Bailey and Sykes

FAMILY COURT OF AUSTRALIA

BAILEY & SYKES

[2012] FamCA 693

FAMILY LAW – CHILDREN – Serious allegations of Family Violence – whether children should spend any time with or communicate with the father – whether children’s time with the father should be supervised – whether there should be an order that mother have the sole parental responsibility for the children – whether there should be injunctive orders protecting the mother and the children

Family Law Act 1975 (Cth) ss 4, 60B(1), 60B(2), 60CC (1),(2),(3),(4),(4A), 68C, 114 and 114AA
Evidence Act 1995 (Cth) s 140.

McCall & Clark (2009) FLC 93-405

MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424

Johnson & Page [2007] FLC 93-344

APPLICANT:

Ms Bailey

RESPONDENT:

Mr Sykes

INDEPENDENT CHILDREN’S LAWYER:

Ms Reaston

FILE NUMBER:

CSC

133

2009

DATE DELIVERED:

20 August 2012

PLACE DELIVERED:

Hobart

PLACE HEARD:

Cairns

JUDGMENT OF:

Benjamin J

HEARING DATE:

3 & 4 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wilson

SOLICITOR FOR THE APPLICANT:

Lehmann Featherstone

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Victoire

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

O’Reilly Stevens Bovey Lawyers

Orders

All previous parenting orders in respect of the children R born … January 2005 and B born … May 2009 (the children) be discharged.

The mother shall have the sole parental responsibility for the children.

The children shall live with the mother.

The father shall be and is hereby restrained from spending any time with the children and from having any communication with the children.

The children be referred to and known as using the surname “Bailey” and the mother has sole parental responsibility for changing the children’s surname to “Bailey” and ensuring all records show that surname for the children.

Pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth), the father, Mr Sykes born in 1977 is prohibited from:-

(a)harassing molesting or stalking the mother, Ms Bailey and the children, R and B;

(b)causing or threatening to cause bodily harm to the mother and/or the children;

(c)entering or remaining on any premises at which the mother and/or children live or reside;

(d)entering or approaching any place where the mother works or is employed; and

(e)entering or approaching any school which the children attend.

Pursuant to s 68C and s 114AA of the Family Law Act 1975 (Cth), where a police officer believes, on reasonable grounds, that the father, Mr Sykes, has since the injunction was granted, breached the injunction by:-

(a)causing or threatening to cause bodily harm to the person or persons referred to in these orders; or

(b)harassed, molested or stalked any one or other of those persons.

The police officer may arrest Mr Sykes without warrant pursuant to s 114AA and pursuant to s 68C of the Family Law Act 1975 (Cth).

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All other outstanding applications in a case are dismissed (subject to any costs application under the Rules).
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

IT IS CERTIFIED
11.Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bailey & Sykes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: CSC 133 of 2009

Ms Bailey

Applicant

And

Mr Sykes

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

On 30 May 2008 Mr Sykes (“the father”) sexually assaulted and raped his former partner, Ms Bailey (“the mother”). Sometime between 31 July and 3 August 2008 he again raped and sexually assaulted the mother, at that time the father was the subject of a domestic violence protection order in favour of the mother, which order he breached. These events occurred almost two years after the parties had separated.
At the time that the second of the assaults took place, the parties’ then five year old child R was present. That child tried to protect the mother and the child suffered emotional trauma.
As a consequence of the second assault, the mother fell pregnant and gave birth to the parties’ youngest child.
Police charged the father with two counts of rape together with various other charges relating to breaches of the domestic violence orders and a breach of bail conditions.
When the criminal proceedings were listed for a committal hearing at the Magistrates Court in October 2010, the father instructed his then criminal lawyer to try and reduce the seriousness of the charges by way of negotiation with the prosecution. This must be seen in the light of the father, through his legal representative, having notified the prosecution that he required the mother for cross-examination on that committal and her belief that the father had planned to expose her and the child to cross-examination in his defence of the charges.
The prosecution agreed to accept pleas of guilty to the lesser charges of ‘sexual assault’ on the mother. This acceptance was subject to the mother’s approval. The mother was approached by the prosecution authorities and accepted the reduction of those charges to avoid cross-examination of her and to avoid questioning and/or cross-examination of their then six or seven year old child.
As a consequence of that agreement, in October 2010 the father entered pleas of guilty to the two charges of sexual assault, the three charges of breach of a Domestic Violence Order and one charge of a breach of Bail Conditions. He was convicted of those offences and was sentenced to 18 months imprisonment for each of the sexual assault charges. The prison terms were to be served concurrently and both prison terms were wholly suspended upon the father being of good behaviour for a period of four years. Apart from the suspended jail sentence and the convictions no further punishment was imposed upon the father in relation to the charges.
In admitting these offences the father acknowledged to the Magistrates Court that he had on two occasions unlawfully sexually assaulted the mother. In submissions on sentencing and in mitigation of the offences the legal representative for the father asserted that the father was drunk and that alcohol was a factor in his behaviour. The father was present when the pleas of guilty were entered and when the sentencing submissions were made. I am satisfied that the pleas and submissions were made in full knowledge of the consequences arising from them and on the father’s express instructions.[1]
[1] Exhibit ICL2, Tab 15 letter from H A Mellick to the father dated 13 October 2010.
At the time of conviction, the father acknowledged that his eldest child R was present during the second assault and that this child suffered post-traumatic stress syndrome as a consequence of seeing and being exposed to the violence perpetrated by him on her mother.
In these proceedings the father sought to resile from this admitted history including, his admissions of guilt, the assertions that the child was traumatised and that he was drunk or that alcohol was a problem for him. The father’s retraction was breathtakingly arrogant and his assertions that nothing of consequence took place were patently false. His explanations to justify this approach were concocted. In adopting this tactic in the family law proceedings he imposed further emotional hardship upon the mother.[2] At the very least it was indicative of his failure to acknowledge, understand or address his abhorrent behaviour.
[2] Affidavit of Dr C filed 27 April 2012, Report dated 10 April 2012, at paragraph 5.4.

THE PROCEEDINGS

These are proceedings relating to the parenting arrangements for the parties children, R born November 2005 (and aged about seven and a half at the date of the hearing) and B born May 2009 (aged about three at the time of the hearing).
The mother seeks orders that the children live with her and that she have sole parental responsibility for them. In addition she seeks orders that the father have no contact or communication with the children and that he be restrained from any form of contact with the mother and the children. To give effect to the orders the mother seeks a further order that if the father breaches the injunctions made by this Court, he may be arrested without warrant.
The father does not dispute that the children should continue to live with the mother and that she has sole parental responsibility for them. However, the father seeks orders that he spends time with and communicates with the subject children. The father seeks orders to enable the children to spend supervised time with him with a medium or longer term plan that the children spend more time with him, including school holiday periods in Sydney.
For the reasons set out elsewhere, I determine that it is not in the best interest of either child to spend any time with or communicate with the father, and further, that should the father try to contact or communicate with the children and/or the mother he ought to liable to arrest without warrant. The father is an ongoing unacceptable risk to the children. I find that there is no overall benefit in the children having a meaningful relationship with him.
The Independent Children’s Lawyer supports the orders sought by the mother.
As I indicated earlier, these are proceedings to which there are significant allegations, findings and convictions against the father in terms of violence against the mother.
The issues are:-
a)the nature and extent of the violence perpetrated by the father on the mother and the eldest child.
b)whether in all of the circumstances the father should spend any time with or have any communication with the children, or either of them.
c)if the father is to spend some time with or communicate with the children and the nature of such time and/or communication.
d)whether there should be positive injunctions preventing the father from spending any time with or communicating with the children and whether any such orders ought to be supported with a provision for his arrest without warrant, if there is a reasonable belief that he has breached the injunction.
Both the mother and father are aged 34.
The mother has a child from a previous relationship M who was aged 13 at the date of the hearing. The parties eldest child, R, was born in January 2005.
The mother, the father and the children travelled between Sydney and North Queensland on a number of occasions between January 2005 and April 2006. The father asserts separation occurred in 2008. Having regard to comments and findings made elsewhere in these reasons, I find that the parties separated in April 2006.
After separation in April 2006, the mother continued to live in North Queensland. Communication between the parties was initially workable but deteriorated over the years. The father was physically, emotionally and sexually violent to the mother at an escalating rate from the time of separation.
The father denied that he has been violent or abusive to the mother at all.
I have set out earlier the findings about the assaults in May and July/August 2008 and the consequent criminal proceedings. At that time the Magistrate convicted the father of sexual assault charges he also made further domestic violence orders against the father to protect the mother. These orders were for a period of two years. Those orders were varied in February 2011 on the application of Queensland Police, and now expire on 9 February 2013.
On 16 December 2008 the father was convicted in the Magistrates Court of a Breach of a Domestic Violence Protection Order and was fined $400.
The mother commenced these family law proceedings in the Federal Magistrates Court in March 2009 and an Independent Children’s Lawyer was appointed. A family report was ordered and in September 2009 interim orders were made that the mother have sole parental responsibility for the children, that they live with the mother and the father have no contact with the children.
These proceedings came into my docket in 2011 and were heard by me in July 2012.
In these proceedings any statement of fact is to be regarded as a finding of fact.

The relevant legal principles to be applied

When determining orders the approach is governed by Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The objects of Part VII of the Act and the principles underlying them are set out in s 60B.
Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case) a Court exercising jurisdiction under that Family Law Act may make such parenting order as it considered appropriate.
The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the court must consider the factors set out in s 60CC of the Act.
If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must then consider the children spending substantial and significant time with each parent. In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable. If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424.
These proceedings were commenced before 7 June 2012, and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Family Law Act, and to ss 60B and 60CC that took effect on that date do not apply to these proceedings, and the provisions in force immediately before that date continue to apply.

THE EVIDENCE

Evidence of the mother

The mother gave evidence in accordance with her affidavits filed 5 March 2009, 19 March 2009, 13 May 2009, 17 August 2011, 21 May 2012 and 3 July 2012. She was cross-examined by the father and the Independent Children’s Lawyer.
The mother sought permission to give her evidence by video link which was supported by the Independent Children’s Lawyer and opposed by the father. I determined that the mother ought to give her evidence via video link and she did so. For the remainder of the trial she attended by way of telephone link from a secure site.
The mother’s evidence was that she had been the victim of an escalating level of violence, intimidation and sexual assault by the father. She separated in April 2006 and she reiterated the statements made by her to the police, which statements were tendered into evidence.
In terms of R the mother said she is an anxious child. The mother tries to shield her from these proceedings as much as possible. The mother was shown material from a tender bundle by the Independent Children’s Lawyer and confirmed that R had trouble with change (and it was not necessarily male teachers) and that R was from time to time anxious and scared but was otherwise a happy child who generally felt safe.
The mother says that her elder daughter, M, is struggling with emotional concerns.
The mother was asked about some presents that the father had made available to R. In relation to some of the Christmas gifts she asked R if she wanted them and R declined to take them. On one occasion a friend of the father’s dropped a bike off and the mother said that she asked him to take the bike away. The mother said talk of the father made R scared and it was necessary for her to take the child to see a psychologist. Since the father’s conviction for the offences referred to earlier, the mother has only received two text messages from him which she referred to her solicitors and which were raised in correspondence to the father’s then lawyers in December 2010.[3]
[3] ICL2 Tab 16.
The mother was an impressive witness. She listened carefully to the questions and answered frankly to the questions when asked, including questions from the father. She had at least one opportunity to exaggerate her evidence. That was in terms of the question raised by the Independent Children’s Lawyer as to whether R was afraid of men. Her response was in the negative and she referred to it by way of change.
Her evidence was clear and cogent and was generally supported by objective material such as police reports, prosecution statements and the father’s pleas of guilty (to a limited extent) to the two charges of sexual assault, the three breaches of the Domestic Violence Orders and the breach of bail conditions.
I generally accept her evidence.

Evidence of the maternal grandmother

Ms T Bailey is the children’s’ maternal grandmother and gave evidence in accordance with her affidavit of 25 March 2009. Her evidence was consistent with that of the mother. The maternal grandmother confirmed that the mother separated from the father in 2006 and that the father’s arrangements to spend time with R were difficult.
She observed the father was intoxicated from time to time and she said he would become ‘nasty’ when the mother would object to him taking R. The maternal grandmother’s evidence was of escalating violence by the father following separation.
The maternal grandmother provided evidence of an incident in November 2008 which was violent. The children were present and to they were exposed to the violence of the father. She said at paragraph 25 of her affidavit:-[4]
I have seen [the father] grab [the mother] by the throat in a strong grip and threaten that she would always be his and she would never belong to anyone else. I have also been present when [the father] has squeezed [the mother’s] arm so hard he has left bruising while telling her when he wanted sex with her he would just help himself. I have had to ask [the father] to take his hands off [the mother] as he was hurting her and upsetting the children.
[4] Filed 25 March 2009.
The maternal grandmother was cross-examined and I find her evidence is consistent and is generally reliable.

Affidavits read into evidence

A number of affidavits were read into evidence on behalf of the mother without objection by the father, those being those of the lay witnesses and Dr S, Dr K and Dr E, listed below. I raised with the father, on the day before the hearing commenced (2 July 2012) and again on the day of the hearing, the consequences of not calling witnesses to be cross-examined. The father said he understood what I was saying and accordingly such evidence was treated as being uncontentious.

Evidence of paternal grandfather

Mr V Sykes is the paternal grandfather (“the paternal grandfather”) of the children. His affidavit filed 22 May 2012 was read into evidence. He gave evidence as to the impact of his Christian name (the same as the fathers) on R including some comments she made about him. He now is called ‘grandad’ to minimise the impact on the child.
The paternal grandfather also gave evidence contained in his affidavit filed 19 March 2009 of the threats made to the mother by the father. That evidence was admitted without controversy.

Evidence of Ms L

Ms L is the partner of the paternal grandfather. She provided evidence in accordance with her affidavit filed 19 March 2009. Some of the material in that affidavit was of a hearsay nature and I have not had regard to that particular material. She has provided evidence in relation to the impact of the father’s behaviour on R, to which I have had regard.
Ms L was not required for cross-examination and her admissible evidence was admitted without controversy.

Evidence of Ms A

Ms A is a friend of the mother’s sister and an acquaintance of the mother. The mother was renting a residential property from her.
The mother disclosed to this witness that the father had forced himself upon her and the mother was distressed and in tears when she disclosed this to Ms A. It is not clear when this statement was made to Ms A. Having regard to its prejudicial value as against its probative value and in the circumstances of the father being self represented I have not had regard to this evidence in concluding that the father raped the mother. Ms A’s evidence is supportive of the fact that the father and mother were not cohabitating at that time.
Much of the other material in Ms A’s affidavit is of little weight by nature of it being hearsay or argumentative.

Evidence of Dr S

Dr S provided evidence contained in his affidavit of 14 June 2011. It included a complaint by the mother in September 2008 that the sexual relations between herself and the father in late July/early August were not consensual. Dr S provided evidence that the mother was suffering from depression and anxiety and that she is seeking psychological help and taking anti depressant medication. This evidence was not challenged and was admitted without controversy.

Evidence of Mr G

Mr G provided evidence in his affidavit filed 3 July 2012. He is a counsellor assisting the mother. There was no evidence of his qualifications, if any. He described himself as a Case Manager working for ‘Community Organisaiton P’.
He provided evidence of the distress he observed in the mother with the upcoming family law proceedings. I accept his evidence of his observations. I do not accept his evidence as being that of an expert.

Evidence of Dr C

Dr C is a psychologist who prepared a family report in August 2009 and a further assessment in April 2012. That material was read into evidence without controversy. The professional qualifications of Dr C were not put into issue.
There was some cross-examination of Dr C by the father in terms of conversations she had had with him and the mother.
I am satisfied with the qualifications of Dr C. Dr C recommended that the children have no contact with their father. She later says at paragraph 9.2 of her April 2012 report, that any contact between the children and father be suspended until the anxiety R experiences as a result of potential contact with him has been adequately treated. She also recommended that the mother undertake to have R treated so that her anxiety can be moderated so as to eventually engage in a meaningful relationship with father, that any contact be supervised during the initial stages. The doctor struggled with the history provided by the parties, particularly that of the father. Dr C observed that the mother had become more settled since the father’s conviction in the criminal court but does not trust the father.
In her first affidavit and report, Dr C recommended and/or observed:[5]
[5] At paragraphs 11.2, 11.3 and 11.3.2 of the Family Report dated 17 August 2009.
a)[R] has witnessed a significant amount of violence and is afraid of [the father]. Her therapist has indicated that [R] is experiencing Post Traumatic Stress Disorder like symptoms and given her reaction to our meeting, is still traumatised by thoughts/memories of her father’s violence that she has witnessed.
b)Until [R] has resolved these fears it is expected that seeing or hearing from [the father] would be traumatising for her.
c)… [R] continue in the therapeutic process in which she is engaged with Ms. [T]. It is hoped that this process will begin to mediate her distress and eventually desensitise her such that she can, when she is ready, commence seeing and/or hearing from her father again.
d)Once the therapeutic process is complete, any initial contact between [the father] and [R] should be supervised so that [R] feels safe with [the father] and their relationship can develop in a safe environment.
e)In the meantime, it is recommended that [the father] not attend unannounced at [the mother’s] residence or at [R]’s day care centre.
f)[The father] complete an Anger Management Program and the Parenting Orders Program and/or the Focus on Kids Program run by Relationships Australia. These will help him be child focused and moderate his angry outbursts and propensity to breach Domestic Violence Orders.
g)Given [R]’s distress, [the father] should not have any contact with her until he has completed the abovementioned Programs and she is in an appropriate state to see him.
h)[The mother] has been medicated for anxiety disorders and her medical records indicate that she has experienced some difficulties with Major Depressive Disorder. In the context of her experiences with [the father], with a particular emphasis on the breaches of the Domestic Violence Order, her state is understandable. However, it is possible that she is imparting her anxiety to her children. As such it is recommended that [the mother] attend the Parenting Orders Program and/or the Focus on Kids Program run by Relationships Australia.
i)Additionally, if she is experiencing significant levels of distress, and this may occur if [the father] returns to [North Queenlsand], then it is suggested that [the mother] attend therapy such that she can moderate her distress and learn protective behaviours for herself as well as her children.
j)Although not causing her or her children significant distress, [the mother] might consider addressing her inappropriate anger management which is a result of her ‘meek’ interpersonal style in the abovementioned therapeutic intervention.
k)Given her distress it is recommended that [R] continue with the therapeutic intervention with Ms. [T].
l)Also recommended is that [R] not be re-interviewed until her state has been moderated through therapy and she is more settled. To be questioned about her relationship with her father, although not evident during the interview, understandably caused her distress which later resulted in some behavioural and emotional difficulties for her.
In her second report[6] Dr C expressed the following concerns:-
a)[R]’s continued anxiety around having any contact with [the father];
b)Any influence contact between [the father] and [B] may have on [B], [R] and [the mother]; and
c)[The father’s] reluctance to accept responsibility for his actions and the ongoing repercussions of same.
[R]’s state is the pivotal factor in this matter. Until she is able to negotiate the concept of spending time with her father without overt anxiety, contact between them cannot be recommended. It is hoped that therapy will help [R] moderate her distress such that she can, in the future, commence the process of developing her relationship with her father. However, this will likely take some time, the length of which is difficult to determine.
[6] Dated 10 April 2012, at page 16.
The focus of the report seems to be predicated upon the children and father, at some stage, meeting with an intention to create a relationship and/or restore a relationship. Dr C is troubled by the father’s presentation and his view of the facts.
I had the opportunity of observing and hearing the father throughout the trial and I am satisfied that he is unlikely to have the self awareness such as would enable him to address the concerns raised by Dr C. It is clear that the mother is still frightened of the father and that she doesn’t know how she will cope if the Court decides to let the father see the children. It is equally clear that R does not wish to have any communication with the father.

Evidence of Dr K

Dr K provided two affidavits, one dated 29 September 2011 and the other filed 24 June 2011. Dr K, like Dr C, struggled with the context of the facts. He concluded that the father does not suffer from any psychiatric disorder. In his second report he was provided with further information and continued to conclude that the father had no psychiatric condition. Dr K, correctly, said it was a matter for the Court to determine how violent the father had been and how frightened the mother and R are of the father.

Evidence Dr E

Dr E is an experienced Paediatrician who was appointed as a single expert to provide a report in respect of R’s anxiety issues. Dr E provided his report dated 22 December 2010, which was contained in his affidavit filed 10 February 2011. His report and curriculum vitae were read into evidence without controversy. There was no issue about his qualifications or his diagnosis. Dr E opined:-[7]
It is my opinion that her [R’s] anxiety will worsen considerably and will be detrimental long term if she is forced to have contact with her biological father. She did say to me she was scared of him and didn’t like him anymore.
[7] At page 1 of Dr E’s Report dated 22 December 2010.
I accept his opinion.

Evidence of Ms T

Ms T provided two reports contained in her affidavits filed 11 March 2009 and 4 May 2011. She is a Social Worker with extensive academic and practical qualifications and clinical experience. She recommended that R have no contact with the father.
R was referred to Ms T indirectly through the Queensland Child Protection Agencies having regard to the impact on the child arising from the sexual assault of the mother by the father in 2008. She is R’s therapeutic counsellor. Ms T was criticised by the father as being part of a conspiracy against him.
The father required Ms T to be available for cross-examination and did not consent to her giving evidence other than in person or by video-link. A video-link was established for the purpose of that evidence. The father’s cross-examined Ms T.
Ms T’ believes that R is at risk of physical and psychological harm as a consequence of the attempted abduction of her, breaches of the Domestic Violence Orders, being a young child and the witness of domestic violence and sexual assault, threats made to kill the mother and the children and other threats. Ms T concluded that the child R ought not be required to see the father against her wishes, which she says the child made clear to her.
I accept her evidence as to the risks to the child if the child sees the father.

Evidence of Mr U

The father relied upon an affidavit of Mr U filed 21 July 2011 which was read into evidence. Much of the evidence of Mr U was hearsay and contained little, if any, relevant evidence. There was some description of an exchange of emails between Mr U and the mother. The mother had given evidence in respect of that and on balance I prefer the evidence of the mother.
Mr U’s evidence did not add much to the determination of the relevant issues.

Evidence of the father

The father relied upon his affidavits filed 21 July 2011, 10 January 2012, 26 March 2012 and 3 July 2012. That material was read into evidence subject to weight.
The father asserted that he saw the child R regularly after separation in 2008. He also said there was some agreement, in 2008, that R would spend significant time with him.
The father was shown a video of R when she was interviewed by the police in February 2010. When asked to comment on that video he said his view was that the child had been ‘brain washed’ and that the child’s memories of the attack in late July/early August 2008 were fabricated.
This evidence was assessed in the context that the father, when entering his pleas of guilty to the sexual assault charges, acknowledged that the child suffered emotional trauma.
By way of explanation the father said that he didn’t understand what was going on at the time and entered pleas of guilty to the lesser charges because he was persuaded to by his criminal lawyer.
Part of the material before the Court was a letter to the father’s criminal lawyer dated 13 October 2010. In that letter the lawyer confirmed the following:-[8]
·The discussions [about a lesser charge] with the police prosecutor were at the instigation of his criminal lawyer.
·The consequence of the agreement reached between his lawyer and the prosecution was that the existing rape charges were withdrawn and that the father would plead guilty to the two charges of sexual assault and that the father pleaded guilty to three charges of breaches of a Domestic Violence Order and one charge of breach of bail conditions. The father was sentenced to eighteen months imprisonment which was wholly suspended provided he entered into a bond to be of good behaviour for four years. His lawyer observed:-[9]
It is absolutely essential that you do not have any contact whatsoever with the Complainant [the mother] other than strictly in accordance with the order made by the Family Court and in this regard you will be guided by your family law solicitor.
[8] Exhibit ICL2, Tab 15.
[9] Ibid.
Notwithstanding that warning and the fact that a new Domestic Violence Order was put in place, the father sent two text messages to the mother in December 2010.
The father’s criminal lawyer also observed that it was:-[10]
to the credit of the Complainant [the mother] that she agreed to the resolution of these charges. The charges would not have been resolved had [the mother] not so agreed.
[10] Ibid.
Yet the father asserted that the agreement was entered into without his meaningful understanding. I do not believe him.
As to the text messages, the father either denied or prevaricated in relation to the sending them. I do not believe him.
The father was content to defend the matter; the charges had not changed, and expose the child R and the mother to cross-examination in the criminal law system. He is entitled to do that but it reflects on his approach to parenting. He gives the mother no credit for facilitating the reduction of the charges. Perversely the father blames the mother for taking the criminal prosecution against him, yet the evidence from a statement of the police, was that the mother did not want to press charges; it was the police who gathered information and then took action.
In the police interview the father denied having sexual intercourse with the mother in early May or between 31 July and 3 August 2008. However, after the father discovered that the youngest child of he and the mother was conceived in about August 2008, the father then said that child of the parties was conceived by way of consensual sex between he and the mother on or about 18 August 2008.
The problem with that explanation was that the mother denied this version. The child’s paternal grandfather gave evidence that he was staying at the mother’s home at that time, having caught a flight to Northern Queensland on 15 August 2008 and remained there until October 2008, and he observed that the father was not living at the home and that the mother avoided having contact with the father. The paternal grandfather described the unhappy relationship between the mother and father at that time. Up until this point the father’s assertion was possible, although unlikely.
To assist in the father’s version he annexed three medical reports to his affidavit filed 10 January 2012. The first from Dr H who said :-
…According to u/s report dated 30/9/08 her expected date of delivery is 11/5/2009. Assuming her periods are normal 28 day cycle her last normal menstrual period would have been 4/8/08 and most likely would have conceived on or about 18/08/08. I am informed that both parties were cohabiting together and not in any dispute at that time …
The father also annexed a pregnancy ultrasound report of an examination on 30 September 2008. In that report Dr Y noted a foetus with a gestational age of 8 weeks and 1 day. This was confirmed in a report from Dr S also attached to the father’s affidavit. Dr H did not provide an affidavit and was not called and his evidence seems inconsistent with that of Dr Y and Dr S.
The father’s assertion that he had had sexual relations with the mother on 18 August 2008 and not between 31 July and 6 August 2008 was, in my view, an invention to assist him with his criminal proceedings.
His assertion that he had been living with the mother and having a relationship with her on 18 August 2008 or thereabouts was untruthful. The father conceded in his plea of guilty that R was present at the time of the late July/early August assault but denied it when giving evidence in these proceedings.
The father is aware that R has been traumatised by those events and yet, despite the impact on her, he said he wanted to use these proceedings to ‘prove his innocence’.
A protection order was made on 14 April 2009.[11] That protection order did not include an objection to the father contacting the mother. The absence of that provision was continued in the order made in the Magistrates Court in October 2010 and subsequently remedied. That meant that the text messages which the father sent the mother in either 2009 or 2010, including the threats of death and of burning the house down, may not have been in breach of an express order not to make contact, although they were clearly threats.
[11] Exhibit M4.
The father says that he did not make those threats although he admitted that he did communicate by text with the mother. He asserted, in evidence, that someone may have picked up his mobile telephone and sent the text to the mother. That assertion is arrant nonsense.
I am satisfied that the texts were sent by the father and they are of a violent and threatening nature.
The father was an entirely unsatisfactory witness who asserted that anyone who disagreed with him was telling lies. He was highly critical of Ms T and said that she was associated with the mother notwithstanding that the child had been referred to her by the Queensland Child Protection Authorities. He said that the police had been telling lies in their statements about events and denied facts to which he admitted in terms of the events at the maternal grandmother’s home where the children were terrified, his alcohol use, his threats in emails and/or texts to the mothers.
The father was not a witness of truth.

Some of the tendered material

Tendered into evidence by counsel for the mother are the facts of the prosecution[12], which the father acknowledged and upon which he entered pleas of guilty on the two charges of sexual assault, the three charges of breach of the Domestic Violence Order and one charge of breach of bail conditions.
[12] Exhibit M5.
Those were:-[13]
[13] Ibid.
1 x Sexual Assault (30/5/2008)
…At around 9.00pm on 30 May 2008 [the father] arrived by taxi. He was drunk. Around that time the couple were married but separated. Although during this period [the father] would come and go as he pleased. [The father] was perhaps under the illusion of reconciling the marriage. On this day however [the father] wanted [the mother] to pay for the taxi. [The mother] had no money on her and due to the fact [the father] appeared to be somewhat aggressive [the mother] entered into an arrangement with the taxi driver whereby she would later pay the outstanding fee.
The taxi driver left and [the father] followed [the mother] into the house. [The father] was very drunk and aggressive and under the circumstances [the mother] allowed him to sleep on the couch. [The mother] went to bed to read and after a short while [the father] entered the bedroom [I have omitted the details of the assault]. … [The mother] immediately rebuked this unwanted attention by pushing [the father] away and instructing him to get out of the room which he did. Police were called and [the mother] was removed to her mother’s residence.
1 x Sexual Assault (30/7/2008 - 06/08/2008)
[The father] in this matter is the respondent under a Domestic Violence Order. The order was issued on 05/06/08 at […] Magistrates Court. The order names [the father] as respondent and [the mother] as aggrieved [protected person].
The order consists of mandatory conditions plus the condition that [the father] is prohibited from going to, entering or remaining on the premises where [the mother] resides.
At the time of the offence [the father] and [the mother] were estranged and [sic] no longer been residing as a couple.
At the time of the offence [the mother] and [the father] had one female child who was then three years of age.
On a date between 30/7/2008 to 06/08/2008 [the father] attended the residence of [the mother].
[The mother] was hanging her washing in the backyard. [The father] arrived and appeared to [the mother] to be somewhat intoxicated.
[The mother] did not want to speak to [the father] and went inside the house, however, could not lock the door behind her as the rear sliding door of the dwelling had a lock that was not operable at that time.
[The mother] then went inside the bedroom and closed the door. She lied down in her bed where the child [R] was already asleep.
[The father] entered the house and proceeded to [the mother’s] bedroom. [The charge then details the sexual assault of the father on the mother].
The child [R] was awoken by this incident and started screaming at [the father] words to the effect ‘Get off my mummy’, ‘get off my mummy, you are hurting her’.
As a result of this incident the second victim, [R] was diagnosed by a child therapist as suffering traumatic stress syndrome.

1 x Breach of DVO (10/12/2008)
On 10 December 2008 [the father] came to [the mother’s] address and was knocking on the door for some time.
[The mother] had not answered the door and [the father] left after a while.
[The father] stated that his lawyer was in court on Thursday 5 March and the charges in reference to the DV were all dropped. [The father] was explained that according to checks conducted with the current DVO conditions the defendant [the father] was not supposed to be attending to where [the mother] resides. [The father] was then transported to [D] Police Station.
[The father] was then transported to the [D] Police Station. [The father] was cautioned under PPRA and stated he did not know anything about the [order]. Police then showed [the father] a copy of the DVO with [the father] and the date of 5/6/2008.
[The father] then stated he did not wish to be interviewed.
[The father] was arrested in this matter and other related matters and [the father] was objected [sic] the bail and remanded in custody to answer the matter in […] Magistrates Court.

1 x Breach of DVO (11/12/2008 – 07/01/ 2009)
Between 11th December 2008 and 7th January 2009 [the father] made numerous phone calls to [the mother]. Some were in fact pleading with [the mother] to get back with him, others were of a threatening nature. In four different messages to [the mother’s] mobile [the father] stated to [the mother] “I will stalk you to [sic] the rest of your life”, “don’t sleep alone”, “I am going to burn your house down and kill everyone” and “be very careful”.
[The father] stated that he did not wish to be interviewed.
[The father] was arrested in this matter.

1 x Breach of DVO (11/03/2009)
At approximately 11.30am on 11th March 2009 police were called to attend … [D]. Police were advised that [the father] had attended at [the mother’s] address. The police attended at the address some time later and observed a male person standing in the driveway of [the mother’s] home. Police spoke to the male person who stated his name is [the father]. The police asked [the father] what he was doing [the father] stated that he was trying to get inside the house to pick up some gym equipment.

Breach of bail conditions
On 17 December 2009 the father entered into a bail undertaking which included that the father should not contact the mother. On the day he entered into the bail undertaking the father subsequently sent two text messages to the mother.

DISCUSSION

On 30 May 2008 the father attended at the mother’s premises while intoxicated. The police were called after the father had sexually assaulted the mother.
When the police arrived, they observed that the mother was visibly upset and afraid of the father. The mother reported to them that the father had threatened her by saying:- [14]
…You know who I am, don’t fuck with me, there will be hurt, there has been before and they will do it again.
[14] Exhibit ICL2, Tab 1.
I accept that this was a threat made by the father to the mother at that time and that the father was affected by alcohol at that time. The police observed that the father made derogatory remarks about the mother to the child (it is not clear whether this child was R or M).
As to late July or early August 2008, the father initially denied having sexual intercourse with the mother at that time. When he discovered a child had been conceived at that time, and DNA tests revealed that he was the father, he asserted he had surreptitiously visited the mother on 18 August 2008 and had consensual sex with her. The evidence about the time of conception is unsatisfactory. However, the mother deposes to the attack in her affidavit filed the 19 March 2009, the paternal grandfather gives evidence of the poor relationship between the father and mother at that time, and the father asserted to the Magistrates Court that he sexually assaulted the mother in very early August or late July. The father now seeks to repudiate that admission. He offered no explanation as to his statement to the police about the then alleged rape. R has a recollection of the event and has suffered emotional trauma as a consequence of it. The father asserted that the child had been coached. There is no evidence to that effect and it is significant (to say the least) that the father acknowledged, when admitting to the sexual assault of the mother at that time, that the child was present and suffered trauma.
The father is not a reliable witness and I accept the mother’s evidence. I find that the father had non consensual sex with the mother on 30 May 2008 and again between 31 July and 6 August 2008. In making these findings I have considered the available evidence, on the civil standard, but in doing so I have had regard to s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”).
The father’s intimidation of the mother continued through 2008 and onwards, despite the Domestic Violence Protection Order. The evidence of the mother, the children’s maternal grandmother and the children’s paternal grandfather is that there were ongoing threats from the father throughout the second half of 2008. I accept that evidence.
I find that between 11 December 2008 and 7 January 2009 the father sent text messages to the mother threatening to kill her, burn her house down and kill her family. The father entered a plea of guilty to the breach of the Domestic Violence Order to that end and subsequently resiled from it. I do not believe him. He caused the mother stress and anxiety in a number of serious and frightening texts which he sent her.
In her case outline filed 2 July 2012, the Independent Children’s Lawyer set out a history of the threats. After the events on 30 May 2008 the police applied for a Domestic Violence Protection Order for the benefit of the mother. That order was granted, without admissions, on 5 June 2008.[15]
[15] Annexure JMB2 to the mother’s affidavit filed 5 March 2009
On 15 October 2008, whilst the mother was visiting the home of the maternal grandmother with the child, the father burst into the maternal grandmother’s home and tried to take R. He was making threats about the Department of Child Safety. The father denied this event, however I am satisfied that it occurred in the way the mother described. This would have been a frightening incident for both M and R.
On about 29 November 2008 the mother, her two children and two Japanese students were at the maternal grandmother’s home. The father came to the maternal grandmother’s home uninvited and as the mother sets out in her affidavit filed the 5 March 2009[16] that he demanded to speak to her and demanded to take R. He pushed the mother out of the way and grabbed R from the couch. R was screaming and wanting her mother. The father then pushed the mother in the chest causing her to fall back on the couch.
[16] Annexure JNB3.
The child M was holding R and was hit in the stomach by the father. Members of the mother’s family became involved and the father was told in blunt terms to leave the home.
His response was:-[17]
I am going to kill you all and I am taking [R].
[17] Ibid.
He stormed out of the house but came back ten minutes later. The police arrived and the father was arrested. Shortly after this occurrence the father was convicted of breaching a domestic violence order. It is not clear which event gave rise to this conviction. He was fined $400.
In November 2008 the child R was referred to Ms T for assistance having regard to the impact of the events on her. On 19 November 2008 the father visited the mother’s brother’s house. He demanded sexual intercourse from the mother using vulgar and offensive language. The mother said she had locked all the doors.
On 10 December 2008 the father came to the mother’s home and the children ran and hid. There were a number of incidents in late 2008 where the father went to various homes and threatened to take R, and she consequently became distressed and frightened.
Between 11 December 2008 and 7 January 2009 the father made threats both spoken and written that he would ‘stalk the mother’, ‘burn the house down’ and ‘kill everyone’. I accept the mother’s evidence in that regard.
In February 2009 the mother says, and I accept, that she received a telephone call from the father where he threatened to shoot the Departmental people and anyone who stood in his way. He told the mother he was ready to ‘snap’ and ‘understood why the dad threw his kid off the bridge’.
The mother sought to vary the Domestic Violence Order to add the children to it, that application was unsuccessful and she subsequently filed proceedings in the Federal Magistrates Court.
On 14 April 2009 a further protection order was made which was then followed by further protection orders in 2010 and January/February 2011.
Having regard to the evidence, it is clear that the impact of this violence on R has been profound and is continuing. The violence and abuse viewed by R and to which she was at times subjected, the threats made by the father in respect of ‘taking her away’, together with the associated violent abuse have had a profound effect on her. The father, at one stage, acknowledged the trauma on the child when he pleaded guilty to the sexual assault charges in the Magistrates Court. He has now resiled from that and shows no insight as to the effect of his behaviour on the child.
It is significant that the mother compromised in respect of the criminal charges to spare herself, her family and R from the trauma of the criminal proceedings. The father was content for the child to endure that criminal law process.
The father does not accept the comment by his then criminal law legal practitioner, Mr Mellick, that the mother ought to be given credit for her approach.
Ms T’s evidence in respect of the child R was not seriously challenged and confirms that the child was struggling with the trauma associated with the violent events to which she was exposed in 2008.
Such is the impact of the father’s behaviour on the child, that the child was upset at the Christian name of her paternal grandfather (which is that of the father). The paternal grandfather has observed the reactions of the child to the use of that name (he was not called for cross-examination and his evidence was not challenged). The evidence of the paternal grandfather was supported by evidence of his partner Ms L.
The impact of the father’s behaviour on the child R has been set out in detail in the affidavits of the mother and the maternal grandmother. This impact is continuing. Part of the material before me, where the documents were tendered from the child’s school and R’s year 2 teacher, described a number of occasions when the child R said she was scared or frightened because the child said ‘I think he is here’.
In Exhibit ICL 2 (Tab 27) and Exhibit ICL 2 (Tab 28), in an exchange of emails between a teacher and the Principal, the school records reveal:-
[A teacher] has advised she has spoken to you about [R] in my class and her upcoming court case. Last Friday I was out of my classroom and had a male teacher for relief. R had trouble starting the day off with a male she didn’t know. She spent part of the morning with me and finished the day fine in my classroom. My concern is that I will be away this Friday and I will have a different male teacher in my room. I will not be at school to help [R] adjust and I was wondering if I could swap relief teachers for a female to come into my room? …
The last occasion, reported by the year 2 teacher, was on 20 June 2012 when the child expressed concern in the playground.
Counsel for the Independent Children’s Lawyer submitted that the father lacks insight, blames others and takes no responsibility for his behaviour. In this case that submission is an understatement.
The father required the mother to attend court and give evidence face to face notwithstanding his pleas of guilty to the assaults upon her.
The father, when interviewed by the police in early 2009, used a derogatory term in respect of the mother’s name. He shows no remorse or understanding of or about his behaviour and its impact upon the mother and children.
Counsel for the Independent Children’s Lawyer submitted as to the s 60CC(2)(b) factors:-[18]
In the Report from [Ms T] dated 18 February 2009, Ms [T], an Accredited Mental Health Social Worker reports that she is advised by the mother that [R] and [M] had witnessed verbal and physical domestic violence; that there had been threats made to kill the mother and the children; death threats had been recorded on the family home phone message bank.
The mother stated that [R] hid in cupboards and under the bed and “clings to mum.” [R] had frequent nightmares and that both [R] and [M] slept with their mother due to intense fear and insecurity.
The mother in her Affidavit filed 13 May 2011 (Paragraph 12), states that the reason she agreed to the proposed deal i.e. reducing the charges from two counts of rape to two high range sexual assaults was so that [R] would not have to give evidence.
[Ms T] in her Report dated 29 April 2011, stated that during therapy sessions [R] displayed symptoms which indicated post traumatic stress. [R] tells [Ms T], “The family has died. The police came. Dad is angry. He wants to take me.”
[Ms T] in her Report dated 29 April 2011 says at point 16 that traumatic memories are stored differently in the brain compared to everyday memories. At point 20 of the Report Ms [T] states, “Trauma in childhood is thought to create additional harm because it overwhelms the child’s developing sense of self and coping mechanisms (Herman 1992, cited in Laing) feelings of helplessness, fear of death and a state of constant alertness are the daily burden of children living with chronic violence and abuse.
The Report writer refers to the research which explores the impact of exposure to trauma during infancy on the developing brain. Perry et Al (1995) propose that, because the brain is most “plastic” (receptive to environmental input) in early childhood, the child is most vulnerable to the impact of traumatic experiences during this time. Exposure to extreme trauma at this stage is thought to change the organisation of the brain (Schwartz and Perry 1994), resulting in difficulties in dealing with stressors later in life (Cited in Laing 2000).
[18] At pages 15 and 16 of the Independent Children’s Lawyers Summary of Case Document filed 2 July 2012.

I accept and adopt those submissions. In addition Ms T says if R is forced to have contact with the biological father, it will seriously place the mental health and development of the child at further harm. I accept that evidence.
In relation to the mother’s credibility, counsel for the Independent Children’s Lawyer submitted the mother was credible and her anxiety was obvious. I accept that submission.

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;

The Full Court in McCall & Clark (2009) FLC 93-405 set out the law in respect of a meaningful relationship and said at paragraphs 119 and 122:-
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
…
In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The facts in this case are such that R is scared of the father and has been traumatised by him. The father has taken no meaningful steps to acknowledge his behaviour to the family, this child and to the mother. His behaviour can best be described as a reign of terror, from at least 2007 onwards.
I do not accept that the father has the ability to be child-focused, this is demonstrated by the father endeavouring to take the child contrary to the mother’s wishes and retain the child amongst all of the other matters to which I have already alluded.
The child R has been present when the father made threats to kill the mother and family members; she has never had contact with the father and does not know of him. Yet the father resiles from all of his behaviour, even that to which he conceded in the Queensland Criminal Court system.
There is generally a benefit in a child having a meaningful relationship with both parents. In this case the violent and abusive behaviour exhibited by the father to R and the mother is extreme and persistent. His behaviour was not modified by the Domestic Violence Orders and even during the hearing of these proceedings the father said words to the effect that a primary factor was his desire to restore his reputation.
Counsel for the mother submitted:-[19]
The mother endeavoured to promote a relationship between the child [R] and the father after separation in 2006 however it is the position of the mother and her witnesses that the father remained obsessed with the mother and was unable to accept that the relationship had ended. It is submitted that the father simply used the child [R] as a means to see the mother.
There are serious concerns about the father’s ability to be child focussed and act in the children’s best interests. [R] has clearly been exposed to violence, threats and abuse from the father towards the mother. The child was present when the father was raping the mother on 31 July 2008. The child obviously saw that her mother was distressed and said to the father “Get off my mum. Don’t hurt my mum”. The father has made numerous threats to remove [R] from the mother’s care.
The child [R] has been present when the father has made threats to kill the mother and other family members.
The child [R] has been involved in a tug of war between the mother and father when the father has forcibly attempted to remove the child [R] from the mother’s care.
The child [B] was conceived as a result of the father raping the mother. The father initially denied that the child could be his forcing the mother and child to undergo DNA testing. The father was subsequently charged with 2 counts of rape against the mother. In a deal with the police the father on the advice of his experienced criminal lawyer pleaded guilty to 2 counts of sexual assault against the mother on the 12 October 2010.
[B] has never had contact with her father. [R] has had no contact with her father since November 2008. [R] was diagnosed with PTSD as a result of the father’s violence towards her and her mother. [R] continues to be distressed about the thought of having any contact with the father.
It is submitted that the court would be very concerned about the welfare of the children in spending any time with the father.
It is the mother’s case that both children will gain no benefit from spending time with their father.
[19] At paragraphs 7 and 8 of the Mother’s Summary of Argument filed 29 June 2012.
I accept those submissions and find that the children will derive no positive benefit by this Court endeavouring to design orders to foster a relationship with the father as it would not be in the children’s best interests.

I accept and adopt those submissions.

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child's family, if:

(i) the order is a final order; or
(ii) the making of the order was contested by a person;

I have had regard to the various family violence orders made and the underlying facts. The father’s approach to the orders has been by way of denial and obfuscation. The orders are made in the circumstances asserted by the mother and I have had regard to her evidence provided in those proceedings and in these proceedings.
I have had regard to the findings of the Magistrates Court and the other matters to which I have alluded to elsewhere in these reasons.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

Counsel for the Independent Children’s Lawyer submitted:-[29]
The father states he has done nothing wrong. He states his Criminal Lawyer and two Family Lawyers have given him bad advice.
Dr [C] recommends that [R] continue to have therapy to mediate her distress and eventually desensitise her such that she can, when she is ready, commence seeing and/or hearing from her father again.
The Report Writer recommends that once the therapeutic process is complete any initial contact between the father and [R] should be supervised so that [R] felt safe with her father and that the relationship could develop in a safe environment.
The Report Writer states that given [R]’s distress, the father should not have any contact with her until she is in an appropriate state to see him.
The child is still having Counselling through school.
The Independent Children's Lawyer does not support any Orders that the child should have time with her father.
It is not a father’s right to have time with his children. The Court must consider whether there could be the development of a meaningful relationship between [R], [B] and her father.
The Independent Children's Lawyer could not even recommend supervised time between the father and the two children. The Independent Children's Lawyer would not support any telephone time between the father and the children nor permitting the father to send gifts to the children.
[29] At page 20 of the Independent Children’s Lawyer’s Summary of Case document filed the 2 July 2012.
I accept those submissions. Such as the violence displayed by the father to the mother, that door must be left firmly closed so that the mother’s emotional and psychological welfare is preserved and that the children are protected from abuse and violence.

Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(a)has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

As I have discussed elsewhere the father has failed to maintain both children. He has the capacity to do so but shows little regard for the financial needs of the children.
The mother asserted that she was reassured at the time the father was convicted of the criminal offences that if he made a telephone call he would serve his sentence of eighteen months imprisonment. Some months later when the father sent presents to R, two text messages to the mother and telephoned the mother to call her a ‘slut’ it was discovered that by some error the Domestic Violence Order had the standard no contact orders.
The Police applied for a variation of the Domestic Violence Order and that was made. The mother says she received telephone messages from the father on 3 and 4 December 2010 and 8 January 2011 (before the Domestic Violence Order was changed).
The father persisted in his course of conduct irrespective of the adverse impact it caused upon the mother and the children.
In terms of parental responsibility, having regard to the findings of fact and the discussion elsewhere it is clear that there ought to be an order that the mother have sole parental responsibility for the children and I intend to make that order.
In the light of all of the evidence it is clear that the children should continue to live with the mother as she provides a safe, secure and loving environment for them. I will make that order.
For the reasons set out earlier, I will be making a positive order that no communication or time between the father and children should take place.
Further, the father has shown a flagrant disregard of domestic violence orders and disregard for the normal standards of human behaviour in our society. The mother has sought, and I will put in place, orders restraining the father from approaching herself or the children at their home, school or elsewhere.
Such is my concern about the father’s disregard for the mother, for the legal process and the need to protect this family from his behaviour; I will put in place orders facilitating the father’s arrest without warrant if a police officer reasonably believes the father is acting in breach of those injunctions. Hopefully that might offer some measure of protection to the mother in these circumstances.
The mother has sought an order to enable her to change the child’s surname. In this case there are sound reasons for that to occur having regard to the impact of the father’s name upon the child R to which I have referred earlier in these reasons. I intend to make that order.

SUMMARY

In summary, the father engaged in violent and abusive behaviour against the mother, R and M, from the time of separation for a number of years. This included the sexual assaults of the mother, the stalking, the threats, the abuse, the threatening text messages, the breaches of the Domestic Violence Orders and the breach of bail conditions. He knew no boundaries. In terms of R, he exposed her to his violent sexual assault of the mother and exposed her to his anger in terms of forcibly removing her. R is afraid of him and that fear continues. M is also afraid of him and that fear continues. The youngest child B has never met the father.
The father knew no boundaries with respect to his abuse and violence. It involved him attending the homes of the mother’s brother and the child’s maternal grandmother. He assaulted M in an effort to take R (despite the child’s objections). He was not stopped by domestic violence orders and it was only after his conviction and suspended sentence that the level of intimidation, control, violence, threats and the like diminished. They did not end. The father still persisted in contacting the mother.
At the hearing the father demanded that the mother give evidence in his presence and resisted her (legitimate) desire to give evidence in a safe way. He endeavoured to intimidate Ms T, a social worker, who was providing therapeutic assistance to R.
To enable the child R to spend time with the father would require significant treatment for the child, significant treatment and involvement of the mother and other members of the mother’s family. There is a high risk that in doing so it may cause greater harm to the child R.
I am not satisfied that the father has taken any meaningful steps to acknowledge his violent and unacceptable behaviour in the past and I am not satisfied that he would contain himself in terms of spending any time with the child R.
On balance, I am not satisfied that there is a benefit in either child having a meaningful relationship with the father. I am satisfied that the father presents as an unacceptable risk of violence, abuse and/or neglect to the children if he were to spend time with them, even if that time was supervised, or, if he communicated with them, even if that communication was supervised.
If the father were to communicate with the children or spend time with them or either of them. I am satisfied that the mother would have enormous difficulties coping. That would impact adversely upon the mother’s ability to parent.
In those circumstances I will not make any orders for the father to communicate with or spend time with the children.
In addition the father has shown a reluctance to comply with the orders of the Courts. He has been convicted on four occasions of breaching domestic violence orders and on one occasion a breach of bail conditions. He was not contained by those orders and the emails, texts and communication to the mother at the end of 2008 and end of 2009 are deeply concerning.
As a consequence of all of the evidence before me, I will make orders restraining the father from contacting the mother or the children or from approaching their place of work, school or residence.
In the circumstances of the facts and findings in these proceedings, I consider it appropriate to make orders under s 114 with regard to the mother and I will do so.
In terms of the positive findings of fact in these proceedings, I have had regard to the approach set out by the Full Court in Johnson & Page [2007] FLC 93-344 where they said:-
68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
69.Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:
Section 140
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)    the nature of the cause of action or defence; and
(b)    the nature of the subject‑matter of the proceeding; and
(c)    the gravity of the matters alleged.
70.We think it useful at this point of our discussion to refer to the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 in discussing standard of proof
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. [Footnotes omitted]
Although determined prior to the introduction of the Evidence Act the principles referred to by their Honours have been applied in decisions after the introduction of the Evidence Act (see Palmer v Dolman [2005] NSWCA 361. See also Odgers, S, Uniform Evidence Law, 7th ed, Lawbook Co., Sydney, 2006, at 673-674.)]
71. We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
72.We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
It is normally neither necessary nor desirable to reach a definitive conclusion on the abuse. However, in this case the father has acknowledged his abuse of the child in July/August 2008. The violence included the events at the maternal grandmother’s home later in the year, the threatening texts, the abuse, the failure to comply with a bail condition and the failure to apply with domestic violence orders.
This needs to be considered in terms of the father’s approach in resiling from admissions. Therefore there needed to be findings of fact to enable a proper assessment of the risk and to protect the children into the future, having regard to the father’s total lack of insight into his behaviour and its impact on the children (particularly B) and the mother (in terms of her ability to parent the children if the father spends time with them).
I am satisfied that the children are at an ongoing risk of abuse if they spend any time with or have any communication with the father

I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 20 August 2012.

Associate:

Date: 20 August 2012.

[2012] FamCA 693

Key Legal Topics

Areas of Law

Family Law

Criminal Law

Evidence

Legal Concepts

Injunction

Breach

Sentencing