BREADEN & WRUCK

FEDERAL CIRCUIT COURT OF AUSTRALIA

BREADEN & WRUCK

[2018] FCCA 274

Catchwords:
FAMILY LAW – Parenting – Children aged 5 and 3 living with their mother – where the parties had a short, miserable relationship which featured constant allegations and counter-allegations of infidelity – where there are allegations and counter allegations of family violence – where the court is satisfied that the mother perpetrated some violence but has no concerns about her parenting capacity and does not consider that the children are at any risk of harm in her care – where the court is satisfied that the father perpetrated some violence and has numerous concerns about him, in particular about his mental health, his propensity for violence, his refusal to acknowledge that propensity and his obnoxious views of the mother – where the children would be at unacceptable risk of being exposed to family violence and abuse or alternatively emotional harm if they spent unsupervised time with the father – where given the father’s views of the mother and his opinion that the children need to be watched for signs of mental illness because he believes it is present in the mother’s family there is an unacceptable risk of the father making allegations about the mother’s parenting of the children and of the matter speedily returning to court if the children spend unsupervised time with him – where there is no point making an order for supervised time if there is no prospect of unsupervised time becoming appropriate – order made for no time and no communication.

Legislation:

Family Law Act 1975, ss.4, 60CC, 61DA

Applicant:

MR BREADEN

Respondent:

MS WRUCK

File Number:

NCC 1247 of 2015

Judgment of:

Judge Terry

Hearing dates:

8, 9 & 10 February 2017, 21 April 2017 & 17 May 2017

Date of Last Submission:

12 July 2017

Delivered at:

Newcastle

Delivered on:

1 March 2018

REPRESENTATION

Appearance for the Applicant:

In Person

Counsel for the Respondent:

Mr Rugendyke

Solicitors for the Respondent:

Catalyst Family Lawyers

Solicitor Advocate for the Independent Children's Lawyer:

Ms O'Rourke

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW Gosford

ORDERS

All previous parenting orders concerning X born (omitted) 2012 and Y born (omitted) 2014 (“the children”) are discharged.
The children shall live with the mother.
The mother shall have sole parental responsibility for the children.
The children shall spend no time with and have no communication with the father.
Pursuant to s. 68B of the Family Law Act 1975 the father is restrained and an injunction is granted restraining him from removing the children from the care of the mother or from any school, day care centre, out of school hour’s service, extra-curricular activity or from the care of any person in whose care the mother has placed them.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1247 of 2015

MR BREADEN

Applicant

And

MS WRUCK

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern parenting arrangements for X, 5, and Y, 3.
The children currently live with their mother and spend two hours per fortnight with their father at a contact centre.
The father seeks at the very least to be able to spend regular unsupervised time with the children. He says that he poses no risk of harm to them and that the mother has fabricated allegations of family violence to try and bring about what she always threatened would happen unless he stayed in the relationship: that he would not see his children.
The father says that the mother was the violent person in the relationship and that he believes she is mentally ill.
However, although the general thrust of the father’s case is clear, it is impossible to discern exactly what he seeks by way of final orders.
The father completed and filed a Case Information document on 2 February 2017 and in that document he proposed that he have sole parental responsibility for the children. He proposed that the mother be required to undergo a mental health assessment and that provided she was not diagnosed as suffering from a mental illness the children spend time with her every second Sunday from 10.00am to 4.00pm. He proposed that if after 12 months the mother had not “made any further breaches” the children’s time with her increase to every second weekend and half of the school holidays.
By implication the father’s proposal in this document was that the children live with him.
Four days later the father prepared a document headed “Final Hearing Final Orders 6 February 2017” and in that document he said that he was seeking “shared” parental responsibility and an order that the children spend time with him every second weekend from Friday to Sunday, each alternate Wednesday overnight to Thursday commencing six months from the date of the orders and half of the school holidays once Y commenced school.
By implication the father’s proposal in that document was that the children live with the mother, and in a minute of order he handed up on 9 February 2017 he specifically sought that order.
In the 6 February 2017 document the father said that he had amended his proposal after reading the Independent Children’s Lawyers Case Outline and in order to try and compromise further and reach agreement.
The father has re-partnered and his wife is an (nationality omitted) citizen and on 17 May 2017, the final day of the hearing, the father tendered a document headed ‘Breaden Amended Orders’ in which he said as follows: [wording as in the original]:
In the event that joint parental responsibility is not obtained regarding the children, as well as the following significant matters are not adequately dealt with. Then the father feels that it would in the children’s best interest to distance himself from the mother as much as possible, while still maintain a relationship with the children.
In the case of orders not providing enough security for the father and the children he and his wife have the intention of setting a life in (country omitted) and having longer periods of time spent rather than fortnightly interactions with the mother. This would minimise allegations and minimise the fear drastically that the father has of the mother.[1]
[1] Exhibit “Z”
He went on to propose that the mother have sole parental responsibility for the children and that they live with her and spend defined time with him in (country omitted) during school holidays.
One way to deal with this would be to treat the 6 February 2017 proposal and the 17 May 2017 proposals as alternative proposals but the problem is that in the father’s written submissions he is all over the place about the orders he seeks.
Some of his proposals in his written submissions hark back to the 2 February 2017 document; in particular the proposals that the court might like to consider requiring the mother to submit to a mental health assessment before making a final decision and that he should have either sole parental responsibility or sole parental responsibility for specific matters.
Confusingly there is also paragraph 18 where after asserting that the mother has fabricated allegations of family violence he says as follows:
Such misconduct by the mother should not disadvantage the father unless it can be reasonably established that (…) equal shared parental responsibility is untenable and not in the children’s best interests. The court should find that the controlling nature and the risks of mental health with the mother having depression and the mother conceding family history of Bi Polar. That the children should live with the father, the father relocate to the (omitted) area so the children have minimal disruption and the father have sole parental responsibility.
Then at paragraph 20 the father says as follows:
…It is in the best interests of the children to have Ms G [the father’s wife] involved in the long term welfare decisions of the children through affording the father equal shared responsibility.
Whether this is intended to mean equal shared parental responsibility with the mother or equal shared parental responsibility with Ms G, I do not know.
At paragraph 24 the father seems to revert to the idea of the children living with mother. He says:
The father seek that the Court may wish to convey to the mother that any further misconduct WILL result in serious repercussions potentially affecting changes to parental responsibility and contact in favour of the father.[2]
[2] Paragraph 24 of the Written Submissions filed on 12 July 2017.
The father’s written submissions are most confusing and it is unclear to me exactly what he seeks by way of final orders.
The mother’s case is that the father was a perpetrator of family violence, that the children would be unsafe in his care, that she will be extremely anxious if an order is made for him to spend time with them and will have trouble complying with it and that the extent to which the father is committed to having a relationship with the children is open to question anyway.
The mother seeks an order for sole parental responsibility and proposes that the children live with her and spend no time with the father.
The Independent Children’s Lawyer’s proposal is that the children should live with the mother, that she should have sole parental responsibility for them and that they should spend unsupervised time with the father, commencing with two hours on a weekend day and gradually increasing until they are spending time with him on alternate weekends from Friday to Monday during school terms and also time during the school holidays.
The Independent Children’s Lawyer submitted that the mother had fabricated allegations about the father to prevent the father having a relationship with the children and that the children would not be at unacceptable risk of harm in his care.

The evidence

The father relied on his Affidavit filed on 13 January 2017, the affidavit of his wife Ms G filed in court on 9 February 2017 and the affidavits of his friends Ms J, Mr D and Mr H filed on 13 January 2017.
The mother relied on her Affidavit filed on 13 January 2017.
A family report was prepared in April 2016 by Ms A, a Regulation 7 Family Consultant.
The father, Ms G, the mother and Ms A were cross-examined.
Ms J, Mr D and Mr H were not required for cross-examination and their evidence therefore goes in unchallenged but their evidence do not assist me.
The affidavits of Mr D and Mr H are brief and speak positively of the father but that kind of evidence never takes a case very far.
Ms J said that she found the father to be a thoughtful, considerate person when she lived next door to the parties but that does not preclude him having been violent to the mother, and Ms J’s evidence that she saw the father interacting patiently with X is not particularly helpful when she did not say how often or when she saw the father and X together.
Ms J’s retelling of things said to her by the paternal grandmother is not a satisfactory substitute for the paternal grandmother giving evidence.
Some of the father’s evidence caused me considerable unease, not unease about the mother which was the unease the father no doubt hoped to create, but unease about the father. He said as follows in his affidavit for example:
I had forgiven a lot of Ms Wruck’s emotional and physical abuse that she inflicted on me due to Ms Wruck disclosing throughout the relationship that she was struggling emotionally with multiple accounts of childhood sexual abuse and as an adult multiple accounts of rape. Ms Wruck refused to talk to anyone about these and said If (sic) I was to tell anyone that she would kill herself and the children. [3]
[3] Father’s affidavit paragraph 92
He also said as follows:
I am extremely fearful of what Ms Wruck will do to the children and my family now that she will have access to this affidavit.[4]
[4] Father’s affidavit paragraph 145
Elsewhere in his affidavit he said:
I fear that until Ms Wruck seeks help for issues of murder and suicide that X and Y will not be safe.[5]
[5] Father’s affidavit paragraph 36
There is not even the remotest hint in any of the material available to me that the mother is someone who might kill or deliberately harm her children, and I do not accept that the father genuinely fears that she might murder him as he claimed.[6]
[6] Father’s affidavit paragraph 34
I do not accept the father’s assertion that the mother ever told him that she would kill herself and the children in the event of him disclosing certain information. When the Independent Children’s Lawyer was looking for examples of fabricated evidence, this should have been the first thing she turned to.
These repeated assertions scattered through the father’s trial affidavit cause me to be gravely concerned about the father’s state of mind, his capacity to view situations rationally and his capacity to have a meaningful relationship with his children.

Background

The parties commenced a relationship in about (omitted) 2011 when the father was living in (omitted) and the mother on the (omitted). They commenced cohabitation in (omitted) in either (omitted) 2011 or (omitted) 2012 and they have two children, X born on (omitted) 2012 and Y born on (omitted) 2014.
The mother has no other children.
The father has a son, A. When the father commenced a relationship with the mother he had only recently separated from A’s mother Ms S and A was born on (omitted) 2011, less than five months before X was born.
The mother was the children’s primary caregiver from their births. The father conceded this in his affidavit, complaining in two separate places that “the mother refused to work” and that he had to work very long hours in paid employment to support the family.
One of the entries in the Chronology in the father’s Case Information document filed on 2 February 2017 is as follows:
Circa (omitted) 2012. The Father purchased the Mother her own vehicle. Despite the Mother refusing to work.
X was then three months old.
It is very difficult to get a clear picture of the state of the parties’ relationship from time to time. They separated in September 2013 but whether it was an extremely brief or a longer separation is unclear to me.
In December 2013 the mother moved to the (omitted) with X, and it appeared to be common ground that the parties were separated immediately prior to Y’s birth in (omitted) 2014.
The father was present at Y’s birth and it also appeared to be common ground that they reconciled at some point after Y was born because the father gave the date of final separation as May 2014.
The evidence of both the father and Ms G is that they commenced a relationship in about (omitted) 2014. Ms G is a (country omitted) citizen and in (omitted) 2014 she was 18 and was working in Australia as an (occupation omitted).
Despite forming a relationship with Ms G and spending some time with her in (omitted), the father continued to live for substantial time, as much as half of each week, in the same premises as the mother and the children on the (omitted) and it was the mother’s case that the parties did not separate in May 2014 but continued their relationship until 4 March 2015.
The father maintained that he spent about half of the week living with the mother not because they were in a relationship but because that was the only way he was able to see the children. This was a bare assertion by the father and he was not a witness of credit, but it is impossible for me to get to the bottom of the state of the parties relationship in approximately the last 12 months of their association. It could well be that prior to the final incident between them on 4 March 2015 they had different perceptions about the nature of their relationship which were valid for them.
The incident on 4 March 2015 resulted in the police being called and the father being interviewed about an alleged assault on the mother. He was not charged but it was the end of any association between the parties and on 28 April 2015 the father filed an application in the Local Court at Gosford seeking both parenting and property orders.
The proceedings were transferred to the Federal Circuit Court of Australia in Newcastle and on 8 July 2015 orders were made for the father to spend time with the children for two hours per week supervised by Big Brown House, a private supervision service.
From (omitted) 2015 the father spent nine weeks overseas and upon his return in (omitted), he reduced his visits to fortnightly because of the cost of supervision at Big Brown House.
In June 2016 a place became available at (omitted) Children's Contact Centre and the father began to spend time with the children there for two hours each fortnight. That was continuing at the time of trial.
The trial commenced in February 2017 but could not be completed in the time available and further evidence was taken on separate days in April and May. Due to the gap between the three parts of the trial and the challenging nature of the issues in the case, I requested that the parties prepare written submissions. The last written submission was filed by the father on 12 July 2017.[7]
[7] At the commencement of the trial the property proceedings were still on foot but they were settled soon after the trial commenced on the basis that each party keep what they had.

The parties circumstances

The mother is 34. Prior to moving to (omitted) in early 2012 she was working as a (occupation omitted). She did not work in paid employment after cohabitation commenced and at the time of trial was a stay at home mother.
The mother has remained on the (omitted) since the parties separated and she has not re-partnered. She said at trial that she intended in due course to study to become a (occupation omitted). The mother’s parents live on the (omitted).
At the time of trial the children were attending pre-school and also playgroup.
The father is 32. During cross-examination he said that he was living partly at his mother’s home in (omitted) “when she was ill” and partly in (omitted) with Ms G.
The father married Ms G in (omitted) 2016. She had turned 20 by the time of trial and is now 21.
During his relationship with the mother, the father worked in the (employment omitted) in (omitted). It is not entirely clear to me when he ceased doing that. At some point he was off work due to the need for back surgery. In his trial affidavit he said that he intended to set up his own business as a (business omitted).
At the conclusion of the trial the father said that he and Ms G were about to travel to the (country omitted) and might decide to remain there. I made an order requiring him to inform the Independent Children’s Lawyer if he intended to remain in the (country omitted) and as I have not heard anything I presume that the father has returned to Australia.
The father’s son A is now 6. He was born in Queensland and has at all times lived with his mother Ms S in Queensland She brought him to (omitted) on one occasion in 2013 and the father saw A then but the visit did not end well and the father gave no evidence about having a continuing relationship with A.
In the light of information in the subpoena material about the father’s relationship with Ms S, I am troubled that he did not tell me what the current situation was with him seeing A and if he wasn’t seeing him, why he wasn’t seeing him.

The allegations of family violence

Both parties insisted that they were victims of family violence at the hands of the other. The mother said that the father was violent during the relationship. The father said that the mother was violent during the relationship and that after it ended she stalked and intimidated him by her behaviour outside the contact centre.

The mother’s allegations

The mother said that looking back there were signs from the beginning of the relationship that the father was intent on knowing exactly where she was and controlling her relationships with other people but that at the time she did not pick up on this as being something of concern.

The mother alleged that in (omitted) 2012 about two months after X’s birth, an incident occurred where the father was angry and yelling about her parents being in the home and demanded that they leave which resulted in her parents making a complaint to the police.
She alleged that also in June 2012 her phone went missing. She said that she was of the belief that the father had taken it and that belief was based on the fact that after her phone went missing, a message was received by her parents asking them to leave the mother and the father alone which she had not sent. She further alleged that in mid-2015 she found the phone in the father’s belongings.
The mother alleged that the paternal grandmother would come around to the house at random times when the parties were living in (omitted) to check on her at the behest of the father and that on one occasion she was woken at 3.00am by the paternal grandmother banging on the door with a heavy torch. She said that the paternal grandmother demanded that she call the father and she acquiesced in this request.
The mother made allegations that the father was abusive to her dogs.
The parties attended couples counselling early on in the relationship and the mother alleged that while driving to and from those sessions the father would scream at her calling her a liar, slut and a bitch and that he punched the dashboard and the window and smashed the air conditioning unit.
The mother alleged that on the drive home after what turned out to be the final session of couples counselling the father expressed great unhappiness about what the counsellor had said to the parties and told to the mother that he had taken note of the counsellor’s car and would be able to follow her.
The mother said that in July/August 2012 the father asked her to get her entire medical history and all of her police reports and present it to him as a condition of him remaining in the relationship. She said that she agreed and put in a Freedom of Information request to obtain the information.
In January 2013 the parties drove to Queensland so that the father could take part in family law proceedings concerning A. The mother said that during the drive the father became extremely upset, asked her to tell him about her past and began punching the dashboard and eventually put the mother out of the car in a remote location. She said that the father eventually agreed to let her back into the car provided she had sex with him.
In June 2013 the mother agreed to the father’s request that she allow Ms S and A to stay at their house so that he could have a visit with A. She said that the visit did not go well and Ms S left, and after she did so she heard the father having a conversation with Ms S in which he yelled “you stupid fucking slut, I’m going to kill you. I paid for you to come and now you’ve said you’re not coming back”. The mother said that she tried to reason with the father and he then said that the mother and Ms S were both sluts.
In September 2013 there was an incident where the mother said that the father was agitated after he came home from the gym and smashed his plate on the ground after the dinner was served, picked up a fork and stabbed cushions and picked up a piece of the broken plate and slashed his wrists and they were bleeding.
The mother said that the father took a knife from the knife block and went into the bathroom. She gained access to the bathroom and saw the father sitting on the bath. She said that the father left the bathroom and exited the house and on his way out punched the sliding glass door twice and it shattered. The mother said that after the father left he rang her and said that he was going to drive into a tree. The mother called the police and the police located the father and called an ambulance. The ambulance noticed damage to the father’s hand and bandaged it up but did not see any damage to his wrists.
The father was charged with malicious damage arising out of the damage to the sliding glass door. He pleaded guilty and was convicted of the charge. The police applied for an ADVO for the mother’s protection but I was not told a great deal about that.
In November 2013 the parents and X went on a cruise in the (omitted). The mother alleged that as the ship neared (country omitted) there was an incident when she was in the cabin with X and the father came in and the parties had an argument about the father having spent a long time socialising with another female while the mother was alone in the cabin. The mother said that during the argument the father slapped her in the face and continued to slap her around the head and ears and picked up her hands and punched her hands screaming “tell me the truth, tell me the truth”. She said that he then scratched his face with his nails and banged his head with his hands.
The mother also said that the father used the prongs of a charger to scratch his wrists.
The mother said that she left the cabin and went to see the security officer on the ship and requested to leave the ship. She was offered a separate cabin and she disembarked in (country omitted). The father also left the ship and mother and father flew home from (country omitted) separately although they met up again in Sydney.
The mother alleged that on 26 November 2013 there was an incident where the father was outside on the phone to Ms S and was yelling at her and then threw his phone. She said that he picked up a timber dining table chair and smashed it on the floor and in doing so hurt his hand.
In February 2014 the parties were living on the (omitted) and the mother described an incident where the father punched down onto three stacked food containers which exploded and food went everywhere. The mother said that she cleaned it up but the argument continued and that the father pushed a washing basket from her hands, calling her a “slut” and a “cunt” and spat in her face and on her neck. She said that he then collected some belongings and left.
In or about (omitted) 2014, and it would appear immediately prior to Y’s birth, the mother moved in with her parents but the parties continued to associate and the father was present at Y’s birth on (omitted) 2014.
After Y’s birth the parties resumed living in a de facto relationship and it is not necessary nor is it possible for me to determine how long that continued and whether and if so, from what date the father lived part of the week with the mother and children simply in order to spend time with the children.
The mother described an incident in mid-2014 in which she said that while the parties were driving around in the car the father called her a “slut” and a “cunt” and punched the dashboard. She said that he kept saying “Why Mr C? Why Mr C?” and after stopping the car, got out, kicked the door and walked off.
The mother said that on 11 November 2014 there was an incident where the father kept asking her who she had been sleeping with and picked up a protein shaker cup and threw it. She said he also picked up the lounge she was sitting on and slammed it back down.
She said that the father then began punching himself in the head and scratching the side of his face and his ear. She said that he punched the kitchen doorframe and split his knuckles and picked up and threw cushions and picked up the wall clock and smashed it.
The mother called the police. By the time that they arrived the father was very calm and the police escorted him from the home and took him to the nearest train station.
The final incident the mother described occurred on 4 March 2015.
The father had been staying with the mother and children for a few days and the mother said that while the father was packing up to leave the parties argued and the father punched the fridge. She said that he began screaming saying “look at me and tell me the truth” and put his thumbs under her ears and shook her while continuing to say “tell me the truth”. She said that the father slapped her face and pulled her hair and put his hands around her neck.
She said that the children were screaming and frightened and the father said to her “come in here so I can bash the shit out of you” and went into a bedroom.
The mother said that all she wanted to do was keep things calm for the children and she went into the bedroom. She said that the father said “fuck you slut” and uttered further abuse.
In due course the mother called the police and the father left.
The mother promptly went to see a doctor who recorded her injuries. The police interviewed the father about the allegations but he denied everything and no charges were laid.
The mother also made a general allegation that during the relationship the father had some motor vehicle accidents because he was so angry that he lost control of the car or made a bad driving decision and she described a particular incident which she said occurred shortly after Y’s birth which resulted in a motorbike and rider being struck and cannoning over the father’s car.

The father’s allegations

It was the father’s case both at interview with the family report writer and in his trial affidavit that he had not been violent to the mother and that she was an emotionally volatile individual who was very jealous and was verbally and physically aggressive to him.
Most of the allegations in the father’s affidavit were fairly general but he alleged that on 9 October 2013 he was outside washing the car and X was with him and the mother grabbed X and slapped him across the face and yelled, punched and pushed him and called him a cheat and a liar. He alleged that the mother took his mobile phone and threw it over the back fence.
He alleged that on 11 November 2014 the mother smashed a ceramic plate across the right side of his face and that he had cuts on his ear and hand from protecting himself.
The father alleged that the mother would frequently yell and scream abuse at him and accuse him of having affairs.
The father also alleged that the mother had
….multiple times threatened to kill me and kill herself if I was not to stay in the relationship with her. This occurred on numerous occasions during the period of living in (omitted) and living in (omitted). The scary emotion that Ms Wruck showed and her dry slow tone when she spoke those words resulted in me holding a genuine fear….to the point where I would submit into the relationship and the pattern started again.[8]
[8] Father’s affidavit paragraph 34
This if true, would be a gross form of controlling and coercive family violence.
The father alleged that the mother also threatened on a number of occasions that if he did not stay in a relationship with her he would not be able to see the children, which is also coercive and controlling behaviour.
The father alleged that the mother stalked and intimidated him at the supervised contact centre by staying in the vicinity of the centre and making “visible threats to the father upon entry and exit of the play centre.” He alleged that on 10 December 2015 she stared at him, drew her finger across her neck and revved her car as he was leaving the contact centre.

Conclusion about the violence allegations

Getting to the truth of the matter when assaults or property damage are alleged to have occurred outside of a family context is difficult enough. Things often happen fast, people are frightened or emotional and may not take in all that is happening, they may get the sequence of events wrong when describing what happened and they may forget details and then remember them later which may lead to an accusation of embellishment. They may mix up events, putting together things which occurred at different times and they may unwittingly or deliberately reconstruct some of what occurred rather than independently remember it.
As a result it is often easy on close questioning of a victim to induce doubt about whether the victim is telling the truth, especially when the victim is being cross-examined and may be nervous or overwrought or may not understand questions although superficially appearing to do so.
The problem is compounded when the assault or property damage is alleged to have occurred in a domestic relationship. The victim may for a variety of reasons have given contradictory stories on different occasions about whether incidents occurred or about how injuries or property damage were sustained, may not have made complaints to police at the time, may not have told friends and close family what was happening and may have given excuses for bruises or other injuries which were observed by third parties.
Factors which may be operating are the victim not wanting the relationship to end, feeling sorry for the perpetrator, believing the perpetrator’s promises that they it will not happen again or fearing the perpetrator.
The problem is compounded again in family law cases by the fact that the definition of family violence in the Family Law Act 1975 includes not only physical assaults and property damage or threats of the same but extends to a number of forms of coercive and controlling behaviour. To give only one example of the difficulties that can arise here, what one party perceives to be controlling behaviour may simply be a manifestation of the other parties differing attitude to money or their personal insecurities or the like.
A court faced with allegations of family violence always has to be alive to the possibility that a party is telling a false story. That can occur because a party wishes to keep the other party from having a relationship with a child (which can be the result of many things including mental illness, deep personal insecurity or resentment of the other party forming a new relationship) and can also occur because the party faced with allegations that they have been violent sees attack as the best form of defence.
The family report writer noted that it was extremely difficult to get to the bottom of what had happened in this relationship and said that she found it impossible to come to any view about who had been responsible for violence during the relationship although there seemed little doubt that some violence had occurred.
The matter is also difficult for me to resolve but I cannot shirk the task and must pick my way through the minefield, and I would first of all observe that I cannot make a finding that in the early part of the relationship the father attempted to control the mother by ringing her an excessive number of times to find out where she was or trying to prevent her from socialising with friends or with her family.
The mother’s evidence about this was fairly general and there is a risk that her perception of the father’s behaviour has been coloured by events that have occurred since and that she is reconstructing the past.
Similarly, the evidence is too slight to allow me to find that the father unreasonably sought to exclude the maternal grandparents from contact with the mother. There does seem to have been conflict between the father and the maternal grandparents but that could have been the result of personalities or even of the maternal grandparents doing something to which the father reasonably took objection. The maternal grandparents did not give evidence at the hearing.
The information the mother gave about the treatment of her dogs is not sufficient to allow me to make a finding that the father was cruel to animals and the information about the motor vehicle accidents was not supported by any police records and I cannot make any findings about whether the father was involved in traffic incidents because he lost his temper.
The mother’s evidence about the father taking her phone involves an element of speculation and I cannot exclude the possibility that the mother simply lost the phone.
The Independent Children’s Lawyer noted that the mother’s counsel did not cross-examine the father about the allegations concerning what happened on the trip to Queensland in 2013 and in those circumstances I do not intend to have regard to the mother’s evidence in that regard.
I accept the mother’s evidence about the paternal grandmother coming to her home at 3.00am and banging on the door with a torch. I do not accept, as the Independent Children’s Lawyer asserts as a general proposition, that the mother is guilty of fabricating evidence, and the paternal grandmother, although clearly available, was not called to give evidence at the trial. However there could have been some extenuating circumstances in relation to this incident and I am not prepared to find that it is an example of controlling and coercive behaviour by the father.
However the remainder of the mother’s allegations are detailed and superficially credible and are not inherently unbelievable when considered against the background of what happened in the father’s relationship with Ms S.
The family consultant accurately summarised information in a 2004 COPS record concerning the father and Ms S as follows:
In 2004 COPS records include Police notation that the father became aggressive in the context of severe intoxication. The father was said to have become intoxicated when he learnt of his girlfriend being unfaithful to him. The father apparently suffered a mild seizure in front of police and was conveyed by ambulance to (omitted) hospital. On arrival at hospital Police were notified the father was argumentative and defiant with staff and Police were then were requested to re-attend. He was restrained by Police by handcuffing him to a gurney.
The father and Ms S saw a social worker in 2004 and notes indicate that the father was reported to have difficulties dealing with anger, and that at interview he and Ms S disclosed a serious incident of domestic violence. The father said that he was seeing two counsellors to assist him with working on his anger management.
Either subsequently or at or around that time, an ADVO was taken out for the protection of a man the father was alleged to have assaulted as a result of believing that Ms S had been having a relationship with him.
In November 2010 Ms S reported to the police that the father has spat on her, sworn at her and thrown soft items at her. Approximately 8 weeks after this complaint she re-presented and told police that she had lied and that a disagreement had occurred after she disclosed having an affair and she advised the police that she had no fears of the father.
The similarity between the father’s description of his relationship with Ms S and his relationship with the mother is troubling to me given that there was clearly some violence during the father’s relationship with Ms S. The father said as follows in his affidavit:
My ex-wife Ms S had multiple affairs throughout our relationship. One early on in the relationship to which we were able to work through with my forgiveness and the help of a counsellor.
The last affair was with my closest friend at the time and resulted in being the final straw for the relationship. I had sought many hours of help through counselling to reconcile the marriage, although the lies and deceit continued. This resulted in divorce.
After a discussion with Ms S that I no longer wished to work on the relationship, in a bid to save her reputation in the small town of (omitted), Ms S lied to the police. She attempted to put an AVO out on myself. She did not succeed.
In the counselling that followed this Ms S admitted she did this so that she could say that the relationship ended due to domestic violence. She said that she could not bear the shame of the failed relationship due to her infidelities. Refer to SUBPOENA 2 and 3 marked “P14” This police report states that Ms S strongly denies having an affair and that I had thrown soft toys at her in the argument. The police report in the same subpoena marked “P16” shows where Ms S has then admitted that she had lied to the police and she was having multiple affairs.
The father placed considerable emphasis on the fact that Ms S withdrew her complaint in 2010 but did not refer in his trial affidavit to the fact that Ms S made a complaint to police about him in 2012 and that a final ADVO was made for her protection on 9 October 2012 for a period of two years. Ms S alleged that the father had verbally abused her on or about 14 September 2012

In the light of all of this, it is difficult to dismiss the mother’s allegations about the father smashing a timber chair after becoming agitated following a conversation with Ms S and threatening and verbally abusing Ms S on the phone, especially when I have considerable concerns about the father’s credit.
It is also difficult in the face of all this to lightly dismiss the mother’s allegations that in agitation over her alleged affairs the father spat on her, slapped her, manhandled her, threatened her, damaged property and called her names such as slut and cunt.
The father’s case for why the court should dismiss these allegations was twofold. First, he said that the court should find that the mother was fabricating the evidence to deny him of a relationship with his children and that this was rendered entirely credible by the threats she made during the relationship. Second, he relied on the information in the family report that that he did not display any aggression or confrontational behaviour during the assessment and that his responses to the “Personality Assessment Inventory Test” administered by the report writer indicated that he was a submissive person who liked to avoid conflict.
In relation to the first proposition, I accept the submission by the mother’s counsel that I cannot assume that because the mother sent the father emails during a period of separation telling him that if he did not return to the relationship he would not be seeing the children means that she has invented allegations of abuse to support a case that they should not see him after the final separation.
A credible explanation of the mother’s behaviour is that she was trying to get the father to reconcile. It was coercive and controlling behaviour and I will refer to it again later, but it happened in a context and as the family report writer pointed out if the mother was the victim of family violence by the father of the kind she described it would be quite natural for her to be reluctant for the children to spend unsupervised time with him once the relationship ended.
The second proposition is invalid because the father has misstated what the family report writer said about the results of the PAI test.
In his case outline document the father submitted that:
[My] Personality Assessment clearly shows that [I have] no problems of anger or explosive outbursts despite what the Mother has claimed.
However what the family report writer said was as follows:
On PAI interpersonal scales the father appeared to be quite submissive. He described having difficulty in a variety of situations asserting himself. He endorsed items which suggest he is highly motivated to avoid conflict to the extent that he might leave himself vulnerable to manipulation or being taken advantage of. His particular configuration of responses suggested his generally submissive style may be driven by anxiety about potential rejection or abandonment. It is possible that although the father might not generally be an aggressive person ‘by nature’ the father may feel vulnerable to exploitation and rejection and may therefore be susceptible to inappropriate displays of anger in a relational context when he feels he has been comprised. [my emphasis]
On aggression subscales the father’s responses did not suggest pervasive problems in the area of anger management or explosive outbursts of anger. The PAI scales of Aggressive Attitude, Verbal Aggression and Physical Aggression were all below 50 T suggesting tendency towards passivity. This does not confirm that the father will not ever act in an aggressive manner but rather suggests that the father is not ‘typically’ aggressive. [my emphasis].[9]
[9] Paragraphs 83 and 84 of the Family Report.
The father’s history (leaving aside for the moment the allegations Ms S withdrew) demonstrates that he is capable of being violent and his responses to the PAI test do not suggest otherwise.
There is abundant evidence that the conditions in the parties’ relationship could have provoked aggression by the father. He persistently accused the mother of having affairs. He had a surreptitious DNA test done after X was born. He was fixated about the fact that the mother slept with a friend Mr C on the same day that she started a relationship with him (which is hardly infidelity) and he accused her of continuing her association with Mr C during her relationship with him, something the mother denied had occurred.
A relevant consideration when the court is trying to determine whether certain events have occurred is whether third parties who were present during incidents have been called to give evidence. The father alleged that the paternal grandmother was present on the occasion when the mother assaulted him by slapping his face, and allegations were made by the mother about the paternal grandmother having been present on other occasions. The father failed to call her to give evidence. To be fair I need to take into account that the mother’s sister Ms P was not called and she allegedly saw injuries on the mother on 4 March 2015, but there was independent evidence of injuries to the mother on that occasion because the mother promptly went to a doctor and informed the doctor that she had been assaulted and her injuries were documented.
The Independent Children’s Lawyer appeared to suggest that because (in her opinion) the mother was not frank with the family report writer and in her affidavit about family violence perpetrated by her, her allegations that the father perpetrated family violence should be disbelieved. If that is indeed what she is suggesting, I do not accept that one thing follows from the other.
The Independent Children’s Lawyer seemed keen to excuse the father’s conduct in breaking the sliding glass door, saying as follows in her submissions:
The father pled guilty to malicious damage caused when he broke a sliding door with his fist. He says he was trying to open the door in order to leave, however his plea is an admission of intent to damage.[10]
[10] Independent Children’s Lawyer’s submissions paragraph 33
The father’s own evidence about this incident was as follows:
I instantly wanted to leave the house and did not want to walk past Ms Wruck. I then tried to exit the side entry clear glass sliding door and thought it was opened. I walked briskly into it to which I responded by punching through the door and breaking the glass.[11]
[11] Father’s affidavit paragraph 115
In answer to a question by the mother’s counsel in cross-examination the father agreed that he punched the door in anger.
The Independent Children’s Lawyer was highly critical of the mother because of such things as cruise ship employees not seeing any injuries on her, the mother giving a detailed statement in support of the father during his family law proceedings with Ms S, the police notes failing to accord precisely with some of the mother’s evidence at trial and the mother giving a graphic description of the father cutting his wrists in September 2013 and the ambulance officers seeing no injuries on his wrists.
None of those things necessarily invalidate the mother’s claims; I do not accept that the mother’s claims about physical violence, property damage and verbal abuse perpetrated by the father should be dismissed because a close examination of all of the material fails to line up perfectly with the mother’s version of events.
It fails to line up perfectly with the father’s version of events either and yet the Independent Children’s Lawyer was willing to accept his evidence in preference to the mother’s notwithstanding that there was no corroboration for his version of events and there were some simultaneous records which supported the mother’s version of events.
I do not accept that the mere fact that the mother provided evidence in the father’s court case involving A which spoke of the father in glowing terms means that her evidence of what she experienced during her relationship should be disbelieved.
An issue I consider relevant is that if the police notes are considered the mother’s primary purpose in calling the police in September 2013 and November 2014 was concern for the father’s mental state. The COPS records state that she wanted police to find the father in September 2013 because she said and I accept that he had rung her saying he was going to drive into a tree, and in November 2014 she told police she was worried the father might harm himself.
The mother might be wrong about the father having actually cut his wrists in September 2013 but he has a history of having mental health crises when under stress. He grew up in a household in which his father perpetrated family violence, he was admitted to hospital briefly when he was 15 or 16 because of concerns that he might harm himself, and taken to hospital twice in 2004 when he was in a relationship with Ms S because of concerns that he might harm himself. The mother’s evidence about the father’s self-harming threats and actions during some of the incidents with her is entirely plausible given the father’s history and is consistent with the content of the police records. It reinforces my view that regardless of whether there are some inconsistencies in the mother’s evidence she should be accepted as a witness who endeavoured to tell the truth.
The Independent Children’s Lawyer did not accept that the father was violent to the mother on 4 March 2015. She submitted that:
The court would find that the father was not violent to the mother on 4 March 2015 as alleged by her in paragraphs 94-100 of her affidavit and that the mother fabricated the injuries she described….including ‘dilated capillaries in her ear drums, ‘soft tissue damage to her face” and a “slightly misaligned jaw.”[12]
[12] Independent Children’s Lawyer’s submissions paragraph 45
I agree with the mother’s counsel that the submission that the mother fabricated her injuries is extraordinary.
At paragraph 19 of his written submissions the mother’s counsel set out a cogent and comprehensive summary of the evidence about the 4 March 2015 incident and illustrated the flaws in the Independent Children’s Lawyer’s submission. I will not repeat the whole of his submission here, but I will incorporate one passage. After referring to the notes of the doctor the mother saw on the day of the incident he said as follows:
The mother was not cross-examined to suggest that she had caused those injuries to herself or that they had been caused by somebody else. It is clear that the father was at the mother’s home on this occasion. It is clear that there was some argument and the father conceded that he had physically handled the mother’s head. It is submitted that it is immaterial in determining the question of whether the father was violent that there is some question about whether the argument arose from the mother […]asking the father to leave or complaining about his lack of commitment to the relationship and [asking] him whether he was going to commit to the relationship.[13]
[13] Mother’s submissions paragraph 19
It is relevant to note that the mother acted consistently with her allegations on a number of occasions. She called police in September 2013, October 2013, 11 December 2014 and March 2015 and after the final incident on 4 March 2015 she went to a doctor and reported her injuries.
I am also satisfied that the father required the mother to obtain her medical and criminal history, an overbearing piece of behaviour which arose out of his obsession with the mother’s behaviour and alleged infidelities
I am satisfied on the balance of probabilities that the father assaulted the mother as she described on 4 March 2015 and that he behaved violently in the home as she described (although I cannot make a finding that he cut his wrists) in September 2013 culminating in him punching and breaking the sliding glass door.
It follows that I simply cannot dismiss as fabricated as the Independent Children’s Lawyer wanted me to do the other allegations the mother made about being verbally abused while the parties were driving in the car, slapped and manhandled on the cruise, spat on and verbally abused during the incident in February 2014, subjected to the father acting out angrily while driving, and engaging in superficial acts of self-harm in her presence on many occasions. All of these incidents were accompanied by arguments about fidelity.
I also accept the mother’s evidence about the father threatening and verbally abusing Ms S on the phone and smashing a timber chair in anger after a conversation with Ms S. This behaviour although not designed to intimidate the mother, was family violence and would have in fact intimidated her.
The father alleged that the mother slapped his face on one occasion, took his phone and threw it away, went through his contacts and tried to contact those people and threatened to withhold the children if he did not commit to the relationship.
I consider it highly likely that the mother did refer to people she believed the father was seeing as “sluts” and “slags” and I am satisfied on the balance of probabilities that she threatened to prevent him seeing the children unless he committed to the relationship with her and stopped coming and going.
The mother admitted that she pushed the father when she was angry over what she believed was an affair with the next door neighbour, she took the father’s phone to try and look through it and I strongly suspect that she did slap him, and she used threats of stopping him seeing the children to try and get him to commit to her, and in those respects the mother has committed acts of family violence.
I do not accept however that the mother ever threatened to murder the father (as opposed perhaps, although the mother did not concede it, to possibly using the term “I will kill you” as hyperbole) and I do not accept that she ever threatened to kill or murder the children. This is a fabrication by the father.
I do not accept that the mother smashed a ceramic plate against the right side of the father’s face on 11 November 2014. It is nothing short of extraordinary that the Independent Children’s Lawyer would urge me to accept that the father told the truth about this incident even though there was nothing to corroborate his version of events and yet urge me to find that the mother fabricated her injuries (and by implication the claim that she had been assaulted) on 4 March 2015 despite there being documented proof of injuries and despite the Independent Children’s Lawyer accepting that the father pushed the mother’s jaw upwards on that occasion.
I accept that the mother was in the vicinity of the contact centre on some occasions when the father was having supervised visits but I do not accept the father’s evidence that she made threatening gestures or that she lurked in the vicinity to intimidate and harass him.
I will need to consider in the next section of the judgment the implications of the findings I have made about family violence.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act 1975 set out the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations are the benefit to the children of having a meaningful relationship with each of their parents and the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
The additional considerations include matters such as the children’s relationship with each of their parents and any other person, whether family violence has occurred, parenting capacity and the likely effect of any change in the children’s circumstances.
I intend to start by discussing the matters in s.60CC (3) because my findings about those matters will inform my findings about the primary considerations.
The first additional consideration is any views expressed by the children and the weight to be given to those views.
When the family report was prepared in (omitted) 2016, X was two weeks shy of her fourth birthday and Y had only just turned two. Neither was old enough to express an opinion about parenting matters to the family report writer and neither of the parents suggested at trial that the children had a view about future parenting arrangements.
I must consider the nature of the children’s relationship with each of their parents and any other person including a grandparent of the children.
The children have lived with their mother since their birth and it was not in dispute that they were closely attached to her.
The family report writer felt that X was attuned to the mother’s anxiety and commented that there was evidence of anxious attachment with the mother developing which if not correctly addressed could result in the children developing psychological problems.[14]
[14] Family report paragraph 281
The family report writer did not make any similar observation about Y.
It is difficult to know what to make of the opinion expressed about X given that it was based on observations at a fairly brief session during the family report interviews and that X was unwell on the day of the assessment, save that it reinforces that the children could be impacted on adversely if the mother becomes anxious because she has to comply with an order for the children to spend time with the father.
The only time the children have spent with the father since they were 11 months and just under 3 respectively is time supervised by an accredited supervision service.
The observations at the family report interviews and the observations in the notes prepared by the supervised contact services which were tendered at trial suggest that the children are happy to see the father and react warmly to him and that he is appropriate with the children at all times. The mother agreed during cross-examination that the children looked forward to seeing their father at the contact centre and enjoyed their time with him.
There is a basis for the children to form a good relationship with the father outside a supervised setting if they spend unsupervised time with him provided that there are no issues with his care.
The paternal grandmother attended the family report interviews but it was clear that the children did not have a relationship with her. The family report writer said as follows:
The children were distant from the paternal grandmother and did not engage with her. They did not appear to be averse to her presence and rather behaved as though she was a stranger. The paternal grandmother was sensitive to this but did not force interaction.[15]
[15] Family Report paragraph 201
The children do not have a relationship with the father’s wife Ms G. They have spent hardly any time with her during their lives. She seemed pleasant enough in the witness box and no adverse matters were raised about her and the children may form a good relationship with her if time becomes unsupervised.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support maintain the children.
There was a child support assessment in place at one time but the evidence suggests that the father was not working due to a back injury at the time of the family report interviews. The mother has been either solely or predominantly financially supporting the children since separation.
It was not suggested at trial that the father was not working because of a desire to avoid paying child support.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the children, to spend time with the children and to communicate with the children.
The mother has taken every opportunity to spend time with the children, to communicate with them and to make decisions about them since separation. The father has to a large extent always done this as well. He did go overseas for 9 weeks at the end of 2015 but it was not suggested that this was evidence of a lack of interest in his children.

I must consider the likely effect of any change in the children’s circumstances including the likely effect of their separation from either of their parents or any other child or person including any grandparent or other relative of the children with whom he or she has been living.
An order that the children spend extensive unsupervised time with the father would result in a major change in their circumstances. They have spent only limited supervised time with him since 4 March 2015 and there is little to suggest that prior to that they had spent any extensive time with the father on their own.
The Independent Children’s Lawyer proposed that orders be made for the father to spend time with the children unsupervised for two hours on a consecutive Saturday and Sunday each weekend for one month, then for either four or five hours (depending on where the error lies in 10.2 of the Independent Children’s Lawyer’s submissions) for a period of two months and then from 10.00am to 5.00pm on Saturday and Sunday for a period of five months. She proposed that after eight months of time during the day overnight time from Saturday to Sunday be introduced before further changes take place on an incremental basis.
The Independent Children’s Lawyer did not address the issue of how changeover was to occur and in my view it would be imperative that there be no contact between the parents at changeover. This is not a case in which handover at McDonalds or a park or shopping centre would be appropriate. However it is possible to have supervised changeovers at a contact centre and if this issue was overcome then given the children’s ages and their warm reaction to the father at the family report interviews and at the contact centre, there is nothing to suggest that they would not cope emotionally with spending time with the father as the Independent Children’s Lawyer proposed.
It would also in a broad general sense be beneficial for the children to have two parents in their lives.
Other matters play into whether the change proposed by the Independent Children’s Lawyer would be beneficial for the children including the impact on the mother of the time occurring, the father’s capacity to provide for the needs of the children including their emotional needs and whether the children were likely to be exposed to abuse, neglect or family violence in the father’s care, and I will have to return to this issue later on.
The change proposed by the mother was that the children either cease seeing the father altogether or (if the order she proposed in her amended response was considered as a proposal) that they saw him on four occasions each year. She did not explain what benefit she hoped the children would gain from seeing the father four times each year and her counsel did not put this forward as an alternative in his written submissions
The children are five and three and their mother has always been their primary carer. It is now well over two years since their parents spent any time together and the children have seen the father for very limited time during those two years. They might well adapt in the immediate future to not seeing the father given that their recent experience has been of seeing him fortnightly for two hours supervised.
However it would be a long term loss for the children not to have a father in their lives. Once they commence school they will be conscious of mixing with other children who do have a father in their lives and they may as they grow older, feel an increasing sense of loss about not having a relationship with a father.
I will have to consider the issue of the likely effect of a change in the children’s circumstances further after making findings about the remainder of the s. 60CC (3) matters and the s. 60CC (3) matters.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
The father lives in (omitted) and the mother on the (omitted), the same locations they were living in when they met in 2011.
The Independent Children’s Lawyer proposed orders which depended on whether the father was living in (omitted) or on the (omitted), but there was nothing in the evidence to suggest that the father was likely to decide to live on the (omitted). The paternal grandmother, who he said was ill, lives in the (omitted) and the father has no connections on the (omitted).
The distance between (omitted) and the (omitted) means that orders for the children to spend overnight time with the father during the week once X commenced school would be problematic and depending on the father’s employment at the time, it might also be problematic for him to drop the children to school on the Monday morning or even pick them up on Friday.
I must consider the capacity of each parent to provide for the needs of the children including their intellectual and emotional needs.
The father gave almost no evidence of carrying out any caring tasks for the children during the relationship. In many affidavits each parent goes into considerable detail about their role in changing nappies, soothing children to sleep, getting up in the night to feed them and preparing their breakfast, and there was nothing at all of this nature in the father’s affidavit.
He referred to taking “the children” to movies, parks and events such as (omitted) and to teaching “them” to swim but this is likely to be overstating matters given that Y was only 11 months old on (omitted) 2015.
The father is largely untried as a parent caring for children on a day to day basis but the mother did not raise his capacity to provide day to day care as a reason why he should not spend unsupervised time with them.
She also did not agitate at trial a concern about him using illicit drugs or abusing steroids although a concern about his use of steroids was mentioned in her affidavit.
An issue of concern about the father is his mental health.
The father attempted suicide when he was 15 or 16 and had a brief admission to a mental health unit and on (omitted) 2004 when he was 19 police conveyed him to (omitted) Hospital after becoming concerned that he might self-harm. The family report writer said as follows about this admission:
Medical notes from (omitted) Hospital identified that the father provided a history of suicidal ideation. He informed attending staff he had a past incident of self-harm (overdose). The father also disclosed to staff he had been physically and emotionally abused by his parents during childhood. Further information provided at the time by the father indicated that in 2001 as a 15 year old he had attempted suicide by overdose. He nominated his primary stressor as being related to his “family situation”. Unfortunately this line of enquiry does not appear to have been pursued and the exact circumstances of ‘his family’ situation do not appear to have been investigated.
During the father’s 2004 psychiatric admission the attending psychiatrist noted suicidal and homicidal thoughts in respect to the father breaking up with his girlfriend Ms S. The father was admitted as a voluntary patient. Further notes made by attending physicians during the father’s admission noted some paranoid ideation, thought broadcasting, thought insertion/withdrawal and ideas of reference as being present.[16]
[16] Family report paragraphs 205 & 206
The mother called the police in September 2013 because she was concerned that the father might self-harm. She said that he had slashed his wrists, and she said and I accept, that after he left the home after punching into the glass door he rang her and said that he intended to drive into a tree.
Police located the father and took him to (omitted) Hospital. Ambulance officers bandaged his hand which had been cut from punching the glass door but did not observe any cuts on his wrists.
The mother alleged that on 11 November 2014 after an argument at her home, the father again threatened self-harm and scratched his own face and neck and police notes record the mother expressing concern about the father’s mental state when they attended at her home.
The father said that he consulted a psychiatrist during his relationship with the mother but that they did not find anything wrong with him.
I accept the mother’s evidence about the father threatening to harm himself in September 2013 and November 2014, and when added to the hospital admissions in 2001 and 2004 they raise a concern about the father’s capacity to handle stress and whether he might act out in an extravagant way in the presence of the children.
I have to consider the capacity of each parent to provide for the children’s emotional needs and I have considerable concern about the father’s attitude to the mother, ranging from his assertion that she refused to work during the relationship, his fixed belief which he had no compunction about retelling in considerable detail at trial that she had been the victim of multiple assaults and rapes, his fixed belief that she has physically harmed X and may murder the children and his fixed belief that she is mentally ill which he raised again in his written submissions.
The father had not one single good thing to say about the mother in his affidavit and I am concerned about the possibility that he might expose the children to his extravagantly negative views of the mother. I intend to discuss this further when dealing with the primary considerations but my concern is heightened by the father’s demonstrated lack of empathy for the mother and demonstrated lack of capacity to focus on the needs of his children as opposed to his own needs. The family report writer agreed during cross-examination that during interview the father was self-orientated in his responses, and the orders he handed up to the court on 17 May 2017 were completely focussed on his own well-being.
The father’s strongly self-focussed attitude and his inability to see anything wrong with his views makes it almost inevitable that he would not shield his children from those views and the children would suffer emotional harm if exposed to those views.
The mother is doing a very good job caring for the children. The family report writer observed both children to be well developed physically and in terms of their language and the Independent Children’s Lawyer did not lead any evidence to suggest that the children were in any way being neglected by their mother.
The father alleged that the mother had shaken X on multiple occasions. He also went into considerable detail about an occasion on 12 May 2014 when X was burned on her chest and alleged that this happened because the mother, in order not to get up off the couch, had taught X, aged 2, to go to the microwave and bring the mother her boiling coffee.
I do not accept the mother is a poor or neglectful parent or that she has ever shaken X or that what happened when X was burned was anything other than an unfortunate accident. The father was not present during this incident and his insistence that X was harmed because she was waiting on the mother is not supported by any independent evidence.
The father suggested in his affidavit that the mother had threatened to kill herself and the children if he disclosed certain information. I am satisfied that this is a fabrication.
My view that the father is fabricating these concerns and does not genuinely fear that the mother is likely to mistreat or kill the children is reinforced by the fact that in the document headed “May 2017 Breaden Amended Orders” the father said in effect that if he felt that living in Australia was not safe [for him] then he and his wife intend to relocate to (country omitted). He went on to say that orders needed to be made to provide him safety and access to the children. He did not express any concern about what might happen to the children in the mother’s care.
The father asserted that the mother may be mentally ill but there is absolutely no evidence that this is the case. She told the family report writer that she had suffered depression and had been medicated many years ago. There was no evidence at all that she had ever had an admission to a mental health unit or had recently been prescribed any medication for mental health issues.
The mother is conflicted about the time the children should spend with the father but in my view this is explicable by the father’s behaviour during the relationship and is not an irrational refusal to accept that he should have a role in their lives and therefore evidence of lack of capacity to provide for the children’s emotional needs.
The family report writer was asked about the likely impact on the children of the mother’s anxiety around them spending time with the father. She said that if the court determined that the mother’s anxiety was a matter of perception and the violence was not severe, treatment with a psychologist could help ameliorate her anxiety. She said that anxiety was a problem when it was an unrealistic assessment of a threat.
She said that if however the mother’s account of what occurred during the relationship was realistic, her anxiety around the children spending time with the father would be difficult to treat.
The family report writer said that she accepted that the mother was genuinely anxious about the children spending time with the father and that there was no evidence that the mother was “faking it.” She said that the physiological signs of anxiety are difficult to fake.
The Independent Children’s Lawyer in written submissions suggested that the anxiety the mother displayed at the family report interviews was the result of her fearing that the children would relate well to the father during the observation session. There is no foundation for this submission.
I am satisfied that the mother was subjected to physical violence by the father during the relationship and to a number of incidents where he damaged property and lost control. She saw and heard him threatening to harm himself and she is aware now of allegations made about things which happened during his relationship with Ms S and about his previous attendances at hospital due to threats to harm himself. I accept that the mother is genuinely anxious about the children spending time with the father.
I also accept that this anxiety if aroused would have an impact on the children. It would not make the mother a less caring vigilant parent but her anxiety may be transmitted to the children impacting not only on their enjoyment of time with their father but on their willingness to engage in other new experiences.
It is possible that if time was ordered, the mother’s anxiety could be ameliorated by counselling provided that the children’s visits with the father went well, but it is difficult to be certain about how that would play out.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
The only relevant matter is the children’s ages both now and in the case of Y at separation. It means that if they are to commence spending unsupervised time with the father it should preferably be for short periods until they adjust to the change in their circumstances.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents.
The father was highly critical of the mother’s attitude to the children insofar as she had stood in the way of him spending regular unsupervised time with them. This issue has been mentioned in other parts of the judgment and I am not going to discuss it again here.
The mother’s counsel submitted that the court should be concerned about the proposal the father put to the court on 17 May 2017. I have discussed already that it undermines the father’s claim that the children might be at risk of harm in the mother’s care.
I have to consider any family violence involving the children or a member of the children’s family.
I am satisfied that the father was violent to the mother as outlined earlier in the judgment.
There were also occasions where the mother yelled and screamed at the father, she admitted pushing him and taking his phone to check up on who he had been contacting and she may have slapped him. She also told him during a period of separation and/or relationship difficulties in late 2013 that if he did not commit to the relationship he would not be seeing his children.
The first implication of my findings about family violence is that it would be detrimental for the children if the parents came into any contact with each other at changeovers if time was ordered or even at sporting fixtures and school events. The relationship may be over but the father remains intensely negative about the mother and clearly dislikes her intensely and the mother feels intimidated by the father. At the very least the children would be exposed to tension and possible conflicts of loyalty if the parents were in the same place and at worst there could be a public incident of dysregulated behaviour.
Another implication is that there is a risk in this case of the father behaving violently in future relationships. The records contain an admission that he was violent to Ms S, he was violent to a male while in a relationship with Ms S resulting in an ADVO being made for that man’s protection,[17] Ms S made allegations against him toward the end of the relationship which she later withdrew and she obtained an ADVO against him in October 2012.
[17] Father’s Case Information document
The Independent Children’s Lawyer submitted that what happened between the father and Ms S was not particularly probative. I cannot understand that submission particularly given the content of the father’s Case Information document filed on 2 February 2017.
In that document the father alleged that his relationship with Ms S broke down due to her infidelities, that he reconciled the relationship after counselling and the step-father threatening family (sic) with shotgun. He went on to say that:
Father sought protection for this through police and hospital. Father scared to put out AVO due to seriousness of threat.
He further said that:
November 2010. Father ends relationship with his wife due to her numerous affairs and lies. Ex-wife applies for an AVO to try and hide her infidelities. Misleads the police, then retracts her statement that she did not have affairs and that she was ever abused by the father. AVO dropped.
Circa February 2011. AVO applied for by Mr J to which Father consents without admissions due to finances and advice from duty solicitor. Ex-wife then continues affair with Mr J. At which she becomes pregnant.[18] Father ends marriage as a result of discovering this.
[18] Presumably with A given the dates but the father did not assert that A was not his child
He then goes on to say among other things (and here I have not included dates:
Mother misleads father and they start a relationship.
Mother claims she is raped by Mr C to whom she was having an affair with at that time.
Father receives a phone call from Mr R that he was having an affair with the mother….
Mr L possible affair raised…
Mr C disclosed affair with mother.
Father accepted AVO without admissions after police prosecutor offered regular visits with children.
The father makes similar allegations about both Ms S and the mother and I do not agree that the information about the father’s relationship with Ms S and his view of Ms S are not probative.
The father’s insistence that both the mother and Ms S have repeatedly lied about him is a red flag and his obsession with unfaithfulness (real or imagined) was a feature of his relationship with both Ms S and the mother. The family report writer referred to his obsession with fidelity and said as follows:
PAI subscale configurations suggested the father’s personality is somewhat perfectionistic. He has clearly defined personal guidelines for conduct and may have difficulty appreciating or understanding others behaviour falling outside these guidelines. Changes in routine, unexpected events and contradictory information are therefore likely to generate untoward stress for the father.[19]
[19] Family Report paragraph

The father was violent in stressful situations in his relationship with Ms S and in his relationship with the mother and with that history and his obsession with fidelity and the very real possibility that he falsely imagines that his partners are unfaithful, there is a very real risk that he may violent in future relationships.
Ms G said that the father had not behaved violently to her but the court is frequently confronted with situations where new partners speak in glowing terms on behalf of a parent who is engaged in family law proceedings and it later turns out that they have not been speaking the entire truth, and even if it is true it does not preclude the father being violent either in this relationship or another relationship in the future.
I will have to consider later in the judgment what the level of risk is and whether it will be unacceptable if the father spends unsupervised time with the children.
A third issue arising from the findings about family violence is that the father’s complete and utter denial of ever having been violent or threatening to the mother or indeed of ever having threatened self-harm during his relationship with her and his insistence that he is not by nature a violent person means that I can have no confidence that the risk of him behaving in this way in the future is ameliorated by an understanding of the risk by him and willingness to take steps to reduce the risk.
The mother committed some acts of family violence during the relationship including yelling and screaming abuse, taking the father’s phone and threatening to not make the children available to spend time with him unless he reconciled with her.
There was no evidence however that the mother had been violent in other relationships, had ever come to the attention of the police or had any mental health issues at present. The mother does not see some of her behaviour (such as threatening to withhold the children) as family violence and does not see herself as a perpetrator of family violence but on the whole of the evidence I am satisfied that her behaviour was an incident of the relationship. There is nothing to suggest that she is likely to behave violently in future relationships.
I must consider if a family violence order which applies, or has applied, to the children or a member of the children's family--any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
Police applied for an ADVO for the mother’s protection in 2013 but it is unclear to me whether a final order was made.
A final ADVO was made for the protection of the mother on 24 June 2015 as a result of the 4 March 2015 incident and it expired in June 2017.
It was made without a hearing and I cannot draw any conclusions from the fact that it was made.
Ms S applied for an ADVO for protection from the father following an argument in September 2012. A final ADVO was made by consent on 9 October 2012 for two years.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
It is always preferable to make the order least likely to lead to further proceedings but the only order fitting that bill in this case is a no time order and that is an order the court always makes with a heavy heart.
An order for the father to spend unsupervised time with the children is highly likely to lead to further proceedings. Given the father’s attitude to the mother, his belief that she has harmed X in the past and threatened to murder the children and his belief that there is mental illness in her family if not in her which may have been passed on to the children there is a very high risk of him making complaints about her parenting leading to further proceedings.
I must consider any other fact or circumstance which the court thinks is relevant.
The first relevant matter is that the paternal grandmother did not give evidence.
It was the father’s case that it was important that orders be made which ensured that the children were able to have a relationship with the paternal family, but the only paternal family member he referred to was the paternal grandmother and the children did not engage with her at all at the family report interviews.
The father had a troubled and difficult childhood during which his father perpetrated family violence. The mother made allegations about the paternal grandmother and expressed concern about the children spending time with her and the children did not warm to her at the family report interviews.
The father said at trial that he was living part of the time at the paternal grandmother’s home, and on his proposal the children might also spend time at her home. It causes me unease that he did not call the paternal grandmother to give evidence so that some assessment of her could be made.
The mother said in cross-examination that she had a good relationship with the father’s brother which would lay a foundation for the children to see him. I have no reason to disbelieve this but the issue was not explored.
A second relevant consideration is that the father did not explain why he was not seeing A. A lives in Queensland but Brisbane is an hour’s flight from (omitted). The father told the family report writer that he saw A “when he can afford to go up and stay in Brisbane” but did not say when he last saw him.
Given the mother’s evidence and given the information in the subpoena material about incidents between the father and Ms S, it troubles me that the father failed to give any evidence at all about how often he saw A and if he was not seeing him why he was not seeing him. A is only five months older than X.
I now return to the primary considerations and the first of these is the benefit to the children of having a meaningful relationship with both of their parents.
It was the father’s case that the mother was incapable of fostering a meaningful relationship between him and the children because it was her view that unless he was in a relationship with her he should not see the children.
The father attached emails which the mother sent when the parties were still in a relationship in which the mother said that if the father did not want to be with her he would not be able to see the children. However I agree with the submission by the mother’s counsel that it does not follow that because the mother sent such emails when she was still intent on trying to salvage a relationship that she has carried that intention through into the post-separation period.
Two things are worth noting. The first is that the mother did have some good things to say about the father at trial. She commented that he was extremely attentive and helpful at the time of Y’s birth. The second is that while there is no doubt that the mother does not support the children having a relationship with the father, there are factors in this case which make that understandable, namely the father’s perpetration of violence, his mental health issues and his extreme denigration of the mother.
I do not accept that the mother is unreasonably refusing to support a relationship between the children and the father for some irrational or unacceptable reason, and I further note that the father’s capacity to foster a relationship between the children and the mother is questionable.
The father did not have a single good thing to say about the mother in his affidavit. He accused her of repeated infidelities, of refusing to work (in circumstances where she gave birth to two children in two years), of deliberately hurting X by shaking her and causing her to be burned by hot coffee and of threatening to kill the children, only to later propose that if his safety could not be guaranteed he would relocate to (country omitted) leaving his young daughters in her care.
He trawled through the subpoena material to produce a grossly offensive list of abuses to which he said the mother had been subjected before she met him. He proposed both in his Case Information document and in his written submissions that the mother should have a psychiatric examination.
There is no sign that the father has the capacity to foster a relationship between the mother and the children and I am concerned that his views about her are so negative and so extreme that there is a risk of the children being subjected to psychological harm in his unsupervised care from exposure to those views, which leads into s.60CC (2) (b) and pursuant to s. 60CC (2A) this consideration trumps s.60CC (2) (a).
S.60CC(2)(b) says that I must consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The father maintained that under certain circumstances the mother might kill the children. I do not accept this nor do I accept that the father truly believes it.
He maintained that the mother had deliberately harmed X by shaking her. I do not accept this evidence.
The mother pushed the father and yelled at him and attempted to coerce him by threatening to withhold the children but there was no evidence that she had a propensity to be violent in domestic relationships.
In the document headed “May 2017 Breaden amended orders” the father lays on with a trowel his alleged fear of the mother and his case that she has been lying and fabricating evidence. I do not accept that the mother has been lying and fabricating evidence.
I do not accept that the children are at risk of abuse, neglect or family violence in the mother’s care.
There is a risk of the children being exposed to family violence in the father’s care.
There are reports of the father being violent during his relationship with Ms S both to Ms S and to a male person, he has had some mental health issues and he was physically violent to the mother including on the last occasion the parties were together. He completely denies perpetrating violence and asserts that he is a submissive person who would never do such a thing. He maintained this throughout the trial and in his written submissions despite his own evidence of losing control and punching through a sliding glass door.
However I need to determine whether that risk would be unacceptable if the children spent time with the father, in other words whether there is a very real possibility that violence might occur.
The mother’s counsel referred to the evidence of the family report writer who said that matters which mitigate the risk of family violence occurring in the future are the development of insight, taking steps to obtain professional assistance to manage emotions so they are not expressed violently and the passage of time.
The father made no admissions and demonstrated no insight into his own nature and this particularly concerns me given the obsession with fidelity which blighted his relationship with Ms S and the mother. Things may be different with Ms G but it is impossible to be sure about that.
During his relationship with the mother, the father had no regard to the fact that the children were present when he acted out dramatically and was violent, and exposure to even one such incident would be damaging for the children.
I consider that there is an unacceptable risk of the children being exposed to family violence if they spend unsupervised time with the father subject only to this; something which might ameliorate that risk and bring it back to acceptable would be if the children spent only short periods of time with the father and not at his home.
However there is also a risk of the children being exposed to abuse in the father’s care because of the negative views of an extreme nature he holds about the mother, and that risk is not so easily ameliorated.
Abuse is defined in the s. 4 of the Family Law Act 1975 and it includes:
Causing children to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence.
The term “serious psychological harm” is not defined in the Family Law Act 1975 but in my view so extreme are the father’s views about the mother, so blind is he to the impact on others of his expression of those views and so lacking is he in empathy for his children that there is an unacceptable risk of the children being exposed to those views and suffering not just emotional harm but serious psychological harm if they spend unsupervised time with the father.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act 1975 I am required to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them absent a finding that one of the parents has engaged in abuse of the children or family violence.
I am satisfied that family violence occurred between the parents and the presumption does not apply.
Even though this does not preclude me from making an order for equal shared parental responsibility I could not consider doing so in this case. There is no trust at all between the parents. They do not speak to each other and their attempts to communicate during their short relationship were disastrous. It would not be in the children’s best interests for the parents to share parental responsibility.
The mother sought an order for sole parental responsibility. I intend to order that she has sole parental responsibility for the children.

The recommendations in the family report

The family report writer made recommendations which depended on the findings made by the court about the violence allegations.
She was firm in her recommendation that the children should live with the mother and said as follows:
The children have always lived with the mother. The father has made no application for the children to live with him or spend equal time between the households. It is recommended that the children continue to live with the mother. Given poor communication between the parties responsibility for major decisions regarding the children should probably rest with the parent with whom the children live.[20]
[20] Family Report paragraph
Her recommendations about the time the children should spend with the father were as follows:
If the Court considers that the violence described by the mother has occurred as she maintains and she has not also displayed violence towards the father it would not be considered to be in the best interests of the children to live with the father or to spend substantial periods of time with him unsupervised.
If however the Court determines that both parties have been engaging in behaviour that has exposed the children to family violence then the Court may consider the children should spend time with both parents in a manner which isolates the parents from each other.
The family report writer said as follows about an appropriate regime for time with the father:
If the Court were to consider the father’s application to spend time with the children, a modification of his application for time with them each week on a Thursday would be recommended though a shortening of the hours to take into account their developmental stage would be suggested, 9.30am am until 4pm prior to the children commencing school may be reasonable.
At the time the eldest child X enters school the father proposed time spent with him with both children be increased to Friday from 4.30pm through to Sunday at 6.00 pm on each alternate 4th weekend. This amount of time would allow for a meaningful relationship with the father to be maintained.
Additional time is recommended during holidays and on special occasions could be arranged mindful of the children’s age and development.[21]
[21] Family Report paragraphs 298 to 300
In cross-examination the family report writer said that the children were enjoying their relationship with their father in circumstances of not being exposed to violence and conflict and I will have to weigh up whether unsupervised time is likely to expose the children to any risks.

Conclusion

This is a complex and difficult matter.
The father’s trial affidavit, containing as it did allegations that the mother might murder the children, repeated complaints that both the mother and his former wife Ms S were unfaithful to him, distasteful comments about the mother “refusing to work” in circumstances where she had the care of first one and then two very young children and self-congratulatory references to himself as a submissive, community minded individual, aroused a considerable feeling of disquiet in me before the trial even began.
My disquiet was increased by what unfolded at the hearing and it was clear by the end of the hearing that the father had perpetrated family violence, including on 4 March 2015 when the mother was injured. However it was also clear that the mother had perpetrated some family violence and that she was not without blame for the fact that the children spent their early lives in a highly dysfunctional family.
The starting point for any consideration of what should happen for the children in the future is that they are safely placed with the mother who is doing a very good job looking after them on a day to day basis. They are attending pre-school and playgroup, the mother does other activities with them such as taking them to the library, and the family report writer observed them to be healthy well-cared for children who were securely attached to their mother.
The mother does not pose any risk of harm to the children. She is an anxious mother but a devoted one. She did behave violently to the father on occasions and was engaged in a destructive dance with him between 2012 and 2015 while trying to get him to commit to their relationship but she does not have either a prior or a subsequent history of being involved in a dysfunctional relationship nor does she have a history of being violent in any other relationship or in any other setting.
The children have lived with their mother for their entire lives, and even if I was concerned that the mother was unreasonably failing to foster a relationship between the children and the father, I could not possibly consider making an order that the children be removed from her care, not unless and until other measures to address this issue had been tried and had failed.
However I am not satisfied that the mother is opposing the children spending time with the father for no good reason or to pay him out for not remaining in a relationship with her; I am satisfied that she genuinely fears for the children’s safety in his care due to her experiences of his erratic, sometimes violent behaviour and that the idea of the children spending unsupervised time with him makes her very anxious.
Sometimes people have a genuine fear but they need to master it because it has no realistic basis but the situation in this case is not that simple.
The father punched through a sliding glass door in September 2013, made threats of suicide on that day and in November 2014, was violent to the mother or exposed the mother to family violence on numerous occasions including in February 2014 when he spat on her and on 4 March 2015 when he took hold of her head. He denies ever being violent and relies on a selected extract from the family report to promote the idea that he is a submissive person who would not be violent. As the mother’s counsel pointed out in submissions, this means that the risk of him behaving violently in the future if confronted with stressful situations is real, and the father’s affidavit suggests an obsession with fidelity which has stressed him throughout two previous relationships.
If the father had made admissions about his behaviour to the mother he might have argued that it arose out of his relationship with her and that he was unlikely to behave that in another relationship, but he did not make any admissions and in any event given the evidence which emerged about the father’s relationship with Ms S, I have real concerns about whether such behaviour is likely to occur in the future.

The fact that Ms G maintained that the father was not violent to her does not give me comfort. I cannot exclude the possibility that she is covering up for the father.
The father’s conflict with his parents when he was in his mid-teens, with Ms S during their marriage and with the mother during their relationship all resulted in an occasion or occasions when he was taken to a mental health unit because of concerns that he might harm himself, which adds to my concern about the father’s stability in the long term.
The other issue in the case is the extremely negative indeed obnoxious views the father holds of the mother, his willingness to regale others with degrading information about her and his inability to see that it is not a cause of criticism that the mother of a three month old child did not seek employment.
I have considerable difficulty understanding the Independent Children’s Lawyer’s position in this matter.
On the one hand there is a mother who committed some acts of family violence during the relationship in the form of pushing the father, yelling abuse at him and threatening to withhold the children if he did not commit to his relationship with her and perhaps by slapping him but who has never been involved in any other incidents of violence inside or outside a relationship and has never been admitted to a mental health unit and has not had a mental health diagnosis in the recent past.
On the other hand there is a father where who even on non-controversial evidence:
i)was the subject of allegations by his first wife Ms S that he was violent to her and while noting that she withdrew the allegations in 2011 also noting that there is material in hospital records from 2004 indicating that the father admitted having a problem with anger and committing a serious act of family violence in respect of Ms S, who had an ADVO made against him for the protection of a man he allegedly assaulted during his relationship with Ms S and who had a two year ADVO made against him for Ms S’s protection in 2010.
ii)Was taken to hospital after attempting or threatening to attempt suicide in 2001 and 2004.
iii)Committed an act of family violence during his relationship with the mother by punching his way through a sliding glass door resulting in him being convicted of malicious damage.
iv)Was the reason the mother called the police in September 2013 and November 2014 and on both of these occasions police records show she expressed concern to police about his mental health.
The orders proposed by the Independent Children’s Lawyer surprise me just in the light of this but I could not possibly consider making them in the light of my own findings and I am conflicted about what to do with this matter.
It is a considerable loss to a child not to have one of their parents in their lives. X and Y are young and are likely to weather the loss at present but they could well be curious about the father when they are older and may resent the mother for not allowing them a relationship with him if his life has turned out well.
I share the concerns of the mother’s counsel about the extent of the father’s commitment to X and Y. He has been attending at the contact centre to see them but he did not explain why he was not seeing A, and his willingness to consider going to the (country omitted) if concerns about his safety (unfounded concerns in my view) were not addressed is difficult to understand and does not suggest an unconditional commitment to his daughters. However that would not be a reason by itself to give up at this stage before unsupervised time was even tried and making no orders for time.
In light of my findings, I would not be prepared to order that the children spent any extensive or even any overnight time with the father. This would involve an unacceptable risk of the children being exposed to either family violence or the father threatening self-harm because of some issue in his family or in a relationship and would also heighten to an unacceptable degree the risk of the children being harmed emotionally by exposure to the father’s views about the mother, and further given the wild accusations about the mother in his affidavit and the content of his written submissions, I am concerned that if the father spent unsupervised time with the children further wild accusations will be made about her, leading to the matter rapidly returning to court.
I am also uneasy about the father’s living circumstances and about whether the paternal grandmother is in fact an appropriate person to be around the children. In some cases this kind of concern can be dealt with by assuming that a parent will not put their children at risk of harm but that is not an assumption I am prepared to make in this case.
I have reflected on whether I should make an order for short periods of unsupervised time, a few hours, to take place on the (omitted). The mother did not find the idea of this repugnant during the family report interviews and the children have related well to the father at the contact centre. If they spent a short period of time with him he would be focussed on doing a fun activity with them and the risk of them being exposed to family violence or any associated issues with the father’s mental health would not be unacceptable.
In circumstances where the father can see nothing wrong with his views about the mother, where he maintains that he is a submissive person who would never be violent, where he denies being violent to the mother, where I have concerns about his mental health and where I have concerns about the paternal grandmother, I could not possibly consider ordering more than this, but I have given considerable thought to whether I should make this order rather than see the children not having a relationship with their father at all.
After careful reflection I am not satisfied that I should and what tips the balance for me is the father’s extreme and obnoxious views about the mother. I am simply not prepared to put the children in a situation where they have to move regularly between two parents one of whom is parenting them well and the other of whom has fixed false beliefs that the other parent is likely to abuse and even murder the children and has a mental illness. There is an unacceptable risk of the children being exposed to emotional harm if not serious psychological harm if I make this order because of exposure to the father’s views, not to mention the very real possibility of the father making accusations about the children’s care which lead to the matter rapidly returning to court.
Supervision would protect against all these evils but a long term order for supervised time is undesirable. If there is no prospect of anything changing and unsupervised time becoming appropriate, there is no value to the children in me making an order for supervised time on a final basis. It will not lead to them having a meaningful relationship with their father and for a variety of reasons including cost, availability of services or the children becoming bored and resistant, it is all too likely to break down.
The father may after this decision is handed down reflect on his behaviour and attitudes and on his propensity to be violent in relationships and if in future he is able to demonstrate a significant change in his attitude and an acceptance of responsibility for his behaviour he can bring another application. Although it will be regrettable if the matter has to come back to court if that occurs because the father fundamentally changes his attitude and behaviour which means that the children can have a relationship with him then it may be worth it. For the present, regrettable as it is for the children not to have one parent in their lives, I intend to make an order that the children spend no time with and have no communication with the father.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.

I certify that the preceding three hundred and twenty two (322) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 1 March 2018

[2018] FCCA 274

1 March 2018

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Remedies