Children will not benefit from relationship with parent
Merritt & Richards (No 2)  FamCA 66 (11 February 2016)
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/66.html
FAMILY LAW – PARENTING AND PROPERTY PROCEEDINGS – Undefended.
FAMILY LAW – PARENTING – Father violent justifying specific injunctive orders to complement intervention orders that permit him to make arrangement including negotiation of child contact matters – Orders mean that the father has to apply to the Court.
FAMILY LAW – PROPERTY – Limited property and father may have hidden assets – All property otherwise in the power or control and ownership of the mother – Father’s only interest in property is small sum of superannuation – Orders that there be a splitting order to transfer those interests to the mother.
- This relationship was infected with family violence as a number of illustrative examples shows. In 2005, the father was violent to Mr I (the mother’s adult child) and made threats to assault the mother and the maternal grandmother. In 2008 he smashed the windscreen of the mother’s new car when she, C and D were in it. In May 2009, the father assaulted the mother’s child Mr I and the police charged him with offences. That assault took place in the presence of F, C and D. The Department of Health and Human Services also became involved with the family and that precipitated an assault on the mother by the father where he grabbed her by the throat and demanded that she tell the Department that the May 2009 incident was Mr I’s fault. The mother’s evidence was that the school had taken the matter up with the relevant welfare department.
- The father assaulted Mr I in December 2009 and damaged the mother’s vehicle in the presence of F, D and E.
- The father’s behaviour in January 2010 and thereafter was similarly appalling. In January 2010, he grabbed the mother by the throat and tore up a document relating to the purchase of the property at G Town. In March 2010, the father hit Mr I. He was charged with assault in relation to that incident. In August 2010, the father assaulted his son Mr K who was then aged 20. In 2011, the father stabbed a kitchen table several times with a screwdriver in the presence of F, C, D and E and the mother and threw a computer mouse through the kitchen window, breaking the window.
- In July 2011, the father verbally abused the mother, F, C, D and E and then smashed his iPod and threw his telephone away.
- In June 2012, the father punched the mother, grabbed her by the hair and tried to drag her to a car. He then kicked and punched her when she resisted. He drove off with F, C, D and E in the car and made threats toward their lives and the life of the mother’s dog.
- In August 2012, the father made threats that he would send “bikies” around and in November 2012, he slammed a car door on to the right leg of the mother and then threw gravel at her car as she drove away with C, D and E as passengers.
- It is unnecessary that I detail the precise evidence as the mother set it out in her affidavit. The father has had access to that evidence and chosen not to dispute it. The father’s language towards and in the presence of the children was appalling. This was language of a denigrating nature. Much of this behaviour as detailed in the mother’s evidence is reflected in the evidence of the experts to whom I turn below. Their evidence is telling regarding the impact of the conflict on these children. As the father filed no evidence, I have accepted that he does not dispute what she has said. On that basis, I find no reason to doubt the evidence of the mother. The instances of abuse are chilling.
- The father, as an interstate driver, was only at home one or two days per week. He spent little time with the children and was rarely involved in their activities. He had no interaction with the children’s peers or their parents. All of the decisions regarding the care of the children and addressing their problems were dealt with by the mother. The father refused to have the children immunised. He did not attend the day care. His attendance over five years at kindergartens was minimal. He attended school only on the first day. Whilst that might have been understandable if he was working full-time, the evidence supports a conclusion that he was not particularly interested in any of the activities of the children. All of that meant that the mother was left with the responsibility for making all of the significant decisions in the lives of the children.
- The unchallenged evidence is that C has problems at school. His performance is poor and he requires a teacher’s aide. He requires the attendance upon certain allied health professionals.
- A potential step towards an improvement of C’s health and outlook was available to the parents’ but the father refused to cooperate. A situation that allows for such an outcome cannot be allowed to continue.
- D has learning difficulties and requires fortnightly speech and occupational therapy.
- E is a good student.
- Ms N was commissioned to writer a family report by the Federal Circuit Court but was unable to interview C or the mother in person as C would not separate from the mother. It was observed that E said she was “not sad about not seeing” her father and did not want to see him because C and her mother would be unhappy if she did. She said she was not seeing her father “because he was mean” and that she had been informed of incidents of violence perpetrated by him. D did not wish to see the father because, as she said, “he hurts us” and “he is mean”. D said that her father had not hurt her but had shut her mother’s leg in a door. She noted that her mother did not want them to see their father and that “if we’re naughty she says we have to go live with dad”. She said “C definitely doesn’t want to see [the father] because he is afraid he will get hurt”.
- It is significant that the children have witnessed the family violence and are affected by it. The car door incident report of D corroborates the mother’s version of events.
- Ms N had the benefit of a report of psychiatrist Dr O. He considered the incidents acknowledged by the father, which appear to have been discussed when Dr O interviewed the father, to be “very concerning as is his use of violence as a form of discipline”. Dr O’s view was that ongoing unsupervised time between the father and the children was contraindicated for psychiatric reasons.
- Dr O had opined that there was sufficient evidence indicating that the father suffers from some form of mild-to-moderate Antisocial Personality Disorder. Dr O opined that this “would appear to be a significant factor” affecting his ability to “consistently provide positive parenting without impulsive and reckless relapses into inappropriate verbal and physical behaviours”.
- The report of Ms N was not without its criticisms and expressions of concern about the mother. She noted the Department of Human Services had been involved with the family and had substantiated evidence of the father’s violence toward Mr I but the mother had not notified them. That, she thought, raised questions about the mother’s capacity as a protective parent. She was also concerned that the mother discussed family violence incidents with the children which the children otherwise had not witnessed.
- Ms N expressed concern about the mother’s reactions to the children when frustrated, including screaming, swearing and telling the children that if they were naughty, they would have to live with the father. In fairness, the mother acknowledged that was an inappropriate threat and she is addressing it in counselling.
- Ms N was not able to observe the children with the father, which made formulation of recommendations difficult. The absence of the father and his lack of material to support any resolution of the parenting problems, particularly with the major issues of the children’s health, indicates that Ms N probably did not need to make further assessments. She recorded the mother’s stance that the two girls might be willing to see their father in a supervised setting. In my view, it is difficult to see how supervised visits could benefit the children.
- All of the evidence of Dr L, Ms M and Ms N corroborates the evidence of the mother that there are significant problems for these children. Disruption of their routine is unlikely to be helpful to their development. Worse still, these children have witnessed significant conflict and have made their views clear that there is little if any benefit in any relationship for them with their absent father. The evidence is therefore of assistance particularly on the question of some form of injunction precluding the father endeavouring to negotiate some parenting arrangement with the mother. Ms N noted that the mother was “stressed” by the anticipation of visits by the father. That stress is not something that the mother should have to experience, given its impact upon the children.
- All of these children are on the waiting list for counselling. Since the separation in 2012, the father has had nothing to do with the children, who refuse to speak to him. He also has not contributed child support since September 2013 and there is an outstanding child support obligation.
- In respect of child support, the mother had sought an order under s 123A of the Child Support (Assessment) Act 1989 (Cth) but ultimately decided that enforcement of the current assessment might be better sought through the Child Support Agency. In any event, the father has shown little interest in the children’s financial welfare.
- Involvement by parents must be seen to be advancing the welfare and development of their children. It is difficult to see here what the father has to contribute. To the extent that the legislation considers that meaningful involvement of parents in the lives of their children is important, the amendment to s 60CC(2) in 2012 makes clear that if that sort of relationship clashes with the need to protect children from harm, the latter must take precedence. This is such a case.
- I respectfully adopt and agree with the views of Murphy J. It is a serious step to exclude a parent from both a child’s life but also the decision-making processes surrounding that child. However, absent involvement and a willingness to have a positive role in a child’s life, the court’s hands are metaphorically tied. In circumstances of violence as here, the court is justified in excluding a parent simply because the sort of behaviour which the evidence shows occurred, is irresponsible parenting. In any event, the best yardstick for determining the question is to examine whether the parents could meet the statutory requirements if they had joint responsibility. History tells the prospects of successful joint decision-making. No evidence here suggests it could work for these children.
- The father has been shown not to be a responsible parent and there is no evidence about his capacity to act as a parent. The children have no current relationship with him . There is no evidence as to how those relationships could be repaired, constructed or resolved. No financial support is provided by the father. Whilst I have some concerns about the mother, they are limited. There is little choice here in any event. Section 60CC requires the Court to consider the involvement of the parents in respect of their desire to involve the other and be involved in the children’s life. There is little I can say about the role of the father. There appears to be no impact on the children by his absence.
- This is a case where the Court should make final orders. These children and the mother need an end to this controversy even if the resolution is ultimately restrictive of the nature and form of the father’s relationship with them. The respite for them is more important than the hurt to the father.