Asterios & Asterios
[2024] FedCFamC2F 26
•23 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Asterios & Asterios [2024] FedCFamC2F 26
File number(s): PAC 5992 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 23 January 2024 Catchwords: FAMILY LAW – CHILDREN – Where the matter proceeds undefended as against the mother – Where the father seeks that the parties have equal shared parental responsibility and the children live with the parties on an equal shared care arrangement- Where the Independent Children’s Lawyer seeks orders that the mother be allocated sole parental responsibility and spend time with the children at the mother’s sole discretion- Where the subject children are six and two years of age – Where the children have not spent substantial time with the father since October 2022 – Where the father’s criminal antecedence gives rise to a concern as to his ability to self-regulate – Where the father has some form of relationship with the children –Where the mother did not acknowledge the authority of the court and did not attend with the children for the purposes of the preparation of the Family Report nor appear at the final hearing- Where both parties present a risk of harm to the children – Where the risk of harm posed by the father can be sufficiently ameliorated - Where it is found that the father spending time with the children may act as a mitigating factor to any risk of harm arising to the children in the mother’s care. Where orders are made for the children to spend short periods of graduating time with the father. Legislation: Evidence Act 1995 (Cth) s140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 61DA(1), 65DAA, 65DAC, 68B
Cases cited: A & Z [2006] FamCA 179
Blinko & Blinko [2015] FamCAFC 146
Gorman & Huffman & Anor [2016] FamCAFC 174
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Moose & Moose [2008] FamCAFC 108
Division: Division 2 Family Law Number of paragraphs: 182 Date of hearing: 30 October– 31 October 2023 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person (did not participate) Counsel for the Independent Children’s Lawyer: Mr Silva Solicitor for the Independent Children’s Lawyer Mason Mia & Associates ORDERS
PAC 5992 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ASTERIOS
Applicant
AND: MS ASTERIOS
Respondent
INDEPENDENT CHILDRENS LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
23 JANUARY 2024
THE COURT ORDERS THAT:
1.All prior parenting orders relating to the children X born in 2017 and Y born in 2021 (“the children”) are discharged.
Parental Responsibility
2.The Mother shall have sole parental responsibility for making decisions for the children and is to notify the Father by email within 7 days of making such decision.
Live With
3.The children shall live with the Mother.
Time With the Father Commencing with Private Supervision
4.Within 7 days of the date of these Orders the Father is to nominate in writing to the Mother his chosen form of private supervisory agency to supervise the children’s time with him (“the private supervisor”).
5.Upon the father complying with such notification requirement pursuant to Order 4 above the children are to spend time with the Father supervised by the private supervisor as follows-
(a)for a period of six months, from 10:00 am – 12 noon each alternate Sunday with the first such occasion to be the first Sunday after the Father’s compliance with Order 4; and
(b)thereafter and until the Father has complied with Orders 12 and 14 below from 10:00 am – 1:00 pm each alternate Sunday.
6.The Father is to be liable for any and all costs associated with the private supervisor.
Time with the Father Commencing at a Contact Centre
7.In the event that the Father does not provide notice in accordance with Order 4 above that his time with the children is to commence supervised by a private supervisor, the children shall spend time with the Father at B Contact Centre (“the Centre”) as follows-
(a)for a period of six months on each alternate Saturday for two hours with such time to be supervised by the Centre and the first such occasion to occur on the first Saturday the Centre is available to provide such supervised time; and
(b)thereafter and until the Father has complied with Orders 12 and 14 below for three hours each alternate Saturday.
8.To facilitate the above Order:-
(a)The Mother and Father are to contact the convenor of the Centre by not later than 4:00pm on 13 February 2024 to arrange the earliest possible intake interview and do all such things, sign all documents and give all consents necessary to enable the convener of the Centre to assess whether or not they can provide supervised time with the service.
(b)The Father is to be liable for all costs associated with the children’s time with him pursuant to Order 7, including but not limited to any fees charged by the Centre.
(c)The Mother shall deliver the children to and collect the children from the Centre at the times specified by the Centre and on each occasion shall promptly leave the building and the vicinity, unless requested to remain by a staff member of the Centre.
(d)The Father must not attend the Centre or its vicinity before the time with the children is to start and must promptly leave the Centre and the vicinity at the time the time with the children is to end.
(e)If the Centre during the currency of these Orders declines or is unable to continue to provide its services, or the Director of the Centre recommends in writing to the parties a variation of these Orders, then either party or the Independent Children’s Lawyer may on seven days written notice to the other party and the Court restore the matter to the list.
(f)In the event that the Centre offers supervised time only at times which are less regular than specified in Order 7, then contact shall occur at the times that are offered by the Centre.
Time with the Father – Graduated and Unsupervised
9.Subject to the father’s compliance with Orders 12 and 14 below the children shall spend time with the father:
(a)for a period of three months each alternate Sunday from 10:00 am to 12:00 pm with the first such occasion to occur the first Sunday after the Father’s compliance with the said orders;
(b)thereafter for a period of three months from 10:00am to 2:00pm each alternate Sunday;
(c)and thereafter from 10:00am to 4:00pm each alternate Sunday.
10.If the children are not already in the care of the Father, the children shall spend time with the Father commencing on 1 January 2025 as follows:
(a)from 10:00am to 4:00pm on Easter Saturday each year;
(b)from 10:00am to 4:00pm on Father’s Day each year; and
(c)from 10:00am to 4:00pm on 26 December each year.
11.The children’s time with the Father pursuant to these Orders will be suspended each year on the weekend that Mother’s Day falls.
Hair Follicle Testing
12.Prior to the children’s time with the Father moving to unsupervised time pursuant to Order 9 above the father is to make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector and chain-of-custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this Order:
(a)The Father shall provide a hair sample under chain of custody conditions for the purpose of hair analysis drug testing, such testing to be for a period of three (3) months immediately prior.
(b)The Father shall ensure that prior to such testing he shall maintain sufficient hair length in order for the testing to be carried out.
(c)The Father shall do all acts and attend all necessary appointments to facilitate this order and shall be responsible for the cost of the testing required by this order.
(d)The Father shall provide a copy of his hair follicles test results to the mother.
13.In the event that the Father’s hair follicle test results are positive for any illegal drugs or substances the children’s time with the Father shall continue to be supervised in accordance with Orders 4 – 8 above until such time that the Father produces a negative hair follicles test for a continuous period of three (3) months immediately prior.
Men’s Behavioural Change Program
14.The Father shall within 7 days of the date of these Orders do all acts and things necessary including phoning C Centre to engage and complete within a reasonable time the “Taking Responsibility – A Course for Men” and shall provide written evidence of completion of that course to the Mother and to the Independent Children’s Lawyer.
The Provision of Information
15.Within 7 days of the date of these orders the Mother is to:-
(a)advise the Father by way of email details as to the children’s current school; and
(b)provide to the children’s school authority for the Father to contact the school and the Father be at liberty to request they provide him with copies of any school reports, reports on behavioural issues, and school circulars or notices.
Injunctive Orders
16.That each party is restrained from:-
(a)consuming any prescription medication other than as prescribed;
(b)consuming any illicit substance when the children are in their respective care and for a period of 24 hours prior to such time taking place;
(c)physically disciplining the children or permitting any other person to do so; and
(d)denigrating the other parent or the other parent’s extended family in the presence of the children.
(e)discussing the Court proceedings with or in the presence or hearing of the children or allowing any other person to do so.
17.The father is restrained from allowing the children to come into contact with Ms D.
Costs of the Independent Children’s Lawyer
18.Within 60 days the Father and the Mother each pay the sum of $7,834.75 to Legal Aid New South Wales being the costs of the Independent Children’s Lawyer unless a waiver has been granted to them by Legal Aid New South Wales.
19.The Independent Children’s Lawyer serve a sealed copy of these orders and reasons upon the Respondent Mother within 14 days and file an Affidavit of Service with respect to same.
20.The appointment of the Independent Children’s Lawyer will be discharged upon compliance with order 19 above.
Disposition
21.All outstanding applications and responses thereto are otherwise dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
This matter relates to the parenting arrangements for the two children of the relationship; X who is six years of age and Y who is two years of age.
The applicant father has three further children with his current wife Ms D; E who is six years of age, F who is two years of age and G who is an infant.
The matter proceeded to a final defended hearing as between the applicant father and the Independent Children’s Lawyer only; the mother having disengaged from the proceedings in November 2022.
In June 2022 interim Orders were made by the court on a defended basis for the children to spend supervised time with the father for two hours a fortnight. In October 2022 the mother ceased providing the children for time with the father pursuant to such orders.
The father seeks orders for the children to live in an equal care arrangement between himself and the mother. The Independent Children’s Lawyer seeks orders that the children continue to live with the mother and that they spend time with the father at the sole discretion of the mother.
For the reasons that follow it is found to be in the children’s best interests that orders be made for the mother to have sole parental responsibility, for the children to continue living with the mother and spend regular short periods of time with the father on a graduating basis.
THE PARTIES’ PROPOSALS
The applicant father seeks orders on a final basis in accordance with the Amending Initiating Application filed on 22 December 2022 broadly that the parties have equal shared parental responsibility, and the children live with each of the parties on a week about basis with different arrangements proposed for special occasions including Mother’s Day, Father’s Day and on each of the children’s and parties’ birthdays.
It was the father’s oral evidence that whilst this is the primary relief sought by him, he simply wants to see his children in any form, and he had made an offer to the mother prior to the matter being heard on a final basis that the children see him only on a supervised basis. The father indicated that he was still comfortable for me to determine what time, if any, would be made for the children’s time with him knowing that he had offered to accept supervised time.
The Independent Children’s Lawyer seeks orders in accordance with a proposed Minute of Order tendered on the final day of the hearing broadly as follows:
·That the mother have sole parental responsibility and the children live with her.
·That the children spend time with the father as agreed in writing and failing agreement the children’s time with the father shall be at the mother's sole discretion and upon any terms and conditions the mother deems appropriate.
·In relation to the order for the children’s time, the mother is at liberty to:
·limit the children’s time with the father to supervised time at a professional contact centre with any fees or payments due to any supervised contact centre be borne solely by the father; and
·request that the father submit to urinalysis testing for drugs with the father to provide a copy of the test results to the mother within 24 hours of receiving the results.
·That each party be restrained from: -
·consuming alcohol in quantities that would lead them to have a blood alcohol limit exceeding the lawful limit to drive a motor vehicle when the children are in their care or for 24 hours prior;
·consuming any prescription medication other than as prescribed;
·consuming any illicit substance when the children are in their respective care and for a period of 24 hours prior to such time taking place;
·physically disciplining the children or permitting any other person to do so; and
·denigrating the other parent or the other parent’s extended family in the presence of the children.
·That injunctive orders be made restraining the father or his agents from attending at or removing the children from their school or daycare, from coming within 500 metres of the mother’s home or her place of employment and from harassing, molesting, intimidating or stalking the mother or any member of her household or family.
·That any time the children spend with the father is contingent upon his completion of a Men’s Behaviour Change Program and the Circle of Security Program.
Subsequent to the father’s cross examination and prior to the oral evidence of Ms D the Independent Children’s Lawyer made an oral application that the court make a further order that the father be restrained from allowing the children to come into contact with his current wife. During the course of her oral evidence Ms D said that she would agree to not be present during any time the children spend with the father.
The Independent Children’s Lawyer submitted that the orders sought are in effect orders for the father to spend no time with the children in circumstances where the mother has refused to communicate with or facilitate time between the father and the children since October 2022. I accept this submission. It is the position of the Independent Children’s Lawyer that the orders sought propose a way forward for the children to have a relationship with the father “at some time” in the future should they wish to do so.
THE EVIDENCE
The applicant father relied on the: -
·Case Outline filed 29 October 2023;
·Amended Initiating Application filed 12 December 2022;
·his affidavit filed 20 March 2023;
·affidavit of Ms D filed 1 November 2022;
·affidavit of service filed 5 December 2021; and
·documents tendered throughout the course of the hearing.
It is undisputed that the father has had concurrent criminal proceedings throughout these family law proceedings. On 17 April 2023 orders were made for the father to file a short affidavit with respect to the outcome of his criminal proceedings in Court. The father conceded that he has not filed such affidavit.
The Independent Children’s Lawyer relied on the: -
·Child Impact Report dated 1 June 2022 prepared by the Court Child Expert Ms H;
·Family Report dated 11 November 2022 prepared by the Court Child Expert Ms H;
·affidavit of the mother filed 1 March 2022;
·affidavit of the mother filed 13 June 2022;
·Case Outline filed 30 October 2023; and
·Documents tendered throughout the course of the hearing.
CHRONOLGY
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties. The standard of proof with respect to such findings is the balance of probabilities. [1] When considering the best interests of the children it is not necessary to make findings of fact on every factual dispute of the parties.
[1] see s 140 of the Evidence Act 1995 (Cth).
The father was born in 1988 and the mother was born in 1991.
In 2008 the father was convicted of offences and ordered to pay a fine and compensation.
In 2008 the father was convicted of offences and placed on a good behaviour bond and fined.
In 2008 the father was charged with various offences.
The father was convicted at Local Court in 2009. He was convicted of all charges and received a supervised good behaviour bond and three conditional release orders pursuant to section 10(a) of the Crimes Act 1900 NSW.
The parties commenced a relationship in 2009. This relationship was inconsistent and there were significant periods of time when the parties were separated.
In 2009 the father was charged with offences. In evidence is a handwritten New South Wales Police Force Penalty Notice which states:
At about [2.00am] the POI was witnessed by attending police to be street fighting with another POI. The POI was throwing punches toward the other POI and when spoken to he said “he touched my girlfriend.” The POI stated he had about 5 standard drinks at [a bar]… small cut on head… ambos delivered… in company of girlfriend and another male.[2]
[2] Exhibit ICL12.
The father pled guilty in relation to this offence and received a fine.
The father met his current wife, Ms D in 2015. The father and Ms D also had an “on again off again” relationship.
In 2016 the father was charged with offences arising from an incident between himself and his current wife. The Police Facts Sheet relating to this incident records the father describing his relationship with Ms D as a “toxic, on again off again relationship” and that on this date the father had advised Ms D that the relationship was over.[3] After discovering Ms D sitting in her car out the front of the father’s home reading his mobile phone text messages the father began screaming at Ms D to give him back his phone, grabbed a heavy object and hit Ms D’s vehicle causing a large dent. He then threw the object at the windscreen causing it to smash.
[3] Exhibit ICL10.
Both Ms D and the father then drove to Ms D’s home. There was a physical altercation over the possession of the father’s phone. Ms D called the police and then sat in the front passenger seat of the father’s car refusing to get out. The father then began pushing her out of the vehicle and another physical altercation occurred when the father again attempted to retrieve his phone. The father pushed Ms D out of the car and she hit him with her hand, connecting with his face. She then hit him again in the head area. The father then got out of the car and used force to move her from the vehicle with Ms D resisting.
The father later made full admissions to the police as to damaging Ms D’s vehicle. It appears that the police applied for mutual provisional apprehended domestic violence orders. The matter was determined at Local Court in late 2016. The father was convicted and ordered to enter a good behaviour bond.
In late 2017 the eldest child of the father and Ms D; E was born.
In 2017 the eldest child of the father and the mother in these proceedings; X was born.
It appears that the time the father spent with X was dependent upon the status of the parties’ relationship at any one time. There were periods of time when X saw the father almost daily and other periods of time when she did not see him at all.
In evidence is a New South Wales Police COPS report dated early 2019 recording a further incident between the father and Ms D. Such report identifies the father as the “VIC” and Ms D as the “POI” and records:
As a result of their broken-down relationship, there is constant verbal arguments which occur on a regular basis. Whether it be in personal, or via text message. Sometime during [early] 2019, the VIC and POI engaged in a conversation via text message.
The VIC said, “You need help”.
The POI replied, "I'm going to Kill you".
The VIC said, "Good".
The POI said, "Come here now and I'll show you".
The VIC said, “Pft I'm going to sleep'.
The POI replied, "Yea pussy ... I fucking hate you".
It is also at an unknown time the POI has stated to the POI, "I'm not happy I want to die". The VIC replied, "Kill yourself then".
The POI at some stage has made reference to her relationship with her child saying to the VIC, "I don't want to do this anymore ok .... U can have him ... IDC [I don't care] just take him ... I don't want to be a mum ... He is never pleasant ... Fucking sick of this shit".
At about 5.30am [in early] 2018, the POI dropped her child to the VIC at [redacted]. After about 30 minutes, the POI received a message from the VIC stating she would not get her child back. The POI left work in [Suburb J] returning to the POI's location. The POI began banging on the door, "Give my fucking child back". The POI kicked the bottom of the door causing footprints to the door however nil damage. Due to the child beginning to cry, the VIC took the child out the back, placing him into a vehicle before leaving the location to avoid confrontation. The VIC contacted FACS and they advised that this was a good thing to have done for the child.
…
Police believe that the most appropriate action is to apply for a Provisional Apprehended Violence order to protect the VIC. That mandatory conditions only and an exclusion order be applied for. POI and VIC will still be able to exchange child, however not at the VIC's LOC enabling VIC protection and child to be safe.[4]
[4] Exhibit ICL16.
An Apprehended Domestic Violence Order was made for the protection of the father and restricting the behaviour of Ms D for a period of one year. This was later reduced to a period of 6 months.
The father was briefly cross-examined as to this incident and confirmed that the evidence as recorded in the police record is accurate. In cross examination Ms D conceded that there had been an argument between herself and the father and that she may have said “I’m going to kill you” but that it had been said in passing and not at that exact time. She stated that she did not mean this in a literal manner; it was “just as an expression.” Ms D conceded that she kicked the bottom of the door. I am satisfied based on the uncontested evidence that an incident occurred between the father and Ms D as recorded in the Police Facts Sheet.
The father told the Court Child Expert that he commenced seeing Ms K, psychologist in March/April 2020 and has had regular sessions with her since this time. Ms K is not on affidavit and was not available for the purposes of cross examination. Attached to the father’s affidavit is an email purportedly from Ms K addressed to the “Presiding Magistrate” dated late 2022 which states that the father has been her client since late 2020 and on balance I accept that this date is correct.
It is uncontested that there were periods of lockdown in 2020 in New South Wales arising from the COVID-19 pandemic. In 2020 the father was charged with resisting an officer in the execution of their duty and failing to comply with a COVID-19 direction. In evidence is a Statement of Police dated late 2020 which records:
[In late] 2020, I was rostered on day shift In full police uniform attached to [Region L] Metropolitan Operations Support Group.
About 1pm I attended [M Venue] in relation to a planned unlawful protest. When I attended I was given a briefing in relation our response as police. During that briefing I was given the role as a section leader as part of one of the Police Support Units.
About 2pm we attended [N Venue] which is located within [M Venue] where there was a large crowd gathering. During the large crowd gathering a move on direction was given by the forward commander […].
Once the move on direction was given a member of my section moved in and peacefully removed protesters from the crowd.
I then saw [a senior officer] approach a male who I know as the accused [Mr Asterios]. Whilst [the officer] was having a conversation with the accused. I saw the accused pull out his licence and refused to give the licence to [the officer].
At this point a struggle has occurred and the accused was arrested. During the arrest I have grabbed the accused and assisted in taking him to the ground. Whilst on the ground the accused was resisting by refusing to put his hands behind his back. With assistance from other police the accused was handcuffed to the rear.
Once the accused was handcuffed, he was then escorted to the command post where his details were obtained and was issued with a Notice.[5]
[5] Exhibit ICL9.
The father’s affidavit is silent as to this incident. In cross examination the father deposed that he was never “moved on” by the police and instead the officer tried to grab the father’s licence off him, the father took back the licence and told the officer not to “snatch” it. The father conceded that he was arrested but denied that he resisted such arrest and stated that “they jumped on me and I couldn’t move, I had no free movement of my body.”
In early 2022 the father was found guilty of both charges. He received a conditional release order without conviction for resisting a police officer and a conditional release order without conviction for the charge of not complying with a direction relating to COVID-19.
The parties separated on a final basis on 1 January 2021. During January 2021 the mother ceased facilitating X’s time with the father save for a period of approximately one hour on 23 February 2021 when the maternal aunt was present.
In early 2021 the father was involved in an incident which resulted in him being charged with various offences.
In evidence is a New South Wales COPS entry dated early 2021 which lists the father as the accused and reads:
About [11:00am] [in early] 2021 the accused attended [Suburb R] Police to report a minor motor vehicle accident.
[redacted] approached the accused and began to have a conversation with him about the accident. The accused explained to [redacted] that details had been exchanged however the other driver displayed an [overseas] licence. The accused didn't think this was appropriate and began to argue, speak over and yell at [redacted]. Due to the accused intimidating behaviour, [redacted] has walked away and left the room.
The accused continued to yell, demand police attention and demand that police speak with him and take his report. The accused was stating words to the effect of "Come arrest me, what do I have to do to get arrested". As police were asking him to stop yelling and calm down, the accused has then punched the Perspex Safety screen at the front counter. When this occurred another member of the public within the foyer of the police station stepped back from the accused and sat on the only available seat.
The irate, yelling and intimidating behaviour and punching the safety glass, this brought the attention of [the] Chief Inspector […]. C/INSP […] approached the accused and offered his assistance, the accused was still irate, continuously yelling and demanding police to take a report. C/INSP […] tried to get the accused to calm down in order to take a report from the accused however the accused became irate demanding "Arrest me then, Arrest me". Due to the behaviour of the accused, C/INSP […] told the accused to go outside for 5 minutes and start again. The accused did not comply and instead refused stating "No I'm not leaving until someone takes my report and gives me an event number". C/INSP […] continued asked the accused to leave [Suburb R] Police Station, the accused declined stating that he would call the police assistance line. C/INCP […] said to the accused "Call the police assistance line, but you can go out and do it." The accused again refused and at this time [a senior officer], C/INSP […] and multiple other police exited the front counter to the foyer area.
At this time one of the two members of public within the foyer left out the doors. The accused was directed to leave by [the senior officer] who then attempted to escort him out. At this time the accused threw his hands in the air and began yelling "Don't touch me." Simultaneously C/INSP […] has placed the accused under arrest and a struggle has ensued.
The accused held his hands to his front of his body refusing to place his hands behind his back. Police forcefully put the accused hands to the rear and handcuffed him to prevent further violent and quarrelsome behaviour.
The accused continued to struggle, yelling and attempting to antagonise C/INSP […]. The accused was walked to the left of the foyer and continued to talk with C/INSP […]. C/INSP […] began to walk away, and the accused took one step towards him. The accused was pulled back by [the senior officer] and placed against a wall. He attempted to pull away from [the senior officer]. Police attempted to have the accused sit on the ground by directing him down. While doing so he kicked at [the senior officer] with his right leg and then again with his left. The first kick by the accused connected with the pants of [the senior officer] and touched the front of the shin as she pulled her leg away.
Multiple police approached the accused placing him in the recovery position to gain control of his violent kicking and prevent any further assaults. As police placed the accused in the recovery position, he has grabbed [another officer’s] hand. The accused was told to let go of the [officer’s] hands. Multiple times and [the senior officer] has slapped the wrist of the accused in an effort to have the accused release his grip. As she done so the accused has released his grip of [the officer]. The accused was held until eventually calmed down and he was sat up against the wall.
The accused was conveyed to [Suburb J] Police Station….. the accused was still argumentative towards police…..
Given the level of aggression the accused was still displaying, a [senior officer] independent to the investigation was also present during the interview to prevent any further outbursts. During the interview the accused agreed that he failed to listen to police after being asked to leave on multiple occasions and stated that he was never going to leave the Police Station. All allegations were put to the accused which he denied.[6]
[6] Exhibit ICL8.
The father’s affidavit is silent as to this incident.
The father was cross-examined as to this incident. His evidence was that he attempted to report his car accident to the police officer on duty who was not acknowledging him; “I was being ignored by everyone in the police station.” The father told the police officer that he was not leaving until someone took a report and he stated that the police officer had told him to “bang on the Perspex” so he did. The father denied that the senior officer attempted to escort him out of the police station and instead stated that the senior officer grabbed the father and placed him under arrest. The father denied resisting arrest and walking toward the Inspector. Whilst the police were handcuffing the father he fell to the ground. The father’s oral evidence was that the police lifted the father up before telling him to remain seated but whilst he was attempting to get up his legs “went out” which the police have incorrectly recorded as the father kicking the senior officer. The father conceded that he grabbed the hand of one of the officers, but his evidence was that as the police officers were attempting to handcuff the father, he “grabbed someone’s hand by accident and let go straight away.”
The father was asked whether he had anything to say to the court in relation to this event and he stated that shortly after this incident he attended Suburb J police station to make the same report and there was no incident at Suburb J police station. The father’s evidence was “everything was done as normal [at Suburb J police station] and it's confusing that [Suburb R police station] made this a big scene.”
The father pled not guilty to all four charges. The criminal hearing took place in early 2022. The father was charged with offences and received a fine.
In early 2021 the father was charged with offences arising from an incident that occurred between the father and members of the paternal family at the home of the paternal grandparents. In evidence is a New South Wales Police Force COPS entry dated early 2021 recording the father as the accused, his sister as victim 1 and the paternal grandfather as victim 2. It records:
The accused attended the residence of the victims in aim to evict them as the house is under his name and he wishes to rent it out…
The accused and victims started having a heated argument where the accused has grabbed his phone and stood up close to victim 1 and has placed his phone camera near victims 1’s face where victim 1 has pushed the phone away from her face.
At that point, the accused has grabbed Victim 1’s neck and has used his other hand to punch Victim 1 on her face which caused pain to her left cheek area. Victim 2 has then attempted to intervene and separate the accused from Victim 1, when the accused has gone into a shuffle with both victims attempting to push and punch them both. The accused got a hold of victim 1’s hair, has pushed her to the ground and dragged her across the living room floor where she has hit her knee [on a table] causing her [an injury]. Victim 2 has then intervened again and the accused has pushed victim 2 to the ground where he has also hurt himself which has given him red marks and caused him pain.[7]
[7] Exhibit ICL4.
In evidence is a statement of an officer dated early 2021 in relation to the incident of early 2021:
I said “who has been assaulted?”
[Ms W] said “myself and my father” pointing at [Mr Q] who nodded.
I observed injuries – red marks on [Mr Q’s body].
I said “what are these injuries from?”
[Ms W] said “they are from my brother it all happened during the fight and he injured my father too.”
I said “[Mr Q] do you have any injuries?”
[Mr Q] said “yes” and showed me [the body] area where I observed red marks. I then used a camera and took photographs of that area.[8]
[8] Exhibit ICL3.
In evidence are excerpts of the defended hearing heard at Local Court in late 2022. Ms W gave evidence during cross examination that: -
·she was pushed to the ground, which resulted in her injuring herself;
·at the same time, the father had grabbed her by the hair;
·it was possible that the father pulled her by the hair and dragged her a short distance; and
·following the incident she had a panic attack.[9]
[9] Exhibit ICL6, pages 12-15.
The paternal grandfather, Mr Q was cross-examined at Local Court in late 2022. His oral evidence was that:
·he thought the father was going to punch Ms W which shocked him and so he intervened to separate Ms W and the father;
·he thought the father was going to punch him; and
·he fell onto the table which hit his body causing him pain.[10]
[10] Ibid, pages 29, 31, 32, 34.
The paternal grandmother, Ms S also gave oral evidence in the hearing. Her evidence included that:
·The father approached Ms W and grabbed the collar of her neck. The paternal grandfather saw him and went to step in. At this point the father, Ms W and the paternal grandfather started to “rumble” before falling to the table and then fell on the floor.
·The paternal grandmother landed on the floor and as she landed she hit her eye on Ms W’s elbow and sustained a black eye.
·She observed the father to hold his hand in a fist, but she believed “he wasn’t going to hit her [Ms W].”
·The paternal grandfather fell onto the table when “[Mr Asterios] [the father] pushed and because my husband lost his balance and he fell on the table and got a mark on his side.”[11]
[11] Exhibit ICL6, pages 45, 47, 49, 50, 54.
In evidence are photographs of Ms W showing her injuries. Photographs of the paternal grandfather shows marks on his body.
The father does not depose to this event in great detail other than to say that the statement provided to the police by his sister Ms W was false and that she was not truthful in her police report, however the court refused to accept her revised statements.
The father conceded in cross examination that he has not provided an alternative version of events but asserted that the whole incident has been “blown out of proportion” because Ms W was at the time friends with the mother which led to a lot of mistruths and exaggerations. The father’s oral evidence in relation to this event was that:
·He did not have any intention of speaking to his sister but went to his parents’ home to speak to his parents with respect to the expense of his sister living at the home owned by him.
·He was unhappy and frustrated when he arrived. He was initially speaking to his father and became more frustrated when his sister joined the conversation.
·He was recording his sister with his phone, but he did not consider this to be an invasion of her space. He did not stand over Ms W but noted she is much shorter than him. Ms W then hit the father’s hand causing the phone to fall out of his hand and across the loungeroom. He asserted he was unable to leave the room as the exit was blocked and he could not even take a seat away from the others as “I felt if I sat down I would be in a vulnerable position.”
·He did not grab Ms W’s neck but conceded that he grabbed her shirt and made a fist with his hand but denied punching Ms W.
·Once the father made a fist the paternal grandfather got involved at which point the father, Ms W, and the paternal grandfather fell over the table. The father grabbed his sister by the hair only because she was squeezing his testicles. The father denied pushing the paternal grandfather and maintained that they all fell on the floor together.
·The paternal grandfather sustained an injury, but the father noted “the table is what hurt him.”
·The father strongly denied that he caused any injury to Ms W’s face.
·When asked whether the father was the victim in this scenario he stated, “I could have been, but no, I don’t think I was because I defended myself.”
·After having been taken through the Local Court transcript in evidence the father was asked whether he wanted to make any comment in relation to this event to which he stated, “it looks like my father has taken responsibility for the physical altercation.”
The father was convicted at the Local Court in late 2022 and received a community corrections order. The convictions were quashed on appeal by the Suburb J Court in early 2023.
Neither Ms W nor the paternal grandparents gave evidence in these proceedings on the father’s behalf.
The father was at times non-responsive to questions asked of him as to this incident and stated, “the matter was determined by a judge in my favour. A judge has overturned this decision and found I was not in the wrong.” I asked the father whether he appreciated that there was a difference in the burden of proof required for a criminal matter and the matters which I am now asked to make a finding in relation to. The father responded, “it seems like you are undermining the Judge ... I don’t understand why you’re undermining a judge when I’ve already been judged on this matter.”
None of the paternal family members present on this occasion gave evidence on the father’s behalf. I can reasonably infer that such evidence would not have assisted the father’s case. I am satisfied to the requisite standard that the father on this occasion physically assaulted his sister causing her injury.
The following day in early 2021 the father was involved in another incident and was charged with various offences.
In evidence is a New South Wales Police Force COPS entry dated early 2021. This records the father as the accused and contains the following narrative:
The accused was followed by police onto [T Street] were he was directed to stop for the purpose of random testing for alcohol and drug in his system while operating a motor vehicle. This was done activating the warning red and blue lights attached to the police vehicle and wailing the police siren. The accused did not move to the left and pull over as required, he continued for a short distance in the right lane.
The accused stopped in the right lane in the flow of traffic. He exited his car and became abusive towards police swearing about a place to stop. The accused got back in his car and was directed by police to stop and not move. His intentions to drive and not comply with the direction to stop was clear.
Seeing this [an officer] has attempted to remove the keys from the ignition. As he reached into the vehicle to take the keys the accused has lashed out with his right arm, assaulting him by making contact with [his] arm and torso of [the officer]. Due to the assault [the officer] suffered soreness to his arm.
After being assaulted [the officer] tried again to remove the keys by reaching into the vehicle, as he was doing this the accused accelerated away from police for a short distance before stationary traffic at a red light has effectively blocked him from proceeding any further. Police have again approached the vehicle and told the accused to stop and get out of the car. The accused wound down his window approximately 5cm and refused police directions again. A short burst of OC spray was delivered to the accused at this point before the accused has driven away from police again.
The traffic was now flowing due to a green phasing, the accused drove along [T Street] and turned right into [U Street], police following with lights and sirens still indicating for him to stop. The accused has came to a stop on [U Street], reversed alongside the police vehicle and stopped.
Police approached the drivers side and told the accused to get out. The accused has forcefully opened the drivers side door on the front near side panel of the police car and was immediately aggressive towards police. The action of opening the door onto the police vehicle caused the front guard above the wheel arch to become dislodged and a small scratch in the paint. He stood up between the open door and the body of the car and continued to be aggressive. He was informed he was under arrest and instructed to place his hands out in order to be handcuffed.
Each of the accused's hands were taken hold of by police, he tensed and pulled his hands away from police, using force to counter police efforts to arrest him. The accused has broken free and got back in his vehicle. Police used a baton […] in order to effect the arrest. The accused attempted to move to the passenger side of the vehicle, police had hold of the accused's belt stopping him from getting to the other side of the vehicle.
Police on the passenger side of the vehicle broke the […] glass in order to access the vehicle and arrest the accused. Once access was gained the accused was placed in handcuffs and removed from the vehicle.
The accused was conveyed to [Suburb V] police station, introduced to the Custody Manager and entered into custody. Whilst in custody the accused has requested medical assistance, was attended to by ambulance officers and was conveyed to [Z Hospital]. Before the accused was transported it was explained to him police had intention to breath and drug test him however he was conveyed without testing being done.
While at the hospital the accused was informed of his requirement to provide blood to be tested for alcohol as he was unable to submit to a breath analysis. He refused this requirement. The accused was discharged from hospital, returned to custody, and is now before the court.[12]
[12] Exhibit ICL7.
The father’s affidavit is silent as to this incident. In cross examination the father denied that he did not stop when the police activated their lights. The father denied winding his window down by 5cm and stated that he had left a gap in the window when he was putting it up. The father denied that the police officers took hold of his hands. He asserted that one officer took hold of his left hand, and one officer took hold of his right hand and the father told them he was stuck. The father conceded that he tensed up upon the police taking hold of his hands but stated that he did so because the officer had struck him with a baton and he only tensed up as a defence to block the hit of the police officer. It was put to the father that he was not struck by the police and the father stated, “I went to the hospital and had to get a stitch and the judge and prosecution agreed.” The father denied that he attempted to move to the passenger seat of the vehicle. In relation to the father refusing to submit to blood alcohol testing his oral evidence was that he was not asked to provide a blood test at any time and that he simply requested an ambulance.
The father in previous court events advised that he had filed an appeal with respect to these charges in the District Court. It can reasonably be inferred that the father was therefore found guilty of some, if not all, of the charges. The father was directed on two occasions to provide sufficient details to the court so that the relevant District Court file could be obtained. The father failed to do so. His oral evidence was that he had pleaded not guilty to all charges, he filed an all-grounds appeal which was unsuccessful, and he received a monetary penalty. The father provided no reasonable explanation for his failure to comply with orders of this court and as a result I do not have the benefit of relevant evidence that would assist in my determination as to what is in the best interests of the children. I can only surmise that the material would not have assisted the father in the prosecution of his case for the children to live with him on an equal time arrangement.
The youngest child of the parties, Y was born in 2021. The father attended the hospital to see Y in early 2021.
The father and his current wife Ms D were married in 2021.
In May 2021 the mother ceased time between the subject children and the father. She continued to allow the children to see the paternal grandparents.
In 2021 the father and his current wife had their second child, F.
On 8 November 2021 the father filed an Initiating Application seeking both interim and final parenting orders. On a final basis the father sought orders that the children spend time with him for several hours each Tuesday evening and for time on a Saturday. The father has been a litigant in person throughout the entirety of these proceedings.
In January 2022 the mother ceased all contact between the children and the paternal grandparents. The father asserts this was because the paternal grandparents had given the children Christmas presents from the father and were taking photographs of the children to show him.
In early 2022 the father was charged with various offence.
The matter was dealt with at Local Court in early 2022. The father was convicted of offences and was fined.
The mother’s Response to the father’s Initiating Application filed on 2 March 2022 sought orders that the mother be allocated sole parental responsibility and that the children spend no time with the father. The mother was legally represented for various periods of these proceedings until a Notice of Ceasing to Act was filed by her former solicitor on 12 October 2022.
On 25 May 2022 the father and the mother were interviewed for the purposes of a Child Impact Report. The children and the father were not observed together having regard to their young ages, the alleged safety concerns and the period of time since they had spent time with the father. An observation between the children and the mother was conducted on 30 May 2022.
On 14 June 2022 interim Orders were made by a senior judicial registrar that:
·The mother have sole parental responsibility.
·The children live with the mother.
·The father enrol in and commence a registered men’s behaviour change program, the “Tuning into Kids” or “Circle of Security” program and provide the mother and the Independent Children’s Lawyer the report of a chain of custody urinalysis within 24 hours of a request by the mother or the Independent Children’s Lawyer to do so.
·That upon compliance with the above order, the children spend time with the father for two hours each fortnight at a public reserve supervised by either the maternal grandmother or the paternal aunts.
·That the father be restrained from using illicit drugs and in the event of a positive urinalysis test the children’s time with him be suspended.
·The family partake in family therapy.
(“the June 2022 interim Orders”).
On 28 July 2022 Orders were made by a senior judicial registrar for the purposes of the preparation of a Family Report.
In mid-2022 the father completed the “Tuning into Kids” course.
In August 2022 the children commenced spending supervised time with the father pursuant to the June 2022 interim Orders.
On 9 October 2022 an incident occurred at the play centre where the children were spending time with the father. The father’s current wife and their two children were present. It is unchallenged that upon realising that Ms D was present both the maternal grandparents became verbally abusive towards the father. The police were called and after speaking to the father he was allowed to leave.
The father sent a text message to the mother prior to the next scheduled visit. The mother sent a text to the father which read: -
Hi. Tomorrow is on as usual for you to see [Y] and [X] at play centre however I have one requirement; [Ms D] is not to attend. [X] has expressed numerous of times to me that she does not want [Ms D] around her. Please respect [X]’s feelings and wishes. I have a duty of care to both [Y] and [X] and so do you. This is your time with [X] and [Y] not for external parties to join and cause distress and discomfort. [13]
[13] Affidavit of the Father filed 20 March 2023, paragraph 49.
This is the last time the children saw the father. The father does not detail the specific further interactions between the parties save to depose that:
As I did not agree with [Ms Asterios’] requirement, she has stopped all contact with me in regard to the children. She has stopped showing up for supervised visits and will not respond to any text messages or phone calls. [14]
[14] Ibid, paragraph 50.
In contrast it was the father’s oral evidence that the mother ceased the children’s time with him with no explanation. On balance, I accept the father’s written evidence as more probable. In circumstances where it appears that until at least October 2022 time the mother had been complying with the June 2022 interim Orders it is more likely that she ceased time as the father would not agree to her condition that his new wife not be present during the time the children spent time with him.
The mother failed to attend upon the Court Child Expert for the purposes of the preparation of the Family Report on 20 October 2022. She further failed to ensure the children’s attendance at the scheduled appointments.
On 2 November 2022 the matter was listed before a judicial registrar. There was no appearance by the mother on this date and the mother provided a medical certificate to support her non-attendance.
On 23 November 2022 the matter came before the court for the purposes of a directions hearing. On this occasion the mother indicated to the court that she declined to submit to the jurisdiction of the court, she did not consent to participate in the court proceedings and would not be seeking legal advice. The mother refused to advise the court whether she would comply with any interim orders made or whether she would participate in further Family Report interviews should they be arranged.
At a further Directions Hearing on 8 December 2022 Orders were made for an updating Family Report to be prepared, with the mother required to inform the Court Child Expert no later than 21 days beforehand if she was proposing to attend the required appointments for such report. In the event the mother failed to comply with the orders and directions of this court the mother’s response filed on 2 March 2022 would be struck out and without further notice the matter would proceed on an undefended basis as against the mother.
On 22 December 2022 the father filed his Amended Initiating Application which particularises the relief sought by him at the final hearing. In evidence is an email dated 23 December 2022 from the father to the Independent Children’s Lawyer and the mother serving the Amending Initiating Application.[15]
[15] Exhibit F1.
On 21 March 2023 the father served his trial affidavit and that of his sister Ms W upon the Independent Children’s Lawyer and the mother by way of email.[16]
[16] Exhibit F2.
By 9 February 2023 the mother had not indicated to the court whether she proposed attending upon the Court Child Expert with the children for the purposes of an updated report. In accordance with the Orders made on 8 December 2022 the Orders for the preparation of an updating Family Report were discharged.
There was again no appearance on or on behalf of the mother when the matter was listed on 6 March 2023. The matter was adjourned on this date to allow the newly appointed Independent Children’s Lawyer to become acquainted with the matter and for the father to provide details as to all criminal matters the father was involved in as the defendant.
There was no appearance on or on behalf of the mother on 17 April 2023 when the matter was listed for the purposes of a compliance and readiness hearing. On this occasion the mother’s Response filed on 2 March 2022 was struck out and the matter was listed for a final hearing on an undefended basis as against the mother commencing 30 October 2023. The father was again directed to advise chambers by email within 7 days of his current Court Appeal being heard the details of such appeal including the file number and thereafter the Registry Manager of the Court was to obtain the relevant file.
At 12:00am on 30 October 2023 my Chambers received the following email:
I :[Ms Asterios]: am unable to attend the service that is being offered to me on 30/10/23 at 10am due to unforeseen circumstances.
There will be documents prepared within the next few days and I : :[Ms Asterios] strongly suggest that these documents are to be thoroughly read and comprehended before any further communication and/or emails are to be sent to me.
As a child of almighty God, only God has authority over I : :[Ms Asterios] and my family and the only law that I abide and live by is; cause no harm, loss and or damage and that is Gods one and only law.[17]
[17] Exhibit C1.
The matter proceeded to hearing in the absence of the mother. The father has not complied with the direction to advise the court of the details of his current criminal appeal to the Court.
THE FAMILY REPORT
A Family Report was prepared for the purposes of the final hearing by Ms H, a Court Child Expert of some combined 15 years’ experience in child consulting (“the Court Child Expert”). There was no challenge to her expertise, and I am satisfied she is suitably qualified to provide her opinion to the court.
The Court Child Expert interviewed the father on 20 October 2022 via video as a result of the COVID-19 pandemic. A further telephone call took place between the Court Child Expert, the father and his current wife Ms D on 27 October 2022. The father did not raise any issue as to any inaccuracy of his recorded reporting to the Court Child Expert.
A brief telephone call took place between the Court Child Expert and the mother on 20 October 2022. The mother refused to participate in the interview, nor allow the children to do so. The Court Child Expert notes that this lack of participation may be considered a significant limitation to the report itself. I find that this is a significant limitation to the report and to my ability to determine what is in the children’s best interests.
Given the non-participation of the mother and the children in the report writing process the Court Child Expert was unable to make any written recommendations as to the parenting arrangements that are in the best interests of the children.
The Court Child Expert attended court and was cross-examined. She gave considered and thoughtful evidence given the lack of material provided to her which is discussed later in these reasons.
THE LEGAL PRINCIPLES
Whilst this matter proceeds on an undefended basis as against the mother, the court must still ensure it makes orders that are in the best interests of the children by following the legislative pathway. An undefended hearing as against the mother does not lead to a “judgment by default” in favour of the father: see A & Z (2006) FLC 93-257, 80,355; [2006] FamCA 179.
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the court is to regard the best interests of the children as the paramount consideration. This is confirmed in s 65DAA.
The children’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. The primary considerations are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In balancing these considerations, the court is to give greater weight to the need to protect the children from harm.
I am conscious of the serious consequences of the orders sought by the Independent Children’s Lawyer that there be in effect no time between the children and the father. As stated by the Full Court in Blinko & Blinko [2015] FamCAFC 146:
[30]…Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
The Independent Children’s Lawyer also seeks that I make injunctions for the welfare and protection of the children and in that regard my decision will be informed by the provisions of s68B of the Act.
In reaching my decision I have considered all the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
THE PARTIES’ CURRENT CIRCUMSTANCES
The father’s written evidence as to his current circumstances was sparse and vague. He deposes that he presently cares for his two children with his current wife “almost daily”; Ms D cares for them during the day and he cares for them during the evening whilst she is working. He states that he has a “stable job and a stable home environment. I have enough space for both children and have prepared a place for them in our home.”[18] He deposes that whilst he and Ms D have had past disputes, there has not been any “domestic related issues” since they recommenced their relationship in 2021. The father did not avail himself of the opportunity to update the court with respect to his current circumstances during the course of his oral evidence.
[18] Father’s affidavit, paragraph 53.
It was Ms D’s evidence that whilst she and the father are still in a relationship, they do not live together – the father stays at her home in Suburb O a few nights a week. She further deposed that she has lived separately from the father for approximately two years but did not feel comfortable disclosing her residential address in her affidavit. She conceded that she did not depose in her affidavit that she and the father were not living together. The reason provided by Ms D’s for the current living arrangements is that she does not work every weekend and the father has a lot of responsibility managing the property with his parents.
The oral evidence of Ms D as to the living arrangements of she and the father was not challenged in any way and I accept it.
The mother’s evidence as deposed in her most recent affidavit is that she lives alone with the children in a home in Suburb P. She has not re-partnered and is not in paid employment outside the home. She does not propose to return to paid employment until Y commences school. I am unable to make any findings as to the mother’s current circumstances as her evidence is untested.
THE PRIMARY CONSIDERATIONS
Meaningful Relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent but the quality of the relationship between them.[19] This is an important consideration in this case given the length of time it has been since the children spent time with the father.
[19] Mazorski v Albright [2007] FamCA 520.
I am not to assume that there is a benefit to the children in having a meaningful relationship with the father but rather am required to ascertain whether there is a positive benefit to them in the circumstances of such a relationship:
…No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. [20]
[20] McCall & Clark (2009) FLC 93-405, 83,476 at [122].
If orders were made and complied with as sought by the father, the children would share a meaningful relationship with both of the parties. Having regard to the mother’s non-compliance with the current orders as to the time the children are to spend with the father, the proposal of the Independent Children’s Lawyer would most likely result in the children having no relationship with the father.
Risk of Harm
The father did not in his affidavit address any allegations made by the mother in her prior affidavit material nor his criminal antecedence save to state that, whilst it is true that he has “gotten himself in trouble with the police since he was eighteen years old”, he has matured since then and has changed his views on drinking and has not consumed any alcohol at all for the last four years. He deposes that he does not consume illicit drugs. He further states that, despite his “troubles” in the past he has “never done anything wrong by my children.”
The Father’s Criminal Antecedence
The father did not challenge the facts underscoring various convictions he has received since 2009 for offences.
It is uncontested and I find that the father has been found guilty of further numerous offences since 2020. Arising from the father’s neglect to comply with an order of this court, I am unaware as to the outcome of the various charges laid against the father as set out in paragraphs 56-57 above arising from an incident in early 2021.
Some police material, primarily being COPS entries, were tendered into evidence by the Independent Children’s Lawyer in relation to these charges/convictions. No direct primary evidence was called. The father’s affidavit is largely silent as to the circumstances giving rise to these charges and convictions. During the limited cross examination of the father as to these instances he broadly denied the particulars as contained within the police material. In the circumstances I make no finding as to the conduct underscoring each of the father’s criminal convictions. I do find that there is a common thread to the father’s criminal antecedence of challenging authority and an apparent difficulty the father experiences in regulating his behaviour.
I further find and accept that the relationship between the father and his current wife has been marked by family violence on at least two occasions.
The Mother’s Allegations as to Family Violence
It is the mother’s untested evidence that: -
·the father assaulted E;
·the father pushed X, causing her to hit her head on the floor;
·the father covered X’s mouth to stop her crying;
·the father verbally abused the mother: “I just feel like breaking your hand”;
·the father called X a “fucking bitch” and told her to “shut up” when she was crying. In evidence is a text message from the father to the mother that says:
Father: U angry at me cos i told her to shut up?
I didnt mean it
Mother:It’s ok u just need to relax a bit sometimes. I knew she wasn’t crying for no reason but next time u will know
Father: Yeh I’m sorry
I didnt mean to snap at her
Just really thought my hand was covering her.[21]
·the father said to the mother: “I’m going to do something very bad to you one day.”
[21] Affidavit of the mother filed 1 March 2022, Annexure A.
The Independent Children’s Lawyer put to the father during the course of cross examination various allegations raised by the mother in her affidavit material. The father: -
·denied pushing X;
·“does not believe” that he covered X’s mouth on one occasion to stop her from crying;
·denied there was an occasion where E was trying to get to sleep and the father placed his hand over E’s mouth;
·deposed that he could not recall saying to the mother “I will do something bad to you” but conceded that they had a “rocky relationship – lots of things were said”;
·denied ever threatening to break the mother’s hand; and
·denied ever telling X that the mother is a “bloody idiot”.
During the course of his oral evidence the father conceded that he has: -
·Told X to shut up.
·Told the mother she was lucky to not have given his current wife her address. In evidence is a text message between the parties as follows: -
MOTHER: And I would like it if u stop talking about me to [Ms D]. U said some nasty things which I believe I don’t deserve.
FATHER: Too late for that…Ur lucky I’m not giving her ur address…I hate that u always run to spread shit
MOTHER: Don’t threaten me….[22]
·In cross examination the father could not concede that this was in any way a threat: “not a threat but just letting her know that I’m stuck in the middle.” I reject the father’s evidence in this regard and accept that this was a threat and would have made the mother fearful.
[22] Affidavit of the mother filed 1 March 2022, Annexure B.
The father conceded that in 2018 he sent a text message to the mother referring to his current wife: -
Hard to ignore her…Really presses my buttons…Ill try control myself but I can feel it inside me that i want to hurt her
I just want her dead
Ill just get [E] and then ill block and ignore her
Really feel sorry for him
She should never have become a mother.[23]
[23] Ibid, Annexure I.
The father conceded that in or around early 2020 the father told the mother that he and his current wife had had an argument and sent her the text message annexed to the mother’s affidavit which states: -
Would u want to run away with me if I took [E]?
Like i mean ill literally save up and quit my job
Take [E] and get a place away from everything
Claim child support and live off it.[24]
[24] Ibid, Annexure G.
The father conceded, only after being shown the text message, that on or about early 2020 he had a further dispute with his current wife and sent a text message to the mother that is in evidence as follows: -
Now I am not allowed to see him anymore
[Ms Asterios] im about to go to jail
I wana beat the shit out of her.[25]
[25] Ibid, Annexure H.
I accept and find based on the father’s own concessions that he has perpetrated family violence both against the mother and his current partner by way of his sending threatening messages.
I place little weight on the mother’s evidence in circumstances where the mother did not avail herself of the opportunity to present her evidence and for it to be subject to cross examination. I am therefore not satisfied that the Independent Children’s Lawyer has discharged their evidentiary onus to ground any further findings being against the father arising from the mother’s allegations of family violence as set out above.
The father deposes that he does not take illicit drugs and denied in cross examination that he would regularly use illicit substances when he was in a relationship with the mother as he was a transport worker and was regularly tested for illicit drugs. He conceded that he sent the mother a text message in early 2020 saying: “Yeah i’m at home having a smoke” but asserted that this “could” have been a cigarette. He denied that he meant illicit substances. The father was a transport worker only for the 2021 year. The father further conceded that in mid-2018 he sent a text message to the mother:
U got plans tomorrow during the day?
No..plans
Ok I wont be high either lol
OK lol.[26]
[26] Ibid, Annexure E.
The father “did not know” if in that message he was referring to illicit substances.
I am satisfied on the evidence that it is more probable that in the past the father has consumed illicit drugs. I cannot be satisfied on the evidence that this illegal consumption is ongoing.
The Father’s Allegations
The father alleges that there are a number of risk factors that the children have been exposed to. The father asserts that despite X being of age, she has not been enrolled to attend any public school. Whilst the father deposes that he telephoned the two local public schools and was told that they had not received any application to enrol X, there is no evidence to support a finding that X has not been enrolled at all in school for the 2023 year and I cannot make a positive finding in this regard.
In observation in May 2022 the Court Child Expert opined that both children appeared to be happy, healthy and curious children who regularly engaged with the mother whilst they explored the toys and activities in the observation room. [27] The mother appeared to supervise and engage with the children appropriately. I accept this opinion noting however that this observation occurred some 18 months ago.
[27] Child Impact Report dated 1 June 2022, paragraph 10.
The father further alleges that the children’s medical needs are not being met. The father deposes that in late 2019/early 2020 he observed X to have a medical condition. The mother advised the father in early 2021 that X was unable to be tested at the doctor as she was crying and so had been referred to a hospital. The father deposes that in late 2022 he noticed that X’s medical condition had worsened. His message to the mother as to his concern was unanswered. The father was not challenged on this evidence, and I accept it.
The father further has concerns as to the mother’s mental health as she has sent several emails to the court claiming that she and the children are “sovereign citizens” and “British subjects.” In light of the mother’s email to the court as set out earlier in these reasons I accept that the father’s concerns in this regard are legitimate.
THE ADDITIONAL CONSIDERATIONS
The children are still of a young age and their views and wishes, even if they were known, would carry little weight.
There is no independent evidence of the children’s relationship with the parties. The father conceded in oral evidence that at all times the mother has been the primary carer of the children. In those circumstances the Court Child Expert was of the view that it was likely that the mother was the children’s primary attachment figure. I accept that it is more probable that this is so.
Subsequent to the parties’ separation there has been periods of time when X has not spent any time with the father. Y has only spent short periods of supervised time with the father subsequent to his birth. I accept the Court Child Expert’s unchallenged opinion that Y was in the early stages of developing his relationship with the father. Neither of the children have spent any time with the father since October 2022; a period of over a year. Y was only one year of age when his time with the father ceased.
The relief sought by the father would be a significant change in their circumstances. When asked as to the impact on the children of being apart from their primary attachment figure the Court Child Expert opined that in circumstances where the children have spent no time with the father since 2022, to move from no time to an equal time arrangement as sought by the father would likely cause a degree of distress. The Court Child Expert opined that it could be quite confusing for Y to spend time with the father; a person with whom he has no established relationship. I accept the Court Child Expert’s unchallenged opinion in this regard.
There is no evidence that the children spending time with both parents would raise any practical difficulties or expense save for the question as to whether the mother will comply with any orders this court makes and the expense of supervised time if such were to be ordered.
The mother has chosen to not engage in these proceedings and provide the court with tested evidence to assist me in determining the best interests of the children. Further, the mother is non-compliant with the June 2022 interim Orders for the children to spend supervised time with the father. She has not filed an application seeking to suspend these orders. The mother’s actions are not child focussed.
The father appears to be unable to recognise the significant change he seeks to the children’s living arrangements and the potential impact this would have on them. Whilst conceding that the mother has been the primary carer of the children and that the children’s primary attachment is “currently” to the mother, when asked what effect he thought it would have on them to be removed from the mother the father replied:
My relationship with [X] is strong enough for her to remember who I am and for her to be comfortable with me. I noticed that from when the court first ordered for me to be reintroduced into their lives and when [X] saw me after some time, she still remembered me and said, “I know who you are, you’re my daddy.”
As to Y, the father’s oral evidence was that:
[Y] was comfortable around [X] – of course it will take some time for him to re-adapt to myself and get used to me, but I feel that with support from [X] and my other son [E], I feel it could transition quite smoothly.
The Court Child Expert opined in the Child Impact Report that the father demonstrated little parental reflective capacity. The father agreed with this opinion but asserted that since this time he has done courses to change his perception. When it was put to him that the Court Child Expert opined in the later Family Report that he appeared to minimise and/ or dismiss his behaviours when asked about his criminal history the father asserted that he did not, he just “explained” it. I accept that the father did not display an understanding of the significance of his criminal antecedence and the alleged conduct giving rise to the numerous charges laid against him to my determination as to what care arrangements are in the children’s best interests.
The father conceded in cross examination that he has at times become frustrated when caring for his eldest child with his current wife, E. He conceded that he sent the text message attached to the mother’s affidavit that stated:
I can’t stand babysitting [E]
I don’t know why but I can’t f’kn stand it.[28]
[28] Affidavit of the mother filed 1 March 2022, Annexure F.
The father conceded that on or about mid-2019 during a period of separation between the parties that he said to the mother:
I don’t want to be [X]’s dad anymore, go and find her a new one.
When asked in the course of his cross-examination why he said this, the father’s response was:
Frustration due to the two women I was alternating between, I was torn in trying to figure out how to go forward in the position I was in.
The father further conceded that in early 2020 he said to the mother that there is a window at his current wife’s home she never locks, and that he would leave E there to teach her a lesson. He conceded that he was referring to leaving E alone himself but that he did not mean it, he was just “talking out of frustration.”
Ms D attending at the play centre in October 2022 during the time the time the children were spending supervised time with the father was misconceived and not child focused having regard to the obvious toxic relationship between Ms D and the mother arising from the history of the father’s relationship with each of them. In evidence is a text message sent by Ms D to the mother which includes the following:
[MS D]: Can I ask why u were with [Mr Asterios] yesterday? I don’t care. U do the drop off amd fuk off…
[Mr Asterios] is not ur man.
We are together.
Dont message him unless it’s about [X] or you’ll have to start going through me.
And if u don’t like that he can easily go through court again.
We have a family now and are having another baby.
Your lonely pathetic ass has come in between my family too many times.
Fukn dirty slut.
I’ve let it slide that u thought u could be around my son before, but if this happens again, you won’t like what follows.[29]
[29] Affidavit of the mother filed 1 March 2022, Annexure C.
This appears to be the catalyst for the mother’s refusal to facilitate the children spending time with the father. Despite this eventuality, the father is still of the view that Ms D attending on this occasion was the right decision and is a reflection on the limitations to the father’s parenting capacity.
It is uncontested that the father had the children baptised without the mother’s consent.
The father told the Court Child Expert that his strengths as a parent is that he prioritises the children and is a committed “strong father figure, [a] good loving, and caring father.” [30] When asked to reflect on the mother’s strengths as a parent the father stated: “I don’t know. She is completely different to who I thought she was. I didn’t realise she would be so pathetic.” [31]
[30] Family Report, paragraph 35.
[31] Ibid.
It appears that the New South Wales Police service sought an Apprehended Domestic Violence order for the protection of the mother and restricting the behaviour of her sister in early 2012 arising out of an incident between them in late 2011. It was noted that at that time the two sisters lived together at the home of their parents and have an extensive history of domestic incidents that have been reported to the police. This incident is historical. No orders are sought by the father or the Independent Children’s Lawyer with respect to the maternal aunt.
It does not appear that there are any current Apprehended Domestic Violence Orders in place between the parties. The Independent Children’s Lawyer submits that it is for this reason that they seek orders pursuant to section 68B for the protection of the mother.
When asked to opine on her thoughts from a social science perspective on the proposal for a specific time with order as opposed to no time, the court child expert opined that the difficulty she saw with orders being made for the children to spend time with the father is that it may not occur or be inconsistent. If such time was inconsistent, she would have concerns as to the emotional impact on the children’s wellbeing and understanding of their family. The Court Child Expert further opined that noting that the communication between the parties is fairly poor, the likelihood of them coming to a consistent arrangement is fairly limited.
DISCUSSION AND DISPOSITION
Parental Responsibility
As the court is being asked to make orders as to parenting, the first question to be determined is whether the presumption in s 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”) that it is in the best interests of the children that the parents have equal shared parental responsibility is rebutted as there are reasonable grounds to believe one of the parties (or a person who lives with a party) has engaged in abuse of a child or family violence.
Having regard to my findings as to family violence made above the presumption as to the allocation of equal shared parental responsibility is rebutted. Even if no such findings were made, pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the children. The father conceded in cross examination that communication between he and the mother ceased in September 2022. It is abundantly clear in this matter that the parties are unable to communicate. The apparent high level of conflict, mistrust and animosity between the parents is a contraindication to equal shared parental responsibility.
I am therefore satisfied that, as their primary carer to date and in light of the findings as to the best interests of the children made below, the mother should have sole parental responsibility for the children. I am not satisfied that there is any evidence to ground a finding that it would not be appropriate for the father to be informed in writing as to the decisions made by the mother in exercising her sole parental responsibility and orders will be made accordingly.
The Children’s Care Arrangements
Whilst neither the father nor the Independent Children’s Lawyer sought a finding that the children are at an unacceptable risk of harm in the care of either of the parties, I must still undertake an assessment of risk of harm to the children arising from each of the parties’ proposals. This requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event.
The Independent Children’s Lawyer did not submit that there are any risks to the children arising from the mother’s care. The mother’s failure to engage in the final hearing and her apparent views as to the authority of this court did not cause the Independent Children’s Lawyer concern.
The Independent Children’s Lawyer submits that the father has, for significant periods of time, periods of volatility, aggression and a degree of unpredictability both in his daily life and within his familial and intimate relationships, particularly when challenged, frustrated or worse. The father has also engaged in various anti-social behaviours which speak to a lack of impulse control. It is the position of the Independent Children’s lawyer that the father historically has shown himself to be a person who has difficulty in controlling his behaviour or emotional responses in a variety of different scenarios. The Independent Children’s Lawyer submitted that given the children’s ages and their exposure to family violence equal time is not only not reasonably practicable but not in the children’s best interests.
The Independent Children’s lawyer submitted that the risk of the children’s exposure to family violence in the future and the risk of their exposure to re-triggering trauma is increased if the children spend any time with the father. The children may benefit from a relationship with the father but only if their time with him is safe.
The father submits that whilst his behaviour in the past was problematic, he has changed. He concedes that in the past he has had issues with authority but as a father his perception has changed; he has “woken up.” He deposes that he has benefited from the counselling he has been undertaking since 2020. The father told the Court Child Expert that from the Tuning into Kids course he learnt a lot about understanding children’s emotions. The short form men’s behavioural change program that he undertook for a number of weeks online for an hour at a time taught him that “there is more to myself and my own emotions, and how I act on my emotions.”[32] He submits that he has been able to improve and no longer acts inappropriately when he is frustrated. Furthermore, the father in his oral evidence asserted that he plays an active role in the lives of his three children with Ms D.
[32] Family report paragraph 31.
I do not accept that the father has an appropriate and necessary understanding of the effect of his behaviour on other people. The father has been convicted of various offences subsequent to his commencing counselling in 2020. Despite him undertaking a short form behavioural change program he could not appreciate that the serious and threatening text message he sent to the mother in early 2020 stating that he wanted to “beat the shit” out of his current partner would cause the mother fear.
It is unfortunate that the father did not comply with the order that he undertake a full men’s behavioural change program but rather completed a brief online course “due to the time requirements for the courses, my work schedule and father duties.”[33] He was aware that his criminal history was relevant to the court’s consideration but chose not to comply with an order that he provide the relevant information.
[33] Ibid, paragraph 58.
The Court Child Expert opined that it would be difficult for orders to be made for an equal time arrangement in light of the history of communication between the parties to date. An equal time arrangement is very much dependant on parents being able to work co-operatively and have similar parenting styles. When asked by the father what the consequences would be for the children if the parties persevered, the Court Child Expert opined that such an arrangement would be detrimental. They would be exposed to a great deal of conflict and if arrangements for time were not followed through the children could be exposed to an even greater amount of conflict which could have a significant impact on their mental health and ability to thrive. I accept this unchallenged opinion.
In light of my findings made above as to the likely significant distress that would be caused to the children and confusion to Y of moving from a no time arrangement to an equal time arrangement, I am not satisfied that the father’s proposal is in the best interests of the children and refuse to make orders for an equal shared care arrangement as formally sought by him.
Whilst I was not able to make all the findings as sought by the Independent Children’s Lawyer as to the father’s prior behaviour, findings have been made sufficient to ground a finding that the father has shown an inability in the past to self-regulate and accept authority. He has conceded perpetrating family violence upon both the mother and his current wife. I have found he has perpetrated an assault upon his sister. The father did not appreciate the significance of his past criminal history as a consideration for this court in determining what is in the children’s best interests – it was clear that it was his view that if the criminal court had dealt with it, that was the end of the matter. This is borne out by both the father’s oral evidence as set out in paragraph 55 above and his decision to not address his significant criminal history in his affidavit save in the broadest and shortest of terms.
The Court Child Expert opined that such findings ground a risk that the father will have a limited capacity to manage the children’s behaviours as there can be an association between a parent’s behaviour to an intimate partner and having limited tolerance to children’s behaviours. As children get older and assert independence, they require parents who are able to regulate themselves. If they are unable to do this the children would be at risk of physical or verbal abuse. I accept this unchallenged expert opinion.
The Court Child Expert opined orally that she would further be concerned that the children would be exposed to further altercations between the father and other members of his family and the messaging that the father as a role model would send to the children. I accept that this is a risk if the children were to spend time with the children in the presence of the paternal family in light of the father’s evidence that he has a good relationship with his parents and his sister Ms W and that if the children were to spend time with him, he intends for his family to be involved.
The Court Child Expert opined that limited and supervised time between the children and the father would minimise those risks however a concern would be the father’s compliance with, for example, a supervisor’s direction. I accept that this unchallenged opinion. I further accept the Court Child Expert’s unchallenged opinion that in light of the relationship between the children and the father now having been fractured for over a year, the children’s time with the father should be for short, limited periods of time.
I am thus satisfied that the father’s prior perpetration of family violence coupled with his apparent inability to regulate his emotions and accept authority poses a risk of physical and psychological harm to the children should they spend lengthy periods of unsupervised time with the father. I am not satisfied that this risk is unacceptable. I am satisfied that, in light of the findings made above, that these risks can be sufficiently ameliorated by the father spending short periods of time with the children commencing with supervised time.
I am also satisfied that the mother’s decision to not engage in these proceedings and her inability to accept the authority of this court is a significant cause of concern. The mother asserts that the father poses a plethora of risks to the children however has not attended court since 2022. It appears the mother’s response to the situation which the parties find themselves in is for her to simply ignore the father. This factor in and of itself should not be a bar to the father having a relationship with the children if it is safe to do so. I cannot make any further findings as to the risks to the children in the mother’s care on the evidence presented. The Court Child Expert was not asked any questions in this regard.
The Court Child Expert opined that it would be expected that the children would, depending on their age and relationship experience, experience confusion, grief and loss were they not to spend time with a parent. As they develop a sense of identity, they may develop a sense of rejection. It is the Court Child Expert’s understanding that X has had a positive relationship with E, so there may be implications for her if she weren’t to see her sibling. X may experience grief and loss around that which would need to be dealt with.
In her latest trial affidavit, the mother stated that:
I reluctantly agree that supervised contact time is appropriate in the children’s long term interests, however I believe that adequate and appropriate safeguards need to be put into place, namely that the Report Writer’s recommendations are implemented (being the parenting orders courses, and drug testing) before supervised time can occur.
Whilst the making of orders for supervised time is an exercise of discretion, the Full Court has given specific guidance where such orders are to be made for an indefinite or indeterminate period: see Moose & Moose [2008] FamCAFC 108. Clear reasons are to be provided when such an order is made: Gorman & Huffman & Anor [2016] FamCAFC 174.
There is no evidence as to the practical nature of the children’s time with the father being supervised. Whilst the father has conceded that he would be willing for his time with the children to occur in this way, there is no evidence as to how such supervision is to occur – is it to be at a formal contact centre? Is it to be supervised again by the maternal family when this arrangement has broken down in the past? Is it to be by way of a private paid supervisor, and if so – who is to be responsible for the costs of same noting that I have no evidence as to the parties’ financial circumstances save that it appears that the father is engaged in full time employment and it appears that at this time the mother is not engaged in any paid employment?
The Independent Children’s Lawyer proposes that the sole responsibility for determining if and how the children spend time with the father would rest with the mother. I am not satisfied that leaving such a decision to a person who has chosen not to engage in these proceedings is in the best interests of the children.
Doing the best I can with the very limited evidence I have, I am satisfied that there are risks of harm to the children in each of the parties’ care. The risks in the mother’s care are unknown but will be ameliorated to some degree by the father continuing to have a role in their lives. I am satisfied that the potential risks to the children in the father’s care will be sufficiently ameliorated by: -
·The father undergoing a drug test on no more than two occasions a year for the next two years within 24 hours of the mother requesting that he do so;
·The children’s time with the father being supervised until he undertakes and completes the full form men’s behavioural change program as he was ordered to do in mid-2022;
·Upon the completion of such a program the children will spend limited short periods of time on a graduated basis with the father each fortnight of no more than six hours. This will allow the children to develop and maintain some form of relationship with the father whilst limiting to their potential exposure to the father’s behaviour. The children will have the opportunity to spend further periods of time with the father on special occasions including on Father’s Day and over the Christmas and Easter period.
Again, doing the best I can with the very limited evidence that I have, in the first instance the father will be afforded the opportunity to have such time supervised by a private agency so that it can commence forthwith. If the father is unable or unwilling to pay for such private supervision, then supervised time will occur at the contact centre nearest to the mother’s last known place of residence in Suburb P.
Injunctive Orders
Having regard to my findings made above, I am satisfied that it is in the best interests of the children that the injunctive orders as sought by the Independent Children’s Lawyer as to the consumption of drugs and non-denigration orders be made.
I am satisfied having regard to the prior instances of family violence between the father and his current partner and her agreement to not be present when the children see the father that the making of an injunctive order pursuant to s68B of the Act as sought by the Independent Children’s Lawyer is appropriate and will be made.
I am not satisfied there is any evidence to ground the further orders sought by the father including that neither party be permitted to travel outside New South Wales without the prior written consent of the other party and will not make such orders.
Costs of the Independent Children’s Lawyer
No submissions were made as to why the Independent Children’s Lawyer seeks that only the father pay the costs of the Independent Children’s Lawyer in the sum of $15,669.50.
I have no specific evidence as to the parties’ respective financial positions.
This application was brought by the father in circumstances where the mother was refusing to allow the children to see the father. It appears that cessation of time did not come about because of concerns of the mother as to the safety of the children’s whilst in the father’s care. The mother has failed to comply with court orders. I am satisfied that it is appropriate that each of the parties be responsible for one half of the costs of the Independent Children’s Lawyer. Due to the lack of sufficient evidence as to the parties’ financial circumstances such order will be subject to each of the parties’ ability to seek a waiver of the fees to the Legal Aid Commission of New South Wales based on financial hardship.
Further Ancillary Orders
There is no evidence that I have the power to make the orders sought by the father as to the payment of the children’s expenses and I make no orders in this regard.
In the circumstances of this matter I will make an order that the Independent Children’s Lawyer serve a sealed copy of these orders and reasons upon the mother within 7 days and file an affidavit of service with respect to same.
CONCLUSION
Orders will be made accordingly.
I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 23 January 2024
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