Cassar and McManus

[2007] FamCA 591

FAMILY COURT OF AUSTRALIA

CASSAR & MCMANUS [2007] FamCA 591

FAMILY LAW - CHILDREN - With whom a child spends time -  Father’s application to spend time with young child – Long history of family violence – No order to spend time or communicate

Family Law Act 1975 (Cth), s.60B(1), s.60CC, s.60CC(1), s.61DA, s.65DAA(1), s.65DAA(2)

T v N (2003) FLC 93-72

APPLICANT: MR CASSAR

RESPONDENT: MS MCMANUS

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: CAF 622 of 2005

DATE DELIVERED: 22 May 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 22 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wearne

SOLICITOR FOR THE APPLICANT: Legal Aid Commission of New South Wales

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Adams Leyland

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Boyle

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Robb and Associates

Orders

1. That the father’s application to spend time with the child, T, born … May 2002 be dismissed.

1. That save with the written agreement of the mother or pursuant to court order the father communicate with T only by cards and gifts :

   (a)     on or about the T’s birthday each year:
   (b)     at or about Christmas each year;

   (c)on up to two other occasions in each calendar year;

   and the mother do all things reasonably necessary to facilitate T’s receipt of such cards and gifts.

1. That the gift brought by the father to this Court on 21 May 2007 be delivered by the mother to the son as soon as practicable.

2. That all extant applications be otherwise dismissed.

IT IS DIRECTED

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

IT IS FURTHER ORDERED

1. That the period in which a party can file a notice of appeal be extended to one month after the date on which reasons for judgment are posted to them.

IT IS CERTIFIED

(9)That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitor acting as counsel.

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: CAF 622 of 2005

MR CASSAR

Applicant

And

MS MCMANUS

Respondent

REASONS FOR JUDGMENT

1. The parties met around Christmas 2000.  By August the following year, the mother was pregnant and their son T was born on … May 2002.  They remained in a relationship, albeit a turbulent and dysfunctional one, until late January 2005, when they separated.  The court is asked to decide what time, if any, T should spend with his father and what communication, if any, he should have with him.

PARTIES

1. The father is 43 and lives in G.  He is on a Centrelink pension.  While not an articulate or sophisticated man, he was capable of some reflection.  He has, and acknowledged, a long history of assaulting female partners, as well as a niece in 1985 and another child of his in 2003.  He acknowledged he had been what he called a “bad drunk” and he was candid when cross-examined about the numerous offences which are recorded in tendered documents.

2. Over many years I have observed a number of witnesses who have spent time in gaol.  Not infrequently there is a sense of repression or lack of spontaneity when in a court environment.  That is the way the father presented. He may have been resigned to a poor outcome, or there may be other reasons for his presentation.  He was courteous and behaved appropriately.  I had him under observation for the whole of the proceedings and saw nothing about which he could be criticised in terms of his responses to the child's mother. 

1. The father has two other children from an earlier marriage. Daughter L is about 23 and son S is about 19.  He and their mother divorced in 1992.  His evidence was of being in regular contact with them now, having resumed a relationship with them when daughter L was about nine or ten, after she sought him out.  I will refer later to evidence of his conviction for common assault on son S, when son S was thirteen.

1. The mother is 37.  She lives in A in a property which, as I understand the evidence, is registered in the father's name and in respect of which there are proceedings under the relevant de facto legislation in the Local Court.  She has a son, B, who is 15.  His father is dead.  He has no contact whatsoever with any paternal relatives.  She also has a son, M, born since these proceedings commenced, who is some seven months old.  His father is Mr F who lives in D, about 10 minutes' drive from A.  The mother does not live with Mr F; she said they were “taking things slowly”. Her evidence was that Mr F sees M regularly. 

1. In the witness box the mother made it very clear, as she had to Ms D, the family reporter, that she would like the father out of her life.  She saw no value in T having a relationship with him now or in the future and could not concede that the father loved T.  As with the father, she did not tailor her evidence to support her case.  She was clearly stressed by the proceedings which, I am satisfied, have been onerous for her. 

1. There was little sense that the mother had reflected on the long-term consequences of T knowing nothing about his father.  Rather, she impressed as simply hoping the father would go away; she saw that as a means of liberating herself and the children from a violent aspect of their past.  She was frank in saying that, at this time, she has little interest in obtaining professional assistance; she saw no need for such assistance for herself or for T.

1. It was the independent children's lawyer's submission that the court needed to take the parties as it found them. I take her to mean by that the court should not assume either is likely to change in significant ways. I am satisfied that is a well‑founded submission.

EVIDENCE

1. The court had before it affidavits sworn by each of the parties and a report of Ms D, dated 11 July 2006.  Much of the material was prepared in anticipation of a trial envisaged to occur in the second half of last year.  That could not happen, as the father was imprisoned.  The mother's youngest child was born after the family report was prepared.  Nevertheless, I am satisfied that all relevant issues were canvassed in evidence.  A number of documents were tendered, on which I rely.

1. Also in evidence was a report of a paediatrician, Dr M, prepared as a result of a recommendation Ms D made in her report of 11 July 2006.  When the mother took no steps to implement that recommendation, the independent children's lawyer obtained an order to that effect, and Dr M’s report was before the court. 

LITIGATION HISTORY

1. The father filed an application in the Federal Magistrates Court in Canberra on 18 July 2005, shortly after his release from a gaol term of some six months for assault occasioning actually bodily harm.  On 13 November 2005, interim orders were made which provided for him to have supervised contact twice at the L Children's Contact Service.  The applications were otherwise referred to this court.  At that time, an order was made by consent, by consent, for the mother to have sole parental responsibility for T and for T to live with her.  Neither party sought to make any adjustment to those orders in these proceedings.

1. The father did not exercise the contact with T at the contact service.  His explanation (in his affidavit and in the witness box) was that questions of distance and expense made it impossible, after his release from prison.  He has no driver licence - he may never have held a driver licence - and he has been on a pension in recent times.  Whilst mindful of the cost of travel to those on limited means, what was anticipated were only two visits in a relatively lengthy period.  If supervised contact were again ordered in the L the court could not be confident the father would attend.  The father did not attend a mediation arranged for 11 January 2006; his evidence was of not receiving advice of it.  He did take part in a subsequent mediation a week or so later, by telephone.

PROPOSALS

1. The father initially sought orders for supervised time with T for two hours per month at the W Children's Contact Service, that additional time be reviewed after March 2008, and at that time consideration be given to whether supervision should continue.  In the course of the trial he spoke about moving to spending half a day or a day with T, rather than the supervised two hours, probably in W and unsupervised.  At the commencement of her final submission, his counsel advised that he did not now seek the review.  His application was for an order for supervised time for two hours a month at the W Children's Contact Service, indefinitely.  He was aware that the mother had always sought that a contact service in Albury/Wodonga be used, if supervised contact were ordered.

1. In her initial response and in an amended response filed in July 2006, the mother sought that the father's time with T be professionally supervised.  In an amended response filed on 31 October 2006, she sought that the father spend no time with T and have no communication whatsoever with him.  That remained her application, although in the course of cross‑examination, possibly in response to something put by counsel, she referred to the possibility of receipt of cards from the father.  Nevertheless, I take her application broadly to be one for no contact at all.

1. The independent children's lawyer made a thoughtful submission, balancing the pros and cons of supervised contact against an order for no contact whatsoever.  If there were to be contact, she could not support anything more than four to six sessions per year, in a securely supervised professional facility.  If that were ordered, her recommendation was that the contact service be in W.

LEGAL PRINCIPLES

1. The provisions in the Family Law Act1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

1. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

1. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

1. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

PRIMARY CONSIDERATIONS

1. When determining what is in a child’s best interests 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.

   These are consistent with the objects set out in s.60B(1).

2. Each counsel conceded that the evidence established a history of significant and substantial violence directed at the mother, to other intimate partners of the father and to children.  While it is tempting to say no more than that, I am satisfied the detail needs to be set out.

1. I start with the criminal history insofar as it relates to the parties when they were together, and after the separation.  The evidence is of police involvement in March 2004 when the father was arrested after an argument, in the course of which the mother alleged she was hit in the face and kicked.  The father agreed that he told police that, "she gets herself in trouble and I have to give her a few backhanders."  The term “backhander” was referred to a number of times in his subsequent evidence.  At that time the father was charged with resist police and assault charges, and an apprehended violence order was obtained by police to protect the mother.

1. On 13 May 2004 the father was convicted of resisting police and assault occasioning actual bodily harm.  He was required to enter into a bond, and ordered to pay a pecuniary penalty.  On 23 June 2004 he slapped the mother, and hit her again on the back of the head.  On the following day he was arrested after he verbally abused the mother and threw a beer bottle at her, causing serious facial injuries.  At that time she was holding T in her arms.  The father’s bail conditions required him to live in G, not A where the parties were then living.

1. On 17 August 2004 the father was convicted of offences which were laid in June; he was found guilty of common assault, contravening an apprehended violence order and a firearms offence (possessing an unregistered firearm).  He was given a nine-month fully suspended sentence and resentenced on the offences for which he had been given a bond on 13 May 2004.  The firearms offence related to the purchase and possession of a slug gun; he said he had bought it for T (who was then two) and had not realised it was a prohibited weapon.

2. The father subsequently moved back in with the mother and T.  In October 2004 the police spoke with him after he became very angry and punched in the window of a car in which T and the mother were seated.  On two occasions in October 2004 he was charged with breaching the apprehended violence order, which protected the mother. On 4 November 2004 the mother applied to revoke the apprehended violence order.  Within three weeks, the father was convicted of the earlier breaches, and given a six-week gaol sentence.  On 15 December 2004, on the application of the mother, the apprehended violence order was revoked.

1. The evidence is a little unclear about the events which occurred on New Year's Eve 2004 and in late January 2005.  It is probable that on the first of those dates the father, released from prison, was sharpening a shovel.  He agreed that when T asked him what he was doing, he said he was "sharpening a shovel to kill some slut".  He subsequently threatened to kill the mother if she took T.  The following day he punched her in the eye with a clenched fist. 

1. At or around that time, he was again arrested.  I cannot say whether that arose solely out of the incident on New Year's Eve, or another incident on 29 January 2005. In the course of the latter, he made explicit threats to kill the mother, threatened that the house would burn and she would get nothing and, when she fled to a neighbour's house, followed her, threatening to kill her if she took T there.  He was subsequently arrested, bail was denied and an interim AVO made.  As I understand the evidence, he did not see T again until he saw him, briefly, in the course of the preparation of the family report in 2006.  He has not seen T since the preparation of the family report.

1. On 29 March 2005 the father was convicted, and sentenced to twelve months' imprisonment with a nine-month non-parole period.  He appealed.  The total sentence was increased, the minimum sentence reduced.  It is probable he served some six months.  On 29 March 2005 a final AVO was made, to remain in force for three years.  After he was sentenced, the AVO was varied to allow him to ring the mother and T, from gaol. 

1. On his release from gaol, the father lived in W.  He rekindled an earlier relationship with Ms B around Christmas 2005.

1. On 18 July 2005 the father filed the application which commenced these proceedings.  On 27 August 2006, these matters being listed for trial, the father was charged with assaulting Ms B.  He was refused bail.  They had argued.  She had tried to leave.  He agreed that he gave her a backhander to the head, and called her an ungrateful bitch, the latter allegedly relating to some work he had been doing on her home.  On 8 September 2006 he pleaded guilty to assault charges and was sentenced to eight months' imprisonment, with a minimum of six months. 

1. An AVO to protect Ms B was put in place for two years.  Notwithstanding that, on his release in February 2007, the father moved back in with her. His parole expired last month.  Ms B, according to him, visited him regularly in prison.  He said he stopped living with her about a month after he was released from gaol.  It is clear they were still living together on 8 March this year when police, acting on a report from neighbours, attended their home around midnight.  Both had been drinking.  There was loud argument and verbal abuse.  At that time, as the father conceded, Ms B's grandchildren were in the home.  His evidence is that they no longer live together but still have a relationship.  Indeed, she had driven him to L for the trial.

1. The court can find that both T and B were exposed directly to the father’s violence.  The mother was holding T when she was hit by the empty beer bottle, resulting in a deep cut and bleeding.  There is evidence that at times both children (even though T was tiny) got up in the night and tried to intervene to stop the abuse and violence.  I place weight on Ms D’s evidence that research indicates the adverse impact on children of exposure to violence at that stage of development; the impact is very significant.

1. One of the cases to which counsel for the mother referred is that of T v N (2003) FLC 93-172. In that case the parties and the then child representative submitted a minute of orders to Moore J and sought they be made by consent. She declined to make those orders, having regard to the at that time untested evidence in the case, so concerned was she at the potential for the orders, which were for unsupervised contact, to expose the children to risk. At page 78-760 her Honour noted that it hardly needed to be said that violent and abusive conduct by one parent against the other is highly detrimental to the wellbeing of children, whether they witness it or not. She continued:

   If they do witness it, anyone can see that such conduct can only be a traumatic experience for them.  There is an abundance of research from social scientists about the highly detrimental effect upon young children of exposure to violence and the serious consequences such experiences have for their personality formation.  They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behavioural problems and lower self‑esteem than children not exposed to violence.

   Clinical profiles for children who witness domestic violence include post‑traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relationships.

1. I share her Honour’s views on the effects of violence on children.

1. The father acknowledged longstanding anger management problems. He conceded that how well (to this day) he manages his feelings of frustration and anger depends on the situation.  He did a violent offenders program back in 1999, almost certainly as a result of an earlier court order.  He has done anger management programs whilst in gaol.  He has done no one-on-one counselling.  It must be said that he was frank with Ms D, as he was frank with the court; he did not assert he had mastered his violence.  He agreed that the problem escalated with drinking.  There is little point in the court rehearsing arguments in the contentious area of cause and effect of alcohol and violence. There is no doubt that the father has drunk to excess on many occasions in which he has been violent to the mother and other female partners.

2. To Ms D the mother acknowledged her role in the cycle of violence.  She was remorseful about exposing the children to it. She was remorseful for maintaining her support of the father, even after she had been assaulted.  The court is well aware of the pressures on women in relationships, who are targets of violence by a male partner, to remain in or resume those relationships, and of the reasons the cycle of violence too often continues.  By her expressions of remorse, I accept that the mother acknowledges that she, too, carries some responsibility for failing to stop this abuse.  Having observed her in the course of the proceedings, the court can only hope that she will never allow herself (and thus her children) to be in that position again.  Her distress and fear were manifest. The father agreed it was reasonable for her to be frightened of him.

1. The mother's evidence was that when the father was able to ring T pursuant to orders, he used that opportunity to verbally abuse her.  From prison the father wrote a number of letters.  There is some substance in his counsel's submission about them.  Letters written by prisoners, particularly prisoners serving terms relating to violence, are unlikely to be rationally balanced.  Many prisoners, like the father in this case, perceive their former partners to be living lives of ease and comfort, in a new relationship, in a house which the prisoner may own, and are angry.

1. These letters are a mix of entirely appropriate expressions of love for his son, and entirely inappropriate threats and offensive language.  Written communications by the father since he was released from gaol in 2005 have not continued in this vein.  Since his 2005 release there is no evidence of inappropriate communications in writing or by telephone, and no evidence the father has attended A, despite being a proprietor of property there and his tools of trade being there.

1. There are cases in which prior acts of violence may not be as relevant, given the passage of time.  I refer, for example, to convictions when people are very young, whether as teenagers, or in their very early adulthood.  However, in this case the pattern of conduct must be seen for what it is; a longstanding pattern of violence directed at vulnerable family members and intimate partners.

1. In about 1985, the father hit his niece, …, twice, and was arrested.  In 1988 he was convicted of malicious damage in circumstances where he kicked in a television set in the course of arguing with his first wife.  In 1993 he was convicted of assault and offensive language.  He was not sure whether the target was his first wife or a subsequent partner.

1. In 1995 he was convicted of common assault on a partner; in 1997 for offensive language arising from yelling abuse at a female in a street.  He did not recall the latter conviction but did not deny it.  In 1998 he had a number of heated arguments with his then partner, Ms K, and police attended their home on a number of occasions.  He agreed it was correct that he "applied force to her neck", and that she was treated by ambulance staff, and that she did not press charges against him. 

1. The father also agreed that in 1998, amongst other abuse, he threatened to kill Ms K; he said he would kill her if she was with anyone, called her a sleazy slut, and rang back a number of times after having made these threats.  At that time Ms K obtained an AVO.  The following year, in 1999, he was convicted of a breach of the AVO and common assault. In the course of the events which gave rise to the charges, Ms K was dragged by the father from a property, bleeding from the head as a result of injuries she had sustained at his hands.  He agreed that he told police, "she wouldn't leave, so I had every right to belt her to protect my property."  It was after that that he undertook a violent offenders program.

1. In 2000, police spoke with the father about his son, S, then about thirteen and staying with his father.  The father's evidence was that S had lit a cracker.  The father was upset with him about that and because he had been told that S and another child had taken a wheelchair from a disabled child or adult for a couple of hours.  He agreed that he grabbed S by the T-shirt and pushed him onto a brick wall.  Whilst he denied punching or slapping S, tendered documents suggest that was the account given at the time.  On the father’s own account, he was very angry.  He grabbed the boy's T-shirt (demonstrating by entwining his hand into it); he agreed that his hold obviously put pressure on S’s neck.  His daughter, M, was present when this occurred and he agreed she was upset.  The father was charged and convicted of common assault.  Later that year he met the mother. There was then a brief hiatus in police involvement, until 2004.

1. The court must find that although the father was frank when cross-examined about this sustained history of violence, he was not so frank when he spoke with Ms D. I am satisfied he gave a misleading account of the history, in terms of quantity and quality.  Her evidence - and I am satisfied Ms D bent over backwards to be fair to the father - was that he was blasé about it. 

1. Ms D could not have made clearer in her report the need for his anger problem to be addressed if the father were going to spend time with his son.  On the morning of this hearing - many, many months after that report – the father contacted Relationships Australia.  When he gave evidence he said he was waiting on a phone call back from them.  His inquiries suggested potential for him to undertake targeted one-on-one counselling. The cost (a minimum of $35 and a maximum of $135 a session) is not inconsiderable for someone in his position.  I accept the father’s evidence that he did make earlier enquiries about anger management with a men’s centre in Canberra, but was advised only group sessions would be available.

1. The mother's evidence was that T still sometimes has nightmares, although they are decreasing; they recur now only once or twice a month.  The father did agree that his conduct "early in the piece" might have contributed to this aspect of T's presentation.   The mother did not say anything about a history of nightmares when with Mr M. The history given to him, set out in his report, was that T sleeps restfully and reliably from about 8.30 in the evening to 7.30 in the morning on most nights, and his sleep was not characterised by nightmares.  That was on 11 May 2007.  It was put that the court should be sceptical of the mother's evidence that T still has a nightmare every now and then but I do not draw that inference.  If a child has had a significant history of nightmares, a nightmare once or twice a month is a significant improvement.

2. The evidence is that T is not yet toilet trained.  He is dry during the day but still needs pull-ups at night.  This is outside normal expectation, as he is five. Ms D’s evidence was that problems with toilet training can be referable to the trauma of being exposed to violence. 

1. The mother's position, as found earlier, is that there is no value in any contact between the child and his father.  The only response she has been able to give, when asked by T where his father is, is that he has gone away. To date, T has been reasonably content with that.  She said she would not be able to suggest to T that his father cared for him.  Indeed, at one point in the evidence, she said she really could not agree that the father loved him. 

1. The mother has passed on cards and presents from the father to T without comment, saying, "these are from [the father]."  It appears that the child has always referred to his father as […], not dad.

1. Ms D set out succinctly the reasons why it is valuable for children to have relationships with both parents, to know both parents and to be provided with an opportunity to know both parents.  It would be useful for T’s long-term emotional wellbeing; it could have benefits for his self-esteem; it is important in establishing and maintaining a strong sense of identity, which can itself be relevant to building a resilient young adult. Ms D made clear the necessity for any interaction which provided an opportunity to achieve those aims to be safe.  It was her opinion that in a safe, time-limited space, which was professionally supervised, the father was likely to behave appropriately and that contact was likely to be useful for T for those reasons.

1. Ms D’s evidence was that the minimum contact necessary to maintain a sense of the paternal relationship would be four to six times per year.  Fewer than four visits a year would be problematic, although T might be able to maintain his sense of his father with less contact in the future.  Ms D did not see such contact as a “major disruption”.  I took her to refer by that to travel associated with any contact.  She did say that each occasion of contact could impact on T emotionally and behaviourally.  She thought it unlikely the father would snap during supervised contact, but in saying that she relied on his motivation.  She could not recommend more than four to six periods a year.

1. In her report Ms D questioned the value of telephone communication between father and child.  T’s language skills are somewhat limited and the impact of such contact on the mother’s household would potentially delay the mother’s recovery from her past experiences and impact on her capacity to provide the nurturing, safe environment T requires.  Having read that opinion, I have significant concerns about the potential adverse impact on the mother’s functioning were she required to take T to a contact service in W each second month.

1. Ms D gave some evidence about the cocooning environment in which the mother was operating with her children.  She is clearly a dedicated mother doing her best to provide an environment in which B and T can recover from their traumatic experiences. Whilst the court cannot make an absolute finding, I find it more probable than not that T’s nightmares and problems with toileting and, indeed, his wish to be close to his mother (which has resulted in her sleeping with him) are linked to his exposure to the father’s violence and its continuing effects on him.

1. The mother has been reluctant to accept professional help.  I appreciate judicial admonitions are rarely of use but I would hope that, having heard Ms D’s evidence, she might reconsider. There is no shame in obtaining professional assistance to help oneself, and one’s children, accommodate life experiences. The evidence of Mr M is that T may have greater than normal adjustment problems when he starts kindergarten or school and professional intervention may be helpful.

1. Ms D spoke of the problems children have if they do not spend any time at all with a parent.  They tend to fantasise about the absent parent, who becomes either angelic or demonic.  At adolescence, they often search for that person and can place themselves in high-risk situations.  She spoke of the potential for T to see his father, eventually, as a man with an anger management problem but also as a human being.  The alternative may be that T will always perceive his father through his mother’s fears.

1. There was one aspect of Ms D's evidence with which I must cavil. That was her evidence, in response to a question from counsel for the mother, that there were no circumstances in which she would ever suggest that a child should not have contact with a father if the child’s physical safety could be assured.  This and other courts deal with cases in which children have been the target of attempted murder or sexual assault by a parent, or have suffered shocking physical injuries or irremediable psychological difficulties as a result of exposure to violence. That they should see the perpetrator so long as their immediate physical safety can be assured is not a proposition that I am prepared to be seen to adopt.  To be fair to Ms D, those sorts of scenarios were never put to her; in those circumstances, she may well take a different view.

1. Although supporting some supervised contact, Ms D did speak of a number of potential problems.  There is a real issue about the father's motivation to change.  I understand he was in prison and have some (albeit no doubt inadequate) understanding of the effect prison can have on people's self‑esteem and on their lives after release.  Similarly, the court must acknowledge the effects of living in poverty. However Ms D saw no indication the father was motivated to change his own behaviour.  His phone call to Relationships Australia, made on the day the trial started, could have been made a lot earlier.  When asked if she thought the father was genuinely motivated by love for T in seeking time with him, Ms D paused and replied: “I certainly gained a sense that [T’s] father was motivated to spend time with him, obviously, because he applied to the court for that to occur.” That could not be said to be a ringing endorsement of loving motivation.

1. Second, there is the evidence of T's response to his father’s violence when he was living with the family. T moved from initial protests and distress to becoming withdrawn; he tried to retreat into a world of his own to escape from that aspect of his life.  It is probable he carries the scars.  The court should not lightly expose him to the potential to withdraw again.

1. Third, whilst the father was frank before me about his criminal history, he was not frank with Ms D and he was frank in this court in the context of answering direct, focused questions.  He said nothing to Ms D of a history of past violence towards female partners.  When that history was put to her, she said the father would need intrinsic motivation and long-term, sustained, therapeutic counselling, and she herself did not observe that intrinsic motivation.

1. Ms D also referred to the potential for the child having time with his father to impact adversely on the mother and on the mother's parenting of T. Contact could also impact adversely on B.  As I understand, B has been outside the courtroom, throughout the trial.  It is not at all uncommon, in cases such as this, to hear of teenage boys who have lived with their mother through a period of sustained violence, to feel responsible for their mother and want to play a protective role.  Nevertheless, it is her job to parent him, not his job to parent her.  Having said that, B is doing well in overcoming problems arising from his own exposure to the father’s violence. His probable response to his little brother having contact with the father is something to which the court must also have regard, because it must consider the whole context in which a child lives.

1. I turn to the additional considerations which can be dealt with relatively briefly in this case. T is too young for his views to be determinative.  I am satisfied the mother told the truth when she told Ms D that T was very adversely affected by the violence, that he has had nightmares and has taken a long time “to come out of his shell”.  He is still, according to Ms D, a very gentle child, small in frame and with a fragile air. 

1. Mr M did not form the impression T had a serious fear of his father but he was sufficiently concerned about the child's adjustment and development to recommend strongly that a school counsellor give him a formal assessment, both for emotional adjustments and for learning abilities, in the second or third term of 2008.  T still sleeps with his mother.  He does need to move on from that, but it is indicative of his emotional state.  The mother said that she would like him to be able to sleep alone; some professional help might assist with ways to achieve that.

1. The interaction between the mother and her children was positive and responsive.  T was very involved in that interaction.  The mother’s relationship with T is happy, affectionate and appropriate.  I accept her evidence that T adores the new baby. 

1. T was seen with his father for about 35 minutes in April 2006.  He had not seen him since January 2005.  The evidence of Ms D was that T was very compliant.  Almost all interaction and conversation was initiated by the father.  The father responded sensitively and appropriately but it was only towards the end of the period, in the last five minutes, that T became a little more proactive.  It transpired that T asked his father for assistance to get a toy that was too high in the toy cupboard.  Asked by me whether T ‘warmed up’. Ms D replied that she could not say that. Ms D's evidence was she believed T knew he was seeing his father. 

1. Ms D's evidence was that it is not unusual for children who have been exposed to domestic violence to be very compliant with a perpetrator; she said T's compliance could have been referable to that.  As with the nightmares, the toilet training and the desire to sleep with his mother, this is another potential indication of behavioural responses referable to T’s exposure to his father’s violence.

1. The father lived with B for about a year.  B told Ms D that he loathed the father.  He was exposed to arguments; the father agreed that, once or twice when B was in bed, he came out, trying to intervene between the father and the mother.  He would tell the father to stop yelling.  He would tell both the father and his mother to go to bed.  The father agreed that, once, he backhanded him.  He also agreed, in retrospect, that B was frightened of him but said that was not of moment to him at the time.  It is probable B is very protective of his mother.  It is probable B is very protective of T.  B confirmed how much better life was now with his mother than it had been in the past.

1. A number of the additional considerations relate to parental capacity and attitude.  While the mother's clear desire to act as if T does not have a father is neither commendable nor practicable, it is explicable.  B, when he spoke to Ms D, expressed quite graphically how he and his mother were frightened of the father.  He said now there was more love in the home, a very sensitive remark for a 15-year-old boy to make. He confirmed the routine of which his mother spoke to Ms D. He described it as one of early nights, of an increased feeling of security, of not being left alone at home. He confirmed that his mother does not drink to excess.  It is clear that B's presence in the home did nothing to modify the father's abuse of the mother. Nor did T's presence.  It is not surprising the mother has no interest in holding out an olive branch to the father.

1. The father brought a present for T to court.  There was some inherent criticism of him for it during cross-examination but no reference was made to it in final submissions.  By all accounts it is a tool set, designed for a child, albeit with real tools, not plastic ones.  No doubt it, like many other presents given to children, needs to be put into use with some parental supervision, and a judgment made as to when T is ready for it. The same could be said for a child's book. I certainly do not take the present as indicative of aggression by the father and will in due course order that it be given to T.

1. The father did, albeit not swiftly or in any detail, acknowledge that his violent conduct towards the mother had the capacity to impact adversely on his son.  To that extent, he was contrite.  I must find that he demonstrated no sense of contrition about his conduct towards the mother.  Any contrition, as I said, has not been matched by action.

2. The court must consider the likely effect of any change in arrangements. I have referred to the potential for adverse effects on the mother, on B and on T (and even on little M) if orders are made contrary to the mother's conviction that any contact between the father and T is likely to be detrimental.  B and the mother will remain negative about the father; there is little point in assuming otherwise. Their views of him could be confusing for T; as Ms D said, a disjunction between their views and T’s experience has the potential to undermine the benefits of any contact.  I am satisfied that, given the traumatic experiences to which the mother has been exposed, there is a real prospect that taking T to a contact centre will impact adversely on her, and on her capacity to provide solid, stable care for T, B and M.

1. I take account of the fact there are ongoing proceedings in the Local Court.  That has no doubt done little to ameliorate the tensions between the parties.  I have been told through counsel that those proceedings are likely to conclude this year. 

1. The father has sent cards to T since 2005 and none has contained any inappropriate language.  Asked if she thought T should have any knowledge of his father, the mother said she would not object to him receiving cards or gifts. 

1. The court must consider the objects and principles which provide the foundation for the legislative provisions relating to children.  Children have a right to know both their parents and to have input into their lives from both their parents, as long as that is in their best interests.  The mother is recovering from traumatic experiences at the hands of the father.  She has a high level of fear.  The father has a range of difficulties in functioning.  Ms D questioned the value of any phone contact and none has been proposed before me.  In my view it is very important that T’s mother's functioning, and her capacity to parent and nurture him in a safe environment, is not compromised. 

1. I am mindful of the risks to a boy of not knowing his father and aware of the ramifications that can result from such a failure to know a father.  I am also aware that safe, time-limited, professionally supervised contact is potentially available in both L and W.  Nevertheless, I am satisfied in this case that T’s best interests demand that there be no orders for ongoing contact even (as sought) of a supervised nature.  Orders will provide for the father to communicate by gifts or cards at Christmas, on T’s birthday and on two other occasions in each year.  That may provide a window of opportunity for a meaningful relationship when T is much older, more physically and psychologically robust, and better able to look after himself.

I certify that the preceding
74  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown.

Dated the 18th day of June 2007.

……………… …………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CASSAR & MCMANUS