CHURCHILL & WILEMAN (No.2)
[2016] FCCA 107
•9 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHURCHILL & WILEMAN (No.2) | [2016] FCCA 107 |
| Catchwords: FAMILY LAW – Where the mother alleges that during the parties’ short relationship the father perpetrated serious, chronic and on occasion terrifying family violence – where the father has been convicted of some offences committed against the mother and has made some limited admissions about perpetrating violence but denies most of the mother’s allegations, minimises what occurred on the occasions which led to his convictions and claims that the mother’s emotional abuse of him caused him to snap – where the court is satisfied that the father perpetrated extensive and severe family violence during the relationship as alleged by the mother - where there is compelling evidence that the father was also violent to a previous domestic partner. FAMILY LAW – Where the child is displaying autistic-like symptoms – where the child’s paediatrician believes that the child has suffered Developmental Trauma as a result of exposure to family violence – issues of whether the child is likely to be re-traumatised if he sees the father, the impact on the mother of making an order for time and the implications of the father minimising or denying his responsibility for violence considered. FAMILY LAW – Whether an order should be made requiring the mother to facilitate some time and communication between the child and the paternal grandparents - where the paternal grandparents support the father and accept his version of events. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA |
| Cases cited: Churchill & Wileman [2014] FCCA 1047 |
| Applicant: | MR CHURCHILL |
| Respondent: | MS WILEMAN |
| File Number: | NCC 2771 of 2013 |
| Judgment of: | Judge Terry |
| Hearing dates: | 13, 14, 15, 16, 17 July 2015 |
| Date of Last Submission: | 17 July 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 9 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Davies |
| Solicitors for the Applicant: | Rice More & Gibson |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Bridge Street Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms McMahon |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
The mother shall have sole parental responsibility for the child X born (omitted) 2011.
The child shall live with the mother.
The child shall spend no time with and have no communication with the father.
NOTATION:
It is the intention of the mother to relocate to the (omitted) area for the purpose of enrolling X with the Berry Street Clinic in (omitted) and the ASPECT Autism Australia School.
IT IS NOTED that publication of this judgment under the pseudonym Churchill & Wileman (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2771 of 2013
| MR CHURCHILL |
Applicant
And
| MS WILEMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
X, 4, lives with his mother. He has hardly seen his father since his parents separated in August 2012 when he was 8 months old.
The dispute between the parents is whether orders should be made providing for X to be re-introduced to the father and the issue in the case is family violence.
The father acknowledged that he had committed some acts of family violence at the end of the relationship but said that he was remorseful and that it should not mean that he was forever excised from X’s life.
The mother said that the father perpetrated serious coercive and controlling family violence over a prolonged period and had made very limited admissions about it and was not remorseful at all, rather he blamed her for making him lose his cool.
It was the mother’s case that X would not be safe with the father, that she struggled to cope with the idea of X spending time with the father and that the father was not an appropriate role model for X.
It was also her case that X had suffered Developmental Trauma as a result of exposure to violence and would be re-traumatized if re-introduced to the father. She said that she hoped to relocate to the (omitted) area so that X could attend the Berry Street Clinic in (omitted) which specialises in assisting children who have suffered Developmental Trauma.
The mother sought an order for sole parental responsibility and an order that X spend no time with and have no communication with the father.
The orders the father sought changed markedly during the hearing.
When the hearing commenced the father was seeking an order for equal shared parental responsibility and an order that after a short period of supervised time X spend time with him unsupervised on alternate weekends and during school holidays. He opposed the mother relocating and confirmed during cross-examination that his goal was to have week about shared care once X commenced school.
Mid-way through the hearing however the father consented to an order that the mother have sole parental responsibility and ceased to oppose the relocation and at the end of the hearing the orders he sought were:
a)That he undergo twelve months of therapy with a psychologist targeted at anger management, family violence and alcohol abuse.
b)That he attend two Autism Spectrum Australia Early Day workshops.
c)That once he did those things and subject to anything X’s paediatrician might say to the contrary, X spend supervised time with him once each three months at a contact centre close to the mother’s residence.
d)That he be at liberty to send photographs of himself and his family and Christmas and birthday cards to an email address to be provided by the mother and that the mother be required to provide those emails to X.
e)That the mother set up a Skype account so that X could talk to him not more than 4 times a year.
f)That the mother send him a recent photograph of X and any recent reports relating to his treatment three times a year.
Notwithstanding the father’s change of position as far as the orders he sought was concerned, he did not change his stance about the extent to which he had committed acts of family violence or about his level of responsibility for the violence and the factual disputes I need to determine in order to resolve the matter remained the same at the end of the hearing as they were at the beginning, namely:
a)Whether the father subjected the mother to frequent, serious and on occasion terrifying violence for much of their relationship as she alleged, or whether the violence occurred on only three occasions at the end of the relationship and then only to the extent the father admitted during the hearing.
b)Whether the father had been violent in other relationships and had a serious anger management problem or whether violence had erupted only in the context of this particular relationship when a generally peaceful man was pushed too far.
It was the father’s case, and his family supported him in this, that the violence to which he admitted occurred because he was emotionally and psychologically abused by the mother throughout their relationship and finally snapped and behaved in a way which was completely out of character. He denied that he had been violent to a previous domestic partner, Ms S and said that her allegations were fabricated.
The mother categorically rejected the suggestion that she was responsible for the father’s behavior and said that he was also violent to Ms S and similarly blamed Ms S for his behaviour.
c)Whether the father had an alcohol problem.
The mother said that the father frequently drank heavily and became intoxicated and that he was sometimes intoxicated during violent episodes, although some violent episodes occurred when he was sober. Ms S also described the father becoming very intoxicated on occasions although she also alleged that he was violent when sober.
The father gave confusing evidence on this topic. During cross-examination he acceded to a suggestion by Counsel for the Independent Children’s that he did have a drinking problem during his relationship with the mother but said that he drank to self-medicate and that now the relationship was over he drank moderately.
d)The extent to which X was exposed to family violence and whether his behavioural problems were due to him suffering from Autism Spectrum Disorder (ASD) or were the result of him having suffered Developmental Trauma.
During final submissions Counsel for the Independent Children’s Lawyer said that the Independent Children’s Lawyer accepted the evidence of the mother and Ms S about the violence and supported the mother’s proposal that X spend no time with and have no communication with the father.
However she proposed that the paternal grandparents Ms L & Mr M be joined as parties and that an order be made that X spend supervised time with them on four occasions each year provided that they first attended an education session or course with X’s treating medical team.
The father supported this proposal; the mother opposed it.
The evidence
The father relied on his affidavit filed on 23 June 2015, the affidavits of his parents Ms L and Mr M, his brother Mr B, his partner Ms K and X’s former nanny Ms J filed on 19 June 2015 and the affidavit of Ms H, a friend from his home town, filed on 9 June 2015.
The mother relied on her affidavit filed on 25 June 2015 and the affidavits of Ms S filed on 10 June 2015, Dr V, a paediatrician, filed on 23 June 2015, Ms E, a psychologist, filed on 10 July 2015 and Ms J, a psychologist filed on 22 June 2015.
An expert’s report was prepared by Dr A, a Clinical Psychologist.
All of these witnesses were cross-examined.
Background
The mother and father met on the internet and commenced a relationship in (omitted) 2010.
The father was 32 and was working as a self-employed (occupation omitted). His relationship with Ms S, with whom he had been living in (omitted), had ended about a month previously.
The mother was 33 and was working as a self-employed (occupation omitted) and living on a property at (omitted) near (omitted).
The father said that he moved into the mother’s home in (omitted) 2010. The mother said that he came and went at first but by (omitted) 2010 was living full time at the property. Nothing turns on which version of events is correct.
The father grew up in (omitted) and his parents Ms L & Mr M still live there. The mother and father visited the father’s parents in (omitted) at Christmas 2010 and the father’s parents visited (omitted) at Easter 2011.
In or about (omitted) 2011 the mother discovered that she was pregnant and the parties’ child X was born on (omitted) 2011. Neither party had any other children at that time.
Not long after X’s birth the parties engaged Ms J to be X’s nanny so that the mother could continue working. Ms J cared for X a number of days each week and not surprisingly formed a strong bond with him.
It was the mother’s case that the father began verbally abusing her and losing his temper early in their relationship and that physical violence, damage to property and threatening behaviour began to occur from early on and continued, escalating in severity, until just after separation on 2 September 2012. It was her case that toward the end of the relationship she began to fear for her life.
The father pleaded guilty to assaulting the mother on 16 July 2012 and to assaulting her occasioning actual bodily harm on 25 August 2012 and he also pleaded guilty to breaching an Apprehended Domestic Violence Order and stalking and intimidating the mother on 2 September 2012. However it was his case that he had done very little to the mother on these occasions and then under circumstances of provocation. He vehemently denied that he had damaged property or extensively assaulted, abused or threatened the mother during the relationship and alleged that he was sometimes the victim of violence at her hands.
The parties separated after the assault on 25 August 2012 but the father remained on (omitted) with the mother’s permission until he committed further offences and was arrested on 2 September 2012. He thereafter commenced living in (omitted).
The mother and X remained at (omitted) and Ms J continued to be X’s nanny.
Between September and December 2012 the parties communicated extensively by text message and in October 2012 the mother agreed to the father spending a short period of time with X in a park with her present. The father said that it was for 2 hours, the mother said 20 minutes; I cannot determine where the truth lies and nothing turns on it.
On 12 December 2012 the father pleaded guilty to the charges referred to above. He was convicted and sentenced on the basis of the Facts Sheets handed to the Magistrate and the sentence imposed was that he be released upon entering into a two year good behaviour bond subject to conditions.
From time to time the father made requests to see X and during 2013 there was some communication between solicitors about whether supervised time should commence at (omitted) Children's Contact Centre but nothing came of it.
On 5 November 2013 the father filed an application for parenting orders. He sought final and interim orders that X spend time with him at a contact centre for a month and then spend unsupervised time with him in increasing amounts culminating in week about equal time once X turned five.
The mother filed a response seeking both final and interim orders that the father spend no time with and have no communication with X.
The interim applications were heard by me in (omitted) on 10 April 2014. I made an order that pending further order the father spend no time with and have no communication with X.[1]
[1] Churchill & Wileman [2014] FCCA 1047
When the interim hearing was conducted the mother, and the court, believed that X had not seen the father since separation apart from the brief visit in the park in October 2012. This turned out not to be the case.
The father had formed a new relationship in (omitted) 2013 and in early 2014 his new partner Ms K became acquainted with Ms J. I cannot be sure exactly how this came about because the father was not a witness of credit and I cannot rely on his evidence about it and Ms K prevaricated a little when asked questions about it in cross-examination. However I consider it probable that the father and Ms K instigated the contact.
On 25 March 2014, Ms J agreed with Ms K that she would allow the father to see X the following day at a playgroup she and X regularly attended. The father, Ms K and Ms J agreed that they would not refer to the father as “Dad” or “Mr Churchill” during this interaction.
On 26 March 2014, the father and Ms K met Ms J at the playgroup. Ms J left X strapped in his car seat and the father interacted with him from outside the car for about 30 minutes.
Ms J agreed that she was aware when she made these arrangements that the mother was opposed to the father seeing X and that she went behind the mother’s back in organising this meeting.
The father made no further attempt to see X after the orders were made on 10 March 2014 but that did not stop Ms K. On at least one occasion she went to Ms J’s home when X was with her overnight and interacted with X and took a photo of him which she gave to the father.
In or about July 2014, Ms J was asked by the father’s solicitors to provide an affidavit and on 25 July 2014 she took X to the father’s solicitor’s office and signed an affidavit. Later that day she told the mother that she had sworn an affidavit for X’s lawyer (the Independent Children’s Lawyer).
The following day the mother discovered that Ms J had sworn an affidavit for the father’s lawyers and she terminated Ms J’s employment.
The mother said that X became confused and clingy after Ms J’s services were terminated and this is entirely credible. Ms J had been a significant figure in X’s life since he was a few months old and to have her abruptly disappear when he was about 2 ½ would inevitably have been very difficult for him.
Ms J made no mention of the March 2014 meeting in her affidavit filed on 25 July 2014. However during the interviews for the expert report which took place in August 2014 the father revealed that the meeting had occurred and Dr A told the mother about it in a telephone call on 9 September 2014.
Dr A’s report was released to the parties on 18 December 2014 but it did not result in any settlement of the matter and it was listed for a final hearing commencing on 13 July 2015.
When the hearing commenced the father was living in (omitted) with Ms K, her children A, 14, B, 11 and C, 8 and their newborn son D. He was continuing to work as an (occupation omitted).
The mother was living at (omitted) with X and was continuing to work as an (occupation omitted).
The mother’s evidence about family violence
It was the mother’s case that:
a)The father had an unpredictable and explosive temper and was violent, threatening and verbally abusive to her for much of their relationship.
b)The Facts Sheets handed up when the father pleaded guilty to the criminal charges did not properly reflect what actually happened on 16 July 2012 and 25 August 2012.
c)The incident on 1/2 September was prolonged and extremely frightening. It included the father breaking into and prowling around her house and culminated in her fleeing the house with X and hiding behind a tree waiting for the police to arrive.
The mother told Dr A that for a long time she did not think the father would kill her but that as time went by and his threats and behaviour became more extreme she began to fear for her life. She said that she also had fears for X’s life as the father had threatened to take him.[2]
[2] Dr A’s report paragraph 64
The mother said that she began to experience the father’s unpredictable temper shortly after the relationship commenced. She described an incident in August 2010 when the father became angry when they were in bed at night and yelled and thumped the side of the bed.
She said that she began to find that the father could snap and go from 0 to 100 instantly and said that the father would lose his temper and behave in a verbally and later physically aggressive fashion about once a week.
The mother said that the father would grab her by the arms with force and push her or shake her while yelling such things as “you’re a fucking bitch” or “you’re a fucking stupid idiot”. She said that he would also grab her by the hair and pull her backwards if she walked away saying “don’t you fucking walk away” or “get back here I’m not finished with you yet”.
It was the mother’s case that the father drank heavily and that sometimes the violence and abuse occurred when he was drunk but that it also occurred when he was sober.
The mother said that there were too many incidents of abuse and violence for her to remember them all and sometimes one seemed to blur into another but she gave evidence of some specific incidents. I consider it likely that she has been able to fix the dates because of the extensive text message exchanges which took place between the parties during the relationship.
The mother said that on 6 February 2011 the father had been drinking and the parties argued and the father yelled and screamed in her face. She said that he apologised the following day and she told him that she could cope with arguments but not temper and aggression. She said that the father admitted that he had issues and she told him that his temper would lead to violence.
On 27 March 2011 the parties argued when the mother wanted to go on a planned trip and the father said that he did not feel like going. The mother said that she got into her car and the father yelled abuse and screamed at her from outside the car. She said that the father threw a punch at her with his right hand but she ducked and his fist hit the door and window on the driver’s side of the car.
In May 2011 the mother discovered that she was pregnant with X.
The mother said that in June 2011 the parties went to an event associated with her work as an (occupation omitted). She said that the father was drinking during the day and that at about 10.00pm the parties got into the car to drive home. The mother said that the father became very abusive about the baby and moved his arm and clenched his fist. She said that he swung his fist at her stomach but she moved and his fist hit the seat. The mother said that when they arrived home she apologised to the father for upsetting him.
On 25 September 2011 the parties were attempting to put a flat-pack cot together. The mother said that the father became frustrated and upset and yelled abuse and threw a screw driver at her. She said that the father pushed the cot at her causing her to fall and stormed out of the room.
The mother said that the father drank during that day. In the evening she went to bed but before doing so she unplugged the phone charger to which her phone was connected in the kitchen and took it into the bedroom and plugged it in next to her bed.
The mother said that a few hours later the father came into the bedroom yelling abuse at her for charging her phone and not bothering to charge his. She said that he yanked the phone charger out of the wall and wrapped the charger cord around her and while continuing to yell at her he used the cord to pull her to the edge of the bed. When the mother was standing the father kicked her feet from under her and she fell.
The father wrapped the cord around her ankle and dragged her from the bedroom to the kitchen. The mother said that he then went outside and spent the night sleeping in his truck. The mother took a photo of her injuries on that occasion.
The mother said that the next morning she told the father not to come back unless he had booked an appointment with a doctor and a counsellor to deal with anger management and that the father said “I want to go and get myself fixed up”.
On 3 October 2011 the father was sitting on the lounge with his laptop and the mother asked him to help with some mowing. She said that the father had already started drinking and did not agree to help and continued using his laptop.
Later that day the mother attempted to finish the mowing but became quite physically distressed as she was then 7 months pregnant. She said that when she complained to the father about his refusal to help her he verbally abused her and then kicked her feet forcing her along the hallway. She said that he also pushed her in the back. The mother said that she got in the car but the father pulled the keys out of the ignition.
The mother said that she had a shower and rang her friend Ms R and Ms R came around and took the mother to hospital for a check-up.
The mother said that when she returned home at 9.00pm the father had locked the house but let her in after she threatened to call the police if he didn’t. The mother said that after she gained admittance to the house she went into her bedroom and sat with her back to the door and the father spent a little while trying to push his way in.
On 14 October 2011 the next door neighbours invited the mother and father over for dinner and drinks. The mother declined the invitation but the father went.
While the father was next door the mother used a golf buggy to pull an item that needed shifting in the yard to the place where it needed to be. She went inside and went to bed leaving the golf buggy out in the open.
The mother said that she was awoken by the father yelling at her to get out of bed and put his tools away. He said that his tools were in the golf buggy and were getting wet because it had started raining.
When the mother did not immediately do as the father asked he started kicking her feet and then grabbed her by the ankles and dragged her down the end of the bed until her bottom hit the floor. He then pulled her off the floor and shoved her down the hallway. The mother said that she went outside and covered the tools and the father followed her back inside calling her a “fucking useless bitch”.
The mother said that after X’s birth on (omitted) 2011 there were numerous instances of family violence and she set out the following particular instances.
On 26 December 2011 the father had been drinking. X was in a bassinet in the kitchen and the mother was preparing dinner and asked the father to give X a bottle. She said that the father became angry and swore and screamed and shoved her.
She said that X started crying and was very distressed. She said that the father went outside and she locked the house to prevent him returning and he turned off the air conditioner. The temperature was about 40 degrees that day. Eventually after the mother pleaded with the father he turned the air conditioner back on.
In January 2012 the father’s brother, a (occupation omitted), came to (omitted) to assist the father with some work on the property. The mother said that on 21 January the father and his brother started drinking at about 1.00 pm and then went next door to the neighbour’s home.
The mother said that during the evening X was vomiting and she rang the father and asked him to come home to help her but the father refused to come home and he and his brother continued drinking next door until about 10.30 or 11.00 pm. The father agreed in his affidavit that the mother rang him and that he refused to come home; he told his brother that the mother was just trying it on and didn’t want him to relax for a moment.
The mother said that when it grew late she locked the house. The father and his brother arrived home and yelled at her to let them in and she called the next door neighbours asking them for assistance. One of the next door neighbours came over and persuaded the father and his brother to leave. The next day the father and his brother drove to (omitted). The parties were separated for about two weeks.
The mother alleged that on 5 February 2012 she was on the phone to her friend Ms R and was crying because the father had hurt her. She said that the father was angry about her ringing her friend and sent her text messages saying among other things “you got what you deserved tonight”.
She said that in early March 2012 the father came home very angry and after an argument with her threw his sunglasses on the ground and smashed them.
The mother said that on 23 March 2012 the parties were arguing and the father was yelling and yelled in her face inches from her. She said that X was in the lounge room and started to cry.
The mother said that the father called her a “fucking retard” and “spastic”, grabbed her by the upper arms and drove her backwards into the wall. She said that he pushed her and drew his arm back in a fist. She said that he was yelling that he was going to smash her head in as he pushed her against the wall while she begged him to let her go. She said that X was only metres away in the lounge room and was crying hysterically. Eventually the father let her go and walked into the spare room and slammed the door.
On 10 May 2012 the father rang the mother at about 4.00am saying that he had broken down at (omitted) and needed her to bring him a truck part. The mother put X in the car and drove to (omitted) with the part as the father requested. She said that when she arrived at (omitted) the father was extremely aggressive and when she said that she did not want to leave X parked in a particular spot he pushed her against the truck. She said that she helped him all day with the repairs to the truck but he was very angry when they got home and grabbed her by the wrists calling her a “fucking selfish bitch” and yelled and ranted for 15 minutes. He said that he was going to sleep in the truck and was not going on the holiday to (omitted) which was planned for the following day.
When the father left the house the mother locked the doors. The father continued yelling from outside and then disconnected the power to the house. Winter was approaching and the mother said that it was cold and dark in the house and she could not heat X’s bottles.
The mother said that she phoned her father and that the father eventually turned the power back on. She said that she had bruises on her wrists after this incident.
The mother said that the following day the father agreed to go on the holiday but while they were driving there he drove in a dangerous and frightening manner reaching speeds of up to 130 km per hour.
On 16 July 2012 the parties had been out and were driving home. X was in the back of the car. The mother said that during the drive the father was calling her a “fucking bitch” and a “fucking cunt”.
When they arrived home the mother and father got out of the car. The mother said that the father slammed his door so hard that X screamed out. She went to get X from the car but the father said “I’ll fucking get him out” and shoved the mother with the side of his body away from X’s door. The mother said that she reached in for X and when she did the father grabbed hold of her and put both hands around her throat yelling that she was a “fucking cunt” and she was going to get what for.
The mother said that she was forced backwards with the father’s hands around her throat and that he yelled that he was going to kill her and she deserved a good flogging.
The mother said that she fell and the father started to pace back and forth. However she got up and managed to get X from the vehicle and then locked herself and X in the house. The mother said that the father banged on the door on and off for the next few hours but eventually left.
The mother went to see her friend Ms R and told her what had happened and Ms R called the police. It does not appear however that there was any immediate intervention by the police.
On 6 August 2012 the mother drove the father to (omitted). X was in the car seat and the mother said that the father was verbally abusing her and when he got out of the car said to X “Good luck mate your mum’s such a fucking cunt” and slammed the car door very hard. She said that X screamed and cried all the way home.
The mother said that on 25 August 2012 she and the father and X went out and returned home at about 12.30 pm. She said that X urinated on the carpet and that she and the father had an argument about cleaning it up. The mother said that she got onto her hands and knees to clean up the urine. X was in his cot. She said that the father threw the can at her and came at her with force with his arms, knocking her from a kneeling position onto her back. She said that the father said “I’m going to teach you a lesson”.
She said that the father grabbed her by one arm and her foot and dragged her from X’s bedroom and flung her across the floor and she hit the skirting board. She said that X was watching from his cot.
She said that the father dragged her all the way down the hallway and threatened to lock her in her room. She said that he grabbed her feet and drove her knees into her chest and then started to reach for her neck with his hands.
She said that the father had her neck and collarbone and was rocking her and banging her head onto the floor repeatedly saying “I’m going to put you in a wooden box six feet under”. The mother said that X was screaming.
The mother said that she started kicking and pushing saying “please don’t hit me” and eventually was able to get up. She headed for the bathroom but the father caught her and reached for her neck. She said that she knocked his arm away. The mother said that she grabbed her phone and ran outside and called the police.
The mother had previously packed an emergency bag and placed it in the laundry and after she called the police she snuck back inside, grabbed the bag and X and left. She said that by this time the father was sitting on the recliner with a beer.
The police came to the house and after taking a statement from the mother made a provisional Apprehended Domestic Violence Order for her protection. The order prohibited the father from assaulting, harassing, threatening, stalking or intimidating the mother but it did not prevent the parties coming into contact and the mother told the father that he could sleep in the office at (omitted) until he got his own place.
On 1 September 2012 the mother went out with X at about 4.00pm to do shopping and returned home at about 6.00 pm. Later she and X went to bed.
The mother said that at about 10.20 pm she heard the rear door of the house opening and heard footsteps approaching her bedroom. She said that she went out and the father told her that he knew he shouldn’t be there but he wanted to talk. She said that he was intoxicated and she was frightened but she managed to get him out of the house and locked the doors.
The mother said that she could hear the father ranting and raving in the office and heard the sound of things smashing and hitting walls. She said that she was very frightened and phoned her father.
The mother said that she heard the father open the back door of the (omitted) motor vehicle and at this stage she called the police. She said that the father got into the (vehicle omitted) and drove away from the house and then back at the house on two occasions and she could hear him screaming and yelling. She said he kept driving at the house and swerving at the last minute and did laps, driving at the house at speed and swerving at the last minute.
The mother said that the father then got out of the (vehicle omitted) and got into her Holden Captiva and drove her vehicle at speed at a mound of dirt on the property. The father then got out of this vehicle and walked to the rear of the house.
The mother said that she was absolutely terrified and went into X’s bedroom and got X from his cot. She said that the father broke into the rumpus room while she was in X’s bedroom and rattled X’s window and that X was wide awake during the whole incident. The mother said “I have never felt so frightened in my life. I was rigid with fear”.
The mother said that the father tried to get in the front door of the house and she texted a friend to get her to call the police. The police had still not arrived after the mother’s earlier call.
The mother said that eventually she sneaked through the house with X and got outside. She ran down the drive with X in her arms and hid behind a tree some distance from the house. She said that she heard the Holden Captiva motor vehicle start up again and saw the father driving the car around the house shining the lights into each window. She said that she was sick with fear and fled further down the driveway.
The police eventually arrived and arrested the father and charged him with breaching the ADVO and Stalk Harass Intimidate. He was also charged with common assault in respect of the incident on 16 July 2012 and assault occasioning actual bodily harm in respect of the incident on 25 August 2012.
The father caused nearly $4,000.00 worth of damage to the Holden Captiva during this incident.
The mother said that in addition to subjecting her to physical violence the father also punched holes in walls beside her head, punched and kicked her car, punched his car, smashed items and threw tools at her.
Ms S’s evidence about family violence
The father met Ms S at the end of 2008, commenced a relationship with her in (omitted) 2009 and lived with her in (omitted) from August 2009 until June 2010.
Ms S said that the father drank a lot during the relationship and that she eventually ended the relationship because she could not cope with his explosive temper, violence and the way he belittled her.
Ms S gave evidence about some specific instances of violent behaviour by the father.
She said that the father would lose his temper at least once a week and call her a “bitch”, “selfish”, “useless” or “fat and lazy” and would also regularly throw things in temper.
She said that on an occasion when she and the father were putting together a flat-pack barbeque the father became angry and screamed “you fucking stupid bitch, you are doing it all wrong”, and threw a screw driver at her head and she ducked. She said that the father threw things in anger on other occasions and she particularly remembered him throwing and smashing a coffee mug.
Ms S said that on one occasion at home she was tickling the father and being affectionate and he hit her with force on her arm with a closed fist.
Ms S said that in early 2010 the father lost his temper and hit the bedroom door and punched a hole in it. She said that the hole was never fixed and was still in the door when she and the father separated. She provided a photograph of the door with the hole in it taken a short time after she had roughly patched it up.
Ms S gave detailed evidence of an incident which occurred in early 2010 in which the father pushed her hand into a container of boiling rice. She said that she asked him to help her with the meal preparation by getting the rice out of the microwave and checking it. The father got the rice from the microwave and put it in the sink but when Ms S went over to the sink he grabbed her hand and forced it into the container. She said she felt immediate pain and that the father only released her hand after she slapped him in the back to make him let go. She said that she told him “that’s it, get out” and that he took his keys, got in his motor vehicle and drove away. However she reconciled with him after this incident.
She said that the father would get very angry in bed at night and would yell and once punched her in the back when she rolled over and that as a result she took great care not to upset him while they were sharing a bed.
She said that on one occasion she took the father a cup of coffee in bed and as she turned to leave he punched her in the back with a closed fist.
Ms S said that when the father got angry and began to rage she found the safest thing to do was to walk away.
Ms S said that the father regularly drank very heavily to the point of intoxication and that sometimes when he became angry and abusive he was drunk but that there were also occasions of him losing his temper when he was sober.
She described an incident which occurred in the early part of 2010 when the father was sober. The father was working under a truck in a pit and Ms S jacked the truck up and was in the process of lowering the jack down when the father became very angry and yelled at her saying things like “How the fuck did you ever work on trucks, you can’t even lower a jack, you are fucking useless.”
Ms S said that the father then suggested that she should get down into the pit with him under the truck but she was frightened because of his anger and she refused. She said that she ended up saying “you fix it, I’m leaving” and drove off.
The father’s counsel cross-examined Ms S about this incident. He suggested to her that she had been letting the jack down [too] slowly. Ms S said that she was letting the jack down slowly for safety reasons. The father’s counsel then put to Ms S that she left but came back and he asked her:
Did you come back with some sandwiches? And did the father say “Are these poisoned?”
Ms S said that she did not remember this but the questions must have been asked on the instructions and are illuminating. The fact that the father asked Ms S if the sandwiches were poisoned lends credibility to Ms S’s account of the father having verbally abused her not long before.
Ms S said that over time she became frightened of the father but the father had a way of making her feel guilty and making her feel it was her fault that he got angry and lost his temper. The question the father’s counsel asked about whether Ms S was letting the jack down too slowly gives a colour of credibility to this evidence.
Ms S said that the father would demoralise her by saying things such as “no one else will ever love you”. She said that toward the end she felt useless, depressed, helpless, scared, intimidated and guilty.
Ms S said that she eventually enlisted the aid of her parents to help her leave the relationship and sent the father a text message saying that the relationship was over and that he could come to the house to collect his belongings if he wanted to do so.
She said that about a week later the father rang her and said that he was at her place and wanted to collect his belongings. Ms S said that she took time off work and went to (omitted) Police Station and asked the police to attend with her as she did not want to be at the property alone with the father. She said that the police agreed to accompany her and the father collected his items and left.
Ms S said that she did not tell her family during the relationship what was going on because she was embarrassed. She said that she still felt embarrassed and weak that she had let these things happen to her and had not ended the relationship sooner.
Ms S said that for a short period after the relationship ended she and the father kept in touch and were discussing trying to fix the relationship. She said that the father told her that he had stopped drinking and his moods were better. However about a month after their separation she discovered that the father had commenced his relationship with the mother.
The father’s position concerning the family violence allegations
The father said that his relationship with the mother was a generally unhappy one and was characterised by constant verbal arguments. He alleged that the mother constantly criticised him and repeatedly put him down suggesting that he was not a real man or a proper father.
The father admitted that he had committed some acts of family violence and he could hardly do otherwise given that he pleaded guilty to two counts of common assault arising out of the incident on 16 July 2012, two counts of assault occasioning actual bodily harm arising out of the incident on 25 August 2012 and two counts of stalk, intimidate, intend to cause fear and a charge of contravening an Apprehended Domestic Violence Order arising out of the incident on 1/2 September 2012 although I question whether he understands that his behaviour on 1/2 September even to the extent he admitted it constitutes family violence. However his admissions were very limited.
In his affidavit the father said as follows about the July and August incidents:
Whilst I acknowledge that my behaviour was wrong and in many ways immature and I regret my behaviour I have never agreed with the contents of the police facts in their entirety as they are somewhat exaggerated. I always maintained this to my lawyer and to my family and friends. This does not in any way lessen the seriousness of my actions or the regret and remorse I feel for any hurt that I have caused Ms Wileman.[3]
[3] Paragraph 113 of the father’s affidavit filed on 23 June 2015.
The father alleged that on 16 July 2012 he exited the vehicle on arriving home and walked to the rear of the vehicle to retrieve X. He said that the mother forcibly positioned herself between X and him and was very angry. He said that he did not want her to get X out of the car in the state she was in and that when she tried to push her way between him and the car he grabbed her by both arms by her shoulders and pushed her away once. He said that one of his hands was on her shoulder area near her collar bone. He said that the mother bit him on the hand almost breaking his skin and that he let her go throwing his hands in the air and walked away. He specifically denied placing his hands on the mother’s throat but in a subsequent paragraph admitted pushing the mother away from him “several meters.”
In relation to the 25 August 2012 incident the father said that the mother abused him and criticised his efforts to clean up the urine on the carpet and he became angry and said “you deserve to be in a wooden box”. He said that X was asleep in his cot and the mother was yelling at him in X’s room. He said that he did not want the mother to wake X and grabbed her by the arms and slowly dragged her about five meters out of X’s bedroom to her bedroom. He said that the mother was on her back with her legs on the ground. He said that after he dragged her to the bedroom the mother walked out and struck him several times in the face with a closed fist and that when he turned around and walked away she struck him in the back. He said that he went and sat on the lounge and about 15 minutes later the police arrived.
The father made minimal admissions in his affidavit about his conduct on 1/2 September. He admitted that he entered the house and walked into the mother’s bedroom. He said that he left when she asked him to and returned to the office. He denied that he threw things around in the office; rather he bumped into a laptop which fell onto the floor.
The father admitted that he drove the (vehicle omitted) around the paddock but said that he did it to let off steam and not to intimidate the mother. He admitted that he drove the Holden Captiva around the paddock but made no mention of hitting anything and insisted that in respect of each vehicle he drove them around the paddock for only about two minutes.
During cross-examination the father admitted that the Holden Captiva was damaged and that it cost close to $4,000.00 to repair the damage. He implied that it had somehow accidently hit something.
The father admitted that on one occasion when the mother locked him out of the house after an argument he turned the power off while the mother and X were in the house. He said that this was an immature reaction and he regretted it.
The father admitted that he asked the mother to put the golf buggy away but denied assaulting the mother and said that after he asked her to put the buggy away and she refused he put the buggy away himself. He admitted that there was an argument over the phone charger and said that he yanked it out of the mother’s hands while she tried to retain it but said that nothing more occurred. He maintained that all of the other allegations were fabrications.
It was the father’s case that the incidents in July, August and September 2012 were the result of him finally snapping after being subjected to emotional abuse and verbal abuse by the mother throughout the parties relationship. He said as follows in his affidavit:
During July, August and September 2012 our relationship deteriorated and our arguments became physical.
On a number of occasions I reacted poorly and was convicted of several criminal charges.[4]
[4] Paragraph 91 – 92 of the father’s affidavit filed on 23 June 2015.
Elsewhere in his affidavit he said as follows:
I kept bottling things up inside, as the relationship progressed I felt more hurt and more frustrated and unfortunately I lashed out, for which I am truly sorry.[5]
[5] Paragraph 52 of the father’s affidavit filed on 23 June 2015.
The father’s case that his behaviour in July August and September 2012 was out of character was supported by his current partner Ms K, his parents, his childhood friend Ms H and his brother Mr B.
The father alleged that the mother was violent to him during the relationship but he gave only three specific examples, namely that she bit him on the hand during the incident on 16 July 2012, hit him in the back during the incident on 25 August 2012 and on another occasion swung a shopping bag at him hitting his elbow. He said that in the interests of a future relationship between the parties he did not want to go into detail about other assaults.
The father denied that he was ever violent to Ms S and said that she had fabricated her allegations.
Findings about the family violence allegations
The father’s counsel did not challenge the mother during cross-examination about her evidence concerning all of the incidents which she alleged occurred but were not reported to the police or about her detailed evidence about the incidents which led to the father being charged.
I accept that I cannot infer from this that the father admits the allegations; the father joined issue with the mother in his affidavit about whether violence occurred on those other occasions and about what occurred in July, August and September. However for a number of reasons I do not accept the father’s denials or his version of events. I accept the mother’s evidence about what she suffered at the father’s hands.
First, the mother was a good witness. She gave very detailed evidence about the behaviour to which she was subjected and did not present in the witness box as someone who was histrionic or vindictive. The mother admitted that there were occasions when she was rude to the father, for example on 25 August 2012 when she made a comment about his failure to immediately clean up the urine in X’s room.
Dr A, an experienced clinical psychologist, spoke to the mother at length and found her account of violence convincing. She said as follows:
In sum, Ms Wileman described a history of severe and chronic family violence. She provided detailed examples that appear to be consistent with her being the victim of verbal, emotional and physical abuse. Her consistent, detailed and vivid accounts, combined with the police reports, criminal charges, AVO and breach of AVO, lend significant support to her claims. To my mind, Ms Wileman’s reluctance to cooperate with the police and place charges or take out AVO’s, also lend support to her description of ongoing family violence and suggests that she was not trying to be malicious or use the allegations as part of the family court proceedings. Rather, they likely illustrate her fear at the time and go towards her mental state at the time. Given that the police reports and legal action against Mr Churchill pre-date the Court proceedings, there seems considerable support for Ms Wileman’s claims of family violence. It must also be noted that Mr Churchill has acknowledged the violence, at least to some degree, through his agreement with the Police Facts. Further to this, Ms Wileman’s reported level of fear in the past and currently appears reasonable and further suggest that she has been significantly traumatised by her experience of family violence at the hands of Mr Churchill.[6]
[6] Paragraph 66 of the Expert Report.
Ms J, the mother’s psychologist, also expressed the view that the mother’s presentation when describing incidents of violence was consistent with what she was describing, and Ms J was a good witness. During cross-examination she carefully considered questions put to her and did not come across as someone determined to defend her opinions at all cost.
The father on the other hand was a very poor witness who had a tendency to make minimal and misleading admissions and who showed a marked tendency to minimise his responsibility for his actions.
One example was that even though 25 August 2012 Fact Sheet prepared for the father’s guilty plea stated that the father dragged the mother by the wrists for five metres, when the father talked to Dr A about the incident he said that he had “removed the mother from the room” and he told Ms K that this was what happened. Another example is that he did not make any reference in his affidavit to having caused nearly $4,000.00 worth of damage to the Holden Captiva.
Yet another example is that the Fact Sheet handed up when the father pleaded guilty in respect of the 16 July 2012 incident stated that the father’s hands ended up on the mother’s throat. However in his affidavit the father was at pains to emphasize that he did not touch the mother’s throat and that his hands may have been near her collar bone.
The Facts Sheet has numerous amendments and excisions and the words “the accused’s hands ended up on the victim’s throat” are handwritten onto the document. I do not accept that through inadvertence the father pleaded guilty to a charge of assault based on facts he did not agree with. The father was legally represented and if there is an inconsistency it is because the father is now seeking to minimise his culpability for what occurred.
Second, the mother behaved during the relationship in ways consistent with her claims that the father was verbally and physically abusive to her. A refrain throughout her evidence, and the truth of it was confirmed to an extent in the text messages exchanges between the parties in the two months after final separation, was that she repeatedly asked the father to get help with managing his anger, indeed the father agreed from time to time that he needed help and would get help. There was undisputed evidence that the mother contacted the paternal grandparents repeatedly and the maternal grandfather on more than one occasion complaining about the father’s violent and verbally abusive behaviour and asking for help.
Third, the father made some limited admissions in text messages sent during the relationship about his anger management problems. For example on 6 June 2012 he said:
It has got to the stage now that I have no other coping mechanism than anger and name calling.[7]
[7] Paragraph 253 of the mother’s affidavit sworn on 25 June 2015.
Fourth, the father’s post-separation behaviour toward the mother lends credibility to her claims.
The father attached to his trial affidavit copies of a large number of text message exchanges between himself and the mother between September and December 2012. On no occasion during these exchanges did the mother lose her temper or say anything intemperate to the father, but the father was simply unable to keep his cool. He was abusive to the mother even though he must have realised that there was a chance that these text messages would see the light of day in court proceedings.
One example was that on 4 December 2012 the parties had an exchange about the address to which an invitation to X’s birthday party had been sent. The mother said that she had sent it to (address omitted). The father responded:
Try (address omitted) moron. You found out that address off my bail forms to drop the tractor around you hideous human being. Good luck with everything.[8]
[8] Affidavit of father filed 23 June 2015 Annexure J-1
On 8 December 2012 after the parties had argued about property matters the father sent the following:
And go for your god damn life on the settlement. I’ve met every one of your demands. I’ve paid you out for the car, I’ve paid you every month for the (vehicle omitted), and I’ve paid for X since he’s been born. Not to mention I’ve payed you rent to have the privilege to live at YOUR property. As far as I’m I’m [sic] concerned, you can get fucked, and make sure you tell them that in court. I hate every bone in your body. Good luck to you, and make sure you turn on the tears on Wednesday. And don’t write back. You disgusting piece of shit.
Get out of my life filth
Mr D has stated many times that you are nothing more than a bully. So bring it.[9]
[9] Affidavit of the father filed 23 June 2015, Annexure J-3.
The father made some admissions about his temper in the text message exchanges although he inferred that it was the fault of the mother and Ms S that he behaved badly. On 25 November 2012 for example he said as follows:
I have a temper. I have had girlfriends in the past who realise that and know that nobody’s perfect. They would just back down and allow me to cool down. Both you and Ms S didn’t do that, and I’m not saying you and her are bad people for it, it’s just both your nature, just as its my nature to be hot headed.
My family and friends know it too, they have seen me go off at something I’m working on that is doing my head in, they just allow me to cool down.
The mother responded as follows:
U can’t blame Ms S and I. We never should’ve been subjected to violence.
(and after a further exchange)
Don’t u think it would be a better situation if you could take responsibility for ur own actions rather than making it dependent on how someone else can handle u abusing them verbally and physically?
The mother also said as follows on 25 November 2012:
Ur talking about difference of opinion and interests as all individuals have, especially as they are learning to blend there [sic] lives…… These aren’t excuses for abuse and violence though. I feel like ur trying to excuse ur actions . I’m sure many people go thru those things without the violence and abuse…. That is what I hoped for.[11]
[11] Affidavit of the father filed 23 June 2015, Annexure J-1.
The father‘s partner Ms K, his parents, his brother and his friend from (omitted), Ms H all gave evidence that the father was a peaceful, loving man. The purpose of this evidence was two-fold: first to cast doubt on whether the mother was telling the truth about the violence and second, to support the father’s claim that his behaviour during the relationship insofar as it resulted in him being convicted was out of character and by implication must be the mother’s fault.
None of these witnesses helped the father’s case.
Ms G has had limited contact with the father in his adult life and was nothing but a barracker for the father. His brother brushed off complaints the mother made to him about the father and her appeals for help, preferring to believe nothing bad of his brother.
It was apparent when Ms K was cross-examined that she had been given limited information by the father about the allegations against him and was strongly inclined to defend him. She said that the father had told her about what was in the Facts Sheets but she had not read them and she adopted his phraseology for example that he “removed the mother from the room” on 25 August 2012. She was adamant that she had never known the father to lose his temper.
There were signs that Ms K being keen to cover up for the father. Dr A asked her for example, about her knowledge of the father smacking her son C and she said it had only happened once. Dr A said that when she told Ms K that the father admitted smacking C more than once, Ms K looked shocked. In her trial affidavit and during cross-examination Ms K denied that she had looked shocked but I prefer Dr A’s evidence.
Despite my reservations about Ms K’s evidence, it is not open to me to find that there is any violence and abuse in her relationship with the father. However, Ms K’s evidence does not mean that the mother’s evidence about the abuse and violence is false.
The maternal grandmother received repeated calls from the mother asking for help but brushed them off as annoying and intended to malign her son. She was adamant in her affidavit that she had never seen the father lose his temper.
The evidence of the paternal grandfather was more nuanced. He said as follows:
I would describe Mr Churchill as a man who believes in doing everything that he is involved in, to the best of his ability. I have always found him to be diligent and hardworking and a very loving son. I do accept that there is some intolerance in his nature, when he is unable to achieve a task. This intolerance is expressed not with physical aggression but verbally. There have been occasions when Mr Churchill and I have been working together and he has become intolerant of either practices or tools that I have been using and he has walked away in frustration. However he has always returned within a few minutes apologised for his intolerance and we have carried on with the job in hand. I have never seen this intolerance expressed physically, rather he becomes annoyed with himself more than anyone. I was extremely shocked and saddened to learn of the violence perpetrated against Ms Wileman. This in my experience was extremely out of character for the person I know Mr Churchill to be.
This passage lends some credence to the mother’s claims.
Nothing in the evidence of these witnesses causes me to doubt the veracity of the mother’s evidence and some of their evidence (the paternal grandfather’s evidence and the evidence of the paternal grandmother and the father’s brother about the mother’s repeated calls for help) gives credence to the mother’s claims.
I do not accept the father’s denials about family violence. I am satisfied that:
a)He subjected the mother to verbal abuse and denigration for almost the entirety of their relationship.
b)He had temper outbursts which resulted in him throwing things at the mother, screaming at the mother and damaging property.
c)He physically assaulted the mother on all the occasions she described. On each occasion the assault was serious and the mother suffered injuries including bruising, grazing, swollen lips, strained shoulders and pain in her lower back and elbow and as time went by began to fear for her life.
d)After losing his temper he drove in a reckless manner at high speed which terrorised the mother.
e)He engaged in a campaign to terrorise the mother on1/2 September 2012 by entering her home, smashing things in the office and hooning on the property in two different motor vehicles. His behaviour resulted in the mother’s motor vehicle being damaged and the mother fleeing the home with X and hiding behind a tree waiting for the police to arrive.
f)He showed the same propensity during text messages he exchanged with the mother following the end of the relationship to lapse into verbal abuse whenever he felt frustrated or upset.
The father said that on one occasion during an incident with the mother she bit him and that on another occasion she hit him in the face. The mother denied hitting the father on the specific occasion he recounted but I am satisfied that insofar as the mother may have struck or bitten the father, she was not the aggressor and did so in self-defence.
There was no evidence that the mother subjected the father to emotional abuse as he claimed. She admitted that on 25 August 2012 she spoke rudely to him but as Dr A pointed out during cross-examination:
even if there was conflict violence would never be the solution; there is no excuse for violence
The father’s partner and family maintained that the father’s behaviour such as they accepted it to be was out of character but the big problem for the father in his campaign to convince the court that whatever happened was an aberration was the evidence of Ms S.
Ms S was not shaken in cross-examination as to her version of events, there was an interesting passage during cross-examination which lent a colour of credibility to her claims and there are implications in the father’s text message exchanges with the mother on 25 November 2012 that there were problems in his relationship with Ms S.
There was nothing to suggest that anything had occurred during the relationship between the father and Ms S which made it likely that she would have fabricated a story about the father.
In my view either the father’s family are covering up for him or there are other things at work such as his family treading on eggshells when dealing with the father or his relationship with Ms K being in the honeymoon phase.
It is gravely concerning that the father’s family, partner and friend have not only “bought” his story that he was provoked on 16 July 2012 and 25 August 2012 and was justified in responding to that provocation with violence but have never stopped to ask themselves or challenge the father about the fact that his conduct on 1 and 2 September 2012, even to the extent that he admitted it, could not possibly be the result of any word, look or gesture of the mother’s let alone be justified by such things.
Counsel for the Independent Children’s Lawyer submitted that during cross-examination the father acknowledged his violence but I do not agree. Making limited admissions to a couple of incidents while blaming the mother for causing him to lose his temper is not accepting responsibility for violence. There is considerable force in the following passage from Dr A’s report:
In sum, although Mr Churchill acknowledged having criminal charges for assault against Ms Wileman, an AVO and a breach of AVO, he minimised the incidents and appeared to blame Ms Wileman. Further to this, he spoke of previous AVOs and complaints she has had and insinuated that even the police prosecutor was on his side and felt for him having to deal with Ms Wileman. It seems, therefore, that Mr Churchill has little in the way of regret or remorse and that he continues to hold a blaming attitude towards Ms Wileman for his offending behaviour. It is of serious concern that Mr Churchill has been charged with serious acts of violence but that he continues to minimise these and fails to acknowledge his responsibility.[12]
[12] Paragraph 117 of the Expert Report.
In cross-examination Dr A referred to the fact that during her interview with the father he repeatedly talked about having “removed” the mother from X’s room on 25 August 2015, even though he had pleaded guilty to facts which stated that he grabbed hold of her by the arms and dragged her through the house to her bedroom. It was her opinion that nothing the father said to her suggested that he had any insight into or understanding of the impact on the victim of that kind of behaviour or any insight into the effect on X of exposure to that kind of behaviour.
Dr A said she considered it odd that Ms N had not engaged the father in a targeted anger management and family violence program even after he was convicted but had accepted his blaming of the mother at face value.
The father made minimal admissions about X’s exposure to family violence. He did not repeat at trial the concerning statement which I referred to during the interim proceedings, namely that X was a baby so whatever occurred would not have affected him but he did say as follows in his affidavit:
I accept that X may have on three or four occasions at the very most heard Ms Wileman and I argue, this is on the premise and I am only speculating that he may have woken up from being asleep, but this would have been very seldom as we would always tried not to raise our voices in X’s presence and if there was an argument I was very mindful to remove myself from the house as I was tired of arguing with Ms Wileman.
It is deeply troubling that the father admitted that there was a violent incident near the car on 16 July 2012 but could not bring himself to admit that his son had witnessed him yelling at and assaulting his mother, nor was he willing to contemplate that X may indeed have been awake or awoken by the incident on 25 August 2012 which began in X’s bedroom.
The evidence in the father’s affidavit about X’s exposure to family violence is yet another example of him minimising what occurred, trying to escape blame and showing no insight into and no remorse for what his son had to endure as a result of his conduct.
The fact that the mother was initially open to X spending supervised time with the father but later came to the view that it should not occur does not in any way undermine her claims about family violence and X’s exposure to it. The mother said that after separation she had months of counselling about domestic violence and became familiar with the cycle of domestic violence and how it can impact on children which changed her views. She also said that she began to realise that exposure to the violence may have affected X. She said as follows for example:
It was not until X was over 12 months of age that I noticed that X was [sic] displaying strange behaviours with his teddy bears by throwing them on the ground or holding the teddy and waiving his arm up and down and bashing his head on the ground saying things like “get up, you are okay.[13]
[13] Paragraph 249 of the mother’s affidavit filed on 25 June 2015.
The father’s alcohol consumption
The mother alleged that the father had an alcohol problem. She alleged that when he drank he drank heavily and became drunk and was not someone who would stop at two or three drinks but would drink a six pack of beer as a minimum.
It was the mother’s case that the father became very aggressive and argumentative after drinking.
Ms S also said that the father often drank heavily and became intoxicated and gave evidence about violent incidents which occurred on those occasions but like the mother said that the father could be violent when sober as well as violent when drunk.
The father’s position about his alcohol consumption was confusing.
The father made some admissions to the mother during their relationship about having an alcohol problem but said that he did so to placate the mother.
In his affidavit the father denied that he had an alcohol problem but said that on several occasions during the relationship he drank to excess after having “considerable disagreements” with the mother and that on several occasions he drank alcohol after being locked out of the house.
During cross-examination the father agreed that he drank excessively (i.e. frequently to the point of getting drunk) during his relationship with the mother but said that he drank to self-medicate, which is an admission along the same lines blaming the mother for his behaviour.
The father told Dr A that he drank excessively during the relationship but then said that he only consumed two or three beers at a sitting which as she pointed out is contradictory.[14]
[14]Dr A’s report paragraph 119
The father told Dr A that he currently consumed only one or two drinks a week, and Ms K supported him in this evidence.
Notwithstanding his assertion that he only drank heavily during the relationship because of the mother and his denial that he currently had a problem with alcohol the father offered to engage in therapy to address among other things the issue of alcohol abuse. He did not suggest what he hoped to gain from doing therapy in regard to his use of alcohol.
I am satisfied that the father did drink heavily during his relationship with the mother and with Ms S. On his own admission he had been drinking for hours with the neighbours prior to the golf buggy incident and the police said that he was too drunk to be interviewed when he was arrested on 2 September 2012.
However all of the evidence (that of the paternal grandfather, and Ms S about incidents including the rice incident and the incident at the pit, and the mother about incidents ranging from the weighbridge incident to the incident on 16 July 2012) suggests that the father’s problem is with anger and violence, not misuse of alcohol as such.
It might be that the father does separately have a problem with not being able to stop once he starts drinking and that when he gets drunk he becomes more violent or more confrontational or more impulsive and unrestrained but his major problem is anger and violence not alcohol abuse.
X’s issues
The mother said that she first noticed changes in X’s behaviour in the May, June, July 2014 period. She said that he became very clingy and very obviously distressed at sudden loud noises. She said that he began squealing rather than communicating and became very aggressive.
Dr A reported that in August 2014:
[The mother said that] X’s preschool teachers have recently suggested that he may have autism spectrum disorder (ASD) and have recommended an assessment which was to be conducted later in the week of the current family assessment. Ms Wileman also recalled, with some distress, that a stranger in a park who apparently worked with autistic children, came up to her and asked if her child was on the autistic spectrum. The individual had apparently observed X playing repeatedly with a zipper in a stereotypical fashion.[15]
[15] Paragraph 68 of the Expert Report.
Dr A said that X had trouble sustaining eye contact, his speech appeared limited to repeating words said to him (echolalia) or using standard phrases and his play appeared limited to small parts of toys rather than imaginative play. She recommended that he be seen by a paediatrician or specialised clinical psychologist.
On 4 September 2014 the mother took X to see Ms L, an occupational therapist. Dr V included the following in his report arising out of Ms L’s assessment of X:
The observations by the Occupational Therapist who assessed him at (omitted) Community Health are pertinent to this matter. She noted that he will smash objects on the floor or hit his teddy bears telling them it’s okay. He is also noted to be withdrawn at Kindergarten predominantly playing by himself, but when he is trying to get the attention of other children, his way of doing this is not appropriate in that he will lie across their laps to try and engage them.[16]
[16] Affidavit of Dr V, Annexure A.
Ms L was concerned and referred X to a paediatrician.
On 24 October 2014 X saw Dr V in (omitted). Dr V has been a treating paediatrician for 43 years and he is also a conjoint professor of community child and family health at (omitted) University.
Shortly after Dr V first saw X, Ms E, an educational and development psychologist who practices in (omitted) saw X and received information about him from the mother. She administered tests to determine if he might have Autism Spectrum Disorder and also administered the Trauma Symptoms Checklist for young children which relied primarily on responses from the mother.
Ms E formed the view that X’s behaviour was consistent with a diagnosis of Autism Spectrum Disorder – Moderate Range but that he also showed considerable ongoing symptoms consistent with having experienced trauma.
In his affidavit dated 23 June 2015 Dr V expressed the view that the behaviours observed by X’s preschool in particular were consistent with a diagnosis of both Developmental Trauma and Autistic Spectrum Disorder. However he said that his diagnosis was that X had symptoms of severe Developmental Trauma. He went on to say:
In my opinion X's Developmental Trauma manifests itself by X displaying autistic like behaviours. In my view it is often impossible to distinguish the behaviours arising from developmental trauma from those present in children with Autistic Spectrum Disorder. The key with X is to treat the Developmental Trauma as soon as possible. This may well then benefit X by reducing the autistic like behaviours that X is displaying.[17]
[17] Affidavit of Dr V, paragraph 16.
Dr V described the impact on children of being exposed to trauma as follows:
In layman’s terms when a child has experienced Trauma (which X has in this case), the child’s reactions to things such as loud noises or other trauma threats are more exacerbated, traumatic and dramatic than that of a child that has not experienced Trauma. A simplistic way of explaining this would be that early life trauma for a child can reset the child’s thermostat governing their reaction to threat or stress so that something that is perceived by the child (consciously or subconsciously) as stressful, triggers a sensation of alarm, fear or terror. Children not exposed to developmental trauma have a much greater capacity to dampen their reaction to a stressful or traumatic event. For example, a loud door slamming may cause a child with Development Trauma to have a dramatic reaction and may cause that child to suffer significant distress, whereas a child with this history may barely notice the slamming door.[18]
[18] Affidavit of Dr V, paragraph 20.
Dr V referred both in his report and in the witness box when he was cross-examined to a particular incident where X was in his rooms in (omitted) and a door slammed in the passage way. He said that X showed an immediate extreme reaction, flinging a car across the room and then taking a little while to settle.
Dr V expressed the view that it was extremely important for treatment for X to commence immediately. He said as follows in his report:
Where children suffer Developmental Trauma at a young age, such as in this case, it is highly desirable for effective treatment outcomes of the Development Trauma and behaviours that X is experiencing that treatment begin as soon as possible and as effectively as possible to maximise the child’s chances of growing up and experiencing as normal a childhood as possible.[19]
[19] Affidavit of Dr V paragraph 26.
Dr V was of the view that it would ideal if X could attend the Berry Street Clinic in (omitted) which would focus on addressing issues which may be the result of Developmental Trauma.
The father did not concede that X was suffering from Developmental Trauma and said that he was concerned that the diagnosis had been made without any input from him. However input from the father would not have been useful given that he denies the severity and extent of the family violence he perpetrated and is in denial about the extent to which X was exposed to it.
I am satisfied on the balance of probabilities (indeed beyond reasonable doubt) that X was exposed to serious family violence during the relationship between the mother and the father. He was exposed to screaming and shouting, doors slamming, his mother being dragged, his mother being assaulted, his father’s extreme agitation and anger on occasions such as the incident at the car and his mother’s extreme agitation and distress on occasions when she hid with him in the bathroom and ran down the drive and hid behind a tree. The mother gave evidence of X sometimes screaming with distress and she held him closely during episodes in August and September 2012 when she was extremely frightened herself.
Dr V’s evidence that exposure to this kind of trauma can lead to Developmental Trauma in the child and to the child being on high alert and not developing skills in the same way as a child not exposed to such trauma was compelling and makes absolute sense.
X has been exposed to serious family violence and he is exhibiting traits consistent with Developmental Trauma. There is foundation for Dr V’s opinion that X has suffered Developmental Trauma and there was no other expert evidence in the case which challenged this opinion. I therefore accept Dr V’s opinion but I note that he did also say the following:
If it turns out that X also has Autistic Spectrum Disorder, I believe the Berry St Clinic would also be able to assist in providing X with specialist treatment in conjunction with treatment for Developmental Trauma.
Partway through the trial the father agreed to the mother relocating so that X could attend the Berry Street Clinic.
During cross-examination Ms E expressed the view that while she would expect some improvement in X’s communication skills and capacities generally if he had expert help she would not expect him to be at the same stage as his same age peers. She expressed the view that if he obtained the optimal assistance which the Berry Clinic could offer while he would not “ever” be at average she would expect his adaptive skills to improve.
The mother reacted somewhat tearfully when Ms E gave this evidence, and there was not the slightest sign during the hearing that the mother was exaggerating X’s symptoms or making much of his condition to gain an advantage in the parenting proceedings.
By the time of the trial the father was at least willing to accept the diagnosis of ASD but that being so it is of considerable concern that despite the fact that until well into the trial he was proposing that X spend regular extensive unsupervised time with him he did not take the opportunity to attend a two day information session in respect of this Disorder which was held in (omitted), rather he delegated the task to Ms K. He informed the court that he was unable to attend because he had to work.
X’s best interests
Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and to determine X’s best interests I must have regard to the matters in s.60CC(2) & (3) of the Family Law Act.
The primary considerations in s.60CC(2) are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical and psychological harm from being subjected to or exposed to abuse neglect or family violence.
S.60CC (3) contains a number of additional considerations and I intend to start by making findings about those because that will inform consideration of the s.60CC (2) matters.
X requires a high level of day to day care. Not only must his parent do all the normal parental tasks, it is necessary for X to do exercises and special programs. The mother set out in some detail in her affidavit what this entailed.
It is of considerable concern that despite running a case that he wanted to spend extensive time with X leading to equal time when he commenced school and despite accepting that if nothing else X had ASD the father had not made the effort to attend a two day course about children on the Autism Spectrum which was available in (omitted). He gave the excuse that he could not take the time off work.
I must consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents.
The father’s violence to the mother and his refusal to acknowledge the extent of it demonstrate a poor attitude to the child and the responsibilities of parenthood.
There was no evidence that the mother had an agenda of wanting to exclude the father from X’s life for no good reason or that she was fabricating allegations or exaggerating evidence about X’s difficulties to achieve that goal. She was a calm and credible witness and she has taken on the responsibility of obtaining help for X. The mother currently shows a good attitude to the child and the responsibilities of parenthood.
I must consider any family violence involving the child or a member of the child's family.
The father subjected the mother to coercive and controlling family violence during their relationship. He made minimal admissions about it and does not accept responsibility for it and this has numerous implications for this matter.
First, the evidence about the father’s inability to control his temper and his violence raises a concern for X’s safety were he to spend unsupervised time with the father.
The father does not acknowledge his problems with anger management rather he blames others for his behaviour. His attitude about this has not changed in the three years since his relationship with the mother ended and X has behavioural problems, the father has not taken the trouble to inform himself about the implications of a child having ASD let alone Developmental Trauma and he endorses smacking as a form of discipline and has been smacking his step-son C. I could not remotely be satisfied that X would be safe from abuse if he spent unsupervised time with the father.
Second, there is a risk of the father being violent in future domestic relationships and if X spent unsupervised time with the father he could be exposed to this.
Ms K was adamant that there was no violence in her relationship with the father but the father was seriously violent in his two preceding relationships and there was evidence about his propensity to easily lose his temper. I can have absolutely no confidence that he will not be violent in future relationships, and if he was and X was spending unsupervised time with him X would be exposed to further family violence which would cause him untold psychological harm.
Third, the father has been violent to the mother of his child and refuses to fully acknowledge it and shows no remorse for his behaviour. He either denied that the violence occurred or where he made limited admissions continue to blame the mother for what occurred.
What sort of a role model is the father for his child when he refuses to take responsibility for his actions? How could I ask the mother to embrace the idea of the father spending time X when she knows what she has experienced at his hands and knows that he does not accept responsibility for it? How could she trust him not to hit X and make excuses for it? And what will X learn from the father?
Fourth, the father’s violence has had a psychological impact on the mother. After her relationship with the father ended the mother saw Ms J, a psychologist, on 12 occasions. Ms J said that in her opinion the mother was suffering from Post-Traumatic Stress Disorder (PTSD) and that it would be very difficult for her to facilitate even Skype communication between the father and X. It was her view that the mother could experience high levels of stress and anxiety and this would impact on her capacity to parent X. Ms J was of the opinion that the mother needed further time and treatment to assist her to recover from her PTSD.
The father’s counsel in final submissions suggested that the mother’s claims about having PTSD had evolved and amplified during the proceedings. This may be true but it does not mean, as the father’s counsel seemed to be implying, that the mother ramped up her claims to aid her case. Dr A commented in her report that the court proceedings had had a negative impact on the mother’s mental health because she had been forced to relive and recount incidents of violence on several occasions so the events of the relationship remained fresh in her mind. In her affidavit the mother described how being required to go over old text messages and remember “terrible and frightening” instances of family violence had made her feel extremely sick and anxious. This is entirely credible and I accept the mother’s evidence.
I accept Ms J’s evidence about the real possibility that the mother’s parenting capacity will be affected if she is forced to deal with the father spending time with or communicating with X.
The mother has to parent a child with special needs and I must be very conscious of not placing a burden on her which she will find difficult to bear.
I must consider if any family violence order which applies, or has applied, to X or a member of the X’s family--any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
A final ADVO was made in December 2012 and expired in December 2013 but considering the fact that it was made as a separate issue does not assist me to arrive at a decision in this case.
I must consider whether I should make orders least likely to lead to further proceedings.
The orders sought by the father are most likely to lead to further proceedings, either because the father uses his re-introduction to X as a basis for an application for more extensive time or because time and communication goes badly and the mother seeks to end it.
The orders sought by the mother are least likely to lead to further proceedings, but further proceedings could occur in the future if the father considers that he is able to demonstrate that he has changed, because any parenting orders can be changed if that is desirable because of a change in circumstances.
I must consider any other fact or circumstance that the court thinks is relevant.
Two matters warrant discussion here and the first is that the father asked the court to make an order that he engage in 12 months of therapy with a psychologist targeted at anger management, family violence and alcohol abuse, but why, and what does he hope to gain from it?
The father made minimal admissions and blamed the mother for his behaviour during their relationship. He made it plain in text messages after the end of the relationship that he did not have a problem; the problem was that some people just didn’t make allowances for him and let him cool down. It was effectively his case at trial that now that he had a respectful partner in Ms K he did not have a problem.
I therefore struggle to understand why at the end of the hearing the father proposed that he engage in therapy, and cannot see what he will gain from therapy if he does not consider that he has a problem.
The father has a serious problem but until he recognises that he will not gain anything from attending therapy with a psychologist targeted at family violence.
The father blamed the mother or alternatively the nature of his relationship with her for his excessive alcohol consumption during the relationship. He said that he drank to excess to self-medicate and that now that he was in a relationship with Ms K he drank moderately. What does he hope to gain from therapy with a psychologist targeted at alcohol abuse? Vindication for his position?
The second additional matter is that the Independent Children’s Lawyer proposed that the paternal grandparents be joined as parties and that an order be made for them to spend some limited supervised time with X.
The paternal grandparents applied to be joined as parties early in the life of the proceedings but the only orders they then sought were orders about X spending time with the father, and they withdrew their application long before the matter was listed for hearing.
Nevertheless the Independent Children’s Lawyer pushed hard at the end of the hearing for orders to be made which would allow the paternal grandparents to occasionally see X.
There is some attraction in the idea of the paternal grandparents occasionally being able to see X if he is not to have a relationship with his father. While X would gain little from it at present but it would allow him to form some slight connection with his paternal family which he could build on when he was older if he wanted to.
Dr A said that the same concerns about re-traumatisation did not arise in relation to the paternal grandparents but the issue here is how the mother would cope with their involvement. Dr A said that she would expect their loyalty to be to the father and the evidence strongly supports a finding that this is the case.
The paternal grandparents accept only to a very limited extent that their son was violent to the mother, and insofar as they accept it they also accept his excuse that the mother emotionally abused him and that he snapped. The mother does not support me making the order proposed. I will have to consider in due course whether the benefit to X of making the order outweighs the possible impact on the mother of making it.
I must now return to the primary considerations in s. 60CC(2) which are as follows:
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.
S.60CC(2A) provides that in applying these considerations the court is to give greater weight to the considerations in paragraph (2)(b).
I could not be satisfied that X would be safe from being subjected to or exposed to abuse or family violence in the father’s unsupervised care at present. His refusal to admit the extent of his violence to the mother or his violence in a previous relationship, his refusal to accept responsibility for his violence, his smacking of C, his approval of smacking as a form of discipline and the fact that X has behavioural issues which may on occasions challenge the coping capacity of the best of parents all lead to that conclusion.
There is an unacceptable risk that if X spent unsupervised time with the father he would either be abused by the father or exposed to family violence committed against others, and it is hard to overstate the profound damage that even one such incident would be likely to cause to X.
The father in the end did not seek unsupervised time and he did not even seek extensive supervised time. He sought occasional supervised time and occasional Skype communication and although the father’s counsel did not specifically refer to it during his final submissions the peg on which the father no doubt hoped to hang his hat was Dr A’s recommendation that:
Should the court consider the risk of harm to X is not appreciable if there is irregular and supervised contact, then X should spend time with the father at a formal contact centre four times per year for the purpose of identifying information.[24]
[24] Page 49 of the Expert Report.
The first issue to consider here is that while supervised time would protect X from abuse or family violence because a professional supervisor would not let that occur, Dr V expressed concern that X might be re-traumatised if he saw the father, in other words if he would suffer psychological harm which had its foundation in the earlier family violence.
During cross-examination however Dr A also talked about the risks of X being re-traumatised if he spent time with the father and queried whether any time spent by the father with X would be more advantageous to the father than to X.
The second issue is that the utility of ordering supervised time has to be questioned if there is no present indication that the time can ever safely become unsupervised. X does not remember the father and this is not a case for example where some supervised time might be of benefit to prevent a parent suddenly disappearing completely from the child’s life.
The father’s counsel did not suggest that the father hoped for unsupervised in the longer term, but he proposed orders that the father do 12 months of therapy to address anger management, family violence and alcohol abuse issues and this has the appearance of the father hoping to fit himself in the future to be a person who should be more extensively involved in X’s life. However as mentioned earlier there is no sign that the father is likely to productively engage with counselling at this point in his life and therefore no sign that unsupervised time is likely to become appropriate.
Dr A did not support the idea of the father having a relationship with X based on the information available to her. She said as follows:
Perhaps of most concern is that Mr Churchill, in the present assessment, continued to minimise the past events, to blame Ms Wileman and to demonstrate a lack of understanding about X’s experience of the conflict. The combination of his failure to take responsibility for his actions, his avoidance of treatment to date, and his lack of child-focus raise concern about whether he will make changes or accept the need for X to heal. As such, his capacity to help X repair the relationship with him is negligible. It is another barrier to Mr Churchill’s parenting capacity. X therefore remains at considerable risk of physical and/or psychological harm in his care in the absence of Mr Churchill’s acknowledgement or desire to change.[25]
[25] Paragraph 211 of the Expert Report.
Conclusion
Cases involving allegations of family violence are always challenging.
The first part of the challenge is to determine whether family violence in fact occurred and to what extent and in what circumstances. Sometimes allegations are falsely made or are exaggerated, sometimes violence has occurred only at the time of separation or may come within the definition of couple violence and sometimes both parents have been violent.
In the case before me however there is absolutely no doubt that the father perpetrated coercive and controlling family violence of a serious and extensive nature, and I have to consider the implications of this for the father’s time with X.
The fact that a person has committed such violence does not automatically mean that they will never be able to see their child. I am sure that people sometimes think that this is so and that this is one reason why the court is routinely faced with vigorous denials or extreme minimization when accusations of family violence are made even when the evidence about the violence is overwhelming, although there are many other reasons why people retreat into vigorous denial or minimization.
However the fact that such violence has occurred may for a variety of reasons mean that no time is indicated.
Some people who commit such violence are dangerous both to children and other adults and safety concerns may mean that time cannot be contemplated.
Some children who have been exposed to or subjected to such violence do not want to see their violent parent.
Sometimes children do want to see their violent parent but the acts of violence have been so severe and have had such a serious impact on the other parent that the court cannot consider ordering that the children spend time with and communicate with the perpetrator regardless of the children’s views.
For the court to make an order for time to occur against the wishes of a traumatised victim can lead to a range of possible problems including the victim’s parenting capacity being undermined or a high risk of contravention proceedings because the victim cannot bring themselves to comply with the orders.
Sadly many perpetrators of family violence have absolutely no understanding of the long term impact on their victim of their abuse. They fail to understand that their victim may remain fearful and avoidant of them for a very long time after a relationship ends, indeed may remain fearful and avoidant of them forever.
They fail to understand the psychological impact on a victim of being required to send their children to spend time with a perpetrator, which might be for a whole range of reasons including fear of what could happen to the children and fear of the children having inculcated into them the idea that the victim was at fault and that some people just can’t keep their mouths shut and stir other people up and only have themselves to blame and should be more forgiving if the perpetrator says they are sorry afterwards.
At the other end of the spectrum some perpetrators make admissions, are genuinely remorseful, sometimes realize that they are the victim of the example set to them by their parents, and make every effort to change, and in those circumstances the desirability of a child having a meaningful relationship with both of their parents comes to the fore.
And of course many cases sit somewhere else in the spectrum and they could involve any number of different scenarios, for example where no real admissions are made but the child has a strong desire for a relationship with the other parent, where the victim can tolerate the idea of the child spending time with the perpetrator and is not worried about the child’s safety and has a strong relationship with the child and does not fear the child being turned against them or following a poor example set by the other parent.
The permutations are endless, as is the nature and extent of family violence in any given case which can also influence the outcome, and I have to decide where this case sits.
In this case I am satisfied of the following:
a)The mother was subjected to serious physical violence and demeaning and belittling verbal abuse during her relationship with the father and to some demeaning and belittling verbal abuse after the relationship ended.
b)Toward the end of the relationship the mother feared for her life and for the safety of X and she remains fearful of the father.
c)The father has made minimal admissions and blames the mother for his behaviour. I do not accept that he is genuinely remorseful for anything. He shows no empathy for the mother or for X.
d)The court proceedings have required the mother to relive her experiences repeatedly which she has found difficult and stressful; her psychologist believes that she is suffering from Post-Traumatic Stress Disorder.
e)The mother is strongly opposed to the father spending time with X and would find it difficult to comply with a court order about the father spending time with and communicating with him.
f)The father was violent in a previous relationship, something he also chooses to deny. He has anger management problems and there is a high risk that he may be violent in future relationships and violent to his son. The risk for X is ratcheted up by the fact that X has Developmental Trauma if not ASD and has meltdowns and can display challenging behavior. A parent caring for him needs a high level of empathy, parenting skill and knowledge of his issues, none of which the father has. There is no likelihood at present of the father ever being able to spend unsupervised time with X.
g)In his refusal to accept responsibility for his actions and his willingness to blame others for the results of his failure to manage his temper the father is an extremely poor role model for X.
Against that background I must decide whether to make the order the father sought that he commence having some limited telephone communication with X and commence seeing him four times a year once he had done twelve months of therapy and had educated himself about X’s condition.
I cannot see any benefit to X in me making such orders when there is no sign of the father acknowledging his violence and accepting responsibility for it.
The mother would find it difficult to comply with orders for time in the face of the father’s denial of his violence and it would be painful for her to have to deal with the Skype calls which would force her to see the father and hear him speak. X is too young to be sent off into another room with the phone. The mother would have to explain to X who the father was.
Until the father acknowledges his violence and his responsibility for it he will gain nothing from therapy, and there is therefore no prospect of him ever being able to see X other than in a supervised setting and if this is all that can occur what is the benefit to X of it occurring?
Finally, X has Developmental Trauma and is to receive specialist help at the Berry Street Clinic at (omitted). Experts have expressed concern about whether he may be re-traumatised if he is introduced to the father and if there is not likely to be any benefit to X in seeing the father I would not be willing to take any risk with this vulnerable child.
I intend to order that the father spend no time with and have no communication with X.
Counsel for the Independent Children’s Lawyer supported this outcome but proposed an order that the paternal grandparents spend some limited time with X. The father’s counsel endorsed the proposal that the paternal grandparents be joined as parties and that an order be made about them having some limited contact with X.
There should be no issue of X being re-traumatised by exposure to the paternal grandparents but one has to wonder what would be gained by ordering this time if this time also could never move beyond limited time in a supervised setting. Once again, who is benefitting from it?
The paternal grandparents are ardent supporters of the father and they do not believe the mother’s account of what she and X experienced. The mother asked them for help and support during her relationship with the father and they did not provide it. It is difficult at present to see the mother trusting that if the paternal grandparents spent time with X they would not somehow try to introduce the father into the equation by photographs or otherwise.
I do not intend to make orders about the paternal grandparents spending time with X. If the paternal grandparents wish to be part of X’s life then they need to mend their bridges with the mother. I do not know if they can, but until they do I am not prepared to force the mother to accept an outcome which she does not support.
I am also mindful of the fact that the paternal grandparents themselves did not seek these orders; even when they were seeking to be parties earlier in the proceedings they did not seek orders about X spending time with them, and it has to be open to question whether they would make the effort to travel to the (omitted) area to spend supervised time with X no matter what they might have said in the witness box when this proposition was put to them.
The Independent Children’s Lawyer proposed an order that the mother provide a post office box to which the father and paternal grandparents could send letters cards and gifts to X. I am not prepared to make that order. Receiving such items is likely to be stressful for the mother at the current time. If the father wishes to get back into his son’s life and see what he looks like and be aware of his development then he needs to address his own issues, and if he does then the opportunity for both him and the paternal grandparents to form a relationship with X may spring to life.
The Independent Children’s Lawyer proposed an order that the father be authorised to obtain copies of X’s school reports from ASPECT and any other school in which he is subsequently enrolled but I cannot see what X would gain from such an order being made and I repeat, if the father wishes to get back into X’s life he needs to address his own issues.
The Independent Children’s Lawyer proposed that an order be made as follows:
Should the father subsequently issue fresh proceedings seeking orders to commence spending time with the child, the father shall exhibit to any supporting affidavit evidence of the satisfactory completion of the following:
a)The “Taking Responsibility” course offered by Relationships Australia (omitted) or a similar course designed to address issues of anger management and family violence;
b)A minimum of 10 sessions with a psychologist other than Ms N addressing the impact of his violence upon the child X and the father shall provide to the psychologist a copy of these reasons for judgment and a copy of the report of Dr A.
c)A course of at least 6 months duration designed to promote the abstinence from drugs and alcohol.
I do not intend to make this order. I am particularly concerned about proposed order (c) but my primary concern is that this is tantamount to inviting fresh proceedings in circumstances where the father has simply ticked some boxes.
The father can bring fresh proceedings in the future if he considers that he can demonstrate a change of circumstances but I do not intend to make an order either prescribing or constraining the way in which he can show that or suggesting to him that if he does certain courses that will be enough.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding three hundred and sixty five (365) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 9 February 2016
[10] Affidavit of the father filed 23 June 2015, Annexure J-1.
2