B and D (No.2) - [2007] FMCAfam 945

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & D (No.2)

[2007] FMCAfam 945

FAMILY LAW – Parenting arrangements for child aged 5 ½ – family violence – whether unsupervised time with the father poses unacceptable risk to child – whether appropriate to commence supervised time between father and child – whether mother should be permitted to relocate to Q with the child.

Family Law Act 1975 – ss.60CC(2)(3), 61DA, 65DAA

Masling & Milliken [2007] FamCA1230

Applicant:

M L B

Respondent:

M G D

File number:

DNC 196 of 2007

Judgment of:

Terry FM

Hearing dates:

22, 23, 30 & 31 August 2007

Date of last submission:

31 August 2007

Delivered at:

Darwin

Delivered on:

16 November 2007

REPRESENTATION

Counsel for the Applicant:

Ms Bowen

Solicitors for the Applicant:

Bowen Lawyers

Counsel for the Respondent:

Ms Morgan

Solicitors for the Respondent:

Maleys Barristers & Solicitors

Counsel for the Independent

Children’s Lawyer:

Ms Orwin

Solicitors for the Independent

Children’s Lawyer:

Margaret Orwin

ORDERS

That the child of the relationship B J B born 28 April 2002 live with the mother.
That the mother have sole parental responsibility for the child.
That the mother be permitted to relocate the child’s place of residence to Q.
That the father’s time with the child be reserved.
That the mother send to the father no later than 31 December each year and 30 June each year
(i)a copy of the child’s school reports for the previous six months;
(ii)a recent photo of the child;
(iii)information about any significant educational, sports or cultural awards received by the child during the previous six months;
(iv)any other significant information about the child which the mother considers relevant.
That all applications are otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNC 196 of 2007

M L B

Applicant

And

M G D

Respondent

REASONS FOR JUDGMENT

Introduction

B B is five and a half years old. His parents have very different ideas about the future parenting arrangements which would be in his best interests.
B lives with his mother and at present he does not see his father at all. His mother wants to keep it that way. She says that this is best for B because the father is a violent person and B will not be safe if he spends time with his father. She also says that B remembers the father assaulting her while she and the father lived together, remembers the father being violent to B himself, is frightened of the father and does not want to see the father.
The mother wishes to move to T in Q with B as soon as possible.
The mother wishes to relocate to T because her two sisters live in the T area. The mother says that her parents are also likely to move to T. The mother says that she is presently living in fear of the father and wants to move to an area where there is no possibility of her running accidentally into the father or facing the prospect of him driving to her house and verbally abusing and threatening her.
The father would like to re-establish his relationship with B and he opposed the relocation. At the commencement of the final hearing, he sought orders which would see a reintroduction of his time with B supervised at Centacare, followed by commencement of unsupervised time and moving to him spending significant and substantial time with B.
At the end of the final hearing, the father’s position was that he should undertake counselling and anger management and parenting courses, that upon satisfactory completion of those courses he should commence spending supervised time with B, and that the proceedings should be adjourned for six months. He proposed that a further family report then be obtained and that his future time with B and the mother’s application to relocate should be considered again at the end of that time.
The father said that if B moved to Q now with the mother that would be the end of it, and he and B would never have a relationship.
If I find that it is better on balance to attempt a re-introduction, then B and the mother must stay here, at least in the short term. Both expert witnesses (psychologists Diane Knox and Stephen Ralph) were clear that if B went to T with the mother there was little hope of the relationship between B and the father surviving. Although the mother proposed that B have telephone communication with his father if he went to T this is simply not realistically likely to occur.

Documents relied on

The mother relied on the following documents:
a)Her Amended Application filed 6 June 2007;
b)Her affidavit filed 20 August 2007;
c)The affidavit of Diane Knox filed 20 August 2007;
d)The affidavit of L V B filed 20 August 2007;
e)The affidavit of J D filed 20 August 2007;
f)The affidavit of S-J L D filed 20 August 2007;
g)The affidavit of R T B filed 22 August 2007.
The mother also called Ms J N, Principal of H S Primary School, who gave oral evidence. The mother and all her witnesses were cross-examined.
The father relied on the following documents:
a)His Amended Response filed 14 August 2007;
b)His affidavit filed 14 August 2007;
c)His affidavit filed 27 August 2007;
d)The affidavit of N C filed 27 August 2007;
e)The affidavit of D J filed 27 August 2007;
f)The affidavit of B M filed 27 August 2007.
The father and his witnesses were cross-examined.
A family report was prepared by Mr Stephen Ralph and Mr Ralph was cross-examined.

Relationship history

The mother and father began living together in 1999. The mother’s children, S and J D, were about ten and nine when the parties started living together. The father’s children, B D and J D, were about seven and about two at this time.
The household set up by the parties in 1999 consisted of the mother, father and S and J D. B D was a frequent visitor to the household and J D a less frequent visitor, because he lived in V with his mother.
The mother and father have one child, B, who was born on 28 April 2002.
The parties separated on 12 November 2004 when the mother left the home with B after a violent incident between herself and the father.
Since separation, B has lived with the mother and has spent very limited time with the father. Pursuant to interim orders made by this court on 18 June 2007, the issue of B’s time with the father is reserved.

The parties’ current circumstances

The father is 46. He is employed as a stevedore and lives in H S. His son B, now almost 15, lives with him.
The mother is 39 and is engaged in home duties. She lives in P with B. P is adjacent to H S and B currently attends H S Primary School.

The evidence generally

I had some concerns about the mother as a witness. She was less than frank when questioned about the incidents which had led to her being barred recently from the H S Tavern. I do not accept the evidence she gave about those matters. J D and R B, whom I otherwise considered impressive witnesses, became vague and hesitant when asked questions about the mother’s drinking.
Another issue which concern me about the mother’s evidence is that in her initial affidavit filed in these proceedings, she led the court to believe that after the parties separated on 12 November 2004 the father did not see B at all.[1] This evidence was not true. The mother agreed at the final hearing that in early 2005 she had the domestic violence order, which had been taken out in November 2004, varied from a full no-contact order to a non-violence order. She stated that she did that specifically so that the father could see B. She stated that the father came around to her house on a number of occasions during 2005 to see B. No explanation was given by the mother for the conflict between this evidence and her previous evidence.
[1] Mother’s affidavit filed 14 June 2007 at paragraph 38
Another aspect of the mother’s evidence which concerned me was her lack of frankness about why she was currently seeing the psychologist Diane Knox. I was left with the feeling that mother was concealing something in relation to this matter, and have no means of assessing whether it was something relevant to this case or simply something peripheral which the mother did not want to share with the world at large.
Although I had difficulties with some aspects of the mother’s evidence, her evidence about the violence and abuse issues was credible. There was also ample corroboration from other witnesses of the mother’s allegations about the violence during the relationship and some corroboration for her evidence about threats and abuse by the father after the end of the relationship.
In particular, the mother’s children S D and J D gave evidence which corroborated some of the mother’s evidence about the violence. Each gave their evidence quietly and without rancour, and readily agreed in cross-examination that there were times they got along with the father and times they didn’t. They also readily agreed that during loud arguments they had heard their mother, as well as the father yelling and swearing. Their evidence was compelling. I accept their evidence.
I treat the father’s evidence in this matter with caution. At the start of the hearing, he was asked his occupation and said that he was a commercial helicopter pilot. It quickly became apparent that although the father said that he still has a licence to fly helicopters, he had not earned a living from this occupation for many years. During the time he and the mother were together he worked in security, and he is currently working at the wharf as a stevedore. This is what he told the family report writer[2]. His insistence on describing himself in court as a “helicopter pilot” is puzzling.
[2] Family Report paragraph 15.
Under cross-examination the father’s evidence was at times unresponsive, evasive and contradictory. His evidence about the firearms issue was a case-in-point.
The father was not careful about ensuring that his evidence was accurate. In paragraph 37 of his affidavit for example he asserted that he had never been violent to his children, yet admitted in oral evidence an incident where he hit his son B repeatedly with a garden rake, an incident which B ’s mother reported to Family and Children’s Services.

Relevant issues

There are a number of issues in this case which need to be determined to assist me in reaching a final decision. These issues are as follows:
a)What was the nature and extent of the violence between the parties during their relationship?
b)Was the father violent to the mother’s children S D and J D during the relationship?
c)Was the father violent to B during the relationship?
d)Has the father continued to verbally abuse and threaten the mother since separation?
e)Will B be safe with the father in future in an unsupervised environment?
f)What will be the psychological effects on B of re-introducing him to his father in a supervised environment?
I will now deal with each of these issues in turn.

a) What was the nature and extent of the violence between the parties while they were together?

It is the mother’s case that during the relationship the father was violent and abusive toward her on numerous occasions.
There was no dispute that on 12 November 2004, the father seriously assaulted the mother. He was subsequently convicted of assault occasioning actual bodily harm. It was his case however, that this was a one off incident which happened when he was tired and was pushed too far by the mother. He expressed regret for assaulting the mother on 12 November 2004.
The father denied that he assaulted the mother on a number of other occasions during the relationship. In effect his case was that there were many arguments between himself and the mother while they lived together but that they were verbal slanging matches in which each party gave as good as they got and that in the end he would walk away.
The father denied that he was an inherently violent person. He said that the relationship between himself and the mother was bad, that the mother drank too much and used drugs and showed no consideration for him. He pointed to the fact that he has no other convictions for assault and that he has been able to hold his temper in the difficult work of crowd control and acting as a security guard.
It was the father’s case that if the mother had injuries during the relationship (other than on the occasion of 12 November 2004) then she got those injuries from getting into fights in pubs.
While I accept that the father and the mother had many loud arguments and that the mother yelled and swore at the father, I do not accept the father’s evidence that he assaulted the mother on only one occasion.
It was generally agreed that in the early years the relationship between the mother and the father was relatively peaceful. The family unit had a common interest in pig hunting and riding quad bikes and the father took all the children hunting and fishing and involved J and B in motorbike riding.
There was a general consensus that things started to go wrong when the mother was pregnant with B in 2001.
The specific allegations made by the mother were as follows:
a)In the early months of her pregnancy with B, the father became agitated and angry, made accusations against the mother and hit her on the side of the head, which caused her to fall unconscious to the ground. The mother came around to see her children and mother standing near her. The father apologised the next day.[3]
b)When she was seven months pregnant with B, the father kicked her in the back with his knee and punched her in the right temple. When J yelled at the father, the father aimed a kick at J. The father apologised a couple of days later.[4]
J D saw this assault. He said that the father punched the mother after becoming angry thinking that the mother had put a hole in the wall. He said that the mother had a big swelling and red M on her face around the eye after the father punched her. J said that after the father punched the mother he then left the house with J, B and J and took them on a planned visit to the Jet Sprints at the speedway.
c)When B was six months old, the mother was sitting on the lounge with B when the father grabbed her face and twisted her nose and she was cut by her nose ring. The mother said that B was screaming, and that when she got up to try and get away, the father kicked her on the bottom with steel capped boots, while she was holding B. J was on the lounge and screamed at the father. The mother said that after this occasion she left the relationship for three months;[5]
d)On one occasion (date not given) the father struck her on the side of the head and she fell onto a dining chair, after the father saw her smoking inside;
e)In about April/May 2004, the father grabbed her legs and lifted her off the ground and threw her. The mother landed on the ground and had a sore back and head.[6] The mother said that she miscarried a few days after this event, but I cannot without medical evidence conclude that the miscarriage was caused by an assault.
f)The November 2004 incident began when the father verbally abused the mother. Among other things during this incident, the father ripped B from her arms and threw him onto the bed and B rolled off and hit the wall. The mother said that the father repeatedly hit her, threatened to kill her and had his thumb up her nostril and that she thought that her son was going to see her die. She said that the father put his knee on her windpipe and that she believed that she was unconscious for a while.[7] B was screaming and crying during this incident.
The mother managed to escape from the room with B, but the father followed her and grabbed her and dragged her 10 metres by the hair back into the bedroom and shoved her onto the bed. The father however then became calmer and the mother was able to leave with B. On this occasion the mother reported the incident to the police. The father was charged and later pleaded guilty to assault occasioning actual bodily harm. The injuries suffered by the mother on this occasion included swollen bruising on her chin, a swollen left cheek, a very red bloodshot left eye and a bruised right eye.[8]
[3] Mother’s affidavit at paragraph 18 and affidavit of L B at paragraph 5 and 6
[4] Mother’s affidavit at paragraph 19 and affidavit of J D at paragraph 5 and 6
[5] Mother’s affidavit at paragraph 23 and affidavit of J D at paragraph 9
[6] Mother’s affidavit at paragraph 27
[7] Mother’s affidavit at paragraph 32-35
[8] NT Police photographs, Exhibit “A”
The mother made general allegations about the father verbally abusing her during the relationship but did not provide any examples. S D gave evidence of hearing the father verbally abusing the mother and calling her names such as “bitch” “slut” and “mole”(sic). J D gives evidence of the father verbally abusing the mother and calling her a “Burketown slut” and “whore”. I accept the evidence of S and J D.
Both children recount an incident when B was a baby where they say the father hit the mother in the face with a beer bottle. S told of the mother being dragged onto the ground and the father choking her and kicking her while she was on the ground. S said that she and J were crying and screaming. S ran into the garden and hid in the bushes and telephoned her grandparents but they told her that they could not come as they had people over and had had a few drinks.
J’s evidence was that during this incident, among other things, he saw the father hit the mother in the face with the beer bottle and saw that she had holes near her lips and teeth with blood going everywhere. S was holding B for part of the time during this incident and B was screaming. J said that he told his mother he and S were going to call the police. He also said that at the end of the incident the father offered to take the mother to the hospital, but in oral evidence J said that “I wouldn’t have let her go anyway, not with him.”
L B gave evidence of receiving a call from S when B was about six months old saying that M had hit the mother in the face with a beer bottle. L B said that she spoke to the mother who was upset and hysterical and who said that this had indeed happened. L B saw the mother the next day and observed that she had a cut on her right cheek. L B also gave evidence of receiving a call from S who told her that she was hiding in the bushes, but puts it on the occasion of another incident, not the beer bottle incident.
R B also referred to the beer bottle incident, saying that she went around to the house after receiving a phone call from her father. R B said that when she walked into the house, the father was watching TV and she said “M, what’s going on, this has to stop, you’re going to kill her.” She says that the father laughed and said “Well, she’ll learn to shut her mouth then won’t she”. R B said that she took the mother, B, S and J back to her unit.
S D gave evidence about an occasion when the father hit the mother in the head with a mobile phone. S’s evidence was that, among other things during this incident, the father was threatening to kill the mother and began chasing her. The father threw the mother to the floor. S and J pushed the father. The mother was able to run outside. The father got hold of B and walked out holding B. The father repeatedly said to the mother “come here or I will throw him.” B was screaming. S said that the father did throw B to the ground and that she rushed forward and caught B. S took B to the verandah and called the police. Later the father grabbed B again and drove off with him. S telephoned the police again. After a time the father drove back to the home with B, followed by a police car. After this occasion the parties again separated for a period of time.[9]
[9] Affidavit of S D at paragraph 25–40; affidavit of J D at paragraph 10-12 and mother’s affidavit at paragraph 53

The mother gave general evidence that during the relationship the father smashed items in the home including the stereo, a lounge suite, a wall unit, S’s desk and B’s cot. S D gave specific evidence of an incident which started with the father abusing the mother. S’s evidence was that the father went to bed, but then got up again and started abusing the mother again. S said that during this incident the father smashed the stereo and threw the fax machine through the glass door. Eventually J was awakened by the noise. S called R B who turned up shortly thereafter.[10]
[10] Affidavit of S D filed 20 August 2007 at paragraphs 18-19 and affidavit of R B filed 22 August 2007 at paragraph 12
There are some violent incidents which the children say they saw which do not appear in the mother’s affidavit. The mother makes no reference to the beer bottle incident or to the lengthy incident referred to in paragraph 45 above, save for referring to an occasion when the father threw B to the ground.[11]
[11] Mother’s affidavit at paragraphs 52-53
The absence in the mother’s affidavits of any detail about some of the major incidents which the children describe is surprising, but I was impressed by the children as witnesses and accept their evidence. I acknowledge the possibility that the incidents the mother described which are referred to at paragraphs 39 d) and e) of this judgment may be part of one of the major incidents the children describe, rather than other additional incidents of violence. What is important is that I am satisfied that the father was seriously violent within the household on a number of occasions in addition to 12 November 2004, terrifying the children and the mother and injuring the mother.
S and J D were credible witnesses and no suspicious attempt to mirror their descriptions of incidents is apparent. Rather I accept that they are recounting what they each separately remembered about incidents which happened some time ago.[12] I accept their evidence.
[12] See for example affidavit of J D at paragraphs 10-12, affidavit of S D at paragraphs 25-40 concerning the incident during which the father threw B to the ground.
R B, who I considered a credible witness, gave evidence of seeing the mother with injuries including an injury to her face and eye, an occasion when she appeared to have difficulty walking and another occasion where she was physically unable to pick B up. L B also gives evidence of seeing the mother with a cut on her face and with bruises on a number of occasions.
J D left home in March 2004. Poignant evidence was given by J D when he was asked about leaving school at 14 and leaving home to take a job on a station. In oral evidence, he said that:
“I liked the idea of leaving because I did not like the way M treated my family. It made it easier for me, once I moved away.”
When the father commenced his evidence he admitted only one incident of violence, the incident in November 2004. At the start of his evidence he seemed eager to tell about this incident and be done with it.
Other evidence given by the father however points to the violence having been more extensive than the father is willing to admit. First of all, the father acknowledged to the report writer, Mr Ralph, that “the relationship was marked by intense and regular conflict involving loud and heated arguments often in the presence of the children.” He acknowledged that B had been present during some arguments.[13]
[13] Family Report paragraph 28.
Secondly, when answering questions put to him by the Independent Children’s Lawyer about the allegations of violence, the father denied that he had been physically violent to the mother on many occasions. However, he then said that “an argument would end up – there would be pushing and shoving and it would be pretty full on.” He did not elaborate on what he meant by this.
The father showed a marked tendency to minimise what had occurred during incidents to which he did admit. For example, the police records show that the mother suffered injuries after the November assault. These police records were tendered at the interim hearing in June 2007. Even though the father had access to this evidence, when he swore his affidavit on 13 August 2007, he still persisted with his claim that all he had done to the mother during the assault in November 2004 was “rub his hand on her face”. This action is simply inconsistent with the documented injuries the mother suffered.
The father agreed that the mother left the relationship about six times before the final separation.
I take into account the evidence of the father’s witness B M, that he had visited the father’s home during the relationship and found the mother to be aloof and unwelcoming. I take into account that Mr M never witnessed any incidents of violence. I have no reason to disbelieve Mr M’s evidence and in fact it fits with the evidence of the mother and her family that the father always tried to be on his best behaviour when third parties were present, but was a different person toward the mother if he thought he was unobserved.
I also take into account the evidence of D J and N C but the same comments apply to their evidence.
The father annexed to his second affidavit a handwritten statement from his former partner, C D. The mother had given hearsay evidence in her affidavit that the father had also been seriously violent to C D. The handwritten statement annexed to the father’s affidavit praises the father’s qualities as a parent but does not address the allegations made by the mother.
At the commencement of the final hearing, I was informed that C D would be made available for cross-examination by telephone. At the end of the hearing, I was informed that she would not be available. On the state of the evidence, I can make no findings about the claim that the father assaulted C D but in view of Ms Ds’ unavailability for cross-examination, I place no weight on her evidence concerning the father’s parenting.
It was the father’s case that the mother’s evidence about violence during the relationship should be disbelieved because she did not report incidents to the police during the relationship, did not seek medical assistance and kept returning to the relationship.
The mother’s evidence of not seeking help because she was embarrassed and ashamed about what was happening; of being scared to call the police because of fear of the father who threatened to kill her if she did; of being influenced by the father’s apologies and by hopes that he would change and that the earlier happy times would return; of being uncertain about what to do and of feeling pressured by having no other suitable accommodation for her family; are all classic reactions by victims of domestic violence to the situation they find themselves in. I do not accept that I should conclude from the mother’s returns to the relationship, or her failure to call the police and have the father charged earlier, or her failure to seek medical assistance, that she is being untruthful when she gave evidence about incidents of violence.

b) Was the father violent to the mother’s children, S and J D, during the relationship?

The father at first denied that he had ever been violent toward S or J D, and when the father’s counsel was cross-examining these witnesses, it was put to them that they were inventing their evidence.
The father in oral evidence however said that “S would get in between M and I in an argument and different things happened and I am sorry for that.” He later said that there was one occasion he had “pushed S over” after she hit him when she (according to the father) wrongly concluded that he was assaulting the mother.
I accept the evidence of S and J D about incidents which they say happened to them. I do not accept the father’s denials.
S D gave evidence that on one occasion early in the relationship between the mother and father, the father became angry at the dinner table and threw his plate of food at the mother. When S who was then about 13 said something in protest the father backhanded her in the mouth and her lip began to bleed. The father then left the house and drove off. He apologised to S the next day.
Another incident occurred when S saw the father pushing the mother’s head into the side of the lounge after an argument over the TV remote. S pushed the father who grabbed her, called her a “fucking black slut” and pushed her against the wall and rammed her head into the wall. S says that this was done with enough force to dent and crack the wall and that she was extremely scared at the time. She says that the father then grabbed her by the throat and dragged her to the other wall. B, who was present, was screaming during the incident.
J D gave the following evidence about an incident when he was 12 or 13. He said as follows:
“One day I was in the shed with M all day helping him to fix his car. I did not put one of the parts in properly, although I tried very hard to do the job the best I could. M got angry with me, he started swearing at me, saying things such as: “you useless little bastard, cunt, shit, you can’t do anything right”. I was very angry and upset. I think I have said something to M, but can’t remember exactly what it was. He then grabbed me by my arm and kicked me up the arse. I was about 12 or 13 years of age. I was so scared, and in so much pain, that I wet my pants. I told M I hated him. I ran over to the house where I’d seen S. We both went inside and told my Mum what had happened. Mum went to see M about it, and they argued.”
S D saw some of this from where she was standing at the top of the steps.

c) Was the father violent to B during the relationship?

The father denied that he had ever been violent to B. He said that if B talked about being thrown against the wall, it was not because B remembered this happening, but because the mother and her family keep saying it happened and have got B believing that it happened.
I do not accept the father’s evidence about violence toward B.
I cannot determine whether B in fact remembers the incident which happened in November 2004. He was two and a half at the time and he may remember the incident or some of it, but it is almost certain that the incident has been talked about in the family, and that this would have had an effect on B.
Whether B remembers the incident or not, I accept that it happened as described by the mother. I also accept the evidence of S D about the father threatening to throw B and then throwing him, and S rushing forward to catch B.

d) Has the father continued to verbally abuse and threaten the mother since separation?

The father denied that he had continued to verbally abuse, threaten and intimidate the mother since separation. I do not accept his denials.
The mother gave evidence of numerous threats and abusive remarks made to her after separation, as follows:
a)02.01.05         the father telephoned the mother and abused her about calling the police, calling her a “dog”.
b)10.01.05    the father came to the mother’s home and said she was “fucking him over”.
c)In January/February 2005, the father rang the mother while she was in M, saying “you filthy slut, if I lose my security licence, you will pay for it”. L B heard this after the mother handed her the mobile phone.
d)24.02.05    the mother went to the father’s place, by arrangement, to collect gear; he abused her calling her a “dog”. She tried to leave – B was the car. The father grabbed her keys and prevented her leaving and verbally abused her over a period of two hours.
e)28.2.05 the father threatened to “bump her off”.
f)01.03.05 the mother went to the father’s home to collect possessions. When the mother refused to talk to the father, he punched the mother’s car window which smashed. He also punched the mother in the face through the window. He then begged her not to call the police. B was in the car at the time.
g)08.03.05 the father came to her home and said she had “fucked him over” and that he would “break in and take her stuff”.
h)09.03.05 the father came to the mother’s home, became angry, abused the mother and spat at her through the door. The father left after the mother threatened to call the police.
i)14.03.05 the father drove into the mother’s driveway calling her names such as “whore” and “slut” until he saw the mother’s sister R at which time he stopped the abuse.[14]
[14] Mother’s affidavit at paragraph 39, 76(N)
j)11.04.05 the father followed the mother home, late at night, raced her into her house before she could get out of her car and lock the gate, and said “what paedophile’s cock you been sucking tonight slut?” A neighbour happened to come out of his house onto the footpath and the father left,[15] after the mother said that she would call the police.
[15] Mother’s affidavit at paragraph 40, 76(O)
k)26.04.05 the mother was at the G shops with B when the father pulled in. The mother put B into the car and was halfway into the car herself when the father slammed the car door on her leg and called her a “fucking dog” and “pig lover”.
l)24.05.05 the father telephoned the mother and said that he was going to “bump her off” – “it’s just a matter of time”.
m)24.09.05 the father turned up at the mother’s home, she would not let him in. He said that the mother “would end up in some creek with her throat cut”.
n)25, 26, and 27.09.05 the father rang the mother and abused her.
o)04.10.05 the father rang the mother and called her a “dirty dog whore”.
p)09.12.05 the father rang the mother and said that he had “dobbed her in to Centrelink” and that she was “a dumb whore”. He kept phoning repeatedly until 2.30am.
q)28.01.06 The father came to the mother’s house and asked about a motorbike that had been at her house yesterday. He said that he was going to “put a bullet in her head, and the pigs would find her in a creek somewhere”. The mother reported this incident to the police.[16]
r)08.11.06 The mother was at the H S service station. She had a friend and B in the car. The father drove in so that he was two metres behind the mother and was laughing saying “fucking dog” and “fucking maggot”. When the mother’s friend stepped out of the car the father drove off.
s)04.04.07 The mother was at H S shopping centre checking her mail when she turned around and saw the father at her car, glaring at her. He said that she was a “dog slut”. The mother got into her car and left.[17]
t)24.07.07 The mother was at H S shopping centre checking her mail. The father pulled in and abused her saying “you’re a fucking whore”, “you’re a fucking dog for calling the police” and “next time my bullet is not going to miss your ugly head”. Among other evidence the mother gave about the incident was that at various stages she was trembling, was angry and that she feared for her life.
[16] Exhibit “F”, Statement of Constable Craig Boles
[17] cf mother’s affidavit at paragraph 56 which may be the same incident
I accept the mother’s evidence about these incidents. I do not accept the father’s denials, or his evidence about what happened on 24 July 2007.
The mother also gave evidence that when the father drives past her in the opposite direction, he raises his hands in a gun-like position and pretends he is shooting her. The mother feels threatened and harassed by these actions. The father denied making a gun-like motion; he said that if he saw the mother he only waved to her.[18] Given the existence of the full no-contact domestic violence orders since late 2005, this explanation either shows that the father has a total disregard for the orders or that he is inventing this evidence. I accept the mother’s evidence and I do not accept the father’s denials.

Has the father knowingly kept loaded unsecured firearms on his property since separation, in breach of the law?

[18] Father’s affidavit filed 22 August 2007 at paragraph 49

There is no question that this has occurred. The facts about the firearms and ammunition found at the father’s property are essentially not in dispute.
The effect of the domestic violence order made on 13 November 2004 was that the father’s shooters licence was revoked and he was not allowed to be in possession of any firearms
The father admits that he only handed in some of his firearms to the police.
On 28 January 2006, as a result of information received from the mother after the father had come to her home and threatened her, the police went to the father’s home at H S. The father was not at home although his son B aged 13 was. During a search of the premises, the police found a loaded rifle leaning against a chair and fridge in an open structure about five metres from the residence.
Shotgun ammunition was found on top of the fridge in the residence, ·308 ammunition was found on a glass outdoor table on the verandah and on a small bench beside the washing machine on the verandah, and ·22 calibre ammunition was found in a plastic bag in the residence. In the main shed on the property, police found an air rifle together with a large amount of centre fire ammunition in various calibres and·357 calibre handgun ammunition. More shotgun ammunition and centre fire ammunition was found in a bucket in a camping trailer.
The police took B back to the police station with them and called his mother asking her to collect him.
The firearms and the ammunition were confiscated and the father charged. He was convicted of firearms offences on 30 March 2006 and fined $1,000.00.
On 29 September 2006, as a result of information received, police again attended at the father’s property. They found a loaded Lee Enfield .303 rifle on the verandah leaning against a wall and a loaded four-gauge shotgun concealed in a boat tarp in the shed. The stock of the shotgun had been removed and replaced with a pistol handle.
The father had reported the shotgun lost in 1997. There was no record of the rifle being registered in the Northern Territory.
The police also found one box of buckshot, 12 gauge shotgun shells, and one .303 round in the top drawer of a table in the living room. The firearms and ammunition were confiscated and the father was again charged. He was convicted of firearms offences on 27 March 2007. This time he was fined $9,000.00.
Despite the fact that the father pleaded guilty to all charges in relation to firearms, when he gave evidence in the proceedings before me he was evasive about the firearms matters. He agreed that the guns which were found at his premises were his guns. However during a passage of unsatisfactory evidence he suggested that the mother had planted guns at his residence. In his affidavit[19], in the section dealing with the firearm issues, he says that “M threatened she would “fuck me over” particularly regarding domestic violence and guns” which contain an implication that the mother is somehow responsible for the father’s plight concerning firearms.
[19] Father’s affidavit filed 22 August 2007 at paragraph 48.
The suggestion that the guns were planted does not sit comfortably with the father’s pleas of guilty in the Darwin Magistrates Court to the firearms charges. It also does not sit comfortably with the evidence in his affidavit in which he stated that “I have been in trouble with the police over my guns because I didn’t hand them all in. I wanted to keep a gun for protection. There are lots of wild dogs in Girraween and the children were being chased at night.”[20]
[20] cf Father’s affidavit at paragraph 47.
It is disquieting that the father can see nothing wrong with the fact that, not only did he illegally have possession of guns and ammunition, but that the guns were loaded, they were lying around where children could get them and they included a modified shotgun concealed under a boat tarp. The father did not acknowledge wrong-doing, attempted to justify his repeated breaches of the law and also attempted to shift blame to the mother. The father clearly does not consider that having loaded, accessible firearms and ammunition lying around his home, poses a risk to the children.

e) Will B be safe with the father in the future in an unsupervised environment?

I have grave concerns about whether B would be safe in the future with the father in an unsupervised environment. This is because of the following evidence:
·On many occasions during the relationship, the father lost control and assaulted the mother and smashed items of property.
·The father assaulted and verbally abused S D, and verbally abused, demeaned and kicked J D.
·The father assaulted his son B D, then about eight, by hitting him repeatedly with a plastic garden rake. The father said about this in oral evidence “I got into him with a rake, I admit that.” However, he blamed the mother, saying that she upset him by complaining about B taking some chicken from the fridge and goading him to do something about it. The father then picked up the plastic garden rake and laid into B. S D who witnessed this assault said as follows in her affidavit:
“While we were still living in J (2001-2002) I saw M belting/flogging B one day over a piece of chicken B had eaten prior to dinner time. It was scary because I had never seen anyone hit a child like that before. M hit B and flogged him with a garden rake, M started hitting B with an open hand at first then he got the rake. He seemed to hit B everywhere on his body with it. I remember B was crouching down with his hands over his head trying to protect himself. I heard B scream and beg M to stop, but M continued to hit him with the rake. B was about 8 years old when this happened.”
B’s mother reported this incident to Family and Children’s Services. S then says:
“After that when B would come over, M would call him a dobber and give him a hard time about it. B would get upset and cry over this.”
There is clear evidence from a number of witnesses that on occasions when the father becomes frustrated, upset or angry, he loses control and lashes out verbally and physically at those around him. S was assaulted twice. The incidents with each of B and J may only have been one off incidents, but one incident of this kind is one too many. Incidents such as these are not only immediately damaging, they are capable of causing long term psychological harm to children.
The father accused J and S of fabricating their evidence, and he expressed no genuine remorse about what he did to his son B, rather seeking to blame the mother for the incident.
Unless the father did show evidence of a complete change of attitude, there would always be the risk of B either being the victim of or being exposed to abuse or family violence in the father’s care, outside of a strictly supervised environment.
It would also be dangerous for B to be at the father’s property if loaded, unsecured, readily accessible firearms were there. The father’s complete failure to address this issue gives me no confidence that the father will behave responsibly with firearms in the future.
Given the father’s past violence, the violence directed toward S, J and B, and the violence directed toward B, and given the concern about the firearms, I am of the view that there would be an unacceptable risk of harm to B if he spent unsupervised time with his father.

f) What will be the psychological effect on B of re-introducing him to the father in a supervised environment?

At paragraph 55 of the Family Report, Mr Ralph said as follows:
“If the Court decides on the basis of the evidence presented that the mother’s allegations are credible then it would reflect very poorly upon the father’s attitude to his parental responsibilities and his capacity to act in a manner that will promote B’s long-term adjustment and welfare. If this is found to be the case then I believe it would be appropriate to make an order for no contact to take place. If this were to occur then the mother’s proposal to relocate to Q should be supported.”
During oral evidence Mr Ralph placed a rider on this, saying that if the father was remorseful and able to change, then reintroducing B to him could be beneficial for B.
Ms Dianne Knox gave evidence. She is a psychologist with 32 years experience who has been working with the mother since September 2006. Ms Knox has been involved in preparing reports for Victims of Crime compensation applications for at least 15 years and is familiar with the effects of Domestic Violence on individuals and families. Many of her counselling clients have also been in domestically violent relationships and she considers herself well informed about the consequences of domestic violence. Ms Knox also regularly prepares Family Reports for this court.
In the course of working with the mother, Ms Knox has visited the mother’s home and has had the opportunity to observe the mother’s parenting of B and B’s bond with his mother. She commented favourably on what she had observed of the mother’s parenting.
Ms Knox commented on the fact that the mother’s home was like a fortress with locked gates, a high fence and black plastic around the fence.
Ms Knox, as did Mr Ralph, reported that B was fearful of his father and did not want to see his father. Ms Knox spent some time speaking to B.
Ms Knox was of the view that if the court decided that it was in B’s best interests to spend time with his father, then the court needed to proceed with extreme caution. She gave the opinion that:
“Initially a trained counsellor should explain the Court’s decision to B in order to protect the all-important relationship with his mother from possible contamination. Secondly the contact must be supervised to ensure that B feels safe and all safety requirements must be met by the Centacare staff and safety nets explained to B before he sees his father. Before any contact commences, Mr D must be well prepared for the visits by participating in counselling of his own and be willing to take full responsibility for his past behaviour without blaming others, especially M B. He will need to be appropriately remorseful and to be willing to give B developmentally correct explanations for the reasons and motivations of his past violent behaviour if asked by his son…Mr D will need to be informed about how to respond to B’s emotional needs and to not denigrate the mother-son relationship. Ms B would probably require counselling of her own during this period so that she could contain her own feelings so as not to detrimentally affect any developing father-son relationship”
In oral evidence, Ms Knox expressed the view that it may require many months of counselling before regular time between the father and son could commence. In her opinion, if the father told B that the mother and S and J were making up the allegations about him, it could have a catastrophic psychological effect on B.
Ms Knox has had involvement with the mother and through the mother with B for nearly a year. I place considerable weight on her evidence.

The current state of the law concerning relocation

In the case of Masling and Milliken[21], Justice Boland considered the principles applicable to determining relocation applications. She reviewed the state of the law prior to the amendments to the Family Law Act which were made on 1 July 2006, and considered how the amendments had affected the previous situation.
[21] Masling & Milliken [2007] FamCA1230
She observed that “The Act does not treat “relocation” cases as a special category of parenting cases. In this respect the amending Act has effected no change to the law.”
Justice Boland then said that:
“It follows from my exposition of the legislation, that earlier core principles:
(a)That the child’s best interests remain the paramount but not the sole consideration;
(b)That a parent wishing to move does not need to demonstrate “compelling” reasons;
(c)That a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests;
(d)The child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement
remain valid.”
She stated that “what the legislation now requires is:
(a)Consideration of the competing proposals against the criteria in section 60CC informed by section 60B;
(b)If a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility must be considered.”

The section 60CC criteria

Any orders I make about B must be made after due consideration of B’s best interests.
Section 60CC(2) and (3) of the Family Law Act 1975 set out the primary and additional considerations to which I must have regard in order to determine what is in B’s best interests.
I must consider the benefit to B of having a meaningful relationship with each of his parents.
B has a meaningful relationship with his mother and it is a relationship which is centrally important to his wellbeing.[22] It will continue if the mother relocates as she proposes.
[22] See affidavit of Diane Knox at paragraph 3.
B does not presently have a meaningful relationship with his father. If I make the immediate relocation order the mother seeks, then B’s relationship with his father may never be restored.
The mother did not propose that B come back to the N T for school holidays, or that the father be permitted to visit B in T. Her only proposal (and I have reservations about the sincerity of it) was that B could communicate with the father by telephone once she relocates to T.
Mr Ralph was of the view that it would be difficult to restore the relationship between B and his father simply by telephone communication taking place from a distance.
The father proposed that he have the opportunity to re-establish the relationship, by attending counselling and then having supervised time at Centacare.
Mr Ralph expressed the view that if B grew up without a relationship with his father, he could have adjustment difficulties in later life, and that it would be beneficial for B if he could recover the relationship with his father.
Mr Ralph stated that the relationship with the father which would benefit B would be a relationship which was based on caring and respect for each other. I must consider whether there is any likelihood of B establishing this kind of relationship with his father.
Keeping B within geographical proximity of the father is not by itself going to lead to B and the father having a meaningful relationship.
For the father and son to have a meaningful relationship, the father would need to demonstrate an acceptance of his responsibility for the violence toward the mother and her children in the relationship and toward his own son B , an acceptance of the damage, anguish and fear he causes by making verbal threats and abusive remarks, an acceptance that B has been affected by what he himself suffered, and what he witnessed during and after the relationship, and some insight into the potential for harm coming to the children from his cavalier attitude toward firearm safety and the need to comply with the law about firearms.
The father shows no signs of having reached any of these positions at present. He proposes that he attend some courses and counselling designed to assist him in that regard, and that B and the mother remain in Darwin while he does the courses and counselling and while a re-introduction is attempted.
I must consider whether B is likely to be exposed to psychological harm from being exposed to abuse neglect or family violence in the care of either of his parents.
B is not likely to be exposed to abuse neglect or family violence in the separate care of his mother. I am conscious that the father has raised issues about the mother’s drinking and drug use, and the accident at Jabiru and the broken arm. I will however consider these matters under the heading of the capacity of each parent to meet the needs of the child.
As far as the father is concerned, if B saw his father in a supervised environment, B would not be exposed to a risk of abuse (as defined in the Family Law Act 1975), neglect or family violence. I do consider however there is an unacceptable risk that B may be exposed psychological harm from being exposed to abuse or family violence in the unsupervised care of the father, for the reasons outlined earlier in the judgment.
I must consider whether B is expressing any views, and if so the weight to be given to those views.
There is clear evidence in this case that B fears and does not want to see his father. This evidence was given by the mother, the family report writer, Mr Ralph and by Ms Knox, among others.
B may be expressing those views because he remembers his father assaulting him but equally, he may have been influenced, whether the people around him intended it or not, but the views held about the father by the mother and her family.
I accept that B’s views are genuinely held. However he is only five and a half years old. If it is considered appropriate and in his long term best interests for him to be re-introduced to his father, then it would appropriate to make those orders regardless of B’s views.
I must consider the nature of B’s relationship with his father, mother, and other significant people in his life.
B’s primary bond is with his mother. He also has a close bond with his sister S, and a satisfactory bond with his brother J and with extended family on his mother’s side - her parents and her sisters, S and R.
B does not currently have a relationship with his father. Between separation and 2005, B spent some isolated short periods of time in his father’s company when the father visited the mother’s home. B has not spent time with his father since 2005, except for possibly seeing him on a few occasions at school or crèche.
B has not spent time with his brothers B D or J D since the father and mother separated in November 2004. He also does not currently have a relationship with these brothers.
I must consider the likely effect of any change in B’s circumstances, including the effect of any change which will make it substantially more difficult for B to spend time with one of his parents.
The change for B represented by the mother’s proposal is essentially a change to where he and the mother live. If B moved to T with the mother, he would still be living with his primary attachment figure. He would see his sister S less frequently than he does at present, but he would still be linked to and feel part of his extended family on his mother’s side and he would see these people from time to time.
B would need to change schools and make new friends. Many children however in both intact and separated families have to adapt to changes of this nature. Ms Knox commented on the fact that while stability is important for children, they do adapt to change, and that for B the most important thing is the mother/child relationship.
The mother’s plans in relation to her move to T are not fully formed. She intends initially to live with a female friend and to enrol B at the school this friend’s children attend. The mother has a good opinion of the school. I accept that the mother would make acceptable arrangements for housing and education if she relocated with B. Insofar as B has done well in the mother’s care to date, there is no reason why he would not continue to do well in her care in T.
B is not currently seeing his father at all. This accords with his own wishes. If he moved to T this would continue and in the short term at least, would be unlikely to adversely affect B.
A positive aspect of the change the mother proposes is that it would remove the mother and B from the climate of fear in which the mother is currently living. I accept her evidence about the verbal abuse and threats she continues to receive from the father. The mother lives behind locked gates. Her fence is covered in black plastic. She has given evidence of being frightened of the father. If the mother moves to T she need no longer fear that the father can just jump in his car and drive around to her house. She need no longer fear accidentally running into him at the post office or the shop.
If the mother is removed from this climate of fear then this can only be positive for B as well. He appears to be developing some protective concerns about this mother. He should not be burdened by this responsibility at his age.
I find that it is highly likely that in the immediate future the change of residence to T would be a positive one for B.
The negative side of the relocation however is that any chance of B having a relationship with his father in the future may be lost. The mother says that she would support telephone communication, but I formed the view that her heart was not really in this and that she was offering it only because she felt she had to. I do not believe that the mother would facilitate and encourage telephone communication. In any event, at B’s age, even well supported telephone communication would not be terribly satisfactory, unless it was bolstered by regular face to face visits with the absent parent.
If B relocates, he will also very likely lose any chance to get to know his brothers, B D and J D. This is a significant concern for the father. However there is a considerable age difference between B and these brothers. He has not seen J for at least three years and has seen very little of B in the last three years. No matter what the outcome of these proceedings B is not going to be living in the same household as these brothers. At best he could only see them from time to time. If this were the only negative against the relocation, then in the light of all the positives this would not prevent the relocation being ordered.
There is no doubt that there is potential for long term harm to B in him not having a relationship with his father. However, if the father is unable to change and what the father offers B is a violent role model who takes no responsibility for past actions and from whom B would be at risk physically and psychologically if he spent unsupervised or even supervised time, then there is also the potential for long term harm to B if he spends time with his father.
I must consider the willingness and ability of each of the child’s parents to facilitate and encourage a relationship with the other parent.
The mother is not willing or able to facilitate and encourage B’s relationship with the father.
The father’s case is that the mother is keeping B from him not because of genuine concerns about B’s welfare, but out of spite and jealousy. He says that “She did the same thing with S and J’s dad; she wouldn’t let them see him until they were old enough to leave home; as far as I know these children spend a lot of time with their father now and don’t have a lot to do with M.”
Both J and S D however said that they saw their father, C D, regularly while they were growing up. I accept their evidence. There is clear evidence that S sees her mother regularly at the present time and often has B to stay overnight with her. J does not see as much of his mother, but this is because he works on a cattle station.
I do not accept the father’s case that the mother has a history of sidelining her children’s fathers or that she is keeping B from him simply out of jealousy and spite.
The mother sees the father as a violent, threatening and dangerous person. She can see no benefit in B getting to know him.
I have found that the mother has been the victim of family violence at the hands of the father; that he has behaved violently to her children; that he has continued to threaten and verbally abuse her since separation; and that he has no respect for law or safety where firearms are concerned. In those circumstances it would be unreasonable to expect the mother to have a ready ability to promote B’s relationship with the father.
The father pays lip service to the importance of B having a good relationship with the mother, but it is clear from his evidence that he has no time for the mother and holds her in contempt. In addition to what happened during the relationship, he has threatened and abused her and damaged her property, after separation, and in B’s presence. The father’s actions speak louder than his words. I have grave reservations about whether the father does, in reality, have the ability to facilitate and encourage B’s relationship with the mother. Unless the father was able to radically change his attitude to the mother there is a risk that B’s relationship with his mother could be undermined, or his stability and security threatened, if he spent extensive time with his father.

I must consider the capacity of each of the parent’s to meet the needs of the child, including the physical, psychological and emotional needs of the child.
The father raised two concerns about the mother’s care of B. One was substance abuse, that is, that she has a problem with alcohol and that she uses drugs. The issue of the mother using drugs was minimally explored in the proceedings. There is no evidence that the mother currently uses drugs. There is certainly some evidence that the mother at times consumes too much alcohol and gets into difficulties as a result. The explanations she gave about why she was recently barred twice from H S tavern were not credible.
Due to the reticence of the mother and her witnesses on this topic, I do not know as much as I would like about the mother’s drinking. However there is no evidence that it is at such a level that it is impacting on her ability to care for B on a day to day basis. The presentation and demeanour and situation in life of the mother’s older children S and J certainly create some confidence that the mother has good parenting abilities. I also place weight on Ms Knox’s evidence.
The father brought up an incident that happened at Jabiru in December 2004, when the mother backed over B one morning in the driveway of R B’s residence. The mother and R B gave evidence which convincingly portrayed that this was simply an unfortunate accident, and was not the result of culpable negligence or the result of the mother being drunk. The father also referred in his affidavit to the mother not taking B to hospital promptly on one occasion when he had a broken arm. I am not satisfied that I should make any adverse finding about the mother’s ability to care for B as a result of this evidence.
The mother looks after B on a day to day basis. He attends school regularly and spends time with the mother’s family. Ms J N gave evidence that B is doing reasonably well at school at this time, although he has been a little disruptive in the last term.
Now that the mother is out of the violent relationship with the father I find that she has the capacity to meet B’s needs.
The father says that he has the capacity to meet B’s needs. He says that he looks after his son B, full time and that his son J, 9, visits regularly, and that he has the skills and ability to look after B also.
I am sure that the father could meet B’s physical needs such as feeding and clothing him and taking him to school, and that he could provide him with exciting recreational activities. However, I would have grave concerns for B’s physical and emotional/psychological safety if the father had time with him.
The father says in his affidavit that he “takes his role as a father very seriously”, yet when the police searched the father’s home on 28 January 2006, they found a loaded, unsecured rifle leaning against a chair and large amounts of unsecured ammunition. B was at home. He was the only person there. The police took B away and called his mother. The father makes no reference to this incident in his affidavit. Loaded, unsecured firearms were found at the house where the father lives with B on a second occasion in September 2006.
I have also found that the father has been physically violent to S, B, J and on one occasion, to B and that on occasions he lashes out physically and verbally at those around him. There is nothing in the evidence to suggest that the father has changed from the person he was during the relationship with the mother, in fact, the threats made to the mother as recently as July 2007, suggest that he has not.
The father does not have the capacity to keep B safe.
The mother says that the father uses drugs. The evidence given about this would not support a finding that the father uses drugs. The mother also says that the father drinks considerable amounts of alcohol. The available evidence does not allow me to find that the father’s alcohol consumption compromises his ability to care for B. There was certainly evidence that on occasions the father was violent while intoxicated,[23] but he was also violent when sober and the central problem with the father is violence, not excessive consumption of alcohol.
[23] Exhibit “E” police call-out records and affidavit of S D at paragraph 12
I must consider whether there has been any family violence. I have found that there has been.
The family violence which I find has occurred, has a number of ramifications. I have already considered whether the evidence demonstrates that the father has a violent nature such that B would not be safe in the father’s care. I must also consider the potential psychological effects on B of being exposed to a parent who has perpetrated family violence but who denies that this has occurred, when the child himself has witnessed some of these events. Ms Diane Knox gave evidence that B’s exposure to the father in these circumstances could be psychologically devastating for B.
Another ramification of the family violence is whether because of it and its effect on the mother, I should give predominance to the mother’s need to get away and re-establish herself in a location far away from the father.
Yet another ramification is that, in that the father is a person who regularly resorts to violence, threats and verbal abuse, he is not a suitable male role model for B.
I must consider whether there is any family violence order in place. Family Violence orders has been continuously in place since November 2004. The existing Family Violence order was made on 27 March 2007 and it expires on 30 March 2008.
The existing order was made without admission of liability by the father. It does not of itself establish that the father was violent to the mother or to B.
The existing Family Violence order includes B as one of the people protected by the order. The father is restrained from approaching or remaining at any place where B is living or staying, assaulting or threatening to assault B, acting in an offensive or provocative manner toward B or approaching or entering any school attended by B. I need to bear this in mind when making orders about B, so that appropriate steps are taken if the orders proposed by this court conflict with the Family Violence Order.
I must consider what orders are least likely to lead to the institution of further proceedings.
If I make the orders the mother seeks, then the possibility of further proceedings being instituted would be greater than if I make the orders the father seeks. If I allow the mother to relocate and reserve the father’s time with B, but the father then undertakes some courses and becomes a changed person, he may be justified in applying again to spend time or unsupervised time with B. He might still apply at a later time as B became older, seeking to re-open the matter, even if he did not undertake any course or counselling.

Parental responsibility

In this matter there has been serious family violence perpetrated by the father, and the mother fears for her safety as a result. Pursuant to section 61DA(1) of the Family Law Act 1975, I find that it is not appropriate to apply the presumption of equal shared parental responsibility.

The Independent Children’s Lawyer’s submissions

The Independent Children’s Lawyer supported the father’s proposal that supervised time with B commence after the father had successfully completed some counselling and courses.
The Independent Children’s lawyer took the view that provided that there was some acknowledgement by the father that he accepted responsibility for the abuse that had occurred, then B needed the opportunity to have a relationship with his father. She proposed the following orders:
i)That B live with the mother;
ii)That if the mother is permitted to relocate, it not be before July 2008;
iii)That the mother have sole parental responsibility for B;
iv)That providing that the father attends an anger management course and provides evidence of completion, and that B has counselling and that the mother has counselling then the father spend time with B supervised at Centacare for one hour on six occasions over a period of two weeks;
v)That this time then be extended to two hours six times over a six week period building up to the maximum amount of supervised time Centacare is able to provide.
The Independent Children’s Lawyer generally supported the orders sought by the father.

Conclusion

As I have found that the presumption of equal shared parental responsibility should not apply, I am not required by section 65DAA of the Family Law Act 1975 to consider making orders that B spend equal time or substantial and significant time with each of his parents. I must consider at large what orders would be appropriate in this matter. As stated earlier, when considering the mother’s relocation application, B’s best interests are the paramount but not the only consideration.
The parties agreed that I should make an order that B live with the mother. I also intend to order that she have sole parental responsibility for B. From time to time, it will be necessary for decisions to be made about B. Given the violence in the parties’ relationship and the events after its end, it would be unreasonable to expect the mother to confer with the father about decisions concerning B.
The competing proposals of the parties at the end of the hearing about other relevant issues were as follows:
·The mother’s proposal that she be able to relocate immediately to T with B and that B have telephone communication only with the father.
·The father’s proposal that he take part in a number of courses and that he then commence having supervised time with B at Centacare. The father proposed that further consideration of the mother’s relocation be deferred for six months and that her application be considered again once the re-introduction of his time with B had started. It was implicit in the father’s case that in due course he hoped to be able to spend significant unsupervised time with B.
I am of course not bound by the parties’ proposals, and can make the orders which the court considers appropriate.
Neither Dianne Knox nor Stephen Ralph supported an immediate commencement of supervised time between the father and B.
Mr Ralph, in summary, said that while it would be most regrettable if B did not have a relationship with his father, such a relationship would only benefit B if it was a mutually rewarding relationship. His view was that the father would need to be remorseful and willing to change.
Ms Knox’s evidence was that such time should only commence if the father was well prepared for the visits by undertaking counselling of his own, and was willing to take full responsibility for his past behaviour without blaming others.
The father’s evidence in his affidavit filed 14 August 2007, was that in March 2007, the mother “whacked another restraining order on me (just to be spiteful)”. He described the mother to Mr Ralph on 7 August 2007 as “evil” and as “telling lies about him”. He conducted his case during the hearing before me on the basis that the mother and S and J D were fabricating much of their evidence about violent incidents during the relationship. He minimised what happened during the incidents to which he did admit (for example, the assault on the mother in November 2004 and the assault on S in the lounge room). He did not demonstrate any understanding of how damaging his assault on his own son B had been, and he blamed the mother for his loss of control on that occasion.
The father’s oral evidence was that if B was expressing fear of him it was because B had been coached and harassed by the mother and her family. He said that if he could just have ten minutes alone with B, B would be back to normal.
At the end of the hearing the father changed his position from what it had been at the start of the hearing and asked the court to make orders that he attend appropriate counselling and courses and that supervised time commence between himself and B once he had completed that counselling and those courses. However, I consider that the father changed his position only because he felt that he must, and not because he felt that he should. The way in which the father’s case was conducted creates absolutely no confidence that the father is anywhere near reaching the point which Ms Knox considered essential before he started seeing B, that is, being willing to take full responsibility for his past behaviour without blaming others.
The orders the father seeks would require the mother and B to remain in Darwin while the father undertakes courses and counselling which will effectively be forced upon him by the court, courses and counselling which his evidence suggests he does not consider necessary. The father may never reach a point where conditions are suitable for his re-introduction to B. In the meantime the mother will continue to be exposed to the possibility of accidental encounters with the father and to the father abusing and threatening her as he did in July 2007 at H S shops.
On balance, I do not consider that it is in B’s best interests to make the orders the father proposes.
I am of the view that the mother should be permitted to relocate immediately to T and that, at present, the father should have no time with B.
There are many advantages to the mother, and therefore to B, of the mother being permitted to relocate. It is important that the mother, as B’s primary carer, be settled, happy and able to live in an environment in which she feels more safe and secure than she does in D. Although I have some concerns because of the mother’s reticence about the issue to do with the mother’s drinking, I bear in mind Ms Knox’s evidence and further the mother’s children S and J are a good advertisement for her parenting ability. There is no question that B is securely attached to his mother. He is likely to settle where his mother settles and in the immediate future is not likely to miss his father.
I accept that in the longer term B not having a relationship with his father could be detrimental to him. The father’s case is that this aspect of the matter should be given primary importance and that the re-introduction should be attempted. However there is no guarantee that if B remains here for six months a beneficial reconnection will occur.
There is nothing to stop the father, if he truly wishes to be part of his son’s life, from doing the courses and undertaking the counselling discussed during the hearing. He does not need a court order to do these courses or undertake this counselling. If he successfully completes these courses and counselling, he could make a fresh application to spend time with B. He might have to be prepared to travel to T in the first instance, but the door is not closed on him spending time with B. Proceeding in this way puts onto the father the responsibility of creating a situation in which a court could confidently make orders about his time with B.
I do not propose to make an order for telephone communication. I do not consider that the mother has the willingness or ability to ensure that telephone communication occurs. I also bear in mind the evidence given by Stephen Ralph that telephone communication by itself would not have much chance of success. I can see no utility in making an order for telephone communication which may simply set the scene for contravention proceedings. I do intend to order that the mother send the father information about and photographs of B twice each year.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Terry FM

Associate: C W

Date: 16 November 2007