ADAMS & PETERS

[2009] FamCA 972

FAMILY COURT OF AUSTRALIA

ADAMS & PETERS [2009] FamCA 972

FAMILY LAW – CHILDREN - Evidence relating to family violence - Separate decision - Allegations of family violence subject of separate hearing - Mother alleges she was subjected to family violence perpetrated by the father during the relationship and after separation - Three apprehended violence orders have been made for the mother’s protection from the father and the mother has also been awarded victims compensations for a psychological injury she sustained allegedly resulting from domestic violence inflicted by the father - Issue estoppel - Whether the orders previously made by the Local Court and the Victims Compensation Tribunal constitute determinations which create estoppels, precluding the father from contesting findings of his perpetration of family violence in the same factual circumstances - Common law principles relating to issue estoppel have limited application in matrimonial proceedings, and particularly such proceedings involving the best interests of children - Any estoppel arising from previous proceedings has no application in the current proceedings and even if the common law principles did prevail no estoppel arises in the circumstances of this case - The behaviour of the father towards the mother did not amount to “family violence” - The Court finds on the evidence that the father does not constitute an unacceptable risk of either physical or emotional abuse to the child

Family Law Act 1975 (Cth)
Family Law Rules 2004 r 10.14, 11.01 (item 2(b)), 16.04

Blair v Curran (1939) 62 CLR 464
Harrison v Schipp (2002) 54 NSWLR 612
Jackson v Goldsmith (1958) 81 CLR 446
Marr (Contracting) Pty Ltd v White Constructions (ACT) Pty Ltd (1991) 104 ALR 181
O’Donel v Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 744
Schorel & Schorel (1990) FLC 92-144

APPLICANT: Ms Adams

RESPONDENT: Mr Peters

INDEPENDENT CHILDREN’S LAWYER: Mr Cumming,
Lyons Barnett Kennedy

FILE NUMBER: NCC 3133 of 2008

DATE DELIVERED: 13 October 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 23 September 2009 &
24 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kelly

SOLICITOR FOR THE APPLICANT: Maclean & Curtis Solicitors

COUNSEL FOR THE RESPONDENT: Mr Allen

SOLICITOR FOR THE RESPONDENT: Willis & Bowring Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cumming,
Lyons Barnett Kennedy

Orders

1. No orders are made

IT IS NOTED that publication of this judgment under the pseudonym Adams & Peters is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3133  of 2008

MS ADAMS

Applicant

And

MR PETERS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in these proceedings are locked in dispute over the parenting orders that ought be made in respect of their child, born in March 2006.

2. The parties had a relatively brief relationship.  They began their relationship in about 2002, but did not begin their cohabitation until about 2004. They were married in May 2006 and finally separated on 2 September 2006.

3. After their separation, the parties’ communication was troubled.  Some months later, on or about 14 June 2007, the mother removed herself and the child from the southern Sydney area, which was where the parties had been living in separate residences. She went to live in regional New South Wales. The mother did not inform the father of either her intention to depart the southern Sydney area with the child, or the locality or address to which they moved.

4. It is uncontentious that, by reason of the mother’s unilateral decision to relocate, the child and the father ceased to have time together or communication with one another.

5. The father was desirous of re-engaging with the child.  His attempts to establish contact with the mother were futile. He engaged solicitors to correspond with the mother’s parents in July 2008 with a view to locating the mother and the child.  That correspondence found its way to the mother but she did not respond to the father or his solicitors.

6. Some months later, on 17 October 2008, the mother filed her Application for Final Orders in the Local Court.

7. The proceedings were subsequently transferred to the Family Court of Australia from the Local Court on 8 December 2008.

8. The father filed a Response in this Court on 15 January 2009, and an Amended Response on 16 March 2009.

9. Since the filing of those documents, the Court has made interim parenting orders on 19 March 2009 and 2 June 2009.  The effect of those orders is to permit the child to live with the mother and spend restricted time with the father, subject to supervision at the regional Children’s Contact Centre.

10. The advocated position of the mother is that she should have sole parental responsibility for the child and that the child should live with her.  Although the mother has contended that the child should have absolutely no time or communication with the father, she is apparently prepared to contemplate a continuation of the existing regime where the child spends infrequent supervised time with the father.

11. The reasons behind the mother’s restrictive parenting proposals have become the subject of scrutiny.

12. The mother asserts that the father was physically violent to her, and that she was subject to intimidation by him, both during their relationship and after separation.  It is asserted that the family violence perpetrated by the father renders the presumption of equal shared parental responsibility in respect of the child to be inoperable, and dictates that the child’s best interests warrant her having no, or alternatively minimal, time and communication with the father.

13. It has not been asserted that the father has been physically violent, abusive or intimidatory towards the child.

14. The allegations of the mother are hotly contested by the father. The father denies violent conduct on his behalf and admits of only argumentative behaviour between the parties, occurring at times generally proximate to the numerous breakdowns of their relationship, and also at times of difficulty experienced by him in arranging for the child to spend time with him.

15. The mother still lives in regional New South Wales and the father still lives in the southern suburbs of Sydney.  In view of their geographical separation, the father proposes a parenting regime that provides for the child to live with the mother and spend periodical unsupervised time with him.  He proposes that the parties have equal shared parental responsibility for the child.

16. The matter came before the Court on 27 August 2009 for case management.  In view of the overarching significance of the mother’s allegations of family violence against the father to the overall outcome of the proceedings, it was determined that those allegations would be the subject of separate hearing and determination.

17. That course was open to the Court by reason of provisions of the Family Law Act (s 69ZR) and Family Law Rules (see Rules 10.14, 11.01 (item 2(b)), 16.04).

18. That discrete aspect of the case therefore came on for hearing before the Court on 23 and 24 September 2009. This judgment deals with that issue.

19. Despite the allegations of violence made by the mother against the father, she has not at any point filed a Notice of Child Abuse or Family Violence as required by the Family Law Rules (see Rules 2.04A, 2.04B, 2.04D). By reason of the mother’s failure, the mechanism of the Family Law Act crafted for such circumstances (s 60K) was not triggered and the matter was not given more urgent attention.

20. Notwithstanding, in hearing this aspect of the case I bear in mind the “Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged” published by this Court in March 2009.

Documents adduced in evidence

1. In support of her allegations of family violence against the father, the mother read the following documents in evidence:

   a)Affidavit of the mother filed on 17 October 2008;

   b)Affidavit of Ms N filed on 16 January 2009;

   c)Affidavit of Ms F filed on 18 March 2009;

   d)Affidavit of Ms D filed on 18 March 2009; and

   e)Affidavit of Mr R filed on 29 May 2009.

2. The mother also adduced further documentary evidence, in compliance with a procedural order made on 27 August 2009, by tendering an indexed bundle of documents drawn from documents produced in response to numerous subpoenae. Those documents were collectively marked Exhibit M2. Although that exhibit comprised hundreds of pages, the mother ultimately made passing reference to less than a dozen pages in both cross examination of the father and submissions. The Court was left to ponder on the relevance of such a vast array of documents.

3. In rebuttal of the mother’s allegations, the father relied upon the following evidence:

   a)Affidavit of the father filed on 10 September 2009; and

   b)Affidavit of Mrs Peters filed on 10 September 2009.

4. Mrs Peters is the paternal grandmother of the child. She was present at Court on 23 and 24 September 2009, but was taken ill on 24 September 2009. She left the Court in the company of the father’s solicitor on the morning of that day to attend a medical practitioner. She was unavailable for cross examination when the time for her evidence was reached early on the afternoon of 24 September 2009. The father still wished to rely upon her evidence despite her unavailability. The mother did not object to that course, but contended that the weight of her evidence would necessarily be diminished in the absence of her being tested in cross examination.

Allegations of violence

Incident on 18 June 2005

1. The mother alleges that the first event of domestic violence between herself and the father occurred on 19 June 2005.[1]

   [1] Affidavit of the Mother filed on 17 October 2008, par 7

2. The mother simply asserts that she applied for an apprehended violence order on that day, which was later granted, and does not elaborate the alleged circumstances of the incident any further.[2]

   [2] Affidavit of the Mother filed on 17 October 2008, par 8

3. No copies of either the application or the apprehended violence order have been adduced in evidence – either as annexures to the mother’s affidavit material or as part of Exhibit M2.

4. In response, the father says that he recalls the parties having an argument on 17 June 2005 – not 19 June 2005.  He admits a belief that the mother sought an apprehended violence order arising out of the incident, which was subsequently granted for a period of 12 months.  In view of the fact that he then lived in southern Sydney and the mother had remained in the central coast area, he did not take any practical steps to oppose the grant of the apprehended violence order.[3]

   [3] Affidavit of the Father filed on 10 September 2009, par 5

5. It is common ground that the parties had argued and that the mother had then departed the central coast residence. Shortly following her departure, the father moved a chair in some ill-defined way, which struck and holed a wall within the premises.

6. The father’s evidence was unsatisfactorily vague. I infer that, although the father may not have intended to cause actual damage, he reacted in a physical way in frustration or anger because of the argument with the mother which had ceased shortly before. He had however exercised sufficient self restraint that his outburst of frustration or anger did not occur in the presence of the mother or any other person. There was no physical violence as between the parties.

7. The father conceded in his cross examination that he was embarrassed about the incident. He paid for the hole in the wall to be repaired by arrangement with the mother.

8. The mother reported the incident to police. It appears from the contents of a later police COPS event entry[4] that the incident had occurred on 18 June 2005 – neither 17 nor 19 June 2005.  The police attended but detected no offence.  The police asked the father to leave the premises and he complied with that request, returning to his home in southern Sydney.

   [4] Affidavit of the Mother filed 17 October 2008, Annexure A

9. Within days of that event the parties were back in touch with one another, despite the mother’s pending application for an apprehended violence order. The mother invited the father back to the central coast property within a week or so. Those circumstances are hardly demonstrative of fear or apprehension on the part of the mother. She was then living in the central coast and the father was living in southern Sydney. But for the mother’s unsolicited invitation, there would have been no further personal interaction between them at that time.

Incident on 27 June 2005

1. The mother alleges that the second act of domestic violence between the parties occurred in the presence of her friend, Ms D.[5]

   [5] Affidavit of the Mother filed on 17 October 2008, par 9

2. In support of her allegations, the mother attaches to her affidavit a copy of the police COPS event entry relating to the incident.[6] The mother adopts the contents of that contemporaneous police record as an accurate portrayal of events, which happened on 27 June 2005.

   [6] Affidavit of the Mother filed on 17 October 2008, par 15, Annexure A

3. The contents of the police COPS event entry indicate that the mother reported the incident as a “verbal argument” to the police on 27 June 2005 at 13:24.

4. The mother informed the police that she had invited the father to the central coast residence on 26 June 2005 with the intention of them discussing their future plans relating to her pregnancy with the child, about which she had recently learned.  The mother extended that invitation to the father despite the fact that she had initiated proceedings for an apprehended violence order as a consequence of the incident the week before.

5. The father stayed overnight in the household, at the mother’s invitation, but the parties did not sleep together.  The next day they became involved in an argument in relation to the mother’s pregnancy.  During the course of that argument, the mother’s friend, Ms D, intervened.  The mother reported to the police that Ms D slapped the father across the face rather than choosing to remove herself from the argument.

6. Both the mother and Ms D admitted to police that the father made no threats of violence to either of them.

7. Shortly thereafter, the father left the household, alighted his vehicle, which was parked at the front of the residence, and drove away.

8. The police detected no offence committed by the father, accepting the mother’s description of the incident as being only a verbal argument between the parties.  No further action was taken by police.

9. Although the mother describes this incident in her affidavit as being the second act of “violence” committed by the father, the only person who had been physically violent in the encounter had been the mother’s friend, Ms D. Importantly, the father did not inflict physical violence on either the mother or Ms D, despite being struck on the face himself.

10. Ms D swore an affidavit in the proceedings which, in part, deals with that incident.  She was also cross examined.

11. Ms D asserts that when she attended the mother’s home on the central coast she observed that the parties were engaged in a heated argument.  She alleges that the father “looked mad”.[7]  She told the father to leave the premises because she was aware that there was an apprehended violence order in existence against him. She was ignorant of the fact that the father had come to the home at the request of the mother.

    [7] Affidavit of Ms D filed on 18 March 2009, par 102

12. Ms D asserts that she felt intimidated by the demeanour of the father and reacted in self defence by slapping him across the face.[8]  She says that after slapping the father in the face, he backed away and looked shocked.[9]

    [8] Affidavit of Ms D filed on 18 March 2009, pars 103 - 105

    [9] Affidavit of Ms D filed on 18 March 2009, par 107

13. Ms D was not prepared to concede that she could have retreated, which contradicted the evidence of the mother in cross examination, who agreed that Ms D could have retreated.

14. Ms D alleges that she saw the father walk towards the mother, grab her by the shirt in an aggressive manner, and say to her words to the effect of, “We need to talk.  We’re not finished yet, bitch!”[10] That allegation is at odds with both the evidence of the mother, and the contents of the police COPS event report, which was a compilation of statements made to police by both the mother and Ms D at the time of the incident.

    [10] Affidavit of Ms D filed on 18 March 2009, par 110

15. Ms D deposed to her affidavit on 17 March 2009, being nearly four years after the event.  I regard the contemporaneous report of the incident to police on 27 June 2005 by the mother and Ms D as being more probably accurate than Ms D’s recollections some four years later.

16. However, the evidence of Ms D cannot easily be reconciled as reconstruction of an eroded memory.  She goes on in her affidavit to allege that outside the house, upon the father’s departure in his car, the father manoeuvred his car so as to pin her legs between the father’s car and her own parked car.  She alleges that she could see the father through the windscreen and describes the look on his face as “menacing”.[11] She said in cross examination, as she implied in her affidavit, that the father’s action was deliberate.

    [11] Affidavit of Ms D filed on 18 March 2009, pars 135 - 136.

17. That aspect of her version of the event is flatly contradictory with the version of the event given by her and the mother to police at the time.

18. The police COPS event entry records that the father attempted to drive his car away from the lawn area, but due to the slope of the land and it being wet from recent rain, the rear tyres commenced to spin and the car slipped backwards towards the parked vehicle of Ms D.  The father alleges asking Ms D to move her car to avoid the chance of collision and she refused. The father resumed his efforts to drive away. Ms D feared that the father’s car would collide with her car. She must not have been thinking clearly because she then exposed herself to danger by standing in a position between the cars. The father said Ms D was standing behind his car, which is consistent with the version in the police report. Ms D said in oral evidence, as she did in her affidavit, that she was standing in front of the father’s car looking at him through the windscreen. I cannot reconcile those pieces of inconsistent evidence.

19. The police recorded that there was no clear indication that the father had intended to strike Ms D with the vehicle, and that Ms D did not wish to take any action in relation to being struck by the father’s vehicle. That attitude is hardly consistent with a belief by Ms D at that time that she had been deliberately assaulted. In fact, if her current description of that part of the incident is accurate, it must have been extraordinarily frightening, which makes Ms D’s decision to tell police that she wished no action taken seem utterly incongruent. I do not accept Ms D’s current version of that event. I conclude that the contact between the father’s car and the body of Ms D was accidental.

20. For his part, the father admits having driven to the central coast to speak with the mother at her request.  He alleges that they were discussing their possible reconciliation, not her pregnancy, which fact he alleges was not revealed to him until some time later.  In any event, he concedes that the parties disagreed.

21. The contents of the police COPS event entry disclose that the father was contacted by police on 27 June 2005 at 16:09, following the complaint received by police from the mother and Ms D. The police indicated a disinclination to charge Ms D with having assaulted him by the slap to the face. The police also told the father that no action would be taken against him for any conduct on his part.

1. Although the evidence does not precisely define when, within a couple of months, the mother returned to live in the southern Sydney district with her children. She said that she did so because she wanted to be near to the residence of the father so that he would be close to their child when she was born. Although they temporarily maintained different households in the same suburb, the parties saw each other and stayed overnight with each other on a regular basis. They resumed cohabitation around December 2005. Those developments occurred despite the existence of an apprehended violence order remaining in force.

Incident in August 2006

1. The mother adduced evidence from her friend, Ms F. In her affidavit, Ms F alleges that she has “experienced [the father] being violent towards both [the mother] and her children”[12], and that she had “witnessed a number of separate incidents of violence.”[13]

   [12] Affidavit of Ms F filed 18 March 2009, par 4

   [13] Affidavit of Ms F filed 18 March 2009, par 5

2. It transpired in Ms F’s cross examination that in fact she had never seen the father act violently towards the children of the mother.

3. It also transpired that the single incident of violence she observed between the father and the mother occurred at a local school sports oval.

4. Curiously, the mother does not even mention the incident at all in her own affidavit. During the hearing, at the Court’s invitation, the mother sought and was granted leave to adduce oral evidence as to her version of that incident. The mother estimated that the incident occurred in about August 2006.

5. The versions given by both the mother and Ms F are largely consistent. The parties arrived at the oval in a car in response to a request by the school principal because of unsatisfactory behaviour on the part of the mother’s son L. The parties had been arguing in the car on the way to the oval. The mother was seated in the driver seat and the father was seated in the passenger seat. As the mother alighted from the car the father allegedly threw a mobile telephone in the direction of the mother. The telephone struck the window of the driver door.

6. The father denied having thrown the telephone, but I accept on the balance of probabilities that he did so.

7. I impute from the evidence the following facts. The mother was not struck with the telephone. Although it was projected in her direction, it was not thrown directly at her. The father could hardly have missed the mother from such point-blank range had he intended to strike the mother with the telephone. No damage was apparently occasioned to either the window or the telephone. It could not have been thrown with any real force. The projection of it could more properly be described as a toss rather than a throw. Following the incident the parties left the oval together in the same car without further incident, and their cohabitation continued undisturbed for the time being.

8. The throw of the telephone by the father was, in all probability, a display of temper. It does him no credit, but the circumstances fall considerably short of proof that the father acted with physical violence towards, or in deliberate intimidation of, the mother.

Incident on 2 September 2006

1. The mother alleges that the next episode of domestic violence, after that which occurred on 27 June 2005, occurred on 2 September 2006.[14] As I have noted, she omitted entirely from her affidavit any mention of the incident in August 2006.

   [14] Affidavit of the Mother filed on 17 October 2008, par 17

2. The incident on 2 September 2006 led the mother to make a statement to police, and for the police to issue a telephone interim apprehended violence order against the father in her favour.[15] The apprehended violence order formerly made following events in June 2005 had apparently expired in about August 2006.

   [15] Affidavit of the Mother filed on 17 October 2008, par 18

3. The contents of the statement made by the mother to police on 2 September 2006 disclose that the parties reconciled during her pregnancy with the child. However, following the birth of the child in March 2006, their relationship again became troubled.  Their relationship worsened during August 2006.  Late on the evening of 1 September 2006, the parties argued and the mother told the father to “fuck off”.  She alleges that the father picked up a pen and threw it at her, hitting her and then the wall.  The father had thrown the pen from a seated position at the dining room table and the mother had been standing about three metres away from him.  The mother alleges that she walked over to the father and attempted to strike the father. He raised his arm to protect himself.  The mother’s hand hit the father’s arm and was deflected onto her own chin.  The mother then walked away into another room.  The father then later left the household with the child and the mother went to the police station to report the incident.

4. The mother’s adult daughter, Ms N, has sworn an affidavit in these proceedings, the contents of which touch upon that incident. She was also cross examined.

5. There is some disparity between the evidence of the mother and Ms N. In her affidavit, Ms N said that she was downstairs and went upstairs to investigate because she heard items hitting the ground and smashing.[16] She changed that when cross examined to say that she heard “tinkering” from upstairs. The mother concedes that no items were smashed in the incident at all. The only item to have hit the floor was the pen thrown by the father.

   [16] Affidavit of Ms N filed on 16 January 2009, pars 16 - 17

6. There is also disparity between the evidence of Ms N and that of her former boyfriend, Mr R, who was also a witness. Ms N alleged in her affidavit that the father made threats of physical harm to Mr R.[17] In cross examination she adjusted her evidence to say that the threats made by the father were not of physical harm to Mr R, but rather threats to cause damage to his car. That is a significant difference. Her affidavit evidence was quite specific. It is really irreconcilable with her oral evidence. Her unreliability on that issue is compounded by Mr R’s disavowal of any threats being made to him by the father.

   [17] Affidavit of Ms N filed on 16 January 2009, par 66

7. Ms N alleges that the mother later said to her, “I am going to [southern Sydney] Police Station to make a report and tell them that [the father] has taken [the child]”.[18] It seems reasonably clear from the evidence of the mother and Ms N that the impetus for the mother’s report to the police that evening was the father’s decision to depart that household with the child, who was then only five months of age, and not their preceding argument, or the father’s act of having thrown a pen at the mother.

   [18] Affidavit of Ms N filed on 16 January 2009, par 56

8. Ms N confirms that, in response to the mother’s complaint, the police came to the home that evening, and that once the police had determined that the child was safe, they left the home without further incident.[19] The purpose of their attendance was merely to check on the welfare of the child.

   [19] Affidavit of Ms N filed on 16 January 2009, paras 68 - 74

9. Ms N alleges that some short while later the father’s parents arrived at the home and that an argument then ensued between the father and his own parents.[20] Ms N’s version of that aspect of the incident is corroborated in part by Mr R.

   [20] Affidavit of Ms N filed on 16 January 2009, paras 78 - 89

10. The father’s mother, the paternal grandmother, swore an affidavit in the proceedings.  She refutes the alleged involvement in the incident by her and her husband. She denies that she and her husband argued with the father, became embroiled in a physical confrontation with him, or even attended the parties’ home on that evening.[21]

    [21] Affidavit of the paternal grandmother filed on 10 September 2009, paras 4 - 10

11. The paternal grandmother was not available for cross examination due to her illness. Irrespective, the issue of whether the father’s parents attended the home that night is not really determinative of the issue presently under consideration, but rather just has the potential to reflect upon the credit of the various witnesses. On the aspect of the hostility between the parties during their argument that night, there is really no controversy.

12. The police instigated the issue of a telephone interim apprehended violence order on behalf of the mother (and child) against the father, consequent upon her complaint to them some hours before. More police attended the home in southern Sydney in the early hours of 2 September 2006 to inform the father of the telephone interim apprehended violence order, and he left the household in accordance with the terms of that order.

13. The telephone interim apprehended violence order taken out by the police on 2 September 2006 was revoked when the application for the final apprehended violence order came before Sutherland Local Court on Wednesday, 6 September 2006.[22]

    [22]  Exhibit M2 tab 7 pages 73-74

14. Because those proceedings had been instigated by police on behalf of the mother, the application for the apprehended violence order could only have been revoked at the request of the applicant police officer, Senior Constable G.  The police only took that course at the request of the mother.  The mother now alleges that she felt that it was in the best interests of herself and the child at that time for her to “drop the AVO to reduce the amount of intimidation”.[23] The paradox of that alleged motive was not rationally explained.

    [23] Affidavit of the Mother filed on 17 October 2008, par 23

15. Whatever her motivation, at the mother’s request, the police withdrew the apprehended violence complaint against the father. The mother agreed that she had told the police prosecutor that she held no fears of the father, and that that statement to the prosecutor was truthful.

16. Even if accepted at its highest, the evidence adduced on behalf of the mother about this incident proves only that the father threw a pen at her from some distance away.  It was she who approached the father in a retaliatory attempt to strike the father. She was not acting defensively. Her assault upon the father was retributive. The mother concedes that the father remained seated at the table.

Apprehended Violence Order made on 18 October 2006

1. On 8 September 2006, only two days after having been at Sutherland Local Court, the mother went back to the police and made a further statement against the father by way of complaint.[24]  In that statement to police the mother concedes that she agreed to the withdrawal of the AVO complaint two days before.  She also stated to the police:

   “I only had concerns that [the father] might keep trying to contact me and that if he took [the child] he would not come back with her, however, I did not hold any fears for my safety at that time”.

   [24] Affidavit of the Mother filed on 17 October 2008, par 25

2. She said in cross examination that that was a truthful statement.

3. In the fresh statement made to police, the mother effectively complained about a barrage of text messages she allegedly received from the father following the withdrawal and dismissal of the earlier apprehended violence complaint.  On the version of the mother, the messages were indicative of a wish on the part of the father to talk with the mother about their relationship.  She did not consider that any of the text messages or telephone calls were threatening – just harassing and annoying.  She stated her complaint then to the police as follows:

   “I want [the father] to stop phoning, texting and coming around to my place, as I feel this unwanted contact is unsettling to me and my family, and I fear he may take things further”.

4. On the strength of that complaint, the mother admits that the police were unwilling to take any action.[25]  The mother believes that the father told the police, at or about that time, that he had only been telephoning the mother in relation to their child.[26]

   [25] Affidavit of the Mother filed on 17 October 2008, par 26

   [26] Affidavit of the Mother filed on 17 October 2008, par 28

5. In view of the refusal of the police to take any further action, the mother took matters into her own hands and personally applied for an apprehended violence order against the father on 4 October 2006.[27]

   [27] Affidavit of the Mother filed on 17 October 2008, pars 29 - 30

6. The terms of the complaint made by the mother against the father, which would ordinarily be set out within the initiating Application, are not in evidence before the Court.  No copy of the Application has been tendered. The mother has only adduced in evidence a copy of the Interim Apprehended Violence Order that she successfully obtained against the father at Sutherland Local Court on 4 October 2006.[28]

   [28] Affidavit of the Mother filed on 17 October 2008, Annexure D

7. In the absence of any further allegations by the mother, the Court is left to assume that the basis of the mother’s personal complaint was generally consistent with the terms of her complaint to the police, comprised within the statement she made to the police shortly beforehand on 8 September 2006.

8. The Interim Apprehended Violence Order records on its face that “The defendant was not present in court”.  The reference to the “defendant” is a reference to the father, and is consistent with his evidence.  He states that he did not attend court and did not intend opposing the Application for the issue of an apprehended violence order because he believed that it would be withdrawn and dismissed.  He asserts that the basis of that belief was the mother saying to him prior to the court attendance “I will withdraw it.  No order will be made”.[29]

   [29] Affidavit of the Father filed on 10 September 2009, par 8

9. The Interim Apprehended Violence Order was adjourned for two weeks until 18 October 2006.  On that occasion, the Interim Apprehended Violence Order was converted to a Final Apprehended Violence Order, for a period of 12 months.  A copy of the Final Apprehended Violence Order is in evidence.[30]

   [30] Affidavit of the Mother filed on 17 October 2008, Annexure E

10. The Final Apprehended Violence Order records on its face that “The defendant was not present in court”. Again, that is a reference to the father.

11. The father says that he continued to ignore the apprehended violence proceedings because of the continuing contact between himself and the mother.  The father says that at about that time he and the mother spoke by telephone and regularly sent text messages to one another.[31]  The father attaches a selection of text messages sent to him by the mother in October and November 2006.[32]

    [31] Affidavit of the Father filed on 10 September 2009, par 9

    [32] Affidavit of the Father filed on 10 September 2009, Annexure A

12. A selection of the contents of those text messages is revealing.  They include the following:

    a)8 October 2006 - “I still love you”

    b)8 October 2006 – “You rub your fingers over my hard nipples and put my boobs deep into your mouth & suck them, making me so wet you then slide them down between my legs and put your finger inside my soaking wet pussy and pull it in and out while i moan with pleasure”.

    c)8 October 2006 - “You then throw me back on my back and thrust your hard dick into me so hard the bed moves across the room, you pound me for hours till you cant hold back and as you fuck me harder and harder u scream with relief as you cum inside me. x”.

    d)8 October 2006 – “Then you roll me over and slide your tongue all the way down my back you lift my legs and stick your tongue inside me licking me and sucking me like your favourite ice block till I scream and cum all over your mouth then i kiss you and lick it all off”.

    e)29 October 2006 – “I will meet you at the park later if you want…”

    f)4 November 2006 - “All the ironing is done and taken back so i can have dinner tonight if you want”.

    g)6 November 2006 - “do you want to come to oz tag with me tomorrow?”

    h)10 November 2006 – “[L] should be asleep in half hour if you want sex JUST SEX You can come here”.

    i)16 November 2006 - “…lots would have to be worked out both sides but we should try spending time together without discussing money us or sex to start with”.

    j)16 November 2006 - “Don’t give up on me just yet”.

    k)16 November 2006 – “…i have put my rings on.  Hope ou still have yours on”.

    l)17 November 2006 – “I will come back to your place tonight after I go out if thats ok?”

    m)18 November 2006 – “Thinking of you do you want to take [the child] to park tomorrow or the pool if its hot?”

    n)19 November 2006 – “Why dont you come and have breakfast with me i will start making it soon before you go to work?”

13. The mother admits that she sent all of those text messages to the father, and that they are accurately transcribed.

14. Lest it not otherwise be obvious, the mother was sending those text messages to the father over the period immediately before, during, and immediately after the time at which she obtained the AVO against the father.

15. The mother agreed with the proposition that she was trying to reconcile her relationship with the father in October and November 2006 and that she intended continuing or resuming a sexually intimate relationship with him.

16. In order for the Local Court to have granted the AVO sought by the mother on 18 October 2006, the mother was required to satisfy the court that she was genuinely apprehensive of violence or intimidation at the hands of the father.

17. I draw the obvious inference that the evidence put before the Local Court by the mother on 18 October 2006 did not include the text messages in evidence before this Court, nor her concessions that she was then earnestly trying to reconcile their marriage. Having regard to those circumstances, it is inconceivable that the mother was genuinely apprehensive of the father at the time she applied for, and obtained, an apprehended violence order against him in October 2006.

Breaches of AVO in November/December 2006

1. The mother alleges that on 5 December 2006 she made a statement to the police complaining about the father’s conduct in breach of the apprehended violence order made on 18 October 2006.[33] Her complaint related to two attendances by the father at her house on 29 November 2006 and 4 December 2006, and text messages sent by him to her.

   [33] Affidavit of the Mother filed on 17 October 2008, par 33, Annexure F

2. The police acted upon the mother’s complaint by charging the father with the offence of “Contravene AVO” pursuant to s 562I(1) of the Crimes Act 1900 (NSW).[34]

   [34] Exhibit M2 tab 7 pages 75-81

3. The mother further alleges that as a consequence of his charge, the father was convicted and sentenced in respect of the breach of the apprehended violence order on 11 January 2007.  His penalty was a fine of $250.[35] That is confirmed by police records.[36]

   [35] Affidavit of the Mother filed on 17 October 2008, par 34

   [36] Exhibit M2 tab 2 page 13

4. The father admits entering a plea of guilty to the charge of “Contravene AVO” and states that he had sent text messages to the mother at her invitation.[37]  He also asserted in evidence that he only ever attended the mother’s home at her express invitation. Although the mother did not concede that allegation in her evidence, she did agree that the manner of her behaviour around that time was sufficient to make the father believe that he had an invitation to contact her and attend at her home when he desired.

   [37] Affidavit of the Father filed on 10 September 2009, par 10

5. It is implicit that the contravention of the apprehended violence order was manifest in the father sending text messages to the mother, and attending her home, when the terms of the apprehended violence order prohibited such contact between them. The offence was complete even if, as the father says, it was committed at the invitation of the mother.

6. The father said in evidence that his attempts to contact the mother at around that time were about his wish to see their child, not to pursue any interest in the mother. I accept his evidence about that.

1. The offence of “Contravene AVO” carried a sentence of imprisonment as a maximum penalty.  Having regard to the fact that the father was sentenced by way of a fine in the sum of $250.00, I impute that the Local Court regarded the offence as reflecting a very low level of objective criminality. That is consistent with an appraisal of the evidence placed before this Court.

Alleged breach of AVO on 31 December 2006

1. The mother alleges that the father breached the apprehended violence order made on 18 October 2006 by reason of his conduct on 31 December 2006.

2. She alleges that the father came to her house unsolicited on that day.  The mother ordered the father to leave her property, but agreed to meet him in the park across the road.  An argument ensued between them in the park before the mother returned to her home across the road.  She took no police action.[38]

   [38] Affidavit of the Mother filed on 17 October 2008, pars 36 - 51

3. When she was cross-examined about that incident, the mother said that she was distressed and frightened by the father’s conduct at that time.  It is difficult to accept that evidence.  The mother was compelled to concede that later that evening, within several hours of that incident, she sent an unsolicited text message to the father at 21:23, which read:

   “What a year.  Had [the child], got married, lost your licence, moved house, then broke up.  2007 can only get better for both of us.  Happy New Year”.

4. It is a credit to the mother that she was prepared to be so magnanimous with the father on New Year’s Eve, notwithstanding the disagreement they had earlier that afternoon.  Nevertheless, both the contents of that text message and its timing make it highly improbable that the mother felt frightened of the father at the time, as she now alleges.

5. The father did not concede that he had attended the mother’s home on that day, or met her in the park across the road. I think it more probable that he did.

Breaches of AVO in January 2007

1. On 2 February 2007, the mother approached police and gave a statement in which she outlined a series of grievances against the father.  A copy of that police statement is in evidence.[39]

   [39] Affidavit of the Mother filed on 17 October 2008, Annexure H

2. It is evident from the contents of that statement that there were no instances of physical violence between the parties. The gravamen of the mother’s complaint was her dissatisfaction at the father’s repetitive attempts to contact her in person and by telephone during January 2007.

3. The mother was cross-examined about the contents of that statement.  She conceded that much of the communication then occurring between the parties involved discussion about the father’s dissatisfaction with the amount of time he was able to spend with their child.  The mother even admitted in her statement to police:

   “I felt guilty because [the father] was missing out on the baby”.

4. The only reason the father was “missing out” was because of the mother’s obstructive attitude. Her expression of remorse in the police statement followed from her refusal of the father’s request to permit the child to spend time with him the day before.

5. The contents of the statement made by the mother to police are suggestive of the mother’s belief that she was being stalked by the father.  However, the mother’s grievance must be understood in context.

6. The parties at that time were maintaining separate households within the same suburb, the father was desperate to spend more time with their child, his efforts in that regard were largely being thwarted by the mother, and there were no parenting orders then in existence in relation to the child. Of course, the apprehended violence order dubiously obtained by the mother against the father on 18 October 2006 continued to prevail.

7. The mother saw the father at the local shops on 16 January 2007. She had the child with her. They argued briefly about his lack of time with the child.

8. The mother alleges seeing the father at the shops again the following afternoon. The father asked her why she had sent a text message to him earlier that morning, which the mother agrees she did, when she had previously told him that she never wanted to speak with him again – hardly an unreasonable inquiry one might think.

9. On 18 January 2007 the mother saw the father when she departed a southern suburban Community Centre. Apparently the mother was then seeking some form of counselling at that venue. The father asserts, without challenge, that he lived within metres of that building. He says that it was a chance sighting.

10. Later that same afternoon the mother found a letter from the father in her letterbox. The father admitted authoring the letter to her, but believes that he sent it to her at a time earlier than January 2007. Irrespective, the mother concedes that the father complains in the letter about him “not having proper contact with [the child]”.

11. On 21 January 2007 the mother alleges that the father walked past her house on the street. There was no eye or verbal contact between them. The father was lawfully entitled to pass along that street. The AVO did not forbid it. The father’s parents also lived in southern Sydney. The mother’s home was between the households of the father and his parent’s, albeit perhaps by circuitous route.

12. On 22 January 2007 the mother alleges that the father called to her home and rang the doorbell. If that occurred, it was in breach of the AVO conditions. But nothing happened. The father left when the mother refused to answer the door. Later that day the mother saw the father some distance along her street, allegedly acting furtively.

13. On 26 January 2007 the mother alleges that the father contacted her by telephone with a request about seeing the child. The mother hung up on the father. Later that day she alleges seeing the father walk past her house on the street.

14. On 28 January 2007 the mother alleges seeing the father loitering in the park across the street from her home. She is corroborated by Ms F.[40] The mother alleges receiving voice messages on her telephone to contact the father, with which she did not comply.

    [40] Affidavit of Ms F filed 18 March 2009, Annexure A

15. On 30 January 2007 the mother alleges receiving a telephone call from the father about why she would not respond to his attempts to contact her. The mother hung up on him.

16. On 1 February 2007 the mother alleges seeing the father loitering some distance along her street.

17. The terms of the prevailing AVO permitted the father to approach and contact the mother for the purpose of “arranging access to children as agreed in writing or as otherwise authorised by an order, or a registered parenting plan under the Family Law Act”. There was no agreement in writing between the parties, nor was there any existing parenting order or parenting plan under the Family Law Act, about the time to be spent between the father and child. That was precisely why the father was attempting to contact the mother. He ought, of course, have commenced proceedings against the mother to obtain parenting orders.

18. As a consequence of the mother making her statement to police on 2 February 2007, the police charged the father with another offence of “Contravene AVO” on 5 February 2007.  The father entered a plea of guilty to the offence and was later convicted and sentenced by way of the imposition of a good behaviour bond before the Sutherland Local Court on 16 October 2007.[41]

    [41] Affidavit of the Father filed on 10 September 2009, par 17; Exhibit M2 tab 2 page 13

19. The nature of the contravention was as I have outlined above. Presumably any clemency that might otherwise have extended to the father evaporated in the face of the similar conviction on 11 January 2007.

Alleged breach of AVO on 23 March 2007

1. The mother believes that the father again breached the apprehended violence order on 23 March 2007, by stalking her household at 4:30 am.[42]

   [42] Affidavit of the Mother filed on 17 October 2008, pars 59 - 62

2. The mother has no personal knowledge of the incident.  She relies entirely upon what she was told by her neighbour named “[X]”.

3. The incident was reported to police and was investigated.  The mother is dissatisfied with the competency of the police investigation, which took about a month, but the result of that investigation is in evidence by reason of documents produced on subpoena by the Commissioner of New South Wales Police.  Those documents disclose that the police interviewed the mother’s neighbour and ascertained that the man lurking in the yard described by the neighbour bore no real similarity to the description of the father.  Accordingly, the police took no further action.[43]

   [43]  Exhibit M2 tab 8 page 18

Alleged breach of AVO on 10 April 2007

1. The mother alleges that the father breached the apprehended violence order again on 10 April 2007, when she observed the father to drive past her home along the street twice.  The mother observed the father doing so whilst she was outside mowing the lawn.[44]

   [44] Affidavit of the Mother filed on 17 October 2008, pars 68 - 77

2. The father admits driving past the mother’s home on that day.[45] The father alleges that he was en route to see an electrician who lived in the same street as the mother and that he was not loitering in the vicinity of the mother’s home without good reason.[46]

   [45] Affidavit of the Father filed on 10 September 2009, par 14

   [46] Affidavit of the Father filed on 10 September 2009, par 14

3. The apprehended violence order did not prohibit the father driving along the street past the mother’s home.  The mother believes that it was a breach of bail conditions for him to have done so, although she concedes that she later learned that no such bail conditions then existed.[47] The father was then on bail in respect of the charge of “Contravene AVO” for which he had been charged on 5 February 2007 but which was not finalised until 16 October 2007.

   [47] Affidavit of the Mother filed on 17 October 2008, pars 78 - 81

4. The incident was reported to police by the mother.  As a consequence, the police arrested the father and he was charged with offences of “Stalking” and “Contravene AVO”, for which he was remanded in custody with bail refused.[48]  As a consequence, the father spent numerous weeks in custody without bail. He was granted conditional bail on 24 May 2007.[49]

   [48] Exhibit M2 tab 7 pages 60-61

   [49] Exhibit M2 tab 7 page 68

5. The father contested the charges and was vindicated. When the charges later came before a Magistrate for hearing on 16 October 2007 they were dismissed. The father is understandably bitter that he was incarcerated for weeks on what proved to be, at the least, a melodramatic over-reaction by the mother.

Extension of the AVO

1. The AVO, which had been made on 18 October 2006 for a period of 12 months, was extended for another 12 months by the Sutherland Local Court on 16 October 2007 on the request of the mother.[50]

   [50] Affidavit of the Mother filed 17 October 2008, Annexure I

2. Even though the mother and child moved out of the southern Sydney area some months before, on 14 June 2007,[51] the mother disclosed her former southern Sydney address when extending the AVO.

   [51] Affidavit of the Mother filed on 17 October 2008, par 90

3. The mother conceded in cross-examination that she left the area with the child, without advance notice, and without informing the father of where she and the child might be found.  She did not give her forwarding address to anybody, and allegedly made that decision on advice.[52]

   [52] Affidavit of the Mother filed on 17 October 2008, pars 91-92

4. Following the mother’s secret move to regional New South Wales from southern Sydney in June 2007, the child and father were denied any time together, or communication with one another.

5. The parties remain in dispute about how much time the child and father were permitted to spend together by the mother before June 2007, but on the mother’s own evidence, that time was sparse following the failure of the parties’ attempts to reconcile in November 2006. The father contends that he was permitted little time with the child after the time of separation on 2 September 2006.[53]

   [53] Affidavit of the Father filed on 10 September 2009, par 18

Issue Estoppel

1. The mother adduced evidence that persuaded the Local Court of NSW to make apprehended violence orders in her favour against the father on three occasions in mid 2005, on 18 October 2006, and on 16 October 2007.

2. In early 2008, the mother also successfully applied for an award of victim’s compensation with the assistance of local solicitors retained by her in the local area.[54] On 4 March 2008, the Victims Compensation Tribunal of NSW made a determination awarding a sum of compensation to the mother pursuant to the Victims Support and Rehabilitation Act 1996 (NSW). The award of compensation to the mother was in respect of her diagnosed condition of “Category 2 Psychological Disorder”, allegedly resulting from a “protracted pattern of domestic violence inflicted by the offender [the father]”.[55]

   [54] Affidavit of the Mother filed on 17 October 2008, para 106

   [55] Affidavit of the Mother filed on 17 October 2008, Annexure K

3. The question arises as to whether the orders previously made by the Local Court and/or the Victims Compensation Tribunal constitute determinations which create estoppels, precluding the father from contesting findings of his perpetration of “family violence” in the same factual circumstances. That question must be addressed because the judicial decision concerning parenting orders under the Family Law Act in this case entails analysis of issues of fact or law which may have already been decided in those previous proceedings.

4. The principle of issue estoppel is well settled at common law. A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies (see Blair v Curran (1939) 62 CLR 464 at 531; Jackson v Goldsmith (1958) 81 CLR 446 at 466). The estoppel only applies to determined “issues”, and not to evidentiary facts or legal questions which are no more than steps in reasoning to the determination of an issue.

5. An issue estoppel cannot be enlarged by evidence. As against a successful party the unsuccessful party is bound by the authoritative determination of every fundamental issue, but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be (see O’Donel v Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 744 at 758-759, 763; Marr (Contracting) Pty Ltd v White Constructions (ACT) Pty Ltd (1991) 104 ALR 181 at 196).

6. The bar to re-litigation of the issue is absolute unless fraud or collusion is alleged (see Harrison v Schipp (2002) 54 NSWLR 612 at 615-616).

7. However, the common law principles relating to issue estoppel have limited application in matrimonial proceedings, and particularly such proceedings involving the best interests of children (see Schorel & Schorel (1990) FLC 92-144). In that case the Full Court recognised that the duty of courts in family law has a wider and more public element and imposes a greater responsibility to elicit the actual facts. The Full Court adopted observations made in English cases to the effect that “no doctrine of estoppel can abrogate that duty”, and that the child’s interests “should not be sacrificed on the altar of an estoppel.”

8. In reliance upon that authority, any estoppel arising from previous proceedings has no application in the current proceedings. Even if the common law principles did prevail, no estoppel arises in the circumstances of this case.

9. Apprehended violence orders are made in NSW under the provisions of the Crimes (Domestic and Personal Violence) Act 2007, and before that Act was proclaimed, the Crimes Act 1900. Relevantly, the legislation generally requires proof on the balance of probabilities that a person actually and reasonably fears being intimidated, stalked, or assaulted. The NSW court makes that determination on the day that the evidence is adduced before it. The issue then determined, by the making of an apprehended violence order, is that on that particular day the applicant actually and reasonably has the necessary fear of the defendant – no more no less.

10. The issue therefore determined by the Local Court of NSW in making the various apprehended violence orders in favour of the mother was that, on the particular days that the orders were made, the mother was actually and reasonably fearful. Because this Court was not furnished with the findings or judgments of the Local Court, it is presently impossible to discern of what the court found the mother was fearful. It may have been conduct of the father amounting to intimidation, stalking, assault, or a combination of those things.

11. The findings and determinations of the NSW Local Court are therefore uncertain on the three discrete occasions when apprehended violence orders were made. Even if those findings and determinations were certain, they relate only to the mother’s feelings at those points in time. Those findings could not be enlarged by the evidence adduced in this case so as to estop this Court from making findings about whether or not the mother was actually or reasonably fearful or apprehensive of the father at other times in the past (see O’Donel).

12. Although it seems reasonably plain that the mother failed to furnish the NSW Local Court with all of the relevant evidence pertaining to the parties’ relationship at the times she sought and obtained apprehended violence orders against the father, I do not find that her failure was fraudulent or collusive. Any issue estoppel that could arise from the apprehended violence orders is not impeached on that basis (see Harrison v Schipp). It is nonetheless regrettable that the mother failed to adduce all relevant evidence before the Local Court, because she then deprived the Local Court of the opportunity to make balanced and informed decisions.

13. The determination underpinning the award of victims compensation to the mother would not be binding upon this Court for other reasons. An application for compensation lodged by an applicant with the Victims Compensation Tribunal of NSW is a unilateral procedure.  The Tribunal determines whether an award of compensation ought be made to the applicant in respect of injury said to arise from the perpetration of a criminal offence by an offender.  In the course of the determination of the application, the alleged offender is not afforded procedural fairness.  The offender has no opportunity to adduce evidence or make submissions in rebuttal of the applicant’s application.

14. The procedure of the Tribunal, once it awards compensation to an applicant, is to seek reparation of that compensation from the alleged offender.  So it was in the case concerning the father.  The Tribunal pursued a restitution order against the father.[56]

    [56] Affidavit of the Father filed on 10 September 2009, par 19

15. The father was able to make submissions to the Tribunal arguing the lack of merit in the mother’s application, which had already been adjudicated by the Tribunal. A restitution order was made against the father, but as a consequence of his submissions, the restitution was curtailed to 25% of the quantum of compensation earlier awarded by the Tribunal to the mother.[57]

    [57] Affidavit of the Father filed on 10 September 2009, par 19

16. Although the Tribunal may have been satisfied, as at 4 March 2008, that the mother had suffered psychological injury as a consequence of domestic violence perpetrated upon her by the father, that finding is not binding because the father was not privy to the proceedings conducted unilaterally as between the mother and Tribunal.  Issue estoppel is only created by prior proceedings between the same parties. The father was not a party to the application made by the mother to the Tribunal.

Findings About Allegations of Violence

1. In the circumstances of this case, the existence of past apprehended violence orders does not assume the significance that it normally would. As counsel for the Independent Children’s Lawyer ably submitted, such orders have historically been treated with disdain by both parties. The mother obtained her first AVO in mid 2005. She resumed her cohabitation with the father and then married him whilst that AVO was in force. She obtained her second AVO on 18 October 2006 whilst actively soliciting an intimate personal relationship with the father. That AVO was extended on 16 October 2007, after the parties ceased having contact with one another, and it has been observed by the parties.

2. The parties undoubtedly had a tempestuous relationship. It was punctuated by arguments and reconciliations. In an overall sense, the relationship must have brought stress to both parties, even though they must have experienced moments of joy. The breakdown of any marital relationship brings with it stress and unhappiness. It is only when such stress and unhappiness is attended by violence that the Family Law Act makes specific provision with respect to the formation of parenting orders.

3. In assessing the evidence, I am left with the impression that the father tended to minimise the hostility that transpired between the parties, and that the mother and her witnesses tended to exaggerate it. In scrutinising the reliability of the evidence I find contemporaneous records of events to be more accurate, and that the uncontroversial chronology of those events places the parties’ history in better perspective.

4. When allegations of violence are made in parenting proceedings before the Court the issue must be considered in statutory context. The Family Law Act defines “family violence” (in s 4) as:

   “Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”

5. In submissions, the mother’s counsel fairly conceded that the mother had a “massive hurdle” to overcome in satisfying the court that the evidence demonstrated the existence of “family violence”. As I understood her counsel’s submissions, the mother’s case gradually metamorphosed from one in which she alleged outright domestic violence on an objectively verifiable basis, to one in which she asserted that her subjective perception of past events potentially compromises her future parenting capacity if the father was to resume greater involvement in the lives of she and the child.

6. The purpose of the discrete and limited hearing was to evaluate the veracity of the factual allegations made by the mother against the father, not to scrutinise her emotional condition or thought processes, which is an issue for the substantive parenting proceedings.

7. The mother alleged that the only two episodes involving the father’s use of physical violence towards her were:

   a)   The incident when the mobile telephone was thrown in her direction in the car at the sports oval in August 2006, and

   b)     The incident when the pen was thrown at her on 2 September 2006.

8. I find on the evidence that the mother was not fearful or apprehensive of the father at the time of the first of those incidents in August 2006. The incident was so unremarkable to her that she omitted any mention of it in her affidavit. Despite her propensity to draw complaints to the attention of police, she took no action at that time to report the matter to police. Nor did she make any mention of the incident when she made her statement to police only weeks later on 2 September 2006 concerning the second incident mentioned above. Their relationship continued without interruption.

9. I find on the evidence that the mother was not fearful or apprehensive of the father at the time of the second incident on 2 September 2006. Being struck with the pen thrown at her by the father must have been an annoyance, but little else. Far from retiring from the confrontation in fear of the father, or in apprehension of what else he might do to imperil her safety, the mother advanced towards the father and attempted to strike him across the head in retaliation. Her complaint to the police later that night was not born out of fear or apprehension, but rather her displeasure about the father having taken the child from the home without her permission.

10. Even if the mother was genuinely fearful or apprehensive during either of those incidents, then the evidence does not permit a finding that it was objectively reasonable for the mother to have felt so. The Act imposes a requirement that her fear or apprehension be “reasonably” based, which imports an objective standard, before “family violence” is established.

11. For those reasons, the two specific episodes in August and on 2 September 2006 do not amount to “family violence”.

12. I find that the father’s causation of some damage in the mother’s home in the central coast on 18 June 2005, in her absence, did not actually cause her to fear for, or be apprehensive about, her personal wellbeing or safety. She found out about the damage on her return to the home. She invited the father back to her home within days of the event. On the balance of probabilities, she would not have done so had she been fearful or apprehensive of the father. It was not an act of “family violence”.

13. Nor do I accept on the evidence that there were any grounds for the mother to reasonably fear for, or to be reasonably apprehensive about, her personal wellbeing or safety arising from:

    a)   The arguments that they each intermittently engaged in with one another, that were devoid of physical contact between them, or

    b)     The personal and telephonic approaches by the father to the mother, amounting to attempts by the father to arrange for time to be spent between him and the child.

14. Even if the mother did subjectively hold such fear or apprehension, I do not accept that it was objectively reasonable for her to do so. In the circumstances, the father’s conduct in those respects did not meet the definition of “family violence”.

15. The miscellaneous incidents during January 2007 where the father was allegedly observed loitering in the vicinity of the mother’s home in southern Sydney are inconsequential. Even if such evidence of the father’s presence is accepted, and it is viewed in the sinister light advocated for the mother, by then the father had demonstrated that he was not a man prone to inflict physical violence upon the mother. His presence in near proximity might have been a nuisance to the mother, but I do not accept that she could have reasonably felt fearful for, or apprehensive about, her personal wellbeing and safety as a consequence merely of his presence. They were not acts of “family violence”.

16. I do not accept on the balance of probabilities that the unidentified person lurking in the yard of the mother on 23 March 2007 was the father. Accordingly, that event could not constitute an act of “family violence”.

17. The incident on 10 April 2007 where the father was observed to drive past the mother’s house on two occasions is also inconsequential. The father provided a rational explanation for that event. The sum total of the mother’s complaint was that by driving past her home the father was thought to be in breach of bail conditions. The mother’s belief was erroneous. Nor was it a breach of the prevailing AVO. It was not an act of “family violence”.

18. I find on the evidence that the father does not constitute an unacceptable risk of either physical or emotional abuse to the child.

19. Those findings are consistent with the submissions made by both the father and Independent Children’s Lawyer, which submissions I accept.

I certify that the preceding one hundred and seventy five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  13 October 2009