BAINES & BAINES

[2020] FCCA 754

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAINES & BAINES [2020] FCCA 754

Catchwords:
FAMILY LAW – Parenting – where there are two children of the relationship – whether the mother adopted controlling and coercive measures thereby causing the children harm – whether the father committed serious acts of family violence on an ongoing basis and involved the children in the parental dispute thereby causing the children harm – whether the children should live primarily with one parent – what time if any should be spent with the non-live with parent.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 60CG, 61DA

Cases cited:

M & M [1998] FamCA 1742

Mazorski & Albright [2007] FamCA 520

Applicant: MR BAINES

Respondent: MS BAINES

File Number: BRC 5302 of 2019

Judgment of: Judge Middleton

Hearing dates: 24 & 25 & 26 February 2020

Date of Last Submission: 6 March 2020

Delivered at: Brisbane

Delivered on: 3 April 2020

REPRESENTATION

Counsel for the Applicant: Ms Laylee

Solicitors for the Applicant: Hawkes Lawyers

Counsel for the Respondent: Ms Oakley

Solicitors for the Respondent: Pippa Colman & Associates

ORDERS

1. That the mother have sole parental responsibility for the children X born … 2007 and Y born … 2009.

2. That the children live with their mother.

3. The children spend no time with their Father.

4. That the children be at liberty to communicate with their father in writing (email or letter).

5. That the father be permitted to  communicate with the children in writing (email or letter) no more than once each week PROVIDED that he forward the correspondence to the mother and not the children, AND for the mother to peruse the correspondence and determine whether the correspondence should be shared with the children.

6. The mother is not to unreasonably deny the children access to the father’s written correspondence.

7. The mother is to continue the children’s attendance at their psychologist until such time as the psychologist determines it is no longer necessary.

8. The mother is to provide the father with copies of the children’s report cards, awards, and sporting achievements within 7 days of receipt of same.

9. The mother is to provide the father with a photograph of both children once each six month period.

10. The father is at liberty to provide the children with a photograph of himself once each six month period.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5302 of 2019

MR BAINES

Applicant

And

MS BAINES

Respondent

REASONS FOR JUDGMENT

Background

1. This is a parenting application involving two children X born … 2007 and Y born … 2009. 

2. The applicant father was born on … 1969 and is currently 50 years of age.  The respondent mother was born on … 1976 and is currently 43 years of age. 

3. The parties’ commenced cohabitation in August 2001, married on … 2005, emigrated from the United Kingdom in 2005 and separated on or about 25 March 2019 and remained living under the same roof until 2 April 2019. 

4. The mother applied for a protection order on 25 March 2019 and on 2 April 2019 a temporary protection order was made including an ouster order requiring the father to remove himself from the matrimonial home.

5. The temporary protection order was extended on a final basis on 23 May 2019 and remains in force until 23 May 2024, both children are named on the protection order. 

6. On 24 May 2019 the matter came before the Federal Circuit Court and Judge Spelleken made orders for the children to spend time with the father supervised by family friend. 

7. On 17 July 2019 Ms A prepared a family report recommending a shared care arrangement (week about). 

8. On 19 July 2019 orders were made by consent providing for the children’s time to move to unsupervised day times.  Those orders remained in force until final hearing which was held on the 24, 25 and 26 of February 2020. 

9. On 22 July 2019 the father was fined $500 for contravening the protection order by approaching the former matrimonial home. 

10. On 30 August 2019 the mother applied for an order to take the children to counselling and the father did not consent to that order but sought an order for the children’s time to extend to overnight time.  I made an order providing for the children to attend counselling and refused the order for the children’s time to extend to overnight time. 

11. On 27 November 2019 Ms A prepared an updated family report wherein she makes no recommendation regarding the children’s time with either parent but relevantly opines that the children’s health and well-being are at stake. 

12. The father argues that the mothers controlling and coercive measures have caused undeniable harm to the children and as a result the children should live with him and spend four nights per week with the mother or in the alternative the children should live in a week about arrangement. 

13. The mother argues that the children have been exposed to significant and relentless family violence that has caused them undeniable harm and furthermore that the father has such limited insight into his own behaviours that the only way to protect children from ongoing harm is for the children to live with her and spend no time with the father. 

14. For the reasons that follow I have decided that the children’s best interests are met by living with their mother and spending no time with the father. 

The Issues to be Determined

1. The issues to be determined are as follows: 

   a)has the mother adopted controlling and coercive measures, thereby causing the children harm; 

   b)has the father committed serious acts of family violence on an ongoing basis and involved the children in their parents dispute thereby causing the children harm; 

   c)with whom should the children live primarily; 

   d)what time if any should be spent with the non-live with parent. 

The Material

1. The applicant relied upon the following material: 

   a)Case outlined filed on 21 February 2020; 

   b)Affidavit of Mr Baines filed 19 February 2020;

   c)Affidavit of Ms B dated 17 July 2019; 

   d)Affidavit of Ms B filed 20 February 2020. 

2. The respondent relied upon the following material: 

   a)Amended response filed 21 February 2020; 

   b)Affidavit of Ms B filed 18 July 2019; 

   c)Affidavit of Ms B filed 20 February 2020; 

   d)Affidavit of Ms Baines filed 19 of February 2020; 

   e)Affidavit sworn by Ms Baines on 25 February 2020; 

   f)Audio recordings played during trial, Exhibit 4; 

   g)Transcript of those recordings Exhibit 5; 

   h)Colour photograph of handprint on daughter; 

   i)Case outlined filed on 21 February 2020. 

Orders Sought

1. The orders sought by the father are set out in his case outline filed on 21 February 2020. 

2. The orders sought by the mother are as set out in the mother’s written submissions filed on 2 March 2020 at page 16.  The mother’s primary position is that the children live with her and spend no time with the father or in the alternative that they spend limited day time only with the father. 

The Law

1. I am informed by the objects and principles set out in section 60B of the Family Law Act 1975 (Cth) (the Act). In deciding what order I should make I must regard the best interests of the children as my paramount consideration (section 60CA).

2. In determining what is in the children’s best interests I must consider the matters set out in section 60CC (2) and (3). I must also ensure, consistent with the children’s best interests, that the order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence (s.60CG).

3. Family violence is defined in section 4AB of the act and it means “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.”  Examples of that behaviour are found in section 4AB(2).

4. The risks to children being exposed to family violence are well-known and in my view Justice Mullane described those risks abundantly clearly in M & M [1998] FamCA 1742 where at [94] and [95] he said:

   The father's abusive behaviour presents a multi-faceted danger for the children. There is a risk of violence to them personally and injury. There is a risk that violence poses when it involves living with fear, insecurity and vigilance. There is the danger of ongoing fear that the father will emotionally or physically abuse the mother they love. There is the danger that E will learn from the father's abusive behaviour that abuse is part of life for females and become even more accepting of such behaviour. There is a danger that both children will come to believe from the father's abuse of the mother, that women are lesser beings.

   But the greatest danger is that B, particularly, will learn from his father's behaviour that physical and emotional abuse are acceptable ways of dealing with other persons and thus come to share his father’s disability. Such a disability would mar his dealings and relationships with others, including those he loves, bring him into conflict with the police, the Courts and the community, and result in him being penalised and even being imprisoned.

5. I am of the view that both of these children are already living with insecurity and vigilance and that they have witnessed and at times been a part of the father’s emotional abuse of the mother.

6. Having regard to the fact that the father has denigrated the mother repeatedly to the children I am satisfied that both children are accepting that such abuse is part of life for females.

7. I am also of the view that X is already displaying signs that he has learnt from his father’s abusive behaviour that physical and emotional abuse are acceptable ways of dealing with his mother. 

8. These reasons will set out the evidence that I rely upon in forming those views. 

Discussion

Primary considerations

1. The mother acknowledges that the children love their father dearly.  Ms A is of the view that both children love their parents “however they feel under so much pressure that as they see it the only way forward is to choose one parent over the other and they have chosen their father.”  (Para 117 of the family report dated 27 November 2019). 

2. Ms A in her report dated 17 July 2019 recommends that the children live with each of their parents in a week about basis.  Whilst Ms A does not make recommendations regarding the living arrangements for the children in her second report she nevertheless does not resile from her previous recommendation. 

3. On the strength of that evidence alone I would make a finding that the children would benefit from having a meaningful relationship with both of their parents however it is necessary to consider what is meant by the term meaningful in the context of the act. 

4. Justice Brown in Mazorski & Albright [2007] FamCA 520 at [24]- [26] said this:

   “The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press, Oxford, 1993) defines ‘meaningful’ as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. ‘Meaning’ is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning).” A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive.” These definitions repeated and further fleshed out in the Oxford English Dictionary (Second Edition, Clarendon Press, Oxford 1989). It defines “meaning” (“in generalised use”) as “significance”. The examples provided take the matter no further.

   25. The Macquarie Dictionary (Fourth Edition, Macquarie, 2005) defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.

   26. What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one…..”

5. In my view when determining what is in the best interests of children emphasis must be placed on the value of the children’s relationship with both parents and any relationship that places an unacceptable risk of harm to children is clearly of no value to the children. 

6. Where I have found that the father has committed serious acts of family violence in the presence hearing and knowledge of the children I must question whether there is any value in the children having a relationship with him. 

7. Ms A in her first report dated 17 July 2019 was of the opinion that it was the mother’s actions rather than the father’s that “gave rise to the greatest concern” (para 138 of the report). 

8. That opinion was reached after Ms A had assessed the mother’s assertions of domestic violence within the relationship.  She assessed that the father’s threat to kill her had been some throwaway line taken out of context and misunderstood.

9. Furthermore she assessed that the allegations of family violence amounted to no more than “some heated rows and there may have been some minor physicality over their final year together but I would be reluctant to describe it in any more serious terms”. (Paras 132 and 133 of the first report). 

10. After hearing all of the evidence and watching the parties cross examined I am not of the view that there were some heated rows and some minor physicality over their final year but rather that the father perpetrated ongoing serious systemic family violence of a coercive and controlling nature for at least the last three years including post separation. 

11. Indeed Ms A in her updated report altered her opinion with regards to family violence and said “it is my view that there was domestic violence on Mr Baines’ part.  Moreover it is probable that Ms Baines was subjected these tirades many times.”(para 102 of the second report)  Ms A altered her view after being provided with video and audiotapes showing the father engaging in acts of family violence. 

12. I do not accept Ms A’s opinion that it is the mother and her actions that give rise to the greatest concern.  I am satisfied that the mother was and remains acting in the best interests of the children by removing them from the threat of ongoing exposure to family violence. In short the mother’s actions were not controlling coercive they were appropriately protective. 

The need to protect from family violence

1. The father accepted in cross examination that in the last couple of years of the marriage he called the mother the following names “fat, old, ugly, cold, frigid, drama queen, slut, bitch and dyke.”  The father denied calling the mother a (omitted) however during a telephone call with the children and the father he says this: 

   “Your mum is a (omitted) while, I am English and you are Australian.”  (Last page of Exhibit 5)

2. In those circumstances I accept that the father not only called the mother a (omitted) but that he also exposed the children to that derogatory and racist term. 

3. The father has also sent text messages to the children referring to their mother as Dr Evil, grumpy and a miserable git (annexure D to the mother’s affidavit filed 19 February 2020). 

4. The father also admitted in cross examination that he had told the children it was a “good thing” that 51 worshippers of the Islamic faith were murdered in Christchurch on 15 March 2019. 

5. The father denied calling the children derogatory names such as asshole, stupid and arse-wipe and also denied threatening to slap or punch the children.  Having had the benefit of watching the father cross examined I am absolutely satisfied that he has not only exceptionally low insight into the effects his language and demeanour may have on the children but that the father would say those things to his children if he were angry with them. 

6. The mother deposed to the father informing her that he was monitoring her telephone and internet use (paragraph 34 of the mother’s affidavit filed 19 February 2020).  The father admitted in evidence that he had told her this but he denied he had in fact been doing so. 

7. Whether he was or was not is irrelevant however it adds to the evidence that allows me to find that this forms part of the pattern of the father’s controlling abusive and coercive behaviour towards the mother and that it was intended to intimidate and control her. 

8. The father asserted that he had not been engaging in the behaviour because he “didn’t understand computers” however when challenged about this he initially said he was not on Instagram but then conceded he was and he also repeatedly said that he did not know what the term “hacking” meant. 

9. Exhibit 4 however is evidence that during one of the father’s tirades, this one occurring on 29 May 2018, he said to the mother, inter-alia, “I’ll take the kids, I’ll take everything.  You’ll lose this house.  You’ll have your job on your iPad and your tender, slut.  That’s all you’ll have.  You wait.  We’re done.  That’s all I have to say.  Off you go.  Go sleep on the couch, yeah.  Go play on your iPad you slag.  You wait.  I’m not even interested no more in hacking into your crap……”

10. It was only after the father had heard this audio played in court that he remembered and then accepted that he did know what the term hacking meant and that it was related to computers. 

11. The mother asserts that the father engages the children to monitor the mother’s computer use.  The father denied that he had done so.  Ms A opines that the father exercised little if any restraint in how he speaks to the children about their mother, belittling her in regard to her decisions and behaviour.  I am also satisfied that the father exercised very little restraint if indeed any at all in how he speaks to the children about their mother. 

12. In circumstances where the father had previously lied to the court about not understanding the term hacking, was then only recalling his memory of that term after irrefutable evidence was presented to him of his knowledge I do not accept that the father had not engaged the children to assist him to monitor the mothers computer use. The father admitted to asking Y to take a photo of a retaining wall for him which he did. 

13. It is clear that by May 2018 the father had become fixated on the idea that the mother was engaged in a sexual relationship with a woman.  The recording of his tirade on 26 May 2018 shows the degree to which the father was infuriated and fixated by the idea. 

14. The transcript of that recording admitted into evidence without objection clearly reveals that one of the children not only overheard the conversation but also approached the father asking him to stop arguing. 

15. At one stage during the audio after the father is demanding that the mother tell him the truth the father says, “it was not me. Shall I get X in here to beat it out of him?” 

16. The father goes on to say that he has found a pornography site all about women who are lesbians.  He then accuses the mother of being in a relationship with a girl.  The father then threatens to kill her saying, “I am going to find her.  I’m going to hurt her, real bad as well.  I will probably kill her to be quite honest.  If you tell me everything, I will walk away.  If you don’t, I’m going to kill her.”

17. Later during that abusive rant the father says the following to the mother:

    “This tear shit don’t work with me.  I don’t care.  I have cry all the time.  It does not affect me at all.  I have no empathy at all.  Maybe I am mad.  If you are my enemy, I don’t care if you beg me, cry, I don’t care.  It does nothing.  I will kill you.  If you want to be my friend, tell me the truth.  Either way, I will go.  I want to know the truth.  Do not make me waste all my time and energy and resources.  I know a lot of people, I will find out.”

1. During that same abusive rant the father admits to exposing the children to their mothers alleged affair he says:

   “I had a chat with them two days ago.  Bring them in and ask what I told them.  I said some people have urges they cannot control.  What is going to happen is I’m going to find something, your mum is going to explain, I’m going to have to leave and you are going to be raised, I don’t know how.  She is going to tell you I am the devil and a bastard.  X said I won’t let it happen, I love you.  I said it doesn’t matter what we say or do, you will be staying with your mum and she will poison you against me.  I’m going to tell you something now and I want you to remember this, you are not raising my kids in a gay relationship.”

2. It is important to note that this family practice Religion C and infidelity within that faith is considered a grave sin.  To tell the children that their mother is having not only an affair but also that she is gay is extremely damaging to the children’s relationship with their mother. 

3. The father clearly engaged the children in deceitful behaviour.  On 5 August 2019 the father was encouraging X to delete all the texts off his phone (exhibit 4).  Furthermore this audio provides evidence that X is engaging in behaviour similar to that of his father when in conflict with his mother. 

4. The mother asserts that the father would continually poke her to annoy her during some of their arguments.  In this audio X in a very sarcastic tone says this:

   “I was trying to get the phone.  When I was trying to get the phone I kept poking her and apparently that is a federal offence.”

5. In my view this is a clear example of X learning from his father’s abusive ways. 

6. During this telephone call the father tells his son that he will be living with the father soon and that he is sure that X does not want to live with his mother anymore.  The father clearly undermines the mother’s authority during the telephone call telling X that it is a “load of crap that the mother took the phone from him.”  The father finishes this telephone call with the children by saying “her domination and her control and her bullying will be over soon okay.”

7. During a telephone conversation with X on 1 July 2019 the father informs X that he will take revenge on the mother that “it’s okay because he will get his own back.” 

8. This phone call also provides evidence that the father will not comply with court orders both in respect to protecting the children from exposure to the conflict, by not discussing the conflict with them, but also with respect to the court ordered supervision.  The father informs X that is all “a load of crap.”  

9. Furthermore the father informs X that it is all lies, that the mother is living a lie and X agrees with the father that it is all stupid.  He continues during this telephone conversation to inform X that the mother is “bullock’s man, it’s a lie she’s going to live it to the end yeah?” and the child agrees “yeah.”

10. Following on from the order that I made for the children to see a psychologist the father informs both children during a telephone conversation on 5 September 2019 that he did not want the children to attend a psychologist and that he did not think there was a need for it.  The father adds “you just need me hey” and Y replies “yeah.”  Later during the same telephone call X also agreed that “all we need” is his father.”

11. This is clear evidence that the father is seeking to bring the children into the argument and to side with him against their mother. Ms A asks the children what it is like to be caught in the middle and points to this as a cause for them suffering chronic stress. (para 109 and 117 of the second report).

12. Ms A also opines that the mother is a cause of the children’s chronic stress due to her “inflexibility” regarding the Family Violence allegations and the actions she took. I cannot accept that the mother has voluntarily caused harm to the children, she has been and continues to protect her children from serious and insidious family violence.

13. The father also accepted during cross-examination that he had threatened to kill a person associated with the church in January 2020.  This person had previously been rumoured to have been involved in a sexual assault and had attended a social event that Y and the mother had also attended. There was no suggestion that Y had been left alone with this man or that this man had acted inappropriately towards her.

14. The father accepted the evidence that in May 2018 he told the mother that if she tried to take the children from him he would kill her and that he said it to frighten her. 

15. The father gave evidence that he told the mother that he did not want her father anywhere near his daughter and that if he does he would kill him.  The father went on to say that he threatened the lives of many people, too many to name and that he had to learn to express himself better.  The father said that he thought family violence was using your fists. 

16. The father tried to brush off the threats to kill people by saying that it was clear he did not mean it because he has never been charged or convicted of a murder.  This is but one example of the complete lack of insight the father has into his own behaviour.  The manner and circumstances upon which he makes those threats to kill of themselves are intimidating and in my view he says that to intimidate and cause fear. 

17. As I said earlier the mother says that in January 2019 the father began poking her in the neck and making references to having viewed films that featured a husband murdering the wife without being caught (para 58 of the family report dated 17 July 2019). X admits to poking his father during a dispute with her.

18. On 27 February 2019 it is an agreed fact that the mother and father had an argument and that during that argument the father was holding a golf club.  The mother says that the father was shouting and swinging the club about in an attempt to intimidate her and the father through his counsel tried to suggest some kind of innocent explanation for the golf club.  I totally reject the father’s explanation and I accept that the father was waving the golf club about in an attempt to intimidate and frighten the mother. 

19. On 6 March the mother says that the father pretended to punch the mother in the stomach and placed his hand on her back.  She says that he said to her that “if he really wanted to punch her he would put his hand through her back.”  The mother says she asked the father if he was threatening her and the father responded by saying “I can’t believe you would try to irritate someone as powerful as me.” 

20. The father denied saying those things.  The father described himself whilst giving evidence in court as powerful in fact I made mention of this during his cross-examination.  I have no doubt that the father said the words the mother has asserted in her affidavit filed 19 February 2020 at Para 34c. 

21. The mother asserts that the father showed the children the protection order made on 25 March 2019 and that he told the children that it was “going against God.”  The father denies that and attempts to support the veracity of his denial by saying why would he lie about showing the children the protection order and telling them that it is against God when he was prepared to tell the truth about the threat to kill the mother.  I am satisfied the answer to that question is because he does not want to be seen to be exposing the children to this conflict or to the family violence he perpetrates. 

22. On 19 April 2019 the father sent a text message to the mother telling her that he had a great picture of her and that he would let her see it on Wednesday.  I am satisfied that this too was a calculated strategy employed by the father to make the mother fearful by conveying to her that he was aware of her movements and that she was being monitored by him. 

23. On 10 February 2020 the father sent the mother a text message that said “how’s Mr D and Mr E with a grinning face emoji.”  This too is another example of the father attempting to make the mother fearful by conveying that he was aware of her movements and that she was being monitored by him. 

24. On 19 February 2020 the mother collected a photograph from her mailbox that depicted some ducklings on a pond.  It is important to recall that on 18 February 2020 a mother and her three children were set on fire by her ex-husband and their father and she died as a result. The story was a feature of media coverage for a number of days thereafter. 

25. In circumstances where the is a protection order in place where the father was prohibited from attending the mother’s residence or communicating with her other than with her written consent or pursuant to court orders the delivery of that photograph to her home is clearly in my view a breach of the protection order. 

26. The father admitted that he had asked another person to deliver the photograph to the mother’s home.  The timing of the delivery makes his actions even more insidious in my view.  He had been telling the mother that she was being monitored in an attempt to cause her fear and to control her.  The mother said she was very fearful when the photograph was found and I accept that she would have been fearful at that stage.

27. At best the father’s actions on this occasion show an extreme lack of insight and at worst his actions reveal a calculated and disgraceful attempt to install fear in the mother at a time when the events I have outlined would heighten the fear in all victims of family violence particularly those who had been threatened with death. I am of the view that the father knew exactly what he was doing and the timing of his actions were a deliberate use of tragic events.

28. On Sunday, 23 February 2020 the mother received the following text message from the father: 

    “4 little ducks went out one day over the hill and far away mother duck said quack quack quack only 30 came back.” 

29. I accept that the reference to 30 ducks coming back is a typographical error and that the text should have read three (3) came back.

30. The mother says that she was even more fearful when she received that text message as she perceived it to be a threat that she may be harmed in some way with only three family members remaining. 

31. The mother says that her belief that the text was meant to threaten her was based on the father’s previous threats to kill her and others and his claims that he had killed someone before.  I accept that the mother would have been very fearful, if not terrified, and intimidated by the text message. 

32. The father tried to give some innocent explanation for the photograph being delivered.  He initially said that he wanted the photograph to be given to X as it was a photograph that the child loved.  The father was reminded that he would be seeing X on 23 February 2020 in those circumstances there was no urgency to deliver the photograph and his explanation in an attempt to convince the court that it was an innocent delivery was without any merit at all. 

33. As a result of those ongoing threats and intimidation the mother made a further complaint to the police and the police have charged the father with further breaches of the protection order.  Those matters are currently still before the courts. 

34. As a result of the ongoing threats the police have now placed a detailed flag on the police Qprime system alerting any officer that the father is considered a SUSPECTED HIGH RISK DV OFFENDER (annexure D to the affidavit sworn 25 February 2020, Exhibit 2). 

35. The mother also annexes at annexure E to her affidavit sworn 25 February 2020 text messages from X which clearly indicate that X was exposed to the text message sent from his father as he calls the mother a silly duck and then sends a GIF with the words quack quack quack. 

36. This is in my view another example of how X is learning from the father’s abusive behaviour and if his exposure to the father’s abusive behaviour is not curtailed in my view he too will go on to suffer from the father’s disability.  

37. Exhibit 1 is a colour photograph of Y that depicts a red hand mark on her left thigh and buttocks.  The father admitted to causing that mark and admitted to hitting her harder than he expected.  I am satisfied that when the father is enraged or angry he cannot control his emotions and may cause physical harm. 

38. I accept the family consultant when being cross-examined gave evidence that to deprive the children of the time with their father would be terrible.  The children clearly love their father and want to spend time with him. 

39. S.60CC(2A) of the act sets out that I must give greater weight to the consideration set out in paragraph (2)(b) in applying the considerations set out in subsection 2. These children are already exhibiting signs of suffering harm as a result of the exposure they have had to their father’s abusive ways and the family violence he has continued to perpetrate against their mother.

40. In those circumstances I am satisfied that there is a need to protect the children from both physical and psychological harm from being subject to our exposed to family violence in the care of their father. 

Additional Matters

1. X expressed a clear view that he wanted to live with his dad and spend time with his mother once a fortnight to give her a taste of her own medicine. (para 82 of the second report)  The evidence establishes that the father has attempted to malign and deride the mother to the children and let them know that he is the only one they need.

2. It appears that the father has been somewhat successful in causing the children to join with him against their mother. The children clearly express that their Father is “their best friend” and they side with him and repeat his arguments to Ms A. (paras 69-99 of the second report)

3. It is a fact that the father was a stay-at-home father from September 2013 and as a result became the children’s primary carer from that time.  It is also a fact that the mother reduced her hours in 2018 at around the time that it became clear the father’s mood and behaviour was deteriorating. 

4. Y also was of the view that she wanted to spend more time with her father and that she wanted to live with her father and spend weekend time with her mother. 

5. I have no doubt that these children love their father dearly and that they want to spend time with him not only because he has been their main carer since 2013 but also because they now believe that their mother is the cause of them not spending time with their father regularly. 

6. These children are too young in my view to fully comprehend the manipulation that has occurred at the hands of their father or to understand the danger they are in if they are exposed to their father in the future. 

7. In those circumstances I cannot place much weight on their views in determining what is in their best interests. 

8. In assessing the children’s relationship with their parents I am of the view that they have become aligned to their father due to his actions and are becoming estranged from their mother again due to the father’s actions and as a result of the mother taking protective measures that they do not understand. 

9. The children are receiving psychological counselling and this will assist them to mitigate some of the difficulties that they will experience as a result of the orders I have made.  The mother is a medical specialist and this too will help mitigate against some of the difficulties that the children will experience as a result of the orders I have made. 

10. Ms A was of the view that it will be terrible for the children if they do not spend time with their father and in the short term I agree with that assessment.  However I am of the view that the greater harm will come to these children if they are exposed to the unacceptable risk that the father poses. 

11. The cycle of family violence cannot continue in this country.  In all my years of practising law and prior to that working as a police officer for 10 years this is the worst case of coercive and controlling domestic violence that I have witnessed.  As I have said before these children are already showing clear signs of having suffered damage from the exposure to that domestic violence and I will not allow them to be harmed any further. 

12. The evidence establishes that the father has learnt nothing from any of the courses or part thereof that he has engaged in.  Furthermore the evidence establishes that the father will not comply with court orders. 

13. In defiance of orders that were made to protect the children from exposure to adult conflict the father has deliberately and repeatedly exposed these children to conflict. 

14. Furthermore those orders were designed to protect children from exposure to further family violence and the father has repeatedly and consistently exposed the children to family violence in the form of derogatory, degrading and racist slurs against their mother. 

15. In those circumstances I cannot be satisfied that any orders I make moving forward to allow the children to spend time with their father protected by orders would in fact protect the children. 

16. I am satisfied that the mother has the capacity to meet the children’s needs including their emotional and intellectual needs.  I am satisfied that the actions the mother has taken have been necessary to protect the children from harm. 

17. Conversely I am not satisfied that the father has the capacity to provide for the needs of the children particularly their emotional needs.  The evidence establishes that he has deliberately harmed the children notwithstanding that he has been cautioned against doing so by the mother’s lawyers, his own psychologist and Ms A.  He simply lacks the insight to understand his own behaviours and the damaging effect they have on these children. Ms A makes the same assessment. (Para 109 of the second family report) 

18. It is quite clear that the family violence perpetrated by the father has had a disastrous effect on the children’s relationships with both of their parents. It is also clear from a reading of the second family report that the children blame the mother for their reduced relationship with their father. The father has been attempting to prove the mother denies the children access to him by continually asking the children to ask for additional time and telephone call. Exhibit 4 supports that finding.

19. I note that Ms A was willing to lay responsibility for the children’s chronic stress on both parents. With respect to Ms A I do not believe she understood the gravity of the family violence which was occurring within this family. That is perhaps not surprising, Ms A met the family on two limited occasions.

20. I on the other hand had the benefit of watching the parties over three days. The mother at all times during those three days was consistent in her evidence and her actions. The father was often found out in evidence to be either a poor historian or an outright liar. When the mother was being cross examined I had to caution the father from staring at her and smirking.

21. In those circumstances I reject the evidence of Ms A with regards to her assessment of the mother’s role in this matter.

22. The mother insisted that the father obtained psychological assistance so that he could understand how his behaviours might be damaging the children.  The father says that he has engaged with his psychologist however he provided no evidence from his own psychologist as to what assistance he was being given.  His actions up to and including the day before the first day of this trial clearly support a finding that he will continue to perpetrate family violence into the future unless he appropriately addresses his behaviour. 

23. Section 60CG of the act provides that I must ensure that any order I make does not expose a person to an unacceptable risk of family violence. I cannot be satisfied that even if I made an order for ongoing long-term supervised time between the children and their father that they would not be exposed to an unacceptable risk of family violence.

1. That view is fortified by the evidence that proves that notwithstanding the father knew that the mother was recording his telephone conversations with his children he continued to expose the children to family violence, continued to undermine the mother’s authority in the household and continued to argue with the mother about parenting arrangements within the hearing of the children. 

2. I am concerned that if I made an order for the children to spend supervised time with their father there is a very real likelihood that further proceedings would be instituted in circumstances where the mother would become aware that the children were being exposed to further family violence. 

3. No doubt the orders that I have made will have a short term disadvantageous effect on both children.  I am satisfied that they have a good relationship with the psychologist and that they are well supported within their school as well as being fully supported by the mother and all of these factors mitigate against the short term harm that may be caused to them. 

4. It is important in my view however that the children be permitted to communicate with their father in writing and that the father be permitted to communicate with the children in writing provided the mother can peruse the communication from the father before the children see it. 

5. It is also very important for the children’s adult relationship with their father that their father be kept informed of the children’s milestones including education and any sporting events and that the father be provided with photographs of the children and them of him.   

S.61DA

1. There is a presumption for equal shared parental responsibility in accordance with the Act.  The presumption does not apply in circumstances where I am satisfied that the father has engaged in family violence. 

2. As a result of the orders that I have made the children will live with their mother on a full-time basis and spend no time with their father.  The mother and father’s co-parenting relationship is extremely poor. 

3. The evidence establishes that the father was unwilling to assist his children by agreeing for them to be in receipt of psychological assistance that was necessary for them.  I am satisfied that he refused to agree to this so that he could use the mother’s position against her and in fact he did so by telling the children that he did not think it was necessary and that it was the mother who was making them go to the psychologist. Indeed X adopted the father’s position when speaking with Ms A. (Para 83 of the second family report) 

4. I am satisfied on all of the evidence that notwithstanding that the presumption does not apply it is also not in the children’s best interests for the parents to have equal shared parental responsibility in those circumstances where the children will live with their mother on a full-time basis it is appropriate and in the best interests of the children that the mother have an order for sole parental responsibility.

5. In assessing all of the evidence and balancing the risks to the children I am satisfied that the orders I have made are orders that are in the best interests of the children and also are orders that will best protect them from further long-term harm.    

I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Associate: 

Date:  3 April 2020