Father to spend NO time with children due to safety concerns mother took children into hiding

Children – Mother took children into hiding, fearing that the father posed a threat to their lives – Court agreed there “was no safe alternative” – Order made that father spend no time with the children – Suppression order made as to mother’s address – Father allowed to correspond with the children (to facilitate any prospect of reconciliation)

In Dunst [2014] FamCA 964 (11 November 2014) Austin J considered a case where a mother took five children (between the ages of 17 and 6) into hiding when the father was imprisoned due to her fear that the “father threatens their lives” (para 2). Although the father “refuted the validity of the mother’s fear” (para 3) the Court said the “evidence satisfactorily established that the father does pose risks of harm to the children, which he either deceptively denied or of which he was bereft of insight” such that there “was no safe alternative but to eliminate all personal contact between the father and the children” (para 4).

Of the five children, Austin J said that the “eldest two reject the father outright, either through contempt or fear, but the youngest three” had “more positive memories and attitudes towards him” but also “ambivalent feelings” (para 56). The Court continued (from para 61):

“Restoration of the three youngest children’s relationships with the father would most likely benefit them, but there is no utility in setting about restoring such relationships if other evidence powerfully motivates a contrary outcome.

[62] There would almost certainly be countervailing emotional disturbance for the two eldest children and the mother if the three youngest children’s relationships with the father were restored, which is a consideration properly addressed under s 60CC(3) of the Act.

[63] Moreover, while children usually benefit from both the development and maintenance of good relationships with both their parents, that benefit is annulled when such relationships are abusive (see U v U [2002] HCA 36 … at 285-286; M v M (1988) 166 CLR 69 at 76). ( … )

[64] The mother conducted her case on the basis that the children were psychologically damaged by the past family violence to which they were exposed by the father, and further, they remained at risk of both psychological and physical harm in the future.

[76] In the context of the father’s inherent propensity for rigidity and irritability in the face of any resistance to his authority, I find that he frequently perpetrated acts of family violence upon the mother in the presence of the children, largely in accordance with the mother’s evidence.

[120] I unreservedly accept the mother still lives in abject dread of the father’s prospective re-entry into her life and the lives of the children. …

[121] The available evidence falls short of proving the mother would react so adversely to future personal interaction between the children and the father that her parenting capacity would deteriorate and impinge the children’s best interests, thereby justifying elimination of the father from their lives (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546; Hepburn & Noble [2010] FamCAFC 111 … at [43], [49]-[64]). Nonetheless, the mother’s fear, which was not only genuine but also objectively reasonable, is still a feature of the evidence that favours curtailment of the children’s interaction with the father.”

Austin J concluded (from para 133):

“The presumption of equal shared parental responsibility does not apply because of the father’s commission of family violence (s 61DA(2)). Even if the father’s evidence was accepted over the mother’s, the presumption would still not apply because he alleged the mother perpetrated family violence upon him.

[144] The single expert was reluctant to even recommend that the youngest children spend time with the father at a contact centre, but even if that was to occur, the single expert considered the father needed counselling about ‘the consequences of interrogating the children about their mother’, which the children would find upsetting …

[145] Orders cannot safely be made for the children to spend unsupervised time with the father.

[146] Nor can orders safely be made for the children to spend time with the father under professional supervision at a contact centre.

[148] Even if it was theoretically possible for the children to spend supervised time with the father, there would be pragmatic difficulty in making prescriptive and enforceable orders for it to occur.

[151] The only orders that can safely be made, which manage the risks posed by the father to the children, are for the children to maintain written communication with the father. The orders therefore make provision for the father to periodically correspond with them. The children will derive benefit from knowing the father has not abandoned them and is still interested in their progress. As the children individually attain their majority they will be able to make their own decision about whether they seek restoration of a more meaningful relationship with the father. The preservation of a communication link will facilitate that restoration process should it be desired.

[153] The suppression order and injunctive orders impede the father’s ascertainment of the mother’s residential location and, if he learns of it anyway, prohibits his attendance at or near her home and the children’s schools.

[155] The father sought an order which would permit him to obtain details about the children’s medical treatment and educational progress … No such order is made as it would compromise the mother’s ability to maintain the secrecy of her residence. The children’s medical records would disclose their address. School reports would disclose the locality of their residence.”

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