Ahmed and Jeret
[2016] FamCA 442
•6 June 2016
FAMILY COURT OF AUSTRALIA
| AHMED & JERET | [2016] FamCA 442 |
| FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child – Where there are two children of the relationship – Where the Court orders the mother has sole parental responsibility – Where the Court orders the children live with the mother and spend time with the father |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60CC(2), 60CC(3), 117(2A) Family Law Rules 2004 (Cth) r 13.15 |
| APPLICANT: | Mr Ahmed |
| RESPONDENT: | Ms Jeret |
| INDEPENDENT CHILDREN’S LAWYER: | Independent Children’s Lawyer |
| FILE NUMBER: | SYC | 5108 | of | 2011 |
| DATE DELIVERED: | 6 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 2, 3, 4, 5, 6, 9 and 10 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ahmad |
| SOLICITOR FOR THE APPLICANT: | Linda Lonsdale Lawyer |
| COUNSEL FOR THE RESPONDENT: | Mr Richards |
| SOLICITOR FOR THE RESPONDENT: | Stacks Law Firm |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cantrall |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central |
Orders
IT IS ORDERED
That the children B born … 2008 and C born … 2010 (“the children”) live with the mother.
Parental Responsibility
That the mother have sole parental responsibility for the children save that the mother shall, prior to making any decision:
(a) Inform the father in writing of the issue and her proposal;
(b) Allow the father 14 days to respond in writing;
(c) Consider the father’s response;
(d) Inform the father of her decision as soon as practicable.
Time with Father
That the children spend time with the father, supervised by the paternal grandmother, each alternate Sunday commencing on the first Sunday after the making of these Orders between 2 pm and 4 pm, with changeover to occur at Caringbah Children’s Contact Service (“CCCS”). In the event that CCCS is not able to supervise changeover, then the mother shall deliver the children at the commencement of the time to the paternal grandmother, and the paternal grandmother shall deliver the children to the mother at the conclusion of time, at McDonald’s Family restaurant at Suburb D and the father is restrained from being within 500 metres of McDonald’s at the time of the changeovers. For the purpose of this Order, “supervised” means that the children are in the sight or hearing of the supervisor at all times.
That from the first time that the children spend time with the father in December 2016, the time is extended to start at noon and end at 4 pm and such time shall occur in the immediate presence of the paternal grandmother. For the purpose of this order “immediate presence” means that the supervisor is in the same residence, place or immediate vicinity as the children and in any motor vehicle in which the children are conveyed.
That from the first time that the children spend time with the father in June 2017, the time is extended to start at 10 am and end at 6 pm and such time shall occur in the substantial presence of the paternal grandmother. For the purpose of this Order, “substantial presence” means that the children not spend more than two hours away from the immediate presence of the supervisor.
That from the first weekend that the children spend time with the father in September 2019, the time is extended to commence at 10 am on Saturday and end at 6 pm on Sunday and thereafter each alternate weekend.
That, other than for Order (3), for the purpose of the children spending time with their father pursuant to these Orders, unless otherwise agreed, the mother shall deliver the children at the commencement of the time to the paternal grandmother, or another member of the paternal family acceptable to the mother, and the paternal grandmother or other agreed family member, shall deliver the children to the mother at the conclusion of time, at McDonald’s Family Restaurant at Suburb D and the father is restrained from being within 500 metres of McDonald’s at the time of the changeovers.
That the implementation of Orders 3 and 4 is conditional upon the paternal grandmother giving an undertaking in accordance with the provisions of Rule 13.15, in the terms set out in these orders, as to supervision.
Schooling
That the children attend Suburb E School (“E School”), for their primary schooling, unless otherwise agreed in writing between the parents.
That the mother do all things required to amend the children’s enrolment at E School so as to provide all of the father’s relevant information and to authorise E School to forward to the father copies of all newsletters, reports, notices and other information usually given to parents.
That both parents be entitled to attend any school functions or activities to which parents are invited or allowed to attend.
Special Occasions
If, according to these Orders, the children are not spending time with the father on Father’s Day, religious holy days, then the children shall spend time with the father on those days as follows:
(a) On Father’s Day, in accordance with the regime prescribed in Order 3 in 2016; in accordance with the regime in Order 4 in 2017 and 2018; and from 10 am until 6 pm in 2019 and thereafter.
(b) On religious holy days, if the day falls on a weekend, in accordance with the regime prescribed in Order 3 in 2016; in accordance with the regime in Order 4 in 2017 and 2018; and from 10 am until 6 pm in 2019 and thereafter.
(c) On religious holy days, if the day falls upon a school day, from 4 pm until 6 pm. In 2016, the time shall be supervised by the paternal grandmother. In 2017 the time shall be spent in the immediate presence of the paternal grandmother.
School Holidays
That from the school holidays at the end of Term 4 in 2017, and each year thereafter, the children’s time with the father shall be suspended for one month to allow the children to holiday with the mother.
That from the school holidays at the end of Term 4 in 2019 and each year thereafter, the children shall spend two periods of one week with the father and, in the absence of agreement, the first week of the holidays and the last week of the holidays.
From 2019, the children shall spend one week with the father in each of the holidays at the end of Terms 1, 2 and 3, and in the absence of agreement, the first week.
Overseas Travel
That, subject to Orders (13) and (14), the mother be permitted to travel outside of the Commonwealth of Australia with the children.
That the mother have the sole authority to apply for, collect and retain Australian Passports, travel documents and any relevant visas for the children.
That the mother must advise the father of any intended travel overseas by providing at least 28 days’ notice in writing to the father.
Notice
Where these Orders require notice to be given of any matter, that notice shall be given either by letter posted to the residential address of the other parents or by email to an email address nominated by each parent.
Further Counselling
That the mother ensures that the children continue to attend upon Ms F for as long as Ms F recommends.
That the father continues to attend upon Dr G for as long as Dr G recommends.
That the mother continues to attend upon Ms H or another counsellor nominated by Ms H, for as long as that counsellor recommends.
That the mother ensures that B is assessed by a therapist recommended by Dr I and that a copy of that assessment be made available to the Independent Children’s Lawyer (“ICL”), to Ms F and to each parent.
That for the purpose of Order 23, the ICL advises the parents and Ms F of the name and contact details of the therapist nominated by Dr I.
That a copy of these Orders and the reasons for judgement be provided by the ICL to Dr G and to any therapist attended by the children.
Form of Undertaking (omitting formal parts)
That I will supervise the children B born … 2008 and C born … 2010 while they are in my care pursuant to the provisions of Order (3) made 6 June 2016.
That the children will at all times remain in my sight or hearing.
That in the event that I observe any inappropriate behaviour on the part of the father, I will remove the children from the presence of the father and keep them away from his presence until the end of the specified contact period.
That if I have cause to remove the children from the presence of the father, I will notify the mother that I have done so and tell her what happened when I return the children to her.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahmed & Jeret has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5108 of 2011
| Mr Ahmed |
Applicant
And
| Ms Jeret |
Respondent
REASONS FOR JUDGMENT
These proceedings arose out of allegations of family violence on the part of the father. Those allegations were denied by him. However, it is important to note that the mother wanted the children to maintain a meaningful relationship with their father and continue to spend time with him. The issues for the Court were therefore whether the father’s behaviour constituted family violence and how, and in what circumstances, the children’s relationship with him should be conducted.
The applicant, Mr Ahmed (“the father”) is the father of two children, B born in 2008 and C born in 2010. Ms Jeret (“the mother”) is the mother of the children and the respondent in these proceedings.
The proceedings before the Court relate to the parenting arrangements for B and C into the future.
BACKGROUND
The father and the mother met and commenced a romantic relationship in 2007. The mother has a son, J, who was born in 2000. J suffers from cerebral palsy and profound deafness. J’s father is Mr Jeret.
When the parties met the mother was living with J in Suburb K. The father was living in his parent’s home at Suburb L. The father was in a long term relationship with a woman whom he was engaged to marry.
For the duration of their relationship, the father and the mother did not live together although the father stayed at the mother’s home from time to time.
In January 2008, the mother discovered that she was pregnant with the father’s child.
In 2008, the father married his fiancée.
B was born in 2008.
The relationship between the father and the mother continued after the marriage until Apprehended Domestic Violence (“AVO”) proceedings were instituted by the mother. Orders were made, by consent and without admissions in the AVO proceedings, on 5 September 2012.
In 2009, the mother, as J’s tutor, settled common law proceedings in the Supreme Court of New South Wales arising out of the circumstances of J’s birth. The Court ordered an amount of damages to be paid. The verdict monies were and remain managed by trustees on behalf of J.
In 2010, C was born.
The father and his wife were divorced in September 2010.
In August 2011 the mother and the three children moved into the property at Suburb D which was purchased by J’s trustees.
On 29 August 2011, consent orders were entered into between the parties which provided for the children to live with the mother and spend limited unsupervised time (for a few hours on Saturdays) with the father.
The application which gave rise to the present proceedings was filed in the Federal Magistrates’ Court (as it then was) by the father on 29 August 2012.
On 14 December 2012, consent orders were made which provided for the father to spend time with the children supervised by M Family Services (“M”) each week commencing 19 December 2012.
In May 2013, the supervision orders were changed and the children’s time with the father commenced to be supervised by P Services for two hours each fortnight. In August 2013, further supervised visits were arranged through an agency “N Services” for two hours on each alternate Thursday and Saturday.
B commenced school in 2015 (“the 2015 school”). The school agreed upon between the parents was a private, fee paying, school. It was agreed that C would commence at the same school at the appropriate time. The mother paid the school fees.
On 24 April 2015, court orders were made for the father to commence supervised time with the children at O Services each alternate Sunday so that the regime then in place was that the father saw the children on each alternate Sunday with O Services for two hours and on the alternate Saturday with P Services for two hours. By the time the matter came on for hearing in May 2016, the supervised visits had been continuing since December 2012 so that the Court had available, and there were tendered in evidence, three and a half years of supervisors’ reports setting out in great detail the father’s contact with and interaction with the children.
Also on 24 April 2015, the proceedings were transferred to the Family Court of Australia.
B changed schools in 2016 and C started at the same school in 2016.
At the commencement of the trial the mother was living at Suburb D with J, B and C. She has not repartnered.
The father was living in a duplex home with his parents. He had been in a relationship for about two years with his present girlfriend but they did not live together. The other half of the duplex was occupied by the father’s brother and sister-in-law and their three children, the cousins of the subject children.
THE TRIAL
A direction was made, before the filing of affidavits, that in relation to the allegations of family violence, the rules of evidence would apply. The mother was directed to file her affidavit material and the father was directed to file an affidavit in reply. Ultimately, the filing of the affidavit in reply did not limit the issues by indicating which allegations made by the mother were conceded and which were contested as the father addressed some but not each allegation, and deposed to a blanket denial of any allegation, where there had not been a specific denial.
The Court was assisted by an independent children’s lawyer (“ICL”) and by a report from Dr I, a consultant psychiatrist who conducted interviews with the family in September 2014 and prepared a report dated 23 January 2015.
Before giving her oral evidence, Dr I was provided with the parties’ trial affidavits and updated subpoena material.
The father relied upon an affidavit sworn by himself and affidavits of his mother and his sister, Ms Q. Both the father’s mother and sister were cross-examined. At the commencement of the hearing the father also relied upon affidavits by his brother and sister-in-law but ultimately those affidavits were withdrawn.
The mother relied upon two affidavits sworn by her and affidavits by six ancillary witnesses. After some of the material in those affidavits was rejected, the witnesses were not required for cross-examination.
The central contention in the proceedings was the mother’s allegation that the father, because of his past history of family violence, posed an unacceptable risk to the children if his time with them were not professionally supervised.
It was the father’s case that the imposition of supervised time deprived the children of a meaningful relationship with him and with the paternal family.
It was the position of the father that the mother had falsely fabricated the allegations against him, either to damage his relationship with the children, or (inexplicably) in some way to influence the outcome of the common law case in the Supreme Court. He maintained throughout his oral evidence that, in relation to the allegations, the mother “set him up”.
The father did not admit that there were reasonable grounds to believe that he had engaged in family violence, although that position changed with various concessions made in the course of cross-examination.
There remained at the end of the trial an issue between the parties as to parental responsibility, the mother seeking sole parental responsibility for the children and the father seeking equal shared parental responsibility.
ALLEGATIONS OF FAMILY VIOLENCE
Because of the strict provisions of s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) which mandate that the need to protect the children from consequences of exposure to family violence is to be given priority over the benefit to the children of having a meaningful relationship with both of their parents, it is necessary to examine and consider the allegations in the mother’s case.
Because it is in the nature of family violence that events take place in private, the evidence of each of the participants is often the only available evidence and, where allegations are denied, extrinsic evidence, including evidence of contemporaneous complaint, is useful in assisting in the determination of which version of the event is to be accepted.
Family violence is defined in s 4AB of the Act as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The standard of proof in relation to the allegations is the civil standard, as set out in s 140 of the Evidence Act 1995 (Cth):
Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The primary affidavit of the mother in the proceedings comprised 77 pages and 578 paragraphs. It is not intended in these reasons to examine each and every allegation that she makes but rather to examine those allegations which appear to be the most serious.
For convenience, the mother’s allegations of stalking and coercive and controlling behaviour will be dealt with separately.
The first incident of which the mother complains occurred on 6 March 2008. The mother was pregnant with B. She did not tell the father. She discussed the pregnancy with her sister-in-law, Ms R (“Ms R”) via Facebook. The father read the Facebook entry.
The mother’s evidence is set out at paragraphs 37 to 45 of her trial affidavit. The mother alleges that the father telephoned her at lunch time and demanded that she immediately have an abortion “even if I have to drag you in by the hair”. She left her lunch and went home and locked herself in with J. Shortly after, the father arrived at her home. The mother turned off J’s cochlear implant so that he could not hear.
The father tried to gain access to the property and shouted “Let me in you fucking slut”. The mother asserts that the father remained outside her home for an hour trying to get in and shouting. She begged him to leave. The father told her “If you don’t have an abortion I will punch you in the stomach”. The father was red faced, screaming and spraying saliva. The mother called 000.
The mother said “My son is inside … I’m begging you to please stop. I’m too scared to open the door. Please calm down”.
The mother saw the father pick up a chair and hold it up. He said “I’m counting to ten, and if you don’t open the door, I will smash the door and come in”. The father began to count. The mother ran from the house with J, threw him in the car and drove off. The father followed her to Suburb S Police Station.
The father gave a different version of this event at paragraphs 195 to 198 of his trial affidavit. He asserted that he spoke to the mother on the phone and she suggested to him that they meet and talk about the pregnancy. He went to her house. He did not threaten her or try to gain access to her house. He did not pick up a chair and he did not remain at the house for an hour. He admitted that he was stressed and said “I did yell but at no time did I threaten [the mother] with physical violence”. He asserts that he tried to reason with the mother and calm her down but that she was crying, hysterical and screaming. The mother said that the father and his fiancée were not getting the baby. The father followed the mother to the police station because he was concerned for her safety and that of J.
In cross-examination, the father gave a different version of the event. He agreed that he had telephoned the mother at lunch time and that he was very angry and upset. He agreed that he said something to the mother about having an abortion but not that he would drag her there by her hair. He went to the restaurant where the mother was and they talked in the laneway. During that conversation, he spoke to the mother aggressively and sprayed saliva. She invited him to come to her house.
When he got to the mother’s house she would not let him in. The father said that the mother was screaming “leave me alone” and “leave” but that he persisted. He said that the mother had no reason to be afraid of him. He agreed that she told him that J was in the house.
The father agreed that in the course of their conversation he called the mother a “slut” and a “bitch” and that he used a whole host of names when he was angry. He agreed that the mother appeared to be fearful. Nevertheless, he said he had calmed down since they spoke in the laneway. He insisted that she had to talk to him. He was at her house for 10 or 15 minutes.
The records produced by the New South Wales Police (COPS) were tendered. The COPS entry states:
VIC is pregnant to the POI, and is three months pregnant. No reported history of domestic violence between either party. The POI stays at the VICs home for half the week and at his parents for the other part of the week. About 3pm on Thursday the 6th of March 2008; the POI and the VIC had a conversation over the phone about the VIC having a dream … The conversation lead to the VIC and POI arguing as the dream was about the VIC being at the beach with their baby and the POI was not around. This lead to a verbal argument the VIC and POI finished their conversation.
The record continues to note that at about 5.30 pm on Thursday 6 March 2008 the father attended at the mother’s home and banged on the front door asking her to let him in. She refused. The record notes:
The POI persisted to ask to enter the home and the VIC left with her son and came to [Suburb S] police station … The POI followed the VIC in his car and also attended the police station. About 6.30pm on Thursday the 6th of March 2008, the VIC and the POI along with [J] attended the [Suburb S] (sic) police station. The VIC stated the above incident to police and that she did not have any fears for her safety and did not wish to have an apprehended violence order applied for. The VIC had no visible injuries and stated that the argument was verbal and the POI did not physicaly (sic) touch her. The VIC made a statement stating the above information … Police spoke to the POI and he informed them that he is due to be married to his fiance (sic) in two weeks and that the VIC was a girlfriend that he had been seeing for 14 months but was not his fiance (sic). The POI informed police that the VIC and him had been away recently overseas and that is when she has become pregnant. The POI and the VIC have both agreed that their relationship does not have a future due to the POI getting married in two weeks.
The police told the father that if he has property to collect from the mother’s home he was to do so with police assistance to prevent a breach of the peace. The father told the police that although J was present during the episode, J did not realise that they were arguing and was watching television the entire time.
I accept that the father was very angry and upset; that he demanded that the mother have an abortion; that he yelled and screamed at her, spraying her with saliva; that he called her a “bitch” and a “slut” and other names. It is highly unlikely that after that conversation took place, the mother invited the father to come to her house. It is more likely that he went there uninvited. He refused to leave although she asked him to. He knew she was scared and fearful. He followed her to the police station.
That incident constitutes family violence.
The mother deposed that the father bragged to her about being in fights. Ms R deposed that the father had said to her “I have been in lots of fights, and punch ups”. Ms R was not required for cross-examination.
The father was convicted of assaults when he was aged 15 years and again in 2000.
In cross-examination the father agreed that he had been in a numerous fights. I accept that he said the words alleged by Ms R and boasted to the mother about fighting.
The mother alleges that in about October 2008 a violent incident occurred between the father and his sister Ms Q, triggered by a report that Ms Q had been talking to a boy. The mother alleged that the father threatened to kill Ms Q. The father left the mother’s house and returned later with Ms Q. The mother observed that Ms Q had marks on her face and her hair appeared to have been pulled. She appeared to have an injury to her arm. The father said, “I threw her, her hand got hurt and it might be broken”. Ms Q stayed at the mother’s house that night and the next day the father and the mother drove Ms Q to a medical centre where her arm was X-rayed. The mother stayed in the car while the father accompanied Ms Q into the medical centre.
The mother’s solicitor issued a subpoena to Medicare seeking the records of Ms Q’s attendance on the medical centre. The records were not produced. The mother could not remember the location or name of the medical centre.
Both the father and Ms Q denied that any such incident had occurred although Ms Q agreed that she had stayed overnight at the mother’s house.
There is no evidence other than the sworn evidence of the mother on the one hand and the father and Ms Q on the other. I am unable to find that this incident occurred as alleged by the mother.
In December 2008 the mother hosted a birthday party for the child of a friend. Her version of that event is found at paragraphs 58 and 59 of her primary affidavit. The mother and the father had an altercation over the re-gassing of the air-conditioning unit in the mother’s car. The mother alleged that the father screamed at her, spraying saliva and began to punch the brick wall. His hands were bloody. He called her a “slut” and a “whore”. The father demanded B’s birth certificate. The mother gave him the certificate and the father’s blood remains on the document.
In his affidavit, the father deposed that he had punched the wall but the mother was not present and had not seen it happen.
In cross-examination about this incident the father agreed that he was upset and the argument was loud. He agreed that as he left the mother’s home he began to punch the wall, that the mother was present, and that he left blood on B’s birth certificate. However, he said, this was not an act of violence towards the mother. He did not concede that the mother was frightened.
The abusive terms that the mother alleges were spoken to her on that day are terms that the father admits using on other occasions. I accept that the event occurs as the mother alleged.
This is an incident of family violence.
In January 2009 the mother, the father and Ms R were at the mother’s house. There was a report on the television of the murder of a little girl by her father. Ms R deposed that the father said “Think what the wife did to him. Look what she made him do”. Ms R was not required for cross-examination. I accept her evidence.
The mother alleged that in about February 2009 the father came to her house and asked her if she had been anywhere that day. She said she had not. The father accused her of lying, saying that he had checked the odometer on her car and the mileage had changed. An argument ensued. The father screamed:
I don’t ever know what you get up to. What the fuck are you wearing? You could’ve been with anyone, how the fuck would I know? How many times did I speak to you today and you didn’t say you were leaving the house. If I don’t know where the fuck my son (sic) maybe you should know what it feels like?
There was then a tussle over B and the father said “Give him to me. Let’s see how you fucken like it when you don’t know where I am?” The father grabbed B from the mother and drove off. Over a long period the mother called the father on his mobile phone and he said “How does it feel hey?” and “Just think you might never see this kid again”. B, who was still being breast fed, was returned to the mother at 10.30 pm.
The father did not give any evidence about this incident in his affidavit.
In cross-examination, the father said that the mother’s evidence in relation to this incident was just a fantasy. He said that she willingly gave B to him with a packed bag and bottles of expressed milk.
There is some support for the mother’s version of that event.
The mother was referred to Suburb T Community Health Centre. On 9 June 2009 the records at the centre note that the presenting problem was domestic violence and that the mother stated that the father was becoming increasingly controlling in all aspects of their relationship, that the father had anger management issues and that the mother was afraid of him. The mother told the centre that the father had anger management problems which had increased over the last 18 months and that the father had taken B, then aged eight and a half months old without her consent. She requested counselling and support. In a report of the initial assessment the records of the centre note:
[The father] continues to be intimidating, threatening, controlling and manipulative. He continues to tell [the mother] what clothes to wear and not to wear and accuses her of dressing inappropriately when she feels she is dressing completely appropriately. [The father] gets jealous if he doesn’t get any attention.
[The father] asks to take [B] at inappropriate times and [the mother] feels he is unable to understand that his son needs to be breastfed and can’t be taken out at certain times.
The report further noted:
[The father] is unpredictable and will not think of the children’s needs before his. He has made threats to [the mother] e.g. ‘If you try to take my son, I’ll kill you, I’ll shoot you’. However [the mother] does not believe he will follow through with these threats.
There is no other occasion when the father alleges that the mother packed a bag for B and expressed milk for him. It is unlikely that she would have done so. I do not accept the father’s version of that event and I find that the event occurred as the mother alleged.
This was an occasion of family violence.
The mother alleges that late on 21 February 2010 (records suggest that in fact it was 22 February 2010) there was a loud argument between them at her house. A neighbour called the police who arrived after the father had left.
In cross-examination, the father denied that he had been present at the mother’s house on that evening. He said that it could have been Mr Jeret with whom the mother argued.
COPS records note that at about 9.30 pm on Sunday 22 February 2010, a neighbour of the mother called the police because she could hear two people yelling and having an argument. The police attended at about 10.30 pm. The mother told the police that she had a very loud argument with her ex-boyfriend but declined to give his name.
In cross-examination the father denied that he was the person who had been present at the house. The denial however, was entirely contrary to an earlier affidavit in which he had sworn:
I am aware that police attended our home in February 2010 after [the mother] and I had a loud argument. The police record is attached to one of [the mother’s] affidavits filed in this case. I was not there when police attended and I was not contacted by the police. I am surprised that [the mother] did not tell police then if she thought that I would hurt her or any of the children.
Also in February 2010 the mother told the father that she intended to go to Canberra to visit her family. The father said “You will be able to get away with things if I’m not there. God only knows what you’re wearing when I’m not here”. This is an allegation not specifically answered by the father in relation to which the mother was not cross-examined. The sentiments expressed are consistent with other things the father admitted saying and his admissions in counselling. I accept the mother’s evidence.
In late 2011, when B was three, an incident took place when the father was on a boat towing his brother behind the boat. The mother and the children were sitting on the shore. The father went dangerously close to another boat. The father’s brother shouted and the father responded with a tirade of abuse which could be heard by the mother and the children. The father agreed that the incident had occurred. He excused his abusive language by saying that he was upset because he had nearly killed his brother. That incident clearly had an effect on B who remembered it nearly a year later.
In November 2011 an incident occurred after the family attended a children’s theatre production in U Town. On the journey home, an argument erupted between the mother and the father. They each have a different version of the argument. The mother deposed that the father threatened to put her head through the window and swore at her. The father did not give his version of the event in his affidavit but in cross-examination he admitted that he had started to swear at the mother. Pressed he could not remember what he said to her. The father said that he stopped the car and walked home. The mother deposed that she followed slowly and picked him up and drove him home. The mother clearly recalls the incident. The father does not. I accept the mother’s evidence. The children were in the car throughout.
In early 2012 the mother was invited to a Christening in Canberra. The father saw the invitation and said to her “Do you think you’re fucking going?” She did not go. This is another allegation not specifically answered by the father in relation to which the mother was not cross-examined. The sentiments expressed are consistent with other things the father admitted saying and his admissions in counselling. I accept the mother’s evidence. The mother deposed to other occasions when the father would not permit her to visit family in Canberra.
In April 2012 the mother found the father rummaging through her handbag and looking at her mobile phone.
The father’s sister Ms Q was married in 2012. The mother deposed that the father disapproved of her dress and, at the reception, screamed and swore at her, calling her a “slut” and a “bitch” because her dress was “disgusting”. The father denies that allegation and in his affidavit sets out a series of text messages where the mother sent a picture of the dress she was proposing to buy for the wedding and the father texted “Yeah it looks really nice I could pick it up for you …” Although I accept that the father called the mother “slut” and “bitch” regularly, I cannot find that this event occurred as the mother alleges.
In an affidavit sworn 18 October 2012, the children’s then nanny deposed to hearing B hand C a toy phone and say to C “[C], here is your Dad, tell him to stop being angry with Mummy!” The affidavit does not specify when the conversation occurred. On another occasion, B asked the nanny if her father is always angry like B’s father is always angry.
Either on 26 August 2012 or some time prior to that date, B said to his mother “Dad scares me. I was frightened when he shouted at [the father’s brother]. Can you call Dad and tell him to leave him alone? Tell Dad not to call him a bum cunt”.
The incident which brought any cordial relationship between the parents to an end occurred on 26 August 2012. The parents and the children went to a store at Suburb T. B referred to the father by his given name. The father was offended because B did not call him ‘Daddy”. The mother gave evidence that she corrected B. The father insisted that she did not. They went on to the house of the paternal grandparents.
The mother deposed that, at the grandparent’s house she spoke privately to the father and said to him “[B] is scared of you. He told me about when you screamed at your brother when you were in the boat …” The mother deposed that the father yelled at B to come to him and said to B “Are you afraid of me?” to which B replied “Yes I am scared of you. You are an angry man, and an angry Dad, and you are angry to my Mum”.
The mother deposed that she said to the father, once B had left, “You will never be responsible for your actions. He is afraid of you, not me. Look at how you are and wonder why you don’t even care what he just said to you”. (In cross-examination the father agreed that the mother had said words to this effect). The father said “Maybe I think they need some anger” and the mother said “… abuse is not a parenting style”. The father then said “You are just a fucking slut”. The mother deposed that she left with the children as soon as she could.
The mother deposed to saying to the father “It’s one thing when I am your victim. I have been telling you, you will never change and now I have let my children get hurt by you. What kind of a mother does this make me?” The father said “So what will you do?” and the mother replied “I am going to protect my children from anyone, even a parent”.
That night, the father telephoned the mother about 30 times. He came to the house and knocked. She did not let him in. The next day she reviewed CCTV footage and observed the father pacing around the house from 8 pm until 10.30 pm.
The father’s version of that event was not included in his affidavit.
In cross-examination he said that he had called B over and sat him on his knee. He asked B if he was frightened of his father and B answered “Yes Dad. Can I go and play?”
The father denied that the conversations set out in paragraphs 77 and 78 of these reasons occurred as alleged by the mother. He did, however concede that the mother said to him the words in paragraph 78 in a phone call later in the evening, but not in a face to face conversation.
The father’s evidence in cross-examination did not accord with his earlier affidavit evidence where he deposed that B told him that he was scared because his father was angry at his mother. Nor did his oral evidence accord with what he told Dr I. She records that the father told her that B said, in answer to his question, “Yes because you always scream at mum”. The father told Dr I that the mother agreed that they would talk later but did not contact him. He phoned and texted and then went to her house. The mother rang him and he asked if she was okay. She was angry with him.
The father did not tell Dr I what the mother said.
I accept that the incident occurred as the mother alleged.
After that incident, the mother refused to facilitate the father’s spending time with the children until the supervised contact with M was put in place.
ALLEGATIONS OF STALKING
The mother alleged that the father stalked her on Facebook and that he also physically followed her.
She gave a number of examples, including that referred to in paragraph 59 of these reasons.
At paragraphs 134 to 137 of her primary affidavit the mother alleged that in April 2012 the father followed her in her car and rang her asking where she was. When she told him her location he said she was lying and that he had been following her for an hour and a half. The father then berated the mother for allegedly behaving inappropriately in chatting with the postman.
The father does not give evidence about this incident in his affidavit.
In cross-examination he denied that he had followed the mother. He saw her coincidentally when he was travelling in the same direction. He denied that he had berated her about her behaviour towards the postman although he said that when he saw the postman leaning inside the mother’s car it upset him.
Notes produced by Relationships Australia (“RA”) of a counselling session with the father on 14 May 2012 report that in relation to the incident with the postman of which the mother complained, the father said that he saw the mother talking politely to the postman but two things were upsetting to him. The first was her acting inappropriately by being too polite to men (“she shouldn’t do that being a [religious person]”) and that the second thing was that the mother was being polite to another man and not to him. He said this incident caused him to be deeply upset meaning that he needed to release his anger and negative feelings towards the person who caused it, the mother. The father told the counsellor that they had stopped talking and he had started bombarding the mother with messages to which she did not respond. The counsellor noted that she tried to explain to the father the consequences of his actions. The father regarded his actions as justified.
In the same counselling session, the father told the RA counsellor that he felt rejected by the mother and that he was unable to cope with that feeling, leaving him very upset and angry. The father said his feelings stemmed from his childhood where he wasn’t punished for angry outbursts. The counsellor noted that the father felt a lot of pain and anger about unresolved issues from his childhood. That he felt put down by his father, his mother and his siblings. The father said that his family still continued with the verbal and emotional abuse which was accepted in his family. The father said that his family operates on the basis that if something is upsetting don’t bottle it up but release the emotion.
The mother’s version of the events in April 2012 is, at least in part, corroborated by the father’s disclosures to the RA counsellor in May and I accept her evidence that he was following her on that occasion.
In a session with the RA counsellor on 21 May 2012, the father told the counsellor of constant phone calls to the mother, following her, checking up on what she was doing. The father said that this takes enormous energy. The father said that he felt that his behaviours were an addiction.
In cross-examination the father emphatically denied that he had ever followed the mother. He maintained that denial until he was confronted with his own admission to RA upon which he said that he had forgotten that he had followed her and that it had only happened once. He also admitted that he had followed the children’s nanny.
The father concocted a false Facebook identity named Ms V to stalk the mother. As Ms V, he asked to “friend” a number of the mother’s Facebook friends and asked them for information about the mother.
That allegation was a significant issue in the mother’s AVO application in 2012. The father denied that allegation.
On 11 September 2012, the father’s then solicitors wrote to the mother’s solicitors in relation to the application for an AVO. The letter stated inter alia
Please be assured that the basis of the AVO is vehemently denied and the underlying vexatious nature of the application will be raised both in the criminal matter and the Family Court (if it comes to that).
In affidavits sworn in 2012 and 2013 the father denied the substance of the mother’s allegations about the Ms V Facebook stalking.
In cross-examination, the father initially said that he could not remember creating the Ms V identity. Pressed he eventually agreed that he had done so. He agreed that this might have frightened the mother.
The father eventually conceded that:
· He had created the Ms V Facebook page;
· He had done so in order to find out information about the mother;
· He might have created other identities for the same purpose but he did not remember;
· His denial that there was any substance to the mother’s allegations about that issue was false.
· He was at all times aware when he swore his affidavits in 2012 and 2013 that his denials were false;
· That he knew when the AVO proceedings were on foot that he had stalked the mother on Facebook;
· That he knew when he was charged with using telecommunications to menace the mother, that he had stalked her on Facebook;
· That this behaviour constituted stalking;
· That he had never admitted the behaviour to his psychologist Dr G or to Dr I.
CONTROLLING BEHAVIOUR
The mother alleged that the father attempted to control her movements, where she went and how she dressed. The father denied those allegations.
The mother in her affidavit gave numerous examples of the father complaining about her clothes, going through her washing basket to see what she had worn and sending her text messages about her clothes. This behaviour was the subject of a number of complaints by the mother in counselling.
A number of text messages from the father about the mother’s clothes were tendered.
The mother was referred to Suburb T Community Health Centre. On 9 June 2009 the records at the centre note that the presenting problem was domestic violence and that the mother stated that the father was becoming increasingly controlling in all aspects of their relationship, that the father had anger management issues and that the mother was afraid of him. The mother told the centre that the father had anger management problems which had increased over the last 18 months and that the father had taken B, then aged eight and a half months without her consent. She requested counselling and support. The records of the centre , in relation to that initial assessment, are set out at Paragraphs 73 and 74 of these reasons. They refer to intimidating, threatening, controlling and stalking behaviour and threats to kill the mother.
On 25 June 2009, the mother told the counsellor that the father is constantly controlling her and telling her what to wear and who she can be friends with. She complained that he was verbally abusive and called her a “whore” and a “slut”. She said that there had been no physical violence. The mother told the counsellor that she feels anxious and that the father had said that if she went to the Family Court he would kill her.
On 8 July 2009, the mother told the centre that the father was contacting her frequently during the day. She said that he was very controlling and commented on her clothing. The mother said that the father went through her washing basket to see if she had worn a G-string.
On 20 August 2009, the mother told the centre that she was unable to attend her appointment as the father was at her house. She reported that the father had asked what she was doing at Suburb T on 30 July 2009 as he had seen her car in the area. The mother reported that the father was still coming to her house daily uninvited and staying for most of the day. She felt that she would like to continue counselling but it was best not to come for a few weeks.
The issue was also raised in the counselling with RA. The parties sought assistance from RA with an initial interview on 8 November 2010, which they both attended. The notes of the interview on 8 November 2010 record that the father told the counsellor that the relationship had begun to break down two years ago when B was born. The father said that the mother had not told him she was pregnant with B and he only found out about that by accessing her Facebook account and felt betrayed. The father told the counsellor that he was hoping to establish better communication with the mother and the mother told the counsellor that she was hoping to establish safe and respectful ways of communicating. The counsellor noted that the mother should be seen separately because of domestic violence issues. The counsellor also noted the mother’s complaint that the father constantly polices what she wears and does not let her go swimming.
A further session took place with RA on 10 November 2010, again with both parents present. Under the heading “Sequence of Conflict” the counsellor noted:
Difference of opinion will lead to [the father] shouting/name calling/put downs. [The mother] will then withdraw by going silent. [The father] may get more aggressive at this stage. [The father] will be feeling very angry, feels it in chest and head. Will be thinking ‘fuck this shit. I don’t have to put up with it. I’ll just get orders and see my kids on weekends’. [The father] will then leave.
Under the heading “Worst Incident” the counsellor noted “Screamed abuse and punched a wall in the laneway. Told [the mother] to have an abortion. Most recent incident night before 1st session of counselling – followed the general sequence”.
The father acknowledged that he would need to work on his behaviour, specifically yelling and putting down the mother, if he wanted to improve their relationship.
At a further counselling session with RA on 17 November 2010, at which only the mother was present, the mother told the counsellor that she was not able to speak openly in front of the father for fear of retaliation and that she was afraid that he would interrogate her about what she said in individual counselling sessions. Asked to describe the worst incident which had occurred, the mother described an occasion when the father arrived at her house, screaming that he would kill her. J was with her. The mother said she ran to the car with J and the father chased her. She drove to the police station and the father followed. The mother recounted another incident at a birthday party held at her house when the father was screaming and punching walls in front of another mother and child. The subject children were also there. The mother said there had been several incidents where her neighbours had called the police due to the father’s screaming but she said that he had not ever hit her although he had once shoved her to the side. The mother told the counsellor that she went out of her way to minimise the father’s time alone with the children because she did not feel confident that he would not yell at them and threaten them. She said she also tried to get the children out of the way at the first sign of conflict.
The father alone attended a counselling session with RA on 24 November 2010. The father acknowledged that the children were present on many occasions when there was conflict between the parents. The father told the counsellor that “going into a rage” is his only way to express his feelings. In that session the father also told the counsellor that, when he was a child, his mother used to scream a lot and that his father, although quieter, snapped and hit the children.
In an individual session on 8 December 2010, the mother told the RA counsellor that she still feels controlled by the father and that his controlling behaviour in relation to her clothing was getting worse. The mother said that the father was constantly making comments about her being a slut and complaining about her clothing.
The father attended an individual session at Relationships Australia on 8 December 2010. The father acknowledged that his pattern of behaviour was to be non-assertive and then blow up and be aggressive.
In a counselling session with Relationships Australia on 14 December 2010, the mother told the counsellor that in a course of arguments with the father he had said that he could understand why men hurt or kill their wives or children. The counsellor explored with the mother whether or not she had any concerns that he would act in that way and the mother said that it was likely in her view that the father would go into a rage but that she did not think he was capable of doing something premeditated. The mother also said that she could envisage the father hurting her but not hurting the children.
In a session with the father on 14 December 2010, the father told the RA counsellor that he did not wish to go to mediation because he might become really angry and lose his temper in mediation. The father told the counsellor that he felt his anger had been more under control in the past year and that his family had noticed an improvement. The father said that his anger had sometimes been problematic for his family not just for the mother. The father told the counsellor that he had no intention of harming the mother even though he “wanted to punch her in the face”. The counsellor noted “This was just a thought during their argument”. In that session the father told the counsellor that he was concerned about incidence of violence that have happened in the past but that he is not behaving in the same way presently.
In a joint session with RA on 28 March 2012, the counsellor noted that the presenting problem for the couple was constant conflict. The mother told the counsellor that she cared for the father but does not like his behaviour. The father told the counsellor that the mother made him behave in the way that he does by hiding things from him.
In a joint session with RA on 16 April 2012, the topics which were noted for discussion were Facebook, the mother’s surname, and the mother’s clothes. The counsellor noted the mother’s perception that the father talked about those issues to the point of obsession. The father told the counsellor that because of the mother’s culture and religion, she should modify her behaviour. The father said that he was convinced that the mother still loved J’s father and that by continuing to use that surname she remained loyal to her previous partner. The counsellor noted that a cycle of blame and fault finding had been present from the very beginning of the relationship.
On 20 April 2012 the mother took the children to visit Ms R and their cousins in W Town. She deposed that the father continually called her as she drove to W Town and after she arrived. That night he sent a text message saying “stay ther do wat you want with who ever you want how ever you want and its up to you if you want to stay for Sunday it does not bother me you or the kids” (Errors as per original). (The children were to spend time with their father on Sunday). The father texted “the kids don’t care if they see me or not. I don’t do anything for them anyway”. The mother decided to return to Sydney with the children. She received another message from the father “If you want I’ll ring the family law court and get an application for the kids that I don’t see them they have nothing to do with me and you have full custody of them I’ll put an AVO on myself never to go near you or the kids again”.
Ms R deposed to overhearing about ten telephone calls between the mother and the father that evening. She deposed that the mother said to her “[The father] has rung me over and over tonight, he keeps on telling me that I am not to wear this dress, and he is continually swearing at me. I can’t put up with this any longer, I have decided to go back with the children to Sydney rather than stay with you tonight …” Ms R was not required for cross-examination.
In a joint session with RA on 23 April 2012, the parties discussed the mother’s trip to W Town with the counsellor. The father told the counsellor that he was unhappy about her decision to go to W Town to visit her sister-in-law. The counsellor explained to the father that this was controlling behaviour but the father did not accept the counsellor’s view. The father said that the mother had made him upset by not including him in her life. The counsellor continued to attempt to explain to the father that his behaviour was controlling and he started to get upset and yelled at the counsellor. The counsellor asked the father to leave the room. The counsellor again recommended to the father that he engage in some sort of anger management course.
On 6 August 2012, the mother had a session with RA. The mother told the counsellor that she was feeling scared, anxious, hurt and upset. She said that she was thinking of ending the relationship but that she knew the father would get very angry and upset and was concerned about the welfare of her children.
In a joint session with RA on 13 August 2012, the counsellor discussed with the father his problems with anger management and noted that the father had started seeing a psychologist. The mother told the counsellor that she continued to be upset by the father following her, trying to find out private things about her, for example by going through her rubbish bin and her papers. The counsellor noted that the father tried to excuse his behaviour by blaming the mother for not telling him things about herself. The counsellor noted “I expressed my opinion that even above (sic) happens, he is not given a right to do what he does and this level of control has to stop”.
The father had a session with RA on 31 September 2012. The counsellor noted that the father had not taken any of the suggested steps to work on himself and that he was feeling much worse because of what he perceived to be further rejection from the mother. The father told the counsellor that he felt obsessed by his need to find out more about the mother and has to give in to that need.
ALLEGATIONS OF HARRASSMENT AFTER THE AVO
The mother alleged that the father continued to harass her after the AVO was granted on 24 October 2013 for a period of two years. The father denied those allegations.
The mother deposed to the following events:
· That in January 2013 she received a phone call and recognised the father’s voice saying “Wait and see what’s coming to you you fucken (sic) slut. Just wait and see”.
· In March 2013 she received a call at 2 am and recognised the father laughing in the background. She received seven more calls from the same number but did not answer. Also in March 2013 the father closely followed the mother’s car from the local shopping centre but turned away before he reached the prohibited distance from her home.
· In September 2013 the mother received a phone call. The caller did not speak but the mother heard the father in the background saying “Say it. Just say it”
· In October 2013 the mother saw the father riding a motor bike up and down past her house.
· Also in October 2013 the mother heard cars passing up and down in front of her house intermittently between 10.30 pm and 3 am. She looked out her window and heard the father scream out “You’re a fucken (sic) dead slut, you fucken (sic) slut”. On other occasions through the night she heard the father screaming at her, calling her a “slut” and a “whore”.
· In November 2013 the mother received a call from an unknown woman who called her a “sick bitch” and a “fucken (sic) slut” and the mother heard the father’s laugh in the background.
· The wife received many more phone calls from unidentified private numbers, some calls silent and some abusive. She did not identify the father as the caller.
These allegations were put to the father in cross-examination. He denied any involvement. When it was suggested to the father that the mother had produced her telephone records and that he could be satisfied that she had received calls, the father’s explanation was that the mother had probably obtained a mobile phone, registered it to a false name and address and made the calls to herself. The more likely explanation is that the father, or his associates, made the calls as the mother alleged. There is no reason to doubt the mother’s identification of the father as perpetrator, other than his denials. However the father denied other allegations in cross-examination which he was forced to concede when shown documents. I accept the mother’s evidence of the father’s behaviour after the AVO.
Dr I in her oral evidence, said that controlling behaviour, in the context of a relationship, takes time to abate after the end of the relationship. It would appear that the behaviour of the father towards the mother, after the end of the relationship, has been consistent with Dr I’s assessment.
ANTISOCIAL BEHAVIOUR
Dr I, in her oral evidence, said that there is a higher incidence of antisocial behaviours among perpetrators of intimate partner violence. She also said that the father had a history of antisocial behaviour, which included matters relating to physical violence and traffic offences and that she had taken that behaviour into account in formulating her recommendations.
Dr I described the father as having a strong antisocial orientation and said that the prospects of modifying that orientation were not encouraging.
The instances of violence involving the father and unrelated parties have been discussed earlier in these reasons.
The father‘s behaviour in relation to driving offences has also caused concern.
On 27 January 2009, the father was apprehended driving a motor bike without a motor bike licence, the motor bike being unregistered and uninsured.
On 15 August 2009, the father was apprehended and charged for driving in excess of 45 kilometres above the speed limit. He was disqualified from driving for six months on 2 September 2009.
On 3 September 2009, the father completed a licence application in Queensland. In the application he gave his address as X Street, Suburb Y, Queensland, …. The father was required to provide evidence of residence in Queensland and provided a document which is described as “Bank Change of Address” dated 3 September 2009. In the document the father answered the question “Are you currently disqualified from holding or obtaining a driver licence because of an order of any Australian or overseas court”. The father answered “No”. Asked “Have you recently completed a period of disqualification” the father answered “No”. Asked “Is your driver licence currently cancelled or suspended”. The father answered “No”. Asked “Has your licence been cancelled or suspended in the past five years”. The father answered “No”.
In his oral evidence the father said that he had read the declaration which he had signed, to the effect that the answers are complete, true and correct in every detail, and that he understood that he could be prosecuted for giving false information. The father said that he lied about his address, in the licence application form, because he needed his licence for work. The father denied that he was aware that his New South Wales licence had been cancelled, despite the fact that the cancellation had occurred only the day before. The father lied to the Queensland licencing authorities.
On 9 November 2011, the father was charged with driving whilst disqualified. When the father was pulled over by the police he was asked whether he had ever held a New South Wales drivers licence to which he replied “Yeah, but it was ages ago. I moved interstate a while ago”. That statement was false. The father maintained to the police on that occasion that he was totally unaware that his New South Wales drivers licence had been disqualified and further stated that he was allowed to drive because he held a Queensland drivers licence.
Those proceedings were heard in 2010 and the father defended the charge by relying upon the driver’s licence which had been issued in Queensland on 3 September 2009, knowing that the licence had been issued as a result of his false assertion that he was resident in Queensland. In cross-examination the father conceded that he also understood, at the time he defended the proceedings in New South Wales, that the Queensland licence was void because he had read the declaration on the application form which stated “I understand that if I have stated anything in this application that is false or misleading the drivers licence granted to me as a result of this application will be absolutely void and have no legal effect whatsoever”. The father did not disclose to the court in New South Wales that he had given a false address in order to obtain a Queensland drivers licence.
On 12 January 2013, the father was apprehended driving 152 kilometres per hour in a 60 kilometre zone. He was issued with a suspension notice and had his driver’s licence suspended for six months.
SUPERVISED CONTACT REPORTS
The cost of the supervised visits has been met by the father.
The ICL tendered the reports of the supervised contact visits with M, N Services, P Services and O Services, covering some three and a half years. More importantly, those reports were made available to Dr I who read them and assessed the father’s behaviour and interaction with the children and the supervisors and the mother’s interactions with the supervision process.
The reports establish that the father missed five sessions with the children over the period.
The supervision by M was terminated by M because of the perceived lack of co-operation by the mother. On 5 March 2013 a letter was written by M setting out instances of the mother’s arriving late with the children and cancelling contact arrangements. The mother was 50 minutes late on 22 December 2012. She cancelled contact the day before the visit on 24 December 2012; on the morning of 29 January 2013; on the morning of 10 February 2013; on the morning of 23 February 2013 (although that visit ultimately occurred though it had to be cut short); she cancelled the evening before the visit on 1 March 2013 and cancelled the visit on 4 March 2013.
Annexed to the father’s affidavit was a schedule setting out 53 occasions when the contact visits were either cancelled by the mother or did not otherwise occur. That evidence was not challenged.
The father asserted that the mother was controlling and inflexible in relation to the supervised visits.
The mother agreed that members of his family had asked to be included in the visits but that she had not agreed.
The father asked for the venue to be changed to a more “child friendly” venue than the library. The mother did not agree.
The mother hired a private detective to monitor the supervised visits on at least three occasions. The reports of the private investigator were tendered without objection. The tenor of the reports, which included numerous photographs of the children and of the father and the supervisor, taken without their consent, and transcripts of their conversations was that the children had an enjoyable time with the father. The reports refer to the children being comfortable and happy with the father. On one occasion the private detective took two hours of video footage of the contact visit.
Also tendered in the mother’s case was correspondence addressed to the supervisors requesting minute details of the contact visits. Her trial affidavit was replete with criticism of both the father’s behaviour and the supervisors’ behaviour during visits.
Dr I described the mother’s attitude to the supervised visits as controlling. There were other aspects of the mother’s case that suggested a need to control the children’s activities. For example, she sought an order that the paternal grandmother attend English classes (despite her oral evidence that she could communicate quite easily in English with the paternal grandmother). She also sought an order that the room set aside for the children in the house of the paternal grandmother be re-decorated.
Overall, the records of the supervised visits demonstrate that the father’s behaviour was appropriate. The mother pointed to one occasion in recent times when the supervisor stated that the father became angry when B insisted on blowing a whistle in the library. The father said in cross-examination that he was “stern” but not angry. The supervisor did not give evidence. Dr I was aware of that report.
THE CHILDREN’S SCHOOLING
The mother has opposed, and continues to oppose, any involvement by the father with the children’s school.
On 14 December 2012 an order was made by consent, that the father not attend at the school or pre-school attended by the children.
Notwithstanding the existence of that order, on B’s first day at school, the mother arranged for a security guard to escort her and the children. The father did not attend.
When B was enrolled in the 2015 school, with the consent of the father, the mother completed the enrolment form and did not include any details of the father.
Similarly, when B and C were enrolled in their current school in 2016, the mother completed the enrolment forms and did not give the father’s details.
When C was enrolled in pre-school, the mother did not give the pre-school information about the father.
At trial, the mother’s position was that she should have sole parental responsibility; that the father should not be permitted to communicate with or attend at the children’s school except to arrange a parent/teacher interview and that he be invited to two school functions each year, to be chosen by her.
The father sought an order that the parents share responsibility in relation to schooling.
In support of her application the mother relied on a letter sent by the father’s solicitors to the 2015 school seeking information about B. The mother regarded the letter as inappropriate. The father deposed to numerous emails and telephone calls to the asking for information in relation to B’s progress and extra-curricular activities. Because the school did not respond, he asked his solicitor to contact the school, and advise that he had equal shared parental responsibility for B. After that, the school provided newsletters and reports to the father. While the solicitor’s letter contains information, which was not necessary, about the state of the litigation between the parties, the contents were not such as to cause concern. The mother did not point to any other evidence of behaviour on the part of the father which would suggest that he would not behave appropriately in his contact with the children’s school.
The ICL sought orders which ensured that the children remained at their present school for their primary schooling and that the father be permitted to attend all occasions to which parents are invited.
B experienced very significant behavioural problems at school in 2015. The problems commenced towards the end of the first term in 2015 and culminated, after a number of meetings between the mother and representatives of the school, in an agreement that B would be enrolled elsewhere in 2016.
The mother first became aware of the problem in September 2015. From then until December 2015 she had a number of meetings with the school. On 4 December 2015, the mother attended the meeting at which it was agreed that B would not attend the school in 2016 and a letter dated 4 December 2015 was written to the mother by the Acting Deputy Headmaster confirming that position.
The father found out about the problems from a media report in January 2016.
Although there was in effect an order that the parents have equal shared parental responsibility for the children, the mother did not, at any time, tell the father about the problems or about the meetings. She did not tell the father that B (and therefore C) were to change schools in 2016. She did not provide him with a copy of the letter dated 4 December 2016.
Dr I in her oral evidence said that the father’s involvement in the children’s school would be of benefit to them and she recommended that the father be able to engage in the activities which are open to parents.
THE REPORT OF DR I
Dr I recorded the father’s version of the altercation at his nephew’s birthday party. Dr I records:
At the end of August it was his nephew’s birthday and [the mother] wanted to buy a present so they went to the [Suburb T] Plaza. ‘Everything was good between us’; he was living at the home at the time. They were still intimate; [the mother] had been pregnant again and miscarried in July. There were words between them when [B] referred to him as ‘[first name]’ and [Mr Ahmed] said he didn’t like that. [The mother] told him he should grow up. After they left shopping [the mother] said she needed to talk to him: [B] had said he was scared of him. [The father] thought that might relate to an incident 18 months ago when they were on a boat and had a near miss and he panicked and screamed and [B] had said ‘you’re scary’. They were in couples counselling at the time and [the father] said they should ‘drop it’ … [The mother] kept on about it and at some point [B] jumped onto his lap and [the father] asked him: ‘Are you scared of me?’ [B] looked at his mother and said: ‘Yes because you always scream at mum’. [The mother] was angry with [the father] for asking [B] and he said he was sorry. ‘It probably wasn’t the right thing to say’. They decided to talk about it later.
Dr I observed the children with their father and the paternal grandmother. Dr I noted:
The boys were clearly very pleased to see their father and grandmother. [The grandmother] was very affectionate towards them. [The father] had a lot of photos of the cousins and other members of his family to show the children; they were quite interested. [The grandmother] spoke about her eight grandchildren, aged between 13 and 2½; she is obviously a doting grandmother. She said she felt both delighted to see the boys today but saddened that she was missing out on them. She asked after [J]. I noted she made reference to [J] several times in a very caring manner; it seemed that her bonds with the children had included him as well.
There was a very boisterous interaction between the children and their father, which they enjoyed greatly. There was a lot of very vigorous physical interaction and they became excited and a little dysregulated in terms of their emotions and behaviour; there was now more rivalry between them. I felt some concern that the extent of dysregulation was probably exhausting and likely to end in tears, as often occurs when young children are excited. It wasn’t clear whether this was always the nature of their interaction with their father or whether the circumstances of the assessment had caused [the father] to engage in a more intense way. In fact, there were no tears and the boys coped well with this interaction.
When Dr I saw the children alone after the session with their father and grandmother they told her that they had had a good time and would like to see their father again and also their various cousins. Dr I noted that the children spoke about their cousins with manifest affection.
Dr I described the history of behaviour reported by the mother as perpetrated by the father as “violence, stalking, threats, intimidation and controlling behaviour”. Dr I noted:
If this is an accurate profile it suggests a typical pattern of domestic violence, more particularly the form known as ‘coercive control’, which is characterised by: the exercise of power and control; intimidation; emotional abuse; stalking; minimizing, denying, and blaming; use of children; asserting male privilege; economic abuse; coercion and threats; actual physical violence is not necessarily prominent in coercive control.
Dr I continued:
While there is no psychiatric disorder evident in [the father], this does not exclude the possibility of domestic violence …
Dr I continued:
If a pattern of domestic violence is applicable to [the father], then his parenting capacity would be in question since parents who are abusive towards their partners are also likely to abuse the children.
[The father] denies the mother’s account of his behaviour and explains her actions as manipulative and designed to alienate the children from him. If this were the case then that would raise concerns about [the mother’s] personality function and her parenting capacity since such behaviours would be damaging to the children.Asked whether treatment or services were recommended for the father, Dr I stated:
If the Court were to determine that the father has perpetrated significant domestic violence then intensive psychological intervention would be required to ameliorate such behaviour and it would require commitment and motivation and some insight on the part of the perpetrator. Research suggests that current interventions have a minimal impact on reducing violent recidivism … including court mandated programs.
Dr I stated:
[The father] does not accept that he has perpetrated domestic violence and denies the mother’s allegations. He has been willing to engage in an anger management program but this is unlikely to be sufficient to deal with a problem as serious as that suggested by [the mother’s] history; research suggests that anger management programs have a low impact in serious domestic violence.
Dr I stated that if the mother’s history is reliable than her anxiety about contact with the father and the children’s contact with the father is appropriate.
In relation to the capacity of the parents to communicate with each other in relation to parenting matters Dr I stated:
The ability of the parents to communicate effectively at present is limited; there is little goodwill and [the mother] believes she has good reason to fear [the father] and wishes to limit any contact with him. If her account of domestic violence can be relied upon then there are risks in allowing a line of communication to remain open; there is sound research evidence that coercive control continues after separation and that parenting arrangements provide a ready avenue for this.
Dr I stated “If the mother’s account of domestic violence can be relied upon then it is appropriate that the children remain in her care and that contact with the father is limited”.
In relation to the father’s proposal, maintained at the time of the report, that there should be an equal shared parenting arrangement, Dr I stated that:
The father’s proposal for an equal shared parenting arrangement is difficult since: the children have never been in his primary care; they ought not to be separated from [J] for lengthy periods; [the father] does not have an established household of his own; he is in a new relationship and there is no information about his partner’s suitability as a stepparent. [The father’s] dysregulated behaviour with the children suggests that he would not be an optimal primary carer.
Dr I continued:
The children have been in the primary care of the mother throughout their lives and a change of residence would be traumatising and does not seem indicated. Substantial contact with the father would be difficult for reasons explicated above and may cause major difficulties for the mother: she would feel intensely anxious about this and that would undermine her mental health and her parenting capacity; the children’s time with their father would have to be under safe circumstances.
In relation to the circumstances in which the children should see the father Dr I commented:
The paternal grandmother is clearly committed to sustaining contact with the children and indications are that the children would benefit from a relationship with her and with the extended paternal family provided that they could accept the need to protect them from domestic violence, including psychological or emotional abuse or manipulation; [the mother] suggests they would not be able to provide such protection.
DR I’S ORAL EVIDENCE
Dr I did not support the mother’s proposal for the children’s time with their father to be professionally supervised for an indefinite time.
During cross-examination, Dr I stated that professional supervision of the children’s contact with the father should not persist in the long term. She suggested that the children’s contact with the father should slowly increase and change should come about incrementally.
Dr I stated that the children should have time with the father in a supervised care arrangement in the presence of the paternal grandmother or a paternal family member each fortnight initially for two hours and later for four hours.
It was suggested by Dr I that after at least 12 months it would be possible for the children to spend time with the father unsupervised during the day time for half a day or a full day each fortnight.
Only after B turns 11 years old in 2019 should the children spend overnight time with the father.
Dr I stated that, in her view, the ultimate goal is allowing the children to spend time with the father over alternate weekends from the end of school on Friday to the start of school on Monday.
Dr I described the personalities of the father and the mother in the following terms:
I’ve said in my report, the father’s not an optimal person, in that he is a bit dysregulated in his behaviour and the mother’s very anxious and the children recently are a little disturbed as well and I think because of other things that have happened and it has been a long period of very restricted contact. So, I think that the safest way to progress is slowly, taking into consideration all of that.
In relation to the mother, Dr I described her as a very anxious mother whose fears are likely to intensify by giving the children more time with the father. Moreover, Dr I found that the mother could not separate her fears about herself from her fears about the children. Dr I said that there is no real evidence of the father having been abusive to the children at any stage, and that he seems very committed to developing his relationship with his children.
In relation to the father, Dr I stated that he exhibited dysregulated and antisocial behaviour. In particular, Dr I stated that the father exercised coercive control over the mother during their relationship.
Nevertheless, Dr I stated it is in the best interests of the children to have contact with their father. Dr I said that if the children did not spend any time with the father it could potentially be very damaging psychologically to the children.
The regime suggested by Dr I was informed by two concerns. Firstly, Dr I assessed the impact of the regime on the mother. Secondly, Dr I assessed the risk of harm to the children inherent in her recommendation.
Dr I indicated that past behaviour is the best predictor of future behaviour, and that there have not been any allegations that the father has abused the children. Furthermore, Dr I said the father has contained his behaviour very well since separation in terms of the children, and has functioned quite well during supervised contact that has sometimes been quite frustrating.
Dr I assessed that the father had shown a good capacity to control himself with the children and would be appropriate with them.
In terms of risk to the children, Dr I stated the fact that the father has been abusive in an intimate relationship means that, compared to someone who has never been abusive in an intimate relationship, statistically he is a higher risk. It was the opinion of Dr I that the father was regulated enough to contain himself with the children in a physical way. She said:
Well, if four years of contact with him having largely been behaving appropriately is not adequate then I don’t know what the test becomes then.
And:
… if four years of supervised contact with him behaving appropriately most of the time is not adequate, then … I don’t know what the next step would be then.
It was Dr I’s view that contact with the father in the company of members of the paternal family would be beneficial to the children and would offer more scope for the development of their relationship than would the more restrictive and artificial circumstances of professionally supervised visits.
In relation to professional supervision of the children, Dr I stated:
I would still say that a professional supervision situation, in my experience, can’t go on indefinitely. I don’t see how it can go on forever. And as a … step forward, having the grandmother supervise, rather than a paid supervisor, I think … possibly would be acceptable.
As to the children’s initial contact with the father, Dr I said:
If I were going to make suggestions, I would suggest that it start off with exactly the same time that’s involved now, which is something that the mother and the boys are used to and leave it at that for some months, until that seemed to be okay, before thinking about moving on a little bit further. And then, yes, I would say progress very slowly.
As to the children’s contact with the father after a period of supervised care, Dr I said:
I would see a progression beyond two hours to something like half a day or even a full day would be … much more realistic. I think overnight becomes rather fraught and it’s a big step. If there was sufficient confidence that the children could have a day … just do the normal things that children do on, perhaps, weekends when they’re not at school, I think that would be a great achievement. But I think don’t talk about overnight just yet … Getting to a day of just normal family activities would be an achievement.
ADDITIONAL CONSIDERATIONS
The additional considerations set out in s 60CC(3) of the Act, inform the decisions to be made about the appropriate arrangements for the children to spend time with their father and also the decision about parental responsibility.
The children’s views
The children told Dr I that they would like to see their father again. They also expressed a wish to spend time with their cousins. The children have also, in the past, told their mother that they did not want to go to see their father. However, the mother remains of the view that they should see him and have a relationship with him.
This is not a matter where the children’s wishes are determinative. They have not spent unsupervised time with their father since late 2012 and their views, such as they are, have been formed in the limited and difficult situation of supervision and against the background of their mother’s anxiety about their spending time with their father.
The children’s relationships
I accept the evidence of Dr I that the children have a secure attachment to their mother. I also accept that they relate affectionately towards their father and that they have a playful relationship with him.
Dr I stated that it would not be in the interests of the children for them to be separated from J for lengthy periods. The strongest attachments of these children are to their mother and their older brother.
The children also displayed an affectionate relationship towards their paternal grandmother and expressed a wish to spend time with their cousins. The mother gave evidence that the children’s aunts and uncles had an affectionate relationship with the children and that they, and the paternal grandmother, were suitable people to spend time with the children. The mother’s only reservations about the children’s spending time with the paternal family was the ability of the paternal family to control the father’s behaviour.
The participation of the parents in the lives of the children
The father has participated in, and paid for, professionally supervised time with the children since late 2012. He has missed only five visits in that time. He has demonstrated a significant commitment to being a meaningful part of their lives.
Because of the father’s limited involvement with the children, the burden of their care has been borne by the mother.
The father has not been permitted to participate in decision making in relation to issues such as schooling and religion. The mother asks the Court to make an order that she be permitted to raise the children in another religion. At least until July 2009 when the mother completed a registration form for Suburb S Hospital, the mother identified as the same religion as the father. It was not unreasonable that the father had an expectation that the children were being raised in his religion. In the course of counselling the father referred to his expectation that the mother, as a religious person, would maintain a particular style of dress. In the course of supervised contact with the children, the father expressed his concern that they had been given lunch outside the dietary requirements of his faith. The mother’s decision now to raise the children in a different religion does not appear to have been communicated to the father except in the course of these proceedings.
Reference was made earlier in these reasons about the mother’s failure to give the father’s name or contact information on various enrolment forms with educational institutions.
The mother maintains a position that the father should have no real involvement with the children’s schooling.
The parents’ obligations to maintain the children
The father has paid child support in accordance with the requirements of the Child Support Agency. However, his contribution has not been significant and the financial burden of the children has been shouldered by the mother. The expenses paid by the mother include the cost of counselling for both children with a psychologist which has been ongoing since December 2012 and continues.
The father has, however, paid the costs of supervision when his time with the children was supervised by private agencies at significant expense. The mother has not contributed to those costs.
The likely effects of change
The mother opposes any change, in the foreseeable future, to the current professional supervision of the children’s time with the father.
I accept the evidence of Dr I that the lengthy period of supervision has been sufficient for the father to demonstrate that he has behaved appropriately with the children.
Whilst the mother will be anxious about any relaxation of supervision, her anxiety is a product of her past experiences with the father and not his present conduct.
I accept the evidence of Dr I that a slowly graduated regime, leading to the children ultimately spending alternate weekends with the father is not entirely free of risk. However I also accept her evidence that the risks, when balanced against the benefits of the children’s relationship with their father and their paternal family being normalised and enriched, are acceptable.
In relation the benefits for the children Dr I said:
I think that that is a difficult situation because a paid supervisor – it’s a very limited experience that a child has in that situation with a paid supervisor. The supervisors change regularly, and you can see that from the reports. They don’t really have an ongoing relationship with the supervisor. It’s an artificial situation. It’s not ideal for children. A family situation, with all its flaws – and I know that all families are flawed, and you won’t get any perfect families. But family situations also offer lots of – (lots of) opportunity for building relationships, for having relationships with cousins, aunties, uncles, which, sure, can be damaging if those people are all badly-behaved people, but have the potential to be enriching, which a supervisor doesn’t really have that potential and the supervision situation doesn’t have that potential.
So, you know, I’m saying that in a family situation children be enriched in all sorts of ways. They have contact with various people. They get to be more understanding of human natures and human beings; it’s enriching. And sure there’s a risk, because families are so imperfect, but a supervision situation going on indefinitely is a pretty sterile situation really.
It’s safe, but it’s sterile.
The practical difficulty and expense of supervision
The cost of supervision is a factor, although not a major one. The father has been assessed to pay $9 per week in child support. I infer that he is not wealthy.
The capacity of each of the parents to provide for the children’s needs.
Dr I has assessed the father’s capacity to provide for the children’s emotional and psychological needs as wanting. It is because of the deficiencies in the father’s parenting that his time with the children needs to be limited in the way that Dr I recommends.
The maturity and cultural background of the children
The father and the paternal family are of Country Z origin.
The mother does not have Country Z background and although she has in the past identified as the same religion as the father, she no longer does and wishes to raise the children in another faith.
The Country Z culture and religious faith are important aspects of the children’s family and their cultural and religious heritage and will only be nurtured within the paternal family.
Professionally supervised time between the father and the children cannot, with the best will, be structured so as to allow the children to participate in these important aspects of the paternal family.
Subject to the over-arching consideration of their safety, it is important that the children have the opportunity to participate in family and religious occasions and celebrations.
The form of limited time recommended by Dr I will be sufficient initially to allow the children to spend time in the setting of the paternal family and, in due course, to participate more fully in family, cultural and religious experiences.
The attitude of the parents to the responsibilities of parenthood
The father has, in the past and particularly before the AVO, acted wilfully and irresponsibly and without regard to the effect of his actions on the mother or on the children.
I accept that he now has some understanding of the effect of his actions but I remain far from convinced that he really understands why his behaviours were unacceptable.
The father has been receiving counselling from Dr G for some years and continues to do so. He understands the language of family violence, readily using expressions such as “coercive and controlling”. However, when asked to describe behaviour by him which fell within that definition, he was unable to do so.
Throughout his evidence, he continued to justify his behaviours in the past by reference to the mother’s alleged failures.
I accept the evidence of Dr I that it is unlikely that the father has experienced characterological change and that the father’s need for control is now likely to carry over into his relationship with the children.
However, I also accept Dr I’s evidence that, in the often frustrating confines of professional supervision, the father has demonstrated a good capacity to control himself with the children and be appropriate with them. Dr I, in answer to questions put by counsel for the father about the father’s rehabilitation said:
… in any rehabilitative undertaking with people, the two things that – that we always look for are remorse and insight. And any kind of offending behaviour, for example, they’re the two things that we look for, is that the person has insight into their behaviour and has some remorse for whatever offending behaviour they may have perpetrated in the past. So that’s really important. Whether one can be rehabilitated without insight, I think that’s possible when – when the person can see that the – they stand to lose a lot by repeating behaviour. So in those cases it’s kind of like they are compelled by circumstances to abide by the rules, not because they actually agree with the rules, but because they are capitulating, really. So I think under those circumstances, sometimes people will reform their behaviour.
Dr I, in formulating her recommendation, allowed for the likelihood of occasional dysregulated behaviour on the father’s part. She did not assume that his conduct when the children were in his care would be exemplary. Nevertheless, I accept her view that the benefits to the children or a more normal relationship with the father outweigh the risks.
Family violence
The father has perpetrated family violence as has been explored earlier in these reasons. The consequences of the father’s behaviour on the mother have been considered at length by Dr I.
Despite the fact of family violence perpetrated by the father, and greatly to her credit, the mother is adamant that the children should have a meaningful relationship with their father.
Dr I supported the mother’s position. In her oral evidence she said:
… they’ve had a continuous relationship with him since their birth, so he’s – it’s a significant relationship and for that relationship to end would be a significant loss to the children and it would have to be explained to them. That poses enormous difficulties about explaining to them why – why they’re not permitted to see their father. It would inevitably, in their minds, raise the idea that he’s bad, to put it in simple terms, and it’s not – it’s not helpful for children to have that kind of view of their parent, especially – I mean, boys identify with their father and if they identify with a father who they also understand to be such a bad person that you can’t even spend time with him, it really becomes part of their own identity, that sense of badness, and it’s very damaging psychologically.
It is because of the past history of family violence that the mother believes that the father’s time with the children should be professionally supervised into the indefinite future.
Dr I has also considered and given evidence about her recommendations about the manner in which the children’s relationship with their father can proceed into the future and her recommendations have been extensively canvassed in these reasons.
The issue to be determined is whether the children’s time with the father remains professionally supervised as the mother proposes; whether the children move quite quickly to unsupervised time as the ICL proposes; or the conservative regime that Dr I recommends.
The mother’s anxieties surrounding the children’s spending time with the father outside of professional supervision are real and cannot be ignored. They may not, however, be objectively reasonable.
As Dr I said:
… there comes a point where we have to look at the circumstances of the individual case and say that, as I’ve said many times today, the father has been appropriate over a period of four years. There’s no real evidence of him having been abusive to the children, at any stage. He does seem very committed. I think eventually you have to begin to weigh up your fears against the reality but, just having those fears, I think is perfectly reasonable and it’s kind of, as I said, intuitively correct.
Counsel for the mother cross-examined Dr I in relation to that issue. The passage from transcript is set out below:
Would you share that with us?‑‑‑Well, I think that she has been very anxious about the circumstances of contact, and possibly over-anxious, given that at times she has reacted quite strongly to what would – would seem to be quite minor issues. So she’s – I would say she’s at least over-anxious. That has to be balanced out in the light of her experience. If someone has experienced abuse they will become highly anxious and perhaps over-reactive to even small stimuli. That’s the – that’s the best understanding of it. At worst, you could say that she also is of controlling character herself.
So then how do we resolve this regime to the best interests of the children when the mother exhibits some controlling behaviours ... In terms of how these children are to be supervised; (2) if you would accept that she’s – my word here – hypervigilant and has – is in a state of – my word again – paranoia about these children against the father’s need – the children’s need to explore this – the meaningful relationship with the father. How do we balance this?‑‑‑I think by proceeding slowly, working towards incremental change.
Avoidance of further proceedings
The proposal of the ICL sees the children’s time with the father move to unsupervised time from the beginning of November 2016. Until May 2018 the children’s time with the father is to be spent substantially in the presence of the paternal family and thereafter the requirements for family members to be present are removed. From May 2018, the children will spend overnight time on Saturday with the father until Sunday afternoon. From November 2018 the time would extend to commence after school on Friday until Sunday and from May 2019 the time would extend to end before school on Monday.
The significant difference between Dr I’s recommendation and the proposal of the ICL is that Dr I recommended that overnight time commence when B is 11 years old (in September 2019) whereas the ICL would commence overnight time in May 2018.
SUPERVISION BY THE PATERNAL GRANDMOTHER
Dr I recommended that the professional supervision of the children’s time with the father be replaced for a period of about six months by supervision by the paternal grandmother. She said of the paternal grandmother in cross-examination that she was an intelligent and sensible person and had a strong commitment to the welfare of the children, and therefore she would be an appropriate supervisor.
Cross-examined about the suitability of the paternal grandmother as a supervisor, Dr I said:
… I would still be relying on the fact that I observed her for a period of I think approximately two hours. I didn’t have the impression that she was a puppet of her son. She seemed to me to have her own mind, and to not be intimidated by him. She seemed to be free to express her own opinions. So I didn’t form a view of her that she was fearful of him, or controlled by him in any way, and certainly that she seemed very invested in the welfare of her grandchildren and had very strong bonds of attachment to them. And all of that, I thought, were very positive indicators.
The paternal grandmother gave evidence and was cross-examined. She was clear in her evidence that it was her role to protect the children and that she would remove the children from the father’s care if she were concerned and return them to the mother. She said that she would advise the mother if anything inappropriate happened when the children were in the care of the father.
The mother expressed grave concerns about the ability of the paternal grandmother to control the behaviour of the father. The paternal grandmother told the Court that she was quite capable of removing the children from him if necessary. I prefer Dr I’s assessment.
I accept that, in circumstances where the father’s behaviour towards the children in supervised contact since 2012 has been appropriate, the paternal grandmother is an appropriate supervisor.
Supervision by the paternal grandmother would have the added advantage for the children of spending time with a loving grandmother and most likely also with other members of the extended paternal family.
CONCLUSION
The Court must balance the benefits to be gained by the children from a gradual and incremental increase in the time they spend with their father as has been explained by Dr I, against the perceived risks.
Dr I identified the mother’s anxieties surrounding the children spending time with the father and the risk that he would not be able to control his behaviour in the presence of the children as risks. She said of the risks:
I don’t think I have an unwavering confidence. I’m suggesting a very cautious approach to changing the supervision – to changing the arrangements for the father to have contact with the children. It’s not an unwavering confidence in the situation.
However, I accept the evidence of Dr I that the benefits to be gained for the children of moving into a more normalised relationship with their father and paternal family outweigh the recognised risks.
The regimes proposed by the ICL and by the father proceed too quickly and do not sufficiently safeguard the children or contain sufficient reassurance for the mother.
The mother’s proposal of indefinite supervision safeguards the children from physical and emotional harm but their time with the father will be sterile and they will be deprived of the richness of experience of the father and the paternal family.
Orders will be made in accordance with Dr I’s recommendation.
SPECIAL COUNSELLING FOR B
The father sought an order that B attend for counselling with a practitioner (other than his current counsellor) who specialised in the type of behavioural difficulties that B had experienced in 2015. The mother opposed that application but is happy for the children to continue with their current psychologist.
Dr I recommended that B be assessed by a specialist in the field who would then be available to provide specialist expertise and liaise with the treating psychologist. She said there were not a lot of experts in this particular field and that she would be able to recommend a suitable professional.
The difficulties which B experienced are objectively of concern and I accept the evidence of Dr I that a suitably qualified professional should, at least, assess B and make a recommendation about appropriate treatment.
Orders will be made accordingly.
PARENTAL RESPONSIBILITY
Because I have found that the father has perpetrated family violence, there is no presumption in favour of equal shared parental responsibility.
The mother has not, in the past, demonstrated a willingness to involve the father in decisions about the children. She expressed no willingness to do so in the future.
However, I am conscious of Dr I’s evidence about the risk that the father would use the opportunity of a requirement that they jointly make decisions about the children to again exercise control over the mother and that his coercive behaviours towards her would continue.
The mother gave evidence about difficulties that she experienced in relation to securing the father’s agreement to the enrolment of B in the 2015 school and again in securing his agreement to enrolment in their current school.
While there would be benefits to the children if their parents could co-operate in decision making for them, there are also risks having regard to the father’s previous perpetration of family violence and those risks outweigh the benefit.
The mother should have sole parental responsibility for the children, subject to a requirement that she keep the father informed of issues and give him the opportunity to state his views before she implements any decision in relation to their long term welfare.
COSTS OF THE ICL
At the conclusion of her submissions, counsel for the ICL made an application for costs to be paid, as to half of the amount, by the mother, the father, being in receipt of a grant of legal aid.
Directions were made for the mother to file a financial statement and any affidavit material upon which she sought to rely in relation to that application. The mother filed an affidavit, financial statement and written submissions.
The application of the ICL falls to be determined pursuant to the provisions of s 117(2A) of the Act.
The only relevant matter is whether the mother can afford to make a contribution to the costs incurred by the Legal Aid Commission in providing representation for the children and particularly in sharing the cost of the single expert.
The mother owes her current solicitors $248,547 (inclusive of counsel’s fees). She has reached an agreement to repay that sum at the rate of $1,300 per week.
The mother has already paid half of Dr I’s fees.
The costs of the ICL are $21,151 which amount includes solicitor’s fees, counsel’s fees and the sum of $4,184 spent on service subpoenas and providing conduct money. The ICL asks that the mother pay half of their costs or $10,575.
The mother earns $245 per week from employment. The balance of her income comes from a carer’s payment, from a remittance from the Perpetual Trustee for the support of J and from child support paid by the father of $9 per week.
I accept that she is not in a position to make a contribution to the costs of the ICL.
I certify that the preceding two hundred and ninety (290) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 June 2016.
Associate:
Date: 6 June 2016
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Expert Evidence
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Remedies
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Procedural Fairness
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