Arap & Arap
[2024] FedCFamC1F 601
•10 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Arap & Arap [2024] FedCFamC1F 601
File number: CAC 867 of 2023 Judgment of: CAREW J Date of judgment: 10 September 2024 Catchwords: FAMILY LAW – CHILDREN – Family violence – Whether the father poses an unacceptable risk of future harm to the children by reason of his alleged history of family violence – Whether the mother has actively negatively influenced the children’s view of the father – Where the family violence perpetrated by the father is at the most serious end of the spectrum and the risk posed to the children and mother is potentially lethal – Where it is found that the father has strangled the mother and one of the children – Where the father poses an unacceptable risk of harm to the children that cannot be ameliorated by supervision nor therapy – Where the father has no insight into the damaging impact of his behaviour and has demonstrated himself to be controlling, overbearing, violent, and passively aggressive – Where the mother has not actively negatively influenced the children – Where the children have their own negative experiences of the father – Where it is not in dispute that the children will live with the mother and she will have sole parental decision making – Where there is limited benefit in the children receiving communication from the father – Where personal injunctions are made against the father enjoining him from approaching the mother and/or children. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 64B, 65D, 69ZT
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Briginshaw v Briginshaw (1938) 60 CLR 336
Eastley & Eastley (2022) FLC 94-094
Isles and Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344
L v T (1999) FLC 92-875
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
U v U (2002) 211 CLR 238
Number of paragraphs: 241 Date of hearing: 20 – 22 August 2024 Place: Heard in Canberra, delivered in Brisbane Counsel for the Applicant: Mr Stagg Solicitor for the Applicant: Alliance Family Law Counsel for the Respondent: Ms Spain Solicitor for the Respondent: Parker Coles Curtis Independent Children’s Lawyer: Ms Mussato, Legal Aid ACT ORDER
CAC 867 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ARAP
Applicant
AND: MS ARAP
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
10 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Ms Arap (“the mother”) shall have sole decision making responsibility for major long‑term issues (as that term is defined by s 4 of the Family Law Act 1975 (Cth) (“the Act”)) for X born 2010, Y born 2012, and Z born 2015 (“the children”).
2.The children shall live with the mother.
3.Pursuant to s 68B of the Act, Mr Arap (“the father”) is restrained by injunction from:
(a)Communicating or attempting to communicate with the mother other than through a legal practitioner acting on his behalf;
(b)Communicating or attempting to communicate with the children other than with the prior written approval of the mother;
(c)Coming within 50 metres of:
(i)The mother, other than for the purposes of court proceedings;
(ii)The children;
(iii)The mother’s residence;
(iv)The mother’s place of employment;
(v)The children’s school; and
(vi)Any place where the children are engaged in extracurricular activities,
other than with the prior written approval of the mother.
4.Pursuant to s 68C of the Act, if a police officer believes, on reasonable grounds, that the father has breached the injunction contained in paragraph 3 of this Order by:
(a)Causing, or threatening to cause, bodily harm to the mother and/or the children; or
(b)Harassing, molesting or stalking the mother and/or the children;
the police officer may arrest the father without warrant.
5.The mother has leave to use the Child Impact Report by Ms B (dated 10 October 2023), the Family Report by Dr C (filed on 30 April 2024), and the reasons for judgment dated 10 September 2024 in any application made under the Family Violence Act [redacted].
6.The mother has leave to provide the Family Report by Dr C (filed on 30 April 2024) and the reasons for judgment dated 10 September 2024 to her treating psychologist, Mr D, upon request.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
This is a parenting case involving three children, X aged nearly 14, Y aged 11 and, X aged 9. Mr Arap (“the father”) and Mrs Arap (“the mother”) are their parents. The children have not spent any time with the father since May 2022 in circumstances where the mother alleges the father has perpetrated significant family violence against her and the children including strangulation.
The father denies the mother’s allegations and contends she has not only influenced the children to make untrue allegations against him but has also acted to turn the children against him.
For the reasons which follow, I find that the father perpetrated family violence, including strangulation of the mother and one of the children, and that he poses an unacceptable risk of emotional, psychological, and physical harm to all three children. The father will be prohibited from spending time or communicating with the children in any way. As s 60CG of the Family Law Act 1975 (Cth) (“the Act”) imposes an obligation on the Court to ensure, as far as possible, that the order does not expose a person to an unacceptable risk of family violence and for that purpose to include in the order any safeguards considered necessary for the safety of those affected by the order, I propose to include personal injunctions against the father to further protect the mother and the children.
ISSUES
The parties identified the following issues for the Court’s determination in the parenting dispute:
(1)Has the father perpetrated family violence, including strangulation of the mother and the children? (The mother seeks a positive finding that the father has perpetrated family violence including strangulation and the father seeks a positive finding that he has not perpetrated physical violence on the mother or the children)
(2)Does the father pose an unacceptable risk of future harm to the children by reason of his alleged history of family violence?
(3)Has the mother actively negatively influenced the children’s view of their father?
(4)Will the mother’s parenting capacity be negatively affected if an order is made for the father to spend time with the children?
(5)Is the father’s parenting capacity impaired by reason of his alleged lack of insight into his own behaviour and the impact of that behaviour on the children?
PROPOSALS OF EACH PARTY
It is not in contention that the children will continue to live with the mother and that she will have sole decision making responsibility for major long-term issues, although the father seeks an opportunity to provide input about the decisions to be made.
Until very recently, the father was proposing a change in the children’s primary living arrangements from living with the mother to living with him or living in a week about arrangement. At the commencement of the trial, the father was granted leave to further amend his Initiating Application to seek an order for him to spend time with the children in a staged process involving family therapy. Exhibit 1 set out the terms of the order sought. During submissions, the father further changed his position by seeking only an interim order that there be family therapy and no specific provision for the children to spend time with him. An amended minute of proposed order was not provided, although it was indicated that exhibit 1 should be amended in the following respects:
(a)Paragraph 2(c) should end after the word “input”;
(b)While no amendment was formally made to paragraph 2(d) it is apparent from the amendment to paragraph 2(c) that paragraph 2(d) should commence from the words “the mother”;
(c)Paragraph 6 was amended by deleting reference to “[E Family Services]” and replacing with the words, “a service to be agreed” with consequential amendments to paragraph 7 where it mentions “[E Family Services]”;
(d)The deletion of paragraphs 9, 10, and 11; and
(e)Paragraph 12 to be amended by deletion of the words “That notwithstanding the operation of order 9” and “as long as recommended by the family therapist” and addition of the words “until further order”.
The mother opposes the father having any contact at all with the children and opposed the father being granted leave to further amend his Initiating Application at what was by then a very late stage in the proceedings. The mother submitted that she would be prejudiced by the late amendment as she would be unable to cross-examine the father and the Family Report writer on the proposed changes. Further, it was submitted that the proposed amendments in seeking only ongoing therapy was not a parenting order and thus the Court had no power to make the proposed order.
The Independent Children’s Lawyer (“ICL”) recommends that the father spend no time with the children nor communicate with them in any way other than by the provision of gifts, cards, and letters. The precise terms of the order sought by the ICL is set out on page 10 of the Outline of Case filed on 7 August 2024.
PRELIMINARY MATTER – AMENDMENT OF FATHER’S INITIATING APPLICATION
Counsel for the mother cited L v T[1] in support of her submission that the Court had no power to make the order sought by the father for family therapy as it was a stand-alone order and not a parenting order. The Full Court in L v T relevantly said:
[1] (1999) FLC 92-875.
51. Whilst we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either a residence order or a contact order, we have significant doubt as to whether such an order can be made as a self-standing order. The Court's power to make any orders in circumstances such as these has to be found within the confines of ss 65D(1), 67ZC, 68B, or 114.
…
57. In our view, whatever the limits of the wardship power are, a parent cannot be required to partake in a course of conduct or cease an activity merely because it would be in the child's interest that the parent so do. It may clearly be demonstrated that it is in a child's interest that a parent remain healthy and to that end give up smoking. Some would say it is essential that all adults undergo regular exercise, eat only healthy foods, and refrain from consuming alcohol. It would not be, in our view, a proper exercise of the “welfare” power for a court to place limits on a parent's conduct unless it could be demonstrated that those limits are necessary for the welfare of the child. Even then, careful consideration would need be given to the right of the parent to conduct their life as they see fit.
…
60. Had the ongoing psychiatric treatment been imposed as a condition of contact, then, in our view, on the evidence available to her Honour such an order could well have been upheld. However, the form of the order leaves it free standing, and in our view it does not comfortably fit within any of the heads of power that we have identified. In those circumstances we ordered that Order 13 be set aside.
In my view, it is apparent from the terms of paragraph 6 of the proposed amendment to the order sought by the father that the family therapy order is not a stand-alone order but rather a condition precedent to him spending future time with the children. Paragraph 6 is in the following terms:
6. Forthwith the parties are to do all things and sign all authorities necessary for the children and father to engage in family therapy through a service agreed to by the parties, for the purposes of:
(a) Repairing the bond between the children and the father; and
(b)Mitigating any impact on the children's sense of safety and stability if they were to spend time with their father; and
(c)For the service provider to make recommendations about the progression of the children's time with their father.
As to any prejudice to the mother by the late amendment, I note that the Family Report writer raised the prospect of family therapy and the stabilisation of X’s mental health being a necessary pre-condition to the father spending time with the children in paragraphs 201–203 of her report. It seems to me that the mother was on notice that the Court may consider an interim order and cross-examination of the expert could have addressed that prospect. During the ICL’s submissions, the prospect of an interim order was raised by the Court and the ICL opposed the making of an interim order. The mother had the opportunity to make submissions about the prospect of an interim order and her opposition thereto was made clear.
Finally, the High Court in U v U[2] established that when considering what parenting order is in the best interests of the children, the Court’s discretion is not fettered by the orders sought by the parties.
[2] (2002) 211 CLR 238 at [171].
Accordingly, the application by the father to further amend the orders sought by him is granted and I will treat exhibit 1 with the additional amendments noted during submissions to be the form of interim order sought by the father as it relates to further time he might spend with the children. There is no issue, as already noted, for a final order being made that the children live with the mother and that she have sole parental decision making for major long-term issues.
BACKGROUND
Before turning to the issues, it will be helpful to set out some background to the parents’ dispute.
The parents commenced cohabitation on [redacted] 2006 and married on the same date 10 years later, being [redacted] 2016. They separated on 13 May 2022 and are not yet divorced.
The parents commenced cohabitation in Australia before they relocated to the United Kingdom in [redacted] 2007. They returned to Australia in [redacted] 2011 following the birth of their first child.
The father is 50 years of age and employed as a public servant. He receives a weekly wage of $2,033. He is in good health.
The father commenced a new relationship with Ms F in about August 2022. They have been cohabitating since November 2022. Ms F is 48 years of age. She has two children, aged 19 and 17. The father, Ms F, and her two children live in a property owned by Ms F in [redacted]. The father pays Ms F $125 per week in rent.
The mother is 44 years of age and employed as a [redacted] manager at the [redacted]. She receives a weekly wage of $2,261 and receives child support from the father of $384 per week. She has not re-partnered although she told the Family Report writer, Dr C, on 16 February 2024, that she was “seeing someone in a long distance arrangement”. The mother and children continue to live in the former matrimonial home.
A final property settlement order was made by consent on the last day of the trial, being 22 August 2024, which provides for the mother to retain the former matrimonial home subject to the mortgage and subject to paying the father the sum of $80,000. Each party will otherwise retain their modest assets and superannuation.
As earlier identified, the three children of the marriage are X born 2010, Y born 2012, and Z born 2015.
X is in Year 8 at H School. He has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) although the father contends this diagnosis is contentious. On 18 January 2024, the mother arrived from walking the family dog to find her neighbours, [redacted], standing around X and [redacted] told the mother, “I had to get the ladder to get him down off the roof”. When the mother went inside the house, she discovered that X had slashed his bedding and pillows with a knife, had cut his hair, smashed his computer screen, broken his money box, and there was a burnt blanket in the backyard. X spent the night in hospital. Dr C describes X as having experienced an acute mental health crisis. X is under the care of a psychiatrist, psychologist, and paediatrician.
Y is in Year 6 at J School.
Z is in Year 4 at J School. He is in receipt of National Disability Insurance Scheme funding for speech therapy.
On 7 December 2022, a Family Violence Order was made naming the father as the respondent and the mother and children as protected persons. The order was to be in place for 18 months and was due to expire on 7 June 2024. The mother has applied for an extension of the protection order with the next hearing to occur on [redacted] 2024. Pending hearing, the protection order will remain in place until at least [redacted] 2024.
On 7 November 2023, an interim order was made by consent that the father not spend any time with the children and the father was to enrol in a Men’s Behaviour Change Program.
Parenting proceedings were commenced by the father in the Federal Circuit and Family Court of Australia (Division 2) on 25 May 2023 and the matter was transferred to a specialist list called the ‘Evatt list’ on 29 June 2023, supposedly to ensure the prompt hearing of the matter given the serious nature of the allegations.
The matter was transferred to this Court on 13 May 2024 and listed for trial less than three months later.
APPLICABLE LEGAL PRINCIPLES
Parenting proceedings are regulated by Part VII of the Act as amended. Section 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects and matters that must be considered when determining what parenting order is proper.[3]
[3] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects of Part VII of the Act are set out in s 60B and are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to the matters set out in s 60CC and generally include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child’s needs; the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and 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. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet 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, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty, etc.
Abuse in relation to a child is defined in s 4 of the Act and includes subjecting or exposing a child to family violence.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[4] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[5] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[6] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[7]
[4] Evidence Act 1995 (Cth) s 140.
[5] M v M (1988) 166 CLR 69 (“M v M”).
[6] Ibid.
[7] Ibid; N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the “matrix of evidence”[8] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[9] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[10] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[11]
[8] Eastley & Eastley (2022) FLC 94-094 at [31] (“Eastley”).
[9] Johnson & Page (2007) FLC 93–344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen (2022) FLC 94-092 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[10] Isles (fn 9) at [7].
[11] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[12] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[13] on each and every factual dispute.
[12] Baghti & Baghti and Ors [2015] FamCAFC 71.
[13] M v M (fn 5) at 76.
Each parent has parental responsibility (i.e., all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).
Section 61D provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[14]
HAS THE FATHER PERPETRATED FAMILY VIOLENCE, INCLUDING STRANGULATION OF THE MOTHER AND THE CHILDREN?
[14] Banks & Banks (2015) FLC 93–637.
The mother seeks a positive finding that the father perpetrated family violence including strangulation of her and the children. The father seeks a positive finding that he has not perpetrated physical violence on the mother or the children.
It seems to me that I must first consider whether it is necessary in these parenting proceedings to make a positive finding at all, and secondly, if it is, to consider whether evidence not directly related to the acts of alleged strangulation of the mother and the children can be relied upon in making a positive finding of strangulation against the father.
In the context of parenting proceedings where an allegation of sexual abuse of a child was made, the High Court of Australia in M v M[15] said at 75 –76:
… In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to “regard the welfare of the child as the paramount consideration” (s. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by s. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression… In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. …
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw …
(Citations omitted)
[15] M v M (fn 5).
In an often quoted passage from Briginshaw v Briginshaw (‘Briginshaw’),[16] Dixon J said:
…[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. … [I]t is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[16] (1938) 60 CLR 336 at 361–362.
As the proceedings are child-related proceedings, Division 12A of Part VII of the Act applies. Section 69ZT of Division 12A provides that certain provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) do not apply, including provisions which deal with tendency and coincidence, and credibility and character unless the Court decides otherwise. Accordingly, if I find it appropriate to make a positive finding, then all admissible evidence may be taken into account in determining whether the party bearing the onus of proof has proved the allegation on the balance of probabilities mindful of the Briginshaw test and s 140 of the Evidence Act.
Section 140 of the Evidence Act provides as follows:
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.
In the context of this case, having regard to the orders being sought by each parent and the fact that each parent seeks a positive finding in their respective favour, I consider it appropriate to determine the issue as formulated by the parties. Given that strangulation can have a lethal consequence it is also relevant to the assessment of whether any future risk can be ameliorated.
If I am unable to make a positive finding that the father perpetrated family violence including strangulation on the mother and children but also unable to make a positive finding that the father did not perpetrate physical violence on the mother and children, I will nevertheless need to identify the risk posed by the father, if any, and determine whether that risk is unacceptable in the M v M sense.
What is the evidence of family violence including strangulation?
As earlier identified, family violence means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Coercive and controlling behaviour is a most insidious form of family violence that often removes agency from the victim to the point where their self-esteem and self-worth is greatly diminished. Where present, it can have a cumulative impact that causes the person to doubt their own sanity and to believe that they are the problem. Repeated derogatory taunts, undermining friendships and associations, physical violence and threats, and financial deprivation may all be elements of coercive and controlling behaviour.
The mother alleges that the father engaged in the following types of behaviour towards her and/or the children:
(a)Coercive and controlling behaviour;
(b)A physical assault on the mother in mid-2008 involving a punch to her face;
(c)A physical assault on the mother including strangulation on 10 May 2022;
(d)Physical assaults on each of the children including strangulation;
(e)Repeated derogatory taunts including calling the mother “crazy”, “insane”, “useless”;
(f)Preventing the mother from making or keeping connections with her family or friends;
(g)Unreasonably withholding financial support; and
(h)Destruction of property.
The father denies the mother’s allegations almost in their entirety. As I understand it, the father contends that the mother suffered from serious mental illness, and this has affected her memory such that her evidence is unreliable. In relation to his alleged assaults on the children, including strangulation, the father contends that there have been occasions when disciplining the children or when trying to manage X’s out of control behaviour that his actions may have caused some discomfort to the children but contends that the allegations of strangulation have been influenced by the mother and are denied.
The mother also relies upon evidence from other witnesses including a former partner of the father, Ms K, alleging family violence, including sexual assault, during her relationship with the father between 2001 and mid-2006; evidence in subpoenaed material of a physical assault on a stranger (namely a child) including strangulation on 21 February 2021; and evidence from her mother and others of her contemporaneous or near contemporaneous complaints of strangulation. The mother further relies on evidence from her mother about her own experiences of the father’s coercive and controlling behaviour and her observations of the deterioration in the mother over time.
The father denies the allegations made by Ms K and denies that he strangled a child. The father contends that his admission to the mother in or about February 2021 that an allegation of strangulation had been made against him by a child has been used against him and forms the basis of what he contends are the mother’s fabrications of strangulation of her and the children of the marriage.
It seems to me that before making findings on specific allegations, it is necessary to not only set out the evidence in relation to specific allegations, but to examine all evidence going to credit generally which, in turn, will inform the ultimate findings on specific allegations. I do not propose to make findings on every allegation but rather to consider a number of specific allegations.
8 February 2007
On 8 February 2007, the mother ended the relationship with the father and told him he had to move out of her flat. Upon arriving home, the mother found that many of her shoes, dresses, and underwear had been cut to pieces and a yellow cross had been painted on one dress at the position of the heart. On her bedsheets were written the following words, “use this on your next victim”, in chocolate body paint. The mother’s diary was missing and when she messaged the father requesting its return he responded, “I understand how damaged you are now, I have learnt a lot from reading your diary… how will all of your friends feel if I sent them a copy what you have written about them in your diary”. The words, “[The mother’s] a bitch” were written on a pot plant.
The mother arranged to collect her diary from the father that evening and asked her flat mate, Mr M, to accompany her. The father was crying when she saw him and he said to her, “I’m sorry, you have not seen everything yet, have you?”. The mother did not understand what the father meant by this comment until she returned home to find that curry paste had been spread over her clothes in drawers and oil poured over her jumpers.
On 11 February 2007, at 5.29 pm, the mother emailed the father a list of the clothes he had destroyed and asked him to reimburse her $1,000. The father responded by email on 12 February 2007 at 10.08 pm:
No problem. Could you please give me the damaged items as I know some talented people who could make repairs. Please note that this is not intended to reduce the amount to pay but to restore some items which may not necessarily be beyond saving.
The email exchange is exhibit 12 in the proceedings. The father does not recall the email exchange but conceded he may have sent the email as alleged although it did not sound like “his voice”. The father conceded that his email address at that time included “[redacted]” but could not recall the beginning of the email address which was, “[redacted]”.
Mr M, the mother’s flat mate in 2007, deposes to being present to let the father into the rental property he shared with the mother in early 2007. He says that the father was in the mother’s bedroom for about an hour while he waited in the lounge room reading and listening to music. When the mother arrived home later that day, he says that shortly after going into her room she reappeared crying and said, “[the father] has trashed my room”. The mother showed him a lace bra that had been cut in the middle, a damaged brown silk dress, another dress that had been “slashed”, and a couple of other items and some jewellery. He saw words on the bed sheets written in what appeared to be chocolate sauce. The mother told Mr M that the father had taken her diary and she cried about the prospect of the father sharing her diary.
Mrs L is the mother’s mother. Mrs L deposes to a telephone call with the mother after she separated from the father in early 2007, when the mother told her that the father had cut up her clothes and bras, and poured curry paste and oil through her clothes drawers. She recalls that in or around March 2007, the mother visited her in Adelaide and presented her with a dress that she wanted her to repair. It was a lace dress with an internal petticoat. It was mushroom pink with brown lace and had a cross drawn over the heart area. Mrs L says she was unable to get the cross out of the fabric. She deposes to observing the mother’s upset about the dress as she had never spent so much money on a single garment, and it was ruined.
Photographs of the damaged dress are exhibit 13.
The father recalls a brief separation from the mother in February 2007 when he did collect his belongings from their shared residence. The father admits using chocolate body paint to write on the bedsheets the words, “use this on your next victim”. The father admits taking the mother’s diary which he acknowledges was wrong and states that he deeply regrets violating the mother’s privacy in such a way. The father does not deny reading the diary and does not deny in his affidavit threatening to show her family (although he denied doing so during cross‑examination). The father denies threatening to show the diary to the mother’s friends. The father denies destroying any of the mother’s items of clothing and denies defacing a pot plant. When being cross‑examined about these matters the father was smiling. When asked why he was smiling, the father said it was “just the total ridiculousness of this, it’s just, it’s like a smile as a ‘here we go’”.
In the Family Report, Dr C records the following:
38. [The father] admitted that he had previously defaced clothing of [the mother] when they were in their thirties. He purported that "I clearly remember what I did" and it involved writing ''use this on your next victim" in chocolate body paint, which was reportedly already at [the mother’s] home. [The father] acknowledged that he was angry at the time and "felt like she seduced me, said she loved me then bang, who is this person and I hadn't done anything". He found it odd that [the mother] had kept the dress he damaged given it was 16 or 17 years ago and was reportedly a difficult memory for her. …
The father denies that he admitted to defacing or damaging the mother’s clothing to Dr C.
Dr C during her oral evidence maintained that there was a discussion at least about the dress that was damaged, and she was left with the impression that the father admitted to defacing it. I note that in the father’s psychological evaluation interview with Dr C on 15 and 16 February 2024, the father is reported at paragraph 48 to have “denied destroying some of her clothes”. The father admitted to being angry at the time and to having written “use this on your next victim” in chocolate body paint.
Mid-2008 punch
In mid-2008, after returning home from a night out, the father allegedly punched the mother in the face. The incident is described by the mother as follows:
In mid-2008, [the father] went out partying with our flatmate and came home belligerent and aggressive after taking cocaine. I was already asleep in bed when he got home. [The father] woke me up and started an argument with me. [The father] lost his temper and punched me in the face with a closed fist. I was left with a red mark and a very sore cheek bone/temple and a remember being so scared of him I went and slept in the lounge room for the next few nights. I understand that [the father] denies that this ever happened. I suspect that [the father] cannot remember the night, as when I confronted him the next day he did not believe me and denied he would ever do that and told me that I was exaggerating and making it up. I recall him telling me 'you are being ridiculous, it's all in your head, you are just making this up because you are annoyed I went out I would never do anything like that'.
The father “totally” denies this incident. He denies that he used cocaine and denies that he punched the mother. I note that during a session with the Men’s Behaviour Change Program on 15 December 2023, the father admitted to using cocaine when he was younger and lived overseas. The incident described by the mother was during the time the parents were living in [the United Kingdom].
Ms K’s allegations
Ms K is a [redacted] in Melbourne, where she resides. She was in a relationship with the father from about mid-2001 until about mid-2006. Ms K and her ex-husband, [redacted] have three children, N, O and P. At the time of Ms K and the father commencing their relationship, N was about eight, O was about six, and P was about three.
According to the mother and Ms K, there was some overlap between Ms K’s relationship with the father and the commencement of the mother’s relationship with the father. The father denies there being any overlap but concedes he did see Ms K on occasion after he commenced a relationship with the mother.
Apart from a brief meeting between the mother and Ms K in 2006, they have had no contact until the mother sent a text message to Ms K on 17 July 2024 asking if she had experienced any abusive behaviour from the father during their relationship. Ms K and the mother then had a brief telephone conversation that evening during which Ms K agreed to provide an affidavit. Ms K deposes that the mother did not provide her with any details about her relationship with the father and that she did not discuss the evidence she would give with the mother.
Ms K alleges that she was subjected to behaviour by the father that was “emotionally and physically abusive and a form of coercive control”. Ms K contends that the father “would tell me that his anger and punishing behaviour towards me was a result of my behaviour and I believed him as I had never experienced this type of behaviour before”. Ms K deposes that she has “strong memories of [the father] telling me that he had never lost his temper before; indicating to me that I was the cause of our disputes”.
Ms K describes an incident that occurred on around mid-2006, when her son, O, was around 11 years old.
8. [O] was playing a desk top computer game. Someone, I do not recall who but it was probably myself or [the father], asked [O] to stop playing his game and come to dinner. [O] did not come immediately. This caused [the father] to lose his temper and become very angry. [The father] gave no warning and did not ask him again but strode over to [O] and picked him [up] by the body and lifted him up in the air and then threw him down hard onto his back. I was standing in the room and watched the whole event. I did not have time to intervene as the incident happened so quickly and without any lead up or warning. [The father’s] action was unexpected, completely unjustified and unwarranted; I did not expect anyone to physically discipline (let alone assault) my child particularly for failing to stop playing his computer game immediately. I felt extremely upset and guilty that this should happen to [O] and was worried that he could be hurt. I recall that he cried and I comforted him. I then spoke to [the father] in a separate room away from the children and said that it was the end of the relationship unless he agreed to take an anger management course. I was very clear that this request was unequivocal. He did not agree as he denied that he had any anger issues and the relationship did subsequently end.
Ms K deposes that this incident was unlikely to have been the first incident of its kind because she received an email from her ex-husband and father of her children prior to this incident which included the following:
[P] told me that [the father] screamed at him and threw him onto a bunk causing him to hit his head on the bedhead. … [The father] was screaming and seemed to have completely lost it.
The email is exhibit 25 in the proceedings.
Ms K alleges that she was subjected to numerous acts of family violence including sexual assault and cruel and humiliating treatment. It is best to set out the allegations in her own words:
12. In another example, in around 2005, [the father] and I were having consensual vaginal sex standing up. [The father] then, without my consent, anally penetrated me. This caused me significant and excruciating pain - I had never had anal sex before and did not consent to it and we had never discussed it. I screamed out, started crying and fell down in pain. I asked [the father] why he would do this, and [the father] denied having anally penetrated me. I repeated that [the father] had done this, which caused [the father] to become increasingly very angry. As I lay on the floor, [the father] yelled at me accusing me of lying and making things up. He never subsequently admitted that he had anally penetrated me.
13. In terms of [the father’s] anger, I witnessed several incidents where [the father] would (for want of a better word) "explode" and respond in a way that far exceeded the dispute. For instance, in around 2001 [the father] and myself were going to attend a work event at a bar in [redacted] Melbourne. We were going to get the tram to the venue. As the tram was coming, we began running to the tram. I was wearing high heels and didn't feel safe running across the busy road in peak hour traffic so didn't make it to the tram on time and it left. [The father] became irate and yelled at me. He quickly snatched my handbag from me (which contained my keys, money, identification and phone) and threw it onto the roof of an adjacent one storey house. [The father] then walked off. I had to knock on the door of the house, explain to them that my partner had thrown my bag on their roof and ask them for their help. Fortunately, they had a ladder and could get the bag down. It was extremely embarrassing and distressing to me to have to ask for this assistance; and I would try to avoid upsetting [the father] to avoid such reactions but this was impossible as for instance on this occasion I had done absolutely nothing wrong. I then went and attended the work event on my own.
14. On around 2001, this event repeated: [the father] and myself were in central [redacted] Melbourne at night time and [the father] became irate over something. I do not recall what the issue was. [The father] yelled at me and quickly grabbed my handbag from me (which contained my keys, money, identification and phone) and threw it into a fenced off building site and then walked off. As it was the middle of the night, there were no construction workers around and I was unable to get any help retrieving my bag. I had to hail a taxi, ask the taxi to drive me home and borrow money from my babysitter (my sister) to pay for the taxi fare. Much like the above incident, it showed me that if I did not act in a way conducive to [the father’s] whims I would be punished. [The father] subsequently helped me retrieve the bag the next day.
15. On another example in about 2001 [the father] and I were at a dinner dance [redacted] where my children attended school. I recall that I said something in a group conversation that [the father] did not like. I do not recall what it was, but [the father] became very angry and started verbally attacking me. This caused me to quickly grab my handbag (so he would not take it) and run as fast as possible to the women's toilet for safety and lock myself in the cubicle. I knew that [the father] was running after me and he shortly entered into the women's toilet. Other women in the toilet told him to leave. I waited until the women confirmed that he had left the venue before coming out. When I returned home around a few hours later hoping he would have calmed down, I found that [the father] had taken most or all of my clothes out of the cupboard and wardrobe and thrown them around the bedroom. I confronted [the father] saying words to the effect of: 'This behaviour is not OK - I need you to immediately clean up the room'. [The father] then cleaned up the room and this is the one and only occasion I can recall where he took reparation action to remedy his temper outburst.
16. In 2001, [the father] was angry about something which I don't recall and he came over and I could tell that he had a punishment planned as retribution. [The father] and myself were in the kitchen of my [redacted] apartment. [The father] calmly told me to kneel down and made me perform oral sex on him. I did not want to do this and I was sobbing. After a few minutes he made me take a 2L bottle of milk from the fridge and pour it over my head while standing in the middle of the kitchen. [The father] then grabbed my car keys and Le Creuset casserole dish and took my car and left leaving me in a puddle of milk in the kitchen crying. The fact that he was calm and methodical and took my Le Creuset casserole dish and car indicated to me that his actions were orchestrated. I was shocked and upset and didn't know what to do.
17. In late 2005 / early 2006 I had organised a family holiday to [redacted] Victoria. It was in the middle of summer and an extremely hot day. The holiday house was in the country amongst paddocks of cows. We had packed the children into the car to drive down to the beach for a swim. As we were driving down the driveway, I told [the father] that I wanted to double check that the doors and windows of the house were closed properly as there was a very significant number of flies (almost a plague) around and I did not want flies to enter the house. [The father] told me that: ‘you have sixty seconds or I am leaving.’ I understood this to be in jest and more a request that I do this quickly. I got out of the car with [O] and we ran up to the house and checked the doors and windows before running back to the car. We apparently did not complete this task in sixty seconds; and [the father] drove off with [N] and [P] with my phone, money and keys. We were not close to any other houses. I had no means to accessing the house, calling [the father] to ask where he was or had any access to any water. [The father] did not return for a few hours. I was extremely upset and angry as I had done nothing wrong and his actions were completely unjustified and cruel. When they returned I recall that [N] and [P] were very upset that [the father] had left us behind and they had begged him to tum back.
Ms K did not report the family violence to police but during cross-examination said she may have divulged the father’s behaviour to one or two friends and her psychologist after the relationship ended.
The father denies assaulting or harming O or P. He contends that he used to wrestle and “play fight” with P and suggests that it is possible that P hit his head during this wrestling. P was three years old when the relationship between Ms K and the father commenced and about eight years old when it ended.
The father denies sexually assaulting Ms K but recalls an occasion that he “accidentally penetrated her anus partially” and “she cried out in pain”. The father does not explain why he recalls this incident if it was, according to him, a non-event.
The father denies any incident where he threw Ms K’s handbag on the roof of a house.
The father denies throwing Ms K’s handbag into a building site but contends they had consensual sex at a building site and during cross-examination it was put to Ms K that she had left her handbag behind after “an act of intimacy” (which is how the question was put). Ms K vehemently denied there had been an “act of intimacy” and said it was a fenced off building site without access.
In relation to the incident alleged to have occurred at the dinner dance and subsequently at Ms K’s home in or about 2001, the father recalls attending a function at a golf club but denies there being any incident as alleged and denies entering the women’s toilet. He denies throwing Ms K’s clothes around and contends that they did not move in together until 2003 so he had no way of entering her home in 2001 as he did not have a key.
The father “totally” denies the alleged incident involving coercing Ms K to perform oral sex and forcing her to pour milk over her head. However, the father deposes, “I did receive oral sex from [Ms K] but did not coerce her to do so, nor was she crying.” The father does not explain why he recalls the incident where Ms K performed oral sex and that she was not crying. When cross-examined about this alleged incident, as deposed to by her, Ms K responded, “it did happen unfortunately”. Ms K was very forthright, unflinching, and definite in her response to this, and all questions put to her.
The father denies the incident alleged where he left Ms K and O for hours at the holiday home.
The father contends that the circumstances of his breakup with Ms K were “very negative” in that he left her to be with the mother. He contends that Ms K tried to get him to come back to her, but he refused. This was not put to Ms K. There was no suggestion put to her that she had some ulterior motive in providing an affidavit some 18 years after she and the father separated.
The father’s controlling behaviour
According to the mother, the father had a very fixated view on how things should be done, from significant to minor things, such that the mother felt she had to submit to his directions. For example:
(a)The father insisted that the cutlery drawer be ordered his way right down to entrée forks facing the opposite way to main forks and if the mother did not comply, the father would aggressively reorganise the drawer;
(b)He controlled the laundry to the point where he would only permit the children to wear their clothes, including their pyjamas, once before requiring them to be washed and would criticise the mother if she put on a load of washing on the weekend outside the wash cycle regime he imposed;
(c)He controlled the daily menu, issuing instructions on what the mother was to cook (often requiring complicated recipes to be prepared) and contacting her throughout the day to check that she had bought the items on the shopping list he prepared and that she had commenced preparation of meals prior to him returning home;
(d)The father controlled the family finances criticising any attempt by the mother to have any input stating “every time [you] touch anything [you] stuff it up or it never works out”. (The mother only found out during the proceedings that the father had a personal bank account into which he deposited money for his own use. The mother thought there was only a joint account);
(e)On 11 and 12 May 2022, the father withdrew $44,000 from the joint account without consultation with the mother leaving her a meagre $5,528 to meet all the family expenses including paying the mortgage;
(f)In June 2022, without consultation, the father cancelled the car insurance on the car retained by the mother after separation;
(g)On 1 July 2022, the father, without consultation, withdrew $556 from the joint account leaving a balance of $0.52 (the father had received an invoice to pay for Y’s calisthenics class and rather than paying it, he sent it to the mother. As the mother had no funds to pay the invoice, she returned a solar light to Bunnings and received a refund into the joint account of $551 on 1 July 2022. Before the mother could pay the invoice, the father withdrew the funds that same day).
The father’s response to the allegations in the preceding paragraph, using the same subparagraph references, are set out below:
(a)The father does not take issue with the mother’s evidence;
(b)The father suggests his behaviour can be explained by him having “different styles of housekeeping and planning and organising our household”;
(c)The father suggests his behaviour can be explained by him having “different styles of housekeeping and planning and organising our household”;
(d)The father does not take issue with the mother’s evidence but suggests that the mother was “not interested in our family finances”;
(e)In his oral evidence, the father contended that he withdrew the $44,000 to protect the money so that the mother did not waste it, in circumstances where she was mentally unwell (I note that the mother has no history of profligate spending);
(f)The father does not take issue with the mother’s evidence; and
(g)The father does not take issue with the mother’s evidence.
Mrs L gives evidence about her observations of the father’s behaviour towards the mother during their relationship which troubled her:
21. During [the mother’s] and [the father’s] relationship, I recall observing that [the father] had this noticeable power and influence over [the mother] such that it appeared as though he controlled [the mother’s] behaviour in that she was not permitted or allowed by [the father] to act autonomously. I say this because I observed that:
21.1. Whenever [the father] and [the mother] sat down, [the father] would have his hand on [the mother’s] leg. It was if to say I own you and you are under my control.
21.2. [The father] decided, to the hour what time he, [the mother] and the children would eat. He would also decide what they would eat. He would make up menus on the fridge and that was to be followed. I have seen the shopping lists he made and he would take over the shopping. I recall one instance when [the mother] did the shopping and [the father] telling [the mother] that she had brought the wrong brand and that she should have known better.
21.3. [The mother] was not allowed to use the washing machine while I was present in the home.
21.4. [The mother] and I were not permitted by [the father] to arrange the dishes in the dishwasher as if either of us or both of us had packed the dishwasher; [the father] would get upset and rearrange all the dishes to his standard. More often than not, this occurred after dinner when [the mother] and I cleared the plates and loaded the dishwasher. Once we were done placing the dinner plates in the dishwasher, [the father] would walk over to the dishwasher and rearrange the dishes. I formed the view that [the father] was upset because he would repack the dishwasher huffily and he would bang the dishes against one another in a manner that appeared intentional as if it was done in an effort to draw attention to the fact that [the father] was repacking the dishwasher because [the mother] and I had not done so correctly.
21.5. [The father] controlled when [the mother] and the children could come to Adelaide to see [the mother’s] family. As a family, they only came to Adelaide once in 11 years. [The mother], [Y], and [X] flew over on one occasion. We would invite them, however [the mother] would relay an excuse to me about why they could not come. On one occasion, [the father] said to me, "No, we are not coming because it is not yours and [Mr L’s] turn to see our family for Christmas". I formed the view that [the father] was the deciding factor on whether the family would visit us in Adelaide, as [the mother] often expressed a desire to visit us in Adelaide, yet days later would inform me that she could not, for what I consider to be an arbitrary reason. On one occasion, [the mother] informed me that the family could not afford to visit, so I offered to pay for their fuel. Despite my offer, they still did not visit. On another occasion, [the mother] told me that she wanted to come to Adelaide for her grandmother's [redacted] birthday and then later told me that the family "just can't come".
22. When we were all together having a conversation, if [the mother] was speaking, [the father] would often take over her conversation as if she was not saying something the way he thought it should be said. He also did this when the children were trying to say or explain something.
The father does not take issue with the evidence in the preceding paragraph save for paragraph 21.3 of Mrs L’s affidavit. The father denies preventing the mother using the washing machine.
Mrs L also deposes to the father’s overbearing behaviour while the family were staying with her and Mr L for an extended period in February 2011:
12. I tried to make [the father] feel as comfortable in the house as possible. However, [the father] treated my house as though it was his house and not mine and [Mr L’s] house. For instance, [the father] would rearrange things throughout our kitchen. He went through our kitchen and threw out many cooking supplies. He regularly complained about food being "off' and would throw it away. [Mr L] and I do not drink much; but I recall that [the father] did and that he sampled our alcohol before declaring it was 'stale' and needed to be thrown away - which he did. He dictated when we should all be eating dinner and what we would be eating eg one stuffed capsicum and nothing else.
The father’s only response to the evidence in the preceding paragraph is as follows:
4. …
[12] It was difficult living with [Mrs L] and [Mr L] as we had different ideas of how to babyproof the house and stick to the routine for [X], then aged 14 months.
During his interview with Dr C, the father said the mother’s parents “disliked him rearranging their kitchen”.
Mrs L describes an incident where she was berated by the father during the same period:
14.When [the mother] and [the father] were living with [Mr L] and me in Adelaide, I recall that one Saturday morning, when I was trying to do housework after I had been working all week. At the time I recall being frustrated that [the mother] and [the father] were not contributing around the house. I do not specifically recall how the disagreement started, but I do recall that initially, it was only [the mother] and I who were discussing my concerns. While [the mother] and I were having this discussion, I heard [the father] bounding down the stairs and I retreated into the laundry. [The mother] went elsewhere in the house. When [the father] got down the stairs, he cornered me in the laundry, ranting at me in an aggressive manner waving his finger at my chest, saying words to the effect of: "my parents work twice as hard as you and [Mr L] put together', 'my parents are welcoming and make an effort to please [the mother] and me', 'you make snide remarks, and you never say please or thank you', 'you are money obsessed, and are obsessed with little things', and 'you should know better after having a daughter deal with cancer twice'. When [the father] was saying these things to me, he did so in such a threating [sic] tone and he continued to thrust his finger at me in what I would describe as an aggressive manner. [The father’s] words and behaviours made me cry and sob. When [the father] was saying these things to me, I did not say anything. I was shocked at how out of hand the conversation got, and I stood there cowering in front of [the father]. I felt afraid during this incident and when the incident ended, I called [Mr L] and relayed these events to him. Shortly after [Mr L] came home, [Mr L] told me that he had told [the mother] and [the father] to leave. I was so upset by this incident and the things that [the father] said to me that I sought out psychological assistance after [the father] and [the mother] had left.
The father’s response to the evidence in the preceding paragraph is:
114.I deny the conversation happened as deposed. [The mother] and I had one big argument with [Mrs L]. It was in the kitchen. [Mrs L] was at the kitchen bench, dishwasher side, [the mother] was at the end of the bench and I was on the other side to [Mrs L]. [Mrs L] was feeding [X] plants from the roadside and I asked her to stop doing it. [Mrs L] had been shown plants by local indigenous people and was passing that knowledge onto [X]. This led to [X] eating any plant from the side of the street. This caused friction between [Mrs L] and [the mother] and I.
Mr L’s evidence in relation to the incident that resulted in him asking the mother and the father to leave their house is as follows:
25. In January of 2011, I received a call from [Mrs L]. [Mrs L] told me: [The father] 's just had a go at me. He accused me of being psychotic. Said I was neurotic. That we were not fit to be grandparents. He would not let us see our grandchildren. He said we are both miserly'. As I drove up the driveway to [Mrs L's] and my house, [the mother] met me in the driveway. When I got out of the car, I calmly said to [the mother], 'You have half an hour to go, pack your bags. You need to take [the father] with you'. I did not explain to [the mother] why I was asking her and [the father] to leave the house. Given that [the mother] had met me in the driveway, I had formed the view that she was aware of the incident that had occurred between [the father] and [Mrs L] and consequently, the reason why I asked that she and [the father] leave the house.
The father’s behaviour towards the three children of the marriage
The mother deposes to several incidents, either witnessed by her or about which she was told by the children involving strangulation by the father:
23. In 2019, [X] was having a meltdown. I stayed with [X] and tried to settle him. I was finding it difficult and left to get [the father] to have some help. [The father] went into [X's] room but within a minute or two things escalated and [the father] was yelling. When I went back into [X's] room I could see [the father] had [X] pinned to the bed with one hand around his throat and the other pushing down on his forehead. I pulled [the father] off [X] yelling at him 'what are you doing and get out how dare you hurt him'. I remember yelling at [the father] 'never to touch the kids like that again'. [The father] stood in the bedroom and I ended up pushing [the father] out of [X's] room.
24. On another occasion in late 2019, [the father], [Z], [X], [Y] and myself were at home when [X] came to me crying and absolutely distraught and told me 'Dad tried to strangle me'. [X] said to me words to the effect of 'I was lying on the bed and Dad was angry and he had his hands around my neck pushing me down'. After the incident above I told [X] 'I am so sorry it happened. I'm going to protect you'. I recall thinking 'how am I going to do this, I can't watch them every second’ and feeling as though I was completely trapped.
25. In early 2020, [X] was having another meltdown. I encouraged him to go outside on the back deck to try and give him a safe space to calm down. [The father] was concerned [X] would break the furniture or a window as he was kicking the outside furniture over. [The father] went outside. I could see [the father] and [X] on the deck through the sliding doors. [The father] inflamed the situation by yelling 'stop it you have just gone insane, what is wrong with you'. [The father] then physically tried to stop [X] knocking over the furniture. This resulted in [the father] holding [X] to the ground by kneeling over the top of him, pinning him down with his knees and with his hand around his neck. I grabbed [the father] and managed to pull [the father] off [X]. [The father] walked away and I gave [X] a long hug.
26. In mid-2021, [the father], [Z], [X], [Y] and myself were at home. [The father] was telling [Z] off for something. [Z], who can be very stubborn, was arguing back. I could hear the shouting from the other side of the house in my bedroom. I remember [Z] came running down the hall to me saying 'mum, dad was trying to strangle me' and [the father] following saying “I did not, I never did that!” I hid [Z] behind me and shouted at [the father] “I have told you to never touch the kids like that'. [The father] walked off outside and left me to check on [Z] and comfort him.
27. Late in 2021, again [the father], [Z], [X], [Y] and myself were at home. I was in my bedroom and I could hear [the father] was angry with [Y] over something. I overheard a brief argument between them in her bedroom. Then, [Y] came running to me in tears saying 'Dad put his hands around my neck and strangled me'.
28. Just before Easter in April 2022, [Y] had an argument with [X] and stormed off to her bedroom. She was so angry she lay on her bed and kicked the wall behind and put a hole in the wall with her heel. I could hear that something had happened and went to check on her. [Y] was in tears and she was sobbing and frantically saying 'Dad is going to kill me when he gets home, he is going to strangle me'. I told her 'we will have to tell Dad when he gets home, but it will be fine because we can fix a hole in the wall easily'. [Y] kept saying 'no don't tell him, he is going hurt me, he will strangle me again'. She was pleading with me not to ever tell him. The next morning when [the father] returned home from night shift he did not appear angry at [Y], but he berated me telling me 'you are just incompetent; I have no idea how you just can't control the kid, this only happens when you are with them, they never do this when I'm here'.
29. A few days after [Y] put the hole in the wall we were all sitting down for dinner when [the father] started teasing [Y] about how scared she was of telling him about what happened. [Y] became upset and told him that 'we are scarred [sic] of you because you strangle us'. [X] and [Z] backed her up and said that he had done it to them too. I recall [X] saying 'you have done it to us too, you have strangled me' and [Z] saying 'yeah you have done it to me too'. [The father] laughed it off and told them they were wrong. I looked at [the father] and told him he was never to touch them again, he kept denying that he had ever done anything to them and they were all exaggerating and making it up.
30. Shortly after separation in 2022, [Y], [X] and [Z] again openly discussed how [the father] had strangled them while having dinner with [Mrs L]. This occurred again shortly afterwards with [Mrs L] and [Mr L] present.
31. In June 2022, I was with [Mrs L] having lunch with the kids seated at the table. [Mrs L] was talking with the kids about how her father was very tricky and not very kind to her mainly because she was "just a girl" and [X] said our Dad would go from being ok to very angry quickly and he was scared of him hurting him like he sometimes did. [Mrs L] asked him gently what he meant and he said 'I remember dad being so angry with me he pushed me on the bed and put his hands around my neck'. This was similar to what he had told me before, [Mrs L] just said 'we know sweetheart'. I gave [X] a huge hug.
32. A few weeks later in June 2022, my parents, [X], [Y], [Z] and myself were at the dinner table. We were talking about what school was like when [Mrs L and Mr L] were little. [Mrs L and Mr L] were telling the kids how different it is to now and they would get caned if they were naughty or did not know the answer in class. [Y] made the comment 'well our dad just strangles us'. …
In paragraph 64 of the Family Report, Dr C records the mother’s claim that “on three to four occasions [the father] pinned [X] down facing upwards on his bed and had one hand on the child's throat and was pushing the child's head down. [X] reportedly had red marks on his body afterwards. [The mother] stated that this would end with her pulling [the father] off [X] and yelling at him not to touch [X] like that again and [the father] would walk off”.
In her oral evidence before a deputy registrar in the [redacted] Magistrates Court on 13 May 2022, the mother was asked if the father had ever perpetrated family violence against any of the children and the mother said he had. When asked if she had witnessed anything the mother responded, “I have seen his hands around my son’s ([X]) neck once. The two other children I – I never saw it myself”. The mother also confirmed that the children had heard the recent altercations over 9 to 11 May 2022 and had been terrified.
During the children’s individual interviews with court child expert, Ms B, on 6 October 2023, X disclosed that the father had pinned him down by his neck and put his hands around his neck. X said he felt scared and said it had occurred on more than one occasion. X said he did not want to see the father “ever again” and if he were ordered to attend, he would refuse. He indicated that if his siblings were required to attend supervised visits he may attend to “make sure they ([Z] and [Y]) are safe”.
Y told Ms B that she feels scared of the father because he has strangled her, and she would feel worried about spending time with him because he “hurt me when I was little”. Y said she might change her mind when she was older, and she wanted the father to “just wait for me to be ready”.
Z spoke about memories of the father strangling him and his siblings which caused him to feel scared. Z said he did not want to spend any time with the father. When the father intercepted Z and Y on their way to school in February 2023, Z said he felt scared that the father was “tracking us and watching us”.
Ms B opined that “[d]espite the children’s negative narratives regarding [the father], the author does not hold concern that the children may have been pressured to present a particular view about their parents”. Ms B considered that the children’s relationships with the father may have been negatively affected by their reported experiences of being strangled by him and consequently they feel scared of him. Ms B opined that:
43. Exposure to family violence and high levels of conflict early in life can have a profound impact on a child’s social, emotional, cognitive, and educational development, and can have negative impacts on relationships with their caregivers. If exposed to physical abuse, threats of harm or family violence, this may have affected the children’s emotional safety, physical safety, stability and ability to regulate their emotions. In addition, the allegations that [the father] has strangled the children, [the mother], and a child unrelated to him may mean that there could be a high risk of fatality should future family violence incidents occur. The impression gained from speaking with the children is that they have witnessed family violence behaviours from [the father] towards themselves and [the mother] and have witnessed the subsequent negative affect of the alleged family violence behaviours on [the mother’s] emotional wellbeing….
During the children’s individual interviews with the Family Report writer, Dr C, on 16 February 2024, they each reported strangulation.
X said the father had “choked” him, and that this had occurred while he was pinned down on his bed. X described feeling as though he could not breathe.
Y said she remembered the father “hurting me a couple of times” and that one time he was “strangling me for a bit” but she later stated she was not sure if “strangled” was the right word. Y recalled that the father chased her into her room and began strangling her (which he did with his hands upside down) and the mother ran in after him to stop him. Y said she remembers Z saying that the father had strangled him, but she did not see this happen. Y said that Z said this while everyone was at the dinner table one night before separation and the father said he “didn’t do that and started a fight with mum”.
Z told the Family Report writer that the father had been “choking us” in reference to himself and his two siblings. He said that by choking he meant the father “grabbing us by the throat”. Z described the action of the father choking him and his siblings as “hands on, like a headlock with arms” and that this happened more than once. Z said he had not witnessed the father strangle X but had “heard it” and that X had been “screaming in pain” afterwards. Z said he had witnessed Y being “choked” by the father and that it occurred at the dinner table. He said Y stood up from the table to leave but the father put her in “like a headlock around the neck” and that “Mum told him off”. During cross-examination, the mother did not recall any such incident.
Mr L deposes that on or around June 2022 X said during dinner, “Dad choked me” and Y said, “he choked me as well”. Mr L recalls that in or about December 2020 or January 2021, he heard the father say to Y that she was “dumb” like her mother.
Mrs L deposes that in June 2022, Y said during dinner, “well my dad just tries to strangle me” and X said that the father had his hand around his throat as well.
The father denies “ever strangling or throttling my children, or any other children”. The father denies that the mother never discussed strangulation during the marriage and denies that she ever asked him to not to be violent to the children. The father contends that such allegations have only been raised since separation.
In the Family Report, Dr C records that in relation to the alleged strangulation of the children, the father said “he has pinned [X] down before in the context of the child being ‘a little bit cheeky to a friend of ours’. He recalled that [the mother] had been embarrassed by this and did not like it”. The father denied there being any incident involving pinning any of the children down in the bedroom and choking them. With respect to Z, the father said that he would often wrestle with Z and “that if this ever went too far, it would have been [Z] to do so as he would become absorbed in the activity and become ‘overzealous’”.
The mother did not interfere with the children’s ability to communicate by electronic means with the father or he with them, until an order was made by consent in November 2023 which prohibited any contact. Some of the communication between the father and the children is informative as it demonstrates the father’s seeming inability to appreciate the impact of his repeated criticism of the mother to the children. By way of example, the following messages were sent by the father to one or other of the children between May 2022 and July 2023:
…
Please know I’m trying everything I can to see you and your brothers again. But for some reason unknown to me your mum doesn’t want that. …
…
But it is Mum that is stopping me from seeing you. …
…
Grandma says you are no longer responding to them either, which leads me to believe Mum has cut this line of communication off. It is so sad that your lives are being manipulated like this. Eventually the truth will come out and hopefully you will be able to forgive your Mum.
…
It’s been a year since your mum did that terrible thing. … Not sure why you don’t fight to see me but Mum is quite scary when she is angry. …
…
Hi [Z]
Mum told me you are not going to the swimming carnival tomorrow. I hope it is not because you can’t swim very well. I was trying to get you there before I was made to leave. I’ll make sure you are learning against once your mum let’s me back in your life. …
…
It’s so sad what your mum has turned you into. …
The father at times sent appropriate messages to the children but wonders why he received no response. The father’s lack of insight is a feature observed throughout this case.
The father’s behaviour towards other children
In addition to the allegations about the father’s treatment of Ms K’s children, there is further evidence about his conduct towards other children.
The mother contends the following:
86. In 2016, [the father] was helping the children play on a flying fox [redacted] I was sitting on a picnic rug close by watching [the father] and the children play. A stranger's child had just used the flying fox and was returning it to the start, for [X] to have a go. [The father] appeared to be [sic] become annoyed at how long this was taking and walked down to take the flying fox T-Bar from the child. In doing so, he grabbed the T-Bar off the child and swung it into the child 's stomach. This caused the child to fall over. The child ran over to his parents.
…
88. In 2018, I was hosting a BBQ at home. [X] and his friend [redacted] were playing with the pet guinea pigs they were attempting to get our guinea pig to slide through a tunnel. While this was not the best way to handle to [sic] guinea pig, [the father’s] reaction was disproportionate. [The father] yelled above everyone to stop them but then continued to angrily reprimand [X’s friend] over the top of his mother [redacted] and lock away the guinea pigs. It greatly upset [X’s friend] and he became so uncomfortable that [X’s friend and his mother] left the BBQ early.
On 24 May 2024, the father was late for his appointment but made no mention of being late on arrival. The father denied the need to be in the group claiming the mother made up the allegations to hurt him. The father repeatedly said, “the physical abuse never happened … the strangulation didn’t happen”. The father said he thought his “problem” was not showing his emotions enough. The father said the mother would comment on her weight, but he never called her fat although he said he made comments about her jeans being too tight. When asked to consider the impact of him being emotionally disconnected from the mother, the father said, “yes, but I wouldn’t put that in the violence category”. The father said he did not care about upsetting people he does not know or care about and described speaking up when “little old ladies push ahead in a queue” and will make derogatory remarks and not feel bad about it. The father said that he believes he is honest and challenges professionals, and they cannot handle it. The father challenged the perception that he was aggressive, stating, “I’m not rude, I’m just not friendly”. The father spoke at length about how money being spent on violence against women was being wasted. The father justified coming across as aggressive and abrasive as this was to “save lives, save hurt, save money, save time, and save my reputation”. When challenged about his self-described “sense of fairness” i.e., who determines what is fair, the father said, “fair is fair”. The father was noted to “dominate the conversation”.
On 19 July 2024, the notes reveal that the father “escalated throughout the appointment when challenged”. The father accused the mother of making everything up stating that “it all came about through a fear of [the mother] losing her children”. The father denied making threats to take the children. The father said that regardless of the court outcome, he will get to see his children. When challenged about whether the mother’s safety concerns could be genuine, the father became “escalated, raising his voice and stated [the mother] made it all up”. So confident was the father in himself that he said he “doesn’t believe he can find any areas to improve yet”. When the father’s behaviour was noted i.e., that he was “escalated”, the father denied it and rejected any need to calm down.
CONCLUSION – FAMILY VIOLENCE
In my view, the evidence that the father has engaged in family violence is compelling. In coming to this conclusion, I have reviewed the entirety of the evidence and weighed the probabilities of the mother’s and her witnesses’ evidence and the evidence in various exhibits against the largely bare denials of the husband. I reject the father’s repeated denials that he has engaged in family violence including strangulation. The father has no insight into the impact his behaviour has had on the mother, the children, Mrs L, or Ms K. The father’s history of behaviour towards each of these persons constitutes family violence of the most serious kind.
I make the following specific findings:
(a)On or about 8 February 2007, in response to the mother ending the relationship, the father defaced the mother’s clothing, spread curry paste in her clothing drawers, and poured oil over her jumpers. The father painted a yellow cross on the petticoat of a brown lace dress and painted the words “use this on your next victim” with chocolate body paint on the mother’s bed sheets. The father stole the mother’s personal journal and threatened to show it to friends and family. The father painted on a pot plant the words, “[the mother’s] a bitch”. The acts engaged in by the father were vindictive, cruel, and threatening. The father damaged the mother’s property. My reasons for so finding include the following:
(i)The mother’s detailed evidence which I accept she honestly recalled given the significance of the father’s behaviour;
(ii)The mother’s flatmate, Mr M, corroborated the father’s attendance for about an hour at the flat on the relevant day which supports that he had time to carry out the acts of destruction; the mother’s upset at discovering her personal journal missing; the mother’s distress at discovering her clothes had been trashed; and his evidence that he accompanied the mother when she retrieved her diary from the father;
(iii)Mrs L corroborated the damage to the brown lace dress which the mother had asked her to fix;
(iv)Exhibit 13 being the photograph of the dress in question;
(v)The father’s concession to stealing the mother’s personal journal and writing on her bed sheets, “use this on your next victim”;
(vi)Exhibit 12 being the father’s email offering to repair some of the clothes in an email to the mother on 12 February 2007.
(b)In mid-2008, the father returned home to his shared residence with the mother and punched her in the face causing a red mark, a sore cheek bone/temple, and a bruise. The father may not remember the incident because it is likely he had used cocaine prior to returning home. I find that the father was belligerent and aggressive and that the next day he sought to make the mother believe that she had imagined the attack. My reasons for so finding include the following:
(i)The mother’s detailed evidence which I accept she honestly recalled given the significance of the father’s behaviour;
(ii)The father denied using cocaine in his trial affidavit but conceded using cocaine at or about the relevant time during a counselling session on 15 December 2023. The inconsistency in his evidence is a significant disparity going to his credit;
(iii)By the time of this incident the father had a history of committing acts of violence and then denying them e.g., during his relationship with Ms K.
(c)The father subjected Ms K and her children to family violence. My reasons for so finding include the following:
(i)Ms K was an impressive witness who had nothing to gain in volunteering to provide an affidavit about the father’s abuse of her and her children 18 years after separating from him;
(ii)Given the severity of the abuse perpetrated against her and her detailed recollections of that abuse, I accept Ms K’s evidence in its entirety;
(iii)The incident where the father forced Ms K to perform oral sex and then forced her to pour milk over her head is a particularly grotesque act designed to demean and control her;
(iv)If the incident just referred to had been as described by the father, there would have been no reason for him to remember it;
(v)Exhibit 25, being the email sent to Ms K from her ex-husband detailing the father’s assault of the child, P;
(vi)Dr C’s evidence, which I accept, that the failure of Ms K to make a contemporaneous complaint would not be considered unusual if she then removed herself from the situation.
(d)The father has engaged in controlling behaviour as alleged by the mother and Mrs L. The father’s behaviour was overbearing and designed to control the mother. The father also perpetrated family violence against Mrs L. My reasons for so finding include the following:
(i)The mother’s evidence is detailed and persuasive;
(ii)Mrs L corroborates the father’s behaviour as alleged by the mother in some instances e.g., restricting the mother’s use of the washing machine;
(iii)Mrs L’s account of the father’s verbal abuse and overbearing behaviour which caused her to sob in distress was persuasive and I accept her account in its entirety;
(iv)The father takes little issue with the allegations made by the mother against him and seeks to put his behaviour down to differences in housekeeping expectations.
(e)On at least two occasions the father has placed his hands around X’s throat causing the child fear and to feel that he could not breathe. My reasons for so finding include the following:
(i)The mother’s evidence of having entered X’s bedroom in 2019 and witnessed the father pinning X to the bed with one hand around his throat and the other pushing down on his forehead (X was nine years old at the time);
(ii)The mother’s evidence that in early 2020 she witnessed the father pinning X to the ground with his knees and with his hands around his neck;
(iii)I place greater weight on X’s disclosures of strangulation to the mother, maternal grandparents, Ms B, and Dr C about the father’s behaviour than I do on X’s failure to make a disclosure in the interview with Child Safety on 14 June 2022. The interview was brief and designed only to ensure the children’s immediate safety;
(iv)Dr C opined that not too much should be read into the failure of the children to disclose to Child Safety because it depends on “whether they actually felt truly safe to say what was going on for them…[or] fear repercussions for actually speaking out around what’s happened to them, especially with someone that is unfamiliar with them”. I accept her opinion;
(v)The father already had a history of assaulting young children, namely, two of Ms K’s children, O and P;
(vi)My finding (below) that the father strangled the mother in mid-2022.
(f)On 10 May 2022, the children were exposed to family violence, namely, a very heated argument between the father and the mother which caused them fear. When the mother hit or threw a pillow and teddy bear at the father, I find that the father pushed the mother. I find that the mother said words to the effect that she may as well kill herself. The father threatened to call the police and the mother attempted to grab his phone. The father again pushed the mother, this time onto the bed, and put his hands around her throat and strangled her for several seconds. I accept the mother feared for her life. I find that the father subjected Y to emotional and psychological abuse by telling her that the mother had threatened to kill her. My reasons for so finding include the following:
(i)The mother’s evidence of the attack was detailed and persuasive and to the extent there may be some inconsistencies in her evidence I do not regard that as fatal to the most significant allegation of strangulation. Any inconsistencies must be considered in the context of the history of abuse, the mother’s mental illness at the time, and her fear of losing the children;
(ii)Dr C opined that “recall of incidents that have happened are not necessarily linear for people and especially if it has been attached to a trauma response…[i]t may take some time for them to then say this actually happened to me and feel comfortable disclosing that”. I accept her opinion;
(iii)Mr D opined that “most people make cognitive errors in how they perceive things” and I accept his opinion and would add that the extent of the trauma experienced may also impact the recall of the event;
(iv)The mother described her emotional state at the time to Dr C as “extreme” and that she had “never felt like that” before and that up until that day she had been “in complete denial” about the state of the relationship;
(v)The mother made a proximate complaint of strangulation to her mother while waiting at the emergency department at the [redacted] Hospital on the afternoon of 10 May 2022;
(vi)The mother’s failure to disclose the strangulation at the hospital on 10 May 2022 and to police on 11 May 2022 must be considered in the context of a person who was suffering the cumulative effect of a long term family violence relationship;
(vii)During her consultation at the hospital on 10 May 2022, the mother disclosed that she was “[d]eeply concerned that she has a mental illness, and that this presentation can be used against her by her husband and she will lose access to her children”. When speaking about this, the mother’s speech was pressured, she was unable to finish sentences and she was stuttering;
(viii)I have taken into account the mother’s denial of her own threats in her video recording, but this must be considered in the context of months of being told she is insane and her fear of losing the children;
(ix)I consider it significant that although the mother did not disclose the strangulation to her GP on 11 May 2022, her doctor noted that “talking about [the father] makes her visibly more physically anxious”.
(x)The mother disclosed the strangulation to R Mental Health Service on 12 May 2022;
(xi)I accept Mr D opinion that the mother had minimised and tried to hide the abuse for years but reached a point where she was so overwhelmed that she could no longer keep her symptoms and the psychological toll the abuse had taken on her concealed;
(xii)One of the most appalling emotionally abusive incidents on 10 May 2022, was the father telling Y that the mother had threatened to kill her. The father showed not one skerrick of remorse for doing so but instead sought to justify his abuse;
(xiii)I am unable to find that the mother made a threat to kill the children but nor am I able to find that she did not make the threat. If she did say it, I find that the father weaponised it. I reject his contention that he held any fear that the mother would harm the children. The children remained in the home with the mother and Mrs L while the father went to work on the night of 10 May 2022. There is no suggestion that the children have been at risk of harm from the mother since the parents’ separated;
(xiv)I am unable to find that the mother made a threat to kill the father but nor am I able to find that she did not make the threat. The mother admitted during the ex parte family violence hearing that she had threatened to hurt the father. If the mother did threaten to kill the father, I find that the father weaponised it against the mother. I reject his contention that he held any fear that the mother would harm him;
(xv)The father’s emotional abuse of the children by making the telephone call to police on 11 May 2022 in the home while they were present and shouting the alleged threats over the phone, knowing the children were upset was breathtakingly abusive.
(g)The father’s withdrawal of $44,000 from the joint account at the time of separation and the later withdrawal of the balance of funds leaving the mother with only $0.52 in the joint account was financially abusive. I reject the father’s contention that he withdrew $44,000 to protect the money from wasteful spending by the mother. She had no history of such behaviour. The mother was supported by Child Safety to make a claim for financial assistance and her GP arranged for her psychologist to bulk bill her appointments due to her financial hardship.
The father’s behaviour during the Men’s Behaviour Change Program informs my positive findings about his family violence. Dr C maintained that she had “concerns and reservations” about the father’s behaviour during the program. The father engaged in controlling behaviour during his sessions and he was apparently completely oblivious to it. The father has no insight into his behaviour and how damaging it has been to so many people in his life to date. One can only hope that over the next few years, the father reflects on his behaviour and engages positively in counselling in the future. If he fails to do so it is unlikely he will ever be reunited with the children.
I am unable to find that the father strangled Y and Z but nor am I able to find he did not. These allegations and the allegations against the father in February 2021, that he had strangled a child at X’s scout camp and threatened to strangle him again, will inform the assessment of future risk.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF FUTURE HARM TO THE CHILDREN BY REASON OF HIS ALLEGED HISTORY OF FAMILY VIOLENCE?
The family violence perpetrated by the father is at the most serious end of the spectrum. As observed by Ms B, the risk posed by the father to the children and the mother is potentially lethal.
As already noted, the allegations of strangulation made by Y and Z and the child at the scout camp form part of the matrix of evidence that I take into account when assessing the risk posed by the father. In my view, these allegations increase the risk.
The Family Report writer raised concerns about the future risk of physical and emotional harm to the children from the father and said:
174. The narrative of [the mother] and the children is that [the father] engaged in family violence of a physical, verbal and emotional nature. [The mother’s] psychologist has also provided an opinion that her experiences of [the father] in the relationship were reflective of family violence and resulted in her experiencing PTSD. That there is information, including police records, to suggest that [the father] has attempted to strangle another child outside of the family gives weight to the reports of his behaviour within the family dynamic. Collectively, this information raises concerns about future risk of physical and emotional harm to the children in [the father’s] care, particularly if this were to occur without another adult present, at least initially, and in the absence of demonstrated insight into his behaviour and attempts to address same.
…
189. Further, if the children were to recommence spending time with [the father] and any substantiated risk was not sufficiently mitigated, this would expose the children to an increased likelihood of harm in his care (both physically and psychologically/emotionally). …
The father has not demonstrated any insight into his behaviour. The father’s attendance at the Men’s Behaviour Change Program does not ameliorate the risk because the father rejects any need to engage in the program and sees it as a box ticking exercise to make him look good in Court. The father has not demonstrated any capacity to reflect on his appalling behaviour and commit to change. As explained by the Family Report writer, a lack of insight increases the risk of ongoing abuse.
Having regard to the father’s behaviour, even during the counselling sessions where he was at times overbearing and controlling, I have no confidence that supervision of the father’s time with the children would ameliorate the risk posed by him.
Despite the Family Report writer’s apparent support at paragraphs 193 and 203 of her report, for a therapeutic reconnection between the father and the children irrespective of the findings in relation to family violence, I reject such a proposal. Given the findings I have made I cannot be satisfied that the unacceptable risk posed by the father could be ameliorated even in a therapeutic situation.
To be fair to the Family Report writer, it seems Dr C stepped back from what was interpreted by the father in absolute terms, when she appeared to place some caveats on therapy for reconnection purposes. Dr C opined that there would need to be a consideration of the level and severity of the family violence findings, the level of insight demonstrated by the father, whether he has meaningfully engaged in therapy, the need to assess how the children cope in therapy, and the need to have sufficient supports and protections present. In her view, the purpose of family therapy would be to explore the possibility of reconnection. In was really on that basis that the father very late in the proceedings sought an interim order.
Dr C also emphasised that X needed to be treated differently to the other two children given his vulnerabilities. Dr C opined that X’s mental health needed to be stabilised before considering therapy with the father. Dr C also opined that if the children were to recommence spending time (even in therapy I infer) and it does not go well e.g., an incident of abusive conduct by the father such as intimidation, that would be more detrimental to the children and their mental health.
I conclude that the father poses an unacceptable risk of physical, psychological, and emotional harm to the children that cannot be ameliorated.
HAS THE MOTHER ACTIVELY NEGATIVELY INFLUENCED THE CHILDREN’S VIEW OF THEIR FATHER?
It seems probable that the children’s view of the father has been influenced to some extent by the mother, but I reject the contention that the mother has actively negatively influenced the children. The mother did not prevent the children and father communicating after separation.
The children have their own negative experiences of the father. All three children have disclosed experiencing strangulation by the father in his effort to control them. The father even used his limited electronic communication with the children as an opportunity to criticise and blame the mother, thus exposing the children to the parental conflict. The father must realise, as was pointed out by the Family Report writer, that “his attitude of superiority in the parenting dynamic” and his view that the mother’s mental health “was to blame for the issues in their relationship … is likely to increase the existing tension in the father-child dynamic if … such views were shared with the children given the children have a strong relationship with their mother and look to her for emotional support and reassurance”.
The children have also been exposed to family violence perpetrated by the father against the mother. The children have witnessed the mother’s reaction to the father. The children expressed understandable concern about the mother to the Family Report writer. The mother’s hand tremors, which Mr D opines relate to her PTSD caused by family violence, were very evident throughout the trial and even more so when she was in the witness box. I have no doubt the children have witnessed her anxiety in response to anything to do with the father. The children have also lived through the mother’s spiralling anxiety and feelings of being overwhelmed in the lead up to separation and in the period of reported recovery thereafter. According to the Family Report writer, it is “likely that this has had an impact on how the children view the possibility of reconnecting with their father and their expressed trepidation in doing so”. I accept Dr C’s evidence that this history has had an impact on the children’s views of the father.
WILL THE MOTHER’S PARENTING CAPACITY BE NEGATIVELY AFFECTED IF AN ORDER IS MADE FOR THE FATHER TO SPEND TIME WITH THE CHILDREN?
The mother has been diagnosed with PTSD in remission. Her symptoms have been noted, by her treating psychologist, to flare around upcoming Court events and any likely exposure to the father. In the months leading up to separation, the mother’s symptoms were at times debilitating.
Ms B in the Child Impact Report opined:
44. If the children have been exposed to poor parental mental health, this may have affected the children’s emotional safety, physical safety, routine and stability. It seems that [the mother’s] experiences of alleged family violence may have negatively affected her mental health and possibly her parenting capacity. [The mother] reported having strategies in place to support her mental health and appeared insightful into the importance of accessing mental health support, which would mitigate the risk of the children being exposed to any emotional vulnerability experienced by [the mother]. Given the narratives of the children about [the mother] and [the mother’s] noticeable tremors at interview, it may benefit [the mother] to bolster her mental health support, so it occurs on a more regular basis.
…
46. [The mother] presented as a protective and loving mother who appeared insightful into the children’s needs based on their reported experiences of [the father]. During [the mother’s] interview, she presented as highly fearful of [the father] and highly anxious about Court with a visible tremor in her hand. [The mother] was not critical of [the father] and, despite the identified risk issues and the significance of the allegations, [the mother] expressed a willingness to facilitate the children spending time with [the father] if it was decided by the Court. …
In the Family Report writer’s opinion, the mother “impressed as having considerable anxiety about the prospect of the children spending time with their father in the future, regardless of whether this was under some form of supervision”. Indeed, the mother described to Dr C that she was “terrified” of the children seeing the father. The mother gave that impression throughout her evidence. She was at times very distressed.
The mother has sought and maintained appropriate treatment for her PTSD and it seems likely that she will remain in remission as long as she and the children are not exposed to the father.
In my view, the mother’s parenting capacity would be impaired if an order were made for the father to spend time with the children.
IS THE FATHER’S PARENTING CAPACITY IMPAIRED BY REASON OF HIS ALLEGED LACK OF INSIGHT INTO HIS OWN BEHAVIOUR AND THE IMPACT OF THAT BEHAVIOUR ON THE CHILDREN?
Unfortunately for the children, the father has no insight whatsoever into the damaging impact his behaviour has had on those he has abused. The father sees himself as a victim. He sees himself as virtuous. Contrary to his self-belief, the father has demonstrated himself to be controlling, overbearing, violent, and passively aggressive. While I am sure the father has some redeeming qualities as a father, his lack of insight is pervasive, and no doubt impairs his parenting capacity.
While I can understand the father may have some issues with some of the ideological terms and assumptions used during the Men’s Behaviour Change Program, he would be well advised to commit to the program or alternatively commence therapy with a very experienced psychologist who may have more success in challenging some of the father’s views of himself and others. It may help that process for the therapist to have access to these Reasons.
WHAT PARENTING ORDER IS APPROPRIATE
The father has not spent time with the children since mid-May 2022. The father approached Y and Z on their way to school on 8 February 2023 but he left when the children indicated they did not intend to engage with him. The father attended Y’s swimming carnival on 10 March 2023 but again there was little interaction and he left. None of the children want to spend time with the father. According to the Family Report writer, “the children’s fear of re-engaging with their father [is] seemingly increasing the longer the gap in time with him”.
According to the Family Report writer, “[i]t is not uncommon for children who have been exposed to high parental conflict to choose to align themselves with one parent post-separation in order to ease their own psychological distress and due to feeling caught in the middle”. While I accept this evidence, there is more involved in this case than just exposure to parental conflict. The children have their own negative experiences of the father which informs their expressed views, and they have no doubt been exposed to the mother’s symptoms of PTSD in connection with the father. The children are also no doubt aware of the improvement in their mother’s mental health since the parental separation.
I have found that the father has perpetrated significant family violence against the mother including strangulation of her and of one of the children. I have found that he poses an unacceptable risk of future physical, emotional, and psychological harm to all three children which cannot be ameliorated by supervision or therapy.
The father seeks an interim order that would require the father and children to attend family therapy for the purpose of considering whether a therapeutic process of reintroduction would be in the children’s best interests and to receive recommendations from the therapist about a way forward.
Having regard to the findings made in this case, including in relation to family violence perpetrated by the father, the fact that the father poses an unacceptable risk of future harm, the father’s lack of insight, the father’s lack of engagement in the Men’s Behaviour Change Program, the impact on the mother’s parenting capacity of continued engagement (even indirect) with the father, and that it would of necessity continue the litigation, I conclude that an interim order would not be in the best interests of the children.
The children will live with the mother, and she will have sole responsibility for decision making in relation to all major long-term issues. Given the impact on the mother of any communication or anticipated dealing with the father, I see no benefit for the children in requiring the mother to seek the father’s input into decisions.
The mother’s PTSD is in remission, and she provides a high standard of care for the three children. Their relationship has been assessed by the Family Report writer as strong and loving and I accept that evidence. As the mother has sought out and maintained appropriate support, I am satisfied that the mother does not pose a risk of harm to the children. The mother’s treating psychologist, Mr D, holds no concerns for the mother’s ability to meet the children’s needs and I accept his evidence. Dr C also opined, that “[t]he combination of strong social supports and a reasonably low stress environment would be considered favourable prognostics for future adjustments”.
I see limited benefit to the children receiving communication from the father. Despite the Family Report writer’s opinion that the receipt of gifts and cards might be a way of “keeping the door of communication open”, in my view, it is more likely to confuse the children and cause them anxiety. I cannot be satisfied that the father’s communication with the children would be appropriate given his history, which would then likely involve the mother in having to vet the communication which in turn would likely increase her PTSD symptoms.
Given the nature of the family violence and my obligations under s 60CG of the Act, I propose to include personal injunctions against the father including enjoining him from communicating with the mother and children or from approaching the mother and children or attending at their home, school or the mother’s place of work. I note that the current family violence protection order enjoins the father from coming within 50 metres of the mother and children and a similar provision will be reflected in the order.
I certify that the preceding two hundred and forty-one (241) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 10 September 2024
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