Baranski & Baranski - [2010] FMCAfam 918

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARANSKI & BARANSKI & ANOR

[2010] FMCAfam 918

FAMILY LAW – Children aged 3 years and eight months – arrangements for care following final hearing – family violence – best interests – benefits of children having meaningful relationship with father balanced against need to protect children from family violence – paternal grandmother – benefits of children maintaining relations with extended paternal family.
FAMILY LAW – Property – assessment of contributions – wife’s parenting and homemaking contribution made more arduous by husband’s violent behaviour – s.75(2) factors – just and equitable.

Family Law Act 1975, ss.60B; 60CC; 61DA; 65DAA; 68LA; 7592); 79(4)
Family Law (Superannuation) Regulations 2001

Kennon & Kennon (1997) FLC 92-757
Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335;
Clauson v Clauson (1995) FLC 92-595
Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143
Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
Pierce & Pierce (1999) FLC 92-844
Kucera & Kucera [2009] FMCAfam 1032
Russell v Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635
Re L (Contact: Domestic Violence) [2000] 2 FLR 334
JG & BG (1994) 18 Fam LR 255
In the Marriage of Patsalou (1994) 18 Fam LR 426
In the Marriage of DJM & JLM (1998) 23 Fam LR 396
AJO v GRO (2005) 33 FamLR 134
Blanch v Blanch & Crawford (1999) FLC 92-837
T & N (2003) FLC 93-172
A v A (1998) FLC 92-800
B & B (1993) FLC 92-357
W & W [Abuse allegations: unacceptable risk] [2005] Fam CA 892
Re W (2004) FLC 93-192
Ferraro & Ferraro (1992) 16 Fam LR 1
Pierce & Pierce (1999) FLC 92-844

Applicant:

MR BARANSKI

First Respondent:

MS S BARANSKI

Second Respondent:

MS V BARANSKI

File Number:

ADC 2182 of 2008

Judgment of:

Brown FM

Hearing dates:

10 & 11 March, 3 & 4 June 2010

Date of Last Submission:

10 June 2010

Delivered at:

Adelaide

Delivered on:

1 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Treadrea

Solicitors for the Applicant:

Fittock Barristers & Solicitors

Counsel for the First Respondent:

Ms Dickson

Solicitors for the First Respondent:

Ann Josephson

Counsel for the Second Respondent:

Ms Milen

Solicitors for the Second Respondent:

Jo-Anne N Milen & Associates

Counsel for the Independent Children’s Lawyer:

Ms Tinning

Solicitors for the Independent Children’s Lawyer

Legal Services Commission

ORDERS

IT IS ORDERED BY CONSENT

The children of the relationship [X] and [Y] (hereinafter referred to as “the children”) both born [in] 2006 live with the wife who shall have sole parental responsibility for them.
The wife be at liberty to relocate the residence of the children from the State of South Australia to the State of Victoria at the time of her choosing.

IT IS FURTHER ORDERED

The husband be restrained and an injunction be granted restraining the husband from:
(a)Approaching or coming within 200 metres of the wife’s residence or place of employment;
(b)Approaching or contacting the wife in any way;
(c)Approaching, communicating or contacting or permitting any person to approach or communicate or contact either with the wife or any of the children except in accordance with the provisions of order 14 hereof.
The paternal grandmother spend time with the children as follows:
(a)On the last weekend of each calendar month for a period of three months from the date of these orders:
(i)on Saturday between the hours of 10am and 1pm; and
(ii)on Sunday between the hours of 9am and 12midday;
(b)thereafter on the last weekend in each calendar month for a further period of three months:
(i)on Saturday between the hours of 10am and 5pm; and
(ii)on Sunday between the hours of 9am and 12midday;
(c)thereafter on the last weekend of each calendar month up until the commencement of school term I in 2011, on Saturday commencing at 10am and concluding at 12midday on Sunday;
(d)as and from the commencement of school term I in 2012:
(i)during school terms on the last weekend of each month from 5pm Friday until 5pm Sunday;
(ii)during the April 2012 school holidays for a period of three days at times to be arranged between the paternal grandmother and the mother;
(iii)as and from the July 2012 school holidays, during each of the April, July and September/October school holidays for a period of four days at times to be arranged between the paternal grandmother and the mother;
(iv)during the 2012/2013 Christmas school holidays over a seven day period, with the children to spend the first four consecutive nights of such period in the care of the paternal grandmother and the last two consecutive nights of such period in the care of the paternal grandmother with the children to be returned to the mother for the single overnight period between 5pm on that night and 10am the following morning;
(v)as and from the 2013/2014 Christmas school holidays, for one week during each such holiday period at times to be agreed between the mother and paternal grandmother.
The first two such occasions of time the children spend with the paternal grandmother pursuant to paragraphs 4(a)(i) and 4(a)(ii) hereof do occur in the presence of the mother.
The third such occasion that the children spend time with the paternal grandmother pursuant to paragraphs 4(a)(i) and 4(a)(ii) hereof occur in the presence of the mother for the first thirty minutes of each such period.
On each such occasion that the children spent time with the paternal grandmother pursuant to paragraph 4(b)(i) hereof occur in the presence of the mother for the first thirty minutes of each such period.
For the purposes of the paternal grandmother spending time with the children the paternal grandmother do collect and deliver the children to and from the mother’s residence in the Geelong area.
In the event that the children become distressed during any period of time they spend with the paternal grandmother, the paternal grandmother shall facilitate them telephoning the mother with a view to the mother providing some reassurance and in the event that same is unsuccessful, the paternal grandmother do cause the children to be forthwith returned to the mother.
The paternal grandmother be at liberty to communicate with the children by telephone on one occasion each week and on the children’s birthdays, Christmas Day, Easter and other special occasions, with such calls to be made to the mother’s residence at times to be agreed between the paternal grandmother and the mother.
The paternal grandmother and mother do keep the other informed at all times of that party’s residential address and contact telephone number.
The mother and paternal grandmother do inform the other should any serious issue arise pertaining to the children’s health or welfare whilst in that party’s care.
The paternal grandmother be restrained and an injunction be granted restraining her from:
(a)disclosing to the father or any other person the mother’s residential address or telephone number save and except as the mother may authorise in writing;
(b)permitting the children to have any contact with or communication with the father either directly or indirectly or allowing a third party to do so save and except in accordance with the within Order or as the mother may authorise in writing;
That the paternal grandmother be at liberty to provide gifts to the children from the father on their birthdays and at Christmas together with a letter or card accompanying such gift provided such written communication is vetted by the paternal grandmother as to its appropriateness prior to it being delivered to the children.
The paternal grandmother be at liberty to provide photographs of the children to the father.
The paternal grandmother be at liberty to have the father’s sister Ms T and any of her (Ms T’s) children present during visits.
The mother do provide to the paternal grandmother any reports concerning the children’s development, school reports and the like upon condition that the paternal grandmother not provide same to the father save and except in accordance with Court Orders or as the mother may authorise in writing.
The father’s application and the paternal grandmother’s application to spend time and communicate with the children are otherwise dismissed.

IN FULL AND FINAL SETTLEMENT OF ALL CLAIMS FOR MATRIMONAL PROPERTY:

Within sixty (60) days of the date of these orders the husband pay to the wife the sum of $134,000.00.
Contemporaneously with the payment referred to in order 19 hereof the wife transfer to the husband the whole of her right, title and interest in respect of the property situate at and known as Property G in the State of South Australia (hereinafter referred to as “the former matrimonial home”).
The husband indemnify the wife forever in respect of the mortgage secured against the property in favour of the National Australia Bank and keep the wife indemnified in respect of all other outgoings and liabilities in respect of the property.
The wife retain as her sole property without any claim from the husband:
(a)The Club Sport motor vehicle currently in her possession;
(b)Her furniture and effects currently in her possession;
(c)Her superannuation entitlements standing in her name;
(d)The partial property settlement in the sum of $5,264.50 being the husband’s taxation refund for the 2009 financial year which the husband has forwarded to the wife;
(e)The ING insurance policy standing in the wife’s name.
The husband retain as his sole property without any claim from the wife:
(a)His furniture and effects;
(b)The Rio Tinto shares standing in his name;
(c)The motor vehicles currently in his possession;
(d)His superannuation entitlements standing in his name; subject to the provisions of orders 25 to 28 hereof.
In the event that the husband is unable to comply with order 19 hereof the parties execute all necessary documents and do all things necessary to place the former matrimonial home on the market for a price of not less than $320,000.00 or such other sum as the parties mutually agree with the proceeds of sale to be paid as follows:
(a)Firstly, to pay the costs, commissions and expenses in relation to the said sale;
(b)Secondly, to discharge the mortgage on the property;
(c)Thirdly, to distribute the balance of the proceeds of sale so that the wife receives 70% of the parties’ net assets and the husband 30% of the parties’ net assets, taking into account the items of property to be retained by each party as set out in these reasons for judgment.
Pursuant to section 90MT(4) of the Family Law Act 1975 a base amount of $22,250.00 be allocated to the wife in respect of the husband’s superannuation interest in the [C] Superannuation Fund ([C]) and that pursuant to section 90MT(1)(a) whenever a splittable payment becomes payable in respect of that interest, the wife is entitled to be paid the amount to be calculated in accordance with the Family Law (Superannuation) Regulations 2001 in respect of that base amount and there is a corresponding reduction in the entitlement of the husband.
The trustee of the [C] Superannuation Fund, the husband and the wife, in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all such documents as may be necessary to give effect to order 25 hereof.
Order 25 of these orders shall have effect from the operative time which shall be 1 October 2010.
The solicitor for the wife serve a copy of these orders on the [C] Superannuation Fund and the trustee and the parties are given liberty to relist the matter on giving seven (7) days written notice if the trustee is unable to comply with the orders herein pertaining to it.
Within thirty (30) days of the date of these orders each pay $225.00 to [W] being the costs incurred in respect of the valuation of the former matrimonial home.
The appointment of the independent children’s lawyer is discharged.
All applications be otherwise dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 2182 of 2008

MR BARANSKI

Applicant

And

MS S BARANSKI

First Respondent

MS V BARANSKI

Second Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to property division and final parenting arrangements for two children.
Mr Baranski “the husband” and Ms S Baranski “the wife” are the parents of twins, [X] and [Y] born [in] 2006.
The parties’ pool of property is modest and circumstances dictate that the two children should continue to live with the wife. The case however raises complex and difficult issues.
At an earlier stage of the proceedings,[1] the husband conceded that it was appropriate that the wife should have sole parental responsibility for [X] and [Y] and she should be free to move the children’s home, with her, from Adelaide to a location in Victoria, most likely Geelong.
[1] See consent order made 11 March 2010
The question remains what contact[2], if any, the two children should have with their father in future. The wife’s position is that there should be none, apart from the father being able to send gifts to the children on their birthday and at Christmas, with the gifts to be delivered to them by their paternal grandmother.
[2] I use the word “contact” as a shorthand way of referring to the legal concepts which regulate the means by which a parent spends time and communicates with a child.
The complicating factor in this case is undeniable and serious incidents of family violence. At the date of hearing, Mr Baranski was in prison as a result of being convicted of an offence of aggravated assault on

Ms Baranski, which caused her harm.
He was sentenced to an immediate term of imprisonment of fourteen months by the District Court at Adelaide on 4 February 2010.[3] This was not the first assault committed by Mr Baranski on Ms Baranski, which had come to the attention of the authorities and so resulted in the involvement of Mr Baranski with the criminal justice system.
[3] See exhibit 5 – the sentencing remarks of Judge Millsteed in R v Baranski
It is the wife’s position that the husband’s history of violent behaviour poses an actual and psychological threat, both to her and to [X] and [Y]’s wellbeing in future. In addition, it is Ms Baranski’s case that she and the children remain traumatised as a result of the assaults committed against her. As such, the wife asserts that [X] and [Y] are not likely to benefit from having a relationship with their father in future.
Mr Baranski is not in a position to deny the serious consequences of his behaviour. However, it is his case that he loves the children deeply and the opportunity for him to express this love directly to the children and for the children to know him firsthand must benefit [X] and [Y] to some degree.
He concedes that the current circumstances of the parties must dictate a cautious approach be taken in respect of his re-engagement with the children. In this regard, he proposes periods of professionally supervised time between him and the children, before his mother, the children’s paternal grandmother Ms V Baranski “the grandmother” takes on the role of overseeing his time with the children and ensuring that they are safe.
Ultimately, when he has proved himself to be a positive factor in the children’s lives and has shown himself to have been rehabilitated,

Mr Baranski would want to spend unsupervised time with the children. Mr Baranski accepts such an outcome may be many years off.
The grandmother is also a party to these proceedings. She has stuck by her son, both before and after his incarceration. She now wants to ensure that she personally is able to maintain an appropriate level of relationship with [X] and [Y].
It is her case that the children need to maintain some form of connection with the paternal side of their family, regardless of whether or not Mr Baranski spends time with them, pursuant to any order made by the court.
This case began as what lawyers commonly call a relocation case. Essentially, Mr Baranski wished to restrain Ms Baranski from moving the children’s place of residence from out of Adelaide so that, on his release from prison, no geographical restraints existed which would prevent him from pursuing his preferred form of relationship with [X] and [Y].
The grandmother, to her credit, has never tried to keep the wife and children in Adelaide, a location, which for obvious reasons, has unhappy connotations for Ms Baranski and where she (the wife) has no family support.
More recently, Mr Baranski has also accepted that the court is not likely to restrain Ms Baranski from moving, when it is his conduct which has rendered Ms Baranski the children’s unchallenged custodian and which has made the prospect of remaining indefinitely in Adelaide so unpalatable for her.
Accordingly, the wife plans to leave Adelaide shortly prior to

Mr Baranski’s release from prison. However, with the move, many logistical issues will arise so far as the grandmother’s future interaction with the children is concerned. The grandmother will have to travel to Victoria and rent accommodation there, when she comes to visit the children. It will be a time consuming and expensive exercise for her.
As a result, at some stage in the future, Mrs Baranski would want the children to come and visit her at her home in Adelaide, a prospect which fills the wife with agitation. She is apprehensive about the children being a long way away from her and at the possibility that they may be exposed to their father in some away.
Although the wife and grandmother have a reasonably workable relationship and Mrs Baranski has demonstrated herself to be a decent and trustworthy person, the wife still fears that she will be the agency of the children possibly re-engaging with their father.
As such, she is resistant to any proposal for the children to visit their grandmother in Adelaide and wishes any future interaction between the children and their grandmother to be closely monitored and subject to conditions, particularly so far as the possible involvement of the husband is concerned.
The property aspects of the case are also affected by issues of family violence. The parties’ most significant asset, in dollar terms, is their former family home in Property G. Mr Baranski purchased this property prior to the parties beginning their relationship in 2004.

Mr Baranski would like to retain the property.
During the parties’ marriage, Mr Baranski was in well paid and permanent employment with an [omitted] firm. He often worked away from home, at remote locations, particularly in [omitted]. It is common ground that he made the vast preponderance of financial contributions during the marriage and specifically brought in the Property G property, a contribution to which he argues the court should attach significant weight.
It is also agreed that Ms Baranski made significant contributions, as a parent and homemaker. It is the wife’s case that the husband’s regular episodes of violence towards her had a significant impact upon those contributions and made them more arduous to make than they would have otherwise been.[4]
[4] See Kennon & Kennon (1997) FLC 92-757
As such, Ms Baranski argues that her parenting and homemaking contributions should be assessed as being greater, in overall percentage terms, when compared to the property pool as a whole, than they would otherwise have been.

It is also the wife’s position that, because she has limited employment skills and is the sole custodian of two young children, her prospective needs, when assessed under section 75(2) of the Family Law Act are considerable and also call for an additional apportionment of the parties’ property in her favour.
Accordingly, the parties have different views as to the basis on which their pool of matrimonial property is to be divided following the conclusion of these proceedings. The husband’s position is that it should be divided 65/35 in his favour, largely in recognition of his direct financial contributions. On the other hand, the wife’s position is that the pool of property should be divided 70/30 percent in her favour.
The parents and grandmother are not the only parties to the proceedings. On 9 July 2008, I ordered that the two children be independently represented in these proceedings. The children’s representative is Mr Winter, an experienced family lawyer, employed by the Legal Services Commission of South Australia. He has briefed a barrister, Ms Tinning to appear on [X] and [Y]’s behalf.
The law requires Mr Winter and Ms Tinning to formulate a position, based on the evidence available to them, which they think will be in the children’s best interests.[5] In her final submissions, Ms Tinning advocates that [X] and [Y] should have no direct physical interaction with their father because of the threat posed to the children by reason of Mr Baranski’s prior violent behaviour to their mother.
[5] See Family Law Act at section 68LA
Ms Tinning submits that the evidence led before the court reveals that Mr Baranski has a limited level of insight into the consequences of his past behaviour and he himself has sought to minimise the extent of his violence. In this regard, Ms Tinning points to the failure of previous courses of anger management and counselling, undertaken by

Mr Baranski, to ameliorate his violent conduct towards the wife.
In these circumstances, Ms Tinning submits that [X] and [Y] are not likely to benefit from having a relationship with their father for the foreseeable future, particularly because he is likely to remain an impaired parental role model for them.
In addition, she asks the court to accept the wife’s evidence that she personally remains highly fearful of Mr Baranski and that both she

(Ms Baranski) and the children remain emotionally traumatised as a result of the husband’s assault upon her on 6 March 2009.
These proceedings are directed towards resolving this complex dispute between the parties and, as far as is possible, finalising arrangements for the care of [X] and [Y], as well as ending the financial relationship between Mr Baranski and Ms Baranski.

The evidence

The husband is the applicant in these proceedings which he commenced on 3 June 2008. At that stage, he sought orders that would have seen the parties having equal shared parental responsibility for [X] and [Y] and for the children to live with him for one week in every four to coincide with the time he was in Adelaide on his rostered week off. At the time, he was required to work three weeks out of every four in remote areas of South Australia.
The parties had separated on 13 May 2008, following a violent altercation between them. Mr Baranski had been charged by police with assaulting the wife at the parties’ then family home located at Property G.
The wife responded to this application on 7 July 2008. At that stage, she opposed the husband having any contact whatsoever with the children. She also sought orders in respect of matrimonial property settlement.
Given the significant issues of family violence raised at the outset of the proceedings, the order for the independent representation of [X] and [Y] was made at an early stage. Subsequently, on 14 August 2008, it was ordered that the parties and the two children concerned should attend on a suitably qualified expert for the purpose of a family assessment report being prepared.
The expert nominated to conduct the family assessment was Mr B, a psychologist. He in fact prepared two family assessment reports for the court, dated 17 February 2009 and 22 May 2009 respectively.
On 15 July 2008, the husband appeared before the [C] Magistrates Court in respect of a charge of aggravated assault against Ms Baranski and with failing to comply with a domestic violence restraining order. He was convicted and fined the sum of $450.00.
The parties’ competing applications were originally listed for final hearing on 29 & 30 April and 1 May 2009. This final hearing did not proceed. The reason the hearing did not proceed was because

Mr Baranski was again charged with assaulting Ms Baranski on

6 March 2009.
This was the charge which resulted in Mr Baranski being incarcerated by order of the District Court on 4 February 2010, following a plea of guilty on his part. The actual sentence imposed by the District Court was one of fourteen months, with a non-parole period of seven months.
Prior to the assault on Ms Baranski on 6 March 2009, orders had been made for Mr Baranski to spend supervised time with the two children concerned. This regime had been ostensibly successful and other orders had subsequently been made, extended the husband’s time with [X] and [Y].
On 23 March 2009, orders were made suspending all orders authorising Mr Baranski to spend time with the two children concerned. This was the background to the grandmother instituting proceedings on her own behalf, which she did on 4 August 2009.
Prior to this date, pursuant to orders made on 18 December 2008,

Mr Baranski had been spending periods of daytime contact with the children under the supervision of his mother, who had collected [X] and [Y] from Ms Baranski at the [C] Police Station.
In her application filed on 4 August 2009, Mrs Baranski sought to spend time with [X] and [Y], during the day, on one Thursday each month, initially for three hours and then for eight hours. The wife was opposed to the children spending any time whatsoever with the paternal grandmother.
The incident of 6 March 2009 also caused Ms Baranski to amend her position in respect of Mr Baranski’s application. On 25 January 2010, she amended her response to formally seek the court’s authorisation to relocate the children’s place of residence outside of South Australia. She had earlier informally indicated this position to the court and

Mr Baranski.
The husband’s position was that he opposed the children living outside of South Australia generally and the Adelaide metropolitan area in particular. This was the background to the proceedings being again fixed for final hearing for three days on 9^th, 10^th and 11^th March of 2010.
As previously indicated, during the course of the hearing, Mr Baranski consented to the mother being able to move the children’s residence to Victoria. An order to this effect was made on 11 March 2010. It occurred after Mr B had given his evidence to the court and after

Mr Baranski had consulted with his counsel, Mr Treadrea.
The issue of what time, if any, the children should spend with their father, upon Ms Baranski’s relocation to Victoria, remained the major focus of the trial, as well as the division of matrimonial property. The other aspect of the case was the basis on which Mrs Baranski should spend time with [X] and [Y], once the children had moved out of Adelaide.
The wife, husband, Mrs Baranski and Mr B were the only witnesses who gave evidence in the case. Arrangements were made, with the correctional authorities, for Mr Baranski to attend court in person, whilst he remained in custody. When Mr Baranski was giving his evidence, Ms Baranski observed the proceedings via a video conference facility from another location. The same procedure was followed, in reverse, when Ms Baranski gave her evidence.
The intention of this practice was to ensure that the parties did not come into direct contact with one another, whilst their competing applications were before the court. Regrettably, on one occasion, the parties were present in court at the same time. This occurred in the presence of the parties’ respective lawyers, counsel for the independent children’s lawyer, court officers and myself. This is my recollection of what happened.
The parties did not communicate directly with one another and were separated by the width of the court room. Mr Baranski was in the custody of correctional services staff at the time. There can be no doubting the strength of Ms Baranski’s emotional reaction to coming upon Mr Baranski unexpectedly. She was fearful and apprehensive and his appearance caused her to visibly shake. I do not think that these reactions were either feigned or exaggerated in any way. I will return to the significance of this evidence in due course.
Accordingly, there were some logistical difficulties in completing the case in the time allotted and it was adjourned part heard to 3 and 4 June 2010. Counsel’s final submissions were completed on 10 June 2010.
The husband relied on the following documents:
i)An affidavit of himself filed on 3 March 2010.
The wife relied on the following documents:
i)An affidavit of herself filed on 1 February 2010;
ii)A statement of her financial circumstances filed on 1 February 2010.
The grandmother relied on the following documents:
i)Two affidavits of herself filed on 18 February 2010 and 24 May 2010 respectively.
A number of other documents were tendered into evidence. The most significant of these were the two family reports of Mr B; the sentencing remarks of Judge Millsteed;[6] and a series of colour photographs of the wife’s injuries, following the husband’s assault on her in March of 2009.[7]
[6] Exhibit 5
[7] Exhibit 1
The most significant evidential issue in this case concerns the nature of the parties’ relationship together and its consequences for [X] and [Y]. The larger proportion of the hearing time was taken up with the cross-examination of the parties about the various incidents of violence in their relationship. In particular, what precipitated those incidents, the extent of the violence involved and whether there were any mitigating elements present which reduced its culpability in the context of these proceedings.
Mr Baranski did not deny that he had been violent towards

Ms Baranski in the past. How could he deny such behaviour, when he has criminal convictions in respect of it and the wife is able to provide physical evidence of the extent of her injuries? Mr Baranski also accepted that his behaviour was wrong and he must be held accountable for it personally. In court, he publically apologised to

Ms Baranski for his conduct.
However, my impression was that he was not able to acknowledge the full extent of his violence and the consequences of it for the wife and [X] and [Y]. For example the wife’s narrative of what happened to her on 6 March 2009 was more complete and coherent than that of the husband, who denied some elements of the assault, which were part of Ms Baranski’s account.
Mr Baranski had been drinking at the time (as had Ms Baranski) and it may be that his memory is impaired. However, I think it more likely that he was attempting to reduce the gravity of his conduct or perhaps was in a state of denial about it. This was also my impression in respect of other accounts, provided by him, of earlier episodes of violence between the parties.
In addition, it seemed to me that, at times, Mr Baranski was attempting to shift responsibility for his behaviour to Ms Baranski, blaming her labile temperament or the parties’ mutual consumption of alcohol as being the triggers which caused violence to erupt between the parties. I am concerned that this indicates a degree of rationalisation, on the husband’s part, of his behaviour.
These matters are relevant, because in my view, I am required to consider the extent to which Mr Baranski is able to acknowledge his behaviour and accept responsibility for his violence.[8] I am not altogether sure how genuinely regretful he is for his behaviour. In this regard, it was only at a very late stage that Mr Baranski abandoned his attempt to restrain Ms Baranski and the children permanently in South Australia.
[8] See Re L (Contact: domestic violence) [2000] 2 FLR 334 at 339
Mr B was concerned that Mr Baranski’s desire to restrain Ms Baranski in South Australia, with [X] and [Y], when it was his conduct which had rendered her the children’s undisputed primary carer, may be indicative of him wanting “to keep some control over the relationship and particularly where Mrs Baranski lives.” Mr B was of the view that this may be suggestive that Mr Baranski had not as yet gained insight into the implications of his violent behaviour towards the wife.
My role is not to punish Mr Baranski for his past behaviour. That is the function of the criminal courts. My responsibility is to focus on [X] and [Y]’s best interests, particularly in terms of protecting them from future exposure to family violence and the serious and obvious failure in parenting, which it represents.
In performing this protective role, in my view, it is incumbent upon the court to make some appraisal of the degree to which a perpetrator of family violence understands the gravity of his or her behaviour, as the degree of such insight is likely to provide the key for the court to be able to predict whether such a parent is capable of modifying his or her parenting behaviour in future.
Neither party was a particularly reliable historian, in the sense that neither was able to provide a clear narrative of what precisely occurred in their troubled relationship over its course of five years or so. From both parties’ points of view the various fights, frequently involving intervention from the police, have blurred into one another. The wife allocated dates for assaults which are not corroborated by extraneous sources such as police records.
In my view, the evidence is clear that the parties’ relationship was one marked by endemic violence. Their story together is a tragic one marked by frequent fighting followed by separation and then reconciliation. Neither of them was able to find a way to break this cycle of recurring and destructive violence between them.
Tellingly, the final act of violence which occurred between them was when they had voluntarily met one another, in contravention of a domestic violence restraining order, to discuss arrangements for the children and I suspect to explore the prospect of reconciliation yet again.
My impression of Mr Baranski’s evidence was that he wished to both confess and avoid his violent behaviour. Ms Baranski was a tense and quietly spoken witness. I thought her vulnerable. She made concessions in respect of the positive attributes of the paternal grandmother and her involvement with the twins. As such, I do not think that she is consumed with a desire for recrimination against Mr Baranski and his family.
Mr Baranski has not conducted his financial affairs, since separation, in an orthodox manner. In particular, he arranged for his salary to be paid into an account standing in the name of a friend, Mr R, which to all intents and purposes was his own (Mr Baranski’s) account because he was the only person operating it. This unusual state of affairs was discovered by the wife only during the course of the hearing.
In addition, the wife discovered that Mr Baranski owned a parcel of Rio Tinto shares during the hearing, which had not previously been disclosed by him. The parcel of shares is small (248) and I accept that they were inherited by Mr Baranski some years ago. However, I am concerned at my impression that Mr Baranski has not been completely transparent in respect of his financial circumstances, in the lead up to trial.
Overall, I found Ms Baranski to be a more credible witness than

Mr Baranski. As such, in my assessment, her account of what occurred during the parties’ relationship is likely to be the more reliable one, notwithstanding that she is not always accurate in respect of her chronology.
In addition, in my assessment, for obvious reasons, she is the best placed person to assess how both she and the twins are travelling emotionally at present and what they can or cannot cope with in terms of possible future interactions with the husband.
As I have already indicated, I had some direct experience of seeing

Ms Baranski’s emotional reaction to Mr Baranski, during the course of the proceedings. She was sitting behind her counsel, in court, at the time. Mr Baranski was handcuffed and in the custody of correctional services officers, when he was brought through a secure door into the witness box. The two parties were separated by a crowded court room. Nonetheless, Ms Baranski was visibly terrified. The only rational reason as to why Ms Baranski was so afraid was because of what Mr Baranski had done to her in the past.
I do not think that Mr Baranski is an intrinsically evil person. I do not doubt that he loves [X] and [Y]. I also accept that he has attended some forms of counselling in the past in respect of his past behaviour and is in many ways a hard working and productive member of society. These are factors which indicate some positive motivation on his part.
However, I am concerned that he does not fully appreciate the gravity of what he has done and the long term consequences of it for

Ms Baranski and, given that she is their primary carer, vicariously for [X] and [Y]. I am also concerned that he has not in the past been fully committed to changing his behaviour thorough some course of therapy or counselling. Although he admitted wrong doing, I did not find his acknowledgements of his wrong doing particularly compelling.
Clearly, given his current position and his desire to maintain a relationship with [X] and [Y], Mr Baranski has no viable alternative but to acknowledge his past culpability. He did so many times during the course of the hearing.
However, my impression, sadly, is that he did so without either conviction or insight but only because he felt that his circumstances dictated that he had no alternative. At a visceral level, he blames the wife for his current predicament.
Mrs Baranski is a thoroughly decent and genuine person. It is a tribute to her character and sensibility that has been able to maintain her relationship with her son, whilst being able to retain the trust of

Ms Baranski.
She is keenly aware of the vulnerability of [X] and [Y] and has at all times been sensitive to their situation. Mrs Baranski loves her son, but does not condone his behaviour. I accept her as an insightful and truthful witness.
Perhaps, more importantly, she is an intelligent person. She understands the implications of the current situation. As such, she is aware that if she breaches any court order in future, either directly or in its spirit, she will immediately forfeit the trust of the mother and is subsequently likely to receive the censure of the court. Both such outcomes are likely to mean she will lose her relationship with [X] and [Y]. She will do nothing which will jeopardise this relationship.
In these reasons for judgment, findings of fact are made on the balance of probabilities, following my observations of each of the witnesses concerned. In what follows, statements of fact constitute findings of fact.

Chronology and salient findings of fact

The wife was born [in] 1965 in Geelong. She has two children from an earlier relationship. They are [T] aged around eighteen and [Z] aged around sixteen.
The husband was born [in] 1970. The parties met in Geelong in 2003. The husband was working in Geelong at the time. He has spent most of his life in South Australia. When he met the wife, he was working as a [omitted].
In August of 2004, the wife and [Z] moved to live in Adelaide, at the property owned by Mr Baranski at Property G. [T] remained behind in Victoria, with her father.

The wife asserts that the husband was violent towards her within days of the parties having met. She says he would punch walls violently, in her presence. The wife also says she blamed herself for making the husband angry and would apologise to him.
The wife also deposes that she found the husband to be controlling of her behaviour. For his part, the husband asserts that the wife was frequently insecure and he found her behaviour “very annoying.” It is his case that the wife would frequently “get extremely angry for no apparent reason or for very little cause.”[9]
[9] See husband’s affidavit at paragraph 12
It is apparent to me that the parties were unsuited for one another and their relationship was unstable from its earliest stages. I accept that there were many episodes of violence between the parties. In this context, an extremely important aspect of the evidence was

Ms Baranski’s statement that it was only rarely that an argument between the parties would not escalate to physical violence. As such I find that family violence was endemic in the parties’ relationship.
However, during the course of the hearing before me, particular emphasis was given to the following individual episodes of violence, which are mostly supported by extraneous evidentiary sources, appearing in subpoenaed documents.

Family Violence

a) Incident occurring on 15 February 2004 [N], Victoria

The wife says that, during an argument between the parties, the husband pushed her out of a moving vehicle, which he was driving at the time. A bystander called police. The wife concedes that she was hysterical and was detained by police.
The husband says that it would have been physically impossible for him to push the wife out of the vehicle, whilst he was driving it and it was the wife who jumped out of the vehicle, of her own volition. The implication being that she was irrational at the time.
The brief police record states as follows:
“… other party jumped out of a moving vehicle driven by AFM [aggrieved family member] verbal dispute between AFM and other party, U/K reason. Nil violence. Injuries on other party as a result of jumping out of car, grazes only and ref’d med treatment. Both parties intoxicated. AFM very co-op with police. Other party arrested for drunk and very aggressive when arrested …”[10]
[10] See exhibit A to the affidavit of Ms B filed 6 January 2009
I find it difficult to ascertain precisely what happened on the date in question and find the police record unhelpful. On balance, it seems to me unlikely that Ms Baranski would have left the moving vehicle for no reason whatsoever.
In my view, the episode is important because it reveals how toxic the parties’ relationship was with one another from its inception. It is also noteworthy because, as the parties’ relationship unfolded, it is clear that there has been an incremental escalation in the violence between them, from this comparatively low base. This is significant.

b) Incident occurring in May 2005 at the wedding in [L]

In May 2005, the parties attended the wedding of a member of the husband’s family at [L]. Mrs Baranski also attended. Both parties consumed alcohol and an altercation occurred between them during the reception. They left the function and went to their motel room, where the altercation continued.
The wife says that the husband assaulted her, during the course of which he broke her finger. The husband says that the wife “continued to rant and rave” in the motel room and he acknowledges that he pushed the wife away from him and “in the process she injured her finger”.
Mrs Baranski confirms there was an argument between the parties, which she did not view directly. She confirms that two days later she saw the wife’s finger and it was fractured. Mrs Baranski has [omitted] qualifications and would be able to accurately diagnose a fractured finger. Mrs Baranski has indicated that the wife did not provide extensive details of how the injury occurred, particularly that

Mr Baranski had inflicted it upon her.
Given my overall view of the credibility of the parties, I find it improbable that the injury occurred inadvertently, whilst Mr Baranski was attempting to push the wife away from him. In my view, some significant level of force must have been involved. To my mind, the explanation proffered by Mr Baranski, for the injury, has the flavour of a rationalisation or an attempt to deflect responsibility for it.

c) Incident of 16 April 2005

Police were called to the parties’ home at Property G on 16 April 2005, apparently by Ms Baranski. The parties had been playing scrabble together. The narrative recorded in the police record is that

Mr Baranski became angry and pinned Ms Baranski, by her throat, against a wall, using his other hand to bang her head against the wall. Ms Baranski received a cut to her temple.
In cross-examination Mr Baranski said he did not remember the incident. His rationalisation for this lapse of memory was that he and Ms S Baranski “fought on that many occasions … and police were called to [their] home many times.” I take this statement as acknowledgement of the endemic nature of violence in the parties' relationship.
The police also record that Ms Baranski told them that she and the husband had separated for around two months earlier that year because of violence between the parties. Ms Baranski had temporarily returned to Victoria. This statement is confirmed by the wife in her trial affidavit, although for some reason, she is uncertain of the precise date of the incident and asserts she went to Victoria, with [Z], for a period of five months.[11]
[11] See wife’s affidavit at paragraph 10
This incident marks the husband’s first involvement with the criminal justice system, in respect of issues of domestic violence. He was convicted of common assault on a member of his family and placed on a good behaviour bond for a period of two years. The bond was supervised.
In his original affidavit, filed 11 August 2008, the husband refers to the incident as follows:
“As a result of an allegation of domestic violence made by the respondent wife in April 2005 I was charged with Common Assault. On the 20^th July 2005 I attended at the [C] Magistrates Court with the respondent wife and the prosecutor came up to us and said “it looks like you have moved on, if you want this to go away just go in there admit it and you will get a slap on the wrist”. I pleaded guilty and received a bond to be of good behaviour for two years and to be under the supervision of correctional services for a period of 12 months. My corrections officer was Mr E. Due to my work commitments I was unable to undertake any anger management classes although I did receive one on one counselling from Mr E with respect to my anger management issues regarding the respondent wife. I continued to stay in contact with Mr E after this 12 month period had elapsed.[12]
[12] See husband’s affidavit filed 11 August 2008 at paragraph 9
Regrettably Mr Baranski’s attitude to the incident, at least so far as the words used by him in his affidavit, can only be described as glib. There is no acknowledgement of personal culpability and the incident itself, although it resulted in a conviction against him, is referred to by Mr Baranski as “an allegation”.
I note that the affidavit was filed at an early stage in the proceedings. However, when it was filed, Mr Baranski had only days before been further convicted of assaulting the wife. It confirms my impression that Mr Baranski is intent on mitigating the gravity of his behaviour and attributing fault, for causing it, to the wife.
In this regard, it remains a theme of the husband’s case that the wife is psychiatrically unstable; has a history of self harm; and issues to do with her consumption of alcohol. In these regards, the husband has annexed to his affidavit material, a number of documents, which his solicitors have subpoenaed from the Victorian health authorities.
Ms Baranski’s behaviour does not escape censure. She remained in a violent relationship, which placed both herself and the children at risk. Mr B rightly described the parties’ relationship as “extremely toxic” and was of the view that both Mr Baranski and Ms Baranski had “been quite remiss in caring for their children”. Mr B characterised the parties’ relationship as one of co-dependency. The implication being that both parties had contributed to the highly inflammable relationship between them.
Mr B also deposed that it was a common phenomenon for victims of domestic violence to be unable to escape their violent relationships because of a loss of self esteem and a sense of powerlessness. At one stage in her evidence, Ms Baranski said of the husband “I loved the man”.
However, at the end of the day, there can be no excuse or mitigation for the husband’s behaviour. In my view, the evidence of this incident and those which both precede and succeed it indicate that it is the husband who has been unable to control his anger and it is he who has inflicted violence on the wife again and again.
In this context it must be noted that, Mr Baranski is a well built man of over 100 kilos. Ms Baranski is a slightly built woman of around 54 kilos. The documentary evidence, which has been tendered before me indicates that it has been Ms Baranski who has been injured, following the various domestic fracas between them, rather than

Mr Baranski.
As has already been indicated, following this incident, Mr Baranski became involved with a correctional services officer, Mr E. The husband has deposed that he found attendance upon Mr E useful. It is also Mr Baranski’s case that the only person towards whom he has ever been violent is the wife.
However, Mr Baranski has not chosen to call Mr E or to obtain any detailed report from him. I am troubled by this omission, particularly in terms of the husband providing independent evidence of his personal insight into the consequences of his behaviour and his degree of remorse for it. Mr B indicated a sense of bemusement at the absence of evidence from Mr E.

d) Incident of 24 March 2006 – the Clipsal 500

On 24 March 2006, the parties attended the Clipsal 500 motor race. They had been invited to one of the sponsor’s tents and both drank alcohol, whilst they watched the race. They argued at the race, an argument which continued at their home.
The police were called to the incident. The wife deposes that the husband was angry and hit her with his fist to her head, face and body. She was badly bruised and received a cut on her head. Mr Baranski does not deny that the assault occurred, in the manner in which

Ms Baranski describes it.[13]
[13] See husband’s affidavit at paragraph 24
Mr Baranski was charged with assaulting Ms Baranski. The charge did not proceed, apparently because the parties reconciled. In the aftermath of the assault, Ms Baranski moved to Brisbane to stay with her brother. However, she voluntarily returned to Adelaide to resume her relationship with Mr Baranski.

e) Incident of 9 May 2007

In May of 2007, the wife contacted police to complain that

Mr Baranski had been physically violent towards her in the past, particularly when he had been drinking alcohol. She reported being fearful of him because she believed he was unable to control his anger.
The subpoenaed police records do not tie this complaint to a specific incident or set of incidents. To my mind, it provides some corroboration of the nature of the parties’ relationship. The police concerned provided Ms Baranski with information, in pamphlet form, regarding support services for the victims of domestic violence. However, no further action was taken by the police.
As previously indicated, it is a plank of the father’s case that his and the wife’s consumption of alcohol, in the lead up to several, if not all, of the incidents of family violence reported, represents some form of mitigation of his behaviour. I acknowledge that mutual alcohol consumption is a theme of the parties’ inflammatory relationship, but, in my view, it would be simplistic to assert that it is the sole cause of the spousal violence inflicted by Mr Baranski on Ms Baranski.
In my assessment, the cause of the violence, in the parties’ relationship, is Mr Baranski’s propensity to become angry and his inability to control that anger or be insightful regarding the types of situations likely to precipitate it. In regards to this issue, Mr B said as follows:
“Violence is a choice and choices are always influenced by the things that we ingest, like drugs and alcohol and yes, I don’t believe that alcohol is the cause of violence. I think that it is a dis-inhibiting factor but it merely reacts with an underlying behavioural system.”
I accept that alcohol was the trigger for much of Mr Baranski’s violent behaviour, but alcohol was not its cause. It can also be said, in some cases, that alcohol explains an individual or isolated act of violence. This is not the case here. Mr Baranski has continued to drink and to become violent. He seems to have learnt little from his behaviour. This, of itself, demonstrates a lack of insight.
In this context, although Mr B accepted that it was likely Mr Baranski had issues to do with the consumption of alcohol, he was satisfied that he had chosen to engage in violent behaviour. Mr B was also concerned at the recurrent pattern of the violent behaviour, which from his perspective, “screamed out” that the relationship between the parties was not working but Mr Baranski had done little, if anything, about this extreme level of dysfunction.
In his evidence, Mr Baranski repeatedly said that there was “no excuse” for his violence and that he was “responsible” for his own actions. This is a statement of the truth and it would be foolish for

Mr Baranski to say anything other, in the context of these proceedings. However, his statements appeared to me to be formulaic and recited like a catechism, without real sincerity.
I acknowledge that this presentation may be as a result of

Mr Baranski’s manner. He is not a person, who is comfortable in the expression of his emotions, particularly in the stressful location of the witness box. But it reinforced my impression, derived from statements made by him in his affidavit material, that he continues to lack insight into both the gravity and the consequences, for the wife and children, of his behaviour.
In his initial affidavit, Mr Baranski deposed his opinion that the “wife seemed to enjoy conflict and fighting with me.”[14] This statement concerns me because of its attribution of fault, to the wife, for the husband’s behaviour. Mr B shared my concern at the statement and was troubled by the husband’s apparent lack of insight, particularly in the context of the failure of his anger management treatment.
[14] See husband’s affidavit filed 11 August 2008 at paragraph 22
f) Incident of 27 August 2007
On the evening of 27 August, police were again called to the parties’ home in Property G. It is unclear who precisely called police to the home, but a patrol car was tasked to attend. The officers concerned described Ms Baranski as having a minor graze on her forehead and a small lump above her right eye. She was said to be moderately intoxicated and highly anxious.
Mr Baranski was interviewed and was again charged with aggravated assault. He acknowledged having been in a verbal argument with

Ms Baranski but denied assaulting her. For reasons unknown to me, the police did not proceed with any charge against Mr Baranski.
Ms Baranski told police that she had been involved in an argument with Mr Baranski, who had slapped her to the side of her head. A short time later, he had pushed or kicked her, whilst she was tending to the twins, causing her to fall over and land on them. This had caused the graze to her forehead and bump above her left eye.
Ms Baranski also stated that Mr Baranski had later approached her and gouged her eye, causing her fear and distress. Mr Baranski has always vehemently denied gouging the wife’s eye and I am unable to resolve this issue definitively.
g) Incident of 2 March 2008
On 2 March 2008, police were called to the parties’ home as a result of a complaint that they had been engaged in a verbal argument.

Mr Baranski had broken some canvas pictures and broken the parties’ wedding photographs. Mr Baranski acknowledges that he broke the wedding photographs concerned.
h) Incident of 7 April 2008
Police records indicate that they were called to a motel, in [P], on

7 April 2008. Mr Baranski had been working at [P] [omitted] and his wife had accompanied him there. An argument ensued. Ms Baranski apparently did not wish the police to take action.
i) Incident of 13 May 2008
On the evening of 13 May 2008 the parties were drinking in the spa at their former home in Property G. Mr Baranski has deposed that they drank a bottle of wine and some ouzo. He cannot now remember what the argument between them was about, although in his affidavit of 11 August 2008 he asserts that the wife was “extremely abusive” to him.
Mr Baranski acknowledges striking the wife above her left eye, with sufficient force to split open the skin and cause a wound which bled profusely.[15] The husband then carried the wife out of the house, after kicking the screen door off its hinges. He concedes “some force” would have been required to do so. He locked the wife out of the house. Dispute exists between the parties as to who of them called the police.
[15] See annexure A to the wife’s affidavit
The injuries to the wife left traces of blood outside [Z]’s bedroom. At the time of the assault [Z] was watching television in another part of the house. Mr Baranski concedes that [Z] was distressed by the incident. In Mr Baranski’s own words it “was quite terrible that he witnessed these things.”
I have been provided with a colour photograph of the injuries sustained by the wife. Her right eye was severely blackened and closed by bruising. In addition there would have been scabbing on her forehead, which would have taken some time to heal. [Z] and the twins would have observed these injuries in the days following. All three children would have been witness to the mother’s obvious distress.
The husband was detained and then charged and bailed by police. In interview with the police, Mr Baranski could not explain how the wife had received the cut to her face, but stated that he had known her to self harm in the past.
He expressed concerns that the children were being left in the care of the wife, whom he said he believed to be mentally unstable. These statements do not indicate either remorse or insight. They are a blatant attempt to shift responsibility to the wife for the episode and launch an attack on her character.
The wife, twins and [Z] were taken to the [N] Hopsital by ambulance. The wife was detained in the hospital overnight. Records concerning the wife have been subpoenaed from the [N] Hopsital. These records indicate that the wife had contacted [N] Health Services in May of 2008 and had raised concerns about Mr Baranski’s violence towards her.
She described herself as being fearful of him and feeling worthless and lacking in confidence. Ms Baranski also complained, to the health worker concerned, of suffering some degree of hearing loss, as a result of having earlier sustained a perforated eardrum because of a previous assault on her by the husband. The notes also indicate that the wife was urged to take steps to ensure her own safety.
In one of his affidavits, the husband deposed as follows:
“On the 15^th July 2008 I attended at the [C] Magistrates Court and pleaded guilty to this assault. His Honour noted that it was not a sustained attack and that I was the subject of provocation. His Honour recorded a conviction against me with respect to the assault and ordered that I pay a fine of $450.
I deeply regret assaulting the respondent wife and realise that there is no excuse for such behaviour. I have continued to stay in contact with Mr E in order to affect meaningful change however I repeat that I have never been violent towards the twins and I do not believe that I pose a risk to their emotional or physical well being.”[16]
[16] See husband’s affidavit dated 11 August 2008

In cross-examination Mr Baranski deposed that he had had “lots of sessions” with Mr E since 2005. It was his evidence that he had tried to see Mr E, whenever possible, for one on one counselling and had also attended some group sessions. Mr Baranski’s evidence regarding whether and when he had attended any specific anger management classes was unclear to me. His evidence was that he found it difficult to attend these classes because they clashed with his work commitments.
Mr Baranski said that Mr E had provided him with advice and strategies to deal with his anger. He was taught to recognise the signs of his anger and to “step back” from it and to leave any situation, which was causing him to become angry. These strategies seemed to have been concerned with Mr Baranski being able to recognise the signs, which might lead him to losing control of his temper and so being able to extricate himself from such situations.
Mr Baranski conceded that these strategies had not been “100% successful” [but] “I was getting there”. Mr Baranski had also been referred to the men’s anger unit, at [N] Health Village but had not always been able to attend there because the group times clashed with his work commitments. To Mr B, in the context of the first family report, he indicated that he had completed a twelve week anger management course at the [N] Health Village.
I am concerned that there is a significant lack of information and detail, in the husband’s case, about what treatment and or therapy and counselling he sought out for himself following the various episodes of violence between him and the wife. I did not find Mr Baranski’s evidence about the courses, which he had attended to be particularly coherent.
It may be the case that this deficit is due to the fact that Mr Baranski does not have well developed facility to remember such things or to keep documentary evidence in respect of them. It may also be the case that it is difficult for him, given his current state of incarceration, to obtain details of the counselling and courses he has done.
The only formal document, dealing with the counselling which

Mr Baranski has undertaken comes from Relationships Australia and is dated 16 December 2008. It states that Mr Baranski attended a voluntary group entitled: Moving Towards Responsibility: Stopping Violence and Abuse.
The letter indicated that he had attended most but not all sessions, due to work commitments. The course apparently takes twelve weeks to complete but participants are welcome to extend. The course is said to be addressed towards issues of “power and control [and to assist participants] to recognise their patterns of behaviour.”
Mr B was of the view that it was an essential precondition of

Mr Baranski having any future interaction with the children, of any kind at all, that he demonstrate an ability “to engage in alcohol abatement and anger management and be able to demonstrate that he has taken on board the issues and made positive changes.” Mr B was also of the view that these processes were likely to need to take the form of intense one on one counselling with some suitably qualified and expert therapist.
In this regard, it is noteworthy that Mr B considered that “a tokenistic course or a tokenistic attempt at the course is worse than useless.” I am concerned that Mr Baranski was not fully committed to the courses, which he has attended and further concerned that those courses were not in any event of sufficient intensity and direction to assist him modify his behaviour, given the extent of his anger management issues.
But, no matter how many courses Mr Baranski has done and how many counsellors he has seen, what matters is how Mr Baranski’s behaviour can be said to have changed, for the better, as a result of these interventions. Given the tragic events of 6 March 2009, it is difficult to see that Mr Baranski’s past involvement with the services made available to him by Correctional Services have had significant utility.

What happened after 13 May 2008?

13 May 2008 marks the end of the parties’ relationship. They have not lived together in the period since. The conditions of the husband’s bail precluded him from living at Property G or approaching the wife. As a consequence, the husband went to live in [M] and the wife, twins and [Z] were able to remain at the Property G property.
Mr Baranski was assessed to pay child support in respect of [X] and [Y]. The parties agreed that it was appropriate that Mr Baranski should continue to pay the recurrent mortgage payments due on the Property G property, in lieu of direct cash payments of child support to

Ms Baranski. Mr Baranski has continued to pay the mortgage up to the date of hearing, notwithstanding his incarceration. His mother has assisted him in this regard.
The mortgage payments have amounted to around $640.00 per fortnight, for most of the period in question.[17] I accept that this amount has been around or slightly greater than the various child support assessments. For example, the amount of child support assessed for the month of December 2009 was $1,481.43. Ms Baranski was not in the paid workforce, at the time of the parties’ separation and has not been employed in the period since.
[17] See exhibit 3
Mr Baranski initiated proceedings, in this court, on 3 June 2008. His original position was that the twins should live with him for one week in every four, to coincide with the weeks he was rostered off from work. The mother’s position was that the father should have no interaction whatsoever with the children.
The father’s application came before the court for the first time on 9 July 2008. The father pushed to spend time with the children. Given the severity of the assault on Ms Baranski, I was not prepared to accede to his application and made no orders regarding Mr Baranski spending time with [X] and [Y].
On 14 August 2008, following the appointment of the independent children’s lawyer, I ordered that the husband have five sessions of supervised time with [X] and [Y] at the [N] Children’s Contact Centre. It was further ordered that after these visits a report be prepared regarding how father and the children had interacted together.
The Contact Centre provided a report dated 4 December 2008, which dealt with four of the five ordered supervised visits. The program had commenced on 18 August 2008, however, the first visit did not proceed, as the children would not settle. Thereafter, three visits scheduled for 1 November, 15 November and 29 November 2008 proceeded uneventfully, with the children described as happy and relaxed in the company of their father.
This was the background to the court making orders for Mr Baranski to spend three hours, of day time contact, with the father, provided that Mrs Baranski collected and returned the children to the wife, at the [C] Police Station and each such visit took place under her (the grandmother’s) supervision. These orders were made on 18 December 2008. At this stage it was anticipated that the parties’ competing applications would proceed to final hearing at the end of April 2009.
Mr B provided his first family report on 17 February 2009. It proved to be controversial. The wife asserting that Mr B had either misquoted or misconstrued her comments on a number of occasions. Certainly, Mr B characterised the wife as a “troubled and inconsistent historian”.
In particular, Mr B was impliedly critical that Ms Baranski was unable to provide any “any reasonable reasons” as to why Mr Baranski should not spend more time with the twins other than for two to three hours per fortnight, which was the arrangement at the time of his interview with the parties.
In the context of the first report, Mr Baranski reported his concerns to Mr B about Ms Baranski’s unstable emotional behaviour. He also conceded that he had been a reasonably heavy drinker and had issues to do with the control of anger.
Mr Baranski confirmed to Mr B that he had attended an anger management course at [N] Health Village and now felt more in control of his emotions. He also reported that he had previously responded violently to what he characterised as Ms Baranski’s goading of him.
Both [X] and [Y] were observed to seek out their father voluntarily and engage with him happily. Mr B reported that Mr Baranski’s “appeared to be capable and willing to tend to the children’s needs – both physically and emotionally – at least for the time involved in the access session.”
To Mr B, Ms Baranski reported a history of family violence between her and the husband, which Mr Baranski had instigated. She also raised concerns about Mr Baranski’s parenting skills, given what she perceived was his lack of practical involvement with the twins.
Mr B reported that both parents presented as caring of their children and both had “a reasonably good idea of how to cope with the children.” Mr B also reported there were no suggestions or allegations that Mr Baranski presented as “any risk to his children”.
In summary, Mr B opined that the wife was “reasonably comfortable” with the husband seeing the twins on a regular basis, but was opposed to overnight time, although was “unable to explicate any fears that might motivate such thinking.”
Mr B’s somewhat negative impression of the mother, when coupled with his confidence that Mr Baranski had undergone an anger management course and his acceptance that Mr Baranski had been goaded until he “snapped” seemed to have been major factors leading to the recommendations made by Mr B, at the conclusion of the first family report. He recommended as follows:
“It is strongly urged that the children remain resident within South Australia so that their father, Mr Baranski can have a reasonable amount of readily available access with them as they grow. Any move to Victoria, or any other state, would place undue hardship on this important relationship between children and their father.
…
It is suggested that because of the ages of the two children, [X] and [Y], both children remain with their mother, Mrs Baranski, for the majority of the time at this stage. However, this would best be re-examined when the children are nearer to school age, at which time, different share arrangements might be made depending upon their emotional maturity and their observed interaction with their father, Mr Baranski.
It is suggested that consideration be given to allocating overnight access to Mr Baranski on a weekly basis so that both he and the children can develop a more normal relationship. At this stage, there are no allegations against Mr Baranski to suggest that he would be anything other than a loving and caring father, and it is felt that he should be given the opportunity to demonstrate such to everyone.”
The release of the report formed the background to an interim hearing, which took place on 6 March 2009. Mr Baranski wished to spend overnight time with the twins. Ms Baranski was vehemently opposed to the prospect of [X] and [Y] spending overnight time, with their father, given that they had never slept in accommodation away from her. In support of her position, the wife filed an affidavit which was critical of Mr B methodology. The sub-text of these criticisms was that he had underestimated the wife’s concerns about family violence.
On 6 March 2009, I decided that it would be premature to make orders for the children to spend overnight time with their father. However, I was of the view that it was appropriate to make orders extending his time with [X] and [Y], in the light of Mr B’s recommendations, particularly in the lead up to the final hearing, which was imminent.
Accordingly, I made orders that Mr Baranski spend time with the twins during alternate weeks between 10:00am and 5:00pm on Tuesday and Thursday. The children were to be exchanged at the McDonalds Restaurant at [C]. These orders were never implemented.

j) The incident of 6 March 2009

On 27 May 2008, the [C] Magistrates’ Court had made a domestic violence restraining order, in the wife’s favour, restraining Mr Baranski from being on any premises at which Ms Baranski lived or worked. In addition, Mr Baranski was restrained from contacting the wife in any way: “except to make arrangements in relation to children by SMS or as otherwise permitted by this order.”
The husband contacted the wife, by text message, in February of 2009. I am satisfied that this contact was not within the strict provisions of the exception to the domestic violence order, although the husband may have used issues relating to arrangements for the children as a

pre-text to contact the wife. However, the wife did nothing to rebuff the husband’s overtures to her, which soon seemed to have turned to discussions about a possible reconciliation between them.
It seems to be the case that there were several telephone conversations, between the parties, in the period between early February and early March of 2009. I accept that the husband instigated these calls but the wife did not decline them or ask the husband to desist. Certainly she did not raise the husband’s breach of the domestic violence order with the relevant authorities. The parties discussed resuming their relationship, although the wife does depose that she told the husband “it will take a real lot to ever trust you again.”
Nonetheless, the parties had dinner together on 18 February 2009 and had a walk together afterwards. The children were not present on this occasion. In addition, a few days later, the husband stayed overnight at the parties’ former family home. Although the wife denies that the parties resumed a sexual relationship, she agrees that the parties had sex on this occasion.
Clearly both parties were in breach of the domestic violence restraining order, which had earlier been made to ensure the wife and children’s protection. I was not told any of these matters on 6 March 2009. The husband’s position is that the parties travelled together, on the morning of 6 March, but separated prior to entering the court building, so that they would not be seen together. The wife does not specifically deny this allegation.
Ms Baranski explained her behaviour, in cross-examination, as follows:
“I loved the man. We had children together. I wanted him to have his family back. He told me that he had learned a lot from his men’s group.”
This has aspects of a rationalisation of her behaviour which, as events have turned out, was extremely imprudent. It also rendered the family violence order, made in her favour, largely redundant.
The probability of Ms Baranski and Mr Baranski resuming their relationship, once again, is an issue relevant to the best interests of [X] and [Y]. Undoubtedly, the prospect of the children being once again exposed to serious family violence, instigated by one parent against the other, would pose a threat to the children’s fundamental welfare.
Much has changed since March of 2009, the most significant aspect being the husband’s incarceration and the absence of any interaction between him and the children and most importantly, Ms Baranski herself. But a link remains between the parties in the form of their children.
It is a common phenomenon for parents, who are joined in a

co-dependent relationship, marked by violence, to separate and reconcile many times, even after the intervention of police and domestic violence restraining orders. This has been a feature of the current parties’ relationship. The reasons why couples behave in such ways, which are likely to seem irrational and contrary to their best interests, to a lay observer, are complex.
In her evidence, Ms Baranski has stated that she does not think there is now any risk of the parties resuming their relationship. On balance, I think this is likely to be correct. However, Ms Baranski remains a vulnerable person in this regard and my assessment would be that her level of self esteem has not as yet been restored to what it should be. As such, she remains susceptible to any overtures from Mr Baranski, as she demonstrated by her imprudent conduct in the period leading up to 6 March 2009.
Mr Baranski and Ms Baranski should not have attended court together. They should not have been involved with one another in the period leading up to court. For the foreseeable future, they should have nothing directly to do with one another. I am satisfied that the nature of their relationship continues to pose a significant threat to the twins, as what occurred on the evening of 6 March demonstrates.
Because of his desire to have a normal family life, Mr Baranski is likely to wish to explore reaching some form of reconciliation with

Ms Baranski. Although she currently says that she has no intention of responding to such overtures and, at this stage, it seems unlikely that she would, in my view, due to her personality, Ms Baranski remains susceptible to such advances. This is a significant factor in determining what should be the final arrangements in respect of the care of [X] and [Y], particularly whether they should have any direct interaction with their father.
The husband came to Ms Baranski’s home in the afternoon on 6 March. He arranged for a friend to come over, who owed him money. This person came with his girlfriend. The husband purchased a bottle of whiskey. The friend also bought a bottle of spirits. The four persons concerned consumed most of the alcohol. The two friends left in the early evening.
The parties began to argue. The wife’s position is that she does not know what started the arguing but does not believe it was as a result of anything provocative said by her. The husband says the parties argued over what had happened earlier that day in court, particularly whether Ms Baranski still intended to pursue her application to relocate the children to Victoria.
The argument soon became a physical assault, which Mr Baranski instigated. He agrees that he “lost control and hit the wife. She damaged herself on the way down.” The statement of facts read to the District Court, which Mr Baranski acknowledged as true, by reason of his plea of guilty, indicates that he punched the wife to the head, causing her to fall to the floor. Thereafter he punched and kicked her in the head, ribs and stomach.
Mr Baranski now denies that he kicked and punched the wife, whilst she was on the floor. It is his position that he hit her once to the face and dragged her by the leg. Ms Baranski asserts that she was kicked and punched, whilst trying to defend herself by covering her head with her hands.
Ms Baranski has a recollection of being held upside down, by the husband, whilst her head was being banged on the floor and on a kitchen bench. Mr Baranski concedes that, at some stage, he physically threw Ms Baranski into the pantry.
It is clear to me that Mr Baranski completely lost control of himself and launched a sustained and violent attack on Ms Baranski. On the balance of probabilities, I think it more likely than not that he did kick and punch the wife, whilst she was on the floor. It is also clear that he threw the wife into the pantry, which must have required significant force.
The wife required medical treatment and hospitalisation. She sustained three broken ribs and lacerations to her head, two of which needed suturing. She also suffered black eyes and bruising to her forearms, chest, knees and lower back. The assaults would have caused Ms Baranski significant pain and must have been terrifying to her.
The photographs taken of her injuries indicate that Ms Baranski would have had obviously visible bruising, particularly on her face, for a significant period of time following the assault. These injuries must have been obvious to the twins and [Z], who must have also been aware that it was the husband who had inflicted the injuries concerned on the wife.
The assault occurred in the early evening, prior to [Z] and the twins going to bed. At the time of the assault, the children were playing in a back room around ten metres away from the kitchen. The assault must have created a considerable level of noise. Ms Baranski almost certainly screamed. In such circumstances, it seems either hopelessly naïve or more likely disingenuous, on Mr Baranski’s part, to assert that [X] and [Y] were unaware of the assault, whilst it was occurring. Certainly all three children witnessed its direct and horrifying aftermath.

No matter how secure are the premises at which Mr Baranski proposes to spend time with the children and no matter how rigorous the supervision, Ms Baranski will remain fearful at the prospect of the children coming into contact with their father. In my view, the desirability of Ms Baranski to be given an opportunity to regain her emotional resilience is another factor which militates in favour of there being no orders made, at this stage, for the children to see their father.
I accept that Mr Baranski’s violent conduct, towards the children’s mother, represents a failure, on his part, to have proper regard for the need to protect the children emotionally. His behaviour is likely to have made the children frightened and precipitated other sequellae of emotional disturbance in them.
Most importantly, he represents a poor role model for the children’s own conduct in future, both as children and adults. In terms of assessing what benefits are likely to derive from having some form of interaction with their father, I must have regard to the extent to which Mr Baranski is able to recognise the deleterious consequences of his behaviour and so may be able to modify his conduct in the future.
In 2000 the English Court of Appeal, via the Official Solicitor, instructed two consultant psychiatrists, Doctors Sturge and Glaser to prepare a joint report regarding the implications of family violence, which arose from four appeals before the Court of Appeal. This report was entitled “Contact and Domestic Violence – The Experts Court Report”.[54] This report was cited by the Court with approval in the four appeals concerned.[55]
[54] Contact and Domestic Violence – The Experts Court Report [2000] Fam Law 615
[55] See Re L (Contact: Domestic Violence) [2000] 2 FLR 334 per Dame Butler-Sloss
Doctors Sturge and Glaser wrote in their report for the English Court of Appeal:
“Domestic violence involves a very serious and significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally (and in some cases physically – which meets any definition of child abuse).
Without the following we would see the balance of advantage and disadvantage as tipping against contact:
(a) some (preferably full) acknowledgment of the violence;
(b)some acceptance (preferably full if appropriate, ie the sole instigator of violence) of responsibility for that violence;
(c)full acceptance of the inappropriateness of the violence particularly in respect of the domestic and parenting context and of the likely ill-effects on the child;
(d)a genuine interest in the child’s welfare and full commitment to the child, ie a wish for contact in which he is not making the conditions;
(e)a wish to make reparation to the child and work towards the child recognising the inappropriateness of the violence and the attitude to and treatment of the mother and helping the child to develop appropriate values and attitudes;
(f)an expression of regret and the showing of some understanding of the impact of their behaviour on their ex-partner in the past and currently;
(g)indications that the parent seeking contact can reliably sustain contact in all senses.”[56]
[56] Ibid at page 339
Although Mr Baranski has expressed some remorse for his actions, I remain concerned that he does not have a fully developed level of insight into the consequences of his behaviour. In particular, I am concerned that he does not have a full understanding of the impact of his behaviour on either Ms Baranski or the children, particularly the potentially deleterious consequences of his behaviour on [X] and [Y].
The impression I derived from Mr Baranski’s evidence is that he thought [X] and [Y] were peripheral in some way, to his violent behaviour towards their mother. I do not accept that this is so. The children were part of a household in which violence played an integral role. They were exposed to their father suborning their mother through extreme violence. They observed significant physical injuries, on their mother’s person, inflicted by their father, on more than one occasion.
This must have implications for how they are to develop, as both children and adults, in future. I regret, at this juncture, I find little evidence which indicates Mr Baranski appreciates this essential link, between his behaviour and how [X] and [Y] are likely to develop in future. As such, at this stage, like Mr B, I question the benefits the children are likely to derive from renewing their relationship with the father.
I acknowledge that Mr Baranski has undertaken anger management courses in the past. However, as Mr B points out, these courses were singularly unsuccessful in assisting Mr Baranski to modify his conduct in March of 2009. I agree with Mr B’ assessment that without a personal level of acknowledgement and insight, a tokenistic or rote attendance at such courses or therapy is “worse than useless”.
I am not persuaded that Mr Baranski has made a committed and serious attempt to modify his violent behaviour towards the mother. I do not believe he fully appreciates the consequences of his behaviour for [X] and [Y]. Up to this stage his attitude towards anger modification and alcohol abatement has been haphazard and desultory. He did not present insightfully in court.
The final and most serious assault, committed by the husband against the wife, occurred in the period after the parties had finally separated. It occurred after the husband had contacted the wife with a view to exploring the possibility of there being some form of reconciliation between them, an overture the wife did not automatically rebuff. This event has had disastrous consequences for them both. It follows a pattern of the parties separating and then reconciling after serious episodes of violence between them.
Although I think it unlikely that the parties will again explore the possibility of resuming their relationship together, I cannot completely reject the possibility of it occurring out of hand. For reasons provided earlier, I consider that the parties had something of a co-dependent relationship, prior to their final separation. Due to her impaired level of self esteem, there is a risk that the mother may resume some form of close relationship with Mr Baranski.
If this happened, I consider that she would be at grave risk of suffering some further episode of physical violence at the husband’s agency. This would be potentially catastrophic for the twins and their on-going emotional welfare and stability. This is a further, although perhaps subsidiary reason, for the court to adopt a cautious approach in respect of making orders for the father to spend time with the children.
I consider it appropriate that the wife have an extended period of time, during which she may recover her emotional resilience and self esteem, without any concern that the husband will become a factor in her life again. Mr B favoured such an outcome.

The additional consideration

a) The children’s views

[X] and [Y] are not yet four years of age. Accordingly, they are too young for their views to be canvassed. This is not a relevant consideration in the case.

b) The nature of the children’s relationship with each of their parents and significant others

As a result of what occurred in May of 2008, the children have been living solely with their mother. At that time, each of the children was aged around eighteen months. Since May of 2008, the children have spent brief periods of time with their father and have not seen him at all since March of 2009.
Accordingly, it is probable that the children have little recollection of their father and to all intents and purposes, their relationship with him is currently defunct. Like Mr B, I am of the view that it will be extremely difficult, given the parties’ current circumstances, for the relationship to be revivified.
Accordingly, at the present time, the children’s most significant relationship, by far, is with their mother. In my view, this relationship needs to be sustained and supported by whatever order the court makes. I accept that Ms Baranski is emotionally frail and vulnerable. This state of affairs has come about largely as a result of the husband’s violent conduct towards her, over several years.
I also accept that the wife is anxious at the prospect of the children coming into contact with Mr Baranski, as she fears he may either abduct or harm them. Objectively, I assess the possibility of either outcome occurring as being highly unlikely. Certainly, Mr B was originally of this view as, in the first family report, he opined that the husband posed a greater physical threat to the wife than to the children.
However, in my view, this level of apprehension is very real to

Ms Baranski herself and, as such, must have implications for the wellbeing of [X] and [Y], given that Ms Baranski is their primary source of psychological sustenance.
I regard Ms Baranski as a vulnerable parent, as a result of the violence inflicted upon her. If she is a worried and insecure parent, the children are likely to pick up on these emotions. In my estimations, the best interest of [X] and [Y] dictate that their primary carer should feel as secure and safe as possible.
Mrs Baranski also has the potential to be a very important figure in the children’s lives. [X] and [Y] know their “nanny” and enjoy the time they have spent in her care to date. Necessarily, this time has been brief, particularly because of the sensitivities of Ms Baranski. It will take some time for the children’s relationship with their paternal grandmother to be consolidated. In addition, this process of consolidation must be gradual and incremental.
However, in my view, it is important that this process of consolidation be pursued for the following reasons. Firstly, Mrs Baranski is likely to be a positive and consistent influence in the children’s lives. She is a good person. She loves the children. Mr B went as far as to say that the children’s relationship with their paternal grandmother was the only consistent and reliable relationship they had ever had. This may be an exaggeration, but in my view, the statement emphasises the importance of the children developing a strong relationship with their paternal grandmother.
Secondly, Ms Baranski has the potential to be a conduit to provide the children with some knowledge of their father and so a sense of connection to the paternal side of their family. In time, she will introduce the children to their paternal aunt and perhaps other members of their paternal family. This is likely to be important to the children developing a sense of personal identity as to where they fit in their wider family.
In the future, Mrs Baranski is the person best placed to provide information to the children about their father. When the time is right, she is likely to play a central role in the reintroduction of [X] and [Y] to their father. As such, it is important that a strong base of relationship be prepared, between the children and their paternal grandmother, so this can happen as easily and naturally as possible and with a minimum level of stress to Ms Baranski. If the children know and trust their grandmother, this process will be rendered less problematic.
Up until this stage, Mrs Baranski has been neither unreasonable nor unduly demanding in her requests to spend time with [X] and [Y]. She has been sensitive to both the needs of the children and their mother. She has never sought to prevent Ms Baranski from moving with the children to Victoria. In the medium term, her proposals to spend time with the children, in Victoria, in the locale of the mother’s home, where she will rent a holiday cabin, are well considered and appropriate.
In my view, it is appropriate and in the best interests of [X] and [Y] that the court makes orders that will facilitate the growing and normalisation of the relationship between the children and their paternal grandmother. This process of normalisation must accommodate the sensitivities of Ms Baranski and allow her to withdraw gradually from being present during the periods of time the children are with their paternal grandmother and also allow the time to be incrementally increased until overnight contact and then block holiday contact can occur.
In my view, the orders proposed by counsel for the independent children’s lawyer are appropriate ones. At this juncture, I regard it as premature to make orders dealing with the children spending time with their paternal grandmother in Adelaide. The twins are not yet attending school. As such, it is likely to be some time before they are able to travel interstate unaccompanied. In addition, the concept of the children leaving Victoria without her, even at a time well in the future, is likely to be something the wife will not be able to countenance.
The paternal grandmother is willing to abide by an injunction which would restrain her from disclosing the mother’s address and contact details to either Mr Baranski or any third party associated with him. In addition she is willing to agree not to permit the children to come into either indirect or direct contact with the father.
I accept that Mrs Baranski understands the significance of these injunctions and will abide them. She is an intelligent person and is well aware of the rationale for the injunctions. More importantly she realises that if there is any suggestion in future that she has breached these orders, it will most likely mean that her own relationship with [X] and [Y] will be severely curtailed if not terminated.
A more difficult aspect of the case is the injunction sought by the independent children’s lawyer, which would restrain the paternal grandmother from discussing the children’s father directly with either [X] or [Y], unless the children initiate such a conversation or showing them any photographs of the father.
In my view this is a somewhat artificial order, particularly when set beside the order, proposed by the independent children’s lawyer, which is not opposed by Ms Baranski, which would authorise the father to send a gift to the children on the occasion of Christmas and their birthday. The father has not become a “non person”. He still exists. The source of the gifts at Christmas and on the children’s birthdays will have to be explained to [X] and [Y]. The children know they have a father. It would be both deceitful and potentially damaging to suggest otherwise to them.
I have sufficient confidence in Mrs Baranski that she will deal with this issue sensitively and appropriately. In my estimation, she is not the sort of person who is likely to become a canvasser for Mr Baranski’s cause with the children or try to engineer a situation whereby the children are likely to demand to see their father before it is appropriate for them to do so and prior to the mother being ready for it. If the issue of Mr Baranski arises, between her and the twins, I have confidence that Mrs Baranski will be able to deal with it. I do not think any great purpose will be served by the court attempting to curtail

Mrs Baranski’s discretion in regards to this issue.
It also seems to me to artificial that Mr Baranski be prevented from sending a card to accompany any gift he sends to the children, provided such card may be vetted, for appropriateness, by either Ms Baranski or Mrs Baranski. Again, the children will have to be told from whom the gifts come. The most obvious way this explanation can be managed is if the gifts are accompanied by a card.
The advantages and disadvantages of Mr Baranski having no direct contact with [X] and [Y] are, in my view, closely balanced for the reasons already provided. The twins are very young. Much may change in both their lives and indeed in Mr Baranski’s life. It is a significant thing to potentially permanently deprive both a parent and child of the opportunity to repair a relationship at some stage in the future or to lessen the opportunity for the child concerned to be able to get in touch with a parent and/or form a meaningful relationship at some later stage, either in adolescence, early adulthood or some other stage.[57]
[57] See Re L (Contact: Domestic Violence) (supra) at 341
It is likely to be in the children’s best interests for them at some stage, perhaps in the indeterminate future, to make their own judgements about their father and for them to decide whether they want to know him. In my view the potential “whiting out” of Mr Baranski, from [X] and [Y]’s lives, by restraining any mention or reference to him, renders both these possibilities less likely.

c) The willingness and the ability of the parents to encourage a close and continuing relationship between the children and the other parent

For obvious reasons, Ms Baranski is not in a position to facilitate and encourage any type of relationship between the children and

Mr Baranski at present. This is because Mr Baranski’s conduct, following the assault of May 2008, has disqualified him from being intensely involved in the children’s lives. In addition, until recently, Mr Baranski has been in prison and a family violence order prevents the parties communicating with one another.
This criteria is to be considered in the light of section 60CC(4) and (4A) of the Family Law Act. The court is required to consider the extent to each of the parents of the child concerned as fulfilled or failed to fulfil the responsibilities of being a parent, including participating in decision making about any relevant child and spending time and communicating with that child. I accept that Mr Baranski would dearly like to be able to spend time with [X] and [Y]. He is not disinterested, in any way whatsoever in the lives and circumstances of either child.
However, during the course of the hearing before me, he conceded that Ms Baranski should have sole parental responsibility for [X] and [Y]. In so doing, he recognised the reality of both his and the children’s situation, which means that it is not appropriate he be involved in decision making regarding the children, at this stage.
Clearly Ms Baranski is antipathetic towards Mr Baranski. This is understandable, given the injuries she has suffered at his hand. As such, she is hardly likely to be encouraging of the father being involved in the children’s lives. In the particularly circumstances of this case, I do not think that this can be said to be poor parenting on her behalf, rather she is motivated by a desire to protect the children.

d) The likely affect of any change in the children’s circumstances, including the likely effect on the children of being separated from one of their parents.

[X] and [Y] have not seen their father for over 12 months. Prior to March of 2009, they had spent time with him in brief and somewhat artificial circumstances. Accordingly, the children’s separation from their father cannot be regarded as a change of circumstances for them.
In the longer term, if the children’s relationship with their father continues to be severed, it may have long term social and psychological implications for [X] and [Y].
In their report, referred to above, Doctors Sturge and Glazer looked at the potential detriment to a child of having no direct contact with the non-resident parent, in the context of past domestic violence. They summarised the relevant issues as follows:
“(i) deprivation of a relationship with the biological father;
(ii)loss of the opportunity to know that parent first-hand; loss of information and knowledge that will go towards the child’s identity formation. While the reality testing may give the child a negative view of the parent, that may be less worrying than the unseen, imagined villain. Where it is a positive view and the child is able to see good in the parent as well as to understand that he did things that were very wrong will help the positive image of himself or herself. While directly this may be more important for sons, daughters can be helped in their attitude to what makes a suitable partner to father her children. Children can have genetic fears – that he or she will be just like the father, sometimes fuelled by their mother’s attitude, and the reality of who their father is can be helpful; if the non-resident parent has been vilified beyond the facts, then the child will have the opportunity of assessing this for themselves;
(iii)loss of the opportunity to know grandparents and other relatives on the non-resident parent’s side of the family. This can add to the loss of genealogical information (although the study by Humphrey et al indicates that clear genealogical knowledge in an adolescent is not a necessary prerequisite to healthy identity formation and good self-esteem). Occasionally successful contact with the non-resident parent’s family can be achieved without contact to the parent himself or herself and without undermining the child by doing so, ie where assessment indicates that such contact can be safely achieved and is in the child’s interests;
(iv)loss of that parent if the child has had a positive and meaningful relationship with him and even where it has been negative if the relationship gave the child some sense of being cared about. Continuity can also be important;
(v)if the parent is able to provide positive and supportive contact and new and different experiences, then loss of that opportunity;
(vi)absence of the opportunity for any repair to the relationships or to the harm done;
(vii)lessening of the likelihood of the child being able to get in touch and/or form a meaningful relationship at a later stage.”

In my view, these various factors must be examined in the context of [X] and [Y]’s current circumstances. They are not yet four years of age. In my estimation, their mother is psychologically vulnerable to any suggestion that the children spend time with their father. Her level of anxiety is likely to reduce with time, particularly as the twins themselves get older.
In addition, there are significant logistical issues arising as to how

Mr Baranski could spend time with the children, given where he lives and the children live and the need for rigorous professional supervision. At this stage, no concrete solutions have been provided to these difficulties.
Mrs Baranski will provide information to [X] and [Y] about both their father and wider paternal family. For reasons already provided, I accept that she will be able to do this in both a sensitive and appropriate manner. She will be a familial link between the children and their father.
It is clearly the case that Mr Baranski has been a negative factor in the children’s lives because of his prolonged and intense violent behaviour towards their mother. However, given Mr B’s observation of

Mr Baranski with the children, it is clear that, in the past, Mr Baranski has been able to care for the children in a positive and loving way. Essentially, not every aspect of Mr Baranski’s relationship with the children is negative.
Accordingly, the protective aspects of this case are not so overwhelming that it is impossible to foresee any form of restorative interaction between the children and their father, in which they can repair the damage done to their relationship in a supportive and appropriate manner.
In my view, I must be careful in balancing my present concerns about both the parties and the children – the father’s lack of insight; the mother’s psychological vulnerability – the children’s tender years; and the current logistical difficulties of any supervised contact; - with the potential detriments of the children not being to have any form of relationship whatsoever, with their father, particularly of being able to make their own judgment of him, at first hand.
In my view, the balance is likely to be struck, at this stage, by maintaining the current hiatus in the children’s direct relationship with their father, which Ms Baranski’s psychological circumstances demand, but maintaining a thread between the children and their father, via Mrs Baranski, which can be expanded upon, if and when the time is right. The success of this will largely depend upon Mr Baranski himself.

e) The practical difficulty and expense of a child spending time with a parent

I have already alluded to the issues which fall for consideration under this criterion. It is not likely to be simple matter to reintroduce the children to their father, as Mr Baranski contends. I accept Mr B’s assessment that any such process will require professional supervision and is likely to extend over months rather than weeks.
At this stage, I do not know what forms of professional supervision are available in Geelong. More importantly, I do not know how [X] and [Y] will react to such a process. As Mr B opined, it may be cruel, both to the children and to Mr Baranski, to embark upon a process which is ultimately unsuccessful.

f) The capacity of the parties to provide for the children’s emotional and educational needs

i) The attitude that each parent has demonstrated to the responsibilities of being a parent

These considerations are so closely related that it is convenient to consider them together.
I am satisfied that the paternal grandmother is able to provide for [X] and [Y]’s emotional and educational needs. Like Mr B, I consider that she is likely to have provided the children with their most healthy and normal adult relationship, as both parents have demonstrated a flawed level of insight, from time to time, into the responsibilities of being a parent.
I cannot state strongly enough that Mr Baranski’s violent behaviour towards Ms Baranski represents a fundamental failure in his parenting. Before the court is able to contemplate him having any significant role in the children’s lives, it is necessary for him to demonstrate comprehensively that he understands this to be so and that he has taken concrete steps to repair his behaviour.
At this stage, I am not satisfied that Mr Baranski has demonstrated such a level of insight. This is the major factor in favour of a maintenance of the current status quo in respect of the care of the children and the deferral of any consideration, by the court, of what, if any, form of relationship Mr Baranski should have with the children.
Ms Baranski remained in a violent relationship with Mr Baranski for several years. She invited Mr Baranski to her home on the occasion of the last and most serious assault against her. In so doing, she exposed the children to the potential to suffer considerable harm. In making this criticism, I appreciate that she and Mr Baranski were in a largely co-dependent relationship, which was not without positive aspects from time to time.
At present, [X] and [Y] are emotionally dependent upon their mother. She has ensured that they receive appropriate counselling. As such, at the present time, I have no reason to think anything other than that

Ms Baranski is able to supply [X] and [Y]’s current emotional and intellectual needs.

g) The children’s maturity, sex, lifestyle and background

h) Aboriginality

In the context of this case, neither of these criteria appear to be specifically relevant.

j) Family violence

k) Any family violence order

Family violence is the most significant consideration in this case. I have alluded to this consideration throughout these lengthy reasons for judgment. As such, I do not feel it necessary to make any further comments under this specific criterion.
The wife has successfully sought family violence orders, against the husband, to secure both her own and the children’s protection. Notwithstanding this state of affairs, she nevertheless allowed the husband to attend at her home in March of 2009, when she was seriously assaulted.
The husband was aware that he was prohibited from interacting with the wife, due to the existence of this order. He ignored the order, quite possibly in the belief that he would be able to persuade the wife to resume her relationship with him.
Following the serious assault, committed by him, he again breached the order by sending the wife a number of text messages, in which he sought to spend time with the children. This behaviour displays both naivety and a distain for the family violence order.
As I have already indicated, the parties’ co-dependent and toxic relationship with one another represents a potential threat to [X] and [Y]’s wellbeing. Although I consider it unlikely that the parties will resume their relationship together, it is a possibility which cannot be completely discounted.
In these circumstances, both parties disregard of family violence orders is a significant consideration. At this stage, every effort should be made to prevent the parties coming into direct contact with one another, as the potential resumption of their relationship poses a significant threat to [X] and [Y].

l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings

For obvious reasons, finality is preferable in children’s cases. Litigation is expensive and draining emotionally for those involved in it. However, some cases are, by their nature, so fraught with difficulty that it is unreasonable to consider that an order can be made, which will preclude the possibility of any future litigation.
Indeed, some cases, by their very nature, are likely to remain unfinished and unresolved. This is one such case. [X] and [Y]’s relationship with their father is not totally devoid of positive aspects. Given their tender years, it is inappropriate for the court to countenance the indefinite severance of any form of direct relationship between them and their father. Essentially, it cannot be said that the relationship is currently incapable of being repaired or made safe in some way.
Necessarily, given that I have determined it is not currently in [X] and [Y]’s best interests for them to spend time with their father, such an outcome will represent unfinished business, both for the husband and the children. Mr Baranski loves the children. The children know of the existence of their father. As such, at this stage, it is not possible to construct orders, which will not preclude further litigation between the parties.

Conclusions

This is a difficult and perplexing case, which does not provide an obvious outcome. Regardless of the difficulty, at the end of the day, it is the court’s responsibility to focus on how it believes the best outcome may be achieved for [X] and [Y], after weighing and considering the various considerations relevant. Necessarily this is a process of synthesis.
In many senses, in this case, the principle legislative considerations, relating to [X] and [Y]’s best interests, are counter-indicative. When Mr B observed the children interacting with their father, he saw happy children and a parent who responded to them in a loving and appropriate fashion.
As such, there is the potential for [X] and [Y] to have a meaningful relationship with their father and to benefit from it. The building block of the family unit is the bond between a child and a biological parent, which grounds a sense of identity in that child based on love and the sharing of a genetic inheritance and common background.
On the other hand, the husband’s consistent and serious violence towards the children’s mother represented a fundamental failure of

Mr Baranski’s parenting. It posed, and continues to pose, a serious threat to the wellbeing of the children, both now and into the future.
These factors must be balanced against each other. One is not subservient to the other. At this stage, I have come to the conclusion that the best interests of [X] and [Y] will be served if there is no order made for the children to interact directly with Mr Baranski. I reach this conclusion for the following reasons primarily, after having considered all of the relevant factors set out in section 60CC and bearing in mind the principles and objects of the Family Law Act.
Firstly, the wife is the children’s undisputed primary carer. She is also the victim of the husband’s serious violence. At this point, she is not sufficiently emotionally resilient to be able to support the children spending any time whatsoever with the father. She is likely to communicate her anxiety, about the father interacting with the children, to [X] and [Y], which is likely to be emotionally detrimental to them.
Secondly, the husband has not demonstrated any measurable level of insight into the consequences of his behaviour, either for the children or the wife. As such, he remains a potentially flawed role model for the children. In my view, an essential pre-condition of the husband having any direct engagement with the children is that he demonstrate such a level of insight, both to the court and, if possible, to the wife.
Given the husband’s flawed response to previous counselling and anger management interventions, this is likely to be difficult for him to do. As Mr B has deposed, the success rate of such programs is not high and the only objectively measurable indication of their success is that a previous perpetrator of violence desists from such violent conduct in the future. In this regard, to date, Mr Baranski has been singularly unsuccessful.
Since Mr Baranski’s relationship with the children was interrupted, in March of 2009, as a result of his own violent behaviour, he has not taken any concrete steps to address his alcohol and anger management problems. Some evidence of concerted action, on his part, in respect of these issues, would appear to be a minimum requirement before any consideration is given to him having some form of direct interaction with the children.
In addition, I accept Mr B’s evidence that the wife is likely to need a significant period of time before she can be forced to contemplate the children re-engaging with their father. At this stage, I do not consider that the wife has had sufficient time to regroup emotionally and

re-establish a new life for herself, following the very significant episodes of violence perpetrated against her by the husband. In part, she has not had the required time to achieve these objectives because of the husband’s objection to her relocation proposal, to which he has only fairly belatedly consented.
Thirdly, at this juncture, all manner of logistical obstacles exist, which prevent any obvious proposal being put as to how the father and children could interact together in Victoria. The setting for such an interaction would have to be a rigorously and professionally supervised one. It is uncertain how the children would react to such a process. It may be cruel, to all concerned, to embark upon a flawed process with a high potential for failure.
As to all intents and purposes, the children’s relationship with their father, has been terminated and any process of the children interacting with Mr Baranski would take the form of a re-introduction. It seems to me there is no need for haste in the matter and indeed, any such haste is likely to have potentially adverse implications for the children.
In addition, the ball must remain in Mr Baranski’s court and for him to demonstrate that the children are likely to benefit from having some form of relationship with him. At this stage, in my estimation, it is not clear that the children would benefit, at all, from pursuing some form of direct relationship with their father.
As I have already indicated, Mrs Baranski, the children’s paternal grandmother, is likely to be a positive figure in the lives of [X] and [Y]. It is essential to the children’s wellbeing that this important relationship be maintained. However, this must be done with proper regard to the sensitivity of the wife, who is likely to be mistrustful and fearful of anyone significantly involved with the husband.
Mrs Baranski is important for a number of reasons. Not only will she be a positive influence in [X] and [Y]’s lives, but also she will be able to provide information about their father to them. At some indeterminate stage in the future, she is the obvious link between the children and their father and is likely to pay a key role in any re-introduction between them, quite possibly in conjunction with some form of professional supervision.
Up to this stage, Mrs Baranski has shown herself to be a responsible and sensitive person. I have confidence that she will be able to maintain these qualities in future and retain and build on the trust she has developed with the wife.
In all the circumstances of this case, I am also satisfied that it is appropriate that I make the injunction, for the wife’s own personal protection, which is sought on her behalf pursuant to the provisions of section 68B of the Family Law Act.
For the reasons provided, at significant length in this judgement, it is incumbent upon the court, as part of the outcome of this case, to restrain the husband from approaching, contacting or attempting to communicate with [X] and [Y] in any way whatsoever apart from sending them a gift and accompanying note or card on the occasion of Christmas and their birthday.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding five hundred and fifty-eight (558) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 1 September 2010

and Clauson v Clauson (1995) FLC 92-595; Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143