Bateson and Geary

FEDERAL CIRCUIT COURT OF AUSTRALIA

BATESON & GEARY

[2016] FCCA 2317

Catchwords:
FAMILY LAW – Parenting – Child aged 3 – mother seeking a no time order – where the mother alleges that the father committed acts of family violence during the relationship including physically and sexually assaulting her – where save for a minimal admission made during final submissions the father denies the allegations – where the court is satisfied that the father did perpetrate serious family violence as alleged by the mother – where the mother is clearly terrified of the father – where the father was recently convicted of an unprovoked assault on a young female at a hotel – order made for no time and no communication.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA

Cases cited:
Briginshaw & Briginshaw (1938) 60 CLR 336
Mazorski & Albright (2007) 27 FamLR 518

Applicant:

MS BATESON

Respondent:

MR GEARY

File Number:

NCC 249 of 2015

Judgment of:

Judge Terry

Hearing dates:

19, 20 and 26 July 2016

Date of Last Submission:

26 July 2016

Delivered at:

Newcastle

Delivered on:

27 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr Wilkinson

Solicitors for the Applicant:

Winder Lawyers

Counsel for the Respondent:

Mr Fogarty

Solicitors for the Respondent:	Jackson & Associates
Counsel for the Independent Children’s Lawyer:	Ms Flintoff

Solicitors for the Independent Children’s Lawyer:

Foat Roberts Lawyers

ORDERS

The child X born (omitted) 2013 (“the child”) shall live with the mother.
The mother shall have sole parental responsibility for the child.
The child spend no time with and have no communication with the father.
Pursuant to section 68B of the Family Law Act 1975 that the father is restrained and an injunction is granted restraining him from removing the child from any school, day care centre, after school care organisation, extra-curricular activity or from the care of any person in whose care the mother has placed her.
All outstanding applications are dismissed.
The application for costs by the Independent Children’s Lawyer is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 249 of 2015

MS BATESON

Applicant

And

MR GEARY

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These proceedings concern parenting arrangements for X aged 3. She lives with her mother and has not seen her father since her parents separated in December 2014 after an incident which led to the father facing criminal charges.
Soon after separation the mother filed an application seeking orders that X live with her, that she have sole parental responsibility and that X spend no time with and have no communication with the father.
It is the mother’s case that throughout the parties’ two-year relationship the father was violent and controlling and subjected her to verbal abuse, threats, physical violence and in the last two months of the relationship a number of sexual assaults.
The father has an extensive criminal record and it is the mother’s case that X would not be safe with him and that he is not a suitable person to be part of her life.
When the mother was in the witness box I asked her how she would feel if I ordered that X spend time with the father. Her response was:
He is dangerous and I will feel the system will have let X down because I have worked very hard to get where we are today.
The father was originally seeking orders that X spend time with him on alternate weekends and for half of the school holidays. However at the commencement of the trial his position changed and he proposed that she commence spending supervised time with him by way of reintroduction.
During final submissions the father’s position changed again and he proposed that he be ordered to undergo certain treatments and that if he did that for six months and did not come to the notice of the police in that six months then he could commence spending supervised time with X.
The father’s long term goal remained to be able to spend unsupervised time with his daughter on alternate weekends and for half of the holidays.
The father sought an order for equal shared parental responsibility.
The father admitted that he had an alcohol problem and an anger management problem and he could not deny that he had an extensive criminal record which included convictions for offences of violence committed as recently as 6 January 2016. However he denied all the allegations of violence in any form made by the mother save that through his counsel during final submissions he admitted that he intimidated and instilled fear in her and her children from a previous relationship on 5 December 2014.
In answer to a question during cross-examination the father said:
I am the father of the child. I have a right to see her.
That is simply not correct. The focus of the court in children’s matters is on children’s rights, not parent’s rights. S.60B of the Family Law Act contains the objects and principles of the parenting part of the Act. The principles underlying the objects of the Act are that children have a right to know and be cared for by both their parents and a right to spend time with both of their parents on a regular basis but only to the extent that this is considered to be in their best interests.
I must determine in this case whether it is in X’s best interests to spend time with the father in the manner he proposed or at all.
In final submissions Counsel for the Independent Children’s Lawyer asked the court to make orders that X live with the mother and spend no time with and have no communication with the father and that the mother have sole parental responsibility for the child.

The evidence

The evidence in the mother’s case was given by the mother and in the father’s case by the father and his former partner Ms T.
A family report was prepared by Ms D, a Regulation 7 Family Consultant.
Unfortunately Ms D was only able to interview the father and examine subpoena documents. The mother moved to (omitted) with the child after the order was made for the preparation of the family report. She did not attend the interviews and that is a limitation to the report.
All of the witnesses were cross-examined.

Background

The mother is 27 and the father 58. They commenced a relationship in (omitted) 2012 and separated on 5 December 2014 and they have one child, X, who was born on (omitted) 2013.
The mother has two older children, A who was born on (omitted) 2007 and B who was born on (omitted) 2010. A and B have lived with the mother all their lives and neither of them spend time with their fathers.
The father has eight older children aged between 38 and 6.
Both the father and the mother are Aboriginal and both are from the (omitted) tribe.
When the relationship began the mother was living with her mother in (omitted), a suburb of (omitted) but she later moved to her own home in (omitted). The father had his own home in (omitted) but spent a lot of time at the mother’s home.
The parties finally separated on 5 December 2014 after an incident at the mother’s home. The mother made a report to the police and the father was charged with assaulting the mother and A and with stalk intimidate.
The father took X on the day of this incident and kept her overnight but he returned her the following day and X has not spent any time with him since.
In February 2015 the mother filed an application for parenting orders. On a final basis she sought an order that X spend time with the father as ordered by the Court but on an interim basis she sought an order that the child spend no time with and have no communication with the father.
In the affidavit she filed in support of her application the mother alleged that there was extensive family violence in the relationship. As a result of this and the child’s age no interim orders were made for father to spend time with her, rather an order was made for the preparation of a family report so that the Court could consider the issue of X’s time with the father after further information was obtained.
The report was released in October 2015 and the report writer recommended no time and no communication. The father did not accept this recommendation and the matter was listed for trial in July 2016 and the trial proceeded on the allocated days.
The mother moved to (omitted) with her children in 2015 and she intends to remain living in (omitted). The father continues to live in (omitted).

Family Violence

The issue which loomed large in the proceedings was the issue of family violence.
In his final submissions the father’s counsel suggested that some of the mother’s allegations about family violence were scarcely particularised but I do not understand this submission. The mother made numerous concise but particular allegations of family violence. This was not a case where she made generalised allegations such as asserting that the father was violent every day.
The first of the mother’s allegations was that when she discovered she was pregnant in (omitted) 2013 she told the father she wanted to have an abortion and the father said to her:
I will kill you if you kill my child.
The mother said that in March 2013 she asked the father to leave after an argument and said she would call the police if he did not. The father called her a dog and pushed her in the chest with an open hand causing her to fall backwards. She went into the bedroom and the father followed her in and locked the door. She was eventually able to leave the bedroom and she left the house and reported the incident to the police but told them she did not want them to take any further action.
The mother alleged that on another occasion while she was still living at her mother’s the father said:
If you do not come for a drive with me I will smash your mum’s windows in on her house.
The mother alleged that there was an incident in the (omitted) Hotel in July 2013 when the father threatened her and assaulted her. She said that she was not long home from the hospital after having X but the father insisted that she go out with him to the (omitted) Hotel for a drink. While they were at the hotel the father threatened her saying:
I will punch the cunt out of you. You are a slut.
The mother went on to say:
He suddenly grabbed me, pulling me off the chair and pushing me onto the ground. He then grabbed the back of my shirt and pulled me up a bit and started kicking me in the stomach around my caesarean section wound and my ribs. I could not breathe.[1]
[1] Mother’s affidavit paragraph 67
The mother eventually left the hotel and called the police. She was told that they would check the CCTV footage but she said that the father threatened to kill her if she went ahead with court proceedings and eventually she did not press charges. However an Apprehended Domestic Violence Order (ADVO) was made for her protection.
Around that time the Department of Family & Children’s Services (DoFACS) became involved because of the violence allegations that were being made to police.
The mother alleged that from November to December 2014 the father sexually assaulted her approximately 10 times. She alleged that he held a knife to her throat, threatened her with a hammer he kept under the bed and made threats to kill her.[2]
[2] Mother’s affidavit paragraph 98-110
The mother said as follows:
I feared for my life and became frozen, often thinking I was going to die.
I believed the only way to make sure I did survive was to cooperate with Mr Geary and allow him to take advantage of me and have sex with me.
The mother said that she was also concerned for the children’s safety.
The mother described finding knives around the house and being verbally abused. She alleged that she was bashed with a hair straightener on one occasion and then raped.[3] She described an incident where A came in while she was being sexually assaulted because she was screaming.
[3] Mother’s affidavit paragraph 122
On 5 December 2014 the parties had an argument which began after some Jehovah’s Witnesses came to the house. The mother said that it ended with the father coming into the house yelling and angry, pulling her by the hair, forcing his way into a bedroom where she had gone to get away from him, slapping her and punching her numerous times to the head and lifting up the bed A was hiding under and slamming it down several times.
The mother eventually got out of the house and went to the police. The father took X overnight but returned her to the mother at the police station the following day at which time he was charged with assault and stalk intimidate and an ADVO was put in place for the protection of the mother and the children.
The mother alleged that the father was extremely verbally abusive to A during the relationship and that he hit A on one occasion. She also gave evidence about controlling behaviour by the father for example in respect of her medication.
The mother alleged that in May 2015 after separation there was an incident at the (omitted) Hotel. The mother went there with her cousin Ms K. The father was at the hotel and she saw him filming her and Ms K. Ms K confronted him. She alleged that Ms K’s mother-in-law became involved and was slammed to the ground and had her arm broken. The mother said that she threw a plastic cup at the father and they were all evicted from the hotel.
The mother called the police but because there was no CCTV footage and she and her cousin were extremely intoxicated no charges were laid against the father.
It was the mother’s case that after this incident she felt unsafe in her home and went to a refuge for five months. In due course she was assisted to find accommodation in (omitted) and she has lived there with the children ever since.
The father admitted during cross-examination that he called the mother a dog and he made some very limited admissions about the incident on 5 December 2014 but otherwise his case was that I should disbelieve everything the mother said because it was an enormous fabrication.
In support of the father’s case his counsel submitted that some of the mother’s allegations were scarcely particularised but as noted above I do not understand that submission. It is simply incorrect.
The father’s counsel submitted that the mother was not a witness of credit and that I should be cautious because she could have called her cousin Ms K to give evidence in support of her claims about the incident at the (omitted) in 2015 but did not.
The father’s counsel said I should be cautious about believing the sexual assault allegations because the mother did not make disclosures about sexual assault to (omitted) Family Support Services until January 2015 and I should further be cautious because the mother did not report all of the incidents she alleged occurred to the police. He said that I should place weight on the fact that the father either denied or strongly denied the allegations.
Finally the father’s counsel submitted that I should disbelieve the mother’s allegations because Ms T who lived with the father for two years and was in a relationship with him for four said that he was not violent.

Conclusion about the family violence allegations

There is frequently no corroboration of family violence allegations and that is the case here. Many of the incidents alleged by the mother took place in the home and involved the mother and the father and sometimes the young children. On many occasions there was no one else present to witness what had occurred.
The submissions by the father’s counsel that the mother’s claims were scarcely particularised is not valid and some of the matters which he said suggested that the mother was not a witness of credit, for example the fact that she did not immediately give evidence about the mysterious $60,000.00 phone call offer, are not valid either and do not in my view undermine the mother’s credit.
The suggestion that I should disbelieve the mother simply because she reported some allegations to the police and did not report others is also not a valid criticism of the mother.
It is relevant that the mother did not call Ms K to give evidence but overall I am satisfied that almost all of the mother’s allegations about the father should be accepted and I say that for these reasons.
The father’s denials carry no weight because the father was not a witness of credit and I particularly want to refer to here to his evidence about the incident at the (omitted) Hotel in July 2013.
The mother alleged that during the incident on 10 July 2013 the father grabbed her, pulled her off her chair, pushed her to the ground and kicked her in her caesarean section wound.
In the first affidavit he filed in these proceedings the father denied the mother’s version of events. His evidence was that the mother was drunk and threatened him with a glass and that he pushed her away because she was waving the glass at him.
Counsel for the Independent Children’s Lawyer cross-examined the father at length about this incident. She put to him that the day after the incident he and the mother went to see (omitted) Mental Health and that notes made at the time indicated that when he was asked about the incident the father said that it was the first time he had physically assaulted the mother and that he woke up the next morning feeling sick about what had happened because there was a lot of alcohol involved.
There was some further cross-examination by Counsel for the Independent Children’s Lawyer and I then asked the father some questions myself. I listened to the sound recording before I came on the bench to make sure that the questions were definitely about the 2013 incident at the (omitted) Hotel and not the 2015 incident and they were definitely about the 2013 incident.
I put to the father what the mother said about being grabbed off her chair and I said:
Is there any truth in that?
The father said this – and this is very different to what he said in his affidavit:
I did pull her off the chair because she threatened to hit me with a glass. I pulled her off the chair so she could not do that. She hit the ground and she apparently had the wind knocked out of her.
He added:
That was all there was to it.
That is very different to anything else he said about that matter and very different to the minimisation of the incident in his first affidavit.
I prefer the mother’s evidence about that incident to the father’s and it confirms to me that the mother is a witness of credit in relation to what has happened to her during the relationship.
The father’s evidence in relation to the 5 December 2014 incident similarly changed over the course of the proceedings.
In his affidavit filed on 27 March 2015 the father said that the incident involved the mother yelling and swearing at him. He described following her inside, tripping and falling and grabbing the bed for support, accidentally grabbing her hair and accidentally lifting up the bed A was hiding under and bringing it down. He alleged that the mother and A continued to swear and yell at him and he turned and left.
When the father spoke to the family report writer in October 2015 he admitted for the first time that he was part of the problem that day. He admitted going into the mother’s home to continue an argument. He again said however that any physical contact was accidental.
In his affidavit filed on 18 July 2016 the father said as follows about this incident:
I followed the mother into the house, arguing and shouting, but I did not hit her or A.
In cross-examination he said as follows:
The mother, A and B ran into the bedroom. I got out of the car and limped up the stairs. They were locked in the bedroom. I pushed the bedroom door open with my shoulder.

The father admitted that he was angry but said he acted on the spur of the moment and again alleged that any touching of the mother was accidental. However the father’s story about the incident changed over time and he gradually came to make more and more, although still minimal, admissions about it.
In my view the mother’s version of events about that day, which involved a serious assault on her where she was slapped, punched around the head and grabbed by the hair, should be accepted. The father was simply not a witness of credit in relation to that incident.
Those are just two examples of occasions where the father’s evidence about what occurred during an incident was totally unreliable and where gradually over time he came to make more and more admissions about his role in the incident.
The father’s counsel submitted that the father’s denials of violence were consistent with the evidence of Ms T who said that he was not a violent person.
They might be consistent with Ms T’s evidence but the father has eight children from a number of different partners and we did not hear from any of his other partners. In addition while his denials of violence are consistent with the evidence of Ms T, they are inconsistent with his numerous convictions for offences of violence and the serious assault he committed at the (omitted) Hotel in January 2016.
In her report released in October 2015 the family report writer said as follows about the father’s convictions:
Subpoenaed police records indicate between 1972 and 2014, the father has been convicted of forgery/larceny/fraud/ obtaining money by deception on eight occasions, stating a false name on three occasions, stealing/goods in custody on three occasions, drug offense on three occasions, violent disorder on two occasions, menace harass/stalk intimidate on two occasions, breach AVO on two occasions and assault on seven occasions.[4]
[4] Family report paragraph 34
The father also has drink driving convictions which are referred to in a separate part of the report.
Then there is the incident at the (omitted) Hotel in January 2016.
The father revealed for the first time in his affidavit filed in July 2016 that he had been convicted of an offence at the hotel which occurred in January 2016. He said that he had received a 9 month suspended sentence but did not reveal in his affidavit what had happened.
During cross-examination the father said that he did not remember what happened and that may be true but he knew what was alleged in court when he was sentenced and he did not tell us about that either.
The facts to which the father pleaded guilty reveal that he was at the hotel with some friends and he punched a female he did not know in the head. She collapsed to the ground and could not get up. Her friends dragged her to the bathroom and she was later taken by ambulance to (omitted) Hospital. She suffered concussion and torn neck muscles.
It was an extremely serious assault and the father said that he had been on a three-day drinking binge prior to the incident.
The mother’s allegations are entirely consistent with that kind of behaviour by the father.
A made a statement not long after the 5 December 2014 incident which is consistent with the mother’s version of events about what happened that day and not with the father’s.
The father’s counsel said that I should be cautious about making findings that the father had committed various assaults on the mother, including sexual assaults, because the allegations were very serious and I should be mindful of Briginshaw v Briginshaw[5] and make sure that because of the seriousness of the allegations I was satisfied to the requisite extent that the allegations were made out.
[5] Briginshaw & Briginshaw 60CLR 336
I am satisfied on the balance of probabilities, bearing in mind the Briginshaw test and bearing in mind the nature of the allegations, that the allegations made by the mother about the father threatening her when she found out she was pregnant and said she wanted an abortion, pushing her in the chest and causing her to fall over after calling her a dog, threatening to smash her mother’s windows if she did not come on a drive with him, assaulting her in the way she described at the (omitted) Hotel in July 2013, including kicking her in her caesarean section wound, threatening to kill her if she went ahead with the court proceedings in respect of that, sexually assaulting her on a number of occasions between November 2014 and December 2014 including bashing her with an object and verbally abusing her, assaulting her by pulling her by the hair, slapping her and punching her in the head on 5 December 2014 and assaulting her friend Ms K’s grandmother at the (omitted) Hotel in May 2015 on the balance of probabilities occurred.
I am also satisfied that the father deliberately did things with the bed on 5 December 2014 which could have caused harm to A.
I am also satisfied that the mother is frightened of the father. Her behaviour is entirely consistent with that claim. She left her home in (omitted) immediately after the incident at the (omitted) Hotel in 2015 and went to a refuge. She stayed there until she was found accommodation in (omitted) and her presentation in the witness box was entirely consistent with someone who was afraid of the father.
I am satisfied on the balance of probabilities that the mother is genuinely afraid of the father.
I am also satisfied that the father has an alcohol problem and I will come back to that later when considering his parenting capacity.
The one thing I cannot make a finding about is the mother’s allegation that the father hit A on one occasion. She did not see it and it is possible that there was a misunderstanding. I cannot place weight on what she said about that incident because she did not see it.
In the first affidavit he filed in these proceedings the father made numerous allegations about the mother being violent to him. He never made any complaints to the police about this and he did not allege that he ever suffered any injuries. There was nothing in the subpoena material, unlike the situation with some of the mother’s complaints, which validated the father’s allegations and the father was not a witness of credit.
At trial the father’s counsel did not pursue with the mother any allegation that she had been violent to the father save for asking if she had slapped him on one occasion which the mother admitted she did.
The father’s counsel did not suggest in submissions that I should make a finding that the mother had been violent to the father. I do not accept that the mother was violent to the father and in my view the slap to which the mother admitted was something reactive by the mother.

The child’s best interests

Any orders I make about X must be orders determined by treating her best interests as the paramount consideration and to determine X’s best interests I must consider the matters in s. 60CC(2) & (3) of the Family Law Act.
The primary considerations in s. 60CC(2) are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Children benefit from having a meaningful relationship with both of their parents in a broad general sense. Each parent brings something different to parenting and it is accepted that children do best if they are brought up knowing that they are loved and cared for by both parents.
However that is a broad general concept and I am not satisfied on the basis of anything I have heard in the evidence that the father has the capacity to nurture X. He was seriously violent to the mother and he is in denial about it. There is a question mark at present about whether he can overcome his problems with violence and alcohol abuse. I cannot be sure that even if given the opportunity to do so he would develop a relationship with X which was valuable, important and significant to her.[6]
[6] Mazorski & Albright (2007) 27FamLR 518
I must consider the need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
X would be at considerable risk of being exposed to family violence in the unsupervised care of the father if he was in another relationship based on my findings about the serious violence he perpetrated against the mother. The fact that he assaulted a stranger at a hotel in January 2016 while on a three-day drinking binge and the fact that he had to be taken home in a caged vehicle after an incident outside the hotel in March 2016 suggests that nothing has really changed for the father.
The father intimidated, controlled and was violent to the mother during their two-year relationship. He was verbally abusive to A and if X spent unsupervised time with the father when he was in another relationship there is a risk that she could be exposed to family violence, and she could also be exposed to neglect because of what the father now admits is his serious alcohol problem.
I am not satisfied that the child is likely to be exposed to abuse, neglect or family violence in the care of the mother.
The mother has some mental health issues but I will come back to those when considering her parenting capacity.
The additional considerations are contained in s. 60CC (3).
The first additional consideration is the views of the child. That is not relevant because of X’s age.
I must consider the nature of the relationship between the child and each of her parents and any other relevant person.
There was no independent evidence about X’s relationship with the mother because the mother did not attend the family report interviews but the family report writer said that there were very positive reports in the subpoena material about her parenting, her attendance on supports and a psychologist and about A and B attending school and from services the mother is engaged with in (omitted). There is nothing to suggest that I should be concerned about X’s relationship with her mother.
There was no independent evidence about X’s relationship with B and A.
X has no relationship with her father. She has not seen him since she was 18 months old.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child or make decisions about the child.
This consideration does not help me. The father has always wanted to be part of X’s life, he is not someone who has walked away from her, and the mother has also always wanted to be part of her life.
I must consider the issue of financial support.
The father is not paying child support. It would appear that the mother has not made an application and she is very likely exempt from doing so because of the violence allegations.
There was bizarre evidence about the father making a phone call to the mother not long before the trial and offering to put $60,000.00 into the children’s accounts. He admitted that he made that phone call. I cannot even begin to imagine what that was all about.
I must consider the likely effect of any change in the child’s circumstances.
If orders are made as the father proposed then if he undergoes therapy and does not come to the attention of the police for six months X will begin spending supervised time with him, and that would be a considerable change for X.
There are a number of aspects to this which I need to consider and the first is the likely effect of such an order on X.
X was in the house for part of the parents’ relationship during which the mother said that there was shouting, verbal abuse and toward the end sexual assaults. On one occasion the mother screamed so loudly that A came into the room.
X was not in the house during the 5 December 2014 incident, she was asleep in the car, but she must have been in the house on other occasions when there were incidents in the home. I cannot be sure what she heard. I cannot be sure whether she picked up anything of the mother’s fear on those occasions because I am satisfied the mother was afraid.
The family report writer expressed the view that if a child of X’s age was exposed to those kind of things then even if they did not remember them certain things could trigger a negative response in the child and this could mean that they should not be brought into contact with a perpetrator of family violence.
The family report writer gave this evidence in a convincing way but as the father’s counsel pointed out in submissions it was general evidence. He submitted that the family report writer had not met X and did not know X and that I could not find that spending time with the father was likely to trigger a fear response or an avoidance response in her.
This is true but there is force in the family report writer’s opinion that it would be important for someone X knew and trusted to be present with her if she was introduced to the father so they could intervene if anything was triggered.
So the first thing to say about the likely effect of change is that I cannot be sure how X will react to seeing the father but of course that could be guarded against by having somebody present when she was reintroduced to him so that they could step in if there was a problem.
I also have to consider the effect on the mother of an order that X spend time with the father.
The mother is fearful of the father and finds the idea of him spending time with X intolerable. She became tearful when she gave her evidence about this. She gave credible evidence of suffering from nightmares and finding it hard to relax at night after the relationship ended.
The mother said that she no longer suffered from nightmares but she was still very anxious. She is having counselling in (omitted) with a psychologist organised by Victims of Crime and I have to be very concerned about the possible effect on the mother of an order that the father spend time with X because the mother is very vulnerable.
The mother was exposed to family violence in her own childhood. She has had extensive mental health issues and has had some inpatient treatment. She has a history of depression. She has been diagnosed with bipolar although there is some suggestion that this may not necessarily be a valid diagnosis and she had extensive involvement with mental health services when she was in (omitted).
The family report writer said as follows in her report:
Subpoenaed documents indicate the mother has a history of depression and self harming and she has been diagnosed with and treated for Bipolar Disorder in the past. These records indicate the mother was scheduled to (omitted) Hospital in 2010, suffering from post natal psychosis following the birth of B. On 26/02/15 records indicate the mother's GP had restarted her on Epilim and the most recent records from (omitted) Mental Health Service indicate on 5/03/15, the mother was assessed and that no further assessment of her suicidality was required. On this occasion the mother reported she was "living in fear of her ex-partner" due to family violence and threats made by him. On 25/03/15 the mother was assessed by a psychiatrist and the psychiatrist opined it was unclear as to whether her diagnosis of Bipolar was valid and the psychiatrist opined it was "more of a pattern or emotional instability rather than hypomania." The psychiatrist's impression was that the mother was "experiencing symptoms related to alleged domestic violence including hypervigilance, re-experiencing and avoidance behaviours."[7]
[7] Family Report paragraph 22
I am satisfied that the mother is afraid of the father. I am satisfied she suffered ongoing effects after the end of the relationship as a result of the family violence. She is medicated in respect of her mental health and I have to be concerned about the possible impact on her and on her parenting capacity if I made orders she could not accept and found extremely difficult to comply with.
The mother described numerous serious assaults by the father and she may not get over her fear of the father or her anxiety about X coming into contact with him for a very long time, if ever.
I also have to be concerned about the possible effect on the whole family unit of an order that X spend time with the father.
If I make an order for X to spend supervised time with the father and it does not trigger any adverse response in X and the father is kind and pleasant to her during the supervised time X may gradually form a bond with him but I must have regard to how that may impact on other members of X’s family unit.
A called out to the father during the 5 December 2014 incident to stop hitting his mother and he expressed anger about the father in an interview shortly after the incident.
B has said something along the lines of:
Nothing happened to me because I kept quiet.
B and A have been exposed to the father’s violence. They have seen the father assaulting the mother and the mother is seriously affected by what has happened to her.
It is open to question whether the family unit would cope if X formed a bond with the father not knowing this history or not remembering it. It might set up some psychological issues for X thinking, “Well, all these people think this about my father and yet this is how he appears to me in this supervised setting or during this limited time.” The family report writer in her evidence talked about the difficulty this could cause.
In summary X may benefit in the long-term from knowing her father; children can feel the lack of a father. However there are some possible adverse effects on her and on her family unit and on her mother if I make an order for time and in due course I will have to weigh that up with all the other s.60CC(2) and (3) matters to come to a decision.
I must have regard to the practical difficulty and expense of a child spending time with a parent.
There would be considerable difficulty and expense in X spending time with the father. The mother lives in (omitted) which is about four hours or so from (omitted) and to the best of my knowledge there is no supervised contact service in (omitted). The mother may be put to the expense of a trip to (omitted) for supervised time to occur and because of the distance the parties live apart time may not be able to be frequent and that could impact on how well it all worked.
I must have regard to the capacity of each parent to provide for the needs of the child, including her emotional and intellectual needs.
The family report writer said as follows about the mother:
Subpoena records indicate the mother appears to be parenting the three children well and it is noted in DOCS records since separation X is eating better, meeting her developmental milestones and is growing.[8]
[8] Family report paragraph 25
The mother is engaged with a family support service in (omitted). She recently linked up with the Benevolent Society which runs the Brighter Futures program in (omitted) and she intends to take advantage of what they can offer her. She and B and A are having counselling in (omitted) organised by Victims of Crime. The mother is seeing her GP and is prescribed medication to assist with her mental health. There is nothing to suggest that there have been any adverse incidents in the community in relation to the mother or any of the children since the mother moved to (omitted).
There was no evidence that the mother was in another relationship let alone another violent relationship and even before her relationship with the father ended she had commenced some domestic violence counselling.
The mother has a history of remaining engaged with support services. She was engaged with (omitted) Family Support Service for a lengthy period while she was in (omitted).
The father said that he helped care for X during the relationship and the mother agreed that he did so on occasions and that there were times when she left X with him for short periods

However there are numerous reasons to be concerned about the father’s parenting capacity. Even on his own admission and leaving aside the allegations made by the mother he has a problem with anger and alcohol abuse.
The father has numerous assault convictions and he assaulted a stranger in a hotel in January 2016 putting her in hospital. I can understand why the mother says that he is dangerous.
The father also has a problem with alcohol consumption.
The family report writer asked the father about his alcohol use and he said that he drank on and off but not on a regular basis. He initially denied a history of alcohol abuse but when challenged with subpoenaed police records agreed that he had about 9 alcohol-related driving convictions and in cross-examination said he had been to jail on two occasions in relation to driving matters.
The father said that he was on a binge in January 2016 when he assaulted the stranger in the hotel.
In March 2016 the father got into an argument with the police outside the (omitted) Hotel and was verbally abusive to them and was taken home in a caged vehicle.
Alcohol abuse has been almost a lifelong problem for the father.
The father tried to suggest that since the incident in the hotel in January 2016 he had taken some embryonic steps to address his issues with violence and alcohol consumption.
Whether he is ready to address his violence issues is open to question because in paragraph 47 and 52 of his most recent affidavit he said that he acknowledged that he needed counselling for his emotions and for drinking and did not mention violence. However another problem for the father is that the evidence in support of his claim to have sought assistance to deal with his problems was so slight as to be almost non-existent.
The father said that Dr W was providing him with counselling for anger management and drinking but he is not. The father produced a letter from Dr W and all it said was that Dr W had referred the father to Dr D.
The father produced a letter from Dr D and all it said was the following:
This is to confirm that I first saw Mr Geary on 15 April 2016 and he has since attended the Mental Health and Substance Abuse Service, including group participation. He has ongoing appointments with me for further assessment and management.
That tells me absolutely nothing. It tells me nothing about what problems the father is assessed to have and it tells me nothing about the father’s level of engagement with any therapy that might have been offered to him.
The father gave no evidence in his affidavit about his past alcohol use, no evidence about his past and present pattern of drinking, no evidence about whether he was still drinking and if so how much and no evidence about what he intended to do to control his drinking apart from going to see Dr D.
I can have absolutely no confidence based on the father’s evidence and the meagre evidence provided by Dr D that the father has taken any steps to engage with the fact that he has a problem with alcohol and to address it.
I also cannot be satisfied that the father has taken any steps to address his alcohol problem or to address what if kindly described is an anger management problem and if accurately described is a problem with committing serious offences of violence.
The family report writer assessed the father as having a very high opinion of himself and a sense of entitlement and he presented that way during the trial. He minimised his accountability for his behaviours and he minimised his significant criminal history and that does not auger well for the father actually making any real changes in his life.
The family report writer said in cross-examination that the father may need residential rehabilitation if he was to do anything about his alcohol problem and there was nothing to suggest that the father had ever thought about that. She also said that he would need to be 12 months in the community without incident, not six months, before anyone could be satisfied that he had made any real changes in his life.
The father does not acknowledge the nature and extent of his problems with either violence or alcohol. On the basis of the evidence he put before me I cannot be satisfied that he has taken any real steps to do anything about his problems and I therefore cannot be satisfied that there is any sign that he is going to overcome those problems.
During cross-examination the father twice blamed not being able to see X for his drinking. He said:
Since I have had X taken away from me I have been drinking and then binge drinking.
And later on:
A lot of my problems are [due to] not seeing her.
Unless the father accepts that he has had a lifelong problem with alcohol and violence and that his problems are nothing to do with whether he is seeing X or not there is little prospect of him overcoming his problems.
The mother’s assessment that the father is dangerous has substance and I could not possibly consider at the moment that the father has the capacity to provide for either the day-to-day or emotional needs of a three-year-old child.
I must consider the child’s maturity, sex, lifestyle and background.
The only relevant thing here is that X is three and is very young and vulnerable.
X is an Aboriginal child. The father emphasised that he was engaged in the Aboriginal community. He said that he was the (position omitted) of the (organisation omitted) and was paid for negotiating with (company omitted) and (company omitted) in (omitted).
However the mother is also Aboriginal and is from the same tribe as the father so even if X remains with the mother and does not spend time with the father she will have the opportunity to remain connected with her Aboriginal heritage and enjoy that with people who share it.
I must consider the issue of family violence.
I have made findings about the family violence which occurred and those findings have serious implications.
One relevant matter is that the kind of violence the father commits could result in a child being injured. It is more good luck than good management that A was not injured on 5 December 2014. Children can also be injured when there is family violence between parents because they can get in the middle of it. A came into the room when the mother was screaming on one occasion during a sexual assault.
Being exposed to family violence causes children psychological harm. It can lead to them growing up and partnering with people who are violent. It can lead to them becoming anxious and depressed.
People who are violent and who disrespect their child’s other parent are extremely poor role models for their child as are people who do not take responsibility for their actions.
Finally if a child is brought into contact with a parent who denies violence and yet that violence is the reality for the other parent that can cause enormous confusion and psychological harm for the child.
I must have regard to whether there are any family violence orders and if so any inferences which can be drawn from that.
There have been ADVOs in this matter. There is not one at present; the last ADVO expired in May 2016. I have made findings about the family violence which occurred and it is not necessary to consider what inferences can be drawn from the fact that the ADVO’s were made.
I must have regard to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The mother has a good attitude to the child. She has taken steps to escape from a violent relationship. There was no evidence that she was in another one and she is fully engaged with counselling and other services in (omitted).
There was nothing to suggest that the mother was opposing X spending time with the father for some ulterior motive or simply because she did not want her child to have a relationship with her father.
The father’s attitude to the child and the responsibilities of parenthood is poor in that he does not admit to the family violence.
I must have regard to whether it is preferable to make the order least likely to lead to further proceedings.
Any order I make could lead to further proceedings.
If I make the orders the father proposed, which would see him being re-introduced to the child, further proceedings could occur because the mother found this intolerable and did not comply with the orders, or alternatively time may break down because X did not take to the time. There are all sorts of reasons why the orders the father seeks could lead to further proceedings.
A no time order could also lead to further proceedings because the father might decide to bring another application in the future if had some treatment and considered that he could demonstrate to the court that he was a changed person.

Parental responsibility

Pursuant to s. 61DA of the Family Law Act I am required to apply a presumption that it is in the child’s best interests that the parents have equal shared parental responsibility for her. However the presumption does not apply if a parent has engaged in abuse of the child or family violence and that is the case here.
The father sought an order for equal shared parental responsibility and as his counsel pointed out I can still make that order if I choose even if the presumption does not apply but I could not possibly consider making such an order in this case.
The mother could not tolerate being required to consult with the father about X and it would not be in X’s best interests to make an order which might have an adverse effect on the mother’s parenting capacity.
The only appropriate order is an order that the mother have sole parental responsibility for X.

The family report

The family report writer said as follows in her report:
The fathers documented long history of dishonesty, his minimising his accountability for past criminal behaviour, his history for violence and breach AVO's and mother's allegations that he has historically perpetrated abuse upon her and has physically abused A are all significantly concerning. Of most serious concern is that DOFACS has recently formally identified the father as a Person Causing Harm to children.
The Family Consultant’s view of X spending time and communicating with the father, is that this should only occur of she is not at risk of harm in the father's care.[9]
[9] Family Report paragraph 58, 62
The family report writer went on to say:
Based on DOFACS recent judgement that resulted in the father being formally identified as a Person Causing Harm to children, it is recommended that X spend no time and have no contact with the father.[10]
[10] Family Report paragraph 65
I cannot make my decision in this matter based on the reason the family report writer gave. The family report is valuable but I have to make my decision based on the evidence that I have heard which includes the evidence in the family report but also includes other evidence. I also have an advantage that the family report writer did not have in that I have seen the mother in the witness box and heard her cross-examined.
The family report writer did say in cross-examination that if the Court found that the mother had been subjected to coercive and controlling family violence by the father then the appropriate order was a no time order.

Conclusion

I have read the submissions filed by the father’s counsel and it is clear that by the end of the trial the father, through his counsel, accepted that the Court was not going to make an order that he immediately commence spending time with his daughter.
The father seemed belatedly to realise that the fact that he had admitted to intimidating the mother on 5 December 2014, had been convicted of a serious assault on an innocent female in January 2016 during a period of binge drinking, had got into an argument with the police in March 2016 while he was drunk and been sent home in a caged vehicle and had produced only the sketchiest evidence of engagement with a psychiatrist or psychologist to deal with his violence, anger management and alcohol abuse problems were together going to be enough to ensure that if the Court considered ordering time at all it would only be supervised time and the Court was likely to question whether there was any value in the father’s daughter getting to know him at all.
The father therefore proposed that rather than the court ordering an immediate commencement of time, it should order that he undergo treatment for six months and order that if he did this and stayed out of trouble with the police for six months then supervised time should commence.
The reasoning behind this proposal was presumably that if the father had treatment and stayed out of trouble for six months this would demonstrate that he might be able to stay out of trouble due to violence and alcohol consumption in the longer term and in those circumstances, it would be worth slowly introducing X to him. She would be safe if the time was supervised and if the father continued to be of good behaviour and was able to beat his alcohol and anger management problems time could move to unsupervised time.
It was the father’s case that it was important to create an opportunity for X to spend time with him because she would benefit from having a father as well as a mother in her life and she would also benefit from having in her life a parent who was not only Aboriginal but was involved in the Aboriginal community and very proud of his Aboriginality
Unfortunately for the father I have made findings that he was violent to the mother on numerous occasions. His proposal was based on him saying “Yes I might have intimidated the mother on 5 December 2014 and then were the incidents in January 2016 and the incident in March 2016 but I have taken steps to overcome the things that made me behave in that way.” What I might have done if that was all there was to it I do not know but that is not all there is to it and that is the big problem for the father.
The father was violent to the mother on numerous occasions during their two-year relationship. He was physically violent and verbally abusive, he made threats to harm her and he committed degrading sexual assaults on her in the last two months of the relationship. He was abusive and threatening to her during the incident in the (omitted) Hotel five months after separation and the mother felt so fearful after this incident that she left her home and went to a refuge and was later assisted to relocate to (omitted).
The mother can see no benefit to X in having a relationship with the father. She views him as dangerous and said she would feel very let down if the Court made an order for X to spend time with him. It would be extremely difficult for the mother to accept an order that X spend time with the father if I made it and I could only consider making such an order if I felt that there was some prospect of things changing for the father.
The background against which I have to consider is that the father is 54 years old. He has been in trouble with the law since he was 15. He has a long history of abusing alcohol and committing violence offences. He was not motivated to seek any treatment for these problems until a few months ago and it is hard not to be sceptical about whether the only reason he sought that treatment was that he was under the eye of the Court and a hearing into the parenting matter was coming up. It is hard not to be sceptical about how committed the father is to making changes and whether he is likely to be able to do so.
However even if a miracle happens and the father cleans up his act in regard to alcohol and beats his propensity to be violent to random members of the community, unless and until he admits what has happened with the mother there will be no benefit to X in me making an order that the father spend time with her.
How can I expect the mother to support and encourage a relationship between her child and the father when she was assaulted, demeaned and disrespected by him on a regular basis and the father flat out denies it?
How would the family unit cope or X cope if the relationship was forced and X found herself at odds with the beliefs and fears of the mother and her siblings?
The mother is doing a very good job parenting her three children at the moment. It is very important for the children that she feels safe and comfortable. The mother has had significant difficulties with her mental health in the past and has had at least one inpatient admission so she has really struggled with her mental health. I cannot afford to do anything which might jeopardise her capacity to care for her children.
I am not prepared in the circumstances of this case to override the mother’s wishes that no orders be made for the father to spend time with X. I would only be prepared to consider overriding her wishes where she had been the victim of serious family violence in very different circumstances, for example, a truly changed and remorseful father, which I do not have here.
It is always a loss for a child if they cannot know one of their parents but in the circumstances of this case I cannot be satisfied that it would not be in X’s best interests to spend time with the father and I intend to make the orders sought by the mother.
It will be no good the father coming back to this Court in six or 12 months and saying that he has successfully had treatment for his alcohol and violence issues and now wants an order that he be able to see X. Unless and until the father faces up to the way he has behaved to the mother and is able to do something to convince the mother that he is remorseful and respectful of her, I consider it very unlikely that he will be able to demonstrate that there is any value in X having a relationship with him.

The Independent Children’s Lawyer’s application for costs

The Independent Children’s Lawyer has made an application that the father pays the costs of and incidental to the involvement of the Independent Children’s Lawyer in these proceedings.
The mother is legally aided and I cannot make an order that she contribute to those costs.
The father’s financial circumstances are unclear. He is in receipt of Centrelink benefits but it seems from the family report that he is also receiving some quite substantial payments as a result of assisting with negotiations about (employment omitted) so it may be that he has some capacity to pay.
However I intend to order that the father spend no time with and have no communication with his daughter. This is justified in the circumstances of the case because I am satisfied the father was seriously violent to the mother but the outcome will be very disappointing for the father and very difficult for him to accept. I am not in those circumstances going to add to that by making an order that he pay costs to the Legal Aid Commission.

I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 7 October 2016

[2016] FCCA 2317

27 July 2016

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Family Law

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