BURRELL & BURRELL

FAMILY COURT OF AUSTRALIA

BURRELL & BURRELL

[2015] FamCA 1163

FAMILY LAW – CHILDREN – Whether the children should spend time or live with the father – Where there has been significant physical and verbal abuse against the father and the children by the mother – Where the father has not protected the children from that violence – Where the father has not spent time with the children since separation – Where the children refuse to communicate with the father – Orders made that the children live with the mother and spend time with the father in accordance with their wishes.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA
APPLICANT:	Mr Burrell
RESPONDENT:	Ms Burrell
INDEPENDENT CHILDREN’S LAWYER:	Grant and Co Solicitors
FILE NUMBER:	PAC	388	of	2013
DATE DELIVERED:	26 March 2015
PLACE DELIVERED:	Sydney
PLACE HEARD:	Parramatta
JUDGMENT OF:	Le Poer Trench J
HEARING DATE:	16-19 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Druitt
SOLICITOR FOR THE APPLICANT:	Matthews Folbigg Lawyers

ADVOCATE FOR THE RESPONDENT:	Self represented
COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER :	Mr Kelly
SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER :	Grant & Co Solicitors

Orders

All prior parenting orders made by the Court are hereby discharged.
Ms Burrell (“the mother”) has sole parental responsibility for the children, P born … 1999 (“the older child”) and L born … 2001 (“the younger child”) (“the children”).
The children live with the mother.
The mother is to encourage the children to renew their relationship with Mr Burrell (“the father”) and to interact with the father when he makes contact with them.
The children spend time with the father in accordance with their wishes. The mother is to facilitate this should the children express a desire to.
The mother is to supply the father with the children’s email addresses within seven days of the date of these Orders. Each child is to have a separate email address. The father is permitted to send the children emails at any time.
The mother is to encourage the children to respond positively and respectfully to any emails sent to them by their father.
The father is permitted to send to the children letters, cards and gifts at any time and the mother is to ensure those items are placed into the hands of the children.
The mother shall forward via email to the father an acknowledgment of receipt of these letters, cards or gift within seven days of receipt of same. She is also to use her best endeavours to have the children respond positively to any such letter, card or gift sent to them by the father.
The father is permitted to attend the children’s school functions and receive the copies of the children’s school reports, newsletters and other correspondence. The mother is to provide the children’s school authorities with a written authorisation for the school to provide direct to the father the within described documents.
The mother and the father shall engage with the children with a suitable counsellor, psychologist or therapist (“the nominated person”) nominated by the Independent Children's Lawyer within 14 days from the date of these Orders. The parties shall forthwith engage such nominated person to provide family therapy for the parties and the children and the parties shall equally pay for the services rendered to the family by the engaged nominated person.
The mother shall take all necessary steps to ensure she and the children attend all appointments and follow directions of the nominated person. The father is also to attend any appointments made for him with the nominated person. The nominated person is to inform the father on such occasions as to the compliance by the mother and the children with attending scheduled therapy/counselling sessions.
The Independent Children's Lawyer is to nominate a counsellor, psychologist or therapist recommended by Mr Y of R. Clinic, or if he is unwilling to nominate such psychologist or therapist, then as recommended by the director of Z Psychology, Town X.
The Independent Children’s Lawyer is to forthwith provide a copy of Dr K’s report dated 30 August 2014, Mr Y’s report dated 13 January 2015, a copy of the judgment of the Court giving rise to these Orders and a sealed copy of the Orders of the Court to the nominated person.
The Court notes the mother has undertaken to continue appointments she has been having with Ms M of Z Psychology, Town X.
The mother may provide to Ms M with a copy of Dr K’s report dated 30 August 2014, Mr Y’s report dated 13 January 2015, a copy of the judgment of the Court giving rise to these Orders and a sealed copy of the Orders.
The mother is restrained from:
(a)Physically chastising or imposing any form of corporal punishment on L and/or P;
(b)Speaking to the children or either of them in an abusive, threatening or belittling manner; and
(c)Denigrating the father or any other member of the father’s family or household, or permitting any other person to do so in the presence or hearing of the children.
The mother is to ensure the father has access to the children’s medical and dental records by authorising any of the children’s treating medical practitioners, dentists or relevant hospital authorities to provide any information requested by the father.
The mother is to advise the father via email of any medical emergency pertaining to either of the children.
Neither parent is to hinder or prevent the children or the other parent having appropriate contact with members of the other parent’s family. Each parent is to not intercede in any arrangements for contact or communication made by the other parent with a member of a parent’s family.
Within 14 days of these Orders the Independent Children’s Lawyer shall explain these Orders to the children and the Court’s conclusion that the children are at no risk should they be in the care of the father. The mother shall do all acts and things necessary for the children to attend upon the Independent Children’s Lawyer for such purpose.
Each of the mother and father are to pay one half of the costs of the Independent Children's Lawyer. Each of their payments is to be made to Legal Aid NSW within 30 days of receipt of an invoice from the Independent Children's Lawyer.
The appointment of the Independent Children's Lawyer is extended beyond the making of these Orders in order to permit the Independent Children's Lawyer to comply with the Orders.
All outstanding applications are otherwise dismissed and the proceeding is noted as now completed in the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burrell & Burrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 388 of 2013

Mr Burrell

Applicant

And

Ms Burrell

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

The application before the Court is that of the father Mr Burrell (“the father”) who is 54 years of age and works as a manager on a full-time basis with the NSW public service. He lives somewhere near Suburb A (the site of his workplace) and has asked not to divulge his residential address as he says he fears what the mother might do if she were to know that address.
The mother, Ms Burrell (“the mother”), is 46 years of age and is employed as a primary school teacher when called upon by the NSW Department of Education. She is employed as a “casual teacher”. She resides in the former matrimonial home which is at Town D on the Central Coast of NSW.
In this judgment the Court’s findings of the domestic violence perpetrated upon the father and the children by the mother are catalogued. All of the verbal abuse of the children by the mother is not contested by her as to its accuracy. To the extent that she cavils with any of the father’s evidence of her abuse of the children I have not accepted such denials as being truthful.
When the detail of the mother’s abuse of the children is read it will leave the reader with a chilling apprehension that the mother in this case might be permitted to teach in any school before she has been subjected to intensive therapy and the relevant education authority can be assured no child will be at risk under her school-time care.
Having stated the above matters some glimmer of hope for the future for both the children of the parties and the mother emerged during the mother’s submissions made at the conclusion of the case. For the first time there emerged a concession by the mother of the role she had played in the breakdown of the marriage, her appalling treatment of the children and that she was wanting to make a change for her own benefit and that of the children. I was left with the impression that the mother genuinely desired to permit the children to have contact with the father. Further, I was left with the impression that the mother acknowledged her shock and horror at Dr K’s provisional psychiatric diagnosis of her; that she wanted to urgently explore whether it may be correct; that she had an understanding that it really could be correct; and that she wanted to change with the help of her therapist.
Further to the above “conversion of the road to Damascus” revelations by the mother, I was left with the impression that the mother understood the real dangers which exist in relation to the parties’ son P’s development if his personality traits are not addressed urgently.
Another matter which will strike the reader of this judgment is “What did the father do to save the children from the horrifying treatment metred out by the mother over a number of years?” Lamentably the reader will probably conclude he did little or nothing. He escaped himself and then took no action in relation to the children for nearly 12 months. If there is an acceptable excuse for the father’s behaviour he did not share it with the Court.

BACKGROUND FACTS

Short History

The father and the mother were married in 1991.
There are two children of the marriage, a son born in 1999 and a daughter born in 2001. The older child is currently 15 years old and the younger child is 13 years old.

10. The parties separated on 11 May 2012 when the father left the former matrimonial home at Town D on the Central Coast of NSW. The mother remained living with the children at that place. They entered into final property settlement orders by consent on 4 July 2013. They divorced after 12 years of marriage on 13 October 2013.

11. I now set out a short summary of some of the key events in the history of the marriage. I note that the extensive allegations made by each party against the other will be canvassed in more detail later in these reasons.

12. The mother alleges that the father physically assaulted the older child in 2006 and that consequent thereto bruising was noticed on the child by a teacher at the child’s school, and that teacher reported the bruising to an officer of the NSW Department of Family and Community Services. The alleged assault is denied by the father.

13. On 8 October 2009 there was an altercation between the older child, the mother and the maternal grandmother. The child ran from the former matrimonial home into the maternal grandmother’s house next door, and was followed by the mother. The police arrived at the house at 9.30 pm and the child told the police that he had been chased by the mother with a knife. The father believes that the mother was taken from the home by the police to the X Hospital. He collected the mother the next day. The X Mental Health team visited the parties in the following weeks.

14. The father asserts that on 11 March 2012 the mother threatened to “knife” the father, told him that he deserved to be “bashed”, struck him with an open hand and pushed him. The father called the police, made a statement and the police then issued an interim AVO against the mother. The order included the father and the children as protected persons. The mother denies the father’s allegations. I note that when the older child was asked by Dr K about this incident, he is reported to have sneered and replied dismissively that the father “says that mum threatened him with a knife, but it was a butter knife”. The matter came before the X Local Court on 12 March 2012. The AVO was extended a further six months to 16 July 2012. On 16 July 2012 the AVO was extended for another six months, however, the children were removed as protected persons.

15. The parties visited Town S with the children and the maternal grandmother between 5 April 2012 and 18 April 2012 for the children’s sports competition. The father alleges that during this holiday, on or about 17 April 2012, the older child threatened to sexually abuse his father by pulling his pants down in the presence of the younger child, the mother and maternal grandmother and saying “let’s hump daddy”. The father alleges that the older child had also made threatening gestures toward both the younger child and him, on this same day, with an apple peeling knife.

16. The mother alleges on 18 April 2012, when the parties had returned from the holiday, the older child hit the mother on the arm in the course of an argument between the mother and the child over computer controls. The maternal grandmother called the police. The mother deposes that she also requested an ambulance as she was concerned about the maternal grandmother’s health. While they were waiting for an ambulance and the police to arrive, the mother alleges that the father tackled the child to the floor and hurt his arm. When the police arrived, the child was taken to the X Hospital for a suspected broken elbow, although X-rays at the hospital showed that there was no fracture.

17. The father denies that he assaulted the older child on 18 April 2012. He says that the child had told the mother on that day “You deserve to be punished, you obey me” and that the child punched the mother four times on the upper arm. He says that he was worried that the child would hit the maternal grandmother and when he attempted to restrain the child, the child hit, kicked, head butted and yelled at the father. The father gave evidence that when he let go of the child, the child clenched his fists and made a move toward him. The father says that he left the house and rang the police, who arrived at the house and spoke to all parties present.

18. The police notes from this day record that the father was the informant and that there was “NIL action” taken against him because he was attempting to protect the maternal grandmother, and that the injury to the older child’s arm was an accident.

19. The mother accuses the father of assaulting the younger child on 22 April 2012. She says that when she returned to the home, where the child was with the father, the child was crying and vomiting and told her words to the effect of “Dad turned off the DVD and hit me on my breast”. The father denies the alleged assault and says that the younger child had unexpectedly starting crying and accusing him of punching her on the breast when he was carrying her to bed. The police notes record that “the police believe there was no malice in the alleged assault”.

20. On 11 May 2012 the father moved out of the former matrimonial home upon the request of the mother via her solicitors. The mother says the father did not give her or the children his contact details and did not attempt to communicate with the children, with the exception of the birthday and Christmas cards, until phone contact was established in March 2013.

Independent Children's Lawyer’s Minute of Order

21. At the time the Independent Children's Lawyer rose to make submissions he presented a minute of order which it was submitted the Court could make. That minute provides as follows:

1.The mother have sole parental responsibility for the children, [P] born …1999 and [L] born … 2001 (“the children”).
2.The children live with the mother.
3.The children spend time with the father in accordance with their wishes.
4.The mother is to facilitate the children spending time with the father should the children express a wish to do so.
5.Within 7 days of the date of these orders the mother is to establish an email address for the child [L] and advise the father’s solicitors of such address within a further 7 days.
6.The father shall communicate with the children in writing on each of the children’s birthdays, father’s day, and Christmas and such communication may be a letter or a card or a gift on each occasion.
7.The mother shall forward to the father an acknowledgement that the letters, cards or gifts have been received by the children within 7 days of receipt of such letter, card or gift.
8.Within 14 days of the date of these orders the mother and father shall take all necessary steps to ensure that the children are engaged with a suitable therapeutic counsellor as recommended by Dr [K] (and as advised to the parties by the Independent Children’s Lawyer) and the parties shall take all necessary steps to ensure the children attend all scheduled appointments with such counsellor and follow all reasonable directions of such counsellor.
9.Within 7 days of being advised of Dr [K’s] recommendation of the counsellor the Independent Children’s Lawyer shall forward a copy of the report of Dr [K] dated 31 August 2014 to the counsellor.
10.Within 14 days of these orders the Independent Children’s Lawyer shall explain these orders to the children and the mother shall do all acts and things necessary for the children to attend upon the Independent Children’s Lawyer for such purpose.
11. Each party sis [sic] restrained from imposing any form of corporal punishment on either of the children.
12. The father is permitted to attend school functions and receive school material etc.

THE MOTHER’S MINUTE OF ORDER

22. At the time the mother was called upon to provide the Court with her submissions she provided a minute of the order she was asking the Court to make. The minute became an exhibit in the case and sought the following orders.

Respondent’s Minute of Order
1.The mother Ms [Burrell] have sole parental responsibility for the children, [P] born … 1999 and [L] born … 2001 (the children).
2.The children live with the mother.
3.The children spend time with the father in accordance with their wishes and that the mother is to facilitate this should the children express a desire to.
4.The mother is to supply the father with the children’s email address within 7 days of the date of these orders.
5.The father may send a letter, card or a gift on the occasions of the children’s birthdays, Easter and Christmas, and father’s day.
6.The mother shall forward via email to the father an acknowledgment of receipt of these letters, cards or gift within 7 days.
7.Father permitted to attend school functions and receive school reports, newsletter and other correspondence.
8.The mother and the father shall engage the children with a suitable counsellor within 14 days from the date of these orders. The mother shall take all necessary steps to ensure children attend all appointments and follow directions of the counsellor. That such counselling be private and confidential to ensure that the children have full confidence in the counselling process. The parties shall equally share any cost of this counselling. (Recommended [Mr B] of [Z] Psychology [Town X]). The mother to continue appointments with Ms [M] of the same clinic.
9.The Independent Children’s Lawyer shall forward a copy of Dr [K’s] report dated 31^st August 2014 and Dr [Y’s] report dated 13^th January 2015 to the children’s counsellor.

10.Each party is restrained from:
a.Physically chastising or imposing any form of corporal punishment on [L] and/or [P]
b.Denigrating the other party or any other member of the family’s household.
11.The mother to ensure the father has access to the children’s medical and dental records.
12.The mother is to advise the father via email any medical emergency pertaining to either of the children.
13.The mother and the children are able to facilitate re-establishment of contact with [Mrs] and [Mr H] (Mr [Burrell’s] maternal uncle) and family.

Father’s Minute of Order

23. . The father provided the following minute of order he was seeking. This minute was provided during the hearing.

Minute of order proposed by the Applicant Father – [Mr Burrell]
1.The parties shall ensure that the children [P] and [L] attend upon Mr. [E], Family Consultant, for the purpose of Mr. [E] explaining the orders made this day to [P] and [L] and advising [P] and [L] as to the reasons for the Court’s decision including that the father poses no risk to their safety.
2.The father shall have sole parental responsibility for [L] born … 2001 (‘[L]’).
3.[N] born …1999 (‘[N]’) shall live with the mother.
4.[L] shall live with the father.
5.For six months from the date of these orders [L] shall spend no time with the mother.
6.Thereafter and subject to Order 10 [L] shall spend time with the mother as follows:
a.For six occasions on each alternate Saturday for two hours at times nominated by the Co-ordinator of the [W] Contact Service such time to be supervised at the Service.
b.Upon compliance with 6 a. then for six occasions on each alternate Saturday from 10am until 2pm.
c.Upon compliance with 6 b. then for six occasions each alternate weekend from 4pm on Friday until 4pm on Saturday.
d.Upon compliance with 6 c. then during the school term:
i.Each alternate weekend from 4pm on Friday until 6pm on Sunday
ii.In the holidays at the end of Terms 1, 2 and 3:

1.From 10am on the first Saturday of the holidays until 4pm on the second Saturday of the holidays in 2017 and each alternate year thereafter and
2.From 10am on the middle Saturday of the holidays until 4pm on the Saturday one week later in 2016 and each alternate year thereafter
iii.In the holidays at the end of Term 4:
1.In the holidays which commence in December 2016 and December 2018 from 10am on the first Saturday of those holidays until 5pm on the third Saturday
2.In the holidays which commence in December 2017 on the third Saturday of those holidays until 5pm on the fifth Saturday.
7.In the event that the mother does not strictly comply with Order 6 and Order 8 then the mother’s time with [L] is suspended for a period of 12 months from the date that [L] last spent time with her mother.
8.All changeovers shall take place at the [W] Contact Service and in the event that the Service is closed then at the McDonalds Restaurant ….
9.Except as otherwise provided in these orders the mother is restrained from:
a.Assaulting, molesting, stalking, intimidating, harassing, abusing or denigrating the father and/or [L]
b.Coming within 500 metres of any place at which the father resides or works.
c.Contacting the father except in the case of emergency.
d.Contacting [L] in any way except as provided for in these orders
e.Attending at any school in which [L] is enrolled or contacting that school.
f.Facilitating or allowing [P] or [Ms U] to contact [L] save when [L] is spending time with the mother pursuant to these orders.
10.The preceding order is an injunction made pursuant to section 68B Family Law Act 1975 for the personal protection of the father and [L] and the provisions of section 68C apply to it and it shall be in force until [L] is 16 years of age..
11.Except if the father agrees in writing the mother is restrained from allowing or facilitating [P’s] attendance at times when [L] is transferring to or from the mother’s care.
12.Each party is restrained from:
a.Physically chastising [L] and/or [P].
b.Denigrating the other party or any member of the other party’s household
13.Each party shall facilitate [L] and/or [P’s] attendance at any course of therapy recommended by Dr [K]
14.The father shall:
a.Provide the mother with the name of any school which [L] attends
b.Advise the mother if [L] is hospitalised or requires the attendance of a specialist medical services provider or is in attendance at any emergency medical services provider.
c.Provide the mother with copies of [L’s] school reports within 14 days of the father’s receipt of same
15.The father may provide a copy of these orders and Dr [K’s] report to school counsellor and any therapist engaged pursuant to Order 13.
16.The parties shall do all acts and things necessary to facilitate the supervision of these orders by Mr. [E], Family Consultant for the period of 18 months from the date of these orders.
In the event that the Court determines it is safe for [L] to live with the mother then in the alternative
17.That [P] shall live with the mother
18.[P] shall spend time with the father and communicate with the father as agreed and arranged between [P]and the father.
19.The mother shall provide to the father within seven days an email address for [P] and the mother shall provide to the father within seven days of any change a notice of any new email address for [P] from time to time.
20.The father is at liberty to communicate by email with [P] no less than once in every two month period.
21.[L] shall live with the father and the father shall have sole parental responsibility for [L].
22.Order 21 is suspended for a period of 12 months and [L] shall live with the mother provided that:
a.That [L] shall spend time with the father as follows:
1.Each alternate weekend from the conclusion of school on Friday until commencement of school on the following Monday during the school term or the commencement of school on the Tuesday if the Monday is not a school day.and for
2.One half of each of the school holidays being the first half in 2015 and each alternate year thereafter and the second half in 2016 and each alternate year thereafter.
23.In the event that Order 21 is in force then [L] shall spend time with the mother as set out in Orders 5,6 and 7 above.
24.The father shall collect [L] from school on school days and otherwise during 2015 shall collect [L] from and deliver her to the [CC] Contact Service
25.Except as otherwise provided herein the mother is restrained from:
a.Assaulting, molesting, stalking, intimidating, harassing, abusing or denigrating the father.
b.Coming within 500 metres of any place at which the father resides or works.
c.Contacting the father except in the case of emergency.
d.Coming within 100 metres of the father at changeover.
e.Contacting [L] when [L] is in the care of the Father.
26.The preceding order is an injunction made pursuant to section 68B Family Law Act 1975 for the personal protection of the father and the provisions of section 68C apply to it until [L] is 16 years of age..
27.Except if the father agrees in writing , including sms or email the mother is restrained from allowing or facilitating [P’s] attendance times when [L] is transferring to or from the father’s care.
28.Each party is restrained from:
a.Physically chastising [L]and/or [P].
b.Denigrating the other party or any member of the other party’s household.
29.The parties shall within seven days each approach a therapist nominated by Dr [K] and shall:
a.Provide the therapist with a copy of the Expert Report and the reasons for judgment in this matter..
b.Follow all reasonable directions and therapeutic engagements recommended by the therapist and as far as possible in accordance with Dr [K’s] recommendations at paragraph 436 of his report.
c.Each party shall pay the therapist’s costs for any engagement with that party and any engagement with the children that relates to that parent’s household.
30.The father is at liberty to take [L] and/or [P] from school for the purpose of attending at any therapy recommended pursuant to Order 29 b. above.
31.The mother shall do all things so that [P] and [L] shall communicate by email and telephone with the father in accordance with their wishes.
32.The father is at liberty to communicate with [P] and/or [L] by email and/or telephone in response to their request but in any event by email or telephone once each month.
33.In the event that the mother fails to comply with Order 22 and order 21 is in force then Order 22 is discharged.
34.The Father shall facilitate [L’s] attendance at [extracurricular activities] when [L] is in his care and the Mother shall not attend these events during the Father’s time.
35.The Father is at liberty to attend:
a.All events at [P] and [L’s] schools to which parents are invited
b.All [sports competitions] in which the children are participating.
c.Any dance, concerts or displays in which the children are performing.
d.Any event that parents attend for any other extra curricular activity in which [P] and or [L] are involved.
36.The Mother shall provide in writing by email to the Father within 7 days of her receipt notice of all events listed in order 35 above.

Evidence

The Father

The father relied upon the following documents:
a.Notice of Child Abuse filed 29 October 2013;
b.Parenting Questionnaire filed 23 January 2014;
c.Affidavit sworn by the father 19 January 2015; and
d.Amended Initiating Application filed 19 January 2015.

Father’s Allegations of family violence set out in father’s affidavit sworn 19 January 2015

The father’s affidavit largely consisted of his cataloguing incidents of family violence. I here set out a summary of that evidence. The summary includes references to the maternal grandmother. It is important to understand that the maternal grandmother resided next door to the Burrell family, the subject of this hearing, and she had a frequent presence in the former matrimonial home of the parties.
26 May 2006:
·    The mother hit the father three to four times on shoulders with her right hand. The older child came into room and started to laugh. The mother shouted at the child to go back to bed.
·    The father backed away and the mother hit the father with open hand across the face. This caused bruising to his face.
·    After the incident, the mother said to the father “It would be better if you were dead”.
·    In the doorway of the older child’s bedroom, the mother walked toward the father and put her hands up towards his neck. The father thought mother was going to choke him so he grabbed her wrists and held them. The father lowered mother to floor and held her there. The mother told the older child to ring the police. To the father’s knowledge, the child did not ring the police.
14 March 2007: The mother was yelling at the children when they were uncooperative about going to bed. The mother and maternal grandmother said words to the father to the effect of “you don’t know how to look after children”. The father said words to the effect of “what you are saying is inappropriate”. The maternal grandmother slapped the father on the face with an open hand.
25 March 2007: The father said he restrained the mother, and that this was observed by the children and maternal grandmother.
8 September 2007: The father saw the mother hit the younger child with belt a number of times. The child showed the father a red mark on her left shoulder and a 6 cm scratch below her knee.
9 October 2007: The father arrived home from work to find the mother and the children arguing. The mother grabbed large plastic spoon from the kitchen and told the older child to “come here”. The child ran to his bedroom. The mother yelled and followed the child saying words to the effect of “On our way to … we will leave you on the side of the road and not come back for you….you are a horrible child and you will go to jail when you get older”. The father saw the mother strike the older child’s upper left leg at least four times, his right upper arm once and his other arm once with the spoon.
16 October 2007: The maternal grandmother shouted at the children “You’ll never get anywhere in life…your father is a pig and doesn’t care about you….” When the father told maternal grandmother he didn’t agree, she slapped him across the shoulder and the face at least three times. Photos of scratches on father’s face were annexed to the father’s affidavit.
29 December 2007: The maternal grandmother hit the father on his face.
In about 2008: The father saw the mother grab the older child and use both her hands to open his mouth very wide.
20 January 2008: The father forgot to record a sports program for the mother. The mother yelled and scratched the father on the arm and excluded him from attending church. What the father described to be photographs of those scratches were annexed to his affidavit.
5 April 2008: The mother called the father a “horrible, nasty little man” a “cruel, callous little bastard who picks on old ladies and little children”, said that he should be “castrated and hung up” and said, “you can choke in your own bloody phlegm next time you get pneumonia”.
6 April 2008: The maternal grandmother referred to the father speaking to third parties like the church minister and said “you should just keep your mouth shut before I shut it for you permanently”. The father recalls both the mother and maternal grandmother hitting him that weekend.
21 May 2008: The younger child told the father that the older child was “trying to belt his mummy…trying to kill his mummy”. The father heard the mother say “free shot, come and kill me…bash me to death…I’ve already got teeth marks on my arm”. He also heard the maternal grandmother arguing with the older child. The mother said to the father “your son has now wrecked my arm” and “you walked past your son and he was belting me tonight and never stopped him”. The maternal grandmother called the father a “disgusting bit of garbage”.
14 August 2008: When arguing with the older child, the father heard the mother threaten to ring the police and said that the child has “ripped the skin on my hand”. The mother said “I’m going to kill you” to the child. The child said “you better put that spoon down.” The younger child started to cry. The mother told the father later that the older child kicked her in the back.
21 August 2008: The mother became angry because a fuse had blown on the radio and she had left her credit card in an ATM. She hit the father in the face with an open hand.
9 October 2008: When on holiday interstate, the mother hit the older child with a spatula. Photos of the scratch on the child’s hand were annexed to the father’s affidavit.
18 October 2008: When the younger child did not want to eat her breakfast, the maternal grandmother smacked her on the leg.
12 December 2008: The maternal grandmother hit the father on arm/chest area with wooden spoon and broke the wooden spoon. When the father told her not to hit him, she said words to the effect of “You ought to be hung up…you ought to be strung up”.
18 January 2009: The mother said to the father “I’m going to knife you if you don’t leave the house”.
15 February 2009: The mother hit the father across the face so hard that he experienced ringing in his ears.
23 February 2009: The mother said to both the father and the older child “I am going to knife you”. The mother did not let the father sleep in the bed and he slept on floor.
15 March 2009: The father heard the mother and the older child arguing and was aware that the child had hit or kicked the mother. The mother said to the child “when I’m riddled with cancer you and your father are gonna go down…if I ever get breast cancer he’s going down for belting me in the boob…get back to your room or I will attack you”.
5 April 2009: The mother hit the father with an open hand across the face while he was cleaning the telephone and light switches.
17 May 2009: The mother hit the father under the jaw while the maternal grandmother was present.
25 May 2009: The mother said to the father “[P] put salt on my dessert…you can have that for your tea”. The mother also referred to the children as “Bastard children”.
18 June 2009: The mother hit the father with an open hand on the side of his face and in the area of his eye. On the same evening, the mother hit the older child with a long plastic sword. The mother didn’t let the father eat the evening meal. The next day the father saw bruising around his eye socket. Photographs of the bruise allegedly caused by the mother are annexed to the father’s affidavit.
17 August 2009: The mother said to the older child “I don’t want to see you ever again”. She told the father “he’s just thumped me in the spine…and your son has just kicked me, how about I kick you in the back, like he just kicked me…go on.” The younger child started to scream and then cry. The older child said “I whacked her.” The maternal grandmother told the father “I’m going to tear you apart limb by limb”.
22 August 2009: The older child was misbehaving just before bedtime and the mother hit him on the arm with a plastic sword. The maternal grandmother brought out an ice brick and put it on the child’s arm to reduce the swelling and bruising. Later that night the maternal grandmother hit the father.
Father’s Day, 2009 (6 September 2009): The maternal grandmother and the children hit the father when he came into house after cleaning the backyard.
8 October 2009:
·    The father arrived home from work and saw the older child leave the house and go toward the maternal grandmother’s house. The mother followed him.
·    There were a series of arguments between the older child, mother and maternal grandmother. The father heard the mother say something about a knife. He saw the mother throw what appeared to be a belt on the lawn. Later he heard a sound that appeared to come from the older child’s bedroom of a person being hit or punched.
·    The father heard the maternal grandmother say words to effect of “my head is ringing”. He went into the hallway and saw the maternal grandmother holding a hand to her face in the older child’s bedroom.
·    At about 9.30 pm the police came to the front door. The father was not sure who called the police. The father answered the door. The older child told the police that the mother chased him with a knife. The mother was taken from the home by the police.
·    The mother was taken to the X Hospital. In the following weeks the family was visited by the X Mental Health Team who also spoke to the father separately.
18 October 2009:
·    The father went to the home at noon and saw the mother going through his backpack. He picked up mother’s handbag and said “can I go through your handbag in the same manner you’ve gone through my backpack?” The mother and maternal grandmother grabbed the father’s hands, wrists and arms and the bag and started pulling it away from him. The children hit the father with long plastic swords. He had scratches on his arm.
·    About ten minutes later the father picked up the bag again. The mother and maternal grandmother tried to pull bag back and moved to hold his arms.
·    The older child swung a number of punches at the father while he was being held by the mother and grandmother. The child kicked the father in the stomach. The father kicked his leg back to the child using light force to push him away. The child moved back and complained about father kicking him. The father said that the child showed no sign of injury. What the father describes to be photographs of the scratches from this incident were annexed to his affidavit.

13 December 2009: The mother hit the father twice on the head with open hand. The children joined the mother in attempting to hit him. At one point the father held the older child on the floor and waited for him to calm down. The mother started to take photographs. The mother and the children hit and kicked at the father several times. The maternal grandmother also hit the father. Photographs of the scratches the father allegedly received during this altercation were annexed to the affidavit. Later in the afternoon the mother told the father “you should watch out if you go to sleep because I will stab you…I’ll tell the police that you committed suicide”.
2 February 2010:
·    The father heard sound of a smack when the maternal grandmother was putting the younger child to bed and then heard the child crying and saying “Don’t smack me”. The father went to the younger child’s room after the maternal grandmother had gone. The child told the father that the maternal grandmother smacked her.
·    The maternal grandmother came back to the room and said “I didn’t smack her”. The father said he didn’t believe her and asked her to leave the room. The maternal grandmother refused and sat on bed on top of the child’s legs. The child cried out. The maternal grandmother got up. The father asked the maternal grandmother to leave and the maternal grandmother poked him in the chest.
·    Later that evening, when the father was in lounge room, the mother hit him on the face and glasses went flying across the room. The mother found the glasses and threw them at him.
13 February 2010: The father was at home and the older child was cooking in the kitchen. The father heard the mother saying “You have created a mess” and yelling. The child ran across dining area toward the back door and went into maternal grandmother’s home. The father heard the child crying.
14 February 2010: The mother told the father words to the effect of “I could murder you”.
12 June 2010: The mother told the father “I am going to kill you…I’ll suffocate you with this pillow”. The mother put a pillow across the father’s face and pushed down on it twice. The mother hit the father on four occasions that day. Photographs of the bruising the father allegedly received by the mother’s actions were annexed to his affidavit.
20 June 2010: The children were uncooperative when they were coming back from trip to the South Coast and the mother said “I’m going to run a knife through you”. When they returned home, there were ongoing arguments between the children, the mother and the maternal grandmother. The father did not see the mother hit the older child but deposed that some of the exchanges sounded physical. That evening, the mother told the father “it’s going to be rats bait sprinkled on your food.” The maternal grandmother said words to the effect of “you ought to be put against the wall and bashed”.
22 June 2010: The mother and the maternal grandmother went to school function. The mother told the father “you are not coming, you are not wanted”.
3 July 2010: The father heard an altercation in another room. He heard the older child say “How dare you…get her the hell off me”. He heard the younger child say “Stop hurting my brother”. The father heard the mother say “put a blood clot on my lungs…go for it”. He heard the older child say “I’ll give you some more.” The maternal grandmother said to the father “He’s going to injure [the mother] in a minute”.
16 July 2010: On a holiday interstate, the older child came out of holiday unit to the father, crying, and said “Grandma hit me with a plastic spoon”. Two photos of the bruising on the child’s hand were annexed to the father’s affidavit. The father returned to the unit with the child. The mother or maternal grandmother had hidden the child’s Yugioh cards and the child was very angry. The father heard the younger child say “no….don’t [P]”. The younger chikld then came running toward father. The mother said “He ([the older child]) is going to kill [the younger child] if I don’t give him back the cards…He can kill me instead…he’s going to do it”. The father saw the mother and the maternal grandmother struggling with the older child. The child had a knife, which the father took from him. The father then hid in kitchen. Some minutes later the mother said to him “He’s just thumped me in the back…he’s probably ruptured a lung….he’s just thumped me in the breast”.
October 2010: The older child kicked the maternal grandmother in the mouth and punched the mother in the back when they were in Town Q for a wedding.
Early November 2010: The mother told the father that the older child had “bashed” her with a tennis racquet and she had bruises on her harm.
13 November 2010: The older child pushed and kicked the father and during the same incident the mother hit the father and his glasses fell off, leaving bruise under his eye. The mother threatened to kill the father, took house keys from the father and said she wouldn’t return them. The older child said to the father words to effect of “I’ll take you out”.
17 January 2011: The mother and the maternal grandmother denigrated the father in front of the children for over half an hour. The mother hit the father on the left side of his face and his glasses came off. The mother also hit the father on the left hand with a hairbrush and across the face with her hand. Later the mother said to the father “I am going to find someone who will give me a gun to take to the wedding”.
18 January 2011: The mother said to the father, regarding his nephew’s wedding, “I have found a person who will give me a gun to take to the wedding. I will use it on your sister and the rest of your family. You better watch it in bed because you could die in bed.” The father was scared about his and his family’s safety and did not attend the wedding.
February 2011: The maternal grandmother threw a doorstop at the father and hit him with a remote control and spectacles case. She also said “[P] has hit me black and blue”.
On or about 20 February 2011: The mother hit the father with rolled up newspaper on three different occasions. The mother said “I will kill you if you fall to sleep at night”. The maternal grandmother also hit the father a number of times. Photographs of the bruise alleged by the father to have been occasioned on this day to his arm are annexed to the affidavit.
20 February 2011: The father saw the older child punch the mother on her left shoulder.
21 February 2011: The maternal grandmother and the mother told the father that the older child had hit them and caused bruising. The father recalled the mother showing the father a bruise on her left leg.
27 February 2011: While they were in the car, there was a disagreement between the maternal grandmother and the older child. The father heard the maternal grandmother say “[P] has hit me in the eye and punched me”. The maternal grandmother grabbed the father’s hair, shook his head back and forward and hit his head and right shoulder several times. On the same day the mother told him “I’ll knife you…I’ll bash you”. The maternal grandmother said “I’ll lay you flat…I’ll bury you”. The father was apprehensive (he uses the word “terrified”) he would be hurt or killed. The children were present.
21 March 2011: The mother hit the father with a plastic spoon. On this same day, the maternal grandmother told the father that “you wouldn’t go near him ([the older child]) because he’d flatten you”.
3 April 2011: The maternal grandmother told the father “I’ve been bashed…I’ve been punched and pushed against the wall by the children. [The mother has been bashed in the back”. Sometime later, the mother demanded that the father undress and give her the house keys and wait outside the house. The father refused and mother moved towards him in a threatening manner. The father turned and ran out into the street. When the father later returned home, the maternal grandmother said to him “you are a ratbag…you have trained [the children] to bash”.
6 April 2011: The mother hit the father with a plastic spoon. The maternal grandmother told the father “you really are mentally sick….you deserve to be belted”. The mother said to the father “Next time I belt you, I’ll smash you to death”.
2 May 2011: The mother hit the left side of the father’s head with such force that the father heard a ringing noise.
29 May 2011: Following a dispute about storage of the father’s tools, the mother threatened to hit the father with a hammer. On the same evening the maternal grandmother hit the father on five occasions with an open hand and mother hit the father on the head while he was sitting on the floor repacking his backpack. Later that night the older child took a sharp knife from the kitchen and came into study and said words to the effect of “I’ll knife you”. As the father was getting into bed that night, the mother kicked him, hit his head, pulled the sheet from him and hit him with a pillow. The father had scratches on his chest. Photographs of the injuries are annexed to his affidavit.
On or about 11 September 2011: The mother said “I’m (sic) will put a bullet into [the father’s sister]”.
25 September 2011: The mother hit the father several times with a plastic laundry basket which scratched his arm and said “I’ll murder you”. Photographs of the scratch on the father’s arm which he alleged were caused by the mother are annexed to his affidavit.
7 December 2011: The mother said to the father several times during the evening that “I’ll knife you”. The father did not go to school presentation.
26 January 2012: The mother poured floor cleaner over the father. The father left home for some time. When he returned home, the mother and the maternal grandmother hit the father with a tablecloth while he was trying to wash off the floor cleaner.
Approximately the end of February 2012: The father heard an argument and the mother and maternal grandmother then told the father “[P] has hit [the mother] in the arm”. The maternal grandmother said words to the effect of “I’m going to tell everyone that you hit [the mother]…not [P]”.
11 March 2012:
·    There were ongoing arguments between the older child, the mother and the maternal grandmother regarding the child’s extended use of his laptop and refusal to go to bed.
·    The mother and maternal grandmother also said to the father “you’re not a father”.
·    The mother said to the older child “you are as bad as your father…you deserved to be bashed, I am going to make you pay”. The mother also told the father “You’re a bastard, you are going to pay for this and your son will turn out as bad as you”.
·    The mother hit the father on the head causing his glasses to fall off. She tried to push the father. When the father raised his hands to block the shoving, the mother called out “Don’t bash me…don’t bash me”.
·    The maternal grandmother hit the father on the chest with a slipper.
·    The mother said to the father “I’m going to run a knife through you” and walked toward cutlery drawer. The father was frightened and grabbed the phone. The maternal grandmother removed the phone from the father and told the mother not to do that. The father obtained another phone and called the police. The mother and maternal grandmother left the room but continued to shout at the father.
·    The police arrived and talked to everyone in the house including the children. The father heard the mother and the maternal grandmother arguing with the police. Later the father learned that the police carried the mother from the property.
·    The father made a statement and police issued interim AVO protecting him and the children. Annexure “M” to the affidavit is the AVO.
22 March 2012: The matter came before the X Local Court and the AVO was extended until 16 July 2012.
24 March 2012: The father saw the mother with his backpack and she refused to give it back. When the father left room he heard the mother say “[P] come and look at this, Daddy was cheating in the football tipping by making a copy of the tipping sheets and changing his tips”. He saw the mother ripping up pieces of paper in his backpack. She returned the backpack next morning. Some things were missing including some diary notes.
24 March 2012: The mother threatened to throw a bowl of porridge at the father. He rang the police. The police attended but no further action was taken.
April 2012: While on holiday in Central Australia, the mother hit the father on top of the head while showering. The maternal grandmother said “I will murder you”.
17 April 2012: While on this holiday, the older child made threatening gestures with a sharp apple peeling knife toward the father and the younger child. Later that day the mother hit the father on the arm while he was driving. One of the children also put their leg through the centre of the car and kicked the father’s left arm. When they were back at their accommodation, the younger child called the father a “fucking bastard”. The older child came into the room the father was in and pulled down his pants and said “let’s hump daddy”. The mother and the maternal grandmother were present.
18 April 2012:
·    The father heard the older child say to the mother “You deserve to be punished, you obey me”.
·    Later the older child followed the mother into the kitchen and punched her on the upper arm four times.
·    The maternal grandmother told the father “You’re not game to touch [the older child] in case he hurts you”.
·    The father heard arguments between the older child, the mother and the maternal grandmother about a cordless phone. The older child came into TV room and said “Where is that woman?”
·    The father was concerned that the older child would hit the maternal grandmother. The child shoved the father against the hallway wall. The father put his arms around the child and carried him to the TV room and held him to the floor. The child kicked, hit, head-butted and yelled at the father while the father kept him restrained. At one point the child complained his arm was sore and the father repositioned his hold.
·    The maternal grandmother came into TV room and said “Get off him….you’re sitting on him like you did with [the mother]”.
·    The father let go of the child. The child stood up with his fists clenched and made a move towards the father. The father exited the house, went into front yard and called the police. The police arrived and spoke to all parties. They told father to leave the property for his own safety. Annexed to the father’s affidavit are photographs of scratches on the father’s face which were allegedly caused by this incident.
22 April 2012: The father was with the younger child and turned off the DVD she was watching to make her dry her hair. The child pushed his right arm lightly. The child then unexpectedly started loudly crying and said “you punched me on the breast and I am developing”. The child went to the TV room. When the younger child refused to go to bed, father picked her up, carried her to bed and left the room. The child continued to cry and was sick into an ice-cream container. The father went to the younger child’s room, the child refused help and the father left. The mother arrived home, discovered the younger child crying and called the police. The police arrived and spoke to those present.
24 April 2012: The father arrived home from work to see the mother crying and the older child banging on the rear screen door saying “I’m locked out…let me in”. The father saw the rear screen door off its tracks and propped against left glass door panel. The father heard the mother saying to the child “I am going to ring the mental health team and they will take you away”.

Observation About the Above Evidence

What emerges from the above extracts from the father’s evidence is not only the appalling exposure of the children to domestic violence, also that the father appeared to have done little to intervene and prevent or stop some of the violence as visited upon the children. It may be that he was afraid for his own safety, however, it remains a concern that he apparently did not act to prevent same. Further, it is clear on his own admission that he inflamed and/or caused some of the violence. An example of this is seen in the account of what occurred on 18 October 2009.
Another matter which flows from the evidence of the father about domestic violence is the role of the maternal grandmother in the family violence. As set out elsewhere in these reasons the mother did not enlist the services of her mother as a witness in the hearing because of her health and also because she was of the view that the maternal grandmother would not be accepted as a witness of truth.
The consequence of the maternal grandmother not being a witness is that the Court is denied the opportunity to assess her current views of the father and the possibility of the children spending time with him.
The maternal grandmother is clearly a very significant person in the children’s lives and also a significant part of the mother’s day to day care of the children.
The father submits that the Court should draw the inference that the mother did not have her mother presented to the Court because she understood that would not assist her case. I do draw that inference.

Other Evidence of the Father

In the father’s affidavit sworn 19 January 2015 he sets out his evidence about the contact he has had with the children post separation. The contact has consisted of only limited face to face and telephone contact, the most significant of which has occurred whilst the family was being assessed by Dr K and whilst the children saw Mr Y. Overall, with the exception of the first telephone contact between the father and the children in March 2013, the time he has had contact with them has been most unsatisfactory.
Although having his solicitors write to the mother’s solicitors on 14 May 2012 (three days after the father left the former matrimonial home) and advise he would seek contact with the children as soon as he was established in accommodation, the father failed to make arrangements to spend time with the children until February 2013 after he had commenced property proceedings in the Court.
Following an agreement reached with the assistance of mediation, the father understood he would have unlimited telephone contact with the children. Accordingly the father telephoned the older child on 1 March 2013. He described his conversation with the child which seemed entirely appropriate. Thereafter he asked to speak with the younger child to which the older child said “[L] is too shy for the phone”. During the next week the father was unable to speak with the children. Each time he rang the phone was answered by a recorded message (voicemail).
On 11 March 2013 the parties agreed the father could telephone the children at 7.00 pm each Monday. He called that very evening. The mother told the father over the phone that “both the children are unable to come to the phone…we are still travelling…goodbye.” In her oral evidence I asked the mother why she had not made any other arrangement for the children to speak to the father on that occasion. She was unable to provide an answer.
There were two other occasions the father had telephone contact with the children, however, it was most unsatisfactory.
On 23 May 2013 the father agreed to contact the older child by email. The mother agreed to provide the father with the children’s email address. Only an email address for the older child was provided through the mother.
The father deposed that between 3 June 2013 and 12 March 2014 he sent 44 emails to the older child. The father annexed copies of some of the emails to his affidavit.
The father has also sent birthday and Christmas presents for the children. There has been no response or acknowledgement. The older child returned the father’s birthday present to him on 29 November 2014 in a counselling session with Mr Y.
The father sets out in his affidavit his proposals for the care of the younger child should the Court be prepared to make an order that she reside with him. His proposals were not challenged by any party.

I propose the father be able to send email, and other written communication to the children at any time. The mother is to ensure the children receive such communication.
I propose that the Independent Children's Lawyer provide important documents to the therapist who will be engaged to work with the family. Those documents will be specified in the court order.
I do not consider it appropriate to order that the mother attend upon her therapist Ms M as the mother is already doing so. I propose to note the undertaking the mother has undertaken to continue to attend upon her therapist until advised by the therapist that attendance is no longer required. The mother told the Court in her oral evidence that she is attending upon therapy and proposes to continue doing so. She clearly has confidence in her therapist. I propose that the mother be able to provide to her therapist relevant documents which may assist the therapist in the work she is undertaking with the mother.
In relation to the family therapy which the family is to participate in, the father should be able to be informed as to the compliance by the children and the mother with attendance upon scheduled therapy or counselling sessions with the nominated therapist.
The mother has sought an order which enables her to have contact with a relative of the father. This was not a matter raised during the submissions. Although the father was provided with a copy of the order sought by the mother no specific submission was addressed to this particular order as sought.
The father apparently opposes the order as appears in the further submission provided to the Court and the other parties at my request post the conclusion of the hearing. No reason is provided.
I don’t propose to order that the mother and the children have contact with “[Mr and Mrs H]”. I do not have any evidence of the children’s views of such an order being made. I propose to leave this matter for the mother and the H family to work through. There is nothing in the court orders which would prevent such interaction taking place as agreed between the mother, the children and Mr and Mrs H. I do propose to restrain each parent from hindering appropriate interaction between the mother and children with members of the father’s and mother’s extended family. Assuming the said Mr and Mrs H are not a danger to the children, I consider that, on balance, it is likely to be in the best interests of the children.
I propose to have the Independent Children's Lawyer meet with the children to explain the orders of the Court to them.

Costs

At the conclusion of the submissions made by the parties and the Independent Children's Lawyer, an application was made by the Independent Children's Lawyer for the parties to pay the costs of the Independent Children's Lawyer in equal shares. The precise amount of the costs was not known, however, the Independent Children's Lawyer undertook to provide the parties with details of the amount sought. The costs are to be paid to the Legal Aid NSW.
Each party agreed to that order and agreed to make the payment within 30 days of receiving the quantum to be paid.
The Independent Children's Lawyer has now provided to the parties and the Court the schedule of fees incurred in the case. In the circumstances it seems reasonable. In this case I have also heard some evidence about the financial circumstances of the parties. I propose to make the order sought by the Independent Children's Lawyer for payment of costs.

I certify that the preceding four hundred and seventy-seven (477) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 26 March 2015

Associate:

Date: 26 March 2015

[2015] FamCA 1163

26 March 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Injunction

Jurisdiction

Natural Justice

Procedural Fairness

Remedies