Blaine and Rodelgo

[2017] FCCA 1641

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLAINE & RODELGO [2017] FCCA 1641

Catchwords:
FAMILY LAW – Application for parenting orders – hearing of separate issue pursuant to Part VII Div. 12A – whether children at an unacceptable risk of harm from father – whether children at risk of harm from mother – finding of unacceptable risk made.

Legislation:

Family Law Act 1975 (Cth), Part VII Div.12A

Applicant: MS BLAINE

Respondent: MR RODELGO

File Number: LEC 271 of 2015

Judgment of: Judge Jarrett

Hearing dates: 20 and 21 February 2017

Date of Last Submission: 22 February 2017

Delivered at: Lismore

Delivered on: 22 February 2017

REPRESENTATION

Counsel for the Applicant: Ms Harding

Solicitors for the Applicant: O’Reilly & Sochacki

The Respondent appeared in person

Counsel for the Independent Children’s Lawyer: Mr Theobold

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Lismore Family Law

ORDERS

1. The father’s application in a case filed on 2 June, 2016 be dismissed.

2. The Independent Children’s Lawyer must file and serve within 21 days of the date hereof, written submissions as to the following issues:

   (a)Whether it is appropriate to make final orders;

   (b)Whether a further hearing is necessary; and

   (c)If final orders are appropriate, what final orders ought to be made.

3. The mother must file and serve her written submission as to the abovementioned issues 14 days thereafter.

4. The father must file and serve his written submission as to the above mentioned issues 14 days after that.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LISMORE

LEC 271 of 2015

MS BLAINE

Applicant

And

MR RODELGO

Respondent

REASONS FOR JUDGMENT

1. On 2 June, 2016 the respondent to these proceedings, Mr Rodelgo, filed an application in a case in which he sought some orders that these proceedings be transferred to Brisbane or Southport; that the orders providing for the children’s time with him be varied to provide for that time to be unsupervised, with changeovers to occur at a contact centre located between Town A and Brisbane or, alternatively, for the children to spend time with him at a contact centre or private supervisor located between Town A and Brisbane.  He sought some other consequential orders.

2. When that application came before me for hearing on 17 October last year, the father pressed the application principally on the basis that the time between the children and him should be unsupervised – there was no need for supervision.

3. The response to that from the solicitor for the applicant, Ms Blaine, was that there was reason to be concerned that if there was unsupervised time, these children would be exposed to an unacceptable risk of harm from the father.

4. There was much discussion between the father and me and the mother’s solicitor about whether there was a need for supervision or not, but ultimately it became apparent that there were issues of fact that were in dispute – issues that would inform a determination about whether there was, indeed, an unacceptable risk of harm to these children if they had unsupervised time with their father.

5. For that reason I determined that I would exercise the powers that were available under Division 12A of Part VII of the Family Law Act1975 (Cth) to try to narrow the issues in the proceedings somewhat and to make a determination about those facts that would inform a decision about the question of unacceptable risk for these children if they were to have unsupervised time with their father. I made some orders that were, in fairly general terms, about that and listed the matter for hearing, confining to the issues for determination to those findings of fact necessary to inform a conclusion about unacceptable risk of harm to the children from either of their parents.

6. The hearing took place earlier this week.  In preparation for the hearing, the parties – including the Independent Children’s Lawyer – were asked to file a document that set out – amongst other things – the findings of fact for which they contended.

7. The mother filed a document – an outline of case document which set out a number of purported findings of fact.  There were some 21 in number.  Items numbered 1 and 21 were not pressed, but the others, it was said, were pressed.

8. There are very few, however, strictly factual matters that are set out in the findings of fact contended for by the mother.  By and large, what appears in paragraphs 2 through to 20 are conclusions that one might reach after having made some other antecedent findings of fact.  Paragraph 2 itself is a good example of that.  So is paragraph 3.  Paragraph 4 is one of the few examples of a fact which might be found and which might lead to a subsequent finding – a more generalised finding about unacceptable risk.

9. The father filed an outline of case as well.  The father has represented himself in these proceedings.  He is not a lawyer.  And his outline of case does not identify any findings of fact, in the sense that the Court asked for those findings to be expressed.  He sets out a number of findings that he contends for.  There are 32 of them in number.  Those, too, are conclusions that might be reached after some other antecedent findings of fact are made.  There are one or two exceptions to that, although the way in which those findings that are contended for by him are phrased makes it difficult to separate the fact from the conclusion.  See, for example, paragraph 9 and paragraph 10 in his case outline.

10. The Independent Children’s Lawyer did not even attempt it.  I do not know why.  The order applied to the Independent Children’s Lawyer as much as it applied to the parties.  No explanation for that abject failure was offered. 

11. At the conclusion of the trial, counsel for the mother handed up a document entitled “Additional Findings of Fact Contended for by the Applicant Mother”.  It does a much better job of setting out the findings for which the mother contends, which, if made, might lead to the conclusion that these children are at an unacceptable risk of harm.

12. The father’s application in a case was preceded by a family report that was released on 7 December, 2015 prepared by a family consultant, Ms B.  As a result, it seems, of some confusion, there was no cross-examination of Ms B, but as matters turned out, it was unlikely that any cross-examination of her would have been useful.

13. Ms B, after considering her interviews with the parents and the children – such as the interviews were with the children – made some recommendations.  The recommendations are that the children live with their mother and that they continue to spend time with their father for two hours per fortnight at a supervised contact centre, either in Town C or in Town D in Queensland.  Should the father fail to attend on two occasions, the mother should no longer be obliged to attend the centre.

14. Ms B made some other recommendations, but it is relatively clear that Ms B’s recommendations were long-term recommendations and were contingent upon the father doing certain things.  She recommended that the father provide to the Court an up to date psychiatric assessment.

15. Before I leave Ms B’s report, it is important to note that to Ms B’s observations, these children were very excited to see their father.  They plainly enjoyed very much the time that they spent with him for the purposes of her interviews and her observations and it was equally apparent that the father cares deeply for and loves his children.

16. The psychiatric assessment that Ms B suggested ought to be obtained has been obtained by the Independent Children’s Lawyer.  There was an affidavit filed by leave on 17 October, 2016 by Dr E.  Dr E appends to her affidavit a report.  There are some things to which I will refer later in these reasons that arise from her report, but for present purposes, Dr E made a number of recommendations after concluding that there was no evidence of any mental illness on the part of the father.  Nor was there any suggestion – and she could make no diagnosis – of any personality disorder on his part.

17. Dr E made nine recommendations and the most significant, for present purposes, is the first.  That is, that if:

    …any issue of safety for the children is identified then such measures should be put in place to ensure the children’s safety.

18. And secondly, recommendation number 3:

    That Mr Rodelgo continue counselling with his psychologist.  Suggested issues for inclusion include management of depression and anxiety, anger management, reactions to conflict and loss and continuing to resolve his anger with Ms Blaine such that he can interact with her in a respectful way, avoid being provoked should that occur or he perceive that as her intention and can support the children’s relationship with the mother.

19. Dr E suggested that Mr Rodelgo engage in training courses that provide information about childhood development and for him to obtain information about the effects of exposure to aggression.  She also suggested that both parents complete a post-separation parenting orders program or similar.

20. It is against that background that I turn to the findings contended for by the mother and the father.  I will do that by reference to the document headed “Additional Findings of Fact Contended by the Applicant Mother”.

21. There is some overlap in the subject matter between what the mother contends for and what the father contends for, and I will deal with that and make the requisite finding in due course.

22. The first fact of any substance contended for by the mother is that on 4 December, 2013 the father held a knife to the mother’s throat.  That fact is uncontentious.  That day was the date of the parties’ final separation.  The father gave evidence that he was concerned about the children’s welfare because it was the third day in a row that the mother had woken the children early so that she could take them on a road trip to the … New South Wales area.  She had done it, he says, on two previous occasions – two previous days, and the children had returned tired and distressed.

23. He formed the view that it was not in their interests for them to make the journey again for the purposes of attending the mother’s nephew’s graduation.  He was to attend work, but he determined not to go to work and to remain home for the children.

24. The father says that he became agitated with the mother.  He was making his breakfast and he “exploded”, at least that is what he told Ms B, and he grabbed the mother by the throat with his left hand and held the knife that he was using to her throat with his right hand.  According to the mother, the knife left a mark when it was taken away.

25. There was some debate in the proceedings before me as to whether it was a steak knife or a butcher’s knife or a butter knife.  In my view, it does not matter one jot what sort of knife it was.  There is no dispute that it was a knife and that the father had held it to the mother’s throat in a threatening manner.

26. I find that that incident occurred.  I also find that in doing so, the father threatened the mother with words to the effect:

    If you leave me, I will fucking kill you.

27. The father admitted to that in several instances of the evidence. 

28. Although he denied it, I also find that the father hit the mother across the jaw.  He – I am satisfied by the mother’s evidence – attempted to strangle the mother by holding his hand to her throat with force.  I do not find, however, that he had a clear intention to kill the mother, because it seems to me that had that been his intention, he would have attempted to do so.

29. I am satisfied that the children, [X] and [Y], were in the kitchen during the altercation between the parents.  The father disputes that they were present now, but in the past he has given evidence that is consistent with the mother’s evidence that the children were present.  He says so in affidavits that he has filed previously in these proceedings.  And he told that to others to whom he has reported this incident, such as the family report writer.

30. I accept that the child, [Y], was in the mother’s arms during the altercation between the mother and the father when he held the knife to her throat.  I also accept that [X] was in the kitchen and she witnessed the behaviour and was upset by it.

31. The father has made threats against the mother’s life since then.  Immediately following the altercation, the police were called.  The father says he instigated it.  The mother says she instigated it.  It does not matter who instigated it.  The police came and the father was taken to the Suburb F Hospital.

32. At the Suburb F Hospital he told a social worker there that if his children were not there he would have killed the mother.  His claim, though, was that he had been bullied by her and it had been her bullying – including physical assaults and the withholding of sex – that determined, in his mind, that he had had enough.  To use his words, he “exploded”.

33. The evidence leads me to find that the father justified his behaviour by reference to what he considered to be the mother’s bullying of him.  He claims that he was provoked by her in the ways in which I have just expressed.  He confirmed that, as counsel’s submissions point out, in cross-examination.

34. The father has reported, both to the family report writer and elsewhere, that both the police and psychiatrists, whom he consulted on 4 December, 2013 – three of them – all agreed with his view that he was the victim in the situation.

35. How it can be said that he was the victim when he was the one who held one hand around the mother’s throat whilst he held a knife to her throat with the other is beyond me.

36. To the extent that he might have been subjected to bullying behaviour by the mother, it is still inexplicable that he would behave in the way he did, especially in front of the children.

37. The threats that the father made about the mother to the social worker at the Suburb F Hospital on 4 December, 2013 that if the children were not there he would have killed her, are not the only threats that he has made against the mother.

38. On 31 January, 2014 there was a telephone discussion between a staff member of the Suburb F Triage Facility and the father.  The evidence demonstrates that he reported that he was going to pour petrol or thought about pouring petrol on the mother and setting her alight.  He was asked about whether he would do that and he replied that he might.  When he was asked about what might happen if he did that, he replied, “I don’t know.  Do you want me to try?”

39. The father admits making those threats against the mother.  He admits telling the triage clinician the matters to which I have just referred.

40. A couple of days later on 4 February, 2014 the father had another telephone discussion with a staff member at the Suburb F triage facility and he reported, during that telephone conversation, that he gets angry easily; that he has thoughts of wanting to hurt the person who has made him angry; he becomes impulsive when he is angry; and he sleeps less, due to ruminating thoughts about wrongdoings against him.

41. Exhibit 6 sets out those matters, and I find that the father said those words or words to that effect in the telephone discussion he had on 4 February, 2014 with the triage clinician.

42. The threats against the mother by the father have not stopped there.  In April, 2015 the father had a telephone discussion with a DVConnect operator.  He was cross-examined about that during the course of the trial and he admitted that he said to the DVConnect operator words to the effect that during the contact sometimes when his “ex is talking to him, he feels like strangling her”.

43. Later that year, on 30 November, 2015 the parties attended upon Ms B for the purposes of the family report to which I have earlier referred.  Ms B conducted a joint interview between the parents.  The family report notes the following:

    17.  The consultant then asked each parent to say what they thought might improve the current situation for the children.  The mother said that she wanted to have an open dialogue with the father, but with acknowledgement of the past and how it impacts on the present and future.  She added that the father needed to recognise the children’s ages and stages of development so that his time with them could be safe and continuous and stable.  The consultant then asked the father what he thought might improve the situation for the children, and he replied “for her to die”.  He then added “just let the judge decide”.  The consultant ended the interview.  The father appeared unaware and unconcerned at the effect of his words on the mother, who was clearly intimidated and fighting back tears.

44. The father did not take issue in any significant respect with what was reported by the family report writer.  I find that he said those things to the family report writer in the presence of the mother.

45. Ms B also interviewed the parents separately.  Ms B asked the father to describe himself, and in response he said, “I always fulfil my promises.  I’ll find it very hard not to fulfil one of them.”

46. Ms B asked him what he was referring to, and the father replied “killing her”.

47. Ms B notes, in paragraph 16 of her report:

    The father casually added that he is old-fashioned, whereas these days nobody keeps their word.  He then said, “The thought of seeing her makes me spew”.  When asked if he meant that he became angry around the mother, he repeated that he felt like being ill.

48. Again, the father did not take any real issue with those records by Ms B when it was put to him in cross-examination.  I find that he said those things to Ms B.  They are consistent with the father’s ongoing threats to harm the mother, commencing with the threats that were made at separation in December of 2013 and continuing, as I have already found.

49. The father, I am satisfied, is overzealous when it comes to the welfare of his children. 

50. The evidence demonstrates that whilst he told Ms B the mother was not a bad mother, he is concerned that nonetheless she does not care for the children properly.  The evidence shows that the father has been concerned for some time now that the mother struck one of the children, [X], across the legs with a broom handle and broke it on her.  He considers that she struck her with such force that she broke the broomstick on her legs and caused two huge elongated bruises across her right shin and a little one on top of her right knee.  He says that this occurred some time in August, 2016 because he saw the bruises in early August, 2016.  He says they were apparent on 6 August when he had a visit with the children at a contact centre.

51. The evidence before me, however, is to the contrary.  Apart from the evidence to which I was taken by counsel for the Independent Children’s Lawyer in submissions that is set out in the mother’s affidavit in reply at paragraph 7(a)(i), (ii) and (iii), there is no other evidence independent of the father that suggests that [X] had any bruising at all to her legs.  There have been observations made by people who are independent to these proceedings which reveal that no bruising was apparent.  More particularly, the contact centre keeps notes of the visits that occur between the children and the father.  The notes for that particular day do not reveal that [X] presented with any bruising, let alone two huge elongated bruises across her right shin.

52. The father caused the New South Wales police to attend at the mother’s home on 6 August at about 8:30pm.  The police checked [X]’s legs, but found nothing.  They attended again on a second occasion and again found nothing untoward.

53. I am satisfied that the mother did not strike [X] with a broomstick with such force as to break the broomstick and cause two huge elongated bruises across her right shin and a little one on top of her right knee.  I am not satisfied by the evidence that the mother struck [X] with a broomstick at all.  Whilst I am satisfied that the father observed something on [X] which caused him concern I am satisfied that his hypervigilance about the children’s welfare has led him to conclude that something has occurred at the hands of the mother which has led to the bruising.  But I cannot be satisfied that what he reports as having observed on the child [X] was in fact observable by him.  There is no evidence other than his own which suggests that the child had any bruising of any significance and, in those circumstances, I reject his case about that. 

1. The father has been the subject of concern at the contact centre in that he has continually and inappropriately according to the contact centre notes, checked the children for bruises.  He did so on 20 August, 2016 where he checked both children for bruises and scars and he sought that the supervisor of the visit also examine the children.  On 31 August, 2016 I am satisfied that the contact centre staff were so concerned that they raised with the father the need to keep the visits to the contact centre child-focused and to not check the children over so as to avoid alarming the children. 

2. The father has demonstrated behaviour, I find, which tends to suggest that he places his own interests and his own feelings before those of the children.  Exhibit 9 in these proceedings are notes kept by the Interrelate Children’s Contact Centre.  They record exchanges on 10 December, 2016 between [X] and the father.  The notes record that the children and the father were sitting in a tent with some birds that the father had taken to the contact visit and the child said to the father that she “misses mummy”.  The father said to her “Why do you miss mummy?”  And the child said “because I love her the most”.  The notes record that the father did not reply for a moment and the child started talking about the birds.  But the father focussed on what the child had said and he asked “Why did you mention this today?”  The child did not respond and the father got out of the tent and said to the child, “If you miss mummy you go”.  The father said to the worker who was present that the visit was over but the child said that she did not want to go and that she wanted to stay with the father.  The notes record that the father insisted that the child leave as she was missing mummy but she, nonetheless, said that she did not want to leave.  The father is reported to have turned to the worker and asked the worker “not to coerce my children.  They have been coerced enough”.  It seems that the visit was then able to resume although the father remonstrated with the child [X] and told her “don’t ever repeat what your mother tells you to say”. 

3. There were other events that occurred on 12 November, 2016, 7 January, 2017, and 4 February, 2017.  Those events are recorded in the contact centre notes.  To the extent that the father did not agree with what is recorded in the contact centre notes I prefer the evidence set out in those notes.  That is because, first, the notes are a contemporaneous record made by the person completing the notes.  Second, they are made by a person whose job it is to supervise and make observations of time between parents and their children and record them.  Third, those people are independent of the parties and have no particular reason, or indeed it seems to me any reason at all, to record anything other than what has actually been observed by them.  I prefer what is in the notes to the father’s evidence of these events in cross-examination. 

4. I accept that the father has habitually been abusive verbally to the mother.  The mother filed an affidavit in these proceedings some time ago now.  It is exhibit 5 in the trial.  It is an affidavit sworn on 1 June, 2015.  The father responded by way of an affidavit that he filed on 2 September, 2015.  He refers specifically to certain paragraphs in that affidavit with which he agrees.  His agreement is set out at paragraph 27 of his affidavit.  Some of the paragraphs with which he agrees are surprising but there was no attempt by him to resile from his agreement. 

5. For example, the mother swears in paragraph 13 of the affidavit that “between August, 2014 and the present date there has been ongoing harassment and threats from Mr Rodelgo towards myself”.  The father agrees with that.  In paragraph 17 she swears “in approximately … 2011 I fell pregnant with [X].  When I first told Mr Rodelgo he said he wasn’t sure it was his baby.  He would often tell me throughout my pregnancy words to the effect of ‘you’re a slut and a whore’.  He would often refer to the fact that the baby was not his but he would treat it as if it was his and he would be a good father”.  His affidavit admits to that although in cross-examination he said that he does not use the word “whore”.  There are many other examples of the father’s acceptance that he has treated the mother very poorly by calling her names, by harassing her and by engaging in behaviours which are designed to cause her distress and discomfort. 

6. The father asks for findings that the mother has been deliberately attempting to antagonise him.  There are two particular examples upon which he relies.  The first is that she frequently presents [Y] with fingernail polish on his toe nails.  I am not satisfied that the mother has engaged in that behaviour to deliberately antagonise the father.  The evidence reveals that the father is quite concerned with the behaviour but there is nothing in the evidence, in my view, that suggests that the mother has engaged in that behaviour deliberately for the purposes of antagonising the father.

7. On one occasion when the children visited the contact centre to spend time with their father they took him a gift.  It was a tin of preserved meat commonly called “Spam”.  The father seemingly took offence to that and claimed that by reason of the mother sending that gift with the children she was attempting to engage in some form of deliberately antagonising behaviour.  The mother’s explanation was that she thought the father would appreciate a gift from the children and that in the past they had been camping together and had consumed the particular product that the children took to the father.  She thought he liked it.  Her evidence is that she hoped that it might be seen as a gesture of goodwill and a present from the children.  Unfortunately, it was not.  I accept the mother’s evidence about that matter.  I am not satisfied that the mother has attempted to deliberately antagonise the father by either painting the children’s nails with nail polish or by providing them with some Spam to give to him as a gift. 

8. The findings of fact for which the father contends are phrased in difficult ways.  For example, I have referred to this earlier, the father seeks a finding that the mother has “kidnapped the children, threatening to take out fraudulent AVOs on the father if he objected to her relocating herself and the children to New South Wales”.  There are a number of facts rolled up in that allegation and to the extent that the gravamen of it is that the mother has “kidnapped the children”, she has not kidnapped the children at all and to the extent that he suggests that she has threatened to take out fraudulent AVOs there is no evidence that any AVOs that she has threatened to take out are “fraudulent”.  I do not intend to deal with each of the matters raised by the father one by one mainly because of the form in which they have been presented.  They are dealt with to some extent by the findings that I have made by reference to the findings sought by the mother. 

9. More generally though I can say that I am not satisfied by the evidence that the mother has failed to provide adequate medical attention to the children.  I am not satisfied that she allows them to live in a household which is unhygienic even though they may, from time to time, sustain flea bites and share the house with cats.  Nor am I satisfied that they are at risk because they get cuts or scratches from the cats. 

10. I am not satisfied that the children have presented with skin fungi, ringworms or bowel worms.  I am not satisfied that [X] has presented with one bruise on each inner thigh and four bruises on the outer thigh, as if she had been violently grabbed, nor am I satisfied that the child has sustained or had to endure a large untreated wart on her palm.  I am not satisfied that the mother has lied in the Family Court, as the father alleges, about the father’s treatment of the children.  I am not satisfied, as I have already indicated, that the mother assaulted [X] with a broomstick. 

11. I am not satisfied that the mother stalks the father through social media.  The evidence does not support that.  Nor does the mother, according to the evidence, expose the children to pornographic paintings apparently displayed in common rooms.  I am not satisfied that the children are sent to the contact centre in dirty clothes with the children stating that they are the clothes that they slept in, smelling of cat urine and with un-brushed hair.  The father had the opportunity to place before me the contact centre records which may have indicated those things but did not do so.  I draw from that the inference that there is no evidence to support his claims about those matters. 

12. The father makes allegations about the standard and nature of the children’s toilet training but those matters are not factual matters.  They are argument and there is no evidence to support the arguments.  I am not satisfied that the children have complained to their father that they have nightmares after being allowed to sit up very late with the mother watching “scary movies” the night before “visitations with the father”.  I am not satisfied that the children have said to the father “we love the big bonfire mummy took us to”.  The father infers that that was after an event known as “…”.  In any event, even if that was so, it is no reason or no cause for alarm. 

13. I am not satisfied that the children are woken up by their mother at night time, prior to visits with the father at the contact centre, so that they are exhausted when they are with the father as the father alleges.  The contact centre notes do not bear out those allegations.  There are no relevant observations by the contact centre staff that the children are unreasonably tired. 

14. I am not satisfied that the mother engages in adult conversations with the father in front of the children exposing them to matters to which they ought not be exposed.  It has been a considerable period of time since the children have had the opportunity to see their parents together and I am not satisfied that since the time has been occurring at the contact centre that there has been any improper exposure of these children to adult conversations between the parents. 

15. Mr Rodelgo relied upon evidence from two witnesses to support the proposition that the mother has engaged in a process of alienating the children from him and using the “court system” to ensure that these children do not have the opportunity of having an appropriate relationship with him.  The first witness was Ms G.  She sets out in her affidavit two episodes in which she had contact with the mother.  The first episode of contact was a chance meeting, according to Ms G, on the beach at Town H when she was there with her children and the mother was there as well.  She gives evidence of a conversation between herself and the mother to the effect of the mother telling Ms G how she might go about avoiding the inconvenience – that is my word, not hers – of having to facilitate a proper relationship between her children and the father of those children.  Ms G was cross-examined about that incident but averred that it was true.

16. The second incident was an episode when Ms G was sitting in a car with another person, a person called Ms J who has also given evidence in these proceedings.  Ms G says that the mother approached the car, placed her head inside the driver’s side window and threatened Ms G that if she gave evidence in these proceedings against her that the mother in these proceedings would harm Ms G’s children. 

17. I reject all of Ms G’s evidence outright, notwithstanding that she was unshaken in cross-examination.  In my view she demonstrated herself to be a dishonest witness from the outset.  She did not wish to reveal her address in court despite me asking her to do so on more than one occasion.  On the first occasion that I asked her she said it was in the affidavit.  The affidavit contains an address but when she gave her address in evidence, orally, the address was different to that which is set out in her affidavit.  She said that she had moved but it is clear that her affidavit was incorrect or her oral evidence was incorrect.  It does not matter which.  The fact of the matter is she intended to be misleading and attempted to mislead the Court.  That is a sufficient basis in my view, as Mr Theobald submitted, to discount her evidence in its entirety. 

18. Ms J gave evidence that she was present when Ms G was approached by the mother in her motor vehicle.  Ms J did not attend the court to give her evidence in person.  There was a medical reason for that.  I make no criticism of her for not attending court in person but her evidence was given via telephone.  She freely admitted that she did not know the mother and did not know what she looked like.  She freely admitted that she did not know that it was in fact the mother who approached the motor vehicle in which she and Ms G was seated.  She only knew that it was the mother from what Ms G told her.  I have already rejected Ms G’s evidence about that episode.  I reject Ms J’s evidence about it as well.  In any event, Ms J was not able to positively identify the mother as the person making the threats. 

19. Having regard to those findings it is necessary to consider whether there is an unacceptable risk of physical, psychological or emotional harm to these children by reason of them being exposed to abuse, neglect or family violence in the care of the father.  That was the ultimate issue which was set for determination on these proceedings. 

20. Counsel for the mother contends that there is a risk of both physical and emotional harm to these children.  The physical harm arises out of, by implication, the threats made to the mother, although the mother was careful to say that the father had not harmed the children in any way nor had he threatened to do so. 

21. She also suggested that a physical risk of harm was revealed by the father’s overzealous examination of the children and his hypervigilance about their welfare and, in particular, the existence of scarring, bruising and bites on their bodies.  She suggested that there was a risk of emotional harm to these children given the father’s ability to behave in ways which focused on himself rather than on them.  He was liable to expose the children to emotional harm by reason of his attitude towards the mother, reflected in his threats on her life over such an extended period of time.  Counsel for the Independent Children’s Lawyer made the same points.  The Independent Children’s Lawyer urged me to find that the children were at an unacceptable risk of physical and emotional harm.  

22. As to the question of physical harm, counsel for the Independent Children’s Lawyer highlighted the episode that occurred so long ago as December, 2013 but pointed out that that occurred in the presence of the children as I have now found.  That is of considerable concern because, as Dr E points out in her report, the very fact that children have witnessed violence between their parents is of considerable significance.  Dr E sets out in her report the risks for children who might be exposed to violence between their parents. 

23. Counsel for the Independent Children’s Lawyer emphasised that there was reason to be concerned about the father’s physical threats towards the mother because, in the father’s view those threats were justified by reason of her behaviour.  It would not be difficult to imagine that as these children grow older, and their behaviour towards the father becomes more challenging, that he would be likely to make threats towards them perhaps not to kill them but threats nonetheless, which might have an effect on their physical and emotional welfare.  Counsel for the Independent Children’s Lawyer highlighted the callous nature of the threats made by the father towards the mother about which the mother was informed and which must have caused her considerable distress. 

24. The father’s behaviour indicates a proclivity towards impulsiveness – impulsiveness that follows upon him being challenged and his authority being challenged.  The notes of the contact centre are consistent with that view.  Counsel for the Independent Children’s Lawyer pointed out that in her report Dr E recommended that the father continue his counselling with those that were providing assistance to him.  I have already recounted the recommendations made by Dr E in that respect. 

25. Counsel for the Independent Children’s Lawyer quite properly pointed out that the father has not done the things that Dr E recommended.  He has not continued his counselling with his psychologist or any psychologist.  He has not sought assistance for the management of depression and anxiety or anger management or his reactions to conflict and loss.  He has not sought assistance with a view to resolving his anger with the mother.  Indeed, as was pointed out in submissions, whilst the father has done some courses, the parenting orders program and other parenting courses, he told the family report writer that they were of no benefit to him and that he received no assistance from them.  They are very concerning matters. 

26. I am satisfied on the basis of the findings of fact that I have made that there is an unacceptable risk of harm to these children in the way in which counsel for the Independent Children’s Lawyer and counsel for the mother have expressed.  That is to say there is an unacceptable risk of physical harm to these children should they have unsupervised time with their father and there is an unacceptable risk of emotional harm to these children should they have unsupervised time with their father.  They have been protected from those risks so far by the imposition of supervised time.  It may be that in the fullness of time, and with the appropriate assistance, supervision will become unnecessary, that is assistance for the father, but that time is not now.

27. Accordingly, it is appropriate to dismiss the father’s application in a case to the extent that it is necessary to do so.  I invite all of the parties now to make written submissions to me as to whether:

    a)it is to appropriate to make orders on a final basis or whether a further hearing in respect of any further issues is necessary, and

    b)if final orders are now appropriate then what final orders ought to be made. 

28. Having regard to the way in which the rules provide for the order of addresses at the conclusion of trials I propose, subject to any further submissions that might be made, that the Independent Children’s Lawyer deliver her submissions first within 21 days of today.  The mother, who is represented by counsel, deliver her written submissions 14 days thereafter and the father then deliver his written submissions 14 days after that.  Depending upon the content of those written submissions I will determine to either list the matter for further hearing or, alternatively, make final orders.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  14 July 2017