Monday, 21 February 2011

Family Court orders father not to spend time with child due to violence and alcohol abuse

The Family Court recently ordered that the mother have sole parental responsibility for a child, J, aged 4, and that the father shall not spend time with the child or communicate with the child. Justice Ryan in Franka and Gratham did so after setting out the appalling conduct of the father:
  1. The father met with the family consultant on 11 August 2010. Within two weeks, [his new partner] Ms L complained to police the father breached an Apprehended Violence Order previously made for her protection and on 26 August 2010 he was refused bail after she complained he assaulted her. The point being, there was more to the father’s relationship with Ms L than revealed by him. In addition, more recent evidence of alcohol abuse and violence by the father than the mother, family consultant or Court knew about. I do not know why the father withheld this information from the Court and his failure to give full and frank disclosure is troubling.
  2. In any event, it is appropriate to record the father’s court history convictions. These are set out below:
    • In February 2000 the father was convicted of driving with mid-range PCA. He was placed on a s 558 recognisance for 12 months, disqualified from driving for six months;
    • In March 2000 he was convicted of using an unregistered vehicle on a road, using an uninsured motor vehicle and driving on road while licence suspended. In relation to these he was fined and on the latter disqualified for 12 months. A second charge of driving on road whilst licence suspended was dismissed pursuant to s 556A;
    • In 2004 he was convicted of two counts of assault occasioning actual bodily harm in relation to which he was fined and placed on a s 9 bond for 12 months;
    • In 2007 he was convicted of destroying or damaging property, in relation to which he was fined and ordered to pay approximately $700 compensation;
    • In November 2007 he was convicted of two counts of stalking – intimidate in relation to which he was fined and placed on a 12 month s 9 bond;
    • In November 2007 he was convicted of two counts of common assault in relation to which he was fined, placed on a 15 month s 9 bond subject to supervision by probation and parole;
    • In 2009 he was convicted of mid-range PCA in relation to which the father was placed on a 12 month s 9 bond subject to conditions, including supervision by a probation and parole, fined and disqualified from driving for nine months commencing from 21 February 2009;
    • In June 2010 he was convicted of drive with mid-range PCA in relation to which he was sentenced to a term of imprisonment for seven months which was suspended upon him entering into a s 12 bond for seven months. He was disqualified from driving for two years. The father lodged a severity appeal which was dismissed in July 2010;
    • In August 2010 he was convicted of two counts of common assault in relation to which he received a 12 month suspended sentence upon entering an s 12 bond for the same period to be supervised by probation and parole.
  3. In the lead up to the final stage hearing the Court encouraged the father to undertake a therapeutic program designed for perpetrators of family violence. The father failed to participate in the program. In relation to his PCA and a number of other convictions, it was recommended the father complete drug and alcohol rehabilitation, which he has not done. Sadly, it would appear unlikely the type of therapeutic intervention which might moderate the risks to the child of exposure to alcohol abuse and family violence are steps the father is unlikely to take.
  4. The family consultant observed the child with the mother and her husband. These observations are recorded at par 8 and par 9 which are set out below:
    1. [The child] excitedly ran into the playroom and explored the sand tray and the puppets. [The mother] asked him to sit with her at the table and play a puzzle. [The child] engaged very well in play with his mother and their rapport was excellent. [The mother] demonstrated her skills in directing, encouraging and affirming [the child]’s verbal and physical contributions to the activities. [The child] was very excited about building with the large foam blocks and laughed and enjoyed the play with a ball and lay on the floor with his mother. [The child] was very demonstrative and spontaneous in play and appeared very confident with his mother. The communication and interaction between [the child] and his mother displayed a strong and secure attachment as well as a familiarity in playful and fun activities together.
    2. Later [the mother]’s partner, [Mr V] entered the room and [the child] engaged easily in play with him and the communication appeared relaxed and familiar.
  5. In relation to his mother, the child told the family consultant he liked “walking and dancing and watching TV with mum and I have heaps of toys. I like mum the most of all.” The mother described her relationship with the child as loving and fun. She outlined her views about her parental responsibility for the child, which demonstrate her sound understanding of the child’s needs and a commitment to ensure these are met to the highest level within her gift. I am strongly satisfied the child has a happy and loving relationship with his mother, which is full of meaning and to his benefit.
  6. The family consultant observed the child with the father. These observations are set out at par 10 and par 11, which observations are set out below:
    1. [The child] was later told his father was in the waiting room and could come into the playroom and [the child] ran out to meet his father and then ran back excitedly to the playroom with [the father]. [The child] went straight to the sand tray to play. [The father] asked if he wanted to play ball and [the child] told him he did not want to play but his father told him he would like to play. [The father] commented that [B] was at school today and had been playing with ‘Nan and Poppy’ and had gone on an excursion.
    2. Both [the child] and his father then sat on the floor together and engaged very well in building with the foam blocks and [the child] was very focussed on the activity that was well developed by his father. [The child] was very excited and pleased with the play and asked his father to help him build and [the father] joined in creative play with him. [The child] moved on to play with the dolls house and his father sat on the floor with him and they both focussed on imaginative play with the doll’s furniture. [The child] sat close to his father and the communication was relaxed and task focussed. [The child] displayed familiar rapport with his father and [the father] displayed an ability to direct and encourage playful interaction. They later drew on the whiteboard and the verbal and physical engagement indicated a confident and relaxed ability to enjoy play together.
  7. The child told the family consultant he liked being with his father because “I like playing with [B] and his toys and my friends.” He added “[B] is my best friend and I love mum and dad.”
  8. Prior to separation the child had virtually no relationship with the father. There is no dispute the mother was primarily responsible for the child’s care from birth. Because of the father’s behaviour, she did her best to protect the child from him and, thus, there was little one on one contact between the child and father. The child did not have further contact with the father until May 2008, when fortnightly supervised visits at the Contact Centre commenced. The father regularly spent time with the child in accordance with these orders. Supervision ended in December 2009, from when the father continued fortnightly visits with the child, with the time increased to five hours each alternate Sunday. This ended in early August 2010 when the father stopped spending time with the child. Although for a period following the father was in gaol, he did not seek to resume contact with the child upon his release.
  9. From the child’s perspective, the father has been an erratic presence in his life, with inexplicable periods in which he effectively disappeared. Such time as the child has spent with him was, initially, in a safe setting. Although from December 2009 the time was unsupervised, this was quite limited and thus the extent of the risk to which the child was exposed was moderated. Thus, in carefully constructed circumstances the child has been able to develop a friendly relationship with his father, which has not been contaminated by substance abuse or family violence.
  10. In her affidavit, the mother gave detailed evidence of serious family violence and abuse directed to her during their relationship by the father, some of which has already been discussed. This evidence was not challenged and is accepted. Also his harassment of her after they separated. She deposes to the father’s aggression towards his elder child B, which on occasion resulted in physical abuse. On one occasion after the father hit B, the child developed a large bruise on the back of his head. On another occasion, the father threw B on the ground, which resulted in the child suffering a bleeding nose. It is unnecessary to recite the complete detail of the mother’s evidence in relation to the father’s treatment of B, but sufficient to observe the father demonstrated a pattern of verbally abusive, intolerant and on occasion troubling physical mistreatment of the child. The father has had little opportunity to behave towards the subject child in the same manner. However, the evidence given by the mother about his treatment of his elder son establishes a clear risk the father may behave towards this child in the same manner.
  11. So as to give a flavour about the type of violence the mother said she experienced from the father the following incidents are noted:
    1. In or about the end of 2005, when I was 8 months pregnant with [the child], [the father] demanded sex form me. I did not want to do this at the time due to being heavily pregnant. [The father] said to me words to the effect of “Why do you not want to have sex with me? Don’t you love me, you don’t want to have sex with me because you’re fucking someone else”. He then pushed me against the wall and bent me over and forced me to have sex. [The father] said to me words to the effect of “If you go to the Police I’ll kill you and if I can’t find you, I’ll find your sister and kill her all I have to do is wrap myself in cling wrap so I won’t get your blood on me and I’ll dump your body in the bush. If you dad rings I’ll tell him you’ve left and I haven’t seen you for ages.” [The father] then said to me words to the effect of “The bush is a big place, [the mother]. People go missing in the bush all the time”. As a result of his threats towards me I was terrified of him. I was even too scared to park my car outside or anywhere near the Police station in case he thought I was talking to the Police about him.
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  1. [The father] has also punched me in the head and hit me over the head with beer bottles. Most of the time when [the father] got violent he would try to strangle me by grabbing me around the throat.
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  1. In or about January 2007 [the Father], [the child] and I were driving home from [a local] river. He asked me to pull over to the ATM. I pulled into the nearest Commonwealth ATM. [The father] got angry and said to me words to the effect of “I didn’t want to go here. I wanted to go to the one at [R]”. I said to him words to the effect of “We’re here now, just go here”. [The father] said to me words to the effect of “oh you’re a fucking mole”. [The father] then walked around to my window and threw the can at my window and it smashed the window all over me. I got out of the car to check on [the child] and then [the father] came up behind me and hit me with the can he was holding. I blacked out and fell over. When I woke up I was on the ground. A stranger came over to me and said words to the effect of “Are you all right?” [The father] started yelling at the stranger so he walked off. After I came to, [the father] made me drive home even though I did not want to as I felt really sick. I drove to [the father]’s parent’s house because I was scared that I would pass out again and there would be nobody to look after [the child]. When we go to [the father]’s parent’s home I got [the child] out of the car and handed [the child] to [the paternal grandmother] and said to her words to the effect of “Can you hold him, [the father]’s angry”. [The father] walked up behind me and pushed me. I turned around and then he grabbed me around the throat and tried to strangle me and he pushed me against the fridge. I could not breathe. I started to get dizzy and [the paternal grandfather] then intervened and pushed [the father] off me and said to him words to the effect of “Fuck off, don’t bring your shit into my house”. [The father] then left. I had bruises around my throat. That was the only time that [the father] had left marks on me that other people could see. Usually he would hit me around the head.
  2. More recently, COPS records recorded an incident between the father and Ms L, which occurred on 29 May 2010. The COPS record records Ms L told police the father arrived at her home at about 8.00 pm that day. An argument developed about their relationship during which Ms L asked the father to leave her home. He refused. When she repeated her request, she said the father walked up to her and pushed her with both his hands in her chest. She fell and, while she was on the ground, the father kicked her. A short time later it is alleged he grabbed a knife from the kitchen and held it to his own throat. The father threatened to kill himself if Ms L made him leave. She ran to a neighbour for help and contacted police. When police arrived they observed she was very upset and too afraid to be by herself in her own home. Police noted her injuries and were concerned when she refused to make a statement or permit photographs to be taken. Appropriately, police obtained an urgent Apprehended Violence Order for Ms L’s protection from the father.
  3. Notwithstanding the Apprehended Violence Order, the father and Ms L continued their relationship. The COPS records record another incident of violence at 12.15 am on 21 August 2010. Earlier that evening the father and Ms L had been out for dinner where they consumed a number of alcoholic drinks. Not long after they returned to Ms L’s home an argument developed. Ms L told police that while she was sitting on a lounge, the father punched her four or five times to the face. When she tried to use her mobile telephone, the father smashed it. She ordered him to leave and he responded by threatening to kill her mother, children and others to whom she was close. Ms L picked up a child’s car seat and threw it at the father. The car seat hit him in the face. He then punched her three times in the face, which caused her left eye to close, gave her a bleeding nose and gums. Ms L said she was only able to escape after she picked up a knife. She went to her neighbours and telephoned police.
  4. It was not entirely clear what then occurred. There is no doubt the father was arrested and refused bail on 26 August 2010. It would appear he was charged with malicious damage, common assault, possibly also assault occasioning actual bodily harm and breach Apprehended Violence Order. Unfortunately, the police records are not sufficiently up to date in regards to these recorded matters. The Court was informed by the father’s solicitor the father claimed he was acquitted on all matters. Irrespective of this, the evidence demonstrates recent family violence by the father when affected by alcohol.
  5. Clearly, had the child been in the father’s care on either of the occasions referred to in the COPS records which involve Ms L, the child would have been at serious risk of harm. The situations were clearly out of control and dangerous.
  6. The evidence strongly indicates a current, high level risk to the child of exposure to family violence by the father. This type of behaviour is emotionally and psychologically damaging and renders the father an unsatisfactory role model.
  7. I was troubled by the mother’s notion that the Court should make provision for ongoing contact between the child and father, albeit in a supervised setting. She had been cautiously optimistic that the father’s protestations he no longer abused alcohol and family violence was a thing of the past, could be accepted at face value. Thus, in the carefully contained environment in which the child’s relationship with the father had developed, she saw benefit to the child in being able to maintain a relationship the child had shown he enjoyed. In other words, potentially this was a valuable relationship which enhanced the child’s sense of identity.
  8. While the mother’s optimism is to her credit, I believe it is misplaced. In my view, until the father has demonstrated he has engaged in significant therapeutic intervention which focuses upon the perpetration by him of family violence as well as alcohol abuse, he is unable to establish a meaningful and healthy relationship with the child. The child has not missed spending time with the father and, the father’s, in effect, disappearance from the child’s life since August 2010, from the child’s perspective, has been unremarkable. It would be a triumph of hope over experience, to re-establish even supervised visits for the child with the father until he has made the types of lifestyle changes to which I have made reference. Re-establishing the child’s relationship with the father before then is more likely to perplex the child because, the evidence indicates unless the father makes major lifestyle changes he will remain a poor role model and is unable to maintain an appropriately healthy relationship with his son.
  9. Irrespective of whether the child has an ongoing relationship with the father, the mother will maintain his relationship with B. She is in contact with B’s mother and they agree the brothers will continue to see each other at a frequency agreed between them.
  10. It is my hope the father will make the lifestyle changes he needs to make, not only for his own sake, but also for the child’s. Unless he does so, it is not in the child’s best interests to spend time or communicate with him. I am conscious this also means the child will lose contact with his parental grandparents and extended paternal family. Also, the prospect of future litigation is higher on this approach compared to orders for supervised visits which would automatically be discharged if the father failed to attend or there was more violence or alcohol related events. Notwithstanding these factors the child’s best interests would not be served by the reestablishment of visits with a parent who thus far has demonstrated serious parenting deficits.
  11. The mother will have sole parental responsibility. It would be untenable to require her to communicate with the father and involve him in major decisions about the child. It is too high a risk he may be abusive towards her and, in circumstances where the father will not be spending time with the child, he will not have the type of information about the child which would make his input into these types of decisions constructive.

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