide the professional referred to in order 10 and to the Principal of each child’s school with a copy of these orders.
Notation
In the course of these proceedings the single expert Dr E gave evidence that for the father to improve his parenting capacity and in the future to possibly seek to vary these orders so that he may spend time with the children or communicate with them more freely he should, over a sustained period of time:
a)Not engage in criminality or have any police involvement;
b)Abstain from alcohol, cannabis, amphetamines and any other illicit substances;
c)Participate in a targeted behavioural change program for men dealing with issues of family violence;
d)To engage in an emotional regulation program/anger management program such as “Taking Responsibility” offered by F Group;
e)Not to have dangerous dogs at his home
f)Have ongoing engagement with a psychiatrist to whom he has given a full and honest history of his past (including issues of drug and alcohol use and family violence in his last 2 relationships) and be compliant with treating recommendations including the taking of any prescribed medication; [sic].
The mother consented to the orders proposed in paragraphs 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of the Minute submitted by the ICL. The mother sought a more wide-ranging restraint upon the father pursuant to section 68B of the Family Law Act and proposed the following order (cf. Order 5 proposed by the ICL):
4.Pursuant to s.68B of the Family Law Act 1975 (Cth), the father be restrained by injunction from:
a.Approaching or communicating with the children or any one of them individually;
b.Approaching or communicating with mother;
c.Causing any other person to communicate with or approach the children (or any one of them individually) or the mother on his behalf;
d.Entering or remaining in any place of residence of the children or the mother, or entering or remaining within 200 metres of any such place;
e.Entering or remaining in any of the children’s schools or entering or remaining within 200 metres of any such place;
f.Entering or remaining in any place of employment of the mother or any of the children, or entering or remaining within 200 metres of any such place; and
g.Entering or remaining in any sporting facility or venue that the children may attend, or entering or remaining within 200 metres of any such place.
The mother opposed the inclusion of the notation proposed by the ICL in the orders of the court. The single expert, Dr E, gave this oral evidence by way of advice to the father as to how he could best address the deficiencies in his parenting capacity. The mother opposed this suggested notation, on the basis that the father potentially could address these matters and use such evidence to overcome a Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) preliminary barrier to a further application to spend time with the children.
In my view a future Rice and Asplund threshold argument could well involve additional considerations which would be relevant to the children’s best interests at that stage of their lives. For example, given their ages, the views of the children could well be such an additional relevant matter. I will not include the proposed notation in my orders but I will set out this evidence of Dr E in my reasons for judgment.
The father laboured under the burden of conducting his own case, in litigation which was extremely distressing for him. As I indicated at the end of the trial, I commend the father for the efforts which he made to conduct himself courteously to the court, the legal representatives, the mother and the single expert Dr E. The father had the assistance, as a Mackenzie friend, of his current partner, Ms G.
The father sought the following orders in his Response to Initiating Application filed on 14 September 2017:
1.That the children [B] born … 2005, [C] born … 2007 and [D] born … 2010 shall live with the mother.
2.That the parents shall have equal shared parental responsibility.
3.That the father shall spend time with [B] pursuant to her wishes.
4.That the father shall spend time with the children (C and D only) as follows:
(a)For the initial period of 3 months, each alternate Sunday from 10am to 5pm;
(b)For a further 3 months thereafter, each alternate Saturday from 10am to 5pm and Sunday 10am to 5pm;
(c)For a further period of 3 months thereafter (6 months from the date of making of these orders) each alternate Saturday from 10am to Sunday 5pm;
(d)For a period of 3 months from order (3c) occurring, each alternate Friday from the conclusion of the school Friday or in the case of a long weekend from Thursday until commencement of the school on Monday or Tuesday if Monday is a public Holiday or Pupil free day;
(e)Christmas Period 2017 the children shall spend time with the father as follows:
(i) Christmas day 10am till 5pm; and
(ii) Boxing day 10am till 5pm.
(f)During NSW school holidays periods at the conclusion of school terms 1, 2 and 3 commencing April 2018.
(g)From the middle Friday of the first week, children to be collected from agreed meeting point by father or his nominee. Children to be cared for by either parent or their nominee.
(h)Where Easter does not fall during NSW school holidays periods then where Easter falls on the Mother’s weekend the Mother shall spend time with the Children from Thursday after school until 10:00am Easter Sunday. The Father shall spend time with the Children from 10:00am Easter Sunday until the commencement of the school on Tuesday.
(i)Where Easter falls on the Father’s weekend then the Father shall spend time with the Children from Thursday after school until 10.00am Easter Sunday and the Mother shall spend time with the Children from 10:00am Easter Sunday until the commencement of the school on Tuesday.
(j)Where Easter falls during NSW school holiday period on the Father’s time then the Father’s time shall be suspended from 10:00am until 5pm on Easter Sunday and the Children shall spend time with the Mother from 10:00am until 5pm on Easter Sunday.
(k)Where Easter falls during NSW school holiday period on the Mother’s time then the Mother’s time shall be suspended from 10:00am until 5pm on Easter Sunday and the Children shall spend time with the Father from 10:00am until 5pm on Easter Sunday.
(l)The Children shall spend time with both parties during NSW school holiday period, at the conclusion of Term four (4) as follows
(m)Commencing at the conclusion of Term four (4) in 2018 and every alternate year thereafter:
(n)With the Mother from the conclusion of the school on the last day that the Children is required to attend school until 2:00pm Christmas Day;
(o)With the father from 2:00pm Christmas day until 5pm on 1 January 2019 and each alternate year thereafter;
(p)With the mother from 5pm on 1 January 2019 until 19 January 2019 at 5pm and each alternate year thereafter;
(q)With the father from 5pm on 19 January 2019 and each alternate year thereafter until the commencement of the school on the first day that the Children is required to resume school;
Mother’s Day and Father’s Day
5.On Father’s Day weekend if the Children is not spending time with the Father, then the Children shall spend time with the Father from 5pm Saturday until the commencement of the school on Monday and the time the Children lives with the Mother shall be suspended for this period;
6.On Mother’s Day weekend, if the Children is not living with the Mother, then the Children shall spend time with the Mother from 5pm Saturday until the commencement of the school on Monday and the time the Children spends with the Father shall be suspended for this period;
Children’s birthdays
7.For the purpose of children’s birthdays all children are to be available for a telephone call from the parent they are not residing with at 6pm the day of the child’s birthday
8.The Children shall have liberal and flexible telephone communication with both parents during the times that they are away from either parent.
Changeover
9.For the purpose of change-over of the Children, unless otherwise stated herein or agreed between the parents;
10.Where either parent’s time concludes at the commencement of school then the Children shall be returned to the Children school by that parent or their nominee;
11.Changeover of the Children at all other times shall be a designated half way meeting point as follows:
(a)Macdonald’s Suburb H.
Overseas travel
12.That should either the Mother or Father wish to travel outside the Commonwealth of Australia with the Children they will, at least sixty (60) days prior to the intended departure date, write to the other parent requesting consent for the Child to travel outside the Commonwealth of Australia, including the following details:
(a) Proposed departure and return dates;
(b)Flight details, including airline(s), forward and return flight details;
(c)An itinerary of where the Children will be staying and name(s) of any other person(s) attending;
(d) Contact details for all accommodation; and
(e)Proof of travel insurance with medical and medivac cover for the Children, and upon the provision of such information the other parent shall thereafter consent to such travel arrangements, provided that the Department of Foreign Affairs and Trade does not advise against travel to such destination and provided the Commonwealth of Australia maintains a High Commission in such Country.
13.That the Mother and Father will do all acts and sign all documents as are necessary for the Children to be issued with an Australian Passport or for such passport(s) to be renewed within fourteen (14) days of a written request by the other and thereafter held in safe custody by the mother.
14.That the mother release the Children’s passport to the Father not later than twenty-one (21) days from a written request to the Mother to do so, and the father shall return the passport to the Mother within fourteen (14) days of returning to the Commonwealth of Australia.
Other orders
15.The parties shall notify each other as soon as practicable of any serious accident or medical emergency involving the Children requiring medical treatment by a hospital or a medical practitioner whilst the Children is in his or her care including the name of the treating doctor or hospital and if known a relevant contact number.
16.The parties shall keep each other informed of all medical and other professional appointments made for the Children and any referrals of the Children from professionals including general practitioners and/or specialists and the parties shall ensure all relevant documentation regarding the Children is provided to the other parent as soon as it is available.
17.That these Orders shall act as an authority to:
(a)Any school or other educational facility that the Children may attend;
(b) All health professionals consulted by the Children;
18.To provide to the Mother and Father at their request and expense such information, reports and the like as the parent may reasonably request from time to time and the Mother and Father be at liberty to contact any medical practitioner and/or school as they see fit.
19.The parents shall:
(a)Provide to each other as soon as possible copies of any school circulars and notices and school reports as to the Children’s academic, social and behavioural progress.
(b) Obtain at their own cost school photographs of the Children.
20.By virtue of these Orders the Mother and Father shall have the right and be authorised to: Discuss matters concerning the education and scholastic welfare of the Children directly with the school Principal and teachers;
21.Receive directly from the school Principal and teachers any information as to the Children’s academic, social and behavioural progress;
22.Attend at the school or elsewhere for parents/teacher interviews, open days, concerts, and sporting carnivals and special events.
23.That the parties shall share via email any relevant information regarding the Children for example activity notices and report cards and exchange that information regularly with the other party.
24.The parents shall provide to each other the contact numbers, addresses and all other information in relation to the Children’s extra-curricular activities within seven (7) days of them enrolling the Children in any such activity.
25.Each party to be at liberty to attend all school events and all
extra curricular activities including but not limited to parent/teacher interviews, school enrolment interviews, concerts, fetes and sports days.26.The parties are not to denigrate the other party or members of the other party’s family to or in the presence of the Children and shall use their best endeavours to ensure that no other person denigrates the other party or members of the other party’s family to or in the presence of the Children.”
In his final submissions the father wrote: “I welcome any access to my children on a regular basis with the addition of orders to increase access following that I undertake the suggested courses.”
In answer to questions by counsel for the ICL, the father made clear that he appreciated that overnight time should not be introduced immediately and would best be preceded by daytime activities with the children. There was no suggestion by the father that B should spend time with him other than in accordance with her wishes.
Background
The father was born in 1980 and is currently 37 years of age. Sadly, his mother died when he was nine years old and thereafter the father had a troubled childhood. His education suffered but he developed practical skills and achieved a degree of financial success as an adult. Regrettably the father has been unable to engage in paid work in recent times, due to his depression and the stress of these proceedings.
The mother was born in 1983 and is presently 34 years of age. She, too, endured a troubled childhood but has managed to hold steady employment and cared well for the children as a single parent.
The parties began to live together in August 2001 and separated on 8 October 2013, after 12 years of cohabitation. Their relationship involved use of illicit substances and incidents of family violence.
During the relationship the father was the subject of a dangerous dog declaration, pursuant to the Companion Animals Act 1988 (NSW). According to the mother, the father then caused a dog to be purchased and registered in her name against her wishes.
In 2012 D was bitten by this dog, which had previously nipped C’s ear. D’s wounds required stitches and she has residual scarring on her face.
The father currently owns two other dogs. In answer to questions from counsel for the ICL, the father said that he accepted that these dogs pose a potential risk to C and D. He said that he and Ms G do not leave her ten year old daughter alone with these dogs. The father said “I would not have the dogs there at all if that’s what it takes”, in relation to C and D spending time at his home.
In 2013 a serious incident occurred between the parties, during which a wheel of the father’s motor vehicle passed over the mother’s legs. Details of this incident are set out below in these reasons. Most unfortunately, the child B witnessed this incident. The father pleaded guilty to certain offences and was placed on a bond pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). A condition of this bond was that the father “not assault, threaten, stalk or intimidate the mother”. A final AVO was made against the father for the protection of the mother for twelve months on 23 June 2014.
In December 2014 the father was charged with breach of Apprehended Violence Order, arising from a multitude of text messages which he sent to the mother. For example, the mother deposed that she received 23 text messages from the father on 26 November 2014 and a further 94 messages on 29 November 2014. The mother deposed further that on 28 November 2014 the father sent to her 32 messages, which included pictures of scantily clad women.
These charges were dealt with pursuant to section 20BQ of the Crimes Act 1914 (NSW), whereby the father was found to be suffering from a mental illness. The father was ordered to attend upon a psychiatrist or psychologist for as long as advised to do so by that person and to refrain from consumption of alcohol.
For the above purposes the father relied upon a report dated 13 February 2015 by Dr J, a psychiatrist. Dr J summarised his opinions as follows in this report:
The account of symptomatology described by [Mr Tilman] was considered reflective of the development of a major depressive disorder. Namely, he described a pervasively depressed mood state and diminished interest in almost all of his usual activities. He described an altered appetite. He reported insomnia. Guilt at the impact of his circumstances on his family and his children was apparent. His impairment of concentration and cognitive functioning in general was evident. He described ambivalence with respect to suicide and reported past suicidal behaviour.
Complicating [Mr Tilman’s] depressive condition was the presence of an alcohol use disorder. Namely, he reported the consumption of alcohol at consistent significant levels. Alcohol at such levels is expected to exacerbate a depressive illness and compromise his prognosis.
On 9 September 2015 the mother commenced these proceedings in the Federal Circuit Court. On 1 March 2016 interim orders were made, by consent, which provided for C and D to spend time with the father at a contact centre. These orders provided further that B would spend time with the father in accordance with her wishes. To date, B has elected to spend no time with the father.
Police were called to the home of the father and Ms G on 30 June 2016, when they argued about the removal of a dog from the premises. The father conceded that they pushed each other on this occasion. Details of this incident appear below in these reasons.
On … August 2016 Ms G called police to her home because she was concerned that the father would make an attempt at suicide. The father left the premises when police arrived and he was located the following day. The father was then scheduled to Suburb K Hospital.
On … August 2016 an incident occurred between the father and Ms G, during which he followed and hit her car with his utility. The father was charged with certain offences and, ultimately, entered pleas of guilty. Details of this incident appear below in these reasons.
The sentencing magistrate had the assistance of a pre-sentence report dated 10 April 2017, which read inter alia:
[Mr Tilman] has experienced emotional issues in relation to feelings of anxiety and depression in recent years. The offender is currently on a daily regime of anti-depressant and anti-psychotic medication, in addition to which he attends weekly counselling sessions with a mental health agency. To his credit, the offender appears cognisant of the merit in his maintaining such mental health interventions for the foreseeable future.
On 24 November 2016 a further incident occurred between the father and Ms G, as a result of which police officers attended their home. Ms G requested that the father leave her premises but he refused to do so. Police officers intervened and the father left the home, with Ms G ultimately declining to take any further action. Details of this incident also appear below in these reasons.
The evidence and witnesses
The mother relied upon her affidavit sworn on 22 January 2018 and a Financial Statement of 28 November 2017. The mother gave oral evidence in response to questions from counsel for the ICL and the father.
The respondent father relied upon his affidavit of 27 February 2016 and that of his current partner, Ms G, sworn on 13 February 2018. I allowed Ms G to give evidence in the case for the father, despite her having been present in court as his Mackenzie Friend throughout the proceedings. Obviously, that fact must have an impact upon the weight which I can attach to the evidence of Ms G. I adopted this course because I doubt that the father could have coped with the trial without her assistance. In any event, ultimately there was no objection to Ms G giving evidence from counsel for the mother and the ICL.
I had the benefit of a report dated 15 September 2016 and oral evidence from the single expert psychologist, Dr E. Counsel for the ICL and the mother and the father all put questions to Dr E in cross-examination. I commend the father for his courtesy toward Dr E, whose recommendations have been unfavourable to him at all times.
Approach To These Proceedings
In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1)). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5) of the Act. There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:
8. Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time.
9. Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
13. Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
The best interests of the children: section 60CC considerations
Section 60CC of the Family Law Act provides as follows:
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Section 60CC(2) considerations
In my view, the evidence left no room for doubt that the father has engaged in family violence. The term “family violence” is defined in section 4AB of the Family Law Act as follows:
4ABDefinition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
As noted, the father pleaded guilty to offences arising from the events of late 2013. The police Facts Sheet (Exhibit 17) read inter alia as follows (some information having been redacted):
ANTECEDENT
The accused is currently employed as a [technician] and earns approximately $130,000 per year. The accused is living with the victim and has three children.
FULL FACTS
At the time of creating the victim is currently in [L] hospital, … bruising to legs and lacerations to legs, elbows and knees. …
…
About 6:10pm on … 2013 the victim arrived home from work, when the victim entered the premises she was approached by the accused. The accused immediately started asking why she was home … late and begun to accuse her of cheating on him. The victim was holding her mobile phone in her right hand, at this point the accused has taken the mobile phone from the victims hand and proceeded to walk out the door.
The victim has followed the accused trying to grab her mobile phone back, however the accused has gotten into the driver seat of his vehicle that being a white … Ute bearing plates ... At this point the driver’s side door was still open, the victim has walked to the driver side door and tried once again to grab her mobile phone. … While the victim was leaning into the vehicle to grab her mobile phone, the accused put the car into neutral and released the parking brake, the vehicle begun rolling down the driveway. … The vehicle rolled approximately
6-7 metres down the road, …… The victim legs at this point was still hanging from the driver side door and being dragged along the ground causing lacerations to her feet, knees and ankles. The victim … as a result has fallen face first into the road landing on her elbows. …, when the victim hit the ground the rear tyre has rolled over both her legs causing immediate pain, the victim was screaming and crying in pain. The victim kept screaming over and over “My leg, My leg”.
… the witness and a neighbour have then run to where the victim was lying on the roadway. At this point the accused stopped the vehicle and approached where the victim was laying and tried to help her up however the witness and neighbour yelled for the accused to get away. The accused has then gotten in his vehicle and moved it back to the driveway. The accused has walked down the street in order to try and help the victim get back to the house.
The victim has then tried walking back to her house, when police arrived.
…
…
…
In cross-examination the father disputed that his car rolled six to seven metres and claimed that the correct distance was “one and a half houses”. He alleged that his utility rolled in a circular direction because the mother had hold of the steering wheel. He maintained that both parties were to blame for this incident, as he could have braked and the mother was at liberty to let him drive away at any time.
In my view, the father clearly directed family violence at the mother on this occasion. As noted above, B witnessed this event and has elected since to spend no time or have any communication with the father. In
cross-examination the father agreed that B has been “significantly affected” and “emotionally scarred” by this experience.
In my view, the father also engaged in family violence toward the mother when he sent multiple text messages which led to the charge of breach of Apprehended Violence Order. In cross-examination the father accepted that his texts were “rude, intimidating and inappropriate” and that he made a threat to the mother in one of these messages. This threatening message was sent to the mother on 25 November 2014 and read as follows:
You better give me the kids then fuck off for real before they get you! You dirty fuck! You’ve made me look like a fuckwit! People are ringing me telling me you’re a whore and slept with such and such. I’ve got pictures, messages and recordings that prove you’ve been sleeping around.
In her affidavit the mother made more generalised allegations of physical, verbal and sexual violence directed toward her by the father. These allegations were not placed in time and lacked particularity. I agree with the submission of counsel for the ICL, to the effect that no findings of fact are open in relation to these allegations.
I am satisfied to the requisite standard, and I find, that the father has subjected the mother to family violence. Unfortunately, the evidence indicated that he has also subjected his current partner Ms G to family violence. I am conscious, however, that there was no evidence of any violence in the father’s current relationship since 2016. Both the father and Ms G maintained that he has benefitted from a productive engagement with a counsellor in recent times.
In June 2016 the father and Ms G argued over the removal from their home of a dog, which had begun to show savage behaviour. A COPS entry dated 30 June 2016 read as follows:
About 9.00 am on …/6/16 at the location the PN and the victim had a verbal argument in relation to issues with the PN dog. The victim had called council enquiring about surrendering the PN dog as it was becoming aggressive. This angered the PN resulting in both parties face-to-face arguing. At this stage both parties have become involved in a physical altercation where both parties have allegedly pushed each other. The PN has then left the room and the victim has later attended a police station at the request of the victim’s friend. About 10.20 am on …/6/16 the victim attended [Suburb K] Police Station to report the matter. Police obtained details of the incident and cited nil injuries to the victim. The victim further stated that she did not wish to make a statement in relation to the matter and was reporting the incident as she believed the PN would also report the matter. Police have later attended the location to speak to the PN but he was not at the location. Police called the PN multiple times but when identifying themselves the PN has terminated the call. Police cannot determine and aggressor in the matter therefore are unable to apply for an AVO.
In cross-examination the father said “I got emotional and it got physical” and conceded that he and Ms G “may have pushed each other” on this occasion. The father also conceded in cross-examination that he gave incorrect information to Dr E, when he said that there was no violence in his current relationship.
A concerning incident took place between the father and Ms G on … August 2016. The father was angry and upset after a visit with C and D at the contact centre. By his own admission, he exceeded the speed limit of 100 kilometres per hour during the drive home from the contact centre. He conceded that he was “driving aggressively” and that Ms G told him that she was concerned for her safety. The father and Ms G argued after they arrived at their home and she left the premises with her two children. She took her children shopping and insisted that the father remain at home “to cool down”. The father said to her “You are up to something again you slut. You whore.”
The father pursued Ms G and, according to a Police Facts Sheet (Exhibit 17), the following events then occurred:
Whilst travelling along [M Street] the victim looked in her rear vision mirror and observed the accused vehicle to be travelling in her lane directly behind her. The victim observed the accused vehicle to be quickly approaching the rear of her vehicle. At this time the victim the victim (sic) fearing that the accused vehicle was going to collide with the rear of her vehicle has quickly accelerated in an attempt to place further distance between her vehicle and the accused vehicle. The victim has again looked in the rear vision mirror and observed the accused vehicle to be travelling that close to the front of her vehicle she could not see the front of the vehicle.
The victim estimated that the front of the accused vehicle was less than 1 metre in distance away from the rear of her vehicle. At this time Young Person [N] has expressed concerns as to how close the accused vehicle was and stated, “Jesus look how close he is”. As the parties approached the intersection of [M Street] and [O Street] [Suburb K] the victim has changed lanes moving from the middle lane to the outside lane and continued travelling along [M Street]. The accused changed lanes and continued closely following the victim.
A short time later the victim has approached the intersection of [P Street] and [Q Street] and completed a left hand turn onto [Q Street] and approached the intersection of [Q Street] and [R Street]. This intersection is controlled by a roundabout. The victim came to a complete stop at the intersection and was the first vehicle in the queue. The victim could then hear the sound of screeching tyres and looked in her rear vision mirror and observed the accused had slowed down and was approximately 10 metres back from her position. The victim noticed smoke coming from the rear of the accused vehicle with the rear of the vehicle swaying from left to right.
Suddenly the victim felt her vehicle being pushed forward. As a result of the impact of the collision the victims sunglasses have fallen off her head into the passenger’s side foot well area. The victim vehicle was also pushed forwards into path of oncoming vehicles. The victim immediately looked in her rear vision mirror and observed that the front of the accused vehicle had collided with the rear of her vehicle. The victim has made a left hand turn into [S Street] and come to a complete stop outside the heritage building located directly outside the Suburb K Arts Centre. The victim check on the welfare of the other occupants of the vehicle.
…
Whilst walking back to her vehicle the victim could again hear the noise of screeching tyres. The victim looked back in the direction of the accused vehicle and observed a large cloud of smoke coming from the rear of the accused vehicle. Suddenly the rear of the accused vehicle spun around 180 degrees with the accused vehicle travelling along the incorrect side of the road on [S Street] before entering and travelling on the incorrect side of the road through the roundabout travelling against the normal direction of travel on to [Q Street] and out of view.
In cross-examination the father denied aspects of this account of the incident but conceded that he put Ms G and her children in danger by his conduct. The father conceded that the children of Ms G may have heard him call her a “slut” and a “whore”. He conceded further that he was “a terrible role model to her children that day”. The father accepted that his actions were the result of “blind rage” and that he “had lost complete control”.
After this incident the father left home for three days and, following discussions with a friend, he admitted himself to a mental health unit. In September 2016 the father began to attend upon psychologists at an organisation known as T Group.
A further incident occurred between the father and Ms G on 24 November 2016, which resulted in police officers attending their home. While the father was intoxicated, he and Ms G argued over her insistence that he leave the premises. In cross-examination the father conceded that Ms G “might have felt intimidated because we were yelling” and that “this was an extreme example of poor role modelling for her children.” Police officers took out an interim Apprehended Violence Order for the protection of Ms G. She required no further police action after the father left the premises.
I am satisfied, and I find, that the father has subjected Ms G to family violence. As noted, however, there was no evidence of family violence in this relationship since 2016.
Dr E assessed that the children “are at ongoing risk of harm from exposure to future family violence in a situation where they have been exposed to significant family violence in the past.” In her report Dr E opined as follows:
132.In my view the father has extremely limited insight and impaired capacity for impulse control. Combined, this means I think there is a very real risk that the mother and children are at risk of future and ongoing violence from him. I think that it is most likely to be in the form of stalking and unwanted harassment, verbal altercations but I cannot be sure that would not also include physical altercations.
Dr E expressed concern at the father’s account to his psychologist of the incident involving Ms G and her children on … August 2016. Notes for a session with a T Group psychologist on 25 October 2016 stated “fined for speeding” in relation to this incident. In her oral evidence Dr E said “I was disturbed by the father telling his psychologist “fined for speeding”. This suggests that he is not taking responsibility.”
Dr E said also: “I have concerns about the relationship of the father and [Ms G]. I see the car incident as quite horrific domestic violence. To me, it is the worst possible prediction of the father’s propensity to engage in family violence.”
In response to questions from counsel for the ICL, Dr E opined that it would be necessary for the father to take the following steps if he is to spend time and communicate with the children in the future:
●not engage in criminality or have any police involvement
●abstain from alcohol, cannabis, amphetamines and any other illicit substances
●participate in a targeted behavioural change program for men dealing with issues of family violence
●engage in an emotional regulation program/anger management program such as “taking responsibility” offered by F Group
●not to have dangerous dogs at his home
●have ongoing engagement with a psychiatrist whom he has given a full and honest history of his past including issues of drug and alcohol use and family violence in his last two relationships and be compliant with treating recommendations including the taking of any prescribed medications.
In his cross-examination, the father asked Dr E for her advice as to where he could find practitioners who would provide this assistance. She said, inter alia, “[F Group] would be a good place to start” and emphasised to the father that would be necessary for him to be completely open and honest with his counsellor.
In my view, C and D probably have a meaningful relationship with the father at this point. They have spent time with him since 2016 and C expressed to Dr E a clear wish to continue to see him. D was ambivalent in the views which she expressed to Dr E but she offered no outright opposition to continuing to spend time with the father.
Of course, Dr E saw the children some eighteen months ago and before they had spent regular time with him at the contact centre. It may well be that they have developed a stronger and more validly based wish to spend time with the father during that period.
In her report Dr E expressed these opinions as to the nature of the relationship between C and the father:
149.With respect to his father, I think that [C’s] relationship is somewhat complicated. As mentioned earlier I think that [C] yearns for his father’s attention in a particular way. I am not sure whether the source of this yearning for his father’s attention is an attempt to placate his father’s mood or whether it reflects [C’s] desire for an exclusive one-on-one adult attention and particularly around male related activities. However, on questioning and on observation the depth of [C’s] memories with his father was somewhat limited. He recalled only things such as birthday presents and rare or occasional times when his father engaged in particular activities with him. [C] had no recollection of his father being involved in the more ordinary aspects of his life, such as taking him to school, doing homework, reading stories or being part of the morning or evening routine. I think therefore that it is most likely that [C] has a fantasy projection about an idealised father and he longs for this sort of interaction.
In her oral evidence Dr E said words to the effect: “[C] now has a connection with his father. It is a real predicament with how to have the children cope with what has happened ….” Dr E here referred to the fact that the children have been spending regular time with the father.
In her report Dr E opined that D has “an ambivalent relationship” with the father. Dr E observed that:
… she has limited personal memories of time with her father and is highly influenced by the reactions of others to her father, including her brother. However, [D] is a rather open and accepting child and it appears to me that she will accept affection and attention from any well-meaning adult.
Section 60CC(3) considerations
I have referred above to the evidence of Dr E in relation to the views expressed to her by C and D in August 2016. As noted, Dr E opined that C’s wish for a relationship with his father contained elements of fantasy at that time but has evolved into a real connection after regular time at the contact centre.
D also has spent regular time with the father at the contact centre since she was interviewed by Dr E. D has not attended all visits but she has been present on a significant number of occasions. As submitted by counsel for the ICL, the contact centre reports are indicative of a developing relationship between D and the father. For example, the contact report for 11 September 2016 read as follows inter alia:
Physical contact was more frequent between [Mr Tilman] and [D] than it was between [Mr Tilman] and [C]. [Mr Tilman] initiated the majority of the physical contact which was always either playful or affectionate. [Mr Tilman] remained in close proximity to [C] and [D] throughout the entirety of the contact. The children responded positively to all physical contact initiated by [Mr Tilman].
The contact report for 9 July 2017 read as follows inter alia:
During the contact visit, I observed a high frequency of physical contact being initiated. The physical contact was initiated by [Mr Tilman] and the children. The physical contact from [Mr Tilman], [C] and [D] was loving and playful. I observed a moderate amount of hugs and kisses from [Mr Tilman] towards [C] and [D]. I observed [D] and [C] to respond positively towards the physical contact as they also initiated and reciprocated the physical contact.
This contact report read further as follows:
[Mr Tilman] initiated majority of the verbal interactions first during the contact visit. I observed the verbal interactions to be ongoing and at a high frequency. The verbal interactions were age appropriate and mainly focussed on [D] and [C’s] well-being, food and play. [Mr Tilman] and the children spoke in a natural to playful tone of voice. Smiling, laughter and excitement was observed by [Mr Tilman] and the children when playing outside and playing hide and seek. I observed [C] and [D] to respond positively through facial expressions, talking, giggling and laughter towards the verbal interaction.
The contact report for 7 October 2017 read in part as follows:
The physical contact was initiated by [Mr Tilman] with the children during the visit. There was frequent physical contact between [Mr Tilman], [C] and [D] throughout the contact visit. The physical contact was caring and affectionate from [Mr Tilman]. [C] and [D] appeared comfortable with the physical contact [Mr Tilman] showed them during the visit. [Mr Tilman] was in close proximity to [C] and [D] at all times throughout the contact visit.
This contact report read further as follows:
[Mr Tilman] and the children played UNO together which [Mr Tilman] made the children laugh as he took extra cards to let them win. [D] initiated the hide and seek with [Mr Tilman] and [C]. The attendees played Connect four on a couple of occasions during the visit. [D] also initiated the nought and crosses play with [Mr Tilman]. The play was fun and the children laughed as [Mr Tilman] joked around at every opportunity.
B has attended none of the contact centre visits with the father. She described to Dr E the incident between the mother and the father on 8 October 2013. Dr E reported as follows:
99.I was watching [B] carefully as she was recounting this. She became flushed, appeared to have other indicators of physical anxiety such as being very agitated in her hand movements. Her hands and fingers were twisting and she had appeared to have difficulty staying calm. She was not crying but appeared to be hyperventilating.
B described to Dr E her reaction to the father watching her and her brother and sister entering their school in the mornings. Dr E reported:
100.I asked [B] about other incidences that had frightened her. She said that once she and her brother and sister were walking into before school care and her father would “just park there just to watch us”. She said that sometimes they had to walk in before school care the back way so their father would not see them.”
Dr E raised with B the prospect of her seeing the father on the day of the interviews. She reported as follows:
104.I asked [B] a little more about her father. She said that she could not remember very many positive things and felt that her father was always at work or in the garage. Again, when I returned her to this line of questioning she became notably physically anxious. She said that she could not possibly see her father today or she felt that she would vomit and become very sick. She said that she sees her father’s brother and “he is really nice”. However she indicated that her paternal uncle looks a lot like her father and it can be hard “even to stare at him”. I asked her if she had any worries today about running into her father and said that she is worried “about dad and [C]”. I asked her specifically what she was worried about and she said “That dad will try to convince [C] to come and live with him.”
The father has showed great determination in his pursuit of a relationship with the children. As submitted by counsel for the ICL he has attended visits at the contact centre for 16 months, in circumstances which must have been difficult for him and the children.
The father conducted his case as a litigant in person, having previously spent a considerable sum on legal costs and then being unable to secure legal aid assistance. The experience of conducting his own case was patently distressing and difficult for the father but, as noted above, he displayed courtesy to all other participants in the process.
The father has paid minimal child support of $24 per week for some time and, in fact, he has not held paid employment since at least the time of the interviews with Dr E. I accept that the father’s psychological state has significantly curtailed his capacity to earn income and contribute to the financial support of the children. The father gave evidence that he has prospects of employment and that he would return to work immediately, in the event he is able to spend regular time with the children. He said that he had “no idea about what [he] would do about work” if he is not able to spend regular time with C and D.
I did not interpret this evidence of the father as an indication that he is prepared to provide financial support for the children only on condition that he is able to spend regular time with them. In response to a question from counsel for the ICL, the father stated clearly that he accepts that he has a financial responsibility toward the children. In my view the father perceived regular time with the children as a motivation for leading a constructive lifestyle or, in his words, as “a reason for getting out of bed in the morning”.
The mother’s Financial Statement of 20 November 2017 indicated that she is employed at L Hospital and earns a net wage of $938 per week. She receives government benefits totalling $223 and child support of $24 per week. The Financial Statement demonstrated that the mother manages to live within her means and support herself and the children, in circumstances which could not be easy for her.
C and D now have been spending time with the father on a regular basis for some 16 months and numerous contact centre reports refer to warm interactions between them. In my view, it is reasonable to infer that a sudden cessation in this contact would be puzzling, and perhaps distressing, to the children. A termination of this contact probably would impact more strongly on C than D, given his current connection with the father.
The expert evidence suggested that a cessation of the children’s time and contact with the father would have a beneficial effect on the mother’s parenting capacity. Dr E opined as follows:
133.In addition to the direct impact on the children of ongoing exposure to physical violence and the concomitant impact on their psychological health, I think the children are also adversely affected by the impact of family violence on the mother and its effect on her parenting capacity. In my view the mother has symptoms of
post-traumatic stress disorder (PTSD) and likely a depressive illness, which has been exacerbated by the father’s treatment of her, both during the marriage, at separation and subsequent to separation. Unfortunately, I think that these events have led to a deterioration in the mother’s mental health and coping capacity to the extent that I think it adversely impacts on her parenting. While I think that the mother has done an admirable job of constructing a child-focussed daily routine, I think at times she has been so overwhelmed and exhausted by dealing with the father’s intrusions that she has had somewhat limited resources to tolerate the children and their developmental demands and needs. Consequently, if the mother were to be continually exposed to the father’s violence, either in the form of direct violence or the form of ongoing unwanted harassment then this would continue to have an adverse impact on her parenting. Conversely, if it were possible for the mother to be free from such experiences, then I think this may give her the opportunity to recover from the violence to which she has been exposed.”In her oral evidence Dr E said that she remembered the mother “because her anxiety was so visible” on the day of the interview process. Dr E said that, on the morning of the interviews, she arrived early at her office and observed that the mother was “roaming the street, terrified of running into the father”. She explained that a person with PTSD “often presents as flat, detached and disengaged” and observed that “the prospect of being questioned by the father would put her in a survival mode”.
It is a real concern that the father has expressed suicidal thoughts in the past, most recently on 7 August 2016. The father described two suicide attempts to Dr J, during a psychiatric assessment on 9 February 2015. Dr J reported as follows:
At the time of his attendance, he expressed ambivalence with respect to the prospect of suicide, explaining that three months prior to his attendance he took sleeping pills and left the gas on in the kitchen. When he was woken, he was foaming at the mouth …
Dr J reported further:
On another occasion he tried to “gas (himself)” in his car. Security guards had found him at [U] Shopping Centre. He was conveyed by ambulance to [Suburb V] Hospital. [Mr Tilman] walked out of hospital without being psychiatrically assessed.
The father’s has expressed suicidal thoughts most recently on his own account, after the incident involving Ms G and her motor vehicle on … August 2016. The father said that he did not have a plan for taking his life and that he admitted himself to a psychiatric unit after he and Ms G discussed the incident.
Only some three weeks earlier, the father expressed suicidal thoughts to Ms G and police officers when they attended their home on … August 2016. The COPS entry read as follows inter alia:
At about 10.25 pm on … August 2016 police were called by the POI’s girlfriend … as the POI had threatened to kill himself by drinking high grade cleaning products or by suffocation with a plastic bag. The POI entered the garage with plastic bags, alcohol, paper and pens. The POI locked the garage doors at both entrances so the informant could not get in. When the witness asked the POI what he was doing what he was doing with the plastic bags he replied “Why do you think I won’t do it?” The witness took this to mean he was asking her if she believed he wouldn’t kill himself. The victim contacted triple zero as she had strong concerns that the POI would harm or kill himself. The POI heard the victim on the telephone and left the premises saying to the witness “Thanks a lot [Ms G]”.
After this incident the father was scheduled to Suburb K Hospital.
In cross-examination Ms G agreed that she called the police because she was concerned that the father would commit suicide. She said that she did not know why the father was “so upset” on this occasion.
To the father’s credit, he has engaged with psychologists at T Group providers since September 2016. He indicated that he has found these sessions to be of considerable benefit. In a report dated 17 January 2018 psychologist Mr W wrote, inter alia:
[Mr Tilman’s] treatment is centred on alleviating the depression and suicidal ideation following interpersonal issues with his then partner [Ms Fleming]. Their turbulent history led to a diagnosed condition of adjustment disorder with depressed mood. [Mr Tilman’s] mood was of a depressed nature and sessions were based around alleviating its symptoms.
Mr W reported further:
[Mr Tilman] is still very easily agitated due to the process he has become involved with and the longer this process continues we will continue to support him through the better access systems. His suicidal ideation is no longer present and with continued therapy his depression has lifted.
Dr E expressed concern that the father had not fully acquainted Mr W with his history of family violence. It may well be that the father has failed to provide full details of his history to the T Group psychologists. Nonetheless, I give credit to the father for his attempts to address his issues with these practitioners.
In my view, the contact centre report dated 10 February 2018 gives rise to concerns in relation to the father’s capacity to provide for the psychological needs of the children. This report described a conversation between the father and the children as follows:
[Mr Tilman] said to [C] “This might be our last contact day [C]? but we’ll be alright.” [C] responded to [Mr Tilman] “Yeah” [D] asked [Mr Tilman] “What’s wrong? Why don’t you come to my place?” [Mr Tilman] responded to [D] “I don’t like this place. I can’t because mum doesn’t like me.” [Mr Tilman] said to [D] and [C] “We have ten minutes left. This might be the last ten minutes forever.” [D] and [C] did not respond as they looked down.
Dr E was asked by the father to comment upon this conversation. She said words to the effect:
I suggest that you should have said nothing about that topic to [C] and talked about things he likes to talk about. You would want him to have happy memories of you and want to reconnect with you as an adult.
I consider that additional matters of concern arose from the contact centre reports, in terms of the father’s capacity to protect the children from the adult conflict. For example, the reports contained the following comments by the father to the children:
10 December 2016
You know this is the last time I see you before Christmas. I bet your mum finds that amusing.
28 August 2016
What about mum, does she say nasty things about me?
The father admitted that he referred to a contact centre worker as “a little slut” in the presence of the children. This comment appeared in the contact report for 22 January 2017.
The report of 16 September 2017 indicated that D asked the father “why did you run over mum’s legs?” The father said “it’s a long story”. D then told the supervisor that the father “broke their mum’s legs on purpose”. The father then said to D “well the story actually is that mum jumped in the car, I wish she’d tell you that”.
In the past, each of the parties has used illicit substances. On 1 March 2016 orders were made for chain of custody urinalysis drug testing. Both parties have failed on occasions to comply, in a timely manner, with requests by the ICL for urinalysis. On balance, however, I am satisfied that use of illicit drugs is not a current issue with either of the parties.
Counsel for the ICL submitted that there are “some very positive aspects of the father”. He said words to the following effect in relation to the father:
●he clearly loves the children and has a particularly close relationship with [C]
●there are many positive aspects of the contact reports
●he has attended visits for a long period of 16 months and was very committed. These visits must have been difficult for the father
●the father’s conduct during the hearing
●his questions to [Dr E] were very child-focussed
●he has probably got on top of his drug problem.
The presumption of equal shared parental responsibility
I have found that the father has engaged in family violence, which means that the presumption of equal shared parental responsibility has no application. I am satisfied further that this presumption is rebutted by evidence that equal shared parental responsibility would not be in the best interests of the children.
I have referred above to the evidence of Dr E as to the impact of interaction with the father upon the parenting capacity of the mother. She is the unchallenged primary residence parent, thus there is a need to safeguard and maximise her capacity to provide for the needs of the children. The evidence persuades me that there is a high probability the mother’s parental capacity would be impaired in the event that she is required to consult and attempt to reach agreement with the father in relation to issues concerning the children.
I will accede to the proposals of the mother and the ICL and make an order that she has sole parental responsibility for the children. That outcome seems particularly appropriate in relation to B, who has elected to spend no time or have any communication with the father since she witnessed the incident in 2013.
As there will be no order for equal shared parental responsibility, I am not required to consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with each of their mother and their father. I am at liberty to determine directly what orders are in the best interests of the children.
Conclusion
Section 60CC(2) leaves no room for doubt that protection of children from harm takes priority over the benefit of a meaningful relationship with both parents. I am satisfied that the father still has some way to travel on his journey toward impulse control, anger management and real insight into the needs of the children. I commend the father for the efforts toward
self-improvement which he has made to date and I hope that he takes heed of advice of Dr E.
I place considerable weight upon the expert evidence of Dr E in relation to the impact upon the parenting capacity of the mother of forced interaction with the father. As noted, she is the unchallenged primary carer and must be afforded the opportunity to fulfil that role to the best of her ability.
I do not exclude the prospect that the father may address his problems and assume a significant role in the lives of the children in the future. He has been provided with a pathway by Dr E, as well as the practical suggestion that he could begin this process with an approach to F Group.
At this stage, however, I am not satisfied that the children would be free from risk of physical and psychological harm in the unsupervised care of the father. He has a history of perpetration of family violence, suicidal ideation and failure to protect the children from exposure to parental conflict. Even under the scrutiny of staff of the contact centre, the father engaged in inappropriate conversations with the children.
I share the concerns of Dr E in relation to the prospect of Ms G as a supervisor of the children’s time with the father. Dr E said words to the effect:
I am very concerned about her ability to be assertive with the father and protect the children. Also potentially she is the victim of violence and may try to keep the peace. She may want to protect the relationship with the father over the protection of the children.
I appreciate fully that C, and probably D, wish to continue to spend time with the father. I appreciate fully also the father’s desperation to spend time with the children but I cannot make such orders so as to provide him with a reason to lead a constructive lifestyle. Ultimately, I am required to make orders which are in the best interests of the children.
I will make orders substantially as proposed by the ICL but I do not see any utility in paragraphs 7 and 8 of that Minute. Such orders would be incapable of enforcement. Of course, the mother should refrain from denigrating the father to or in the presence of the children in their best interests. In reality, however, there is no means of ensuring that the mother complies with such orders.
I will not make all of the orders, pursuant to section 68B, which were sought by the mother. In my view, the orders proposed by the ICL are sufficient to protect the mother and the children and are supported by the evidence. In the event of any future difficulties with the father, it is open to the mother to apply for an apprehended violence order pursuant to State legislation.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 6 March 2018.
Associate:
Date: 6 March 2018
- AGLC
- Fleming and Tilman [2018] FamCA 131
- Case
- [2018] FamCA 131
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary issue of which parent should have parental responsibility for the children and where the children should live. Further, the court had to consider the nature and extent of any contact, if any, the father should have with the children, and whether any restraining orders were necessary to protect the children and the mother. The court also considered the practical mechanisms for communication and the provision of information regarding the children's well-being.
Stevenson J ordered that all existing parenting orders be discharged. The mother was granted sole parental responsibility, and the children were ordered to live with her, with no time spent with the father. Communication between the father and children was significantly restricted, requiring the mother to facilitate the reading of cards, letters, and gifts by a school counsellor or a nominated alternative, and to provide a post office box for such correspondence. The father was restrained from including inappropriate material in his communications. The father was also restrained from approaching the children, the mother, or their residence and school, and from communicating with them otherwise than as prescribed. The mother was ordered to inform the father of any serious illness or injury to the children and to provide health professional details, authorising the release of information. The court also made detailed orders regarding the explanation of the orders to the children, psychological support, and the provision of copies of the orders to relevant parties. Finally, the mother was permitted to apply for passports and travel internationally with the children without the father's consent.
Orders
Orders of the court
1.
All existing parenting orders in relation to the children:
● B born on … 2005
● C born on … 2007
● D born on … 2010
(“the children”) are discharged.
2.
The mother has sole parental responsibility for the children.
3.
The children live with the mother.
4.
The children spend no time with the father.
5.
The father and the children communicate with each other as follows:
5.1 the father may send cards, letters and gifts to the children on their respective birthdays and at Christmas in each year
5.2 within seven (7) days of receipt of such cards, letters and gifts the mother request that the children’s school counsellor read such communications and authorise their reading to the children if the school counsellor deems their contents to be appropriate for that purpose
5.3 in the event that the children’s school counsellor is unable or unwilling to offer assistance in accordance with Order 5.2, the mother nominate another person to carry out those responsibilities within seven (7) days of her becoming aware of the unavailability of the children’s school counsellor
5.4 within 28 days of the date of these Orders, the mother nominate to the father a post office box address to which he may send letters, cards and gifts to the children in accordance with Order 5.1 and the mother retain that post office box until the child D attains the age of 18 years
5.5 the mother check the contents of the post office box not less than 72 hours before and 72 hours after the events prescribed by Order 5.1
5.6 the father is restrained from including any material concerning the mother and/or these proceedings in the material prescribed by Order 5.1.
6.
Pursuant to section 68B of the Family Law Act 1975 the father is restrained from:
6.1 approaching any of the children
6.2 communicating with the children otherwise than as prescribed by these Orders
6.3 approaching the mother
6.4 communicating with the mother otherwise than as prescribed by these Orders
6.5 entering or remaining within 200 metres of the residence of the children
6.6 entering or remaining within 200 metres of any school attended by one or all of the children.
7.
The mother advise the father:
7.1 as soon as is practicable of any serious illness or injury suffered by the children
7.2 of the names and contact details of the health professionals who deal with such illnesses and injuries and authorise those practitioners to provide to the father all information which he may request in relation to the child’s health.
8.
The mother do all things necessary to cause the children to attend an appointment with the ICL for the purpose of explanation of these Orders.
9.
9.1 The mother request each child’s school counsellor to meet with the child, after the appointment with the ICL prescribed by Order 8, with the intent of offering psychological support in relation to the implementation of these Orders.
9.2 If the children’s school counsellor(s) are unable or unwilling to offer assistance as envisaged by Order 9.1, the mother request a referral from the children’s general practitioner for a Medicare Better Mental Health Plan to a counsellor for the same purpose.
10.
The mother provide a copy of these Orders to the practitioner prescribed by Order 9 and the principal(s) of the children’s school(s).
11.
11.1 The mother is permitted to apply for and obtain passports for the children without having first obtained the consent of the father.
11.2 The mother is permitted to travel outside of the Commonwealth of Australia with all or any of the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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