Carlton and Carlton

[2008] FMCAfam 440

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARLTON & CARLTON [2008] FMCAfam 440

FAMILY LAW – Parenting – family violence – rebuttal of presumption under s.61DA – findings about violence – intimate terrorism – no confidence father will comply with Court orders.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MR CARLTON

Respondent: MS CARLTON

File Number: SYC 196 of 2007

Judgment of: Altobelli FM

Hearing dates: 17 September, 21 November 2007, 19 & 20 February 2008, 13 March 2008, 2 June 2008

Date of Last Submission: 2 June 2008

Delivered at: Sydney

Delivered on: 10 June 2008

REPRESENTATION

Counsel for the Applicant: Mr Ladopolous

Solicitors for the Applicant: David Cohen & Co

Respondent: Self Represented

Counsel for the Independent Children’s Lawyer: Ms Reynolds

Solicitors for the Independent Children’s Lawyer: Kathryn Renshall Solicitor

ORDERS

1. The mother have sole parental responsibility for the children [A] born in 1999 and [B] born in 2002.

2. The children live with the mother, commencing 29 June 2008.

3. The Children spend time with the father  as follows:

   (a)For two out of every three weekends, being the second and third weekends in a cycle of three weekends and with the father’s time with the children commencing 18 July 2008, from after school on Friday to the commencement of school on Monday, or Tuesday if Monday is a gazetted public holiday or pupil free day. The father is to collect the children from school and return the children to school, for the purposes of this Order.

   (b)Commencing from the September 2008 school holidays, for one half of each gazetted New South Wales school holidays as agreed between the parties but failing agreement being the first half in 2008 and each alternate year thereafter and being the second half in 2009 and each alternate year thereafter;

   (c)For the purpose of Order 3(a) the Children spending time with the father is suspended during school holiday periods and resumes in the next school term from the first weekend after the first day of the school term.

   (d)From 9.00a.m Christmas Eve until 2.00p.m on Christmas Day in 2008 and each alternate year thereafter and from 2.00p.m on Christmas Day until 5.00p.m on Boxing Day in 2006 and each alternate year thereafter; 

   (e)On the children’s birthdays as follows:

   (i)If a child’s birthday falls on a school day, from after school the evening prior to their birthday until the start of school the day of the birthday in years ending in an even number and from after school on their birthday until the start of school the next day in years ending in an odd number;

   (ii)If a child’s birthday falls on a weekend when the children are not spending time with the father for four hours from 9.00am to 1.00pm.

   (f)On Father’s Day in each year if it falls on a weekend when the children are not spending time with the father from 9.00a.m to 5.00p.m.

   (g)At such other or alternate times as agreed between the parties.

   (h)The father is responsible for collecting the children at the commencement of time with the children, and returning the children at the conclusion of time with the father.

4. The children to communicate with the father by telephone as agreed between the parties but failing agreement on Wednesdays between 6.30pm and 7.30pm with the father to initiate the phone call to a number provided by the Mother.

5. The Mother provide to the father copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child within two weeks of receiving any document of this nature.  

6. That the mother shall authorise any school the Children may attend to provide to the father copies of all school reports, newsletters, notice of school events and parent/teacher meetings, school photograph order forms, and any other information usually provided to parents.

7. That the parents each keep the other advised of any significant event in the Children’s lives, and in the event of the Children suffering serious illness or accident shall immediately notify the other of the names and contact details of any relevant health professional and keep the other party so informed.

8. Both parties notify the other in writing of any change of address or telephone contact numbers including mobile telephone numbers no later than twenty one (21) days prior to any proposed change, including the full details of the new address or telephone number.

9. Both parties be restrained from:

   (a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.

   (b)Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.

   (c)Recording changeovers through any medium.

10. At times of changeover the parents are restrained from communicating with each other in any way. If changeover occurs at the Mother’s residence the Father is not to leave his car, and the Mother is not to leave the front door of her residence.

11. The Independent Children’s Lawyer be discharged not before
    31 December 2008, and the Independent Children’s Lawyer interview the children in six months time.

12. I grant leave to the Independent Children’s Lawyer to re-list this matter on seven days notice as regard the interpretation, implementation or enforcement of these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 196 of 2007

MS CARLTON

Applicant

And

MR CARLTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The mother in these proceedings, Ms Carlton, was 16 years old when she married the respondent father in these proceedings, Mr Carlton, in Turkey, pursuant to an arranged marriage.  At that time Mr Carlton was about 39 years old.  After the parents married in 1997, the mother was able to move to Australia in July 1999 after an immigration process.  The father had been living in Australia since 1992 after leaving Turkey, allegedly as a refugee. 

2. There are two children to the marriage between the parents, [A], born in 1999 and currently 9 years old, and [B], born in 2002, currently 6 years old.  The father also has two sons from his first marriage, [C], who is now 23, and [D], who is now 19.  These reasons explain the decision that I have made about where [A] and [B] will live in the future, and how much time they will spend with their other parent. 

3. The evidence given by both parents indicates that their marriage was in difficulty almost from the outset, but they give different reasons for this.  In very general terms, the father says this was because of incompatibility, but, from the mother's perspective, it was because of family violence.  The mother says that they separated on or about 13 May 2003, and divorced in June 2004.  The father has a slightly different recollection of these events, but nothing turns on this. 

4. At the time of the hearing the mother was 26 years old, and the father 49 years old.  The children have been living with the father for some time prior to the hearing and the circumstances relating to this are set out in the evidence and discussed below.  The mother's application was, in effect, for the children to return to her full-time care, and to spend time with their father each alternate weekend.  The father's application was that, in effect, the children remain in his full-time care, and spend time with their mother on a limited basis. 

5. In these proceedings the mother was represented by her solicitor Mr Cohen, and her counsel Mr Ladopoulos. There was an Independent Children's Lawyer, Ms Renshall, and the Independent Children's Lawyer's counsel was Ms Reynolds.  The father represented himself throughout these proceedings, with the aid of a Turkish interpreter.  Even though the father represented himself, I record my impression of him as clearly an intelligent and articulate man who, for the most part, was able to focus on the relevant issues.  For most of the time he used an interpreter.  His submissions were, for the most part, carefully considered, intelligent and often forcefully presented.  The mother also gave evidence through a Turkish interpreter.

6. The final hearing of the matter was heard over six non-consecutive days.  The matter was transferred to the Federal Magistrates Court from the Family Court on the basis that it was a "less complex" matter.  Notwithstanding that description, it is interesting to observe that both counsel in this matter regarded this as a complex case and, for reasons that will soon become apparent, I completely agree with them. 

Background

1. The first set of orders made in this matter were terms of settlement that appear to be signed by the father and the mother and which were made on 13 September 2005 in the Family Court of Australia at Sydney.  These orders provide for the two children to reside with the father and have contact with the mother from 10.30 am Saturday to 6.30 pm Sunday on one weekend, and from 10.30 am Saturday to 9 am Sunday the other weekend, as well as for half school holidays and other special occasions.  The mother had been caring for the children up until shortly before these orders were made, and the circumstances of the making of these orders, and the children coming to live with the father, is a highly contentious issue between the parents.  It is common ground that the children were with their mother from separation until shortly before these consent orders were made.  There seems to have been difficulties with these orders almost immediately and the Court's file records that the mother filed a contravention application on 23 August 2006, amended the same on 21 September 2006, but that was dismissed on

   
   10 October 2006

   by Judicial Registrar Johnston. 

2. On 11 January 2007 the parties entered into further consent orders on an interim basis which suspended the orders made 13 September 2005 and replaced them with orders that provided for the children to live with their father when they are not living with their mother, and provided for the children to live with their mother for certain specific dates during the January 2007 school holidays, and thereafter during each school term from 10.30 am Saturday until 5 pm Sunday weekly, and one half of the school holidays.  On that same date, i.e. 11 January 2007, the matter was transferred to the Federal Magistrates Court. 

3. The matter first came before me on 28 February 2007.  Mr Cohen appeared for the mother, and the respondent appeared in person.  It was immediately apparent to me that there was a high level of conflict between the parents with the presenting issue, on this occasion, being the changeover arrangements.  In the orders made 13 September 2005 the mother was to collect the children from the father at [X] railway station at the commencement of her time with the children, and the father was to collect the children from the mother's residence at the conclusion of her time.  On 11 January 2007 the parents varied that order so that the father delivered the children to the mother's residence at the commencement of her time with them and also collected them from her residence at the conclusion of her time.  After hearing short submissions from the father and Mr Cohen, I ordered that changeover take place at [Y] police station at the commencement and conclusion of the mother's time with the children. This was again varied on 1 August 2007 when I ordered changeover to take place at the mother’s residence. The changeover arrangements for these children remained, at all times, a contentious issue between these parties.  The mother does not drive, but the father is an owner taxi driver.  The mother lives at [V], near [Y], and the father lives at [Z], both western suburbs of Sydney.  On 28 February 2007 I appointed an Independent Children's Lawyer.

4. On March 2007 an Apprehended Violence Order was made against the husband by [T] Local Court for a period of two years expiring 9 March 2009. The order provides as follows:

   1. The defendant must not engage in conduct that intimidates the protected person(s) or any other person having a domestic relationship with the protected person(s).

   2. The defendant must not stalk the protected person(s). In addition:

   1. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person.

   3. The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises.

   4. The defendant must not approach, contact or telephone the protected person(s), except for the purpose of arranging or exercising access to children as agreed in writing or as otherwise authorised by an order, or a registered Parenting Plan under the Family Law Act 1975.

   It is important to appreciate the precise terms of this order. At no stage does it prevent the father from acting in accordance with orders made under the Family Law Act.

5. On 19 April 2007 Ms Renshall appeared, having been appointed as Independent Children's Lawyer.  The matter was set down for hearing for two days in July 2007 and the usual directions were made.  An issue arose about the mother's concern that the father would remove the children from Australia prior to the hearing.  I obtained an undertaking from the father that he would not do so, and noted the same in the orders made 19 April 2007.  I also restrained the parties from speaking about the other in a negative, offensive or unpleasant fashion in the children's hearing, or discussing the proceedings with the children, in any way.

6. When the matter came before me on 1 August 2007, ostensibly for hearing, the complexity of the matter was becoming more apparent and it was also clear that there were going to be significant changes in the father's personal circumstances in the immediate future.  Counsel for the mother and the Independent Children's Lawyer agreed with me that a Family Report was needed.  The father indicated that he would be travelling to Turkey for the purposes of marrying and might be away for up to a month.  There also continued to be ongoing problems at changeover.  After hearing brief submissions from all parties, including the father, I made orders for the preparation of a Family Report, restrained the father from removing the children from Australia and set the matter down for a hearing for two days on 17 September 2007.  The parents also agreed by consent that if the father travelled outside of Australia before the date of the hearing, the children would live with their mother for that period.  The parties also agreed to vary the changeover arrangements so that the father would not get out of his car, and the mother would not leave her front door, at the time of delivery and collection. 

7. The hearing commenced on 17 September, continued on 21 November, 19 February 2008, 20 February and was to conclude on 13 March 2008. However, certain events took place, to which I will refer presently.  On 21 November 2007 I made orders by consent that the children spend time with their mother for the first four weeks of the December/January school holidays.  I also made an order that at the time of changeover, the parents are restrained from communicating with each other in any way.

8. On 8 May 2008 the matter was relisted before me at the request of the Independent Children’s Lawyer Ms Renshall. I understood that there was some difficulty with the children spending time with their mother pursuant to the orders in place. I did not know the extent of the difficulty. In fact my final judgment was ready to publish on 8 May 2008 depending on the nature and seriousness of the issues raised. As the matter unfolded on 8 May 2008 I decided that the evidence should be re-opened to allow both parties to present their versions as to what had occurred since 13 March 2008. Of course I did not publish reasons or make orders. Instead I set the matter down for a sixth and final day of hearing on 2 June 2008, and directed that all evidence be oral rather than by affidavit. As it turns out that evidence does not change the substance of my judgment in this matter and it is, in fact, convenient to deal with the events after 13 March 2008 as a detailed postscript to these reasons.

The Evidence - Overview

1. The rather piecemeal way in which this case was conducted is far from ideal, but it did have some advantages that, in my opinion, made the hearing of this case fairer for all parties concerned, particularly the father who was representing himself.  The major issues became apparent from day one.  The mother raised as the major issue in her case the father's family violence towards her, sometimes perpetrated in front of the children, but in any event reflecting very poorly on his capacity to parent.  The father raised as the major issue in his case the mother's capacity to care for these children and mental health issues.  The manner in which the hearing was conducted meant that all parties had time to consider and to respond to the issues that had been raised in the evidence, including obtaining further evidence by subpoena.  Leave was sought, and readily granted, for all witnesses to give evidence-in-chief, provided it was relevant.  The father, in particular, had ample time to consider the relevant issues, and to prepare for major events such as cross-examination and submissions.  The questions he asked in cross-examination and his submissions largely reflect, for the most part, his careful consideration, and his preparation. 

2. I had the benefit of extensive evidence from both the mother, and the father.  I had the evidence of Dr Lucia Vardanega, a regulation 7 Family Consultant who prepared a Family Report that was then released to the parties on 5 September 2007.  I had the benefit of evidence from Ms D, the children's nanny when in the care of their father, as well as Ms T the mother's treating psychologist.  Each of these witnesses was carefully cross-examined.

3. I also had access to considerable documentary evidence produced on subpoena from the Department of Community Services, New South Wales Police Service, Transcultural Mental Health Centre, Barnado's, [Z] Public School, [Y] Community Mental Health Service, [W] Employment Solutions, and various treating doctors.  Thus, even though this was a complex case involving a self-represented litigant and most of the evidence was given through a translator, I am satisfied that there was ample evidence on which to decide the issues that the parties had placed before me for determination. 

The Issues

1. The issues in this case will be identified, and discussed by reference to the relevant primary and additional considerations referred to in s.60CC(2) and (3) of the Family Law Act.

The Applicable Law

1. The orders sought are governed by Part VII of the Act. The objects and principles underlying Part VII are set out in ss.60B(1) and (2):

   (1)  The objects of this Part are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   e)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   f)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   g)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   h)parents should agree about the future parenting of their children; and

   i)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. The child’s best interests are paramount: s.60CA. How a child’s best interests are determined is set out in s.60CC. I must consider these matters. There are primary considerations set out in s.60CC(2):

   (2)  The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. There are additional considerations set out in s.60CC(3):

   (3)  Additional considerations are:

   a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   b)the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)the capacity of:

   (i)  each of the child's parents; and

   (ii) any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)any family violence involving the child or a member of the child's family;

   k)any family violence order that applies to the child or a member of the child's family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   l)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 child;

   m)any other fact or circumstance that the court thinks is relevant.

3. As I am required to make a parenting order, a presumption of equal shared parental responsibility applies, subject to the terms of s.61DA:

(1)  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Note:          The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

b)family violence.

(3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

1. As this section states, the presumption may be negated under subsection (2) if there are reasonable grounds to believe that there is abuse or family violence. The presumption may be rebutted under subsection (4) if it is not in the best interests of the child for there to be equal shared parental responsibility. The effect of subsection (4) is to require consideration of the primary and additional considerations in s.60CC(2) and (3).

2. If, as in many cases, the presumption of equal shared parental responsibility applies, either because that is what the parents agree to, or it is not negated or rebutted, then I am required to apply s.65DAA and to consider the child spending equal time, or substantial and significant time, with each parent.

   (1)  If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)  If:

   a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and

   b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; an d

   the court must:

   c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3)  For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   f)the time the child spends with the parent includes both:

   (i)  days that fall on weekends and holidays; and

   (ii)  days that do not fall on weekends or holidays; and

   g)the time the child spends with the parent allows the parent to be involved in:

   (i)  the child's daily routine; and

   (ii)  occasions and events that are of particular significance to the child; and

   h)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)  Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

   a)how far apart the parents live from each other; and

   b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   d)the impact that an arrangement of that kind would have on the child; and

   e)such other matters as the court considers relevant.

3. It is apparent from this section that, once again, I must consider what is in the child’s best interests (pursuant to s.60CC(2) and (3)) and what is reasonably practicable (as defined in s.65DAA(5)).

Meaningful relationship s.60CC(2)(a)

1. I am satisfied, having regard to all of the evidence before me, but particularly the Family Report prepared by Dr Lucia Vardanega, that the children enjoy the benefits of a meaningful relationship with both parents.  It is clear that they parent in different ways and that each parent offers different attributes as a parent but, nonetheless, a meaningful relationship is there. 

Protecting the children from harm ss.60CC(2)(b) and (3)(j) and (k)

1. Paragraph (b) of s.60CC(2) requires me to consider the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. This, on the facts of this case, necessarily incorporates a consideration of paragraphs (j) and (k) of s.60CC(3) referring to family violence and family violence orders. On the mother's case there is the need to protect the children from harm because they have been exposed to family violence and because of the risk of continued exposure. From the father's perspective the children need to be protected from harm because of the risk of abuse or neglect when they are with their mother, mainly arising out of what he perceives to be the mother's mental health difficulties. However, he is also concerned about relationships the mother has formed that may have exposed the children to family violence.

2. It is convenient to deal with the father's concerns first.  It was common ground, and clearly obvious from the evidence, including the subpoeanaed material, that the mother suffers or has suffered from depression and is taking medication in that regard.  The reasons why she might be suffering from depression are far more complex but not as important in this particular context, as it turns out.  The father believes that the mother's condition is such that she is not able to care for the children and yet, in cross-examination he readily conceded that he agreed to the children spending regular school holiday and weekend time with their mother, has been facilitating this taking place, and indeed quite recently agreed to increase the mother's time with the children so that it now starts on a Friday night.  In cross-examination he was asked by Ms Reynolds, counsel for the Independent Children's Lawyer, whether he agreed with the proposition that, in effect, there was no risk for the children to stay the extra night with their mother?  The father responded to the effect that he still kept an anxiety in his mind that there might be some risk, at least until such time as he received approval from a doctor or psychiatrist.  The father’s concern was based, at least in part, in relation to what I find on the evidence was the mother over-dosing on her prescribed sleeping pills in about October 2005. The mother’s own evidence is that she took four sleeping tablets because she “just wanted to sleep”. She explained that they made her dizzy. Four pills was twice the prescribed dosage. The mother’s treating psychologist, Ms T, gave evidence that the mother called her after she had taken the pills and that whilst she herself did not consider it a suicide attempt, she was worried enough to call an ambulance. The mother was in fact taken by ambulance to [Y] Hospital. These events took place after the children went to their father’s care, and allegedly after a major argument according to the mother. I can understand from the father’s perspective why he would be concerned about the mother’s mental health.

3. Whilst it would be easy to simply conclude that the father's concerns about the mother’s health are inconsistent with his actions in allowing the children to spend more time with their mother, I think this would be quite unfair to the father.  Over the course of the hearing that took six days, spread over several months, he had the opportunity to hear the mother's evidence about her mental health, observe her cross-examination by the Independent Children's Lawyer, cross-examine her personally, as well as to read the subpoenaed documents produced by her treating doctors.  I suspect that as the hearing progressed, and the evidence evolved, the father's concerns about the mother's mental health decreased.  That is certainly what happened from my perspective.  The measured expression of concern that was contained in his answer to Ms Reynold's question reflects this.  From my perspective, the totality of the evidence indicates that any concerns about the mother's capacity to care for these children based on her mental health are either minimal or non-existent.  She was carefully cross-examined about these issues by Ms Reynolds.  It is clear that the mother is being supported through Barnado's, the Transcultural Mental Health Centre, and her treating doctors.  It is clear that she is taking her medication and I have no reason to conclude from the evidence that she will do anything different, in the future.  There are no documents produced on subpoena, and no other objective evidence that would cause me to reach any other conclusion.  That is not to say that there are no other concerns about the mother's capacity to parent, and these will be dealt with below.  What I am satisfied about, however, is that any concerns based on her mental health are without foundation. 

4. The father's concerns about family violence in the mother's household is based on allegations made by the child [A] that he was bruised as a result of an assault by the mother's new partner at that time.  These allegations are, for example, dealt with at paragraph 47 of the Family Report.  It is possible that this event occurred, but I am satisfied from the mother’s evidence that the mother is no longer in this relationship and, indeed, is not in any relationship at the moment.  On that basis, I find there is no substance to the father's concerns about the children being exposed to family violence in the mother's household.  At its highest, the father's case could be put in the following terms:  that the mother has a propensity to enter into relationships and then being unable to create a safe environment for herself and the children. 

   
   

   I stress this was not a submission made by the father but, nonetheless,

   
   

   I expressly take it into account.  It is squarely raised by the Family Consultant in her report at paragraphs 45 to 47.  The Family Consultant was critical of the mother for failing to protect her own children, as well as the father's older children, from an abusive family environment.  This, when coupled with the allegations about [A] referred to above, led the Family Consultant to have concerns about the mother's ability to create a safe environment for herself and the children.  What needs to be understood, however, is that the Family Consultant formed a strong view that the family violence experienced by the mother, the children and the father's other children, was perpetrated by the father himself.  Even so, the Family Consultant was quite critical of the efforts that the mother took to protect herself, and the children.  I will deal with all of these issues, at length, below.  As it turns out, the totality of the evidence enables me to make clear findings against the father about family violence perpetrated by him.  The result of this is that I simply can not accept an actual or assumed submission on his behalf that raises concerns about the mother's ability to protect the children from family violence.  It would be the ultimate hypocrisy to allow the perpetrator of violence to then criticise the survivor of that violence for an inability to protect her children in those circumstances.  I am certainly not ignoring this issue because I think it goes to the mother's capacity to provide for the needs of the children.  I decline to regard it, however, as a primary consideration in the context of protecting the children from violence.

5. Whilst the father's concerns about the mother can all be shortly disposed of as I have set out above, the mother's concerns about the father require far more detailed consideration. 

6. Section 60CC(2)(b) refers to the need to protect children from "harm". Is there any evidence of harm in this case? I believe there is. The concerns relate to the child [A]. The clearest evidence of this is at paragraph 48 of the Family Report. The Family Consultant observed that [A] presented with behavioural problems. These problems were described as anger management issues. The school reports confirm [A]'s behavioural problems, including acting out, which seemed to be associated with anger management. [A] is only nine years old. The totality of the evidence indicates that both he and his sister have been exposed to very high levels of conflict between their parents, for all of their lives. There is evidence before me which leads me to conclude that certainly [A], and possibly his sister [B], actually witnessed violence perpetrated by the father upon the mother, when he was much younger. The evidence does not directly link [A]'s behavioural problems to the family violence, though there is a strong inference to be drawn. The relationship between the parents was a volatile one and the separation and subsequent legal proceedings difficult. It is possible that the causation for [A]'s behavioural problems is complex and multifaceted, but, in my opinion, at least one of the causes is likely to be family violence. Thus, I am satisfied that on the facts of this case there is "harm" for the purposes of paragraph (b) of s.60CC(2). It follows, I think, that there is the need to protect the children from the harm, both present, past and future and irrespective of its causation.

7. The mother's case was presented on the basis that there was a history of family violence throughout the entirety of the marriage.  The father disputes that there was violence and, according to the Family Consultant, described the mother's allegations as "spurious". 

8. The mother's evidence about family violence during the marriage is contained at paragraphs 19 and 20 of her affidavit filed 5 April 2007.  Specifically, paragraph 19 describes, in rather general terms, the violence the mother alleges she experienced, and paragraph 20 sets out the consequences of that in 2004.  I set out paragraph 19:

   Throughout the marriage the husband would hit me, sometimes so badly that the neighbours could hear us and they would call the police. When the father got angry he would drag me by my hair and throw me into the wall, push me to the floor, hit me with an open hand, punched me with a closed fist and kicked me. As a result  of the physical abuse, I have suffered bruising all over my body, swelling around my head, back eyes [sic], but lips and one occasion the father hit me so hard that I found it difficult to move at all for some days. I applied for and obtained several Apprehended Violence Orders throughout my marriage as a result of the fathers’ violence.

9. Whilst the allegations in paragraph 19 lack specificity and particularity, the mother's oral evidence together with the documents produced on subpoena more than adequately make up for this.  The mother was remarkably consistent in her oral evidence about the allegations and the sustained, often ferocious cross-examination by the father did nothing to detract from her oral evidence. 

1. By contrast, for the most part the father simply denied that he had perpetrated family violence.  Indeed, an insight into his whole perspective on the family violence is contained at paragraph 22 of the Family Report which states as follows:

   22. Mr Carlton conceded that he and Ms Carlton had had frequent disagreements however he denied Ms Carlton’s allegations that he had perpetrated family violence. He perceives her allegations to have been motivated by a sense of “panic” and a realization of the circumstances she found herself in and a strong desire to separate. He claimed that he thought Ms Carlton was “comfortable” living with him but also knew that if she could mount a case of family violence she would find it easier to secure a permanent visa as well as community housing. He claimed that her “repeated pattern of going backwards and forwards” from the marriage suggests that she was “making up something” and that there has been no substance to the A.V.O.s [sic] that she has taken out against him over the years. To this end, he referred to the most recent A.V.O. taken out by Ms Carlton in February 2007. He claimed that, on the day they appeared in the Federal Magistrates Court, Ms Carlton agreed to certain undertakings including that he deliver the children to her home, albeit that she had initiated proceedings for an A.V.O. against him the previous day. He suggested that, to him, this seems to have been an action on her part “to set me up”.

   Moreover whilst being cross-examined about the violence the father’s attitude to the questioning came across to me as if he were the victim, not the perpetrator. He complained twice that he had been subjected to fourteen Apprehended Violence Orders over two years, resulting in 42 court attendances. In each case, he urged, he was completely innocent as the applications were taken out for ulterior motives including the mother obtaining housing commission accommodation, and permanent residence. The father conveyed to me the impression that he metaphorically carried these events as a “badge of honour” attesting to his endurance in the face of such hostile aggression, and systemic abuse by the mother.

2. There are at least three events referred to in the evidence that make a clear finding of family violence against the husband possible in this case.  There are two incidents where the father makes admissions in police proceedings, and criminal charges result.  There was a further incident involving a telephone call between the father and the mother and which was the subject of evidence by Ms T, the mother's treating psychologist. 

3. There was an abundance of documents and records produced by the New South Wales Police, pursuant to subpoena issued either by the mother's representatives, or the Independent Children's Lawyer.  Exhibit ICL9 is a copy of the police report dated 16 May 2000, relating to an incident that day which took place at Property G.  The narrative details of the report are as follows:

   The offender and victim are married.  They have a one-year-old son. 

   About 8 am Tuesday, 16 May 2000 the offender and the victim were at their home address at Property G with their son.  The offender and victim became involved in a verbal argument.  During the argument the offender took the victim's clothes and threw them over the balcony. 

   The offender then kicked the victim in the stomach, causing her to fall on the ground.  The offender kicked the victim more than 10 times while she lay on the ground.  The offender and the victim became involved in several further arguments throughout the day. 

   About 3.45 pm the victim was in the living room of the apartment when they became involved in another argument.  During this argument the offender kicked the victim to the face, causing a cut on the victim's lower lip and blood to run down onto her chin.  The victim held onto her son and the offender kicked the victim again.  The offender's foot struck her son.  The offender then proceeded to leave the premises. 

   Police were called by a neighbour and observed the offender leaving in his vehicle.  Police went to the apartment and spoke to the victim but were unable to communicate to her due to language barriers.  Police observed the victim to be extremely distressed and with a large quantity of blood on her chin.  Ambulance officers examined the victim and were able to speak to her via a friend who interpreted.  The victim complained of dizziness and nausea. 

   The offender returned about 15 minutes later, was cautioned by police.  The offender made admissions to arguing with his wife about her chores and her "bad news" she continually made.  The offender stated the victim had been using "many bad languages" and that in his culture he would not tolerate this and had hit her because of it. 

   The offender was arrested and taken to [U] police station where an interpreter was arranged and ERISP number [0] conducted.  The offender was then charged and released and now appears for the matters before the Court. 

4. The father was charged with actual assault and common assault.  Exhibit ICL6, the documents produced by the New South Wales Police criminal records section, indicates that the events referred to above came before [U] Local Court on 9 August 2000 and the father was convicted of common assault and received a bond to be of good behaviour for 12 months.  I observe that the father did not challenge the evidence produced by the New South Wales Police Service in any way.  The charges against him were criminal charges in respect of which the criminal standard of proof applied.  I do not know whether when the matter came before the Court on 9 August 2000 he defended the proceedings, or entered a plea of guilty.  Having regard to these matters, I am entitled to infer that the events as alleged in the police report extracted above were found to have taken place to the requisite standard of proof.

5. The second significant incident referred to in the police documents took place on 28 May 2002.  I extract the relevant segment of the police narrative:

   Around 8.10 pm on Monday, 27 May 2002 the victim and defendant were at their home in Property E.  Since March 2002 the victim has been living with the defendant and their children.  Around that time, the defendant and victim became involved in an altercation relating to the victim wishing to go to the hospital with the defendant and his son, the son being ill at this time.  The victim alleges that during the argument the defendant punched her to head, followed by an open-hand slap to her left eye.  The defendant further kicked and punched the victim, as well as swearing at her and pulling her hair.  The victim attempted to protect herself, however, received injuries to her face and head, consisting of bruising and abrasions to her face and neck.  The parties continued to argue, during which the victim alleges that the defendant assaulted her, placing her into a headlock with the use of his legs, punching and pulling at her hair during this period.  After a lengthy fight, the parties separated and the defendant left, returning later.  At the time police were not called to the scene due to language barriers, and rather reported the matter the following morning via an interpreting service.  Police attended her residence and later conveyed her to E police station where a statement was obtained.  Around 12.30 pm same date, Tuesday, 28 May 2002, police attended the defendant's address where he was arrested.  At the time of his arrest he supplied to police his own personal copy of the restraining order between the parties.  The defendant was conveyed to [U] police station where entered into custody.  He was electronically interviewed, during which he made admissions to being involved in an argument and then fight with the victim, admitting having punched her in the back, however, not to the face.  Further, he indicated that he may have slapped the victim, however, later denied having done the same.  Regarding the restraining order, he indicated he understood the terms and conditions of the said order, however, misunderstood the clause relating to residing with the victim whilst an enforceable order was in place.  At the conclusion of the interview the defendant was led back to the charge room, and later charged with the matters. 

6. Exhibit ICL6 indicates that these events came before [U] Local Court on 10 March 2003.  The father was charged with assault occasioning actual bodily harm and contravening an apprehended domestic violence order.  In relation to the first charge, a bond was imposed for a period of two years, and in relation to the second charge a three-month suspended prison sentence was imposed, the suspension conditional on entering into a bond for three months.  I repeat the observations I made at paragraph 37 above in relation to these matters. 

7. The third event in this trilogy of events occurs on Wednesday,
   10 January 2007, a date, it should be noted, that postdates the commencement of the current proceedings.  The police records indicate that at about 7.10 pm on Wednesday, 10 January 2007 the police attended the Transcultural Mental Health Centre at the request of Ms T who informed the police that she was in the process of treating the mother.  The police narrative reads as follows:

   At around 4 pm the victim received a phone call from the person of interest (the father) and became visibly upset and began shaking.  The person reporting took the phone from the victim and listened to the male on the phone who was swearing in Turkish.  The male said, "I will be a mother fucker.  I will fuck your mother, you son of a bitch.  I will not let you live.  I cannot do anything at the court.  I will not let you live after the court.  You've been a bitch to me."  The telephone call was then terminated and the person reporting contacted police.  Police obtained the details of the incident and appears that there is tension between the parties due to a custody hearing at the Family Court in Sydney on 11 January 2007.  Police made an application to Evans J for a telephone interim order as the victim feared that the person of interest would follow through with his threats after the court appearance.  The order was granted and sent to [X] police for service on the person of interest.  The order was set at [T] Local Court on Friday, 19 January 2007.  Yellow card was completed and the domestic violence court pack was posted to the home address of the victim.  Police from [X] police station attended the home address of the person of interest and served the TIO on him.  The person of interest admitted making the call and further stated that the TIO was all right as he did not wish to talk to the victim again. 

8. Exhibit A3 was a statement by Ms T dated 10 January 2007, provided for [S] police.  In the statement she explains that she is a registered psychologist working in that capacity since 1995 and is fluent in Turkish and English.  She has known the mother since 1999 as a treating psychologist and has conducted a comprehensive psychological assessment, and provided counselling for the mother, over the years.  She then states:

   Ms Carlton had an appointment with me on 10 January 2007 at

   
   4 pm

   .  During my counselling session while Ms Carlton was talking about her fears from her ex-husband and how he has been threatening her, she received a phone call from her ex-husband who was yelling and screaming.  My client, Ms Carlton started to shake and handed over the phone to me.  I heard him yelling and telling her in Turkish "I will be a mother fucker.  I will fuck your mother, you son of a bitch.  I will not let you live.  I cannot do anything at the court.  I will not let you to live after the court.  You've been a bitch to me, haaa". 

   She then explains in her statement that as she was concerned for the mother's safety she called [S] police.

9. The mother's evidence about this incident is, surprisingly, quite limited.  She annexes to her affidavit filed 5 April 2007 the interim apprehended violence order made at [T] Local Court in January, together with the final order made 9 March 2007 for a period of two years.  The father did cross-examine her about this incident, indirectly.  The mother agreed with the father in cross-examination that on 11 January 2007, the day after the alleged incident referred to above, she entered into interim consent orders in the Family Court of Australia that not only confirmed that the children would remain with the father on an interim basis, but that he would be responsible for delivering the children to the mother's residence at the commencement of their time, and collecting the children from the mother's residence at the conclusion of their time with her.  The mother agreed in cross-examination that she read, understood and then signed the interim consent orders.  She agreed with him that just a few days before the interim orders were signed she had taken out a telephone apprehended violence order against him.  The mother agreed with him that he had made many phone calls to her in the past which had not made her fearful for her safety and put it to her that her signing of the interim consent orders was in fact inconsistent with her having any fears for her safety.  In her evidence the mother referred to the incident in question as one in which the father had "swore very heavily in Turkish" and that "hearing those swear words made me feel bad.  Dr T took the telephone and heard this".  The father put to her that if he were abusive on the telephone and if she had been fearful, why would she not bring this up in court on

   
   11 January 2007

   , instead of taking out an apprehended violence order?  The mother's response in cross-examination was to the effect that the telephone call had nothing to do with the court case relating to the children and that he had been ringing her all day every day and she had to put a stop to it.  I pause here to make this observation.  The father's cross-examination of the mother about this incident was quite effective and certainly confirmed my assessment of the father as an intelligent, articulate man who, despite language barriers, was quite capable of representing himself in these proceedings.  At first glance, there is a logical inconsistency between the telephone AVO taken out on behalf of the mother, and her willingness to sign interim orders on 11 January 2007 that seems, at least on its face, devoid of any concerns about fear.  However, one has to take this event in context.  One has to appreciate what I consider to be the observations of the Family Consultant at paragraph 22 of the report, as set out above and elsewhere in the report.  Moreover, one must have regard to all of the other evidence in order to understand the mother's actions on 11 January 2007 in entering into further interim consent orders.  Her explanation in cross-examination that the AVO had nothing to do with the court proceedings relating to the children may seem naïve and, perhaps even evasive.  However, when one considers the totality of the evidence and the history of family violence in this case, together with the isolation and depression the mother has suffered, the language barriers and the fact that she was representing herself on 11 January 2007, it is possible to understand why, precisely, in the mother's mind the AVO had "nothing to do with the court".  In any event, there is more evidence about the incident on 10 January 2007, as I outline below. 

10. Ms T gave oral evidence on the second day of the hearing.  A bundle of the reports that she had prepared as the mother's treating psychologist between the period 3 December 2000 to 27 January 2007 were tendered in evidence, as exhibit A1, without objection.  In addition, various intake forms through the Transcultural Mental Health Centre were tendered through this witness, again without objection.  Ms T was cross-examined by counsel for the Independent Children's Lawyer about a telephone call on 10 January 2007.  In cross-examination Ms T explained that she was in session with the mother.  She described the mother as "quite stressed out".  While in session the mother's telephone rang, and Ms T encouraged her to answer, which she observed her to do.  Ms T said that the mother said to her, "It's him."  Ms T gave evidence that she could hear someone screaming and that the mother handed the telephone over to her, so she could listen.  Her evidence was that the person on the telephone was swearing and threatening, in the Turkish language.  Counsel for the Independent Children's Lawyer asked Ms T to explain to the Court precisely what was said.  At this stage, Ms T, who had been giving evidence in English, requested the use of an interpreter so that she could explain what she heard in Turkish.  An interpreter was sworn in and through the interpreter Ms T explained that the voice she heard over the telephone said the following:

    "I will fuck your mother, you son of a whore.  I will not let you live.  I cannot do it at court, but will do it later after court.  I will kill you.  You did wrong to me.  I will kill you.  If I don’t do that, let my mother be my wife."  I said to him twice, "[Mr Carlton]," but he was so angry he did not hear me.  His screaming was particularly loud and it was very serious swearing.  There were a lot of threats.  He repeatedly kept saying he'd have sexual relations with his own mother if he did not carry out his threats.  He then hang up [sic]. 

11. The father cross-examined Ms T about her evidence set out above. 

    
    

    I indicated to the father that if he had a contrary version of these events that he should consider putting his alternate version to the witness, in cross-examination.  In substance, this is what the father attempted to do in his cross-examination of Ms T.  However, there was no denial of the telephone conversation, but rather the presentation of alternative meanings to that which Ms T alleged had been conveyed.  The cross-examination is important not just because, ultimately, it failed to undermine the evidence of Ms T, but also because it provided the Court with an insight into the father's mindset about the issue of family violence.  Of course, the father's questions in cross-examination are no more than unsworn statements which are part of the evidence of this case, in the broad sense.  In the same way, however, that it is relevant to consider how a party conducts their case in court, it is relevant to consider what is said in cross-examination by the party conducting the cross-examination. The way in which a party conducts their case is clearly a relevant factor in the primary and additional considerations set out in s.60CC(2) and (3) of the Family Law Act.

12. For example, the father said to Ms T, in effect, that all that she was relying on is that he had called the mother, that she says that he had sworn and had threatened to kill her and "that's only happened once".  Ms T responded that on her information the threats had happened more than once, and the "threat sounded homicidal".  She said that the event happened precisely as she stated in her evidence.

13. The father said, in effect, that even if the event happened as alleged, anyone can get angry and say things that they do not mean.  Ms T replied that whilst anger was normal, a threat to kill someone was not.

14. The father asserted that he did not, in fact, threaten to kill the mother.  Ms T insisted that the evidence she gave was correct.  The father insisted that he did not swear as described, but Ms T insisted that he did.

15. The father put it to Ms T that when he said, "You're dead, you're finished," he meant that she would have no place or role in his life any more.  Ms T said that she wrote the conversation down on paper precisely as it occurred and that she had been practising as a psychologist for 20 years.  She insisted on the correctness of her version of the events. 

16. The father put it to Ms T that when he said, "I will not let you live," what he was in fact saying is that he would not let the mother live like she has been doing in the past.  Ms T replied that she could not read the father's mind and did not know his intention but only heard a clear threat.

1. The father put it to Ms T that, in effect, this is a matter between the mother and himself, the mother has an AVO so there is now not a problem, and the matter is closed, and this is not a matter affecting the children.

2. Ms T replied by simply confirming that she had stated the facts.

3. The father put it to Ms T that she had, in fact, organised this incident, that is, that it was planned in advance that the mother would be with Ms T.  Ms T explained that it was the father who had made the telephone call.

4. Finally, the father put it to Ms T that the mother had in fact said a lot of bad things and provoked him and then simply handed the telephone to Ms T.  Ms T replied to the effect that the father was simply trying to justify his actions and that the mother "did not say anything before the father started talking on the phone". 

5. On the third day of the hearing the father was cross-examined by Mr Ladopolous, counsel for the mother, about the events referred to above.  His evidence in cross-examination is that both the mother and Ms T were lying, that he never said the words attributed to him, and that Ms T was motivated by protecting the mother for some reason.

6. The totality of the evidence leads me to accept the evidence of Ms T and the mother about the incident on 10 January 2007.  Even though Ms T is the mother's long-standing treating psychologist and counsellor, I simply do not accept that she would fabricate her evidence as the father asserts.  She could not be shaken in evidence and, indeed, the father conducted the cross-examination not on the basis that events did not occur, but that alternate meanings should be placed on what was said.  I do not think that the evidence allows that explanation to be one which is reasonably acceptable under the circumstances.  The way in which the father conducted the cross-examination of Ms T is entirely consistent with the observations made of him by the Family Consultant at paragraph 22 of the Family Report.  The father clearly believes that he has been "set up", but this belief has no objective reality and merely confirms the concerns expressed by the Family Consultant, and by

   
   

   Ms T at other parts of her evidence, that the father simply has not accepted responsibility for his violent actions in the past.  Despite what the father asserts, it is not possible to limit the relevance of the three incidents to being matters as between the mother and he personally, and not having a bearing on the parenting issues.  Nor is it possible, as he submitted to me, that events that occurred before the children commenced living with him should be ignored in the context of determining future parenting arrangements.

7. Moreover, on the question of family violence I accept the mother's evidence, over the father's evidence at all material points on this issue.  On day 4 of the hearing the father was cross-examined by

   
   

   Ms Reynolds, counsel for the Independent Children's Lawyer, about the allegations of family violence, and the incidents referred to above.  It is important to note that the police documents contain references to several other allegations of family violence that did not result in subsequent charges or apprehended violence orders, and my judgment does not deal with these issues.  However, he was cross-examined about the events referred to in the police reports and, to say the least, his evidence was evasive, unresponsive, and thoroughly unconvincing.  For example, his evidence was that he either could not remember, or could not remember clearly a number of events relating to alleged assaults perpetrated by him on the mother, the children and his own son from his first marriage, [C], which were referred to in either the police documents, or the Department of Community Services file.  In the end result, I am simply unable to accept any of the father's evidence in relation to the allegations of family violence made by the mother against him.

8. By contrast, I accept the mother's evidence about the history of family violence in this case.  The overall consistency of the mother's evidence is reflected by her reporting of these events to her counsellor and psychologist Ms T, to the Department of Community Services, and to the New South Wales Police Service.  Her allegations are also consistently reported to her counsellor at [W] Employment Solutions, and Barnado's.  Her allegations are consistent with the record of professional observations made by Ms T as her treating psychologist, and by the Family Consultant in the Family Report.

9. I am therefore in a position to make very clear findings against the father in relation to the three incidents referred to at the introduction to this section, namely the two assaults and convictions in respect of which he made admissions, and the event on 10 January 2007.  That last event has a particular significance because of its proximity to the hearing of this matter – it took place whilst these proceedings were actually on foot and at a time when the children were already living with the father.  This case is clearly not limited to past incidents of family violence, but to a comparatively recent one which enables me to make certain findings against the husband in terms of past conduct and future risk.  Even if my findings were limited to past conduct, the fact is that family violence casts a very long shadow over subsequent events.  Thus, for example, I cannot ignore the father's total lack of remorse, and singular lack of insight about the unacceptability of his conduct and its impact on his family.  Regrettably, this case is an example of the "intimate terrorism" described by Johnson and Ferraro as follows:

   Johnson and Ferraro have suggested that "intimate terrorism" violence should be viewed as a tactic that underpins a broader pattern of power and control.  A number of researchers, practitioners and commentators have described a range of such control mechanisms that are employed overwhelmingingly by men.  These include the exercise of economic power and threats; the use of privilege and punishment; isolation; the infliction of emotional, physical and sexual abuse; and the manipulation and threatening of children.  According to Johnson and Ferraro, the violence associated with "intimate terrorism" tends to escalate over time, becoming more frequent, more severe and more likely to result in significant injury.  Many of its victims, who are overwhelmingly women, suffer from posttraumatic stress disorder (PTSD), depression and poor health.[1]

   [1] Moloney, L, Smyth, B, Weston, R, et al ‘Allegations of family violence and child abuse in family law children’s proceedings: a pre-reform exploratory study’ Australian Institute of Family Studies, 2007 (Research Report no. 15) p 6.  

10. The second of the primary considerations, s.60CC(2)(b), requires me to consider the need to protect children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. The totality of the evidence in this case leads me to conclude that the children have either been subjected to violence, or exposed to family violence, or there is the risk that they will be exposed to family violence whilst in their father's care. It is the unfortunate reality in this case that separation between the children's parents has not minimised the risk of this happening. So far as the future is concerned, it is the risk of psychological harm to the children that concerns me most. The father, because of his history of family violence, concerns me as being a very poor role model for the children. The risk to the children is apparent already as a result of [A]'s acting out and violent behaviour at school. I infer that this, at least in part, is contributed to by the violence to which he has been exposed in the home. I conclude that the best way of protecting the children is, all other considerations being equal, to move them into the care of the mother whilst ensuring that they continue to have the benefit of a meaningful relationship with their father through regular time with him.

The children's views:  section 60CC(3)(a)

1. Insofar as it may be said that either [A] or [B] have expressed views in this case, I would not place much weight on them.  I do not think that there is enough evidence in the Family Report which would record a definitive view of their views, in any event.  As the Family Consultant observes at paragraph 42 of the Family Report, these children have "throughout their lives, had a history of disruption in their living arrangements".  This fact is another reason why I would not place much weight on any expression of views. 

The nature of the children's relationships:  section 60CC(3)(b)

1. This consideration requires me to consider the nature of the children's relationship with their parents and other persons.  In this case, therefore, the dramatis personae are the mother, the father, their nanny at the father's house, Ms D, the father's new wife, and, potentially the mother's boyfriend.  As regards the latter, I have already found that, in my opinion, the totality of the evidence indicates that the mother does not have a boyfriend, so this is not an issue in the present context.

2. The father's new wife is potentially an important person in the lives of the children, but she is very problematic because we know so little about her.  In cross-examination the father explained that he went to Turkey in October 2007 in order to get a divorce from the mother, but also to get remarried to a woman who he had been writing to in Turkey for some time, by the name of Y.  When he went to Turkey he spent two days and two nights with Y and then his evidence was that he: "decided she was not for me, and I told her I was going".  Having made that decision, he explained that his Turkish relatives told him that there was another woman, N, who might “be good for him”, and recommended her to him.  His evidence is that he met her a few days later and they married less than three weeks later.  He agreed that N has never met his children, and they have only seen photographs of her. 

   
   

   He agreed, when pressed in cross-examination, that he had told the children about Y and showed photos of Y before he went to Turkey. 

   
   

   N has one child, a daughter seven years old, and is a widow.  She remains in Turkey and he is not clear when she will be able to come to Australia to live with the family.  He explained that he has spoken about N with the children and told them that "N is to be called mother".  He agreed that when N eventually comes to Australia she will not have any relatives here, nor will she have any educational or employment qualifications.  He also gave evidence that when N does come to Australia, she will assume all of the responsibilities of Ms D, except for those which require proficiency in the English language, namely assistance with schoolwork, and communication with the school. 

3. I record the fact that the father's evidence in cross-examination about N and Y was at times quite evasive, inconsistent, incoherent and quite frankly left me wondering whether the father had given any thought whatsoever to the significance of this evidence on the case before him or, alternatively, knew precisely how relevant it was but was determined to avoid it.  It is clear that when N eventually comes to Australia on the father's proposal she will have a significant role in the children's lives and will, for all practical purposes other than relating to schoolwork, adopt a mother role, and even that title.  Yet the Court is left knowing absolutely nothing about her.  It is possible, indeed highly likely, that when she comes to Australia she will suffer isolation. 

   
   

   I have no idea how her daughter will relate to the children in this case.  The reality is that [A] and [B] will be forced into a relationship with her and I simply do not know what the nature of this relationship will be. Whilst the children understand some Turkish they do not speak Turkish. Indeed the father’s own evidence is that he speaks English to them. N does not speak English.  This will be a major change in the children's lives which is definitely going to happen, though I do not know whether it will be this year or next year.  This is a major problem with the father's proposal for the children to remain in his care.

4. The other major significant person in the children's lives is their nanny, Ms D.  She did give evidence.  She was, in fact, quite an impressive witness.  It is clear that the father has delegated to her the majority of the caring responsibilities for these children, thus freeing him up to work as an owner taxi driver.  She is clearly devoted to [A] and [B] and they clearly have a good relationship with her.  Once N arrives in Australia her relationship with the children will change and whilst she will still be there with them, it will be on a much more limited basis.  The evidence indicates that Ms D has a good working relationship with the father, but I have no idea how she will relate to N and I am concerned about the loss of such a significant person as Ms D in the lives of the children once N arrives.  The relationship between Ms D and the children will change dramatically and there may well be a period of grieving for the children and Ms D as a result of this.  She has clearly played an important role in the lives of the children and provided them with a stability that has been singularly absent in the sense of being provided by the father and the mother who, for various reasons and at various different times tended to focus their energy on their conflict.  On the father's case, Ms D' relationship with the children will change significantly as soon as N arrives.  This is another problem with the father's proposals in this case. 

5. The evidence indicates that despite the high level of conflict between the mother and the father, that the children have a good relationship with both of them.  There are strengths and weaknesses in their relationship with the children which, where relevant, are discussed elsewhere in this judgment.  The Family Consultant's observations of the interaction between the children and their parents was positive.  The mother presented as warm and affectionate towards the children (paragraph 45).  The father has provided the children with stability and has been proactive in providing strategies to meet their emerging medical and emotional needs whilst at the same time maintaining his employment (paragraph 49).   It is clearly important that both parents maintain a significant role in the children's lives in the future (paragraph 57). 

Willingness and ability of each parent to facilitate and encourage a close and continuing relationship:  section 60CC(3)(c)

1. I have no concerns about the mother's willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father.  Her proposals to the Court in this regard are entirely appropriate.  The father makes no serious complaint against the mother in relation to this consideration.

2. I have far greater concerns about the father's willingness and ability to facilitate and encourage a close and continuing relationship between the children and their mother.  This is manifested by a number of factors including, for example, his inflexible position at the hearing, his attitudes about his responsibility to deliver the children and collect the children, as well as some lingering doubts about past contravention proceedings.

3. The father opened his case on day one by explaining that he sought orders for the mother to spend time with the children every second weekend with the mother collecting the children on Saturday morning and then returning them on Sunday evening, in each case to and from the father's home. The father's proposal always involved the mother having alternate weekend time, and always involved the mother being responsible for collecting the children, and then returning the children, from the father's home. This remained the position even in (what the Court believed to be) the closing moments of the case, on day 5, on 13 March 2008, almost six months from when the hearing commenced. Indeed, when I explored with the father in the final stages of his submissions what his proposal to spend time with the children would be if I ordered, hypothetically, that the children live with their mother, his position was that he would leave it up to the Court but he was not prepared to pick up the children or return them, and he was not prepared to do that even if the changeover point was the children's school. The father's inflexibility about the travel arrangements was both surprising, and disconcerting. He was well aware of the fact that the mother lives a considerable distance away and that, for all practical purposes, relying on public transport was not reasonably practicable for the children, let alone the mother. She does not drive, but he is an owner driver of a taxi. At various times during the hearing he stressed the flexibility of his employment and, in particular, that he was available for the children in the afternoons, even though Ms D physically picked them up from school. It is his inflexibility about the transport arrangements for the children that leads me to have concerns about his commitment to facilitate and encourage a close and continuing relationship between the children and their mother. The transport arrangements are, in many ways, the weakest link in the mother's proposals as she is entirely dependent on the father providing this transport. To give credit to the father, despite his repeated protestations of concern about bearing this responsibility solely, he has done so for the most part. Moreover, if the father was trying to tell me in submissions that he will not, in fact, be responsible for this important role from the children's perspective, I am not inclined to believe him. The father does love the children and clearly enjoys a good relationship with them and I think will value the benefit both to him and the children of an ongoing relationship with him, including the time spent travelling to and from their mother's residence. The issue in s.60CC(3)(c) is not whether the father will abide with an order I make, but rather whether there are concerns about his general attitude towards facilitating a close and continuing relationship. Regrettably, his inflexibility about transport arrangements do lead to concerns in this regard.

4. At paragraph 52 of the Family Report the Family Consultant noted the contradictions in the father's proposals, particularly concerning his willingness to allow the children to spend time with their mother.  She noted that on the one hand he wanted to restrict overnight visits, and yet he was prepared to allow the children to stay for an extended period during the holiday, and also when he was away in Turkey in October, as well as during the January school holidays in 2008.  There remained a hint of this, even in the father's closing submissions where he still persisted in suggesting that he did not want overnights to take place because of the risk to the children which, he said, derive not just from the mother's mental problems, but from the absence of an orderly family life in her household.  But, as I have indicated above, I simply do not accept that there is any evidence that would give rise to concerns about the mother's mental health or otherwise, and the father's concerns about life in the mother's household were based on unsubstantiated allegations made by him which bore no resemblance to the reality of the evidence.  Thus, the contradictions in the father's own proposals also give rise to a concern on my behalf about his ongoing commitment to the children's relationship with their mother. 

5. The Family Consultant also refers to the periods after separation when the children lived with their mother and spent little time with their father, and then lived with their father and spent little time with their mother.  The Family Consultant was, in fact, critical of both parents in terms of their willingness and ability to facilitate an ongoing relationship between the children and the other parent.  Nonetheless, unlike the Family Consultant, I have had the benefit of hearing all of the evidence over a protracted period of time and closely observing both parents whilst they were under the pressure of these proceedings before me.  As indicated above, I am far less concerned about issues of the mother's willingness and ability to encourage an ongoing relationship between the father and the children.  Moreover, I place less weight on events that occurred on or after separation, and on or after the time that the children went to live with their father.  As will be seen below, when I discuss these events in more detail, it is difficult to make findings and, at the end of the day, I am not sure that even if I were able to make findings that they would carry as much weight as subsequent events.  Thus, whilst I have recorded above that I have some lingering doubts about past contravention proceedings, at the end of the day I find it unnecessary to make findings in relation to those issues.

1. The father's evidence is, not surprisingly, quite different.  In his affidavit filed 20 July 2005 he deposes as follows:

   When I was divorced and I agreed "our children stay with mother but Saturday and Sunday, all day Tuesday and Friday after school with father". 

   At 12 May 2005 about 10 pm their mother was leaved our children in front of my house and run away with boyfriend. 

   About one hours later she called me over mobile phone and she said, "My boyfriend refused our children and I leaved them in frond of your home.  If you like, take them into your home and look after to them.  Good luck to you." 

   When I was opened the door I saw they was very cold and too much afraid from dark and crying for runaway their mother. 

   I took them into my house and I called police officers from [X] police station and two police officer arrival to my house and they said, "We know and saw everything.  If you apply to Family Court we will witness for you."

   And police offices ask me, "Are you able to look after them?"  I said, "Of course, yes."  I am father, I must look after to them and police officers said thank you and left from my home.

2. The version of the events are obviously quite different, with the father's evidence asserting that the mother left the children, in effect, unattended and late at night outside the father's residence.

3. The father tendered in evidence as exhibit R2 the New South Wales Police Service police report for 11 May 2005.  I extract the relevant part of the narrative details:

   The vic and POI were married for five years before separating about six months ago.  The pair have previously shared custody, with the vic having the two children on Tuesdays, Fridays and Saturdays. 

   At the above time and date the vic received a phone call from the POI stating that she had just left the two children at his house at the front door and she no longer wanted to see the children. 

   The vic is a taxi driver and drove straight to his home address where the two children were at the front door step.  The children were left unsupervised for a period of about 15 minutes.  The vic contacted police seeking to have the incident reported.  The vic assured police that the children would remain in his care from now on and he would seek child care whilst he was working. 

   The two children were sighted and spoken to by police who both appeared in good health and spirits.  The vic was informed that DOCS would be notified and he may receive a phone call from them to confirm he now had sole custody and to ensure the children's welfare. 

4. Whilst the father placed considerable weight on the police report, the fact is that it merely records his version of events reported to the police.  For such a significant event from the father's perspective, it is interesting to observe some important differences between the account that the father gives in his affidavit filed 20 July 2005 and the police report made at 17 May at 10:39 pm.  The father's affidavit says that the children were left out the front of his house about an hour after 10 pm when, he asserts, the children were left in front of his house.  The police report says 15 minutes.  The police reports indicated that they were there by 10.39.  It is unlikely that, if this event occurred, the children were left for an hour. 

5. Moreover, in his affidavit the father clearly asserts that he was at the home, inside, when the children were allegedly left outside the home.  However, the police report indicates that he was driving his taxi and drove straight home, the children having been left unsupervised for about 15 minutes.  In cross-examination he said he was asleep inside the house at the time the mother allegedly telephoned.

6. In the mother's cross-examination by the father she agreed with him that she telephoned him, but she insisted that she waited there with the children for him to come home.  Her evidence was that he came home about 15 minutes later, she knocked on the door, the father opened it, he was very upset and angry, that he kept telling her that he was not looking after the children well, that she offered to let him care for the children for a week, and that she then waited there until he took the children inside, and at that time she was not feeling well anyway.  She insists that she took the children to the door of the father's premises, and handed them to him after an argument.  She was firm in her evidence that she did not leave the children unattended at the father's door.  Strangely, however, after persistent cross-examination she also added, "I watched from a distance for 15 minutes."  There are internal inconsistencies between the mother's oral evidence, and it is strange that having regard to the significance of this event, her affidavit does not contain many of the details to which she gave oral evidence. 

7. However, the fact is there are inconsistencies in the evidence of both the mother and the father about this incident which resulted in the children remaining in the father's care.  It is probably the case that the children were left unattended, but only for a short period of time. 

   
   

   I think with the passage of time, both parents have reflected on this event and tried to justify their respective positions to their respective benefit, for the proceedings.  Clearly this must have been a very stressful event for the children, but the focus cannot be just on what occurred that night.  This single event must be seen in the context of everything that preceded it, and then subsequently occurred.

8. I think the correct focus about this event is contained in paragraph 46 of the Family Report where the Family Consultant states:

   46. Further concerns about her capacity to be child focused are raised by her decision to hand the children over to Mr Carlton in 2005 and then to make an application for them to remain in his care. This occurred shortly after her moving out of the Refuge. It would seem that, subsequent to this, there was a limited history of her being able to manage with the children in an independent living arrangement. She stated that her motivation at the time of handing the children over to Mr Carlton was that she wanted him to experience the frustrations of parenting. This explanation seems to demonstrate little sensitivity to the children, given the trauma they had allegedly experienced throughout the marriage, and is inconsistent with the apprehension she raises about

   
   

   Mr. Carlton’s parenting capacity. If indeed, she was suffering from mental health difficulties at the time, there was little information on the files documenting what was happening for her in 2005 and the current status of her mental health.  This is compounded by her ambivalence where, on the one hand, she denies any such mental health difficulties yet she also states that she has not been able to pursue studies because of “stress”.

9. The Family Consultant's view on this event, irrespective of the details, is that it correctly represents a failing by the mother either in terms of her capacity as a parent, or in terms of her attitude to the children and to the responsibilities of parenthood.  With this, I undoubtedly agree.  However, I think there are important mitigating factors, and that the circumstances that existed at the time for the mother and the children, no longer exist today.  At the time the mother was clearly unwell, and probably depressed.  She was the survivor of family violence which, the evidence indicates, continued even after this event.  She had been living in a refuge, with the children, for a period of time before this event.  The totality of the evidence in fact leads me to accept her evidence that the father had been persistent in his communication with her prior to this event.  But none of these factors are still present in the mother's life today.  She is far better supported today, than she was in 2005.  She presents as the survivor of family violence who has an appreciation and insight into what has happened in her life, and the impacts on her children, and is determined to move on.  Indeed, the mother's singular determination to move on with her life, notwithstanding the family violence she has experienced, repeatedly came out as she was being cross-examined by the father about events that he was confronting her with, or minimising or seeking to trivialise.  I have no doubt that as the mother was being cross-examined by the father about the family violence, which I find he perpetrated during their relationship, that she was probably being re-victimised.  That I chose not to intervene to protect her is a conscious decision I made.  To impose limitations on a self-representing litigant in a complex case on what was probably the most significant issue in the case would have almost inevitably opened up the possibility for appellate review.  I was not prepared to allow that to happen, for the sake of both parents and their children.  As it turned out, the mother dealt with

   
   

   cross-examination by the father with dignity and courage.  If anything, her determination enhanced her credibility, whilst the father's

   
   

   cross-examination of the mother undermined his credibility.

10. Thus, whilst acknowledging the strength of the Family Consultant's criticism of the mother about these events, I find the circumstances today to be completely different to those which existed at that time and so I am not prepared to allow these events to allow me to have future concerns about the mother's attitudes and responsibilities of parenthood. 

11. Another significant issue raised by the Family Consultant was her failure to protect the children from an abusive environment.  These concerns are set out at paragraph 45 of the report:

    45. Ms Carlton presented as warm and affectionate towards the children, especially [B]. She was also the primary carer for the children until 2005. However, this assessment raises concerns about her capacity in the past to protect her own children as well as Mr Carlton’s older children from an abusive family environment. By exposing her children to on-going violence as well as denying the violence that was allegedly perpetrated on [C] by his father, she appears to have been incapable of making discerning decisions that were child focused. While in part this incapacity may be explained by her cultural scripting and a pattern that is often evident in families where violence exists, there are possibly also other reasons for her inability to draw protective boundaries around herself and her children, particularly given the amount of support she has received from other agencies. 

12. Whilst I understand and accept the Family Consultant's concerns, the totality of the evidence paints a picture of the mother who has survived sustained family violence and who has moved on with her life with a dogged determination to focus on meeting the needs of the children. 

    
    

    I find she is better supported today than she was in 2005 and beforehand when she was subjected to family violence.  In any event, it would be ironic indeed if the father, as the perpetrator of the family violence in respect of which the mother is being criticised for failing to protect her children, could in fact use this consideration in his favour in order to undermine the mother's capacity or attitude as regards parenting.

13. Of course the father is certainly not above criticism as regards his attitudes to the children and to the responsibilities of parenthood.  His perpetration of family violence on the mother, often in the presence of the children, reflects very poorly on him as a parent.  His complete non-acceptance of his perpetration of family violence, and the impacts on the mother is a significant failure on his part.  His attempts to compartmentalise the family violence as if it were limited just to the mother and had no effects on the children again counts against him.  For many of the reasons that have already been set out in this judgment, it will be apparent that I am more concerned about the father's attitude to the children, and to his responsibilities of parenthood, than I am as regards the mother.

The order least likely to lead to further proceedings:  section 60CC(3)(l)

1. Having regard to the matters set out above, there is a risk of further proceedings, whatever order I make.  If I make an order in terms of that sought by the father, I am convinced that there is the risk of future contravention proceedings based on the findings I make about the father's willingness and ability to facilitate and encourage a close and continuing relationship between the children and their mother.  However, if I accept the mother's proposal and the children live with her, there is a risk that the mother will not be able to cope with the full-time care of the children, that the child welfare authorities may become involved, that one or both of the children may go back into the father's care, and, also, the possibility that the mother will form poor relationships with other men in the future.  These are all theoretical risks which, I think, are negligible provided the mother continues to receive the support that she has been receiving and continues to be of good health.  There is no reason for me to suspect that this will not continue to be the case. The risks can also be managed by reviewing the implementation of the orders I make in about six months’ time.

2. I must also ask myself whether there is the risk that in accepting the mother's proposal, the father will simply give up on them?  For example, in his closing submissions the father indicated that he would not be prepared to spend time with the children on weekends on the basis that he collects them from after school on Friday and returns them to school on Monday.  He did not provide a reason for this and it may well be that my question to him during his submissions caught him by surprise.  Even though the father has steadfastly complained about doing all the travel associated with the children spending time with their mother, I am not prepared to conclude that he will not do the travel associated with the children spending time with him.  Thus, I do not think there is a risk that he will, in fact, give up on the children because these proceedings have not turned out the way he anticipated.  Deep down, I think the father dearly loves his children, and the concerns I have about him are not such as to deprive him of an ongoing meaningful relationship with them, but on the basis that they live with the mother, and not with the father.  Ultimately, it is my hope that the father will comply with the orders made by this court, even though my own findings are so at odds with what the father clearly perceives the situation to be.

Conclusion about s.60CC considerations

1. The discussion above about the application of the s.60CC considerations to the facts of this case clearly points, in my opinion, to a conclusion that it is in the best interests of the children that they live with their mother, but have the benefit of regular time with their father.

Presumption of equal shared parental responsibility

1. I accept the submissions of Ms Reynolds that the presumption of equal shared parental responsibility has either been rebutted under s.61DA(4) as it is not in the best interests of the children that it apply, or it has been negated under s.61DA(2) because of the findings I have made as regards family violence. To impose the obligations of equal shared parental responsibility on the parents in these proceedings is an invitation for future conflict between them, and creates an opportunity for the father to attempt to re-victimise the mother.

Father’s time with the children

1. As I have indicated above, the father and the children clearly enjoy a meaningful relationship and this needs to be fostered by the father having ongoing time with the children. Ms Reynolds submitted it should be two out of every three weekends with the father, commencing from collection after school on Friday, and concluding with delivery to school on Monday, plus half of all school holidays.

   
   

   Mr Ladopolous submitted it should be each alternate weekend. He submitted that the Court might be reluctant about the two out of three weekends because increasing frequency of changeover creates opportunities for conflict between the parents. However, if change over is at school, the opportunities for clashes at changeover are minimised. I believe that two out of three weekends provides the father and the children with the opportunity to continue and indeed build on the meaningful relationship that exists between them. It also provides a break for the mother, as well as opportunities for the children to get to know their new step- mother and step- sister, and perhaps even maintain some contact with Ms D.

Implementation Issues

1. As indicated above, the changes I propose are significant ones for this family. The mother, especially, will need to enrol the children in an appropriate school close to her house. She may need to find other accommodation as well. I need to give her a reasonable opportunity to do so. These orders are being made in the second half of Term 2 of the school year. I am reluctant to make orders the effect of which changes the children’s school mid-term. To wait until the end of term is not too long a period. I propose to commence the orders for the children to live with the mother at the conclusion of Term 2, and then commence the father’s time with the children from the second weekend of Term 3.

2. As a safety net for the children I will not discharge the independent children’s lawyer until 31 December 2008 and grant leave to the independent children’s lawyer to re-list on seven days notice as regards the interpretation, implementation or enforcement of these orders.

   
   

   I also request the independent children’s lawyer to interview the children in about six months time and then, having regard to that interview, decide whether or not to re-list the matter before me. Notwithstanding this,  I do not regard my orders as interim orders, they are clearly final, but because of concerns I have as regards implementation, I prefer to retain the independent children’s lawyer as stated above, and request the Legal Aid Commission to extend its funding in this regard.

Postscript: Events after 13 March 2008

1. On 2 June 2008 I heard oral evidence from the parents about events alleged to have occurred after 13 March 2008. I deal with the evidence in chronological order.

2. On 23 April 2008, Ms Renshall, the Independent Children’s Lawyer wrote to the father advising him that, in effect, she had been advised that the children had had no contact with the mother for the previous five weeks, including during the school holidays that had occurred between 5 and 20 April 2008. She asked for an explanation and threatened to relist the matter before me if one was not obtained.

3. The father responded by way of email dated 25 April 2008. The substance of his response was that he had done nothing wrong e.g. “I never made broken missing telephone contact and missing visit include this complain”. Whilst the language used by the father in this email is sometimes difficult to understand, the substance and intent of the email is quite clear. He believed he had done nothing wrong.

4. The matter was relisted before me on 8 May 2008. A transcript of those proceedings was obtained and made available to all parties. The following observations are based on that transcript. The father raised concerns about a number of disclosures made to him by the children, allegedly after 13 March 2008. The alleged disclosures were to the following effect;

   a)That the mother’s boyfriend had taken his son out and hit him.

   b)That the mother had hit his daughter in the face with a remote control.

   c)That his daughter had seen the mother and her boyfriend going upstairs for 15 to 20 minutes and then going into the bathroom and taking a bath together.

   d)That the mother’s boyfriend pushed his son out of the house.

   e)That both children made these disclosures to him.

   f)That these disclosures were also made in the presence of their nanny, Ms D.

1. It seems that as a result of these disclosures made to him, the father wanted to discuss these issues with the mother on 29 March 2008 at her home, but this resulted in an argument and the police were called.

2. After these events the father alleges that he and the mother agreed that she would come to this house to see the children each alternate weekend. This agreement is strongly denied on behalf of the mother who asserts that, in effect, after the hearing on 13 March, there had only been two occasions when the children had spent time with the mother in accordance with the orders – the weekend after the last day in Court, and the weekend immediately preceding the day the matter was listed i.e. 8 May 2008.

3. After hearing these allegations I decided to reopen the evidence and set it down for final hearing on 2 June 2008 by way of oral evidence only. The transcript does record two other significant matters though:

   a)The father asserts that a police officer contacted him after the events of 29 March 2008 and warned him: “you better not go back again because she’s got some bad intentions. The other alternative is for you to go to court and tell the Judge what has happened”.

   b)The father asked me “What do I do in the meantime?” meaning between 8 May 2008 and 2 June 2008. The transcript records that I said “you just have to abide by the order of the Court.”

4. The matter came before me on 2 June 2008. Both parents gave sworn evidence.

5. What was significant about the father’s evidence on 2 June 2008 is that he only referred to two disclosures made by the children. He gave evidence that his daughter told him that her mother had thrown a remote control at her, hitting her on the nose. Also that his son had been put out the door but not by the boyfriend, but rather by his mother. The father gave evidence to the effect that the children had in fact repeated these disclosures to him after 8 May 2008, and again in the presence of their nanny. Curiously, but significantly I believe, the father made no mention at all of his previous allegations that his daughter had seen the mother and her boyfriend go upstairs for 15 to 20 minutes and then in the bath together.

6. Ms D, the nanny, gave evidence by telephone, she did not in any way corroborate the father’s assertions about any disclosures or complaints made by the children. I am satisfied that she was given ample opportunity to do so in her questioning by counsel for the Independent Children’s Lawyer.

7. The mother strenuously denied the events alleged in the disclosures.

8. The father could provide no acceptable reason or explanation for not referring to these alleged disclosures by the children in his email of

   
   25 April 2008

   to the Independent Children’s Lawyer. It was put to him that he could have simply said in the email, words to the effect that “she hit the kids”, but he did not. I do not accept in the circumstances his explanation that his written English was not sufficient for this purpose. The email from him demonstrates that he is capable of making himself understood. For example the last sentence in the email conveys quite clearly what the father was thinking: “Mother have very bad intentionally, specially mother doing ABUSE AVO and BAD USING OF THE AUSTRALIA LAW SYSTEMS [sic]”. I cannot accept that he was incapable of communicating to the Independent Children’s Lawyer an allegation that the mother had been hitting the children. Moreover, the father made no mention of these concerns to the police on

   
   29 March 2008

   .

9. I am left with profound doubts about whether these disclosures were made at all, let alone whether there is any substance to them. I cannot ignore the fact that they were allegedly made within a matter of weeks from final submissions on 13 March 2008, when, I believe, the father had to confront the possibility that the children would be ordered to live with the mother. He was quite surprised, indeed quite taken aback, on learning that the Independent Children’s Lawyer would support the mother’s position in the case.

10. Despite my profound doubts, the evidence indicates that the father acted on the alleged allegations and sought to discuss these with the mother on 29 March 2008, a Saturday. He drove the children to the mother’s house. His evidence is that “he sent the children inside on purpose”, the inference being quite clear that he did not want them present for the conversation he was to have with the mother. His evidence is that he asked to speak to the mother and she agreed to speak. He says he remained in the driver’s seat in his car, and spoke with the mother through the open front passenger’s side window with her standing outside. He asserts that she started screaming. He admits that he referred to her house as a brothel, and to the mother as a whore and a slut. He says that he reversed out of the driveway, drove away, and was subsequently telephoned by the mother and the police.

11. The father’s evidence is that it was as a result of this incident that they “agreed” that the mother would only see the children at his home, not hers.

12. In the father’s cross examination he eventually conceded, after much evasion on his part, that in fact the children had only seen their mother three times between 13 March 2008 and 2 June 2008, despite the orders of this court and despite the current proceedings. He agreed that two of those visits were at his home and had been recorded on his VCR. The recording with the VCR is explained by reference to the father’s fear, bordering on obsession, that the mother was trying to ‘set him up’ for a breach of the AVO currently in force. In his mind, the events of 29 March 2008 were a clear example of this. His explanation for the children not seeing their mother is that she would not come to collect them, or she was not available. The orders, of course, require him to take the children to the mother’s home. However the father strongly denied that on 29 March, whilst at the mother’s residence, he stood at her front door. He plainly admitted, though, that after this event he indicated to the mother than he would not be taking the children to her anymore.

13. The mother’s version of the events at her residence on 29 March 2008 differs from that of the father. She said that when he drove the children to her home her daughter was almost asleep so she took both of them inside. She agrees that he asked to talk with her, and I accept from her evidence that either expressly or implicitly she agreed. Her evidence was that “I could see in his face that he was angry and aggressive”. The mother says the father first raised the issue of her boyfriend coming around to her house. When she told him this was none of the father’s concern he became angry, and called her a slut and a whore, and described her home as a brothel. She says he was initially inside his car, but then came to the front door, whilst she was inside the front door.

14. The mother gave the quite disturbing evidence that she saw her son “blocking his ears” whilst this incident was going on. She called the police. She agrees that she later rang the father and had a subsequent conversation with him that day. She says that during the time the police were there her ex-boyfriend turned up and stayed for only a few minutes. She thought he might have come to collect some of his personal items. She firmly gave evidence that she no longer has a relationship with him, and has not done so since last year, and last saw him on 28 March 2008.

15. The mother explained that she did not “agree” to see the children at the father’s residence, she felt she had no choice. The travel arrangements, if she were to collect the children, meant up to three hours of travel on public transport, and if she went to the father’s home everything would be recorded on VCR. As she explained to the father during cross-examination: “If I go, he films me. If I don’t go, he’d criticise me. I didn’t know what to do”. Her evidence is that she had sought legal advice about the father’s actions.

16. There are disturbing features of the evidence of both parents in relation to these events. The police report of the events of 29 March 2008 was in evidence. It records an assertion by the mother that the father “saw the current boyfriend in the house” when he was there. She explained in evidence, however, that the boyfriend came around whilst the police were there, and that they may have misunderstood what she was saying. The police report also records the father’s assertion that he “did not say any of the alleged swear words” even though he openly admitted before me that he had. The report also records under the heading CONCERNS/FEARS OF POLICE “This matter is being used for future family law orders”. Prescient words indeed.

17. Based on my earlier findings as to credit in this matter I am inclined to accept the mother’s version of events on 29 March 2008. It is consistent with my own observations of the father in court that he could be loud and aggressive. It is unlikely, I find, that he remained in the car during this incident. The father was quite legally and legitimately there until he initiated the discussion with the mother and got out of the car.
    On 1 August 2007 I made an order that: “The father will endeavour to not get out of the car… and the mother will endeavour not to go out the front door at the appointed time”. On 21 November I made orders that at the time of changeover “the parent’s are restrained from communicating with each other in any way”. Clearly all attempts at legal regulation of changeover have failed.

18. I find it quite amazing, however, that after this incident, and after the police had attended her premises, the mother actually initiated a telephone call to the husband in order to challenge him about his assertion that her home was a brothel. These are scarcely the actions of a woman who considered herself afraid of the father’s actions and behaviour. Whilst I find that the father initiated the events of 29 March 2008, I also suspect that the mother was then prepared to make the most of those events for her own benefit. The police were indeed prescient in their comments as both parents sought to use these events for their own purposes.

19. Nothing, however, can justify the father unilaterally changing the arrangements for the children to spend time with their mother. It was in many respects a breathtakingly audacious thing to do at this stage of the proceedings. I have no doubt in my mind that on 13 March 2008 the father knew what orders were in place and what was expected of him. The evidence indicates he complied with the orders on the first weekend after that date. On 29 March the father’s own evidence is that a police officer told him “to go to court and tell the judge what had happened”. Instead he chose to take things into his own hands. On 8 May 2008 I made it very clear to him that I expected him “to abide by the order of the Court”. The evidence is that he again declined to do so.

20. Both Mr Ladopoulos and Ms Reynolds submitted to me that in light of these recent events, and the context in which they occurred, I can have no confidence that the father will abide by the orders of the Court. Implicit in this submission is the significant concern that the father simply doesn’t have the capacity or insight to appreciate the consequences of his own actions on the children, and he could not be trusted to facilitate an ongoing relationship between the children and their mother. The totality of the evidence points overwhelmingly to this conclusion.

21. The events that have occurred since 13 March 2008 confirm the findings that I made before then. The orders that I proposed on that date remain the orders that I will make. As this will be a big change for the children, and for the mother as well, I will bring the matter back before me in six months’ time to see how the orders are being implemented. As indicated earlier, however, I still regard these orders as being final orders.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate:  Monique Robb

Date:  10 June 2008