BARROW & BARROW-NEWMAN

[2016] FamCA 962

FAMILY COURT OF AUSTRALIA

BARROW & BARROW-NEWMAN [2016] FamCA 962

FAMILY LAW – CHILDREN – Child’s views – Question of whether there is a relationship of value between the father and child – Where the child has not seen the father for 16 months – Where the child expresses desire to spend time with the father – Concluded that a meaningful relationship exists

FAMILY LAW – CHILDREN – Physical abuse – Where both parties previously administered corporal punishment to children not the subject to these proceedings – Where the father used implements to inflict such punishment – Where the corporal punishment resulted in injury that was more than merely transient – Where the mother exaggerates and the father minimises the seriousness of the abuse – Concluded the child is at similar risk of harm from the father’s physical abuse – Question of how the risk could be satisfactorily contained – Ordered the child spend time with the father for one day twice per month – Parties restrained from causing or permitting the infliction of corporal punishment upon the child

FAMILY LAW – PROPERTY – Where the solicitors for the parties jointly advise the court the property dispute is settled – Where no proposed consent orders are placed before the court – Where the settlement includes a superannuation splitting order – Where the parties admit they did not comply with the requirements of s 90MZD of the Family Law Act 1975 (Cth) or r 14.06 of the Family Law Rules 2004 (Cth) – Where the parties do not subsequently comply with those statutory and regulatory requirements – Ordered that all applications for property settlement orders are dismissed for want of prosecution

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65D, 65DA, 65DAA, 65DAC, 65DAE, 75, 79, 90MZD

Family Law Rules 2004 (Cth), r 14.06

McCall v Clark (2009) 41 Fam LR 483
U v U (2002) 211 CLR 238

APPLICANT: Mr Barrow

RESPONDENT: Ms Barrow-Newman

INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi

FILE NUMBER: NCC 1466 of 2015

DATE DELIVERED: 11 November 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 31 October & 1, 2 & 3 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carty

SOLICITOR FOR THE APPLICANT: Denise Clark Solicitor & Advocate

COUNSEL FOR THE RESPONDENT: Mr Bithrey

SOLICITOR FOR THE RESPONDENT: Peter Hamilton & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Flintoff

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi

Orders

1. All former orders relating to the child B, born … 2010, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the child.

3. The child shall live with the mother.

4. Subject to the father’s compliance with Orders 5, 6 and 7 hereof, the parties shall take all reasonable steps to ensure the child spends time with the father between 9.00 am and 5.00 pm on the first and third Saturdays of each month.

5. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

6. The father is restrained from causing or permitting the child to be left unsupervised by an adult until he attains the age of 16 years.

7. Other than with the mother’s written consent, the father is restrained from causing or permitting the child to be or remain in the presence of either:

   (a)C, born … 2002; or

   (b)D, born … 2003.

8. For the purpose of implementing Order 4 hereof, the mother shall cause the delivery and the father shall cause the collection of the child at the commencement of visits at the front of the Coles Supermarket, E Town, NSW and the father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of visits at the same place.

9. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with the father on the following occasions, for which purpose the father shall telephone the child on the telephone number provided to him by the mother and the mother shall ensure that the child is able to receive the father’s calls on that number at those times:

   (a)Each Wednesday at 6.00 pm;

   (b)On the child’s birthday at 6.00 pm; and

   (c)On Christmas Day at 9.00 am.

10. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

11. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

12. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

13. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number and email address.

14. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

15. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

16. Costs are reserved for 28 days.

17. Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1466 of 2015

Mr Barrow

Applicant

And

Ms Barrow-Newman

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the dispute between the applicant father and respondent mother over parenting orders for their son, who is now six years of age. It is common ground the child should live with the mother, but the parties disputed the allocation of parental responsibility for him and whether the child should have any future interaction with the father. The mother advocated for elimination of the father from the child’s life, whereas the father contended the child should spend substantial amounts of unsupervised time in his care.

2. The parties were also in dispute about the adjustment of their property interests, but such applications should be dismissed, as the parties conceded should occur if they failed to agree upon proposed consent orders within the Court’s power before the end of the trial.

Background

1. The parties began cohabitation in 2007, married in 2009, ceased cohabitation in December 2013, but continued their relationship until September 2014. The child was born in 2010.

2. After the parties’ relationship finally ended, they informally arranged for the child to spend time with the father each alternate weekend and for several hours each Wednesday evening.[1] That arrangement applied for about six months until the parties’ cooperation began to deteriorate in about March 2015.[2] The parties attended mediation,[3] but their disagreement was not settled. The dispute reached a head in June 2015 when the mother refused to allow the child to spend any more time with the father unless they resolved the impasse on the terms she offered.[4] The father refused to do so and he therefore commenced these proceedings on 12 June 2015.[5]

   [1] Family Report, paras 8, 22; Mother’s affidavit, paras 46, 123; Father’s affidavit, para 29

   [2] Family Report, para 9

   [3] Father’s affidavit, para 30

   [4] Family Report, para 17; Father’s affidavit, para 32, Annex B

   [5] Family Report, para 18; Father’s affidavit, para 33

3. The Federal Circuit Court made interim orders between the parties in November 2015 providing only for the child to live with the mother. The parties’ interim parenting applications were otherwise listed for hearing in January 2016. On that occasion, rather than actually hear and determine the interim dispute, the Federal Circuit Court transferred the proceedings to this Court, noting that:

   …the matter will take not less than 5 days of hearing.

4. In fact, the trial in this Court was comfortably confined to three days, albeit spread across four days. Once transferred to this Court, the parties’ competing interim applications were entertained and dismissed in April 2016 and the proceedings were heard and determined in November 2016.

5. There are other children who are relevant to these proceedings. The father has three children from a former relationship (C, D, and F), who are now aged 14, 13, and 11 years respectively. The mother has one child from a former relationship (G) who is now aged 14 years. No orders are sought in respect of any of those children. C and D were relinquished by the father into the care of their biological mother in February 2014 (who is now deceased) and they were later made the subject of child care orders by the Children’s Court of NSW in December 2014 and February 2015.[6] F lives with the father, but the mother does not wish to see her, and G lives with the mother, but the father does not wish to see her.

   [6] Exhibit M1; Family Report, paras 121, 122, 127

Property settlement

1. When the father commenced these proceedings, he sought both parenting and property settlement orders. The mother also sought property settlement orders when she initially responded to the father’s application. However, when each party later filed amended Applications and Responses, they omitted any applications for property settlement orders. When the progress of the proceedings was reviewed in this Court in April 2016, there was no live dispute between the parties over property settlement orders under Part VIII of the Family Law Act 1975 (Cth) (“the Act”).[7]

   [7] Notation B made on 29 April 2016

2. Subsequently, in July 2016, the mother re-instated an application for property settlement orders in the Amended Response she then filed. It was the only pending application for property settlement orders when procedural orders were made on 27 July 2016 fixing the proceedings for trial. The parties were consequently ordered to file any further amended application they desired, to file and serve updated financial statements, and to procure single expert valuation evidence in relation to some assets.[8]

   [8] Orders 3-5, 11-15 made on 27 July 2016

3. The father filed an Amended Application on 30 September 2016, but still sought no property settlement orders. The mother did not amend her Further Amended Response, filed on 14 July 2016, so she maintained her existent property settlement application. In breach of the procedural orders, both parties failed to file any reports by the single expert witnesses valuing the disputed assets, both parties failed to file any updated financial statement, and both parties failed to adduce any evidence in their trial affidavits germane to any alteration of their property interests. The mother even deposed the proceedings were only about parenting orders.[9]

   [9] Mother’s affidavit, para 3

4. In September 2016, the parties’ solicitors jointly wrote to the Court informing they had settled their dispute over property settlement orders and were in the process of finalising terms of settlement. No such terms of settlement were ever placed before the Court. At the commencement of the trial, the Court was informed the parties had agreed upon property settlement orders, but the agreement incorporated superannuation splitting orders, which orders the parties conceded could not be made because they had not provided the superannuation fund trustee with procedural fairness, as required by s 90MZD of the Act and r 14.06 of the Family Law Rules 2004 (Cth) (“the Rules”). The parties were invited to tender the terms of settlement and seek orders in accordance therewith at some later point during the trial, provided they were then in a position to prove compliance with the Act and Rules, but otherwise it was foreshadowed that any pending property settlement application would likely be dismissed for want of prosecution. The parties did not demur.

5. The trial then ensued over four days, but property settlement orders were never again mentioned. At no point were proposed consent orders tendered to the Court, neither party was cross-examined about issues relevant to ss 79(4) and 75(2) of the Act, and no submissions were made about property settlement orders. It was the parties’ own fault they were unready to either have property settlement orders made consensually or determined on a proper evidentiary basis. No proper explanation was advanced for why they were unready. Consequently, any and all outstanding applications for property settlement orders are dismissed for want of prosecution.

6. If either or both parties later want property settlement orders made then a fresh application will need to be filed in the orthodox way and it will take the priority it then deserves. The parties did not divorce until January 2016, so they are not yet impeded by the limitation period imposed by s 44(3) of the Act.

Parenting proposals

1. The father pressed for the orders set out in his Amended Initiating Application filed on 30 September 2016, as amended orally in final submissions. In effect, he admitted the child should live with the mother and she should have sole parental responsibility for him, though he contended for the child to spend time with him for four nights each alternate week, for half of school holidays, and on other special occasions. He conceded the child’s expenditure of time with him should be subject to injunctions restricting (but not forbidding) the child’s interaction with C and D, restraining the child being left alone or under inadequate supervision, and restraining the use of corporal punishment upon the child.

2. The mother abandoned the orders set out in her Further Amended Response filed on 14 July 2016 and instead sought those set out in her Case Outline document filed on 28 October 2016. She wanted sole parental responsibility for the child, for the child to live with her, and for the child to spend no time at all with the father. She also wanted the father restrained from attending at or near her home and the child’s school. She also sought injunctions restraining or restricting the child’s interaction with C, D, and F.

3. The Independent Children’s Lawyer did not begin the trial with a fixed position, but indicated she tentatively preferred the mother’s proposal over the father’s proposal, at least until the evidence was tested. Prior to her final submissions, the Independent Children’s Lawyer tendered a minute of the orders she proposed,[10] which were to the same general effect as those proposed by the mother.

   [10] Exhibit ICL13

Evidence

1. The father relied upon:

   (a)His affidavit filed on 30 September 2016; and

   (b)The affidavit of his partner, Ms H, filed on 30 September 2016.

2. The mother relied upon:

   (a)Her affidavit filed on 30 September 2016; and

   (b)The affidavit of her partner, Mr I, filed on 30 September 2016.

3. The parties and the Independent Children’s Lawyer relied upon the Family Report dated 14 April 2016, upon which the Family Consultant was cross-examined.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests

Section 60CC(2)(a)

1. There could be no debate about the value of the child’s relationship with the mother. She has been his primary carer since birth and it was agreed he should continue to live with her. The father must accept the child derives much benefit from that important relationship.

2. Rather, the litigation involved argument about the existing value of the child’s relationship with the father and whether it should be restored. Save for the child’s observation in the company of the father by the Family Consultant in April 2016, the child has not seen the father since June 2015 and not spoken to him since January 2016.[11] That hiatus in their relationship is bound to have affected it to some degree, but not too much according to the evidence. The Family Consultant found the child to be sad about not seeing the father, eager to spend time with him, excited about the prospect of seeing him, and evidently very happy to see him.[12]

   [11] Mother’s affidavit, paras 133, 143, 144

   [12] Family Report, paras 69-74; Father’s affidavit, para 37

3. The inescapable conclusion is that the child still has a meaningful relationship with the father; the essence of a meaningful relationship being that it is important and significant, as the child’s relationship with the father plainly is (see McCall v Clark (2009) 41 Fam LR 483 at 507-510). Apart from cases of abusive relationships, it is readily accepted that children benefit from the development of good relationships with both parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Part VII of the Act (see U v U (2002) 211 CLR 238 at 285-286).

1. The argument, therefore, devolved to whether or not the child should be allowed to enjoy his relationship with the father. With the support of the Family Consultant,[13] the mother contended he should not because he was exposed to potent risks of harm in the father’s care. Conversely, the father contended he posed no appreciable risk of harm to the child and their regular visits should be restored to avoid the child suffering the “likely long-term negative psychological consequences” of being deprived his meaningful relationship with him.

   [13] Family Report, para 153

2. That dispute could only be determined by analysis of the evidence relevant to ss 60CC(2)(b) and 60CC(3) of the Act, since risks of harm to the child may outweigh the benefit of his retention of a meaningful relationship with the father.

Section 60CC(2)(b)

1. Relevantly for the purposes of s 60CC(2)(b) of the Act, the mother contended the child needed protection from the physical or psychological harm he is liable to suffer by reason of his subjection or exposure by the father to family violence and abuse.

Family violence

1. Family violence was most probably a feature of the parties’ relationship, even though the father deposed there was “no domestic violence whatsoever”.[14] Aside from the father’s conduct, the mother admitted that during arguments with him she once punched a wall and did not deny she thereby perforated it, and further, that she threw two picture frames and broke them both. The father also alleged she threw a plate at him, though she did not admit that.[15]

   [14] Father’s affidavit, para 52

   [15] Family Report, para 34

2. The mother told the Family Consultant the father was “aggressive towards her but he wasn’t physically abusive”.[16] She gave evidence to the same effect, admitting in cross-examination that the father “never raised a hand to [her]” and never “threatened” her. G, who lived with the parties throughout their relationship, independently confirmed to the Family Consultant she saw no overt violence between them and said they “seemed to get along alright”.[17] The mother’s principal complaint to the Family Consultant was about the father’s manipulation, which was the flavour of her evidence.[18]

   [16] Family Report, para 51

   [17] Family Report, para 85

   [18] Mother’s affidavit, paras 107, 189

3. She alleged her manipulation by the father continued beyond their final separation. He sometimes called her a “bitch” and she was irritated by him “playing games” with her.[19] Nonetheless, that of itself was not sufficient to convince her that the father’s elimination from the child’s life was warranted. She did not determine to take that action until June 2015. Until then, she allowed the child to continue spending substantial amounts of time in the father’s unsupervised care.

   [19] Mother’s affidavit, paras 108-111

4. An incident occurred between the parties on 13 June 2015. The mother alleged the father attempted to run her down in a car,[20] which he denied.[21] The father was charged over the incident, but he successfully defended the prosecution and the charges were dismissed.[22] The mother’s counsel conceded she did not seek a positive finding in these proceedings that the father intended to run her down or intimidate her to think he would do so, which was a wise concession to make because the evidence was not reasonably capable of providing such proof, either directly or inferentially. Although it was initially alleged the father swerved or deviated his car in the direction of the mother as he drove by her, the allegation could not be sustained on the evidence. The mother conceded she did not see the car swerve towards her. She only saw it swerve away from her, consistently with the father’s version that he evaded her because she was too close. The mother conceded the father’s car was in a single line of traffic exiting the carpark at a sporting venue, moving at only walking pace, passing by the rear of her car which was parked “nose-in” and perpendicular to the passing traffic. She said little more than a metre of space separated the passing line of traffic and the rear hatch of her car, through which she loaded some gear into her car, and when she turned around she was frightened by the proximity of his car to her. The father sounded his horn at her as a warning.

   [20] Mother’s affidavit, Annex M; Family Report, para 19

   [21] Father’s affidavit, para 34; Exhibit F1

   [22] Father’s affidavit, paras 35-36; Mother’s affidavit, para 141; Family Report, para 29

5. The incident nevertheless remains an important issue between the parties because of its corrosive effect upon their parental relationship. The mother continues to harbour an honest belief the father did intend to intimidate her and that belief colours her dealings with him. She feels apprehensive about him and would prefer nothing to do with him.

6. Although the incident on 13 June 2015 coincided with the mother’s decision to sever face-to-face visits between the child and the father, it was not the catalyst. The mother’s solicitors informed the father, by letter dated 11 June 2015, of her refusal to allow the child to spend any more time with him until the parenting orders she proposed were in place.[23] The father refused to submit to the orders proposed by her and he commenced these proceedings the very next day,[24] about which the mother admitted in cross-examination she was told by him that day. Even if the incident on 13 June 2015 was an intentional act of intimidation by the father, it was probably a corollary of their over-heating disagreement about the child’s future. The mother’s decision to stop the child’s visits with the father was not a direct response to the incident, though it may have galvanised her decision. Her evidence that the incident caused her decision to terminate the child’s visits to the father,[25] was inaccurate, and the Family Consultant’s belief to that effect,[26] based on what she was told by the mother, was mistaken.

   [23] Family Report, para 17; Father’s affidavit, para 32, Annex B

   [24] Family Report, para 18; Father’s affidavit, para 33

   [25] Mother’s affidavit, paras 133, 143

   [26] Family Report, para 23

7. The mother did not regard the incident on 13 June 2015 as finally decisive anyway. She continued to allow the child to communicate with the father by telephone and she remained prepared to re-instate their face-to-face visits if the father could provide her with “a report from a treating psychologist or psychiatrist confirming that his mental health was stable and that he posed no immediate risk to [the child]”.[27] Significantly, it was the father’s psychological stability and the child’s safety in his care which she imposed as pre-conditions to the resumption of visits between the child and the father. Her worry about her sufferance of family violence at the father’s hands was not the reason she advanced for the child’s deprivation of such visits.

   [27] Mother’s affidavit, para 153; Response filed 28/7/15, interim Order 4

8. In fact, in July 2015, the mother filed her Response in which she proposed final parenting orders for the child to spend substantial and significant time in the unsupervised care of the father. She did not alter that proposal until she filed an Amended Response in January 2016, in which she instead proposed the child spend no time at all with the father, which change in position had no apparent connection with any apprehension by her about the father’s commission of family violence or the child’s exposure thereto.

9. The mother correctly submitted the evidence of past family violence between the parties rendered the presumption of equal shared parental responsibility inapplicable (s 61DA(2)(b)), but the evidence was not sufficiently probative of the child being at risk of exposure to more family violence in the father’s future care, provided the parties can be kept apart, so that portion of the evidence did not support the mother’s case for complete obliteration of the father from the child’s life.

Physical abuse

1. The risk of the child’s subjection to physical abuse by the father was a much more powerful consideration to emerge from the evidence.

2. At the outset, it is instructive to set out some facts, most of which were uncontroversial, so the allegations of physical abuse can be understood in context. Relevantly:

   (a)During the parties’ relationship, both parties smacked C, D, and F with their open hands as a form of punishment;

   (b)During their relationship, the mother smacked G with her open hand as a form of punishment;

   (c)During their relationship, even though the father denied it,[28] both parties smacked the child with their open hands as a form of punishment;

   (d)During their relationship, neither party regarded smacking the children with their open hands to be an excessive form of discipline;

   (e)Since separation, the father has not smacked the child; and

   (f)Now, both parties believe the child should not be smacked as a form of discipline.

   [28] Father’s affidavit, para 39

3. Consequently, the past administration of corporal punishment to the children was not the controversial issue. The mother alleged in these proceedings that the child is at unacceptable risk of harm by reason of his subjection by the father to physical “abuse”, not simply that he is at risk of being smacked by the father. She did not allege the father had ever physically abused the child in the past. Rather, she contends the risk of his physical abuse arises from the father’s past physical abuse of both C and D, manifest from his past punishment of them for their misbehaviour by striking them with implements, including a cricket bat, wooden spoons, broom handles, and perhaps a metal rod.

4. For present purposes, it is necessary to differentiate between physical “discipline” and physical “abuse”. Despite modern society’s changing opinion about the morality of corporal punishment of children, the law of NSW still envisages the legitimate administration of physical discipline by an adult to a child, subject to certain constraints (s 61AA Crimes Act 1900 (NSW)). It is only when the discipline transcends those constraints that it becomes abusive and ceases to be lawful correction.

5. For the following reasons, I am satisfied the father inflicted punishment upon C and D from time to time by his use of implements, resulting in their injury which was more than merely transient. When such incidents occurred, in all probability, the father’s conduct amounted to assaults and was indefensible on the grounds of lawful correction. It was therefore “abuse” within the meaning of the Act (s 4(1)), regardless of whether the father believed at the time that such punishment was excusable as legitimate discipline. Measured against an objective standard it was not. The father now expressly accepts that to be so, as his counsel made concessions to that effect in final submissions.

6. The ultimate factual dispute between the parties was therefore narrowed to the seriousness of the father’s past abuse of C and D, evident from its antiquity, frequency and severity, which considerations would naturally bear upon evaluation of the virulence of the risk of harm now faced by the child in the father’s care.

7. The father’s abuse of C and D dates back many years and continued up until the father relinquished their care in February 2014. The boys’ mother complained to the child welfare authority in 2004 and 2006 that the father’s discipline of them and their older half-sibling (J) was “inappropriate and excessive”, about which the father was warned.[29] There was even some evidence of the father’s more violent treatment of them at or about that time, but little weight can be reposed in those particular allegations because other evidence tended to suggest such police reports may have been fabricated or embellished by their grandmother, or by the children under her influence, because she disliked the father and was motivated to make false allegations against him.[30] The father’s past breach of an old apprehended violence order perhaps related to the grandmother rather than J.[31] In any event, even though found proven, the breach was not deemed serious enough to warrant any penal sanction.[32]

   [29] Exhibits ICL1; ICL5; ICL6

   [30] Family Report, para 100

   [31] Father’s affidavit, para 49

   [32] Exhibit M3

8. The father admitted his assaults of C and D with a cricket bat perhaps began as early as 2009. At around that time the parties sought out counselling from K Group (a child and adolescent counselling service), which the mother said in cross-examination was principally for them to learn strategies to deal with C’s incorrigible behaviour. The father admitted during a “family therapy session” with K Group in February 2010 that he hit both boys with a broken broom handle, which caused them to suffer bruises and welts.[33] He conceded that form of discipline was employed “once every 6 months or so” and the mother reported she chose not to intervene “as she wanted to see what the boys would do”.[34]

   [33] Family Report, para 107; Exhibit F3 (page 17)

   [34] Family Report, para 107; Exhibit F3 (pages 17-18)

9. In February 2015, the father was interviewed by officers of the child welfare authority following C’s allegations of previous harsh treatment by the father, which included him and D being “regularly smacked” with a metal pipe on bare skin, causing them discomfort and leaving bruises. The father conceded he hit the boys with a wooden cricket bat to “stop his hand from hurting” when delivering physical punishment to them. He conceded he hit them with the bat both under and over their clothing and the beatings caused red marks on their bodies, which were visible for about a day.[35]

   [35] Exhibit M1

10. The father also told the child welfare officers he “took the boys out the back of the house” to beat them so as to “prevent the other children from witnessing” the beatings,[36] but he did not achieve his objective of secrecy because G told the Family Consultant she heard the boys beg for mercy and their screams of pain, which caused her to cry. She once saw the father break the cricket bat on them and she saw the welts on their bottoms.[37] Her powerful description of such cruel brutality to the Family Consultant was compelling and probably more reliable than the parties’ accounts of it in evidence, because the mother tended to exaggerate and the father tended to minimise.

    [36] Family Report, para 126; Exhibit M1

    [37] Family Report, paras 82, 87

11. The mother deposed she saw the father hit the boys hard on a weekly basis with his hand and implements. She deposed she saw him use the wooden spoon on them “numerous times” and on “multiple occasions” and, although she was aware he used a cricket bat on them, she only heard and did not see that.[38] The general flavour of the mother’s evidence was that the father’s physical abuse of the children was a pervasive feature of their domestic environment, but there is good reason to suspect she embellished her evidence on that issue, as the following examples tend to demonstrate:

    (a)The mother deposed how the father smacked the child,[39] but she omitted to depose that she did also. The concession that she also smacked the child (and also the father’s children) had to be extracted from her in cross-examination.

    (b)The mother was pressed in cross-examination about the frequency of the incidents that entailed the father striking the boys with implements, like the cricket bat and wooden spoons, but she could not be more specific than that such incidents occurred on more than the “handful” of occasions admitted by the father.

    (c)The mother alleged the father’s abuse of C and D was worse than was admitted to K Group in 2009 and 2010,[40] but the mother was as much a part of that counselling as the father. In cross-examination she said she was “the driving force” in organising it, which mirrored the Family Consultant’s understanding of how that help was obtained.[41] She had the opportunity to tell K Group as much as she considered was relevant. The K Group notes record she then reported she chose not to intervene in the father’s punishment of the boys merely because “she wanted to see what the boys would do”, which was a quite different explanation from that which she offered in evidence. If she was not complicit by silent support, she was at least acquiescent.

    (d)The mother alleged in evidence she was too scared to intervene in the father’s abuse of C and D and, due to its severity, she “never” or “rarely” left the child or G in the father’s care for fear they would receive the same treatment,[42] but that was untrue. The mother admitted the father cared for the children from time to time when she was away from the home during their relationship and, after they finally separated, she allowed the child to regularly spend unsupervised time with the father, routinely on alternate weekends and other occasions. That arrangement continued until June 2015, when she stopped it because the father refused to submit to the final parenting orders she proposed. The father produced text messages between the parties proving the mother’s contentment with the child sleeping overnight with him in June 2014[43] and the mother conceded in cross-examination she told her counsellor in February 2015 that she wanted the child to spend alternate weekends and holidays with the father.

    (e)The mother alleged she now lives in fear of the father,[44] which seems a bizarre and incongruent reaction to the evidence she adduced. She undoubtedly does not like the father, but there was no rational explanation offered for why she would now hide from him in fear.

    (f)The mother even alleged in cross-examination that her decision to marry the father was not voluntary, implying her will was overborne, which was nonsense and obviously a flourish for tactical effect.

    [38] Mother’s affidavit, paras 52, 58, 75, 105

    [39] Mother’s affidavit, para 67

    [40] Mother’s affidavit, para 44

    [41] Family Report, para 106

    [42] Mother’s affidavit, paras 45, 68, 69, 80, 104, 124

    [43] Exhibit F2

    [44] Mother’s affidavit, paras 113, 190, 224

12. When the father was asked about his abuse of C and D by the Family Consultant he admitted he hit them with a cricket bat, but said:[45]

    [the hits were] not hard enough to leave marks. Not very often at all. Maybe once or twice a year…if at all.

    [45] Family Report, para 42

13. It was relatively clear he was minimising the seriousness of his abuse of them, as his evidence in cross-examination and other exhibits revealed. For example:

    (a)He denied he hit the boys with any implement other than a cricket bat, but he told K Group staff in February 2010 he hit them with a broken broom handle. He denied in cross-examination having made that confession to K Group staff, but his denial is rejected. The contemporaneous counselling records of that organisation are likely to be more accurate than his recollection years later.

    (b)He falsely told the Family Consultant that his beatings did not leave any marks on the boys’ skin. He asserted in cross-examination he in fact told the Family Consultant he had caused red marks on the boys’ bodies, but that was unlikely because her contemporaneous notes of his verbatim admissions were more likely correct. The father told K Group staff in February 2010 that he caused them to suffer bruises and welts and, in February 2015, he told staff of the child welfare authority that the red marks he caused on their bodies remained visible until the following day. His denial in cross-examination of inflicting any bruises or welts on the boys is rejected as false.

    (c)He denied having previously admitted using the cricket bat to beat the boys to avoid hurting his hand, but that is exactly what he told K Group staff in February 2010.

    (d)He denied hitting the boys with the cricket bat on their bare skin, contending it was only ever used over their clothing, but he admitted to K Group staff in February 2010 he hit their bare skin. His denial of making that admission to K Group during his cross-examination was also probably false because, as already noted, the contemporaneous records of that organisation are likely to be more accurate than the father’s recollection now. In any event, if his beatings of the boys over their clothing still left marks on their skin, the beatings must have been tremendously forceful. The mother alleged she saw bruises on the boys’ bodies and she was not challenged about the accuracy of that evidence in cross-examination.[46]

    (e)He gave evidence, both in his affidavit[47] and in cross-examination, that his beatings of the boys with the cricket bat only occurred on a “handful” of occasions, but he told K Group staff in February 2010 and the Family Consultant in April 2016 that it occurred every six months or so. Allowing for his admission that the boys lived with him for nine years before he surrendered the boys into the care of their biological mother in February 2014, abuse of that form must have occurred on well over a dozen occasions.

    [46] Mother’s affidavit, para 55

    [47] Father’s affidavit, para 9

1. Accordingly, notwithstanding the admonition he received from K Group staff to abstain from it, the father’s physical abuse of C and D occurred over many years, was extremely serious because the beatings amounted to criminal assaults, and happened too frequently for it to be passed off as an aberration. The fact the boy’s behaviour presented an extraordinarily difficult parenting challenge was not an excuse for the severity of their treatment.

2. It follows that the child must be at some risk of similar abusive treatment by the father if he spends unsupervised time in his care, but the real questions were whether and how such risk could be satisfactorily contained, which questions are addressed below.

Other abuse

1. Ever since the Act was amended by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), as and from 7 June 2012, the term “abuse” has been defined to incorporate conduct which causes a child to suffer “serious psychological harm” (s 4(1)).

2. The mother and Independent Children’s Lawyer contemplated other aspects of the father’s past conduct capably proved the child was at risk of sustaining such serious psychological harm in his care. The type of conduct they cited included his decision to frighten the boys by temporarily abandoning them on a bush track as a means of discipline,[48] possibly locking the boys outside in a shed,[49] installing alarms on the boys’ bedroom doors to deter them from taking food from the refrigerator during the night,[50] surrendering the boys into the care of their biological mother when he knew or suspected they would be at risk of harm in her care,[51] and leaving F unattended overnight while he worked night shift.[52]

   [48] Mother’s affidavit, para 51; Father’s affidavit, paras 13-15

   [49] Mother’s affidavit, para 50; Family Report, paras 42, 124

   [50] Family Report, para 124

   [51] Family Report, paras 6, 111-114; Father’s affidavit, paras 25-26; Exhibit M2

   [52] Father’s affidavit, paras 44-48; Family Report, para 129; Exhibit M5

3. Such behaviour does tend to demonstrate the father has a stunted parenting capacity, but the issue for determination in these proceedings was whether the child should merely spend time with him. His competence to be a primary residential carer was not at issue. Past conduct of that sort, when the father was at his wits end with the boys’ behaviour or when he believed he needed to work and only made unsatisfactory temporary arrangements for F’s care, does not prove the child is now at risk of “serious psychological harm” merely by visiting him. The Family Consultant summarised aspects of the father’s conduct and understandably commented adversely upon it, but her evidence certainly did not establish any causal link between such conduct and the victimised children suffering “serious psychological harm”.[53]

   [53] Family Report, paras 148-149

4. Nonetheless, such past conduct is not irrelevant to the outcome. It could conceivably bear upon the frequency and duration of the child’s unsupervised visits with the father. To that extent, such evidence could properly be taken into account pursuant to s 60CC(3) of the Act.

Section 60CC(3)

1. Aside from the father’s past harsh and irresponsible treatment of the children, together with his relative lack of insight about it, the parties and Independent Children’s Lawyer all conceded in final submissions that few other aspects of the evidence relevant to s 60CC(3) of the Act materially bore upon the question of whether, and if so how, the child might spend time with the father. However, several other issues do deserve some discussion.

2. The Family Consultant considered the father, if given the chance, would deliberately undermine the child’s relationship with the mother and align the child with him.[54] She also doubted the mother is “brainwashing” the child to fear the father,[55] as the father apprehended. The Family Consultant did not explain those conclusions and was not asked to do so, but I do not accept them to be well-balanced appraisals of the available evidence.

   [54] Family Report, para 152

   [55] Family Report, paras 33, 145 (footnote 20)

3. The father occasionally referred to the mother as a “bitch” and he has sometimes engaged the child in the parental dispute,[56] but the mother’s behaviour has been little better. She admitted she made some critical comments about the father to the child,[57] which the Family Consultant euphemistically said in cross-examination was “not ideal”, but the mother’s negative attitude towards the father is best exemplified by her bold refusal to allow the child to see him at all since June 2015, which decision was motivated by the father’s refusal to consent to the final parenting orders she then proposed, so her decision was not the “protective response” against the father’s “increasingly unstable” behaviour that the Family Consultant was led by the mother to believe.[58] The mother was intent on seizing unconditional control of the child. In late 2015, she deliberately omitted the father’s contact details from the child’s school enrolment form. In January 2016, she cut off all communication between the child and the father[59] and on an occasion at the children’s dance studio, in rather innocuous circumstances, she asserted the child “froze up” while he was in her care and he saw the father was also present.[60] The mother said in cross-examination she believed the child must have then felt “uncomfortable”, but that is probably only due to his discomfort about being in the joint presence of the parties, whom he realises are ill-disposed to one another, because he was perfectly happy to be with the father alone when observed by the Family Consultant in April 2016. The mother is just as likely to deliberately undermine the child’s relationship with the father and align the child with her.

   [56] Mother’s affidavit, paras 128-129, 145

   [57] Family Report, para 56

   [58] Family Report, paras 26, 147

   [59] Mother’s affidavit, paras 144-145

   [60] Mother’s affidavit, para 156

4. C and D are very troubled children and they continue to pose a threat of harm to the child, so the child should have no interaction with them, just as the mother and Independent Children’s Lawyer both contended and as the father reluctantly conceded. Aside from their uncontained violence, which has included throwing objects, damaging property, and using weapons like knives, broken glass, hammers, and loaded spear guns to threaten people,[61] they have harassed and victimised the child.[62] The mother exchanged text messages with the father sharing her concern about the child’s safety in the company of the boys as far back as March 2015[63] and she sought an injunction restraining the child’s contact with them when she joined in the proceedings by filing her initial Response in July 2015.

   [61] Family Report, paras 58, 118, 119, 156; Mother’s affidavit, paras 89, 90, 179, 180; Exhibits ICL4; ICL7; ICL8; ICL9, ICL10, ICL11, ICL12

   [62] Family Report, para 53

   [63] Exhibit M4

5. In the Case Outline document the mother filed just prior to the trial, for the first time, she proposed that an injunction also be imposed restricting the child’s association with F, albeit in a less onerous form than that in respect of C and D. That proposal is rejected. There was no proper basis for it, since the evidence did not establish the child was at any risk of harm around her. The child and F presently attend the same school and play together. The child, F, and G also all still attend the same dance studio. The mother conceded in cross-examination it was not ideal that the child’s relationship with F is confined to their incidental association at school and dance class.

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe both parties perpetrated family violence and the father physically abused C and D (s 61DA(2)). The mother alleged the parties had an “extremely poor relationship” and she was unable to communicate with him,[64] so she wanted sole parental responsibility for the child, which the father ultimately conceded in final submissions she should have. That concession reflected the Family Consultant’s advice.[65] As a consequence, orders can be consensually made for the child to live with the mother and for her to have exclusive parental responsibility for him, at least in respect of all “major long-term issues” (s 4(1)) in his life.

   [64] Mother’s affidavit, paras 221-222

   [65] Family Report, para 157

2. The pivotal issue for determination was whether the child should spend any time at all with the father and, if so, how that could be implemented in a satisfactorily safe way for the child.

3. The mother and Independent Children’s Lawyer both contended the risk of harm posed by the father to the child could not be satisfactorily contained at all and so the only option was to eliminate the father from the child’s life, though they each countenanced limited supervised visits as a fall-back position, consistently with the Family Consultant’s recommendation.[66] Both their submissions and that recommendation are rejected as unrealistically draconian.

   [66] Family Report, paras 154, 158

4. The father’s lack of sophistication and insight does not render him so unfit as a parent that he is utterly incapable of safely caring for the child for short stints. There are a number of persuasive reasons for that conclusion.

5. First, although he physically abused C and D many times in the past, he has never abused the child, F, or G. The older boys’ behaviour was so challenging that he lacked the parenting skill to deal with it. By comparison, the child was not, and is unlikely to ever be, so challenging that the father cannot abstain from his physical abuse during unsupervised visits. The caveat to that observation is that the visits should neither be too long nor too frequent, because the limits of the father’s parenting capacity are not clearly defined.

6. Secondly, the mother probably realises the father does possess such basal competence as a parent. Notwithstanding her knowledge of the father’s past abuse of C and D, she willingly allowed the child to spend substantial amounts of unsupervised time in the father’s care until June 2015 when she terminated their interaction for an unrelated reason.

7. Thirdly, the child welfare authority is satisfied, apparently upon thorough review of the family’s circumstances (including the situation of C and D still being, and needing to remain in, State care) that F remains relatively safe in the father’s residential care.[67]

   [67] Family Report, paras 7, 130; Father’s affidavit, para 48, Annex D; Exhibit M5

8. Fourthly, the father has developed a modicum of insight into his stunted parenting capacity. Although he told the Family Consultant in April 2016 he did not need any improvement as a parent,[68] he acknowledged his error in evidence. He has since completed two parenting courses[69] and, in cross-examination, he said his completion of those courses caused him to want to do more. Naturally, the mere completion of courses does not guarantee the father gleaned any useful insight from them, but his evidence about it seemed genuine and it would be perverse to flippantly disbelieve him. The Family Consultant’s pessimism about his ability to improve his parenting performance was not entirely justified.[70] It needs to be kept in mind that it was only his suitability as a parent with whom the child could spend some time that was in issue. He was not competing with the mother as an alternate residential carer.

   [68] Family Report, para 43

   [69] Father’s affidavit, para 38, Annex C

   [70] Family Report, paras 150-151

9. Fifthly, the father now acknowledges his partial responsibility for the troubles experienced by both C and D, which troubles are undoubtedly rooted in the deficient parenting they received from both him and their biological mother. He admitted as much to the child welfare authority,[71] which he confirmed in cross-examination. It was not unfair of him to also lay some blame for that at the feet of their biological mother, since she was their primary carer until about 2006, but his own responsibility was poignantly exposed by a letter D recently wrote to him blaming him for the family’s predicament.[72] The father could not but be chastened by the tone and content of that letter.

   [71] Family Report, para 120

   [72] Exhibit F4

10. In aggregation, those considerations ameliorate the risk of physical and psychological harm posed to the child by the father, provided the child’s unsupervised visits with him are only of modest frequency and duration. The father’s proposal for the child to spend time with him on alternate weekends, for half of school holidays, and on other special occasions was, however, a bridge too far.

11. Apart from qualitative evaluation of the risk of harm the father poses to the child, there are countervailing reasons why the child should enjoy the father’s company. The Family Consultant was impelled to admit in cross-examination there would be some real disadvantages for the child if the father is eliminated from his life altogether, or alternatively, his interaction with the child is drastically curtailed. She agreed the child may feel abandoned by the father. She also agreed that, if deprived of his own experiences with the father, the child would tend to adopt other’s impressions of his absent father as his own. Given the negative attitude of the mother towards the father, the child would inevitably come to believe his father was unworthy. Such an eventuality would likely affect the child’s self-esteem, disturb his psychological security, and impair his ability to form stable and satisfying inter-personal relationships in his adulthood. The Family Consultant also agreed the child would be deleteriously affected if he was deprived of his sibling relationship with F. She will move onto secondary school in 2017, so she and the child will soon attend different schools and will probably not see one another unless the child is able to spend some time with the father. The mother would only concede the “possibility” of such adverse repercussions for the child in cross-examination, but the risk of those outcomes for the child is much more tangible than the mother would willingly admit. I accept the father’s submission that the mother does not fully appreciate the detriment to the child of being denied any relationship with him.

12. Balancing the conflicting considerations of, on the one hand, the child’s need for a continuing meaningful relationship with the father and, on the other hand, the child’s need to be kept safe from physical and psychological harm, leads to a conclusion that he should spend unsupervised time with the father for one day each fortnight. Visits of that frequency and duration will be sufficient for the child to foster his loving relationships with the father and F, but not so often or so long as to elevate the risk of his harm while in the father’s care to an unacceptably high level. That conclusion is consolidated by the imposition of three conditions upon the child’s expenditure of time with the father: the father not inflicting corporal punishment upon him; the father keeping him away from C and D; and the father not leaving him unsupervised by an adult prior to his attainment of 16 years of age (which condition the father proposed).

13. The mother deposed she would be concerned if orders were made for the child to spend any time at all with the father,[73] but she told the Family Consultant she was open-minded about her proposal and would comply with any orders made by the Court.[74] There is no reason to suspect she would not do so. If she was truthful, she will reflect upon and understand the reasons why the child’s best interests are served by him spending some time with the father.

    [73] Mother’s affidavit, paras 95, 97, 168

    [74] Family Report, para 26

14. The orders specify that the child is to be exchanged between the parties at the Coles supermarket at E Town. That venue was the mother’s selection when she filed her Response in July 2015[75] and was the father’s most recent proposal.[76] There was no debate about the use of that venue in circumstances where it was known orders may be made for the child to be exchanged between the parties, in which event a neutral venue would be required for that purpose.

    [75] Response filed 28/7/15, Order 12

    [76] Amended Application filed 30/9/16, Order 6

15. The orders make provision for the child to communicate with the father by telephone once each week. The father sought telephone communication twice per week,[77] but once is enough in the absence of any cross-examination or submission on the issue. Given the child’s interests will be served by spending modest amounts of time with the father, their relationship can also be safely promoted and retained by occasional telephone communication. The evidence did not suggest the child was in danger of any harm by speaking with the father over the telephone.

    [77] Amended Application filed 30/9/16, Order 3(g)

16. All other orders are self-explanatory and could not be the subject of reasonable objection.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 11 November 2016.

Associate: 

Date:  11 November 2016