Bernard and Simon - [2010] FMCAfam 400

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BERNARD & SIMON

[2010] FMCAfam 400

FAMILY LAW –Parenting – children aged 3 and 2 – father serving a term of imprisonment for sexually assaulting the mother – not eligible for parole until 2014 – father seeking an order that the children spend time with him prior to his release – only option is visits at the prison – mother opposing the children spending any time with the father either while he in prison or after his release – competing applications for change of the children’s surnames.

Family Law Act 1975, ss.60B, 60CC

Bernard & Simon (2008) FMCAfam 1395
McCall & Clark (2009) FamCAFC 92

Applicant:

MR BERNARD

Respondent:

MS SIMON

File Number:

ASC77 0f 2008

Judgment of:

Terry FM

Hearing dates:

7 & 8 December 2009

Date of Last Submission:

8 December 2009

Delivered at:

Newcastle

Delivered on:

29 April 2010

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Ms Lethlean

Solicitors for the Respondent:

Central Australia Aboriginal Family Legal Unit

Council for the Independent Children’s Lawyer

Ms Orwin

Solicitor for the Independent Children’s Lawyer

Margaret Orwin, Barrister & Solicitor

ORDERS

BY CONSENT

That the mother have sole parental responsibility for the children [X] SIMON-BERNARD born [in] 2007 and [Y] SIMON born [in] 2008.

AND IT IS ORDERED:

That the children live with the mother.
That the child [X] SIMON-BERNARD be henceforth known as [X] SIMON.
That the father spend no time with and have no communication with the children.
That all applications are otherwise dismissed.
That the Independent Children’s Lawyer is discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ALICE SPRINGS

ASC77 of 2008

MR BERNARD

Applicant

And

MS SIMON

Respondent

REASONS FOR JUDGMENT

Introduction

On 5 March 2009 Mr Bernard was convicted of two counts of having sexual intercourse with Ms Simon without her consent. He was sentenced to eight years imprisonment, with a non-parole period of five years and nine months. He is serving his sentence in [omitted] Correctional Centre and is not eligible for parole until 2014.
Mr Bernard and Ms Simon are the parents of two children: [X], 3 and [Y], 2. Regardless of what has happened between himself and the mother, the father would like to have a continuing role in his children’s lives. He would like to be able to spend time with them while he is serving his sentence.
The father originally applied for an order that the children spend time with him at CatholicCareNT, the children’s contact centre in Alice Springs. After it was made clear to the father that the prison authorities would not be willing to take him from the prison to CatholicCareNT for this to occur, he applied for an order that the children be brought to the prison to visit him.
The father also sought orders that:
·the children have weekly telephone communication with him (although he conceded that at the children’s present ages telephone communication would not be of much value);
·the mother send him photographs of the children and information about them and that later on he be at liberty to obtain direct from the children’s school reports and other information normally provided to parents;
·the mother pass on to the children any cards and gifts he might send;
·[Y]’s surname (which is currently Simon) be changed to Simon-Bernard; and
·the mother be restrained from relocating the children’s place of residence from Alice Springs.
The mother totally opposed the father’s application. She sought an order that the father be restrained from living with, spending time with or communicating with the children.
The mother also sought an order that [X]’s surname (which is currently Simon-Bernard) be changed to Simon, and she opposed any restraint being placed on her relocating with the children.
At the commencement of the hearing the parties were in dispute about the issue of parental responsibility, with the father seeking an order for equal shared parental responsibility and the mother seeking an order for sole parental responsibility. During the hearing the father consented to the mother having sole parental responsibility for the children, subject to reserving his right to argue about the surname issue and about whether the mother should be restrained from relocating from Alice Springs.

The Evidence

The father relied on his amended application filed on 16 July 2009 and his affidavits filed on 4 December 2008 and 16 December 2008.
The mother relied on her amended response filed on 27 November 2009 and her affidavits filed on 11 December 2008, 17 July 2009 and 27 November 2009. She also relied on the affidavits of Ms S and Ms K filed on 11 December 2008 and on the affidavit of Ms H filed on

27 November 2009.
The mother filed a Notice of Child Abuse or Family Violence on

11 December 2008.
Ms Orwin, the Independent Children’s Lawyer, filed an affidavit on

8 December 2009 concerning the issue of whether the prison would be willing to take the father to CatholicCareNT for supervised visits.
A Family Report was prepared by Treya Derrington, a Family Consultant attached to the Family Court in Adelaide. Ms Derrington is a psychologist who has been with the Family Court since June 2003. Prior to that Ms Derrington worked as a counsellor in Adelaide, as a psychologist in private practice in Darwin for three years and as a community psychologist with Territory Health Services in Darwin for five years.
All of the witnesses save for Ms K and Ms Orwin were cross-examined.

The witnesses

The father made some admissions during cross-examination about having committed acts of violence, but he had a strong tendency to minimise the seriousness of and qualify his responsibility for the violence in which he had been involved. He presented as confused about why anyone would want to stop him seeing his daughters when he had never laid a hand on them.
The mother was a credible witness, as were Ms S and Ms H.
Ms Derrington travelled to Alice Springs to prepare the Family Report and interviewed the mother at her home and the father at [omitted] Correctional Centre.
Ms Derrington prepared a thorough and insightful report.
Ms Derrington expressed the opinion that there was an element of vendetta in the father’s application to this court. In my view the evidence does not support such a finding. Otherwise, I consider that

Ms Derrington’s conclusions were carefully reasoned and soundly based on the information available to her, information upon which no doubt was cast during the proceedings. I place weight on

Ms Derrington’s evidence.

The father

The father is 40. He has lived in Alice Springs for most of his life.
The paternal grandfather Mr B is Austrian and migrated to Australia after World War 11. The paternal grandmother was an aboriginal woman from a “prominent and well known [Alice Springs] family.” The father is aboriginal and his aboriginal cultural heritage is Arrernte. He has three siblings in Alice Springs.
The father informed Ms Derrington that in addition to [X] and [Y] he had three older children aged about 23, 17 or 18 and 9. He was unable to give the names and dates of birth of the 23 year old or the 17 year old. Ms Derrington reported the father as seeming “quite disconnected from any feelings about any of these [children].”[1] Evidence at the hearing suggested that the father may be incorrect in believing that he has a 9 year old son.
[1] Family Report paragraph 27
The father is a [tradesman] and emphasised that he was a respected and hard working tradesman.
The father has an extensive criminal record. In addition to the convictions of 5 March 2009 and convictions for breaching Domestic Violence Orders which will be referred to later in this judgment, he has convictions for stealing in 1984, for assaulting police and resisting police in 1989 and 1990 and for firearms offences in 2003. He also has five convictions for drink driving, with readings of .160 (1989), .147 (1990), .185 (1995), .266 (1997) and .215 (October 2008).

The mother

The mother is 39. She is also aboriginal and also grew up in Alice Springs. At the age of two she was fostered by Ms S and Mr S. Mr S is now deceased but the mother remains close to Ms S, whom she calls Mum.
The mother made no mention of her biological family in her material. She informed Ms Derrington that she had very recently located some of her biological siblings and learned of her Pitjantjatjara cultural heritage.
In addition to [X] and [Y] the mother has a son [Z] who was born in July 1997. [Z]’s father disappeared off the scene before [Z] was born and the mother has brought [Z] up alone.
The mother worked [in the hospitality industry] and [in the childcare industry] while she was living with the father but no other information about her employment history was provided.
The mother does not have a criminal record. It was her evidence, which I accept, that prior to her relationship with the father she had not been a victim of family violence or any violent crime.

The relationship

The father and mother, who have known each other since they were children, commenced a relationship in January 2006.
It was the mother’s case that after an initial period of calm in the relationship, the father revealed himself to be a jealous controlling man who watched her every move and isolated her from family and friends. It was the mother’s case that the father was also a violent man, particularly when he had been drinking, and that he assaulted her on numerous occasions.
Some of the assaults alleged by the mother were that:
·In 2006 the father grabbed her by the shirt and held her against the door;
·In 2006 the father violently raped her at her home;
·In 2006 the father violently raped her at the [omitted] Resort;
·In about June 2006 the father became upset when the parties were out camping and kicked her in the backside, causing her to fall over into prickles;
·The father bit her on the bottom lip or both lips on a number of occasions;
·On 26 December 2006 when the family were on holiday in Broome the father held her head under water for six seconds, telling her she was lucky it was not longer;
·In July 2007 the father hit her on the back of the head.
It was further the mother’s evidence that the father sexually assaulted her on other occasions, insisted on knowing where she was at all times and often kept her under surveillance, became violent and abusive after accusing her of looking at other men and took her Key Card so that he retained control of her money.
The father was convicted of two counts of rape and he made partial admissions during the hearing in respect of some of the other allegations of violence. He admitted for example that an incident occurred while the parties were camping, although he said that what he did to the mother was “more of a push than a kick.” In respect of another incident said that “I sort of hit her but it was more a tap than a hit.”
There was some independent evidence to corroborate the mother’s claim that the father was jealous and controlling and separated her from friends and family. Ms S gave evidence that the father nearly always accompanied the mother when she visited and did not like the mother talking to Ms S on her own.
It was also the mother’s case that the father was violent and abusive to [Z]. She referred for example to an occasion in June 2006 when the father walloped [Z] on the backside leaving red marks, before slapping the mother herself on the leg.
Ms S gave evidence that when [Z] visited her during the relationship he would cry when the time came for him to return home, and he also started to ask Ms S why his mother was crying all the time and was sad all the time. Eventually in about June 2006 [Z] refused to go home and he then lived with Ms S until the mother and father separated in August 2007.
The father admitted that he had “hit [[Z]] on the backside with the palm of his hand” and “tapped him on the shoulder with a clenched fist.”
The father said that [Z] may have witnessed altercations between himself and the mother on “maybe one or two occasions.”
Ms Derrington explored the allegations with the mother and said as follows:
“The abuse described by Ms Simon included sexual assaults which were far more numerous than the two incidents for which the father has been convicted, ongoing verbal and emotional abuse, serious threats and threatening behaviour, intimidating behaviour toward [Z] and financial oppression and exploitation. The information she provided was coherent, and where incidents were described in her affidavit material, Ms Simon’s descriptions during interview were consistent with that information and [were] also consistent with the information she provided in her affidavit material. Where she referred to the sexual assaults perpetrated by Mr Bernard, her presentation was consistent with that of a woman who was shamed and traumatised by past events including experiences of rape.”[2]
[2] Family Report paragraph 12.
I am satisfied that the mother and [Z] were victims during the relationship of the behaviour described by the mother.
The parties separated on 2 August 2007. Ms S and others had been very worried about the mother and had been urging her to seek help.

On 2 August 2007 the mother went to the police station while the father was out and told the police what had been happening. The police went home with the mother and helped her remove belongings for herself and [X].
The mother and [X] moved in with Ms S and the mother and [Z] were reunited. The mother was pregnant with [Y] at the time of separation.

Events following separation

The mother applied for and obtained a Domestic Violence Order (DVO) against the father for a period of twelve months.
The father asked to be allowed to spend time with [X], who was then about three months old, and the mother agreed to him spending supervised time with her for two hours a week at Centacare (now CatholicCareNT). This time commenced in late August 2007.
In October 2007 the father asked if he could spend time with [X] away from Centacare. The mother agreed to him spending two hours a week with [X] away from Centacare provided that his brother Mr E was present.
Meanwhile the police were investigating the mother’s complaints and in November 2007 they arrested the father and charged him with two counts of sexual intercourse without consent, seven counts of aggravated assault and one count of threatening injury. He was bailed pending a committal hearing taking place. He continued to spend time with [X] after the charges were laid.
On 23 February 2008 while the father was having supervised time with [X] in the company of Mr E, they accidentally ran into the mother at a shopping centre. The father impulsively approached the mother and spoke to her in an angry and threatening manner, demanding more time with [X]. Mr E did nothing to restrain his brother.
The mother made a complaint to the police about this and about other incidents. The father was charged with breaching the DVO. He was found guilty of two counts and was fined.
After the incident at the shopping centre the mother refused to allow [X] to spend time with the father.
When [Y] was born in March 2008 the father made requests through his solicitors to see [Y] at the hospital and to be provided with photographs of [Y] but the mother refused both requests. In April 2008 the father made a request through his solicitors that he be permitted to start seeing [X] again but the mother refused this request also.
In August 2008 the father became the subject of a second DVO when the police applied for an order against him for the protection of the paternal grandfather. The father admitted that this application was made because of an incident in which he lost his temper with the paternal grandfather (who is in his eighties and has dementia) and pushed him over, causing him to injure his elbow.
After this DVO was made the father breached it by going around to the paternal grandfather’s home and he was charged. He pleaded guilty and was fined. The excuse the father gave for breaching the DVO was that he needed to go to his father’s home to feed the dogs. The DVO was varied to provide that the father could go to the paternal grandfather’s home as long as that he was not intoxicated.
In October 2008 the father was convicted of his fifth drink driving offence, with a reading of .215.
The father said that as a result of the stress of rejection in relation to his children and the stress of caring for his father he “was very depressed and was self medicating with alcohol.” [3]
[3] Father’s affidavit filed on 4 December 2008 paragraph 32
In November 2008 the father was committed to stand trial on the sexual assault charges. His trial was fixed to commence in the Supreme Court of the Northern Territory at Alice Springs in February 2009. The other charges against the father were stood over.
On 4 December 2008 the father filed an application in this court seeking interim orders that [X] and [Y] spend time with him at Centacare. The mother opposed this application and on 19 December 2008 I dismissed it. I did however order that the mother cause a recent photograph of the children and some brief information about the children to be sent to the father.[4]
[4] Bernard & Simon (2008)FamCA1395
On 19 February 2009 the father was found guilty by a jury of two counts of having sexual intercourse with the mother without consent. On 5 March 2009 he was sentenced to eight years imprisonment and the non-parole period was set at five years and nine months. The father will be eligible for parole in November 2014. The remaining charges against the father have now been withdrawn.
After he was sentenced the father amended his application to this court to seek orders about spending time with and communicating with the children while he was in prison.

The evidence of the mother’s psychologist Ms H

After the mother made her complaint to the police in August 2007 she was referred to the Sexual Assault Referral Centre (SARC) in Alice Springs. On 23 August 2007 she commenced receiving counselling from Ms H, a psychologist employed by SARC.
Ms H saw the mother intensively over the next six months. Ms H is an experienced psychologist who gave detailed and credible evidence about her interactions with the mother. I place weight on her evidence.
The mother described to Ms H a relationship with the father in which the father was initially kind and supportive but after four to five months became increasing jealous, controlling and violent.
The mother informed Ms H that she was having nightmares and flashbacks, was constantly thinking about what the father had done to her, was avoiding people and places, and was extremely anxious and lacking in confidence. Ms H said that during most of the meetings the mother cried a great deal.
The mother was extremely distressed about the impact which her relationship with the father had had on [Z] and her own relationship with [Z].
Ms H’s opinion was that the mother was suffering from post-traumatic stress disorder.
From around the time of [Y]’s birth in April 2008 Ms H began to see the mother only infrequently and commented that the mother “was busy and had significantly improved.”
The father was sentenced in March 2009 and Ms H did not see the mother between that date and May 2009.
In May 2009 it became apparent to the mother that although the criminal proceedings were finished the father intended to continue with the family law proceedings. The mother saw Ms H on a number of occasions between May and July 2009.
Ms H evidence was that the mother was adversely affected by knowledge that the father was still seeking orders about spending time with [X] and [Y]. The mother told Ms H that she had again “begun experiencing nightmares, flashbacks and constant thinking about the father.”[5] The mother also described other symptoms including being unable to concentrate, feeling sad and despairing and crying a lot, having headaches and neck pains and having difficulty sleeping. The mother also described to Ms H having thoughts of suicide and even of killing the children.
[5] Report dated 8 July 2009 attached to the affidavit of Ms H filed on 27 November 2009

The mother saw Ms H on a further three occasions after July 2009.

Ms H’s observation on the first of these occasions was that “[the mother] was recovering well from the post traumatic stress and depression that had been triggered when she was presented with [the father’s] requests for contact with the children in May this year.”[6]
[6] Report dated 27 November 2009 attached to the affidavit of Ms H filed on 27 November 2009
Ms H said that when she last saw the mother, the mother reported that she was sleeping well, socialising more and had hopes and plans for the future. She described her current family life to Ms H as “sane and caring.”

[X] & [Y]’s best interests

I must treat [X] and [Y]’s best interests as the paramount consideration when determining appropriate orders. Sub-sections60CC(2) & (3) of the Family Law Act set out the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations in s.60CC(2) are as follows:
a) the benefit to the children of having a meaningful relationship with both of the children’s parents; and
b) the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In McCall & Clark,[7] the Full Court discussed the meaning of s.60CC(2)(a), and concluded that the “preferred interpretation of the benefit to a child of a meaningful relationship in s. 60CC(2)(a) is “the prospective approach.”” The Full Court said that the prospective approach required the court to:
“consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…”.
[7] McCall & Clark (2009) FamCAFC 92
It was the father’s case that there would be a positive benefit to be derived by [X] and [Y] having a relationship with him. He sought an order that the children start visiting him so that they could start forming that relationship.
The father would have preferred that these visits occur away from the prison, but as that was not possible he proposed that the children visit him in prison.
The father said that there was an outdoor area at the prison with tables and children’s play equipment where such visits could occur. He said that prison visits normally took place on weekends, but that he would look into whether the prison might permit the children to visit him on Wednesdays, when it would be quieter.
It is unlikely that visits at the prison will go any way to ensuring that [X] and [Y] develop a meaningful relationship with father.
The children would not be able to go with their mother and they would thus meet the father, who is a stranger to them, without the comforting presence nearby of someone to whom they are close. This would make the situation potentially distressing and difficulty for the children to start with, but also, in the confines of the prison the father would not be able to interact with the children in any free and easy way. He would not be able to do the range of caring and fun activities with them which help to form a bond between children and a parent.
It is possible that the only benefit of this kind of visits would be that they would enable the children to recognise the father, and if this benefit was achieved at the price of the children becoming distressed, it would be achieved at too high a price.
The Full Court in McCall & Clark stressed that the emphasis was on the child’s best interests. They observed that:
“No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.” [8]
[8] McCall & Clark (2009) FamCAFC 92
It was the mother’s case that there was no benefit to be derived by the children having a relationship with the father. I cannot make a proper assessment of this submission until I have considered all of the s.60CC(2) & (3) factors.
The second primary consideration is the need to protect the children from physical or psychological harm from being subjected to or exposed to neglect abuse or family violence.
It is unlikely that the children would be exposed to abuse (as it is defined in the Family Law Act) neglect or family violence if they visited the father in prison.
However that is not the end of the matter. It was the mother’s case that [X] and [Y] would always be at risk of being subjected to or exposed to abuse or family violence if they spent unsupervised time with the father, and that there was no point fostering now a relationship which could not go anywhere once the father was released.
The father did not see himself as posing a risk to the children but it is very clear on the evidence that he has a pervasive and long standing problem with violence and impulse control and a history of lashing out at people whom he professes to love and be close to.
The father was seriously violent to the mother during their relationship.
He described with pride his role as his father’s carer, yet he admitted pushing his eighty year old father over when he was angry.
He impulsively went up to the mother at a shopping centre and berated her, thus breaching his domestic violence order and bringing upon himself the loss of his time with [X].
There are a number of references in the Centacare records from 2007-8 to the father variously “spitting the dummy”, cursing and being asked to refrain from using inappropriate language and “becoming angry, swearing and calling Ms Simon lots of bad names.”[9]
[9] Exhibit C
The father said that he could change and that he was willing to take part in an anger management program and alcohol counselling while in prison. Ms Derrington was sceptical about whether the father would be able to change. She said as follows:
“The father’s presentation provides, in the writer’s opinion, low confidence that interventions around some of the issues discussed in this assessment will be effective in creating change.

Mr Bernard appeared to be a sad and deeply damaged man with profound unmet needs for recognition and meaning. The prognosis of therapeutic change for him, as he presented in this assessment, is not high. He is not a young man. He showed little or no insight into his own behaviour, instead creating a range of justifications and sources of blame for his actions. He may genuinely have little comprehension of the negative impact of his behaviour on others, particularly women and children. His statements about his intention to resume drinking and smoking if he does not have access to time and communication with his daughters, seemed immature and indicative that he has no concept of taking responsibility for himself.”[10]
[10] Family Report paragraph 53
In my view the children would be at unacceptable risk of being subjected to or exposed to abuse and family violence if they spent unsupervised time with the father in the future.
Supervised time at a children’s contact centre would probably protect the children from exposure to actual violence or actual abuse but even then there is a chance that the father could lose his temper and speak in an angry or threatening way if something upset him.
I must also have regard to the additional considerations in s.60CC(3).
The children are too young to have a view about parenting arrangements.
I am satisfied that the children have a good relationship with their mother and their brother [Z]. They do not have any relationship with their father.
The mother does not have the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father, but given the father’s treatment of her this is neither surprising nor to be condemned.
I have to consider the likely effect of any change in the children’s circumstances.
If the children were required to visit the father in prison, this would represent a considerable change in their circumstances and the outcome could well be detrimental for them.
The children would not be able to go to the prison with their mother, they would have to go with another adult. It is unlikely that anyone close to the mother and the children would be willing to take the children on the visits. It is highly likely that a visit at the prison would be unsettling and difficult for the children if they were required to go there with someone they did not know or did not know well to visit a father whom they do not know.
Ms Derrington put it this way:
“…it is difficult to conceive of the suitability for the two children at this age of being introduced to their father, given that young children would normally meet new adults in the presence of the adults they are bonded to, which in this case would be their mother and their foster grandmother.”[11]
[11] Family report paragraph 43
Aside from these difficulties for the children, it was the mother’s case that her capacity to parent the children would be affected if the orders proposed by the father were made and that this in turn would have a detrimental effect on the children.
I accept that if orders were made that the children visit the father in prison the mother could suffer a recurrence of the nightmares, flashbacks, anxiety and despair that she suffered in May 2009 upon learning of the father’s proposals, and there can be no doubt that the mother’s parenting capacity would affected if this occurred.
The father also sought orders that the mother provide him with photographs of the children and pass on gifts and cards if he sent them to the children.
It was submitted on the mother’s behalf that an order to this effect could also re-awaken the mother’s post-traumatic stress disorder symptoms and thus have a detrimental effect on the children.
This submission was on its face somewhat at odds with the evidence. During cross-examination by the Independent Children’s Lawyer the mother said that she could live with an order that photographs and information be sent to the father, so long as arranging this was left to third parties and she did not directly have to do anything to facilitate it.
Ms H was asked for her opinion about the likely impact on the mother of an order that she facilitate the father receiving photographs of the children and information about them. She said that “if it’s something the mother is willing to offer that would be OK.”
It is however possible that the mother may not be a good predictor of how she would feel knowing that photographs were being taken and information gathered for the purpose of sending them/it to the father. The mother’s reaction to finding out about the father’s demands in May 2009 was severe and including contemplating harming herself and the children. I should not lightly make an order which might again place the mother, the only available parent for these young children, under severe stress.
The father sought an order that the mother be restrained from relocating the children from Alice Springs.
The mother has no present intention of relocating, but sought this order so that she could keep her options open for when the father was due for release on parole. It was her case that she then might consider it necessary to leave Alice Springs for her own safety or to preserve her own mental health.
It would be a big change for the children if they relocated from Alice Springs. They (and the mother) would be distanced from all the family and friends they have ever known.
I am not absolutely convinced that the mother would leave Alice Springs if given the opportunity to do so. However the well-being of the children is tied up with the mother feeling secure and settled. The mother suffered post-traumatic stress disorder after the end of the relationship with the father and suffered a severe reaction on learning of the father’s intention to proceed with his family law application in May 2009. If relocation from Alice Springs ensures that the mother does not suffer a relapse upon learning that the father has been released on parole then in my view the relocation would be likely to benefit the children.
While relocation would be a big change for the children, they would be seven and five at the relevant time and their happiness and security are closely tied up with the mother’s happiness and security. I am satisfied that the mother could help the children adjust should she consider it necessary to relocate.
A change of the children’s surnames would also represent a change for the children.
It was the father’s case that he did not want [X] to lose the “Bernard” part of her surname, and wanted this name added to [Y]’s name, so that the children would know that he was their father and that they were related to the “Bernard/Pines mob.”
The mother’s case was that it would be better if all three of her children had the same surname. [Z] and [Y] are “Simon” and [X] should be too.
The mother said that [X] and [Y] would know who their father was regardless of their surnames, and in the small community of Alice Springs would inevitably become aware of that they were related to the Bernard and Pines families. In my view there is strength in this submission, and much to be said for aligning [X] with other members of the household which forms the centre of her universe on a day to day basis.
Pursuant to s.60CC(3)(h) of the Family Law Act I am required to consider, as the children are aboriginal children, their right to enjoy their culture including their right to enjoy their culture with other people who share their culture and the likely impact that a parenting order made under this part will have on that right.
The mother and father both identify as aboriginal. The mother has recently taken steps to find and resume a connection with her biological family.
The father was concerned about the prospect of the children losing touch with him and with his side of the family, but this was in the context of the children knowing their Bernard-Pines relatives rather than in the context of the children making a connection with a particular part of their aboriginal heritage.
I concur with the views of Ms Derrington “the cultural issues for these children, as they are growing up with an Aboriginal mother who is actively seeking out her own lost biological relatives, are being attended to….in the course of their lives the children are likely to come across the necessary opportunities to learn about their culture and about their father’s family.”[12]
[12] Family Report paragraph 58, 60
I have to consider the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs.
The father maintained that he had the capacity to provide for the needs of the children. There was no evidence that he had ever directly mistreated [X] during the relationship and the mother made no complaint about his care of [X] during his visits with her between August 2007 and February 2008.
The father tendered records from Centacare about the supervised visits and the changeovers which occurred in 2007 and early 2008. There are numerous references in the records to the father behaving appropriately with [X] and to [X] responding warmly to the father.
The father made an effort to attend a one-on-one parenting course through Centacare in late 2008. The course provider was satisfied that the father was really trying and commented that:
“Although Mr Bernard initially struggled to understand some of the principals of these topics the writer is satisfied that

Mr Bernard is making progress. Particularly since watching an interactive parent education DVD at his most recent session.”[13]
[13] Annexure F father’s affidavit filed 3 December 2008
I am not satisfied however that the father does have the capacity to provide for the needs of children, including their emotional needs, either during supervised or unsupervised time.
There is a substantial risk that the father could subject the children or expose them to abuse or family violence if they spent unsupervised time with him.
The children could be at risk of emotional harm if they spent time with the father, even if that time was supervised.
Sadly the father has no insight into the impact of his words and behaviour on others. He admitted saying to the mother outside Centacare in 2007 when he was displeased over something she had done or not done in relation to [X] that she “needed shaking.” He passed this off as merely words, oblivious to the impact such words would have on someone to whom he had previously and repeatedly been actually violent.
The father said that he loved the children but he showed little empathy for them when talking to Ms Derrington. Ms Derrington reported that:
“In response to a challenging question about how the children might feel in the future about his behaviour toward their mother, Mr Bernard responded by saying, “What if I told [X] your mother tried to smother you, when you were one or two months old”. He indicated that he intended to tell [X] this.”[14]
[14] Family Report paragraph 25
When questioned about this response during the hearing the father could see nothing wrong with it.
Ms Derrington was concerned about the father’s mental health. She said as follows:
“Mr Bernard’s presentation raised concerns about his mental health status. There was a chaotic aspect to the manner in which he shifted topics sometimes seemingly randomly. He appeared to avoid answering some questions by shifting to another topic. He demonstrated that he holds some patently self-serving beliefs such as that ‘women kill their children more than men’. At times, what he said appeared rational but was entirely unrealistic. Some of his presentation appeared to be consistent with a paranoid state of mind, and other aspects appeared controlling. An example of his apparently unrealistic thought process was that he mentioned several times that he perceived that the children were “Stolen” because he had not been able to see them and spend time with them. His apparent belief that this situation is equivalent to the situation of children who have been removed from their parents and extended families would appear to be one example of the illogical and self-serving beliefs that he sometimes expressed.”[15]
[15] Family Report paragraph 30
In summary, I am not satisfied that the father does have the capacity to provide for the children’s needs, even in a supervised setting.
The father criticised the mother as a parent, but there was ample evidence that the mother was able to provide for the needs of the children now that her relationship with the father was behind her and provided that she was not put under pressure by being forced to comply with orders about the children spending time or communicating with the father.
Ms K said that she had known the mother since 1992. Ms K said that she had lost touch with the mother when the mother was living with the father, but had resumed her friendship with the mother in late 2007. In her affidavit sworn on 10 December 2008 she commented positively on the mother’s interaction with the children. Ms K was not required for cross-examination.
Ms S gave evidence that the mother was a capable parent of [Z] after [Z]’s birth.
Ms Derrington saw [X] and [Y] in the company of their mother and [Z] when she visited the mother’s home and in the company of the mother and Ms S when she visited Ms S’s home. She said as follows:
“Observations generally of the two little girls during the time at either of the homes indicated children who were relating in age-appropriate ways with their brother and mother and carer, and who appeared happy and healthy.”[16]
[16] Family Report paragraph 36
I am required to consider the attitude of each parent to the duties and responsibilities for the father.
On the positive side for the father, he has tried persistently to spend time with his children. He persisted in seeing [X] for the first six months after separation, despite being unhappy about the conditions imposed on him, and ceased seeing her only when the mother stopped allowing him to do so. I do not accept that he is seeking to spend time with the children as part of a vendetta against the mother.

Ms Derrington reported however that:
“Mr Bernard stated several times that he was not interested in an outcome where he would have to wait several years to begin developing his relationship with the children, stating that in this case he would find another woman and “go and make some more (children)”. He repeated several times that if his wish to be involved in the children’s lives was not to be fulfilled in the short term, he intended to move on and father more children and leave these children behind.”[17]
[17] Family Report paragraph 26
This shows a very poor attitude to the duties and responsibilities of parenthood.
In behaving in a violent fashion to the mother of his children, and thus seriously compromising her ability to parent the children, the father showed a particularly poor attitude to the duties and responsibilities of parenthood.
I must consider any family violence involving the child or a member of the child’s family.
I am satisfied that the mother and to a lesser extent [Z] suffered family violence, as defined in the Family Law Act, at the hands of the father during their relationship. He was also violent to his own father in 2008.
The father has little insight into the effect of his violence on those around him. Ms Derrington said as follows:
“….Mr Bernard appeared either unwilling or unable to provide any reflection on his own behaviour. When he did express regret about the past, it was difficult to discern exactly what he meant and primarily it seemed that he saw himself as a victim of the circumstances of his life. He seemed at one stage to be saying that he thought that anyone who had been born into a situation of being torn between two cultures would end up doing violence of some kind. In relation to his conviction for sexual assault,

Mr Bernard made the comment “I can’t change it. Only did it to her. Wouldn’t do it to my kids”.[18]
[18] Family Report paragraph 24
Ms Derrington also said as follows:
“It was clear that Mr Bernard sees himself primarily as a victim – of his mixed race heritage, of white people, of doctors, and in some sense of Ms Simon. His identification as a victim is explained in the literature about men who commit violence, where descriptions of the psychological makeup of perpetrators include that as a result of parenting deficits in their own childhoods, a particular category of men experience a great need to have control over the women in their lives, and use controlling abuse to achieve this. Such men often have limited life skills and are characterised by manipulative survival skills they developed essentially in their childhoods.”[19]
[19] Family Report paragraph 28
Ms Derrington considered the father’s convictions for drinking driving and observed that:
“It is likely that it must be concluded that Mr Bernard has a long-term, chronic, and serious problem with abuse of alcohol. The association between chronic alcohol abuse and disinhibited violent behaviour is well established in the relevant literature. While the nature of the abuse which features in this matter mostly appears to accord with coercive controlling and intimidating male to female domestic violence, the indications that alcohol abuse is also a feature in this man’s behavioural repertoire must be taken into consideration concordantly in considering the issues.”[20]
[20] Family Report paragraph 44
The father’s violence has a number of implications in this matter. His propensity for violence means that the children will be at risk of physical and psychological harm if they spend unsupervised time with him. His ready resort to violence makes him an unsuitable role model for the children. The damage which his violence has done to the mother has created a situation where it is intolerable to her that the children spend time with the father, and where the mother’s parenting capacity is likely to be affected if orders are made that the children spend time with the father.
There may well be family violence order in place against the father. The first order expired on 7 August 2009 and prior to its expiry the mother applied for an extension of the order for ten years. The father opposed this application and the matter was listed for hearing on

24 July 2009. After the mother had been at court for some time on that day, the father agreed to the order being extended to 23 January 2010. The mother’s evidence in December 2009 was that she intended to apply after the family law hearing for an order which would be in place for ten years.

Conclusion

It was the mother’s case that the father was pursuing orders about [X] and [Y] as part of a vendetta against her, and as part of a continuing attempt to control her. I do not accept that this is the case. I am satisfied that the father genuinely desires to spend time with [X] and [Y].
It does not automatically follow however that it is in [X] and [Y]’s best interests that they spend time with their father in prison or that they have a relationship with him in the longer term.
If the father’s term of imprisonment was relatively brief, if the children were older, if they already had an established bond with the father and if it were likely that they would benefit from having a relationship with the father upon his release, then an order that the children spend time with the father at the prison might be something to be considered. In this case however none of these factors are present.
The children are very young and the father is a stranger to them. They would have to be taken to the prison by someone they did not know well. The prison visiting area would not be conducive to the children doing anything of value to them with the father. There is a risk that the father might say something inappropriate to the children, and even a risk that they might witness him losing his temper.
The only possible value to the children of visiting the father in prison would be so that they were able to recognise him and perhaps more easily take up a relationship with him upon his release. Regrettably however the evidence strongly suggests that there is no benefit to the children to be derived from having a relationship with the father in the longer term.
Soundly based concerns were raised by Ms Derrington about whether the father had the capacity to provide safe care for the children, given his violent temperament, lack of impulse control, propensity to abuse alcohol and possible mental health issues. The children could be at risk of emotional harm if they spent even supervised time with the father given his attitude to women, disordered thinking and lack of empathy with the children. The mother’s capacity to parent the children could be compromised if she were forced to comply with orders that the children spend time with the father.
The objects and principals set out in s.60B(1) & (2) of the Family Law Act emphasise the importance to children of having two parents in their lives. These sections provide in part as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
This section however emphasises the rights of children, not the rights of parents. There are occasions when, because of a parent’s own propensities, attitudes or addictions it will be of no benefit to the child, and may expose the child to unacceptable risk of harm to have that parent in their lives. Sadly in my view this is such a case and I intend to order that the father spend no time with and have no communication with the children.
The father sought orders that he be provided with photographs and information about the children and be permitted to obtain information about them from their school once they commenced school.
During cross-examination by the Independent Children’s Lawyer, the mother said that as long as she herself did not have to take the photographs or provide the information she had no objection to this occurring. In final submissions however the mother’s counsel opposed such an order being made.
I have formed the view that there will be no benefit to the children in having a relationship with the father in the future, and as a result I concur with the opinion of Ms Derrington that making an order that the father be supplied with photographs and information about the children would serve only the father’s interests and not the children’s. I therefore do not intend to make this order.
The father particularly wanted the mother to provide him with the photograph of [X] taken at his mother’s gravesite. While I have some sympathy with the father in this regard there is no evidence that such an order would serve the children’s best interests. The father can arrange for other members of his family to provide him with a photograph of his mother’s grave site. I do not intend to make this order.
The father consented to an order that the mother have sole parental responsibility for the children while reserving his right to argue for an injunction restraining her from relocating the children and his right to argue about the change of surname.
The mother has no immediate intention of leaving Alice Springs. However the mother’s solicitor opposed the restraint being made. It was the mother’s case that she might want to leave Alice Springs when the father’s release was imminent.
The mother has never lived anywhere else than Alice Springs and while I accept that she fears the father, I consider it somewhat unlikely that she will actually decide to leave. However as I do not intend to make any orders for the father to spend time with the children either while he is in prison or after his release, and as I am satisfied that the mother is a capable parent, I do not intend to impose a restraint on relocation.
As the mother will have sole parental responsibility and sole care of the children, there is merit in the proposal that [X]’s surname be changed so that she has the same surname as her mother, brother and sister.
I do not consider that [X] or [Y]’s identity as members of the “Bernard-Pines mob” will be lost as a result. The father will remain named on [X]’s birth certificate (although he is not on [Y]’s). Alice Springs is a small town and the children’s existence is known to members of the father’s family. As they grows older they can pursue this connection if they wish, and there is nothing to prevent members of the father’s family approaching the mother about spending time with the children if they are minded to do so.
For all of the above reasons the orders of the court shall be as set out at the beginning of this judgment.

I certify that the preceding one hundred and sixty six (166) paragraphs are a true copy of the reasons for judgment of Terry FM

Date: 29 April 2010