Bayer & Imhoff

[2010] FamCA 532

FAMILY COURT OF AUSTRALIA

BAYER & IMHOFF [2010] FamCA 532

FAMILY LAW - CHILDREN - Parental responsibility - With whom a child lives or spends time - Family violence - Risk of harm - Severe family violence perpetrated by the father on the mother - Children witnessed family violence and father was also violent towards the children - Mother relocated to an undisclosed location - Orders made for the mother to have sole parental responsibility for the children and for the children to spend no time with the father

Family Law Act 1975 (Cth)

A & A (1998) 22 Fam LR 756
B & K [2001] FamCA 880
B & B [2003] FamCA 274
Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
H & R [2006] FamCA 878
Marriage of Blanch (1998) 24 Fam LR 325
Marriage of JG & BG (1994) 18 Fam LR 255
Marriage of Sedgley (1995) 19 Fam LR 363
Re Andrew (1996) 20 Fam LR 538
U v U (2002) 211 CLR 238
V & V [2001] FamCA 78

APPLICANT: Ms Bayer

RESPONDENT: Mr Imhoff

INDEPENDENT CHILDREN’S LAWYER: Ms Adams, Adams & Associates Solicitors

FILE NUMBER: NCC 579 of 2008

DATE DELIVERED: 2 July 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Parramatta

JUDGMENT OF: Justice Austin

HEARING DATE: 15, 16 and 17 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boyd

SOLICITOR FOR THE APPLICANT: Mr Predny, Fowler Predny Solicitors & Conveyancers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hollins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Adams, Adams & Associates Solicitors

Orders

1. All former parenting orders relating to the children Z, born … June 1997, Y, born … April 2000, and X, born … November 2002, (“the children”) are discharged.

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

3. The children shall live with mother.

4. Each of the parties is restrained from causing or permitting the children to spend any time with father.

5. Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day, and

   (b)By the mother promptly sending to the father:

   i)Written acknowledgement of receipt of the father’s written communication, and

   ii)Any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the father.

6. For the purposes of implementation of Order 5 hereof:

   (a)The mother shall, within 7 days hereof, obtain and thereafter retain a post office box to which the father may send written communication.

   (b)The mother shall, within a further 7 days, notify the father of the address of that post office box by sending written notification to his current residential address at ….

   (c)The father shall thereafter keep the mother informed in writing of the address to which mail directed by her to him may be sent.

7. The mother is restrained from causing or permitting the infliction of corporal punishment upon the children.

8. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

10. All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

11. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 579 of 2008

MS BAYER

Applicant

And

MR IMHOFF

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the 3 children born to the marriage of the applicant mother and respondent father.

2. Although the parties separated in February 2002 they continued to retain an association with one another, which was occasionally sexually intimate, until the father seriously assaulted the mother in February 2008. The mother then severed the relationship and has since secretly relocated with the children on two separate occasions.

3. As a consequence of the assault, the father was convicted and imprisoned, and interim parenting orders were made by this Court in March 2008 precluding any interaction between the children and the father. Those interim orders were endorsed in May, July, and November 2008, and so the children have not spent any time with the father since he was imprisoned in February 2008.

4. The father continues to live in Sydney. The mother and children now live in an undisclosed location, estimated at some 12 hours driving time from the father’s home.

5. The father wishes to resume his relationship with the children. Indeed, as the trial evolved, he proposed that following an introductory phase of some months duration the children should live for equal time in each household. The father was self-represented and he had not given much consideration to how such an arrangement would work, given the distance between the two households.

6. The mother contended that this was one of the rare cases encountered by the Court where the children’s best interests demanded an outcome that precluded any interaction between them and the father. She advocated for orders expressly providing that the children not spend any time with the father under any conditions, no matter how controlled.

7. Ultimately the mother enjoyed the support of the Independent Children’s Lawyer, and her case proved to be a persuasive one.

Background Facts

1. The father was born in Lebanon and emigrated to Australia with his family as a youth.

2. The parties commenced their relationship in or about 1995 and separated in approximately February 2002,[1] without ever marrying. The parties had been living as a family in Sydney and both parties continued to do so following separation, albeit in different households.

   [1] Mother’s affidavit filed 18 March 2009, par 2; Exhibit F2 page 1

3. The children remained living with the mother following separation. Despite their separation, the parties continued to see one another,[2] and the father interacted freely with the children.

   [2] Mother’s affidavit filed 18 March 2009, par 3

4. The continuing relationship between the parties was at times sexually intimate,[3] even though the father returned to Lebanon and married a Lebanese citizen in about 2004.[4] At the time of trial, the father was still married to that person, who now lives in Australia, but they do not live together. The father has two children with that woman.

   [3] Mother’s affidavit filed 18 March 2009, par 3

   [4] Mother’s affidavit filed 18 March 2009, pars 6-8

5. At some point between April and June 2007 the mother and children re-located their residence from Sydney to T, south of Newcastle.[5] The mother did so to avoid, as she perceived it, the harassment of the father.[6] Although there is no copy in evidence, an apprehended violence order was obtained against the father in favour of the mother at some point during 2006[7] or early 2007.[8]

   [5] Mother’s affidavit filed 18 March 2009, pars 9-10, 75

   [6] Mother’s affidavit filed 18 March 2009, par 9

   [7] Exhibit F2, page 7

   [8] Mother’s affidavit filed 18 March 2009, par 18

6. The father moved from Sydney and into the mother’s household at T for a brief period in late 2007.[9] The mother consented to that arrangement, albeit reluctantly.[10] When the father refused her subsequent requests to vacate the home the mother sought the assistance of police and the father was charged with a breach of the existing apprehended violence order.[11] The father’s criminal record[12] discloses that he was charged on 7 November 2007 with an offence of contravening the apprehended violence order, for which he was convicted on 5 December 2007. His sentence was deferred, subject to him entering into a bond for a period of 6 months, conditioned that he be of good behaviour and accept anger management counselling.

   [9] Mother’s affidavit filed 18 March 2009, pars 4, 11, 12, 54, 76; Exhibit F2, page 7

   [10] Mother’s affidavit filed 18 March 2009, par 11

   [11] Mother’s affidavit filed 18 March 2009, pars 14, 16

   [12] Exhibit M1

7. Following his removal from the mother’s household in November 2007 the father moved nearby to G[13] and then later returned to live in Sydney.[14]

   [13] Mother’s affidavit filed 18 March 2009, par 77

   [14] Mother’s affidavit filed 18 March 2009, par 14

8. On 23 February 2008 the father attended the mother’s home unannounced. They argued and the father ferociously bashed the mother. The father was charged with assaulting the mother, of which offence he was convicted, and for which offence he was sentenced to imprisonment for several months. Contemporaneously, an apprehended violence order was made in favour of the mother against the father on 29 April 2008 for a period of 12 months.[15]

   [15] Exhibit M4

9. That violent incident was the last straw for the mother. Shortly thereafter she commenced these proceedings on 5 March 2008, and on 12 March 2008 the Court made interim parenting orders, including the following:

   5.That these proceedings be adjourned to the Judicial Registrar’s Duty List at 10.00 am on 6 May 2008.

   6.That until 6.00 pm on 6 May 2008 the children shall reside with their mother and she shall have parental responsibility for them.

   7.That the children not spend time with their father until 6.00 pm on 6 May 2008.

   10.That the father complete an accredited anger management course and provide evidence of such completion to the mother’s solicitors upon completion.

10. The matter came back before the Court on 6 May 2008, at which time the following further interim orders were made:

    1. The proceedings are adjourned to the Judicial Registrar’s Duty List at 10:00 am on 21 July 2008.

    2. Orders which are paragraphs 6, 7, 8, 9 and 10 of the orders of 12 March 2008 continue until further order.

11. The matter again came back before the Court on 21 July 2008, at which time the following further order was made:

    5.Pending further order the children shall not spend time with their father.

12. Despite the restrictive terms of the interim orders of this Court, and also the apprehended violence order made by the NSW Local Court at Newcastle, the father continued to contact the mother by telephone following his release from prison at the completion of his sentence in May 2008 in an attempt to see the children.[16]

    [16] Mother’s affidavit filed 18 March 2009, pars 116-121

13. Although the mother and children had remained living at T after the incident on 23 February 2008, the mother had begun planning her relocation with the children so as to sever her contact with the father. She managed to secure alternate accommodation and the mother secretly moved with the children to an undisclosed location in August 2008.[17] She did not hear from the father after moving and changing her telephone number.[18]

    [17] Mother’s affidavit filed 18 March 2009, par 106

    [18] Mother’s affidavit filed 18 March 2009, par 121

14. The matter came back before the Court on 27 November 2008 at which time the following further interim orders were made with the consent of the parties and Independent Children’s Lawyer:

    1.1All previous orders be discharged.

    1.2The children [names and dates of birth] live with the mother.

    1.3The mother have sole parental responsibility for decisions regarding the children.

    1.4The mother be restrained from using physical violence to discipline the children.

    1.5Within fourteen (14) days the mother contact the Manager of the Child Dispute Services to seek a recommendation for an appropriate service provider to engage the children in therapeutic counselling to address their experiences of trauma.

    1.6The mother facilitate the children’s attendance for the counselling as recommended.

    1.7Within fourteen (14) days the mother contact the children’s treating medical practitioner to obtain a referral for [X] to undergo a hearing test.

    1.8Within fourteen (14) days the mother contact Relationships Australia or similar organisation to enrol and attend in the next available parenting course.

    1.9The father not spend time with or communicate with the children.

15. The effect of the interim parenting orders made in March, May, July, and November 2008 was to preclude any time being spent by the children with the father. It is common ground that the children have not spent any time with the father since the violent event on 23 February 2008.

16. In March 2009 the mother moved again with the children to another undisclosed location. This time the move was away from the T area entirely.[19] During the trial it was disclosed that the mother’s residence is now approximately 12 hours driving time from the residence of the father, but other than those details, the residential address of the mother is unknown to the Court and the father.

    [19] Mother’s affidavit filed 15 June 2010, par 2

17. The mother commenced a new relationship in December 2008 and married her new partner in April 2010.[20]

    [20] Mother’s affidavit filed 15 June 2010, par 4

18. So far as the evidence goes, the father has not re-partnered and lives alone in Sydney, although he still has contact with his estranged Lebanese wife, who now also lives in Sydney with their two children. The father asserts that he currently sees those two young children once or twice per week.

19. The matter was initially fixed for final hearing in May 2009, but the father successfully applied to vacate that hearing because he had recently undergone surgery for a head injury, which he believed impaired his ability to deal with the litigation at that time.

20. In August 2009 the venue of the litigation was changed from Newcastle to Parramatta because of the father’s medical condition and his asserted inability to travel distances from his home in Sydney.

21. The matter therefore came on for final hearing before the Court at Parramatta on 15 June 2010.

Proposal and Evidence of the Applicant Mother

1. The mother filed her Initiating Application on 5 March 2008, when she was still living at T, and has never since amended it. At that time she proposed, on an interim basis, that the children not spend any time with the father and not communicate with him. Her final parenting proposal was that, subject to successful completion of accredited anger management and post-separation parenting courses by the father, the children spend supervised time with him at a contact centre in the Newcastle region.

2. Since at least March 2009 the final orders first proposed by the mother have become virtually untenable because of her relocation with the children to such a distant place.

3. Following the release of the Family Report dated 28 October 2008, which recommended that the children not spend any time and that they not communicate with the father, the mother has adopted that position.

4. In support of her proposal the mother read the following affidavits:

   a)Affidavit of the mother filed on 18 March 2009.

   b)Parenting Questionnaire of the mother filed on 27 April 2010.

   c)Affidavit of the mother filed in Court with leave on 15 June 2010.

   d)Affidavit of Y Bayer filed on 18 March 2009.

   e)Affidavit of F Bayer filed on 7 June 2010.

   f)Affidavit of “Jarrod Smith” (which was a pseudonym) filed in Court with leave on 15 June 2010.

Proposal and Evidence of the Respondent Father

1. The father filed his Response in the proceedings on 29 April 2008 and has never since amended it. In that document he acceded to the orders sought by the mother that the children live with her and that parental responsibility for them should be allocated to her solely, but he sought that the children spend time with him each weekend and for half of all school holidays.

2. In a Parenting Questionnaire filed by the father on 22 April 2010 the father proposed orders providing for “50% of the time with me in a shared care arrangement”.

3. The father did not propose either of those sets of orders at trial. Instead, when questioned, he proposed that:

   a)He and the mother have equal shared parental responsibility for the children.

   b)The children live with the mother.

   c)The children spend time with him each alternate weekend and for half of all school holidays.

   d)The mother notify him of significant medical events relating to the children.

4. As the trial progressed it became apparent from comments made by the father, both in evidence and submissions, that the regime he proposed for the children to spend time with him was only a temporary one. He expected that after the elapse of a period of months the children would live for equal time in each household. The father vacillated as to whether the regime of equal time should be invoked following a period of 6 or 12 months of the children spending substantial and significant time with him.

5. In support of his proposal the father adduced in evidence, pursuant to procedural orders made on 1 and 10 June 2010:

   a)Statement of evidence of the father dated 14 June 2010.[21]

   b)Statement of evidence of the father’s sister, N Imhoff.[22]

   c)        Statement of evidence of the father’s sister, R Imhoff.[23]

   d)        Statement of evidence of the father’s mother, S Imhoff.[24]

   [21] Exhibit F2

   [22] Exhibit F6

   [23] Exhibit F7

   [24] Exhibit F8

Proposal of the Independent Children’s Lawyer

1. The Independent Children’s Lawyer did not begin the trial with any settled position. However, following completion of the evidence, the Independent Children’s Lawyer submitted for an outcome identical to the one proposed by the mother, consistently with the evidence of the Family Consultant.

Evidence of the Family Consultant

1. The Family Consultant prepared a Family Report dated 28 October 2008, following her consultations with the parties and the children in September 2008.

2. Following the father’s successful application to vacate the trial date in Newcastle in May 2009, no order was made requiring the Family Consultant to update the Family Report. Consequently, when the matter came on for final hearing at Parramatta in June 2010, the Family Consultant had not seen the parties or the children for some 20 months. She was however furnished with the affidavits and statements upon which the parties relied at the trial, and that material was read by the Family Consultant in advance of her cross examination.

3. No party sought any adjournment of the hearing to permit update of the Family Report. It was generally considered unnecessary. The mother adduced some more recent evidence about the views of the children, and the Independent Children’s Lawyer submitted that the children had recently expressed to her a desire not to have their views made known to the Court. The Independent Children’s Lawyer submitted, without contradiction, that any order for an update Family Report, at least in so far as it dealt with the children’s current views, would be futile because the children did not wish to express any view to the Court.

4. Acknowledging that she had not seen the parties and the children for quite some while, and had only read the evidence upon which they each relied, the Family Consultant endorsed the contents of the Family Report. She was cross examined about the report and some aspects of the evidence adduced by the parties at the hearing.

1. The Family Consultant expressed clear opinions and recommendations in her Family Report. The children were then still markedly traumatised by the father’s assault upon the mother, which had occurred over 6 months before the interviews.[25] It was of concern to the Family Consultant that the father demonstrated no empathy or understanding of, nor insight into, the effects upon the children of his violent conduct towards the mother.[26] The Family Consultant was pessimistic about the prospect of the father’s reform.[27] The Family Consultant considered that the children were at heightened risk of emotional harm through exposure to family violence committed by the father,[28] and also at unacceptable risk of physical harm at the hands of the father.[29] She recommended that the children spend no time with the father.[30]

   [25] Family Report, par 117

   [26] Family Report, par 127

   [27] Family Report, par 128-131

   [28] Family Report, pars 134, 136

   [29] Family Report, par 135

   [30] Family Report, par 140

2. The oral evidence of the Family Consultant was confirmatory of her earlier opinions and recommendations.

3. The Family Consultant was informed of the father’s current view that the children would not have been scared of him for any more than a few weeks after the violent incident in February 2008. Given that the Family Consultant made observations of the children in September 2008 that were directly contradictory to the father’s belief, she concluded that the father’s lack of empathy and insight had not improved despite the passage of time.

4. The Family Consultant articulated the balancing exercise involved in weighing the risks to, and benefits of, the children spending time with the father. The Family Consultant believed that the risks outweighed the benefits.

5. The Family Consultant was informed of the mother’s wish not to have any contact at all with the father, and her belief that she could not bring herself to encourage the children to interact with the father in the future. In those circumstances, the Family Consultant did not believe that the children would benefit from being forced to spend time with the father, and the mother being compelled to implement it. She considered that outcome would potentially adversely affect the mother’s parenting capacity, with deleterious consequences for the children.

6. The Family Consultant also considered that the children’s fears of the father remained an impediment to their enjoyment of any time spent with the father.

7. Even imposing supervision upon the time spent by the children with the father would not sufficiently alleviate the risks because the children would be constantly anxious about disclosing details in casual conversation that would betray the mother’s wish for secrecy about their location. It would be difficult, if not impossible, for the children to converse with the father about their daily lives unless they divulged identifying details about their home, schools, friends, sporting teams, and the like. The Family Consultant thought that the children’s perceived need for vigilance so as to avoid divulging those details would be a constant source of worry for them.

8. It could not be said that those concerns are unfounded. There is evidence that the father has attended the mother’s former church making inquiries about her in an agitated state.[31] In addition, the father said in cross examination that he did not know whether he would go looking for the children in the event of an order precluding them spending time with him. He said that he would be very distressed by such an order. It was plain that the father would also be very distressed by any order to the effect that the children spend only supervised time with him intermittently. Such a regime does not accord with his idea about the role he should play in their lives as a father.

   [31] Mother’s parenting questionnaire q.17

9. The Court was left with the impression from the father’s evidence that he did not know what his response would be to orders that did not generally reflect his opinion of proper parenting orders – anything might happen. It was just as likely that he would search for, find, and abscond with the children as it was that he would observe and respect the Court’s orders. The Family Consultant observed that the father had a history of ignoring Court orders,[32] so it behoves the Court to tread carefully.

   [32] Family Report, par 139

10. None of the Family Consultant’s core opinions or recommendations were challenged in cross examination. Her oral evidence only served to corroborate the contents of her Family Report. I generally accept the evidence of the Family Consultant, which was rational and considered. Even though her recommendation was to preclude the children from spending time with the father, the recommendation was explained and justified. Her consideration of that issue seemed balanced.

11. Although the Family Consultant also recommended that the children should not communicate in any form with the father,[33] that is not a recommendation that I have ultimately accepted, for reasons which are later discussed.

    [33] Family Report, par 140

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon 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 properly 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 with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).

5. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Bests Interests of the Children – Primary Considerations

Section 60CC(2)(a)

1. The children undoubtedly have a meaningful relationship with the mother. Not even the father doubts that. The individual relationships of the children with the mother are important, valuable, and significant to them. It is essential that those relationships are not disturbed.

2. By contrast, the relationships of the children with the father have not been meaningful for them – at least not for the last few years.

3. I accept the evidence of the mother that the children were expressing wishes to her that the father not live with them in late 2007 when the father moved into the mother’s home at T.[34] There is also evidence, which I accept, that from early 2007 the children were reluctant to spend time with the father away from the mother,[35] and sometimes reluctant even to see him at all.[36] Since the father’s assault of the mother in February 2008 the children have even expressed reluctance to communicate with the father.[37] They have spent no time with him since then.

   [34] Mother’s affidavit filed 18 March 2009, pars 13, 91

   [35] Mother’s affidavit filed 18 March 2009, pars 41, 48, 51, 90

   [36] Mother’s affidavits filed 18 March 2009, pars 49, 78, 123; filed 15 June 2010, par 15

   [37] Mother’s affidavit filed 18 March 2009, pars 121-122

4. In September 2008 the children were interviewed by the Family Consultant. It was clear to her that the children’s relationships with the father had deteriorated. Z said that he had not really enjoyed spending time with the father for some time.[38] He was conscious that the mother and children had moved to T from Sydney to get away from the father.[39] Y explained his feelings to the Family Consultant in a way that vividly demonstrates the anxiety he feels about the father and the prospect of seeing him.[40] Although X’s feelings about the father were more equivocal than those of her older brothers, she was still troubled by the father.[41] The Family Consultant was left in no doubt that the views expressed to her by the children were genuine.

   [38] Family Report, par 64

   [39] Family Report, par 67

   [40] Family Report, pars 77, 80, 81

   [41] Family Report, par 96

5. The evidence proves that the relationship between each child and the father has corroded, albeit to a lesser extent for X. Nevertheless, there is little doubt that the relationships that they each have with the father are far less meaningful to them than the relationships that they each enjoy with the mother.

6. Consequently, there are really no meaningful relationships between the children and the father to preserve. The real question is whether orders should be made to enable the children to recover the relationships they previously had with the father. That question is answered by addressing the balancing exercise articulated by the Family Consultant.

7. The High Court has recognised as self-evidently true (see U v U (2002) 211 CLR 238 at 285-286) that, apart from cases of abusive relationships, children benefit from the development of good relationships with both their parents. The need to promote prospective meaningful relationships between the children and the father, as a deemed advantage to the children, must be balanced against the disadvantages such a strategy would likely bring. The risk posed to the children by the father springs from his long history of family violence, to which it is necessary to now turn.

Section 60CC(2)(b)

1. The evidence demonstrates an appalling record of “family violence”, as defined in the Act, perpetrated by the father upon the mother. It is also abundantly clear from the evidence that the children have been exposed to that violence, and that they have suffered considerable psychological harm as a consequence.

2. Z is scared of the father,[42] and resentful of his behaviour.[43] He is also frightened of being abducted by the father.[44] Y is shocked by the father’s behaviour,[45] and is afraid that the father will act violently towards the mother again in the future.[46] Like Z, Y is worried that the father will abduct him.[47] His worry is such that he wants the mother to acquire a new car that will not be recognised by the father.[48] Like her brothers, X is disturbed by the violence she has witnessed, and constantly worries that it will happen again.[49]

   [42] Family Report, pars 65, 67, 68, 69

   [43] Family Report, par 66

   [44] Family Report, pars 69-70

   [45] Family Report, par 78

   [46] Family Report, pars 80, 85

   [47] Family Report, pars 80-81

   [48] Family Report, par 84

   [49] Family Report, pars 95-97

3. The Family Consultant considered that the children “continue to present in a hyper aroused state with the persistent expectation of danger (hypervigilance), and they are fearful, anxious, and worried.”[50]

   [50] Family Report, par 117

4. In the face of compelling evidence, the father disavows the cogency of the evidence and denies that he is a violent person. The father, even now, asserts that there were only ever two occasions upon which he was violent.[51] The first of those admitted violent incidents occurred in 2005 when the father grasped the mother in a headlock and held a knife to her.[52] The second of those violent incidents occurred in February 2008, when the mother was hospitalised with her injuries caused by the father.[53]

   [51] Family Report, pars 123, 125

   [52] Family Report, pars 35, 38

   [53] Family Report, par 45

5. The full extent of the father’s violent history is discussed under s 60CC(3)(j) of the Act. It is far more extensive than the father admits. The father is either in denial or has an astonishing lack of insight into the ramifications of his behaviour. It must be one or the other, and each is as alarming as the other.

6. When speaking with the Family Consultant about family violence, the father was dismissive of past incidents when either the police were not involved, or even if involved, no prosecution resulted.[54] He also minimised the severity of aggressive confrontations,[55] and deflected blame for his conduct, attributing fault to the mother[56] and/or the influence upon him of steroids or medications.[57] He asserted that the children would have been relatively unaffected by events between he and the mother because they did not see what occurred.[58]

   [54] Family Report, pars 37, 44

   [55] Family Report, par 46

   [56] Family Report, pars 45, 47, 50

   [57] Family Report, pars 38, 39, 52

   [58] Family Report, par 48

7. Despite the passage of nearly two years since the interview with the Family Consultant, the father’s attitudes have not changed. His oral evidence was identical in tone to his comments to the Family Consultant. He has not acquired any insight, in the interim period, into why the Court had ordered on several occasions during 2008 that the children should spend no time with him. The father had no capacity for introspection.

8. The father continued to blame his use of steroids for the violent way in which he reacted to the mother at the time of the incident in 2005.[59] In respect of the incident in 2008 he says that the mother argued with him over the children and that she came at him with a fork which caused him to “snap” and to start hitting the mother “without noticing how bad I was hitting her until [the eldest son] came in and started to scream”.[60]

   [59] Exhibit F2, page 6

   [60] Exhibit F2, page 8

9. During his cross examination the father said words to the effect of “I was never violent – a violent person is one that does something every day”. In his final submissions the father said words to the effect of “I fully don’t agree that I am an abusive man”. The father rejected the Family Consultant’s opinion that the children were seriously traumatised by the incident between the parties in February 2008,[61] saying words to the effect of “the problem was between me and [the mother], not me and the kids.”

   [61] Family Report, par 117

10. There is no need to baulk at attributing proper weight to the evidence of the father. The father said words to the effect of “I now think about things before I say it.” His evidence must therefore be regarded as considered and thoughtful. The father believes that, because he has undertaken anger management counselling and consulted a “psychiatrist”, he is much more in control. Although the father may believe that, I do not accept it to be the fact. Analysis of his violent history and his current attitudes suggest that the father is deluded, which means that he continues to pose the same level of danger to the children now as he ever did.

11. It is true that the father did complete an anger management course. He did not do so in compliance with the condition of his good behaviour bond imposed in December 2007 for the offence of breaching the apprehended violence order. He alleges, both in evidence and to the Family Consultant,[62] that the NSW Probation and Parole Service “brushed him off” and told him that he need not undertake the counselling. The anger management counselling was undertaken by the father in October 2008, presumably in satisfaction of the orders made by this Court on 12 March 2008[63]. His certificate for completion of the course is in evidence.[64] The father says that the course was completed across a single weekend.

    [62] Family Report, par 39

    [63] Order 10

    [64] Exhibit F4

12. It is also true that the father has undertaken some counselling, but with a psychologist rather than a psychiatrist. That counselling began in October 2009. The father tendered a letter dated 12 February 2010 written by the psychologist.[65] The letter does not disclose whether the counselling continues, and if not, when it ceased. Nor does it disclose the number of sessions in which the father participated. Irrespective, the psychologist said that the father was suffering from “severe depression”, the reason for which was “directly linked” to the father not being able to see the children. The father was apparently unable to “console himself that his children’s welfare is not in jeopardy”, which is somewhat surprising given that the father raised no such concern at the trial and adopted a position that the children should remain living with the mother. Even more surprisingly, in the absence of any neurological expertise to say so, the psychologist says that the stressors that the father has endured have “resulted in [the father] needing a brain operation”, which operation the psychologist again opines “can be directly attributed to the loss of contact with his children”. No doubt through the expertise of the psychologist, the father apparently “made some remarkable progress in his recovery” in the period between commencement of his therapy in October 2009 and the time the letter was written in February 2010, such that fresh testing revealed that the father’s scores are “now within the normal range”. The psychologist is seemingly prepared to accept without qualification the father’s contention that his assault of the mother in 2005, long before the psychologist had anything to do with the father, was caused by the father being prescribed high doses of tramadole for his stomach pain. The psychologist naively believes that such a bald proposition can be “verified by court documents and specialist reports”, none of which were adduced in evidence by the father before this Court.

    [65] Exhibit F5

13. There are obvious limitations to the evidence of the psychologist. Because the father simply tendered her letter, rather than file an affidavit to which the psychologist deposed, the psychologist has not been tested in cross examination. There is no indication that the psychologist was appraised of all of the evidence placed before the Court. In fact, I infer to the contrary because of the absence of mention of it in the letter. Despite writing the letter for use in legal proceedings, there is no indication in the psychologist’s letter that she has even the slightest familiarity with the obligation of impartiality cast upon expert witnesses. There is no compliance with Division 15.5.5 of the Family Law Rules. The strength of the evidence is considerably weakened and I do not uncritically accept it, even in the absence of countervailing psychological evidence.

14. It would be facile to repose such weight in the untested opinions of the psychologist, and the father’s completion of an anger management course over merely two days, as would be necessary to justify a conclusion that the father’s long-standing and entrenched attitudes about his position of dominance over the mother and children, and his entitlement to control over them, have been moderated to anywhere near the extent necessary to warrant the father’s further involvement in their lives. That conclusion is consistent with the tenor of the evidence given by the Family Consultant in cross examination.

1. I accept the opinion of the Family Consultant, expressed both in cross examination and in the Family Report,[66] that the father poses an unacceptable risk of emotional harm to the children. The Family Consultant’s recommendation that the children not spend any time with the father[67] is a manifestation of that opinion. Although the father asserts that he would not be violent towards the mother in the future,[68] the Court can have little confidence that that is correct, even if the father genuinely believes it.

   [66] Family Report pars 136-137

   [67] Family Report, par 140

   [68] Family Report, par 52

2. The Court has long accepted as correct that family violence has a pervasive effect upon children, even if they are not directly involved as a victim of, or witness to, violent conduct. It is wrong to assume that family violence can only be relevant to parenting proceedings if it is directed at the children or takes place in their presence. Violence associated with a pattern of dominance by one parent over another, of which the children are aware, is particularly insidious. Children who grow up in such a climate of violence and dominance are exposed to an unacceptable model of family relationships. They can suffer insecurity, fear, unhappiness, anxiety, and hypervigilance from witnessing abusive behaviour by a parent, which is damaging and threatens their emotional development (see Marriage of JG & BG (1994) 18 Fam LR 255 at 261; Marriage of Blanch (1998) 24 Fam LR 325 at 333-336; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [33-37).

3. The risk to the children in this case is not confined to the risk of emotional harm. The risk extends to physical harm. The children have been the subject of physical abuse or discipline at the hands of both parties.[69] The nature of the discipline reported by the children reflects poorly upon both parties. Although the mother does not concede that she has physically chastised the children,[70] I prefer to accept the comments made by the children to the Family Consultant as accurate. I agree with the opinion of the Family Consultant that such conduct is concerning.[71]

   [69] Family Report, pars 82, 93

   [70] Mother’s affidavit filed 18 March 2009, par 81

   [71] Family Report, pars 133-134

4. Although the mother may be regarded as having abused the children by reason of such physical discipline, the abuse is not such as to warrant orders removing the children from the care of the mother. It does however justify the making of an injunctive order that restrains the mother from administering physical discipline to the children. The Family Consultant agrees.[72]

   [72] Family Report, par 143

5. The situation with respect to the father is more serious. The evidence of the mother, which I accept, indicates that the father’s past abuse of the children has occasionally gone well beyond what could legitimately be regarded as proper punishment or discipline. In 2004 the father grabbed Z at the back of his head and pushed his head downwards causing the child’s face to come into contact with a hard object, resulting in facial injury.[73] I do not accept the father’s evidence that that incident was an accident. In January 2007 Z reported to the mother that the father had pushed him face-first into a wall and then kicked him.[74] Z much later reported the same experience to the mother’s husband.[75] In December 2007 the father grabbed Y on the right cheek and twisted it so as to cause bruising.[76] The mother’s allegations are corroborated by the children.[77] The mother’s attempts to encourage the father to desist from his authoritarian behaviour towards the children have not worked.[78]

   [73] Mother’s affidavit filed 18 March 2009, par 86

   [74] Mother’s affidavit filed 18 March 2009, par 42

   [75] Affidavit of Jarrod Smith filed 15 June 2010, par 19

   [76] Mother’s affidavit filed 18 March 209, par 88

   [77] Family Report, pars 65, 94

   [78] Mother’s affidavit filed 18 March 2009, par 97

6. The father asserts that he has disciplined the children in a proper manner. He says that he only needs to raise his voice and the children then do as they are told.[79] I consider it more likely that the children reacted compliantly to a raised voice by the father because they well knew the type of aggressive and violent conduct of which he is capable should they not comply with his demands and directions. I accept the opinion of the Family Consultant that the father represents an unacceptable risk of physical harm to the children.[80]

   [79] Exhibit F2, page 5

   [80] Family Report, par 135

7. The children’s feelings of intimidation by the father, and their observations of the father’s violent conduct towards the mother, have engendered in them a genuine fear of the father. They are deserving of protection from him, both physically and emotionally. Despite her best efforts, the mother was unable to achieve such protection for them after the separation in 2002. It required the father’s arrest in February 2008, this Court’s intervention with interim parenting orders in March 2008, and the mother’s relocation in August 2008 to achieve the children’s safety. Final orders need to be made to preserve that situation. The need to protect the children from the abusive relationship with the father is a consideration that outweighs any benefit that the children would experience from attempts to rejuvenate their corroded relationships with him.

Best Interests of the Children – Additional Considerations

Section 60CC(3)(a)

1. Z is now 13 years of age. He is of sufficient maturity that considerable weight must be attributed to his views. He told the Family Consultant clearly that he did not wish to spend time with the father.[81] He is profoundly frightened of the father and of the prospect of being abducted by him.

   [81] Family Report, par 71

2. Y is now 10 years of age. He does not have the maturity of his older brother. In addition, his intellectual capacity for his age is not advanced. Much less weight should be attributed to his views as a consequence, but his views are not valueless. His biggest wish is that “Dad doesn’t exist”,[82] and he would be happy if he did not have to see the father again.[83] He wanted the Court to know that he wanted the father to “stay away” from them.[84] He too is profoundly frightened of the father and what he may do if he re-enters their lives.

   [82] Family Report, par 83

   [83] Family Report, par 84

   [84] Family Report, par 86

3. X is only 7 years of age. She is too young to repose any weight in her views. Although extremely troubled by the violence she witnessed being committed by the father upon the mother in February 2008,[85] she does not affect quite the same level of concern about the father as her older brothers. Although she equivocates, she would still feel “bad” if she had to see the father again.[86]

   [85] Family Report, pars 91, 92, 95, 96, 97

   [86] Family Report, par 96

4. The mother asserts, and I accept, that the children still now express the same fears and concerns about the father that they each expressed to the Family Consultant in September 2008.[87] She is corroborated by her husband.[88]

   [87] Mother’s affidavit filed 15 June 2010, pars 15-16

   [88] Affidavit of Jarrod Smith filed 15 June 2010, par 21

5. The mother gave evidence that the children had spoken with the Independent Children’s Lawyer in the week before the commencement of the trial. She said that Z in particular was upset following the telephone call. He was disturbed at the prospect of having to resume interaction with the father. Even seeing members of the father’s family frightened him. He spontaneously related to the mother his memory of having witnessed a paternal uncle striking a female cousin with a belt. I impute that the children’s concerns remain vivid.

6. The father was asked in evidence about the negative views of him expressed by the children. He did not contend that the children’s expressed views were fabrications contrived by the Family Consultant and the mother. Rather, he accepted that such comments had been made by the children, and asserted that the mother had “sponged” the minds of the children. It was uniformly accepted that the father meant that the mother had aligned the children against him, although he did not ever articulate a belief about whether she had done so deliberately or inadvertently.

7. According to the evidence adduced by the father, the only basis of his belief that the mother was aligning the children against him was his allegation that the mother had said to him in or about early 2006 words to the effect of “If you are not with me, you won’t see the kids”. He seemed to believe that, since he was no longer in a romantic relationship with the mother, she had made good on her threat by turning the children against him and secretly relocating. I do not accept the father’s evidence or the accuracy of his belief. The mother denied saying any such thing to the father. I accept her evidence because it is logical. It was the father who wanted, and the mother who resisted, reconciliation following their separation in 2002. The words attributed by the father to the mother are inconsistent with her opposition to reconciliation.

8. Even if the mother did say words to that effect to the father, she did not make good on the threat. It was not until February 2008 that the mother prevented the children from seeing the father, and that was because of his bashing of her, not because the father refused to reconcile with her. Reconciliation was the last thing the mother wanted at that point in time.

9. The father could point to no other evidence that would support his belief that the children were unfairly aligned against him. It really was mere conjecture on his part. In fact, there was evidence that the mother had encouraged the children’s relationship with the father. Tendered in evidence was a birthday card sent by the children to the father.[89] Even thought the card is not dated, the father said that he had received the card from the children for his birthday in August 2008. I impute that the mother arranged for the card to be sent to the father on the children’s behalf. That is not the act of a mother aligning children against their father. Although the mother was then making plans to secretly relocate with the children for their safety, the sending of the card tends to demonstrate that the mother was not maliciously motivated.

   [89] Exhibit F3

10. The Family Consultant did not believe that the children had been aligned against the father. Her opinion was that the views expressed by the children were developed through their own experiences of the father and were authentic.

Section 60CC(3)(b)

1. The nature of the children’s relationships with the parties have already been addressed as a primary consideration under s 60CC(2)(a) of the Act.

2. The children enjoy a happy relationship with the mother’s husband and their step-brother, with whom they now live.[90]

   [90] Mother’s affidavit filed 15 June 2010, pars 7-8, 14

3. The children also enjoy a loving relationship with their older maternal half-sister, even though they do not now live with her. The same may be said of the relationships between the children and the maternal grandparents.[91]

   [91] Mother’s affidavit filed 15 June 2010, par 13

4. Because of the embargo upon interaction between the children and the father since interim orders were made in March 2008, the children have not seen members of the extended paternal family either. Although there was nothing to prevent that from occurring, any interaction with members of the paternal family after the mother’s secretive relocation in August 2008 was liable to reveal details of the mother’s residence. The relationships previously enjoyed by the children with their paternal cousins, about which evidence was given by the father’s sisters,[92] have therefore been eradicated. That is a matter of some, but not considerable, weight. It was noted as an issue by the Family Consultant.[93]

   [92] Exhibits F6, F7

   [93] Family Report, par 138

Section 60CC(3)(c)

1. The mother does not possess a willingness to facilitate and encourage a close and continuing relationship between the children and the father. That consideration carries much less weight in the circumstances of this case than it ordinarily would because the preponderance of evidence suggests that there ought not be a close and continuing relationship between the children and the father in the future. I accept the evidence which demonstrates that the children are at risk of psychological and physical harm if they continue their association with the father.

Section 60CC(3)(d)

1. The orders made preserve the status quo in the parenting arrangement that has now existed for more than two years since early 2008. It is an arrangement that the children wish to retain. Accordingly, there are no changes by which the children will be adversely affected.

Section 60CC(3)(e)

1. Since the orders mandate that the children should spend no time with the father, there will be no practical difficulty or expense in implementing them.

Section 60CC(3)(f)

1. The mother has the capacity to provide for all of the needs of the children, including their emotional and intellectual needs. That is not the subject of any contest.

2. For reasons already explained, and which need not be repeated, the father does not possess the capacity to provide for the children’s emotional needs.

Section 60CC(3)(g)

1. The father is of Lebanese extraction. He mentioned during the trial that the children are deprived of his cultural heritage when they have no interaction with him. That may be so, but the father has not adduced any evidence that demonstrates that the children were inculcated with any Lebanese cultural experiences, either during the parties’ cohabitation, or during the period of six years that elapsed after separation until the violent incident in February 2008 when the children ceased seeing him. If nothing was done by the father about imparting his cultural history and traditions to the children in the years that he interacted with them freely, I infer that that would not likely occur in the future, in which event the children are not deprived of any advantage.

2. Neither is there any real religious issue in the case. The mother practices her religion as a Seventh Day Adventist. The father is a non-practicing Muslim and expresses no wish for the children to be brought up with that faith. In his statement of evidence the father states:[94]

   …I myself am a non practice muslim so it didn’t bother me that [the mother] was going to church what did bother me was the day they went it was a Saturday and that’s the day me and the kids would go play soccer (sic).

   [94] Exhibit F2, page 6

3. The father has no objection to the children being raised as Seventh Day Adventists, he simply dislikes the religious practice of the mother’s faith, which requires observance of the Sabbath from Friday evening until Saturday evening. That prevents the children playing Saturday sport and watching their usual television programs for 24 hours. Notwithstanding, the father does not petition the Court for any order precluding the children’s involvement in that religion. Given that the children will live with the mother, as they have always done, and will not spend time with the father, as they have not done for some time, the matter of religion will be left to the discretion of the mother. The religious practices of the children should reflect those of the mother rather than the father. Religious instruction will fall within the mother’s sole parental responsibility for the children.

4. There are no other issues relating to the maturity, sex, lifestyle, or background of the parties or children that are material to the outcome of the case.

Section 60CC(3)(h)

1. Neither party identifies themselves or the children as Indigenous Australian.

Section 60CC(3)(i)

1. The mother generally demonstrates a proper attitude to the children and the responsibilities of parenthood, whereas the father does not.

2. Under extraordinarily trying circumstances the mother has managed to raise the children with little valuable assistance from the father. Apart from the fears the children each have about the father, they are generally well adjusted children. They have each developed within normal parameters and perform satisfactorily at school.[95]

   [95] Family Report, pars 59-62, 72-74, 87-89; Exhibit ICL1

3. The mother is, however, liable to mild criticism over her compliance with Court orders and her implementation of recommendations made by the Family Consultant.

4. On 27 November 2008 the mother was ordered to facilitate the children’s attendance at counselling,[96] as had been recommended in the Family Report released in October 2008.[97] The mother says that she had already arranged for the children’s attendance at counselling with a child psychologist in T after the incident in February 2008 on about half a dozen occasions, of which the Family Consultant was seemingly aware.[98] The Family Consultant must therefore have been recommending additional counselling for the children. The mother’s supposed compliance with the Court’s order made in November 2008 was confined to merely allowing her new mother-in-law, who allegedly holds some form of degree in counselling, to “informally” counsel the children whenever she happened to visit the household. Given that the mother did not even meet her new husband until December 2008, and did not begin cohabitation with him until April 2010,[99] the evidence is threadbare about the extent and value of the further counselling afforded to the children. I impute that the alleged “informal” counselling falls far short of the sort of counselling intended by the Family Consultant.

   [96] Order 6

   [97] Family Report, par 141

   [98] Family Report, par 119

   [99] Mother’s affidavit filed 15 June 2010, par 4

5. The Family Consultant also recommended that the mother engage in therapeutic counselling,[100] because her past experiences were likely to have influenced the quality of her parenting capacity.[101] Although there was no order that she do so, the mother did not participate in any counselling. She ignored the Family Consultant’s recommendation. Even though the mother did have some counselling shortly after the assault in February 2008, she alleged that the support of family and friends was of more value to her than the counselling she had previously experienced. The problem with making such a judgment is that, unlike the Family Consultant, she does not have the expertise to objectively appraise the benefits of proper counselling. It may be that her current inability to cope with any interaction with the father may have been moderated by professional counselling. The mother’s evidence demonstrated that she is unable to appreciate that her intense fear and loathing of the father may be serving to reinforce the children’s fear of the father, even if she does not consciously impress her feelings upon the children.

   [100] Family Report, par 142

   [101] Family Report, par 120

6. The Family Consultant also recommended that the mother undertake a post-separation parenting course.[102] The mother admits that she did not do so. She made inquiries at Relationships Australia but did not commence the course, presumably because it suited her not to. Even if the mother’s relocation from the area made her participation more inconvenient, she made no further inquiries about participation in such a course in proximity to her new household.

   [102] Family Report, par 144

7. The father’s derelict attitude to parenthood is more pronounced than the mother’s and is manifest in numerous ways. His violent and abusive treatment of the mother and his insensitivity to the children’s needs, which have already been addressed, are the most obvious.

8. The father’s failure to pay regular child support to the mother for the maintenance of the children is another. The father asserts that he often gave the mother money for the children, but that proves nothing other than the father’s opinion. He gave no evidence of how much money he gave to the mother, nor about how regularly he gave it to her. I accept the evidence of the mother that the father has demanded money from her and pawned the children’s toys to raise money for himself,[103] and that he has used the payment of money to the mother as a bribe or inducement for her to permit the children to see him.[104] The evidence is that the father now pays child support of $17 per month from his Centrelink benefit.[105]

   [103] Mother’s affidavit filed 18 March 2009, par 95

   [104] Mother’s affidavit filed 18 March 2009, par 103

   [105] Mother’s parenting questionnaire q.41

1. The father has humiliated the children by the manner in which he has parented them. He has forced the children to kiss his and one another’s feet as a form of punishment.[106] His disciplinary practices are inconsistent with a proper role model for the children. The Family Consultant said in cross examination that she considered such conduct to amount to emotional abuse.

   [106] Mother’s affidavit filed 18 March 2009, par 84; Affidavit of Y Bayer, par 34

2. Seemingly oblivious to the fact that he and the mother had separated years before in 2002, the father complained that the mother was devoted to her church and was not giving any time to him. He was annoyed by that. He therefore left Australia for Lebanon in 2004 with the objective of finding a wife. The father says that he stayed away from the mother and the children for 3 months. He does not seem to have considered what effect that may have had on his young children. Although the father achieved his objective, and married in Lebanon, he returned to Australia and resumed interaction with the mother and children. He said that he did not love the Lebanese wife he had just married.

3. Upon his return to Australia the father changed his surname by deed poll to “Imhoff”. He changed his surname at the same time that he changed his first name, so as to avoid undue interest from customs and immigration authorities when he travelled internationally. The father gave no thought to the fact that he would thereafter bear a different, albeit similar, surname from the children. He gave no thought as to how the children might react to that, even though he contends that the children love him dearly and identify with him. One might have thought that an insightful father would have given consideration to those issues before making a decision about a name change.

4. During the trial it was revealed for the first time that the father has three other children, whom he has treated, or intends to treat, quite disparately from the children who are the subject of these proceedings.

5. The father’s eldest son was only about 3 months of age at the time the father met and formed a relationship with the mother. There is no evidence that the mother was even aware of that child until the trial. In any event, the father stated that he simply ceased all interaction with that child once he formed a relationship with the mother. It is as if that child no longer exists for the father, although the father did say that he was aware that that child was adopted by the person who later became the partner of that child’s mother. The father’s abandonment of that child demonstrates an emphatic lack of parental responsibility on his part.

6. The father’s two youngest children live with his estranged Lebanese wife, who is the mother of both those children. The oldest of those children, A, was born in 2006. The father could not remember his birth date. The youngest of those two children, B, was born in 2009. The father could not remember his birth date either. The father’s wife conceived the second child, according to the father, shortly after his release from prison in May 2008 after serving his sentence for the assault upon the mother in February 2008. Until the trial, the existence of the second of those two children was unknown.

7. I accept the evidence of the mother that the father had previously said to her, when he was pursuing reconciliation with her, that he had no feelings for either his wife or the child A.[107] Whether the father was being truthful when he said that is another matter. However, the father said in cross examination that although he has no feelings for his wife, he does love their two sons. He said that he saw those two children once or twice each week. In the knowledge that the mother and children now live such a long way away, the father proposed in this case that he would relocate his residence to be near the mother and children so that he could see the children regularly. When he was asked how that might affect his relationship with his two youngest children in Sydney, the father said that it did not matter because they were less important to him than the children who are the subject of these proceedings. The casual readiness of the father to abandon his children in Sydney in preference for the children in this case demonstrates a lamentable attitude to the children and the responsibilities of parenthood. The capacity to be a responsible parent is not an attribute which may be utilised or not at will. One either has such capacity or one does not, and any capacity that one does possess is exercised uniformly.

   [107] Mother’s affidavit filed 18 March 2009, par 7

8. The father’s lack of insight is demonstrated in another way. The father spent a good deal of time during the trial ensuring that there was evidence before the Court that he had taken the children to restaurants and purchased them clothing and gifts, in the misconceived belief that such evidence demonstrated the quality of his parenting. He made the same point to the Family Consultant.[108] Even the children recognise that the purchase of material things alone does not make for a good parent. Z acknowledges that the father spoils him, but that does not improve the child’s opinion of the father.[109] The mother has even told the father that he has behaved as if he is trying to buy the children’s love rather than earn it.[110] The father is critical of the mother having said things like that to him. He entirely misses the point that the mother was trying to make, and of which the children are well aware.

   [108] Family Report, par 48

   [109] Family Report, par 71

   [110] Exhibit F2, page 5

9. Despite explanation to him, the father seemed unable to comprehend that the parenting orders made by the Court must be informed by the best interests of the children, rather than his own wishes and desires. Part of the concluding sentence in his statement of evidence was “I miss them so much I love them so much being away from them is killing me slowly, so I’m hoping I’ll be able to see them soon (sic)”.[111] Whilst those feelings are understandable, the litigation is pursued by the father for his own needs rather than the needs of the children.

   [111] Exhibit F2, page 9

10. The father said in cross examination that he had attended a family relationships program conducted at Centacare between June and October 2008. It does not seem to have assisted the father to appreciate the salient issues in the case or to moderate his attitudes.

11. The attitudes of the father are replicated within his family of origin. The father called two of his sisters to give evidence on his behalf. Ms Imhoff makes reference to the father being a good, kind-hearted man who misses his children and wants the chance to prove that he has changed for the better.[112] Ms N Imhoff thinks the children are lucky to have a father as good as the father.[113] She does not believe the evidence of the mother and thinks that the father has a right to see the children.[114] She regards the father as being more stressed now than she has ever seen him,[115] which is particularly worrying. There is a conflict in the evidence of Ms N Imhoff and the father’s psychologist, because the psychologist considers that the father’s emotions are now within a normal range.

    [112] Exhibit F7, pages 1, 2

    [113] Exhibit F6, page 1

    [114] Exhibit F6, page 2

    [115] Exhibit F6, page 2

12. I am well satisfied that the father has no prospect of acquiring a proper attitude to the children and the responsibilities of parenthood. That is a consideration of considerable weight.

Section 60CC(3)(j)

1. The father’s history of violence is lengthy.

2. His earliest conviction for assault was in 1995,[116] albeit unrelated to the mother and children.

   [116] Exhibit M1

3. The relationship between the parties began in 1995 and the mother traces the father’s history of family violence back to 1998. As already mentioned, the father admits to only two incidents of family violence in 2005 and 2008. To the extent that there is inconsistency between the evidence of the parties on the issue, I much prefer the evidence of the mother. Generally, the father did not deny the violent history described by the mother. Rather, he seemed to consider that the incidents described by the mother were not violent. There was a difference of opinion between them about what amounted to violent conduct.

4. In 1998 the father assaulted the mother and fractured her nose.[117] The incident is corroborated by police records.[118]

   [117] Mother’s affidavit filed 18 March 2009, par 21

   [118] Exhibit M3

5. In 2002 the father detained the mother against her will and assaulted her, both physically and sexually.[119]

   [119] Mother’s affidavit filed 18 March 2009, par 21

6. On 11 June 2005 the father spat on the mother’s eldest child after bursting in on her in the bathroom. An argument developed about the father being directed to leave the mother’s home. The father was angry. He grasped the mother in a headlock and held a knife to her back, whilst using profane language and yelling “You’ve screwed my head. Everything’s gone. I’ve got nothing to lose”. At the conclusion of the incident the father threatened that he could have them all “wiped out” if he wished. The incident occurred in the presence of the children, and the mother’s eldest daughter, who were understandably petrified with fear.[120]

   [120] Mother’s affidavit filed 18 March 2009, pars 22-37; Exhibit M3

7. The father does not deny the mother’s version of the event. Although he played down the severity of the incident, he previously admitted in an affidavit that the mother’s version was accurate.[121] He blamed his wayward behaviour on his use of steroids. He tendered a medical certificate in an attempt to prove that was so.[122] If the father’s point was that he acted involuntarily because of his steroid medication, I do not accept the submission. He was convicted of the offence, so he must have acted with the requisite mens rea. If the father’s point was simply that he over-reacted because of his steroid use, I do not accept that submission either. His subsequent assault of the mother in 2008, when he concedes not using steroids, is testament to how volatile the father can be in ordinary circumstances.

   [121] Father’s affidavit filed 29 April 2008, par 18

   [122] Exhibit F1

8. The father was convicted of the assault upon the mother in 2005. He was sentenced to imprisonment for a period of 3 months, which sentence was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) subject to him entering a good behaviour bond.

9. On 22 November 2006 the mother needed to solicit help from the police to compel the father to leave her home. He was argumentative and refused to leave until police intervened.[123]

   [123] Exhibit M3

10. On 11 January 2007 the father told the mother that if she ever reported him to police again he would kill her.[124]

    [124] Mother’s affidavit filed 18 March 2009, pars 39-40

11. On 12 January 2007 the father told at least one of the children that they were “not going to have a mother soon”.[125]

    [125] Mother’s affidavit filed 18 March 2009, par 41

12. On 13 January 2007 the father assaulted the eldest child at church.[126]

    [126] Mother’s affidavit filed 18 March 2009, par 42

13. On 20 January 2007 the father surreptitiously obtained access to the mother’s home and then pinned the mother down whilst he groped her.[127]

    [127] Mother’s affidavit filed 18 March 2009, par 44

14. On 6 February 2007 the father threatened to “bury” the mother.[128] He said words to the same effect to the mother, in the presence of at least one of the children, on 6 May 2007.[129]

    [128] Mother’s affidavit filed 18 March 2009, par 46

    [129] Mother’s affidavit filed 18 March 2009, par 53

15. On 16 March 2007 the father groped and punched the mother.[130]

    [130] Mother’s affidavit filed 18 March 2009, par 47

16. On 31 March 2007 the father spat on the mother at church in the presence of the pastor and parishioners.[131]

    [131] Mother’s affidavit filed 18 March 209, par 48

17. On 11 April 2007 the father told the mother in the presence of the children “If you start seeing a man, I’ll kill you and him.”[132]

    [132] Mother’s affidavit filed 18 March 2009, par 49

18. On 6 May 2007, in the presence of the children, the father argued with the mother at a soccer ground and then threw a ball at the mother, which hit her in the face. There is a police record of the event.[133]

    [133] Exhibit M3

19. On 23 February 2008 the father again attended the mother’s home uninvited. He started to cuddle the mother, who resisted his advances. The father refused to leave, even when told that the police were trying to find him to serve him with an apprehended violence order. The father became enraged and began to throttle the mother. He then severely bashed her, causing the mother to lose consciousness. The father’s attack was only terminated when the eldest child Z jumped onto the father’s back, grasped him around the throat, and screamed for him to stop.[134]

    [134] Mother’s affidavit filed 18 March 2009, pars 57-65; Exhibit M3

20. The mother sustained serious injuries, which included a facial fracture, fractured ribs, multiple abrasions, and heavy bruising. She was attended by an ambulance and conveyed to Hospital.[135]

    [135] Mother’s affidavit filed 18 March 2009, pars 66-67

21. There is an arid debate between the parties about whether the children actually witnessed the assault. Although the father denies it, the mother says that X was beside her at the time and was almost hit, which is corroborated by X.[136] The father concedes that Z saw what was happening because his intervention stopped the father. It doesn’t matter whether the children were eye witnesses to the attack. Even if the children only saw the mother in her injured and distressed state immediately afterwards, it was clearly apparent to them that their father had just bashed their mother.

    [136] Family Report, pars 92, 95

22. The father says in his statement of evidence that he “snapped and started to hit [the mother] without noticing how bad I was hitting her”.[137] The father said in evidence that he had not intended to touch the mother when he went to her home that day. He does not seem to appreciate that, because his violent propensity is so deeply ingrained in his character that he cannot maintain self control, the Court can have little confidence that such an incident will not recur when he is aggravated for some reason.

    [137] Exhibit F2, page 8

23. The incidents catalogued above are only the ones of which the mother has a clear recollection. I accept the mother’s submission that the father commonly used violence, intimidation, and denigration throughout their cohabitation and also during the years after their separation when they still had contact with one another. The father’s conduct was repetitive. The incidents recited above were not isolated and out of character. The father has been unable to control himself. Although he has expressed his remorse to the mother and promised not to relapse,[138] he did not keep his promise.

    [138] Mother’s affidavit filed 18 March 2009, par 15

24. His behaviour has been disgraceful, but he either will not or cannot recognise it. When he conferred with an officer of the NSW Probation and Parole Service in April 2008 for the preparation of his pre-sentence report the father did not accept responsibility for his actions and blamed the mother for his behaviour. He said that he had been acting in self defence during the incident in February 2008.[139] His failure, even now, to express fulsome contrition is a serious defect in his character. The evidence does not permit any inference that the father is capable of tangible improvement.

    [139] Exhibit M2

25. A more recent incident exemplifies the point. The father telephoned the mother’s solicitor on 21 April 2010 to discuss the litigation. The father was told that the conversation would be recorded. Despite his knowledge of the recording, and despite having undertaken anger management and other counselling, the father lost his temper with the solicitor. The father admitted that he was frustrated and angry during the conversation and used threatening words to the effect of “I’m going to be in dirt and if I don’t see my kids soon someone is going to get hurt”. No recording or transcript of the conversation was tendered in evidence. It was unnecessary because the father conceded the conversation in cross examination. If the father cannot contain himself in important formal discussions with a lawyer, he is unlikely to be able to do so when not constrained in any way.

Section 60CC(3)(k)

1. There is no current family violence order. The family violence order previously obtained for the protection of the mother against the father on 29 April 2008 expired on 28 April 2009.

Section 60CC(3)(l)

1. Since the orders now made reflect the interim orders which have been in existence for over two years, and the orders reflect the wishes of the mother, the wishes of the children, the proposal of the Independent Children’s Lawyer, and the evidence of the Family Consultant, I consider that they are least likely to lead to the institution of further proceedings.

Section 60CC(3)(m)

1. The father has a proven propensity to breach Court orders if it suits him.

2. The father had no qualms about contravening the apprehended violence order made against him in 2006 or early 2007. Following his removal by police from the mother’s home at T in November 2007 he was charged with breaching that apprehended violence order, for which he was convicted and sentenced in December 2007. The father’s criminal record discloses the conviction and sentence.[140]

   [140] Exhibit M1

3. Following the father’s assault of the mother in February 2008, orders were made in two separate courts curtailing the father’s interaction with the mother.

4. An apprehended violence order was made against the father by the NSW Local Court at Newcastle on 29 April 2008 for a period of 12 months. The terms of the order precluded the father from contacting the mother by any means other than through a lawyer.[141] There is no doubt that the father was aware of the terms of that order, because the order expressly notes that the father was present in court when it was made.

   [141] Exhibit M4

5. On 12 March 2008, this Court made an order that the children not spend any time with the father,[142] which order was renewed on 6 May 2008,[143] and 21 July 2008.[144]

   [142] Order 7

   [143] Order 2

   [144] Order 5

6. Those orders were of no moment to the father. In early April 2008 the father sent a letter to the mother from prison requesting that she let him see the children.[145] Upon his release from prison in May 2008 he began contacting the mother for the purposes of arranging his interaction with the children.[146] The telephonic contact occurred up to 14 times a day, and some of the father’s messages were intemperate. The father did not dispute the evidence. He admitted contacting the mother as alleged. There could be no doubt that his contact with the mother directly breached the apprehended violence order, and because he was demanding that the children spend time with him, was clearly an intended breach of this Court’s orders.

   [145] Exhibit ICL2

   [146] Mother’s affidavit filed 18 March 2009, pars 116-120

7. When the father was confronted with his contravention of the orders, he was not chastened. Quite the contrary. He asserted that his action was justified because he was missing the children.

8. The father was charged by police on 15 August 2008 with breaching the apprehended violence order.[147] Although he initially entered a plea of guilty to the charge, he informed the Family Consultant that he intended reversing his plea, stating that the mother was at fault.[148] He has no remorse. The criminal record of the father, which was tendered,[149] is only current to 23 February 2008 so the result of the father’s prosecution for the breach of apprehended violence order later in 2008 is unknown.

   [147] Exhibit ICL2

   [148] Family Report, par 50

   [149] Exhibit M1

9. Even now the father brazenly states that the mother is at fault for not letting the children spend time with him after his release from prison. He expects that she should have ignored the interim parenting orders of this Court so as to have permitted him to see the children.

1. The Court can have no confidence that the father will obey its orders.

Parental Responsibility

1. The comprehensive evidence of family violence and child abuse means that the presumption of equal shared parental responsibility does not apply.

2. The children have lived with the mother since their birth. She has been primarily responsible for them. She has been solely responsible for them since February 2008. Apart from her failure to seek out proper counselling for herself and the children, she has capably handled the issues of significance in their lives.

3. There can be no question that the allocation of equal shared parental responsibility in this case would be an error. The mother is acutely worried about having even the slightest contact with the father. Her secretive relocation with the children on two separate occasions manifests the extent of her concern. Clearly, it would be counter-productive to compel the mother to rationally discuss with the father the major long-term issues in the children’s lives.

4. The mother and Independent Children’s Lawyer both advocate for the allocation of parental responsibility solely to the mother. The recommendation of the Family Consultant supports that outcome. I agree that such an outcome reflects the best interests of the children. Although the father does not now think so, he did think the allocation of sole parental responsibility to the mother was the proper order when he filed his Response on 29 April 2008.

Living, Spending Time, and Communication Arrangements

1. Since there is no allocation of equal shared parental responsibility, the Court is not obliged to consider the children spending equal time in each household, or alternatively, substantial and significant time in the non-residential household. The parenting arrangements are dictated by the best interests of the children.

2. For the reasons which have been addressed, the best interests of the children require that they continue to live with the mother and spend no time with the father. I accept the evidence and submissions to the effect that even supervision of the children’s time with the father would not sufficiently ameliorate the risks that he poses to them.

3. Although the Family Consultant gave evidence that the parenting capacity of the mother would probably be impinged by her having to deal with orders requiring the children to spend time with the father, the mother made only passing reference to the need for peace and tranquillity in her household. She did not overtly submit that the probable impingement of her parenting capacity necessitated, of itself, an order precluding any interaction between the children and the father consonant with established principles (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546; A & A (1998) 22 Fam LR 756 at 768-769; V & V [2001] FamCA 78 at [54]; H & K [2001] FamCA 687 at [36-38]; H & R [2006] FamCA 878 at [44-53]). Those authorities establish that even when a non-residential parent does not constitute an unacceptable risk of abuse to a child, the genuine fears of the residential parent about such a risk may so impinge upon that parent’s capacity, and cause such disturbance in the residential household, that interaction between the child and the non-residential parent should be curtailed in any event. The need to accommodate the child’s best interests overrides any sense of injustice between the parties (see H & R at [43]).

4. In all probability, there was no need for the mother to resort to those principles in this case, because the evidence establishes that the father does constitute an unacceptable risk of emotional and physical abuse to the children. The genuineness of the mother’s fears simply compounds the strength of the evidence. Her fears are not only honestly held, but are objectively valid.

5. The father’s proposal that the children spend time with him each alternate weekend, when they live 12 hours drive from him, was utterly unrealistic in any event. His suggestion that the regime could move to equal time within a period of months was just as thoughtless. The father had simply given no consideration as to how such an arrangement would work for the children.

6. When pressed, the father struggled to explain how such an arrangement could be implemented. He firstly contended that his medical condition precluded him from driving any more than a round trip of 2 hours duration, which he later revised arbitrarily to 3 hours and then 4 hours. He therefore considered that the mother would be required to bear the bulk of the driving each fortnight to implement his proposals. The children would face huge travel commitments each fortnight on such a scenario. He could not afford air travel, as an alternative, with that kind of frequency.

7. When confronted with the impracticability of that arrangement, the father then demanded that the mother and children return to live in closer proximity to him, despite having earlier told the Court how important he considered it was for the children to retain their current friendship groups and existing school enrolments.

8. When confronted with that inconsistency, the father then asserted that he would move to a location in closer proximity to the mother, so as to avoid the need for the children to change residence. He expected that he could arrange a transfer of his Housing Department tenancy within weeks, without there being any evidence at all to prove the prospects of that occurring.

9. When confronted about the impingement upon his relationship with his two youngest children, who live in Sydney, if he was to move so far away from Sydney, the father was then dismissive of his relationship with those two children. Although he currently sees those two children weekly, and purports to love them, he was prepared to forsake them.

10. The father’s proposals for the children to spend time with him are untenable in the face of the available evidence.

11. Although I am persuaded that the children should spend no time with the father, I am not persuaded that the father should be completely erased from their lives. The Family Consultant recommended that there should be no communication between the children and the father,[150] but I do not accept that recommendation.

    [150] Family Report, par 140

12. There is no evidence before the Court that the children do not love the father. They are just frightened of him and do not wish to see him. As they age and gain maturity, their attitudes may change. They may later individually wish to re-establish contact and rekindle their relationship with him when they are young adults. If all means of communication are cut off for the remainder of their minority it will be much more difficult for them find and re-connect with the father later in life should they choose to do so. If such future attempts by them are thwarted by the present proposals of others, they may later be resentful. Their mid to long term interests would not be served in those circumstances.

13. The evidence leads me to the conclusion that communication between the children and the father should be permitted, but in carefully restricted circumstances. The father should be able to communicate with the children in writing, which is capable of being vetted. The children should not feel obliged to respond, but may do so should they wish to. The opportunities for correspondence should be limited, so that the father is not free to correspond at will. Nor should the correspondence divulge the residential details of the mother and children. In closing submissions the mother acceded to a communication order in the terms made, and the Independent Children’s Lawyer did not wish to be heard in opposition.

14. I am satisfied that the orders set out at the commencement of these reasons promote the children’s best interests.

I certify that the preceding one hundred and eighty eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  2 July 2010