ARNDT & ARNDT

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARNDT & ARNDT

[2019] FCCA 1545

Catchwords:
FAMILY LAW – Parenting dispute about two children both under 5 years – father seeking that children live with him and spend time with the mother – mother always the primary carer – father’s lurid suspicions of mother not made out – father’s proposal’s not wholly clear and poorly thought out – clear recommendations in family report – orders to be made as sought by Independent Children’s Lawyer and mother.

Legislation:

Family Law Act 1975 (Cth), s.63CC(3)

Applicant:

MR ARNDT

Respondent:

MR ARNDT

File Number:

DGC 3997 of 2017

Judgment of:

Judge Burchardt

Hearing dates:

11 and 12 April 2019

Date of Last Submission:

12 April 2019

Delivered at:

Dandenong

Delivered on:

20 June 2019

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr Rothschild

Solicitors for the Respondent:

Brendan Rothschild Legal Group

Counsel for the Independent Children's Lawyer:

Ms Glaister

Solicitors for the Independent Children's Lawyer:

Madison Branson Lawyers

ORDERS

Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, final orders are made in accordance with the attached Minutes of proposed orders as amended and placed on the Court file.
That the order appointing the Independent Children’s Lawyer dated 18 December 2017 be discharged
The Applicant to pay the Respondents costs of 11 February 2019 fixed at $1548.

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

ENGROSSED MINUTE

THE COURT ORDERS THAT:

The mother have sole parental responsibility for the care, welfare and development of the children, but shall notify the father of any major long term decisions and consider, but not be bound, by his response.
The children live with the mother.
The children spend time and communicate with the father:
(a)In week 1, from 4:00pm after school (or kindergarten) on Friday until 5pm on Sunday.
(b)In week 2, from 5pm after school (or kindergarten) on Tuesday until 9am on Wednesday.
(c)In terms 1, 2 and 3, for half of each gazetted school term holidays as agreed between the parties and, failing agreement, for the first week thereof;
(d)In term 4, for half of the gazetted summer school holidays on a week about basis.
(e)On special occasions, including Christmas Eve, Christmas Day, Easter and any religious affiliation holy days, the children’s birthdays, the Father’s birthday and Father’s Day, as agreed between the parents and, failing agreement, for a minimum of 4 hours on each of the designated special occasions; and
(f)At such other times as agreed between the parents.
Changeover shall be:
(a)At commencement of time at Suburb B McDonald’s; and
(b)At conclusion of time at Town C McDonald’s.
Should the children’s time spent with the Father fall on a special occasion, such as the children’s birthdays, the Mother’s birthday or Mother’s Day, the children shall spend time with the Mother on that day, as agreed between the parents and, failing agreement, for a minimum of four hours of each of the designated special occasions
The parents be restrained by Injunction from using illicit substances or misusing alcohol prior to and during any time spent with the children.
The parents be restrained by Injunction from inappropriately exposing the children, or any of them, to inappropriate adult behaviours, any sexual activity, any dangerous activity or any domestic violence, either personally or through their servants or agents.
The Mother be restrained by Injunction from allowing the children to be in the company of any person using illicit substances and to have any contact with Mr D.
The Mother be restrained by Injunction from relocating the children more than 30km away from the Suburb B area.
The parent who has the day to day care of the children, or any of them, shall notify the other parent of any serious illness or medical condition suffered by the children as soon as practicable and further provide to the other parent all the relevant particulars of the treatment received by the children together with the name and address of the treatment provider.
The Mother shall provide authorisation to any treating medical practitioner of the children, or any of them, to allow the Father to have direct access to the children’s or child’s health and medical records.
The Mother forthwith do all acts and things and sign all documents as may be necessary to instruct the principal or proper officer of any kindergarten or school that the children or child may attend, to forward to both parents a copy of all reports, requests for photographs and any notification and other documents relevant to the children’s or either child’s welfare and education and in that regard, both parents be permitted to attend any function, parent-teacher interview and such like at the children’s school or kindergarten to which parents would normally be invited, subject to any policy of the school or kindergarten.
The Mother and Father forthwith do all such acts and things to download a parenting communication computer application such as; my mob, 2Houses, Parenting Apart, Parentship or SharedCare, onto an electronic device and each parent to use such application for communicating all relevant information and in relation to issues concerning the care, welfare and development of the children, or any of them, including any dietary restrictions and/or requirements and also all medical and allied health appointments, including times and upcoming appointment dates.
The Mother and Father be restrained by Injunction from:
(a)Denigrating each other, within the presence or hearing of the children, or any of them, either personally or through their servants or agents;
(b)Discussing any aspect of this Court proceeding or these orders or the conflict between the parents, or providing any material in relation to the proceedings, within the hearing or presence of the children, or any of them, either personally or through their servants or agents; and
(c)Inappropriately physically or verbally disciplining the children, any of them, either personally or through their servants or agents.
Until 9 August 2028 or further order, the father and his servants and agents be restrained from removing or attempting to remove the children from the Commonwealth of Australia.

THE COURT REQUESTS THAT:

A. The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include and retain the said children, [X] born … 2015 and [Y] born … 2016, on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the said children’s names on the Airport Watch list until 9 August 2028 or further order of the Court.

AND THE COURT NOTES THAT:

A.If either parent seeks that the children’s names remains on the airport watch list after 9 August 2028 then, before that date, that parent should file a further application to that effect supported by affidavit.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3997 of 2017

MR ARNDT

Applicant

And

MR ARNDT

Respondent

REASONS FOR JUDGMENT

Introductory

This case is about the best interests of two young children, [X], born … 2015, and [Y], born … 2016 (‘the children’). The applicant father seeks that the children live primarily with him and spend two nights a week with their mother. His position as to how the two nights could be configured seemed extremely flexible. Although his formal papers lodged from time to time put positions in the alternative, were his primary application unsuccessful, the father did not put anything specific before the Court (save that under cross-examination, he conceded that were he to be unsuccessful, then he should have the time he had proposed for the mother).
The mother seeks that the children live with her in an 11/3 configuration, which is the position contended for also by the Independent Children’s Lawyer.
For the reasons that follow, I propose to make orders as sought by the mother and Independent Children’s Lawyer.

Background

The initial application for an adjournment

When the matter was first brought on, the applicant requested an adjournment and handed up a document that I have marked as ‘MFI1’ in support of that application. Essentially, he put it that he was still seeking to obtain Legal Aid representation: that he had requested a review of a decision to refuse him Legal Aid and had an appointment with a lawyer in near future.
The fact is that the father was legally represented until 11 February 2019. On that date his lawyers sought leave to and were granted leave to withdraw. The matter had been originally set down for hearing as long ago as 31 May 2018, and plainly, the applicant’s material had been prepared ready for trial in due course. He had, indeed, filed a case summary document on 5 February 2019.
I granted an adjournment of the proceeding on 11 February 2019 to enable the father to seek legal representation, and I adjourned the matter to 11 April 2019, giving the husband two months to arrange representation.
In my view, the period of two months was more than enough, and indeed, if I recall the matter correctly (I do not have the transcript), the father had indicated on 11 February that that would be sufficient time for him.
The father has, obviously, applied for Legal Aid unsuccessfully, and the chances of successful review would be questionable in any event. I note that the father’s formal position before the Court was inconsistent with the recommendations of the family report, which may well explain why Legal Aid did not make a grant of aid. While the father said he had an appointment with a lawyer the next day, this does not necessarily suggest that the practitioner would be prepared to proceed.
Given that this matter has been before the courts since the father’s initiating application lodged in October 2017, the cost impact of the further adjournment and bearing in mind the parties’ poor financial situation, it was obviously unfair to the mother to contemplate an adjournment at this late stage.
Balancing the various competing considerations together, it was clear to me that the interests of justice did not make it appropriate that there be an adjournment, but rather, that the matter proceed. It did so.

Agreed or uncontroversial relevant facts

The father was born in Country E on … 1984 and came to Australia with his mother, older sister and younger brother when he was 12 years old. His parents separated when he was young. He had lived in Country F until he came to Australia. He had suffered a number of family tragedies, as recorded in the family report.
The mother was born on … 1994. She was 18 years old when she met Mr Arndt, who was 10 years older. She conceived the first child early in the relationship. They had met in 2003 and married in … 2004, and separated finally in early 2017. The children remained living with the mother, and the parents’ incapacity to agree led to the father instituting these proceedings, as earlier indicated, in November 2017.
A series of s11F interviews held on 15 May 2018 showed a good relationship between the children and each of their parents, something also noted in the family report.

Evidence

The parties’ affidavit material

The father’s first affidavit was filed contemporaneously with his application, at which time he was a manager in a business. The affidavit was made in the context of his application for the children to be in his care. This was on the footing that the children were not safe with the mother. I note that the father had been concerned by bruising and scratches on the children and had taken them to the doctor as a result. He also complained of poor hygiene at the mother’s home. He also deposed that the mother has sent him videos of herself naked in the shower asking him to come over and have sex with her. The mother admitted sending one such message, and it is clear that that is exhibit ‘MMA3’ to the affidavit.
The father complained that the wife might be working in a brothel and associating with motorcycle gang members. He also annexed as ‘MMA4’ samples of texts between the parties in 2017, which I have read but would prefer not to comment on in detail.
The father complained that the wife had been a drug user when they met. He deposed to an incident in December 2016 when an argument took place during which he broke a TV and kettle, which led to the mother making an application for an Intervention Order against him. The order was made on 1 February 2017.
He further deposed to returning to the rental property that the mother lived in on 13 March 2017. He asserted that she was in her room naked with a knife in her hand and deposed to being stabbed by the wife. He was charged with contravening the family violence order and unlawful assault and placed on a CCO. He asserted he had complied with all the conditions of the CCO. He deposed to the Department of Health and Human Services’ involvement with the family.
The wife’s responding affidavit filed 6 April 2018 traverses the history of the relationship. She described having mental health issues for which she has treatment. She asserted she had been diagnosed with PTSD as a result of her relationship with the father. Although she admitted some brief use of drugs, she essentially said she was drug-clear and did not abuse alcohol. She deposed to numerous incidents of aggression and/or violence on the part of the father. These included the December 2016 incident involving the television and kettle. She also deposed to the incident on 13 March 2017. Unsurprisingly, this painted the father as the aggressor rather than herself. She did, however, depose to using a steak knife to cut the father’s back because he was choking her.
Otherwise, she denied any failing in her care of the children. She denied working in a brothel, although she admitted sending the naked picture. She conceded that she could have “a short fuse with Mr Arndt”. She denied associating with motorcycle gangs and otherwise put in issue the father’s assertions.
The father’s next affidavit filed 17 May 2018 does not, in my view, take the matter further, and the affidavit of his mother filed contemporaneously was not placed in evidence before the Court, although it is on the Court file.
The father’s further affidavit filed 21 January 2019 is an update. I note that he deposes to putting $50 each week into the mother’s bank account and to providing all clothing, bedding and children’s needs while the children are with him. He deposed to flexible work arrangements so that the children could live with him.
Otherwise, once again, the affidavit does not take the matter further.
The mother’s final affidavit filed on 7 February 2019 is, likewise, essentially an update and also does not take the matter further.

The DHHS reports

The Department filed a section 67Z response dated 19 December 2017. It noted there had been eight previous reports between 2014 and November 2017. Protective interventions were required in 2014, 2016 and March 2017. The report noted concerns related primarily to family violence between the parents, “including physical, emotional and verbal abuse perpetrated by Mr Arndt towards Ms Arndt”. Following a physical assault by Mr Arndt of Ms Arndt in December 2016, a full Intervention Order was obtained against Mr Arndt and Ms Arndt ended the relationship. Mr Arndt was assessed by Child Protection as being responsible for harm to [Y] and [X].
Soon after, vague concerns were reported relating to Ms Arndt’s mental health, her drug and alcohol use and people coming and going from her home. Ms Arndt provided clear drug screens to Child Protection and there was no evidence of her suffering mental ill-health or using drugs. Child Care had no concerns for [Y] and [X], or for Ms Arndt’s presentation, interaction with or care for the children.
The report also noted that the mother had support from extended family members. Further concerns had been received since August 2017 that were similar to those presently reported. The report noted, “Child Protection has assessed these concerns to be vague in context and raising questions about the validity of the information and the motivations of the reporter given recent involvement by Child Protection with Ms Arndt assessed as her being protective of [X] and [Y].”
The Department provided a further response as an update on 5 April 2018. The report noted on page 2:
“A Child First referral was recommended to Ms Arndt, as the centre director noted that the children had occasionally come to the centre dirty, and Ms Arndt appeared tired, advising that she worked overnight. It may, therefore, be true that Ms Arndt was working as a sex worker, however, Ms Arndt advised that the children have a babysitter when she is working, and there is no information to suggest that the children are exposed to any inappropriate activity.”
The report noted concerns about the man with whom the mother was then in a relationship, whom she had been visiting in jail fortnightly since February 2018 (this report being made on 27 February 2018). The man, who is clearly Mr D, was known for significant drug use and violent behaviour.
No evidence of neglect was found during intervention, and no concerning marks or bruising was observed. On page 3, the report stated “it is noted that both children are highly mobile and, on two occasions during visits, bumped themselves on furniture or toys while playing, which was responded to appropriately by Ms Arndt.”
The mother provided the Department with a recent supervised urine screen, which was free from illicit substances.
On the same page, the report noted:
“Concerns were addressed with Mr Arndt during the first visit on 20 March 2018. During the visit, Mr Arndt demonstrated significant difficulty remaining child focused, frequently changing the subject to discuss concerns he had for Ms Arndt and her ability to care for [X] and [Y]. Mr Arndt raised a number of concerns which had previously been reported to Child Protection, and did not appear to accept that these concerns were not validated by evidence, including the following; Ms Arndt has criminal associations, including outlaw motorcycle gang members attending her home. Ms Arndt sex works, uses and deals illicit substances, physically assaults the children and neglects their daily care and needs.”
A further report had been received on 20 March 2018, which alleged that the mother had been to a party with somebody who was, in fact, in gaol. The report made no criticism of the mother and noted on page 4:
“It is Child Protection’s assessment that ongoing reports in relation to Ms Arndt’s parenting capacity appear to be largely malicious in nature, and do not appear to be directly linked to the potential for harm posed to [Y] and [X].”

The family report of Ms G

Ms G commenced the report by noting the history of the relationship and the institution of the proceedings. She noted that the father lives in a rental home in Suburb B and works as a tradesman and was spending time each week from Saturday 10 am to Monday 12 pm, with changeovers at the Suburb B police station. The father had indicated that the regime was running well.
The report noted that the mother was then living in Suburb B in a rental home and planned to buy a home in the same area with her mother in the near future. The report noted at paragraph 4 that the mother was in a relationship with Mr D, who is presently in gaol due to drug-related crimes and will be out of prison in 2020.

Under the heading ‘Risk Factors’ on page 5 of 20, the report noted the mother’s allegations that the father had a lengthy criminal record from his younger days and had uncontrollable anger. Ms G noted the allegations of assault. On the opposite side, the report noted the father’s allegations of drug use, that the mother spent time with drug addicts and violent bikies. It noted that the mother denied this and had provided clean drug screens.
The report traversed the parties’ positions, which, in the light of how the matter was put at Court, is not necessary to deal with further. At paragraph 8 on page 6, the report noted:
“Mr Arndt seemed overcome by the Court process coupled with a sadness about being separated from his children. He was overwhelmed with concerns about the wellbeing of his children in the primary care of their mother. He struggled to understand and accept the way the legal system looked at the issues relating to children, as it did not make clear sense to him.”
Having traversed the father’s family history, which was undoubtedly most unfortunately laced with tragedies, the report went on to assert relevantly at paragraphs 10 - 11:
“He remarked, ‘I am blessed to have my two kids. They are priceless to me. If they cough, my heart stops. I emotionally struggle if I see them with bruises. I live for my kids.’ He shared that when the children come from their mother with cuts and bruises on their bodies, he took them to the family doctor to make sure they were all right.
Mr Arndt seemed shocked when the writer explained that may not be good for the children that they are taken to the doctors repeatedly for insignificant issues. He assured that he would be more judicious about the issue in the future.”
The report went on to note the father’s version of the relationship, including denials of violence, and his assertions that the mother used drugs.
At paragraph 19, the report noted about the mother, “Ms Arndt was co-operative and calm during the report interview, but at times quite vague and appeared emotionally disconnected in relation to the problematic issues in her life.”
The mother denied the various allegations that were made by the father against her. She reported that she was 18 years old when she met the father and, albeit he was 10 years older, found him physically attractive. She complained of being forced into what one might describe as religious affiliations during the relationship. She made the allegations of violence already asserted in the materials, and it was certain that she was the primary parent.
Paragraphs 24 - 25 of the report noted:
“Nonetheless the mother considered Mr Arndt as an affectionate father, particularly after separation. She stated that she did allow the children to spend regular time with him because the children were keen to spend time with their father, and ‘they adore their paternal grandmother’. She only communicated with Mr Arndt by text messages.
The mother informed that the father and the paternal grandmother provided adequate care for the children during their time spent with Mr Arndt.”
At paragraph 27, the report noted in relation to Mr D that:
“She had a relationship with him for four months before he was incarcerated. She had visited him in prison, and she was determined to make a life with him when he gets out of prison. The mother negated the risk factors for the children in that relationship with the remark that, ‘He’s in love with me. He only has a drug issue. Nothing violent or aggravated. He will attend drug counselling in prison. We will be ok.’”
Ms G observed the children and described [X] as a friendly, smiling child who is hyper-vigilant and stopped playing if she heard noises. [Y] was at times overactive and limited in his speech. Ms G noted at paragraph 31 that the mother allowed the children to play with each other and intervened appropriately when necessary. At paragraph 32, the report noted:
“In the company of the father, the children seemed quite excited. They were all over him. Mr Arndt picked them up, tickled them and played with him, addressing them as ‘my little man’, ‘my princess’ and ‘my babies’.”
The observations were unremarkable.
Having traversed the positions of the parties, Ms G observed at paragraph 37:
“The relationship between the parents was short-lived and reported to be tumultuous and eruptive based on the information provided by the parents. It is noted that the father has endured a traumatic past and admits having suffered from periodical depression. It is likely that he has internal and external triggers that could quickly activate aggressive responses from him. There appears to be some basis for the mother’s allegations that Mr Arndt had presented violent behaviour during the relationship. Whilst the father in hindsight, accepts this is the case, he denies that he caused any physical harm to the mother as alleged by her which needs to be tested in the proceedings.”
Ms G noted the undesirability of the relationship with Mr D and opined that it would be appropriate to inform the Department should this occur.
Relevantly for these purposes, at paragraph 44, Ms G observed:
“Both [X] and [Y] have a warm and trusting relationship with both the parents. They benefit from spending time with each of them. Ms Arndt would appear to provide adequately for the children, and she has provided clear drug screens to indicate that she is not using drugs. The children seemed ready to spend extended time with their father. Mr Arndt presents as an affectionate and indulgent parent. He also has the support from the paternal grandmother and even Ms Arndt concedes that both children adore the company of their paternal grandmother.”
The report went on to recommend equal shared parental responsibility, that the children spend time with the father on the alternate Friday after school to Tuesday morning school/kindergarten. She additionally recommended telephone time twice in the alternate week so there was frequent communication between the parties and that school parties and special times be shared.

The submissions made and evidence given at Court

What follows is taken from my notes. It is not, of course, a transcript but records aspects of the matters put that struck me as being of significance.

The father’s evidence

When the case started after the refusal of the adjournment application, the father, whose appearance of being overwhelmed by the experience entirely corresponded with Ms G’s observations, opened his case. He said he wanted the children to live with him and visit their mother twice a week for two days. He clarified that this meant overnights, and it would be whatever suited the mother. It could be any nights of the week and could be two consecutive nights with one full day.
Once having been sworn and adopted his affidavits, the father revealed that he had ceased work one month ago. He is a tradesman but had felt unable to continue working, given the stress of these proceedings.
Under cross-examination by Counsel for the mother, the father clarified that he wanted the children to live with him and spend two nights per week with the mother. When asked why it was in the best interests of the children to live with him, the father said the children would be safe. There would be no risk. There would be no bruises on them. They would not be touched in private parts and traumatised. He said this happens with them when they are with the mother. He said he had made reports, but they had done nothing. This had happened three times.
The father was cross-examined about matters arising out of his criminal record, and he said that all of the matters put to him were before he became a dad. He said a lot had changed in his life. There was nothing major. He had been a good dad.
The father conceded that following the birth of the children in 2015 and 2016, he had been charged with intentional damage to property and assault and received a CCO for 12 months. This was for breaching the Intervention Order. He said he pushed his TV and broke it. The mother had grabbed his daughter and told him to get out of the house and fuck off. He then broke the television. He went to work, where he was arrested.
On another occasion, he went back to the house and was attacked by the mother with a knife. He went to the police to report it but was arrested at the police station. The police did not charge the mother and had not taken appropriate action. He was hit with a knife and was bleeding at the back. He went to police to report the matter and was arrested. The police report is not correct. They did not try to help him or ask if he wanted medical attention, and he had not declined to have the mother charged.
When it was put to him that the children had seen trauma during their marriage, he said this was not true. He had made his mistakes. These had made him where he is now. When asked what the mistakes were, perhaps surprisingly, the father asked if this was relevant, and I ruled that it was. He then said that he was charged in 2017 in February to March. He had broken his TV, and the children were there, too. This shouldn’t happen. His daughter was there. He regretted that time, and it should not have happened. But it was also not okay to swear and scream in front of a child. Telling dad to “fucking get out, or I’ll call the police.”
When it was put to him that he had failed to attend a doctor’s appointment with a child when in his care in February 2018, I have to say that the father’s answers were hard to follow but seemed to me both to admit that this was the case but to prevaricate as to why. He appeared to suggest he felt he was being set up. It was just a message from the mother and not a proper appointment. His explanations were manifestly inadequate.
He did not agree that he had been reluctant to spend time with the children. Any time he was offered he took up. He did not agree he had not spent time by telephone or with Facebook. It was the other way round. She only tried FaceTime once, and it did not work. He had never missed FaceTime.
When asked how it affected the children if they were to live with him, the father said the children were very happy with him. When asked how the change of residence might affect them, he said it would not impact them in a bad way. It would be change in a better way.
The father confirmed that he had read the mother’s affidavit material, including that [X] checks door handles at night time and checks that matters are locked. He conceded that she was scared and trying to make herself secure.
When asked who has been the primary carer, the father struggled to engage with the question. He did not wish to concede that the mother had been the primary carer and said he had a better role. He did say that the children are now with the mother more than they are with him. He disagreed that the mother was the primary carer before separation in 2017. This took place after the incident in February or March. [Y] had lived with the mother not because he had a choice. The time he has them on two days is done much better. He has been there for them in every way. He is not working right now because he couldn’t handle things. He last worked just over a month ago. He has not worked full-time but has worked long hours. He earns $600 to $650 a week, which depended on his hours.
When asked about child support, the father said he was paying the mother child support. He was paying $50 per week but now pays $50 per fortnight, as he is not working. He will go back to work. He has the support of his mother and sister. The children will always have a roof over their head. When asked how the childrens’ day would go if in his care and who they would stay with if he was working, the father said they would attend kinder and childcare. He would drop them off in the morning and collect them after work. His mother and sister might pick them up after work.
When asked about the parties’ religion, the husband rhetorically asked, “Is your client Catholic?” He said there was nothing wrong with being religious affiliation. Nonetheless, if the children wanted to follow him, that was okay. It was what they chose. He said he would take them to church. He would, however, support Catholic observance. “I would not force the children to choose a religion.” It was put to him that he did not celebrate Christmas and Easter, but he said the children should spend time with both parents at Christmas. He sought half Christmas Day. It was a special day. There would be presents and the children would know that Christmas is for gifts and seeing family. He said that his own family put up trees and give presents, in any event. He said that he and the mother used to put up Christmas trees, just like everyone else. He would seek time, but it should be the same, with half the time between each parent. The father said he had tried telephone time in the past but got no answer. He said it was worth trying, but there was no answer.
The father was cross-examined about the risk of his taking the children to Country E. The father said he has no one there and had not been there. He came from there and left when he was 12. He lived in Country F but had no connections now. He has got an Australian passport, and he only has one passport. When the risk of flight was pressed, the father said the children can live here in Australia. He asked rhetorically, “Why would I do that?” when asked about going to Country E.
When asked whether changeover could be moved from a police station to McDonalds, the father agreed to a police station halfway. He was aware that McDonalds had CCTV footage but did not prefer McDonalds.
Counsel for the Independent Children’s Lawyer cross-examined the father extensively about his LEAP records, which run to 12 pages and which were, in due course, tendered. He agreed he had been sentenced to a 12-month CCO for breach of contravention but did not agree about unlawful assault. The CCO had conditions, which included mental health assessment and treatment of his conditions. He did not appear to readily remember whether these had been complied with.
When asked if he had problems with anger, he replied yes and no. He did not agree it was a longstanding issue and said people do change. He said he was angry but not significantly. He remembered a road rage conviction in 2010. He had thrown knuckledusters at the window of a truck driver, which had caused the window to shatter. When it was put to him that he had lost his temper, he said it was nine years ago.
He was cross-examined about an incident in December 2013 arising out of his work. He slapped a female on the bottom. He was charged and convicted. He denied grabbing the woman and pulling her towards him and said that he had not lifted up her dress. She had grabbed her bag and left the shop. He admitted that there were punches thrown four hours later by him in self-defence.
When cross-examined about assaults on a former partner in 2006, the husband was clearly reluctant to answer. When it was put that she had been assaulted by him, he replied, “Assault her? No.” He went to her workplace and had a heated argument but had not hit her. He, nonetheless, agreed all the charges put against him. He admitted following the woman’s car in a manner that was dangerous but denied a threat to kill. In the end, however, it seemed to me he changed his story and admitted that he had done so.
He admitted an ugly incident in February 2014 which led to the police being called. He attempted to minimise any assaults that he had committed.
The father was cross-examined about the incident on 29 December 2016 involving the TV screen. He said there was an argument, and the children were there. Christmas presents were one of the reasons. He agreed that he grabbed a kettle and smashed it but denied slapping the mother with an open hand. He left before the police arrived and had to be at work. He was arrested there. The Department had been notified because it was in front of the children.
The last incident took place on 15 March 2017, when he went to the mother’s house at 10.30 pm. He denied there had been a scuffle over the phone. He had reached for the phone because he saw it. When it was put to him that he grabbed the mother by the throat and that she grabbed a knife to obtain her release, the father said she had the knife in her hand and cut his back while he was walking off. When it was put to him that the mother had never been convicted, he replied with a question, “Has she never been to court?” He denied kicking the mother in the bottom. He admitted that there was an Intervention Order in place in March 2017 prohibiting him from family violence. He had been to the mother to see his daughter.
The father said that there was a two-bedroom unit, and his daughter’s cot was in the mother’s bedroom. He said she was naked and in high heels (something not in his affidavit materials).
The father thought he might have seen the DHS reports. He confirmed that he was of the view that the Department had not done the right thing for the children. He admitted that he had made a number of reports to the Department. He agreed that the Department had expressed no concerns about the children in their mother’s care but did not believe it. He did not accept that there was no risk with the mother, as the Department had said. He admitted depression as a result of various problems in his life. He admitted that Ms G had told him he should not take the children so often to the doctor and said that DHHS had said the same thing. He would not take the children to the doctor for no reason. When it was put to him that he was told not to take the children to the doctor for bumps and scrapes, he said it needed to stop. He clarified that the bruises need to stop. He was not just trying to get evidence against the mother. The children’s safety comes first. If the children were complaining about abuse, something has to be done about it.
Counsel put it to him that he talks to the children about being abused by their mother, and the father said he tries not to talk about it too much. He said they know there is a risk at the mother’s house.
When it was put to him that he had agreed that he had been abusive to the mother, he said to a certain level. He is not perfect but will reply back. He had never told Ms G that they had both calmed down. He can focus on the children, but the mother cannot.
When it was put to him that his $50 per fortnight child support was not much, he agreed. He said, however, that he had done a lot. If he had a better wage, the children would have done better. The whole process is not allowing him to focus properly. His children are sexually abused, and nothing is done about it. He agreed that expressing negative views of the mother would be bad for the children but said he had not said any bad words to the kids. When the children say things, he said dad is there.
The father did not concede that the mother’s care of the children had been adequate since separation. When it was put to him that there would be problems for the children if the mother had been taken to Court, the father said “if you do the crime, you have to face it”. He denied not being child-focused. He agreed that neither parent was religious, and they could leave this to the children. When it was put to him that changeover at the police station sent the wrong message, he said it was safe.
In re-examination, the father said he wished to ask if the mother was

a Catholic. He went on to say he had messages and videos from the mother in 2017 during the currency of the Intervention Order, and she was not scared of him.

The mother’s evidence

In evidence-in-chief, the mother said that she last received $50 by way of child support on 26 December 2018. She had also received $25 from the Child Support Agency one week ago. The agency contacted her because the father had contacted them, and they wanted to confirm her details. She had told them that she needed child support. They had said they would arrange it through the agency. There was some discussion of back pay.

The mother was asked about her concerns about overseas travel. She feared that if the Court case did not go the father’s way, he would run away. He would forge her signature.
The mother confirmed that her family celebrates Christmas with a big party. They have breakfast with her father and lunch with her mother. She then has dinner with the children on her own, and this has happened all her life.
When asked why changeovers should not be at the police station, the mother said everyone would be more comfortable in a child-friendly environment, such as McDonalds. It would be more positive. She wanted to drop off at Suburb B McDonalds at the start and the father to return the children to Town C McDonalds at the end of time.
Under cross-examination by the father, who was representing himself, the mother confirmed that she lives with her own mother. When asked why she visited a premises at Street H, she said her brother lives there. The house is owned by her mother, but she does not live there.
The mother repeated that she was worried the father would forge her signature and kidnap the children.
The father asked how she could have been in fear of him if she was inviting him over. She said when she first split up with him, one day, she sent him a message and a photograph. It was a naked photograph. She conceded that she was inviting the father to be intimate with her. When it was put to her that she knew the father was religious affiliation and had converted, she said she had not converted of her own will.
Under cross-examination by Counsel for the Independent Children’s Lawyer, the mother said she had never been convicted of any offence. The children are presently at child care two days per week, but it was three days in 2018.
She had been told she had PTSD by a psychiatrist. She had seen a psychiatrist or psychologist during the relationship from 2014 to 2018. She saw the psychiatrist two to three times but otherwise saw her counsellor or her GP. It was her GP who told her it was PTSD after the relationship. This was in 2017 or 2018. She went in thinking it was anxiety or depression, but the psychiatrist or psychologist had told the GP it was PTSD.
The mother agreed the children should spend time with the father. There had been time with the children so far. At the start, she decided to ease the children into seeing the father again. She remained concerned the father will become angry.
When asked if she had read the LEAP records relating to Mr D, the mother confirmed that she had. It was put to her that he had drug-related crimes and would be in gaol until 2020. She said she did not intend to have a relationship with him. When it was put to her that at the time of the family report, she had been defending Mr D, she said that she had always had it in the back of her mind. She decided to cut the relationship off in January. The children are the reason for this. She had lacked child focus when she talked to Ms G. Mr D had agreed and understood where she was coming from.
When taxed with what Ms G had recorded her to say about Mr D, the mother said she did not believe she had said it was just a drug issue. Her judgment was clouded at the time. She would accept an order that the children not spend any time with Mr D, 100 per cent. She understood that if this was breached, it would jeopardise her residence.
The mother said there were some moments when the father calmed down, but he struggles to remain child-focused. She was happy to try anything to better their co-parenting relationship. She said she was always afraid to yell at the father because she was terrified of him. The children had seen domestic violence. The father would not deliberately harm the children, but they would be exposed to mental abuse because of his hatred towards her. She had tried to speak to the father about schooling, but he would not co-operate. She was prepared to communicate with the father about schooling and medical issues, and she did. She would not purposely reject his telephone calls.
The mother conceded that there is a close bond between the children and the parental grandmother. She assists the father. Her own relation with the grandmother was damaged but was hopefully repairable.

Ms G’s evidence

Ms G adopted her report, which was tendered as exhibit ‘M1’.
Under cross-examination by Counsel for the Independent Children’s Lawyer, Ms G confirmed that she had seen the DHHS correspondence but not the subpoenaed documents. She said even the father accepted he has an anger problem when she spoke to him. The father said he did not understand family violence during the relationship but denied physical violence. The relationship was volatile. Physical violence was part of it.
Ms G accepted it was possible the father had overused professionals because of his own vulnerabilities. If he saw any mark on a child, he would take them to the doctor. Even when she spoke with him about not going to the doctors for small bruises, he was really surprised. The father has vulnerabilities and overreacts.
Ms G had noticed that the father listens but has a tendency to go back to his original thinking. It was hard to change the father’s thinking. This, in part, reflected cultural issues. There are things that stop him from reacting in an appropriate manner. The father was very negative about the mother but would also praise her. Then in the next sentence, he would accuse her of being a sex worker. He was very changeable.
Ms G found it difficult to believe that the mother could have said she was not going to have a relationship with Mr D. Safety measures had been discussed with the Department. The mother seemed absolutely unaware as to what she was saying. She said it was a drug issue, but the man was not violent and was loving. She had been visiting Mr D in prison. The DHHS was opposed to Mr D spending time with the children.
Ms G confirmed that there was a risk that the father would be critical of the mother to the children. She accepted that the parents were not getting along well when she had seen them. The father wanted two nights, but when he was with her, he wanted five nights in a row. Ms G opined that fortnightly time from Friday to Monday would be okay, with one night in the off week. The children loved the parental grandmother, and there should be shared school holidays.
Counsel for the mother did not cross-examine.
Mr Arndt, who had insisted that Ms G be called, initially elected to put no questions. Upon my encouragement, he queried whether Ms G had accurately recalled his proposals. She said he had asked for five nights in a fortnight, not five nights in a week. He had been clear that he did not want the children in the second week.

Closing Submissions

Counsel for the Independent Children’s Lawyer

Counsel submitted that the father’s evidence showed the problems identified by Ms G. He had not even conceded that the mother had looked after the children more of the time and that $50 per fortnight child support was not enough. His attitude to the mother was concerning. The mother had proved an adequate carer even though she was under scrutiny by the Department. Counsel submitted that the mother’s evidence about her intentions in relation to Mr D was unconvincing. The mother has the financial burden of the children. The father’s reports to DHHS were unhelpful, and the father did not accept the reports that emerged as a result. Ms G had not changed her views under cross-examination.
Counsel submitted the mother should have sole parental responsibility, given the complete incapacity of the parents to co-operate, but that the father should be made aware of major decisions and his point of view considered.
Counsel submitted the children should spend time from Friday night to Sunday and one night in the off week. Counsel noted that she had proposed 3.30pm but noted that the mother said 5 pm because of the practical difficulties involved, and the ICL had no difficulty with that. Counsel proposed school holidays to be week about and week about in the long school holidays. The children would be old enough to sustain this by then. The mother’s Christmas proposal was endorsed by Counsel, and she noted that the order in respect of religious activities might not be required. Counsel submitted that changeover should continue at the police station for a couple of months and then move to the mother’s proposal. The Independent Children’s Lawyer supported the mother’s Watch list order proposals. She did not oppose the mother’s proposed orders in respect of Easter.

Submissions by Counsel for the mother

The mother supported the Independent Children Lawyer’s orders that sought an Airport Watch list order till the youngest child was 12. The father will not listen to anyone.
In respect of changeover, Counsel pointed to the lengthy drive between the mother’s home in Town C and the father’s in Suburb B. It should be a police station closest to each home so the mother did not do all the driving.
The proposed Christmas Day arrangement has been what has occurred in the last few years. Return on Sundays should be at 5.00pm because 3.30pm is simply not practicable for the mother. She sought changeover on Friday because return on Saturday morning in the off week is more convenient.
Counsel submitted that the father had focused on two items, namely, the mother’s SMSs and the mother’s address. Counsel queried whether the father was stalking the mother, as she had not disclosed her brother’s address to him.

Submissions of the father

The father said he had dot points because he had not been prepared. He handed up, over objection, a document that I marked for identification as MFI2. In large part, this traverses matters that were simply never put in issue by the father during the proceeding. It is really impossible to allot it any weight.
The father said the children were better off with him than with the mother. He referred to his concerns. He said the children would do well with his family, and he did not want to come back to Court over and over. He did not oppose the Watch list order sought, provided that it was applied to both parents.
By way of addendum, counsel for the Independent Children’s Lawyer suggested that changeover on Christmas Day be at 3.00pm.

Findings

Findings about the credibility of the witnesses

Ms G’s evidence can be dealt with briefly. She was a professional giving evidence within her area of expertise. She was not moved one iota in cross-examination. She was clearly telling the truth, and I accept her evidence.
As already indicated, the father presented as somewhat overwhelmed by the entire Court experience. He had a somewhat dull affect and appeared to be very nervous.
It should be noted that his answers seemed to reveal a surprising lack of insight at times. His failure to concede that the mother had been the person who had spent most time with the children both before and after separation and the inadequacy of his financial contributions were striking. His assertions as to his superiority as a parent seemed to involve vague generalisations rather than any precise issues.
Under cross-examination about his prior criminal history, the father sought at all times to minimise it and diminish it. To the extent that he made any admissions, he was keen to describe them as wholly historical, and the burden of what he was saying was that he had changed since his children were born. This ignores the fact that, of course, there was the incident in December 2016 and the further incident in March 2017 that led to the end of the relationship.
The mother’s evidence was given in a composed and responsive manner. She readily admitted, for example, that she had sent the naked photograph of herself, which is annexed to the father’s first affidavit. However, I bear in mind in this regard that she had little choice because the photograph was clearly there. While she was responsive to the questions put and, as I say, composed in her manner, I agree with the Independent Children’s Lawyer’s counsel that her answers in relation to Mr D were unconvincing. I note that when I spelt out, so to speak, the likely consequences of introducing Mr D into her life and that of her children, the mother paid very close attention to what I was saying and, indeed, peered around her counsel to observe me better while I was doing so.

Findings about the relevant facts

These parties met when the mother was very young. She achieved an infatuation for him in which physical attraction played a large part. Indeed, from the message she sent to the father, not, as she put it, shortly after separation but over half a year or so later, it is plain that that physical need subsisted.
Contrary to his denials, the father was plainly violent and abusive in the relationship, which was, as Ms G rightly opined, extremely volatile. The father is a man with a significant criminal history for crimes committed arising out of anger, and I accept Ms G’s assertion that he is likely to be triggered by the very significant difficulties he has himself confronted in his life to move quickly to anger and violence.
There is no doubt in my mind that the mother would have sworn at the father from time to time. The text messages that the father annexed to his first affidavit, not the subject of challenge in cross-examination or otherwise, show a well-developed capacity on her part to call him very offensive names. In December 2016, an incident erupted, but there is no doubt that the father smashed the TV and smashed the kettle. This, together with what was, no doubt, hideous verbal interchanges between the parties, was all in the presence of the children.
The mother took out an Intervention Order against the father, and during the currency of that Intervention Order, the father took it upon himself to go to the mother’s home at 10.30 at night, an hour which would surely have been unreasonable. He did not, as he asserts, go to see his daughter sleeping in the mother’s room. He was stalking the mother. I do not know whether he found her naked in high heels because this was never put to her, but whether she was or was not, it is plain that her telephone rang. He then sought to take the telephone from her. He had no right to do so, on any view of the matter. He did so because he jealously thought this might be another man and possibly a client if he thought she was a prostitute. I accept that he grabbed the mother by the throat and that, in defending herself, she availed herself of a knife and cut the husband. I have no doubt that the police accepted the mother’s version of the events because the father was the one who was charged. His endeavours, apparently, to have her charged speak volumes about his lack of child focus.
Having made these findings about perhaps the most important factual matters in dispute, I turn to the statutory pathway.

Shared parental responsibility

This matter can be disposed of shortly. There is no question that there has been family violence in this relationship, so the presumption is rebutted. Furthermore, the interpersonal dynamic between the parents is so appalling that any endeavour to allow equal shared parental responsibility is clearly contraindicated. This is all the more the case because of the father’s obsessive view about the mother’s shortcomings and his, as I find, tendency to controlling and domineering behaviour. The Independent Children’s Lawyer submits that the mother should have sole parental responsibility in relation to education and medical issues, and that submission is clearly in the children’s best interests. I will make the orders the Independent Children’s Lawyer seeks in this regard.

The spend time regime – the primary considerations

Everyone agrees that it is desirable the children have a meaningful relationship with each of their parents. One of the difficulties in this case, however, is that there is no doubt that there has been family violence on an extensive scale during the relationship.
Nonetheless, and despite her reservations, which I can understand in the circumstances, the mother is consenting to the father spending time with the children, and that, in a sense, puts her concerns in proper focus.

The additional considerations

Section 60CC(3)(a)

The children have not expressed any views as to what their wishes are, and given their ages, the weight to be attached to them would be perhaps very qualified.

Section 60CC(3)(b)

It is clear from all the materials in the case, including Ms G’s observation, that the children have a very well-grounded and settled relationship with their mother, who has been their primary carer all their life. They also, however, have a very affectionate relationship with their father. There is no doubt also that the children adore their paternal grandmother, as the mother herself concedes this. I have not heard anything in detail about any other family members, but there is no reason to suppose that the childrens’ relationship with them are, in any sense, exceptionable.

Section 60CC(3)(c)

There is no doubt that the mother has, as the primary carer, taken the opportunity to participate in making decisions about the children and spend time and communicate with them. The father’s position is, in my view, slightly nuanced. He told Ms G that he was clear he did not want the children in the off week. Also, despite his denials, I found some of the evidence he gave as to his enthusiasm for telephone and FaceTime and the like to be somewhat unconvincing. Nonetheless, it must immediately be acknowledged that he has prosecuted his case to judgment, and there is no reason to doubt, and I do not, that he wants to spend time and communicate with the children and, indeed, wants them to live with him as the primary carer.

Section 60CC(3)(ca)

The mother plainly has discharged her obligations as best as she has been able. The father’s inadequate child support payments speak for themselves.

Section 60CC(3)(d)

Any endeavour to change the children’s primary residence from the mother to the father is fraught with obvious major difficulties. Although he is not working at the moment, the father clearly intends to do so in the future, and the children would, in large part, be looked after by their grandmother and other paternal family members. Furthermore, the mother has always been the children’s primary carer and primary attachment. It is wholly inappropriate to contemplate changing that arrangement.

Section 60CC(3)(e)

There is no practical difficulty beyond the inconvenience, obviously, of travel between the parental homes in the mother’s proposal. There is clearly a measure of expense, but that is unavoidable. The father’s proposals, by way of contrast, seem to me to face not inconsiderable difficulties. The evidence the father gave was essentially to the effect that he would take the children to kindergarten or child care, as the case might be, and collect them thereafter or possibly with the assistance of family members. As I find, the father’s proposal is, in many ways, poorly thought through. He was not even able to articulate the proposed times that the mother would commence and finish time with the children pursuant to his proposal.

Section 60CC(3)(f)

The mother quite clearly is well-able to provide for the children’s needs. The father’s total lack of insight into his own behaviour and his attitude towards the mother is a major concern. He is not child-focused in approach. He has these dark suspicions of the mother, utterly unproven on the evidence (motorbike gangs, drugs and the like) – suggest that his capacity to provide for the children’s emotional needs is questionable. While he loves them and will doubtless be able to care for them in a purely physical sense during the time they are with him, this is a matter to which one must give weight. One might infer that the paternal grandmother is well-able to provide for the children’s needs, but she is not the parent.

Section 60CC(3)(g)

The mother is, to an extent, immature. The lurid message she sent to the husband was described as immature by herself in her first affidavit. Her entering into this passionate relationship with Mr D, a man known to be of the worst antecedents, likewise, suggests that she is subject to poor impulse control and, putting it bluntly, makes very bad choices of partner. Nonetheless, it should be noted that she is drug-free because she has provided the drug screens to prove it. As already indicated, the lurid assertions of association with drugs and motorcycle gangs is not, in any way, made out on the materials. Even if she has worked as a sex worker, as the Department has surmised, her capacity to care for the children has at all times been adequate.
The father’s background inevitably influences him. He has had a terribly unfortunate and tragic life in some respects. As already indicated, I accept that his makes him prone to anger. There are, as Ms G says, probably cultural issues involved also. Nonetheless, and despite his weaknesses, he is a loving father.

Section 60CC(3)(h)

This is irrelevant.

Section 60CC(3)(i)

The mother’s attitude to the responsibilities of parenthood and to the children is one of a loving mother. The father is, likewise, a loving father, but there is, in his case, a discernible element, if you like, of ownership. This is unfortunate even if natural.

Section 60CC(3)(j)

There has, of course, been family violence involving the children, as already indicated. Given that I propose to make the orders sought by the mother and the Independent Children’s Lawyer, however, the emphasis to be given to this is necessarily put in context.

Section 60CC(3)(k)

An Intervention Order does, indeed, apply and reflects the very serious circumstances of the assault in March 2017, but I have already noted this.

Section 60CC(3)(l)

It is plainly appropriate to make final orders, and indeed, all parties seek that that be done.

Section 60CC(3)(m)

There are no other relevant facts or circumstances.

Conclusion

In the end, the conclusion in this case is all too obvious. The orders sought by the Independent Children’s Lawyer, subject only to the sensible amendments also sought by the mother, are very clearly the orders that are in the children’s best interest. The children have always lived with the mother as their primary carer and should continue to do so. The father’s application that he become the primary carer is simply reflective of his most unfortunate lack of insight. There will be orders accordingly.
Given the slightly fluid positions put forward by the parties, I will request the Independent Children’s Lawyer to settle the draft orders I have prepared.

I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 20 June 2019

[2019] FCCA 1545

20 June 2019

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