ASTON & GREGORY

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASTON & GREGORY

[2015] FCCA 318

Catchwords:
FAMILY LAW – Parenting – children aged 4 and 3 – Mother alleging she was a victim of family violence during her relationship with the father – father claiming that he was the victim and that he never struck the mother and only ever pushed, grabbed and wrestled with her in self-defence – evidence establishes that the father was the perpetrator and is in complete denial about this – where the father drank excessively during the relationship and was usually intoxicated when the violence occurred – where the father claimed that he no longer had a drinking problem – where the father was not a witness of credit and his claim that he no longer has a drinking problem cannot be accepted – court satisfied that the children will be at unacceptable risk of harm if they spend unsupervised time of any length with the father – where the mother proposes that time be supervised for the next two years but become unsupervised in 2017 on the basis that the children will then be older and able to report reliably if things go wrong and be believed – difficulty of crafting long term orders in the circumstances of this case.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Applicant:

MR ASTON

Respondent:

MS GREGORY

File Number:

NCC 2793 of 2012

Judgment of:

Judge Terry

Hearing dates:

25 & 26 May 2014 & 2 & 3 October 2014

Date of Last Submission:

3 October 2014

Delivered at:

Newcastle

Delivered on:

6 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr Weightman

Solicitors for the Applicant:

Central Coast Family Law

Counsel for the Respondent:

Mr Kent

Solicitors for the Respondent:

Brad Kernick and Associates

Solicitor Advocate for the Independent Children’s Lawyer:

Ms O’Rourke

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

All existing orders concerning X born (omitted) 2010 and Y born (omitted) 2011 are discharged.
Subject to Order 3 the mother shall have sole parental responsibility for the children.
The mother shall not change the children’s surnames or relocate the children’s residence from the (omitted) without the father’s consent in writing or an order of the court.
The mother shall advise the father in writing within 7 days of any decision she makes in the exercise of her sole parental responsibility for the children.
The children shall live with the mother.
Until Y commences kindergarten in 2017 and subject to Order 7 the children shall spend time with the father as follows:
(a)On one weekend a month (being the first weekend of every month unless otherwise agreed between the parties in writing) from 10.00am Saturday to 4.00pm Sunday.
(b)Each alternate week from the conclusion of pre-school or school on Tuesday until the commencement of pre-school or school on Wednesday.
(c)If Father’s Day falls on a weekend when the children are not already spending time with the father from 10.00am to 4.00pm on Father’s Day.
(d)At Christmas:
(i)In even years from 5.00pm Christmas Eve until 12noon Christmas Day; and
(ii)In odd years, from 12noon Christmas Day until 5.00pm Boxing Day.
(e)During the Easter long weekend:
(i)In even years from 5.00pm Easter Thursday until 12noon Easter Saturday;
(ii)In odd years from 12noon Easter Saturday until 5.00pm Easter Monday.
(f)At such additional or alternate time as may be agreed between the parties in writing.
The father’s time with the children pursuant to Order 6 shall be supervised by the paternal grandparents or one of them.
Time pursuant to Order 6 shall not commence until the paternal grandparents have each signed and lodged with the court an undertaking that one of them will be present at all times while the children are with the father; that they will notify the mother in writing no less than 7 days prior to the relevant occasion if they will both be unavailable on any occasion that the children are due to spend time with the father; and that they will forthwith notify the mother if the father consumes alcohol while the children are in his care or is affected by alcohol while the children are in his care and in that event they will arrange for the children to be promptly returned to the mother.
The mother may in her absolute discretion agree to another adult or adults being the supervisors subject to them signing undertakings to the court in the terms referred to in Order 8.
From when Y commences kindergarten in 2017 the children shall spend time with the father as follows:
(a)each alternate Saturday from 10.00am to 4.00pm during both school terms and school holidays;.
(b)at Christmas:
(i)In even years from 5.00pm Christmas Eve until 12noon Christmas Day; and
(ii)In odd years, from 12noon Christmas Day until 5.00pm Boxing Day;
(c)During the Easter long weekend:
(i)In even years from the conclusion of school on Easter Thursday until 12noon on Easter Saturday; and
(ii)In odd years from 12noon Easter Saturday until the commencement of school the Tuesday following Easter Monday.
(d)At such additional or alternate times as may be agreed between the parties in writing.
If Mother’s Day falls on a weekend when the children would be spending time with the father pursuant to these orders the children shall spend the Mother’s Day weekend with the mother and the following weekend with the father.
Changeover shall unless otherwise agreed between the parties in writing take place:
(a)On weekdays by the father and one or other of the paternal grandparents collecting the children from pre-school or school and returning them to the pre-school or school.
(b)On weekends or on day when the pre-school or school are closed but (omitted) Contact Centre is open by using the supervised changeover service at (omitted) Contact Centre.
(c)If neither the school, pre-school or (omitted) Contact Centre is open or (omitted) Contact Centre is not available to the parties for a reason other than the father failing to pay the costs of the service at the McDonalds nearest to the father’s home.
The father is to pay the costs associated with using the (omitted) Contact Centre.
The father may at his election, to be communicated to the mother in writing, cease spending time with the children pursuant to Order (6) and commence spending time with the children pursuant to Order (10) at a time earlier than Y commencing kindergarten in 2017.
The father may have telephone communication with the children on one occasion each week on a day and time agreed between the parties in writing and failing agreement at 6.00pm each Tuesday with the father to place the call to a mobile number to be provided by the mother and the mother to make the children available to receive the call.
The mother may in her absolute discretion end the telephone call if she forms the view that the father is under the influence of alcohol at the time of the call.
The father is restrained and an injunction is granted restraining him from consuming any alcohol or using illicit drugs while the children are in his care or for 12 hours prior to the children coming into his care.
The father is restrained and an injunction is granted restraining him from physically disciplining the children.
Each parent shall promptly inform the other should the children while in their care be the subject of an accident or medical emergency requiring attendance at hospital or be diagnosed with a serious illness.
Each parent may obtain from the children’s schools copies of school reports, newsletters, order forms for school photographs and information normally provided to parents and each parent may attend events at the school normally attended by parents.
Each parent shall keep the other advised of their mobile telephone number and email address and notify the other parent of any change to these details within 48 hours of the change occurring.
The father shall keep the mother advised of his residential address.
A communication book shall be used by the parents to provide relevant information about the health and welfare of the children and shall be exchanged at handover.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2793 of 2012

MR ASTON

Applicant

And

MS GREGORY

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Aston and Ms Gregory separated 2 ½ years ago. Their children X, 4, and Y, 3, have lived with the mother since separation and their time with the father has largely been supervised.
The issues in dispute at the hearing were:
a)The amount of time the children should spend with the father in the future;
b)Whether the time needed to be supervised; and
c)Whether parental responsibility should be shared.
The mother proposed that she have sole parental responsibility for the children and that until Y commenced kindergarten in 2017 the children spend time with the father on one weekend each month from 10.00am Saturday to 4.00pm on Sunday and each alternate Wednesday from 10.00am to 4.00pm supervised by the paternal grandparents.
She proposed that once Y commenced kindergarten the children spend time with the father each alternate weekend from Friday until Monday and each alternate Wednesday from after school until 5.30pm, for half the three shorter school holidays and for half of the summer school holidays in weekly blocks unsupervised.
It was the mother’s case that the father was violent during their relationship, had a drinking problem and had stalked and intimidated her since separation. She alleged that he was worst heavy handed and threatening with the children and at best lacked parenting skills and was insensitive to the children’s needs and it was her case that the children would be at unacceptable risk of harm if they spent unsupervised time with the father at present.
The mother proposed that unsupervised time commence in 2017 on the basis that by then the children would be old enough to reliably report any transgressions by the father.
It was the father’s case that the mother needed to be in control and was unreasonably trying to restrict his time with the children. He categorically denied perpetrating family violence and said that the mother was the perpetrator and he was the victim. He made some admissions about his drinking during the relationship but said that he now only drank in moderation. He categorically denied stalking or intimidating the mother and denied that he lacked parenting skills or was heavy handed with the children.
The father proposed that the parents have equal shared parental responsibility and that until X commenced kindergarten in 2016 the children spend time with him each alternate weekend from 4.00pm Friday until 4.00pm on Sunday and from the conclusion of pre-school each Tuesday overnight to 4.00pm Wednesday unsupervised. He proposed that once X commenced kindergarten in 2016 the weekend time should end on Monday and the overnight time on Tuesday should end on Wednesday morning.
He proposed that the children spend three one week blocks of time with him in 2015 and half of all NSW school holidays with him from 2016 onwards and he sought an order for equal shared parental responsibility.
At the commencement of the hearing the father was proposing that from 2017 onward the children should live in a week about shared care arrangement but during final submissions his counsel indicated that he was no longer seeking that.
The solicitor for the Independent Children’s Lawyer submitted at the end of the hearing that the children would not be at unacceptable risk of harm if they spent unsupervised time with the father.
She proposed that until X commenced kindergarten in 2016 the children spend time with the father unsupervised from 4.00pm on Friday until 4.00pm on Sunday or 4.00pm on Monday if Monday was a public holiday and from 4.00pm on Thursday if Friday was a public holiday and also each week from the conclusion of pre-school on Tuesday until 4.00pm on Wednesday.
She proposed that once X commenced kindergarten the children should spend half of all school holidays with the father.
The solicitor for the Independent Children’s Lawyer’s proposed that the fathers weekend time but not his overnight time during the week be supervised by the paternal grandparents for the first three months after final orders were made to give the mother peace of mind.
The solicitor for the Independent Children’s Lawyer proposed that an order be made restraining the father (without admission) from consuming more than one standard drink per hour while the children were with him or for six hours beforehand and that he be restrained form hitting or smacking the children in any way.
The solicitor for the Independent Children’s Lawyer supported the parents having equal shared parental responsibility and she sought an order that the parties and the children attend a parenting orders program conducted by Unifam with a view to improving their communication and co-operation around parenting the children.
The court is not bound by the proposals of the parties. This is a difficult case and during submissions other possibilities were raised, such as the father’s time becoming unsupervised but being during the day only. Another possibility would be for supervision to continue but for a shorter period than proposed by the mother and for changeovers to occur at a contact centre.

The evidence

The father relied on his amended response and affidavit filed on 17 May 2014, paragraphs 1 to 4 of his affidavit filed on 1 October 2014 and the affidavit of the paternal grandmother Ms G filed on 21 May 2014.
The mother relied on her amended response and affidavit filed on 19 May 2014 and the affidavit of the maternal grandmother Ms L also filed on 19 May 2014. She also relied on a proof of evidence dated 20 October 2014.[1]
[1] Exhibit “K”
A Family Report was prepared by Mr N, a Regulation 7 Family Consultant who interviewed the parties and children on 19 July 2013.
All of the witnesses were cross-examined.
The father ran a very confused case. He claimed that the mother was an angry violent person who had pushed him over and stomped on his chest and he also claimed that she drank heavily and became aggressive after drinking but the orders he sought were not congruent with these claims.
The father proposed that the children live with the mother and did not propose that this be conditional on her doing an anger management course or a perpetrators course or engaging in drug and alcohol counselling. He sought no restriction on her alcohol consumption when the children were in her care.
Prior to the final hearing the judge who then had carriage of the matter made orders for the father to engage in drug and alcohol counselling and do Carbohydrate Deficiency Transferrin (CDT) tests designed to detect heavy alcohol consumption. No such orders were made in respect of the mother and there was nothing to suggest that they were sought.
When the matter was adjourned part-heard in May 2014 the father consented to an order that he enrol in a “Facing Up Taking Responsibility” course designed to educate perpetrators of family violence. I was not asked to make a similar order in respect of the mother.
When the father was asked by the court during cross-examination why he was content for the children to live with the mother if she was the violent heavy drinker he described he responded:
I’d love to take the girls away from that environment but the courts don’t allow it. The mother has all the rights.
The father’s treatment of the family violence issue in his trial affidavit was gravely deficient.
The father made general allegations that the mother had been violent to him but provided detail of only one occasion when this occurred namely the occasion when he alleged that she pushed him over and stomped on his chest.
The father was well aware prior to the trial that the mother had made detailed allegations about violence allegedly perpetrated by him but he did not make any reference to these allegations in his trial affidavit. When he was asked during cross-examination why he had not put his side of the story about these allegation in his trial affidavit he responded:
I thought it was something in the past which wasn’t going to be brought up.
This is absurd given that the father made allegations about the mother being violent to him.
The father was charged with intimidating and assaulting the mother on 24 July 2012 and was convicted in September 2013 after a hearing. All he said about the events of 24 July 2012 in his trial affidavit however was as follows:
At about 8.00am Ms Gregory returned home with the 3 children and an argument ensued. I am very sorry this argument took place and that it took place in the hearing of the children
I left and went to work in Sydney. When I returned Ms Gregory and the children had moved out.[2]
[2] The father gave a more detailed version of what happened on 24 July 2012 in his affidavit filed on 18 October 2012 but he did not repeat this in his trial affidavit which is (a) curious if the version in the earlier affidavit is correct because he alleged that the mother attacked him and bruised his face which if true one would have expected him to repeat at trial and (b) probably just as well for him as the version of events in that affidavit did not match with his oral evidence at trial.
The father gave inconsistent and unbelievable evidence during cross-examination about the events which led to his conviction and about the other specific allegations of family violence made by the mother. He was conspicuously not a witness of credit and this has ramifications not only for the issue of whose evidence I should believe as far as the allegations of violence and alcohol consumption are concerned but about whether I can accept the father’s assurance that he has moderated his drinking since separation.
The paternal grandmother was largely an apologist for the father. Her assertion to Mr N that the father had a drinking problem in his twenties but did not have one when he and mother were in a relationship conflicted with the father’s own account of his drinking during the relationship and she accepted the father’s version of events about the circumstances surrounding his assault convictions in 2003 and 2013. The paternal grandmother’s evidence must be treated with caution.
The mother was a good witness. She gave very detailed accounts in her affidavit of critical incidents between herself and the father, backed up on two occasions by photographs. When challenged during cross-examination her answers were consistent with the content of her affidavit and what was depicted in the photographs.
The mother made frank admissions about her role in some of the violence including admitting to “stupidly mouthing off and verbally abusing the father.” She even admitted to her role in an incident which she was asked about during cross-examination but which was not referred to either in her affidavit or in the father’s affidavit. She admitted that early in the relationship she became upset when the father told her that he was going to the pub with a friend and pushed the screen door into him causing him to hit his head on a wall.
The mother did not give the impression of being defensive or of being intent on tailoring her evidence to make out a particular case.
The mother frankly admitted she had asked the children after separation to repeat disclosures that they had made so that she could record them on her phone. She was not defensive about her actions and ruminated on being “damned if she did and damned if she didn’t” in other words, on the one hand potentially emotionally harming the children and on the other hand being left without evidence of things the children had said and not being believed.

The mother sought orders consistent with her evidence. She explained on a number of occasions why she did not feel comfortable with the children spending unsupervised time with the father at present. She was able to explain why she was willing to agree to unsupervised time commencing in 2017 despite her distrust of the father and it was apparent that the orders she sought in this regard were not just something proposed by her counsel but were something she had come up with while struggling to reconcile her concerns about the children’s safety with a desire not to be seen as trying to prevent them having a relationship with their father.
The solicitor for the Independent Children’s Lawyer submitted that the fact that the mother told the family report writer that her father did not have any involvement in her life growing up but admitted during cross-examination that her parents did not separate until she was three reflected poorly on her credit as a witness. I do not accept this and fail to see how the two statements are particularly contradictory.
The maternal grandmother was a frank and consistent witness but she was at court to support her daughter and I need to exercise caution about her assertions concerning the amount the mother drank on any particular occasion.

Background

The mother is 41. She was born in Australia of (country omitted) parents and was brought up by her mother after her parents separated when she was 3. She has a daughter Z born on (omitted) 2000 from a previous relationship. Z lives with the mother and spends time regularly with her father Mr L.
The mother is a long term resident of the (omitted) and immediately prior to the commencement of her relationship with the father was working as a (occupation omitted).
The mother has a conviction for mid-range PCA in 1993 but no other criminal convictions.
The father is 37. He was born in Australia of (country omitted) parents who are still together and is also a long term resident of the (omitted). He has no other children besides X and Y.
The father has had a drinking problem at times during his adult life and has attended Alcoholics Anonymous. He has criminal convictions for malicious damage in 1995 when he was 17, high range PCA in 1996, high range PCA in December 1999, assault a police officer and resist an officer in the execution of his duty and use offensive language in or near a public place or school in 2003 and possess a prohibited drug in 2003.
The father was asked during cross examination about his conviction for assault police and resist an officer in the execution of duty. He alleged that he was waiting for a lift when two policemen approached and got heavy handed with him. He agreed that he had been drinking prior to his arrest.
The father pleaded guilty to the charges and superficially seemed to admit culpability during cross-examination but at the same time it was clear that he did not truly agree that he had been in the wrong. He said as follows:
I take full responsibility but there have been news reports criticising police in QLD for overuse of capsicum spray – I was sprayed with it – I was trying to help a friend who was in a bad way having a diabetic fit – I was in the wrong place at the wrong time.
The paternal grandmother said that it was her belief that the father was guilty but with mitigating circumstances and that during this incident the father was:
battered and bruised and had capsicum spray put on and was beaten.
The father is an (occupation omitted) by trade and when he and the mother met he was commuting to work in Sydney on weekdays and some Saturdays.
The mother and father met in (omitted) 2009 when the mother advertised for a flat-mate. They commenced cohabitation about a week later, separated at Christmas 2010, had an on-off relationship from then until February 2012 and finally separated on 24 July 2012. They have two children, X born on (omitted) 2010 and Y born on (omitted) 2011.
The mother gave up work shortly before X’s birth and was always the children’s primary carer.
The mother alleged that the father drank heavily during the relationship and was verbally abusive and physically violent. The father admitted that he drank heavily but said that the mother drank just as much and he vehemently denied perpetrating violence. He claimed that he only ever acted defensively and was in fact the victim of violence at the mother’s hands.
Immediately prior to the parties’ final separation they were living in a home in (omitted) which the father had purchased in 2011. An incident occurred between them on the morning of 24 July 2012. The mother made a report to police and a provisional Apprehended Domestic Violence Order (ADVO) was made for her protection and the protection of the three children and the father was charged with assault and intimidation.
X and Y were then 22 months and 9 months old and the mother would not agree to them spending any time with the father after separation.
On 16 October 2012 the father filed an application for parenting orders and on 3 December 2012 interim orders were made which provided for the children to spend supervised time with him for two hours each alternate week at a contact centre.
No place was immediately available at a contact centre and by agreement he spent time with the children for two hours each Tuesday supervised by (omitted), a private organisation which charges a substantial fee.
In March 2013 a place became available at (omitted) Children's Contact Centre and the father began spending time with the children there and in addition time supervised by (omitted) continued.
On a final basis the father was pressing for unsupervised time and in due course equal time while the mother was proposing indefinite supervised time and on 5 March 2013 a Family Report was ordered. Interviews took place in July 2013.
On 2 August 2013 following the release of the report interim orders were made which provided for the father to spend time with the children each Wednesday from 9.00am to 3.00pm and each alternate weekend from 12 noon on Saturday until 12 noon on Sunday with such time to be supervised by the paternal grandparents or either of them. Orders were also made for the father to attend drug and alcohol counselling and do CDT tests.
On 10 September 2013 the father was found guilty after a hearing of assaulting and intimidating the mother on 24 July 2012. He was placed on a one year good behaviour and a final ADVO was made for a period of 2 years for the protection of the mother.
On 1 November 2013 further interim orders were made by consent which provided for the father to spend time with the children from 10.00am on Saturday until 4.00pm on Sunday each alternate weekend and from 9.00am on Wednesday until 3.00pm on Wednesday. The time on weekends was to be supervised by the paternal grandfather from 7.00pm until 7.00am until 4 January 2014 and was thereafter to be unsupervised. The time on Wednesday was to be unsupervised and was to change to overnight from 5.00pm on Tuesday until 3.00pm on Wednesday commencing on 4 February 2014. The matter was listed for final hearing on 25 and 26 May 2014.
Unsupervised weekend time commenced on 4 January 2014 but on 15 April 2014 the mother collected the children early from pre-school and her solicitor sent a letter to the father’s solicitors saying that the mother was not prepared to make the children available to spend time with the father until the matter returned to court on 25 May 2014 for the final hearing.
At the commencement of the hearing the children had not spent time with the father for 7 weeks.
The matter was listed for a two day hearing. It could not be completed in that time and it was adjourned part-heard to 2 & 3 October 2014 and with a view to getting time between the father and children started again the parties agreed on new interim orders.
The orders provided for the children spend time with the father on three occasions each fortnight being:
a)from after pre-school Thursday until the commencement of pre-school on Friday in week 1
b)from 9.15 am to 4.15 pm on Sunday in week 1
c)from 9.15 am to 4.15pm each alternate Saturday in week 2
The time was to be supervised by one or both of the paternal grandparents and changeovers were to take place at (omitted) Contact Centre on weekends or the children’s pre-school on weekdays.
It was also ordered by consent that the father enrol in a “Facing Up Taking Responsibility” program designed to asset perpetrators of family violence and to do a Triple P Parenting Course and he was restrained from consuming alcohol or being under the influence of alcohol while the children were in his care.
In early June 2014 X became sick in the night and the mother took her to hospital. The mother said that X had told her that the father had given her blocks of cheese and that she feared that X was having a reaction as a result of her dairy intolerance.
At the hospital the mother was told that it appeared that X had a respiratory infection. However she mentioned some things X had allegedly been saying to her and the hospital arranged for X to be checked by a paediatrician. The paediatrician noticed small bruises on each of X’s thighs and when he asked X what had happened she replied “Daddy smacked me.”
The mother said that prior to the hospital visit X had come home on a number of occasions saying that the father had smacked Y on the hands and had also told her about an occasion when the grandparents had to restrain the father from touching Y. She said that X’s disclosure to the paediatrician heightened her concern about the children in the father’s care.
Notwithstanding this time between the father and the children continued in accordance with the orders. The father was told about the hospital visit at the next changeover and while giving evidence on 2 October 2014 the mother said that after this there had been no further complaints from the children and that time in accordance with the orders had gone well for them. The father denied that there had ever been any cause for concern.
The father did the Triple P Parenting Course but not the “Facing Up Taking Responsibility” program.

The issues in the case

Before considering the children’s best interests I need to consider the evidence about three major issues in the case namely:
i)Family violence;
ii)Alcohol consumption; and
iii)Drug use.

Family violence

Both parents alleged that the other was violent and drank heavily during the relationship. These issues are to an extent intertwined but I will consider the evidence about family violence first.
The father’s case was that he was a victim of family violence and had never struck, kicked or punched the mother and had only ever acted in self-defence. Mr N reported as follows:
The father claimed that the mother was verbally and physically abusive of him, stating that she initially assaulted him within two months of the commencement of the parents’ relationship, with Mr Aston believing that the mother was intoxicated at the time, and that she subsequently “broke his nose”. The parents commenced their relationship after having been housemates for a one week period. The father went on to say that the parents had a volatile relationship, whilst he was categorical that he “never struck her”. Mr Aston said that he “defended himself and pushed her away”, but he was adamant that he had never punched or kicked the mother. The father made the point that the mother “just snaps”.[3]
[3] Family Report, paragraph 21.
During cross-examination the father repeated a number of times that he was the victim of family violence at the mother’s hands and had always acted in self-defence. When asked whether he alleged the mother was primarily responsible for the violence he responded:
Most definitely – 99.9% of the time
The father gave only one specific example of the mother’s violence to him in his trial affidavit namely that she pushed him over and stomped on his chest, something the mother denied.
During cross-examination in May 2014 the father said that there was also an occasion when the mother king hit him in front of his friend Mr T. He had not obtained an affidavit from Mr T and this was commented on and he e-filed an affidavit of Mr T the day prior to the hearing resuming on 2 October 2014.
The mother’s counsel opposed the father being permitted to rely on it and I did not allow him to do so, largely because the affidavit was lengthy and referred to a number of other matters and was effectively an attempt by the father to re-open his case.
The mother denied this claim.
It was also put to the mother in cross-examination that she had pushed a screen door into the father causing him to hit his head. The mother admitted that this had occurred.
The only reference in Mr N’s report to the mother alleging family violence is as follows:
Ms Gregory was clear to say that X observed her father “grabbing her (Ms Gregory) by the face”.
Unlike the father however the mother gave very detailed evidence in her trial affidavit about a number of alleged incidents of violence perpetrated by the father.
The mother alleged that in September or October 2009 the father drank a bottle of Jack Daniels and a bottle of red wine in the space of an hour and at the end of this began waving his hands around and talking to himself in a slurred way.
The mother said that she thought the father was just being belligerent but when she thought she heard the words “fucking slut” she grabbed a chair to wedge under her door handle and headed for her bedroom. She said that as she walked down the hall the father pulled her back into the wall and thrust her back and forward repeatedly. She said that the chair she was holding was tilted backwards and left a hole in the wall and she was thrust forward after the first pull and lifted four inches off the ground and her right knee went through the wall.
The mother said that she ended up on the floor stunned as it had all happened so fast and the father got down on the floor and wrestled with her grabbing her arms. The mother said that she struggled to get free and the father elbowed her in the nose. She said that the father put his hands on her throat and she reached up with her right hand and punched him in the face.
The mother said that while the father was holding his nose she was able to get up and grab the phone and ring the police. She said that she escaped outside but then heard a snoring sound and crept back in and saw the father asleep on the floor. She said that she felt that the father would sleep it off and asked the police not to come but they said that they were obligated to do so.
The mother said that the father woke 3-4 hours later and opened another beer and continued to drink. She said that she and the father argued and eventually the father got in his van and drove away. She said that he returned the next day and began to clean up the mess of broken glass ornaments and books on the floor as a result of the struggle and begged for forgiveness. She said that he left a note saying that he would not drink again, that he loved her and that he would get help. He also patched the holes in the wall.
The mother said that she had two diagonal lines down her right shoulder as a result of hitting the door jamb.
During cross-examination the father agreed that an incident occurred at this time and agreed that he pushed the mother against the wall but said that it was to defend himself (he did not say from what). He agreed that the parties wrestled and said that his nose was broken as a result of the mother punching him. He denied that he fell asleep drunk.
The mother produced a copy of two notes written by the father during the relationship. The father admitted writing them and the one which he believed he wrote after this incident reads as follows:
As I said I am deeply sorry for my actions on Saturday night. I know sorry is too little too late. I can only hope that (?) one day forgive me and learn to love me again the way that I love you. My actions were disgraceful and I am disgusted that I let myself get in that state and treat you the way that I did. I am so ashamed that I can’t even look at myself in the mirror. I know that I will never drink again and if you could give me one last chance I will prove to you how much you really do mean to me. I love you with all of my heart baby, I am so sorry.
When asked during cross-examination why he had apologised if he had done nothing wrong the father said:
I took on the burden of a lot of our problems when I was the victim of domestic violence.
When asked why he did not mention this incident in his affidavit the father said that he thought it was something in the past which was not going to be brought up, an odd comment given that his nose was broken during this incident and it was potentially valuable support for his claim that he was the victim and not the perpetrator of family violence.
The next incident the mother referred to occurred on 18 April 2010 when the mother was about five months pregnant with X.
The mother’s version of events was that the father was extremely intoxicated between 9 and 10pm. She said that he ignored her pleas to stop drinking and she removed the remaining beer from the fridge and hid it under her bed.
The mother said that the father obtained more beer from a stash he had hidden and she grabbed a bottle and tipped the beer on the lawn and dropped the bottle. She said that she went to bed but this scenario was then repeated several times until an occasion when she poured the beer out and threw the bottle down. She said that as she threw the bottle down it bounced in the father’s direction and hit him in the forehead.
The mother said that about 10-15 minutes later she was standing in front of the fridge and the father stormed in and yelled that he would kill her and kill the baby. She said that she tried to push him off and they struggled and the father pinned her backwards over a dining chair. She said that she was in pain and tried to scratch the father’s face and he let her go.
The mother said that she told the father it was finished and went into the bedroom to put some of his belongings in a bag. She said that about 5-10 minutes later while she was standing next to the wardrobe the father came in, picked up the long side of the bed, said “have a fucking good sleep” and threw the bed over her head. She said that the bed crashed on top of her and she had to crawl out from underneath it.
The mother took photographs of the bedroom which were produced at trial. They showed the upended bed with broken slats and a broken lava lamp.
The father did not mention this incident in his trial affidavit either even in regard to the bottle being thrown and striking him on the head although he was keen to make much of this during the hearing after it came out in the mother’s evidence.
The father made some partial admissions about his conduct on this occasion during cross-examination by the mother’s counsel. He said “I came into the room and I did upend the bed but not on her.” The father agreed that the photos were accurate but denied that he was in a rage or was the aggressor or was intoxicated. He said that he had worked hard all day for Z’s birthday party and was not intoxicated and had just sat down to have a beer when the mother began harassing him.
The father agreed that the mother removed beers from the fridge and that he found some more beers from somewhere else and that the mother tipped out some of those beers and threw a bottle down which struck him in the forehead.
The father was challenged about his evidence that he simply calmly went into the bedroom and upended the bed and he eventually said as follows:
She’d hidden the last couple of beers under the bed. I lifted the bed up - I threw it – I pushed it against the wall and picked the beers up
The father wrote a note after this incident as well in which he said as follows:
I am so sorry for all the shit I have put you through, if I could take it all back believe me I would. I know you’ve heard it all before and I understand why you are sick of hearing it again. I promise you I will make a real effort to get past my problems in the hope that one day you could love me again the way I love you. You are my love and my life and I am sorry for putting you through so much unneeded stress.

The solicitor for the Independent Children’s Lawyer asked the father if he was prepared to reconsider his capacity to react violently given his behaviour on this occasion and he responded:
I still stand by what I said that I always acted in self-defence except on this one occasion which was the .1% I mentioned yesterday.
The next incident the mother referred to occurred on about 30 October 2010. The mother went to a charity event leaving X aged 4 ½ weeks with the father. She said that when she returned between 1.00am and 2.00am she found that she was locked out and the father did not respond to her knocking and then bashing on doors and windows.
The mother said that after about an hour of banging on doors and windows and feeling frantic she kicked the front door in and entered the house. She said that there was a stench of alcohol and she was furious and upbraided the father for being irresponsible. She said that the father woke up and said “Fuck off you ganger slut, I’m sleeping” and then grabbed her arms and threw her on the floor and wrestled with her.
The mother said that after a few minutes she kicked him off and went to get X. She said that she then followed the father telling him that it was over and that he was a drug fucked alcoholic and immature pig. She said that the father turned around and punched her so hard in the face that she fell flat on her back. X’s face hit the mother’s shoulder and she began screaming.
The mother said that the father raised his leg to kick her and she swept his feet out from under him using her right shin. She said that the father kneeled over her and pushed his palm down on her throat saying “Die, Die” but let go after she squeezed his testicles.
The mother said that the father went into the kitchen and poured himself a drink and she followed him and told him to get out of her house. She said that she again called him a drug fucked alcoholic and he stood in front of her and pushed her into an archway. She said that her shoulder went through the wall and she sustained a large lump on the side of her head and she also sustained bruising.
The mother took photographs of her injuries on this occasion and they were produced at trial. They showed bruising under her eye, contusions on her shoulder and under her chin and numerous bruises on her arms and back.
The father did not mention this incident in his affidavit but during cross examination he agreed that the parties became embroiled in a fight. He denied any culpability and said that the mother had tried to attack him and he pushed her away in self-defence.
The father denied that a hole was put in the wall on this occasion and said that he put a hole in the wall on another occasion when he was tired and trying to sleep.
The father was challenged about the fact that the photos showed injuries to the mother but there was no evidence he had suffered any injuries on this or other any occasion. He said that he had once had photos on his phone (whether of this incident or others I am not sure) but the mother had deleted them.
The maternal grandmother lives in Queensland and visited the mother from time to time during the relationship. She said that when she visited in November 2010 the mother appeared stressed and unhappy. She said that she noticed that a wall had been patched and said to the father “What happened to the wall inside?” He replied: “yes I hurt your daughter Ms L, I’m sorry it will never happen again, I’m going back to AA and getting help.”
The parties separated at Christmas 2010 but had an on-off relationship in 2011 and the father sometimes slept over at the mother’s home.
The mother did not make any allegations about events in late 2010 and during 2011 but the maternal grandmother did.
The maternal grandmother said that during her visit in November 2010 and later on the day the father admitted damaging the wall the mother and father were arguing and later still the father and his brother were sitting outside drinking. She said that X began to cry and the father yelled “If she [the mother] doesn’t pick that fucking baby up I’m going to wring her [the mother’s] fucking neck.”
The maternal grandmother said after this that the mother packed up the father’s things and told him to get out and the father abused the mother and said “I’m going to snap your fucking neck.” She said that she heard the mother ring the paternal grandmother and ask her to come and take the father, saying “He’s threatening me and can’t stay here anymore.”
The maternal grandmother gave evidence of an incident which occurred when she was visiting for Z’s birthday in (omitted) 2011. She said that on the day of the party on (omitted) 2011 she heard the father and mother arguing in the kitchen. She said that the father was drunk and was yelling loudly and the parents of children at Z’s party came in and asked him to stop. She said that the mother tried to walk the father out but he pushed her in the shoulder. Another parent then stepped in and pushed the father out the door and he got into his van and drove off yelling as he went.
The maternal grandmother was clearly disposed to support the mother but her evidence about the incidents in November 2010 and April 2011 was detailed and credible and I accept it.
Y was born in (omitted) 2011 and in February 2012 the mother and the three children moved into the home the father had purchased in (omitted).
The mother alleged that on 20 June 2012 the father became intoxicated and belligerent. She went to bed in the spare room but could hear the father frequently going back to the wine cask to top up his drink and eventually he appeared in the doorway and repeatedly said that she was shit, she came from shit and her family were shit and that this continued for some time.
The mother said that she got out of bed and began packing her DVD’s into a box. She said that the father was lying in his bed by this time and abused her for making a noise. She said that she told him that she had made a big mistake trusting him and intended to put her belongings into storage. She said that the father bounced out of bed after calling her a slut and punched the wall putting his fist through it saying “That’s what I want to do to your head.”
The mother said that two days later the father came home from work and began abusing her and yelling and this continued for hours. She said that there were many occasions when the father would follow her around the house for hours calling her degrading names such as slut, tunnel, ganger, skank and whore. She said that sometimes she ignored him and sometimes yelled back.
On 2 July 2012 the mother purchased a trailer and began packing up her things.
The mother said that on 6 July 2012 the father was calling her degrading names and she reached across and grabbed his shirt and yelled at him “why can’t you leave me the fuck alone, you psycho fucking mental case.” The mother said that she told the father she was doing the best she could to leave as fast as she could.
In his affidavit the father alleged that on the evening of 6 July 2012 when he asked the mother about what arrangements she had made for X and Y the mother rushed over and pushed him with both hands onto his back on the floor and stomped on his chest with her right foot. He said that he went to bed but was unable to sleep due to the pain in his chest. He alleged that the mother stayed up drinking wine and on several occasions came into his room and shouted that he was a scab and was kicking her and the girls out.
The father alleged that on 13 July 2012 his chest was so painful that he took time off work and went to (omitted) Hospital. He said that he told staff he had injured himself moving a freezer because he didn’t want to get the mother into trouble with the police. He said that he had a soft tissue injury. When asked during cross-examination why he gave false information to the hospital he said that he was “trying to protect Ms Gregory”.
The mother denied that she pushed the father or stomped on his chest and said that the father contacted her in Queensland and told her that he had injured his chest moving a freezer. The father was not a witness of credit and the mother made frank admissions about other things she did to the father, for example punching him in the nose and throwing the beer bottle which struck him in the forehead; she even admitted pushing the screen door into him and causing him to hit his head which only arose during cross-examination. I accept her denial that she stomped on the father’s chest.
The maternal grandmother said that in mid-2012 the mother rang her saying that the father was tormenting her and drinking non-stop and that she had never felt so scared for the safety of her children.
On 7 July 2012 the mother took the children to Queensland and stayed with the maternal grandmother until 17 July 2012 when she returned to the father’s home.
The mother said that after she returned the arguing continued and on 20 July 2012 the father was intoxicated and was trying to pick X up. She said that later in the evening while she was bathing Y she heard the father yelling at X in the kitchen.
The mother said that on the evening of 23 July 2012 the father was intoxicated and was swearing at her in front of the children and she left the home with the children and stayed overnight with friends.
The mother said that she returned with the children at about 8.00am the next morning to collect belongings and an argument ensued. She said that the father grabbed her around the lower jaw several times and yelled “I will smash you in the head” a number of times and kept calling her a “fucking slut”. She said that on one occasion he let go of her jaw and pushed her in the face with an open palm. The mother said that the father smelt of alcohol and was frothing at the mouth.
The mother said that the father eventually left in his work van but as he did so he yelled out “I am going to get a gun and shoot you in the fucking head” and also said “I’m going to get a sniper rifle, you won’t even see it coming.”
The mother said that she was holding Y during the incident and that X and Z were also present.
The mother called police and the father was charged with assault and intimidation and an ADVO made for the protection of the mother and children. Police recorded that when they attended the mother “appeared upset and distressed by the situation, breaking down and crying a couple of times.” They also recorded that she said that she was fearful that the father would follow through with his threats.
Strangely, given that he was later convicted of the assault and must have realised the importance of dealing with this incident in his trial affidavit, the father said absolutely nothing about it other than to say that something occurred and he regretted it. He did not mention the charges, the ADVO or his convictions.
The answers the father gave in cross-examination about what happened on 24 July 2012 were an interesting example, as was his evidence about the bed incident, of him gradually changing his story and making some semi-admissions before retreating into denial.
The mother alleged that the father grabbed her by the lower jaw several times and the father’s response when cross-examined by the mother’s counsel was as follows:
I didn’t grab her lower jaw - I pushed her to create distance as she struck me down the side of my face
I pushed her with open palm in the face. As she struck me I pushed her away with an open palm.
During cross-examination by the solicitor for the Independent Children’s Lawyer however the father was asked to read the police report of the incident and to indicate whether there was any basis of truth in it. He said as follows:
Some basis. I did grab Ms Gregory by the bottom of the jaw and push her back as I took a step back.
The father did not accept however that he had done anything wrong and said:
I was convicted on the basis of what Ms Gregory said not what I did.
The mother alleged that the violence did not end when the relationship ended. She said that in mid-August 2012 she went to the father’s home with Z’s father Mr L at a pre-arranged time to collect some of her possessions. She alleged that the father said that he was going to snap her fucking neck. The mother was not challenged about this evidence.
The mother alleged that the father had been stalking her since separation and had been driving up and down her street even though she had been at pains to keep her address secret from him. She said that after she sighted the father in her street her car was keyed on two occasions, she heard a sound in the night and in the morning found that her windscreen was chipped (early October 2013) and on 31 October 2013 discovered that one of her tyres had a slow leak. The mother said that later she discovered that her address had mistakenly been placed on a response document filed on 5 September 2013.
The mother said that she believed that the father was responsible for the slow leak in her tyre because her tyre was coincidentally damaged shortly before the date for a court appearance and also because during the relationship she found a screw in her tyre and the father admitting having done it and apologised and paid for the tyre to be fixed.
The mother also alleged that on Mother’s Day 2013 she found an axe embedded in her front lawn.
The mother alleged that X had recently come home saying that the father was going to get a gun and shoot her and come in the gate and take X’s toys.
The father vehemently denied responsibility for any of these post-separation incidents although he did not seek to call a case in reply to deal with the allegation about the screw which emerged during the mother’s cross-examination. He vehemently denied any campaign of harassing the mother and denied making threats which X had overheard.
The solicitor for the Independent Children’s Lawyer and the father’s counsel drew attention to the following things with a view to casting doubt on whether the mother was telling the truth about having been a victim of family violence:
i)The mother only rang the police on two occasions during the relationship, in September and October 2009 when she did not follow through with getting them to attend and once on 24 July 2012, the day the parties separated.
ii)The mother told hospital staff in May 2010 when she was pregnant with X that there was no domestic violence in the parties’ relationship.
iii)The mother continued her relationship with the father with some separations until 24 July 2012 despite alleging that there were ongoing problems with the father assaulting her and consuming vast quantities of alcohol.
These matters do not assist me one way or the other. They could mean that the mother is now making things up but it is not uncommon for victims of family violence not to call the police much if at all. The mother said that she did not tell the hospital in 2010 that there were problems with the father’s drinking because “at the time I cared for him and I didn’t want to say anything”. This was very plausible and credible evidence consistent with the behaviour of victims of family violence. The mother became tearful during cross-examination when asked about why she had remained in the relationship for so long and said that the father could be a very loving person, again a common response from a victim of family violence.
The father’s counsel and the solicitor for the Independent Children’s Lawyer also drew attention to the following with a view to suggesting that the mother may have been the perpetrator of violence and that she had an alcohol problem:
i)The mother told a doctor in August 2008 that “when confronted by a situation that somebody is attacking her: she “will stand up to the challenge.”
ii)The mother tripped over a chicken coop wire during a party injuring her foot, by implication because she was intoxicated.
The mother’s statement to the doctor is consistent with her own evidence that she forcefully confronted the father about his drinking during the relationship but it would be unsafe for me to conclude that it means that she was likely to be physically violent in a confrontation and there was no evidence that the mother was intoxicated when she tripped over the chicken coop.
I am also satisfied that the mother’s evidence about the father’s behaviour during the relationship should be accepted.
The mother was a good witness who did not shy away from providing a complete version of what happened even when it did not paint her in a good light. She was not successfully challenged in cross-examination while the father was evasive, inconsistent and generally not a witness of credit. The evidence of the maternal grandmother corroborated the mother’s claims about violence and the evidence of the paternal grandmother corroborated the mother’s claim that she had sought help from the paternal grandparents during the relationship in respect of their son’s behaviour.
The paternal grandmother said that her family had welcomed the mother into their lives when she commenced a relationship with the father. She said while the parties were living together she received 5 or 6 calls from the mother in the middle of the night saying words to the effect of:
Come and get your fucking son. He’s drunk and he’s hitting me.
The paternal grandmother said that during the calls the mother would be hysterical, screaming and swearing.
The paternal grandmother alleged that on the first occasion the paternal grandparents went over and found the mother affected by alcohol but not the father. On the other occasions they found both parties affected by alcohol but found that they had resolved their situation.
There are also many other reasons to believe the mother overall including the photographs depicting her injuries, the photographs depicting the damaged bed, the admissions in the notes the father wrote, the partial admissions by the father during cross-examination to some physical actions ie with the bed and pushing the mother and grabbing her jaw and the father’s conviction for assault and intimidation in 2013.
On the basis of the evidence as a whole I am satisfied that the father perpetrated family violence on many occasions. The violence took the form of physical violence, damage to property, threats and repeated derogatory taunts.
It was clear from the father’s answers during cross-examination, especially on the two occasions when he changed his answer part way through, that it is not the case that the father was so drunk that he cannot remember what he did. He does remember and he refuses to accept responsibility and his refusal to acknowledge that he committed acts of family violence even when no other interpretation is open on his own evidence causes me grave concern.
The father is deluding himself. When he yelled abuse and threats at the mother, punched her in the face and pushed her into a wall and grabbed her by the jaw he was not acting in self-defence. These were assaults pure and simple. His upending the bed, damaging it and putting the mother at risk was an angry uncontrolled violent reaction.
Whether or not the bed or mattress fell on the mother the father’s own evidence was that he followed the mother into the bedroom and upended and damaged the bed. How can he class that as self-defence? His own evidence was that he damaged a wall when angry about not being allowed to sleep.
The father has also been violent to the children. X was in the mother’s arms when the father punched her in the face in 2010 and she fell to the floor with the mother and her head struck the mother’s shoulder. The mother was holding Y when the father grabbed her jaw on 24 July 2012 and X was nearby. Exposing children to violence is an act of family violence.
That is not to say that the mother is without fault. She drank alcohol with the father despite knowing about his drinking problem. She is not a shy or submissive person and is not afraid to stand up for herself. She struck the father in the nose in October 2009. The April 2010 incident was preceded by the mother confronting the father. She confronted him about his drinking and was tipping out his alcohol onto the lawn and throwing down a bottle which struck him in the forehead.

The mother punched the father in the face to get him off her after they wrestled in the hall. She admitted pushing the screen door into the father causing him to hit his head which did not even appear in the father’s affidavit and while the injury to the father might have been an accident her action was aggressive. She was confrontational with the father about his drinking and his behaviour which exacerbated rather than defused the situation and she stayed in the relationship for too long and failed to act protectively of her children. I do not accept however that her behaviour and alcohol consumption were the same as the father’s or that she was an instigator of family violence. She was clearly in no way responsible for the assault the father perpetrated on 24 July 2012.
I accept the mother’s evidence of the threats the father made to her after separation in the presence of Mr L.
There are no eye witnesses to the keying of the mother’s car or the nail in her tyre or the implanting of the axe in the lawn but I take the following into account:
·While the mother did not see the father commit these acts she saw him driving in her street and there is evidence that he knew where she lived.
·The father’s denials carry no weight; he was dishonest about the whole issue of family violence.
·I accept the mother’s evidence that during the relationship the father put a screw in her tyre and later apologised for it;
I cannot find on the balance of probabilities however that the father did these things, troubling as the axe in the lawn on Mother’s Day is. It is just possible that the mother was the victim of a series of unfortunate coincidences. However the father was untruthful about his violence during the relationship and he only has himself to blame if the mother jumps to conclusions when her car is keyed, her tyre deflated and an axe appears in her lawn on Mother’s Day.
I will consider later what weight if any can be placed on things X has said.

Alcohol consumption

The father

In conversation with Mr N the mother made a bigger issue of the father’s alcohol consumption that she did about his violence although to be fair this may have been because she viewed his alcohol use as the trigger for violence. Mr N said as follows:
The Respondent mother desires that the children live with her, whilst she stated that she remains “terrified” that the father should have the children on an overnight basis, given her concern about the father’s historical consumption of alcohol. At the same time, it was the mother’s view that both paternal grandparents also consume alcohol excessively, whilst acknowledging that one of the grandparents always does not consume alcohol when they are socialising.
The mother alleged that the father was a “self-confessed alcoholic.” She was not challenged about her evidence that he had a secret stash of alcohol, that he drank vodka disguised as a water bottle and that she had observed him driving while extremely drunk.
The mother and the maternal grandmother, and neither was challenged about this either, said that the father drank beer and wine during the relationship as well as bourbon.
The maternal grandmother said that she was concerned about the father’s drinking from the time she met him and that he would drink quickly and keep drinking until he and the mother left her home.
The maternal grandmother gave evidence of being present on an occasion when the father and mother were arguing because the father was drunk and could hardly walk straight or talk properly and the mother wanted him to stop drinking. She said that the father was drinking beer and bourbon.
The maternal grandmother said that the mother eventually went to bed but she stayed up because she was worried that the father was still drinking and that until 4.00am the father kept trying to get around her to get to the cask.
The maternal grandmother gave evidence as outlined in the previous section of the judgment about the father’s drinking which was connected with incidents of violence.
The maternal grandmother alleged that prior to the final separation the mother told her that she had caught the father drinking red wine at 7.00am after he had only had a couple of hours sleep and that he had started to drink in the afternoon and had a bag full of empty Wild Turkey cans hiding in his work van. She said that in mid-2012 the mother rang in tears asking if she could come and stay with her for a few days as the father was drinking non-stop and tormenting her.
I accept the evidence of the mother and maternal grandmother about the father’s drinking.
Mr N asked the father about his alcohol consumption during the family report interviews in July 2013 and said as follows in his report:
Mr Aston acknowledged that he consumed alcohol excessively in his twenties, but he was quick to say that both parents in these proceedings consumed alcohol excessively, and that on average they could consume “a bottle of bourbon between them every second night”.[4]
[4] Family Report dated 16 July 2013, paras 17 - 19
Mr N also said as follows:
Mr Aston advised the Family Consultant that he attended AA on four occasions during the parties’ relationship, confusingly advising the Family Consultant that he did this despite not believing that he had a drinking problem. The father went on to say that he was “dry” for a seventy two day period.[5]
[5] Family Report paragraph 27
The father provided minimum information about his drinking during the relationship in his affidavit. He admitted only to drinking bourbon and not to consuming the range of alcohol alleged by the mother. He excused his drinking by suggesting the mother drank just as much and he said that he went to AA to placate the mother.
The father expressed no regret for his drinking during the relationship nor did he demonstrate any insight into how it may have affected the lives of the mother, X, Y and Z.
Mr N said that it was confusing that the father admitted that he [and allegedly the mother] drank a bottle of bourbon every second night and that he attended AA on four occasions but asserted that he did not have a drinking problem during the relationship, but this is on par with the father denying that he was a perpetrator of family violence while at the same time making admissions which established that very thing.
Just as the father is in denial about the fact that he perpetrated family violence he is in denial about the fact that he had an alcohol problem during his relationship with the mother. The severity of the problem is readily apparent if reference is made back to the family violence section of the judgment, because the father was intoxicated during every incident except the final assault and even then the mother had reason to believe that he had been drinking prior to that assault.

The mother

The mother admitted consuming alcohol on occasions during the relationship but her evidence was that she did not drink when she was pregnant (which comprised 18 months of the 36 month relationship although the period during which the mother knew that she was pregnant may have been somewhat less) and consumed moderate amounts of alcohol (ie no more than two drinks at a time) at other times.
The mother has a conviction for PCA in 1993 but has never attended AA and vehemently denied the allegations by the father that she drank as much as he did during the relationship.
The mother was asked about two entries in the subpoena material which suggested that she had been involved in incidents when either intoxicated or drunk namely:
·She attended (omitted) Hospital in 2008 and said that she had hurt her ankle the previous day but couldn’t remember what happened as she was drunk;
·Ambulance records note an attendance by ambulance officers on the mother in April 2009 after she was assaulted at a club. She is stated to have been hostile to the ambulance officers and hospital records indicate that she admitted having had 8 drinks over a period of 6 hours.
During cross-examination the mother was asked about her drinking in 2008 and she said that she had been a binge drinker when she was younger and had drank 6 plus drinks at a session on occasions prior to 2009.
The paternal grandmother asserted that the mother was intoxicated on two occasions when the paternal grandparents attended her house after she called them for help but the paternal grandmother accepts her son’s version of events about violence and drinking during the relationship despite having been called by the deeply distressed mother on at least two occasions and asked for help and I am not satisfied that her evidence on this issue is reliable.
The mother was generally a witness of credit and I incline to the view that she was reasonably truthful about her alcohol consumption. However the fact that the mother consumed alcohol at home when the father had a drinking problem was an unfortunate combination of circumstances. The mother must accept that her choice in this regard played a part in the parties having a destructive relationship. This does not excuse the father however or shift a share of the blame for the father’s violence onto the mother.

Drug use

The mother told Mr N that the father used and cultivated cannabis during the parties’ relationship. She also alleged that the police removed two cannabis plants from the home when they arrested the father in July 2012 but this is not mentioned in the police records tendered to me, the father was not charged and the mother was not present when the father was arrested and I must disregard this evidence.
The mother alleged that the father had been using cannabis contemporaneously with two of the violent incidents she described.
The mother said that on (omitted) 2012 the father went to his brother’s birthday party and when he returned home the next day she was concerned that he was acting erratically. The mother said that she confronted him and said that he had obviously had more than just marijuana and alcohol and that he boasted that he had been snorting lines of cocaine with his relatives and didn’t even have to pay for it.
During cross-examination the father admitted that he had told the mother that he had been using cocaine but said that this was a lie and that he said it because “coke” was the mother’s drug of choice.
This was a nasty comment as the father did not make any allegations in his trial affidavit about the mother using drugs let alone about her using cocaine.
The father did tell Mr N that he had tried ecstasy with the mother and that they had used cannabis three times together.
Mr N did not comment on the drug use allegations about the mother. He observed that:
It remains unknown whether cannabis is or was a factor for the father.
It is of considerable concern to me that a number of allegations were made about drug use in this case but no drug testing orders were ever sought in respect of either parent nor was the issue explored at trial, especially given that the father has a conviction for possessing a prohibited drug.
The mother was a witness of credit and I accept her evidence about the father using cannabis and having the plants, but whether the father’s use of cannabis was an occasional thing or something more serious and whether the father uses drugs at present I am unable to say. It may be that the mother occasionally used cannabis as well; she did not deny it. More than that I cannot say.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and to determine the children’s best interests I must have regard to the matters in s.60CC(2) & (3) of the Family Law Act 1975.
S.60CC (2) contains the primary considerations and s.60CC (3) the additional considerations. Often they are dealt with in that order but in this case it is preferable to make findings about the additional considerations before turning to the primary considerations.
The first of the additional considerations is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
X and Y are too young to have a view about parenting arrangements.
I must consider the nature of the relationship of the children with:
i)each of the children's parents; and
ii)other persons (including any grandparent or other relative of the children).
The father’s evidence was that the children were very loving and affectionate toward him and had a good relationship with him and the paternal grandmother agreed that this was the case. However the father was not a witness of credit and the paternal grandmother was an apologist for the father and I must consider whether this claim is corroborated by other evidence.
The contact centre notes in respect of the visits between March and September 2013 record the children interacting well with the father and Mr N said in July 2013 that both children were excited to see their father and that they “initiated affection with him which the father reciprocated.”
The mother agreed that the children loved the father and said that X began saying that she missed him a few weeks after the mother stopped time in April 2014.
There are references in the contact centre notes to the father threatening to smack X which are of concern and the mother gave evidence of some comments by X after returning from time with the father which are potentially concerning but these are better dealt with in the context of considering the father’s parenting capacity.
There was no evidence that X or Y were afraid of the father or reluctant to spend time with him and to that extent I am satisfied that they have a good relationship with him.
Another aspect of this is that the father does genuinely seem to wish to spend time with the children.
Prior to the parties’ separation the paternal grandparents cared for the X and later Y one day each week. Between December 2012 and August 2013 the paternal grandparents attended with the father during time supervised by (omitted). They have supervised the father’s time for much of the period between August 2013 and the present. It was the father’s case that the children had a good relationship with the paternal grandparents and the mother did not dispute this.
The father’s family live predominantly on the (omitted); his parents live at (omitted) and his brother and his brother’s three children live at (omitted). The father maintained that the children also had a good relationship with his brother and his brother’s children. I cannot assess that claim on the state of the evidence. It may well be true and in any event nothing turns on it.
It was not in dispute that the children had a good relationship with the mother. She is their primary attachment figure.
I cannot assess the children’s relationship with the maternal grandmother because it was not the subject of any evidence. However no complaint was made about it and nothing turns on this issue.
Mr N observed that “X interacted positively with Z, who was certainly nurturing in her approach with X” and I am satisfied that both children have a good relationship with their older sister.
I must consider the extent to which each of the children's parents has taken, or failed to take, the opportunity:
i)to participate in making decisions about major long-term issues in relation to the children; and
ii)to spend time with the children; and
iii)to communicate with the children;
The father said that X spent every second weekend with him when he and the mother were separated between Christmas 2010 and February 2012. The mother did not directly address this in her affidavit but I accept that it may have occurred. The father also said that during 2011 he and the mother sporadically renewed their relationship and he would sleep over at the mother’s home and he would have contact with X at these times.
The mother said in her affidavit and during the hearing that the father showed little interest in and had little involvement with Y prior to separation. However Y was only 9 months old at separation and the mother had been her primary carer and the father had been commuting to work and I am not convinced that this establishes that the father was uninterested in her as such.
The children have lived with the mother since separation and she wants that to continue and the father has always sought to spend time with them so this consideration does not assist me.
I must consider the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children.
Apart from a reference in passing during the mother’s cross-examination nothing was raised about child support.
I must consider the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from:
i)either of his or her parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The change proposed by the father was the children spending longer periods of time with him and time becoming unsupervised.
The children have spent very little unsupervised time with the father since separation.
The mother also proposed a change namely unsupervised time for whole weekends and during school holidays when Y commenced full time school.
I cannot assess the likely effect of any of the proposed changes on the children until I make findings about all of the s.60CC (2) & (3) matters.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
Both parties live on the (omitted) and this is not an issue.
I must consider the capacity of each of the children's parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including their emotional and intellectual needs.

The father

The father is 37 and lives in (omitted). He is employed as an (occupation omitted) by a firm in Sydney and commutes between the (omitted) and Sydney for work. He said that he left home at 5.30am and arrived home at about 4.30pm. He told Mr N in July 2013 that his work was flexible and that he was about to commence having every Wednesday off, presumably to allow him to have time with the children each Wednesday.
The father told Mr N that a friend and the friend’s 6 year old child spent some time at his house but that he was not in a new relationship. The issue of whether the father had re-partnered or was living with anyone else was not the subject of cross-examination at trial.
The father maintained that he was a capable parent who was attentive to the children’s day to day needs when they were in his care and who played with them and took them to the park and the beach.
The mother alleged that spending unsupervised time with the father in early 2014 had a negative effect on the children in that:
·X came home reporting that the father was making threats about coming to the home and killing people and had regressed in toilet training and was having nightmares.
·Y was clingy around the time of visits and insisted on sleeping in the mother’s bed.
·Y had emotional meltdowns when told that it was time for a visit with her father.
It is difficult to know what to make of this. The mother is highly suspicious of the father (for which he only has himself to blame) and could be overreacting and some of the issues could have been to do with Y’s age. The mother did not suggest that any difficulties manifested themselves between June 2014 and October 2014.

The solicitor for the Independent Children’s Lawyer also submitted that it was a non-issue first because the parents were no longer in a relationship and as long as they were kept apart at changeovers the children would not be exposed to any risk of violence between them and second because she accepted the father’s assurances about his current alcohol consumption and further suggested that any risk posed to the children by his alcohol consumption could be alleviated by an order that he consume no more than one alcoholic drink per hour when the children were with him.
I do not accept these submissions.
There are many risk factors for the children if they spend unsupervised time with the father.
The father denied perpetrating family violence and as a result he is incapable of developing any insight into the triggers (including but perhaps not limited to alcohol consumption) which set him off and developing strategies for dealing with problems other than violently.
I do not accept that the sole problem in this case was the unfortunate combination of the mother and the father. While the father has a drinking problem he could well be violent in other situations.
The father continues to drink. He made minimum admissions about the extent to which his drinking had been a problem in the past. He has gone to AA and he went to AA during the relationship but he said that he did so to placate the mother. He did not take part in any drug and alcohol counselling until ordered to do so after the release of Mr N’s report and the report from the drug and alcohol counsellor is of no value as it depends on his self-report.
I can place absolutely no weight on the father’s evidence that the court can be assured that he will only drink in moderation in the future.
I accept Mr N’s opinion that the only safe outcome is for the father to be abstinent and he has not reached a point in his life where he is willing to embrace this.
The father became seriously drunk on numerous occasions during his relationship with the mother. He was out of control, he made threats and yelled abuse and he was physically violent. He was so drunk on the night the mother came home when X was a baby that she was unable to wake him and had to break into the house.
The father has perpetrated family violence in the presence of the children. X was in the mother’s arms when she fell to the floor after the father punched the mother in the face and her head hit the mother’s shoulder. The mother was holding Y on 24 July 2012 and all three children either saw or heard the violent argument on that occasion. The presence of children is obviously no deterrent to the father once he loses control.
The father yelled abuse and made threats while intoxicated during Z’s birthday party in (omitted) 2011 despite the presence of other parents.
There was no evidence which satisfies me that the father has turned into a different person or has dealt with his alcohol problem.
The Independent Children’s Lawyer proposed that an order be made that:
Without admissions the father shall be restrained from consuming more than one standard drink per hour, 6 hours prior to any time he spends with the children and during such time as the children are in his care.
It would be absolutely pointless making such an order. How could it be enforced? It might be worth making it if it was coupled with an undertaking by a supervisor to report a breach of it, to ensure that if the children spent supervised time with the father he did not get out of control, but it would be of absolutely no value unless another trusted adult was present who could monitor compliance and even then the utility of it is seriously questionable.
If all the stars align and the father does not re-partner and does not consume alcohol while the children are in his care and nothing happens while the children are with him which causes him to lose control and lose sight of the children then the children will not be exposed to family violence or neglect but in my view the father does pose a risk to the children because there is simply no guarantee that all the stars will align.
The father is 37. He may well re-partner. There is nothing to suggest that he understands the nature of his alcohol problem and he does not accept responsibility for his violence.
The children are 3 & 4 years old and are totally incapable of protecting themselves or even speaking out with any chance of being believed if something goes wrong. The father is intent on maintaining the fiction that he was a victim of family violence not a perpetrator and that the mother is getting into the children’s ear and orchestrating them making complaints against him. He would be strongly motivated to deny the children’s reality if they reported anything of concern to the mother. There is no evidence that he has the children’s interests in mind to the point where he would be willing to act protectively of them if he felt his drinking once again slipping out of his control.
I do not accept the submission by the solicitor for the Independent Children’s Lawyer that the children would not be at unacceptable risk of harm at present if the children spent the extensive time, including two or more overnights with the father unsupervised, which was what the father’s counsel and the solicitor for the Independent Children’s Lawyer proposed.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act 1975 the court is required to apply a presumption that the parties have equal shared parental responsibility for the children absent a finding that one of the parties has abused the children or committed an act of family violence.
The father has committed acts of family violence and the presumption does not apply.
The father sought an order for equal shared parental responsibility and the court can make such an order even though the presumption does not apply. The Independent Children’s Lawyer supported such an order and Mr N stated that “there was no overt rationale to oppose the parents having equal shared parental responsibility.”
Mr N did not explain what led him to that conclusion and at the time he made this statement the father had not yet been convicted of the assault charge and was denying responsibility for family violence.
I do not accept that an order for equal shared parental responsibility is appropriate.
The father has no respect for the mother and the parents have no capacity to communicate effectively. They were not able to successfully manage the issue of X’s perceived dairy intolerance and they have squabbled about a number of other post-separation issues to do with the care of the children.
The father was violent to the mother during their relationship and he refuses to acknowledge it. In the face of all reason he insists that he was the victim. The mother said that she was fearful of the father and I have grave misgivings about whether he has not in fact been responsible for making threats against the mother and stalking and intimidating her since separation.
I am not satisfied that the parents have the capacity to discuss and attempt to reach agreement about major long terms issues concerning the children or that it would be reasonable to require the mother to do this.
By agreement the mother will remain the children’s primary carer. Absent the issue of exposing them to hearing about incidents which occurred during the relationship and videoing their disclosures post separation she has done a good job of parenting them since separation. The appropriate order is that the mother have sole parental responsibility for the children.

The family report writer’s recommendations

The Family Report was prepared in July 2013 when X was not yet three and Y not yet 2. The father had been charged with assaulting the mother but had pleaded not guilty and the criminal matter was awaiting hearing.
The father vehemently denied to Mr N that he had perpetrated family violence and indeed claimed that he was a victim. Mr N gave this claim some credence in that he concluded that the relationship was highlighted “seemingly by some acts of violence perpetrated by each of the parents” although he commented that “X was exposed to some form of aggression perpetrated by the father on one occasion and it would appear that this had made an indelible impression on her.”
At the time of the report interviews the father was spending time with the children under professional supervision and Mr N said as follows:
………. it is the view of the Family Consultant that the father could spend overnight time with the subject children whilst under the supervision of the paternal grandparents, and once he has been engaged in counselling for his issues with alcohol and other drugs, and the respective clinician is satisfied that the father has acknowledged and addressed his issues, then the father can commence spending overnight time with the children on an unsupervised basis. [15]
[15] Family Report paragraph 55
The father’s counsel and the solicitor for the Independent Children’s Lawyer placed weight on the fact that Mr N seemed to conclude that the violence between the parties was largely mutual. However since the report was released the following has occurred:
·The father has been convicted of the criminal charges.
·I have made findings about the father’s culpability for family violence during the relationship.
During cross-examination Mr N said that the fact that the father had been convicted was relevant insofar as it made it inadvisable that the children be exposed to any interaction between the parents but said that it did not impact on his recommendation about the children spending time with the father.
However he also said that if the court was satisfied that the father had perpetrated serious family violence on the mother and minimised it then minimal time – recognition time only – might be indicated.
Mr N also expressed the view that someone with the father’s history of problematic alcohol consumption could not usually safely continue to drink.
As far as time relevant to the children’s ages was concerned Mr N consistently referred to the desirability of some mid-week afternoon time but did not give unqualified support to overnight time during the week. He expressed the view that whether that worked depended on the parents’ capacity to communicate.
He said that if there were no risk factors then when Y was three he recommended alternate weekends Friday to Sunday or Monday and afternoon time. He said that three consecutive nights would be a bit much for Y at present but might be appropriate when she was between 3 and 4.

Conclusion

The mother is not perfect. Alcohol has got her into some trouble in her life and she admitted that she binge drank at one time.
The mother consumed alcohol with the father even after becoming aware that he had a drinking problem and her response to his excessive drinking was to abuse and confront him. Sometimes this was appropriate, for example the father could not be allowed to verbally abuse and threaten the mother while drunk at Z’s party in 2011. However on at least two of the occasions when the father was violent the mother’s conduct inflamed the situation and violence might not have occurred had the mother let the father become either noisily or quietly drunk or let him sleep off his intoxication.
The mother must accept some part of the blame for what X and Y (and Z) were exposed to during the relationship. However her alcohol consumption was never at the same level as the father’s and her confrontations with father were not abuse of the father for its own sake but misguided attempts to get him to stop drinking by taking his alcohol away and upbraiding him.
The mother has overall done a good job in difficult circumstances parenting the children since the parties separated more than two years ago, the children are very young and are primarily attached to her and there is no question but that the children should continue to live with her, not, as the father opined, because the court favours mothers but because it is clearly in the children’s best interests that they continue to live primarily with her.
This is not even remotely a case where any sort of shared care arrangement could be considered.
The issue then is what to do about the father’s time with the children and it is an extraordinarily difficult issue.
The problem in this case is how to craft orders in light of:
·the obvious risks to the children if the father becomes drunk or drunk and violent while they are in his care;
·the risk to the children’s psychological and emotional well-being of spending extensive time with someone who denies that he has been violent and cannot respond appropriately if the children raise the issue;
·The risk of the mother being hyper vigilant and overreacting to things the children say because of the distrust of the father which his past violence and drinking and intransigence about accepting responsibility for his violence engenders.
The mother made it clear that she did not want to prevent the children having a relationship with the father. She did not suggest that his time be recognition time only, one possibility put forward by Mr N, and this would in any event be a sudden and dramatic change for the children and would cut them off not only from the father but very possibly from meaningful contact with their extended paternal family.
The mother proposed that until Y commenced kindergarten in 2017 the children spend time with the father on one weekend a month overnight from Saturday to Sunday supervised by the paternal grandparents despite the issues she raised about them.
In my view if any overnight time is to occur supervision of the children’s time with the father is essential and if the supervision is by the paternal grandparents the children may not even realise that the time is being supervised.
I intend to make orders to this effect. It will ensure that the children see the father regularly enough to maintain a bond with him, a bond which the mother is keen for them to maintain despite his stance about the family violence, and making the weekend time once a month will limit the strain on the grandparents of providing supervision.
The mother also proposed that the children spend time with the father once each fortnight for the day on Wednesday but I intend to order that the time each fortnight during the week also be overnight with supervision partly because time together during the day for both children will cease to be feasible once X commences kindergarten.
I accept that the paternal grandparents have lives of their own and will not be and cannot be expected to be always available to supervise the father’s time. The solution to this however is not to move to unsupervised time too early but to order that the father’s time not occur on those occasions when neither of the paternal grandparents are available to supervise it.
The mother proposed that in 2017 time be extended to be from Friday to Monday and become unsupervised.
The solicitor for the Independent Children’s Lawyer branded this proposal intellectually dishonest but this is a harsh assessment.
I agree that the proposal is inconsistent with the concerns put forward by the mother but I consider that it speaks of a parent trying desperately to come up with some solution in circumstances where they have concerns about their children’s safety but do not want to deprive the children of the opportunity of having a relationship with the other parent if this can be avoided.
The mother has consistently throughout these proceedings expressed a concern about the children spending time with the father overnight because of his alcohol consumption. She said this to Mr N in July 2013 and it is consistent with the orders she consented to in August 2013 which provided for the paternal grandparents to supervise the father’s time with the children between 7.00pm and 7.00am once overnight time commenced. The rationale she put forward for the orders she proposed from 2017 onwards was not that the risk would necessarily have abated by then but that the children would be two years older and would better be able to speak up and be believed.
The mother said as follows during cross-examination:
Would I ever feel comfortable? I don’t want my children not to spend time with their father is the answer. I would hope that at that point if he did anything the evidence could be brought forward. At this stage they are too young.
It may well be in the back of the mother’s mind that she can always step in and withhold the children if she considers that their safety requires it, which is something she has done in the past.
However to put such orders into place is risky. Not only can I have no confidence that things will be different in two years’ time, it will set up a bridgehead which the father is likely to defend at all costs and the mother might find it difficult to establish that the children are at risk simply on the reports of a 4 & 6 year old and face a Rice & Asplund argument if she tries to reopen the issue of the time the children spend with the father.
I can understand the rationale for the mother’s proposal but as I made clear during final submissions I am not bound by the proposals of the parties and I cannot bring myself to make orders which might place the children at risk in two years’ time.
Orders for long term supervision by the paternal grandparents are not tenable and there is no sign at present of the father accepting responsibility for his violence and thus doing things such as attending courses and ceasing drinking which might remove the risks for the children of spending lengthy and overnight unsupervised time with him.
I do not intend to make the orders the mother proposed but I intend to order that once Y commences kindergarten, and commencing at an earlier time at the election of the father, the father spend time with the children each alternate Saturday from 10.00am to 4.00pm with changeover to take place at (omitted) Children's Contact Centre.
The father will be restrained from consuming alcohol while the children are with him or for twelve hours prior to them coming into his care. There is reason to be moderately hopeful that he will not risk his time with the children ceasing altogether by either the Contact Centre observing him to be intoxicated or smelling of alcohol when he collects them or by drinking while the children are with him, and limiting the time to one day will hopefully make this abstinence achievable for him.
This will mean that the children cease spending overnight time with the father but it will also remove the need for supervision and given the alcohol issues I am not prepared save for the two occasions I am about to mention to make an order for unsupervised overnight time. The mother proposed that the children spend unsupervised overnight time with the children at Christmas and Easter and despite my misgivings because these are limited and isolated occasions and because the mother proposed it I will make those orders.
The orders as drafted for 2017 onwards lessen the likelihood of contravention proceedings in the future but carry with them an inherent risk of further parenting proceedings but in my view it is the outcome which is in the children’s best interests.
I intend to order that time otherwise be as agreed between the parties in writing. The mother is very protective of her children but her older child Z sees her father regularly and the mother clearly values children having a relationship with their father. There is some reason for confidence that if the father reaches a point in his life where he ceases drinking (and ideally expresses remorse for his violence) then he and the mother might be able to reach an agreement about him spending more extensive time with the children.
The father did not seek an order about telephone communication but the solicitor for the Independent Children’s Lawyer proposed an order that the father have telephone communication with the children on no more than three occasions each week.

The father will not be seeing the children frequently and it is appropriate to make an order for telephone communication but I intend to order that it occur once a week not three times a week given the issues between the parties.
I am concerned that the possibility that the father may be affected by alcohol when he rings but this is an issue which I will have to leave it to the mother to manage.
The parties sought a continuation of an order that they use a communication book. I am somewhat reluctant to make that order because a communication book previously in use was tendered in evidence and it was not used simply to provide information but to berate the other parent. However these parties do not have a capacity to just ring each other up to discuss issues about the children and in the interests of ensuring that some information passing between them I will make the order.

I certify that the preceding four hundred and thirty (430) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 6 March 2015

[2015] FCCA 318

6 March 2015

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