COLLINS & CRAWFORD
[2016] FCCA 1162
•19 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COLLINS & CRAWFORD | [2016] FCCA 1162 |
| Catchwords: HELD – Mother to have sole parental responsibility for the child – the child live with the Mother – the Father to spend no time with the child. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 |
| Applicant: | MR COLLINS |
| Respondent: | MS CRAWFORD |
| File Number: | MLC 7481 of 2015 |
| Judgment of: | Judge Bender |
| Hearing date: | 11 April 2016 |
| Date of Last Submission: | 15 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 19 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Lowy |
| Solicitors for the Applicant: | Stuthridge Legal |
| Counsel for the Respondent: | Mr D Carne |
| Solicitors for the Respondent: | Harwood Andrews |
| Counsel for the Independent Children's Lawyer: | Mr D Whitchurch |
| Solicitors for the Independent Children's Lawyer: | Taft Lawyers |
ORDERS
The Mother have sole parental responsibility for the child X born (omitted) 2009 (“X”).
X live with the Mother.
X spend no time with the Father.
IT IS NOTED that publication of this judgment under the pseudonym Collins & Crawford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7481 of 2015
| MR COLLINS |
Applicant
And
| MS CRAWFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to what parenting orders should be made for the parties’ seven and a half year old daughter X born (omitted) 2009 (“X”).
X has not spent time with the Father since June 2014.
It is the Mother’s evidence that throughout the parties’ relationship she was subjected to continuous verbal, emotional and physical violence by the Father and that X was exposed to and witnessed this violence such that X is now genuinely fearful of the Father.
As a result of the Father’s violence and X’s exposure to it, it is the Mother’s evidence that she does not believe it is in X’s best interests to have a relationship with the Father. The Mother is therefore seeking orders for sole parental responsibility of X, for X to live with her and that X not spend any time with the Father.
The Father adamantly denies he was ever physically or emotionally violent to the Mother. He concedes their relationship was volatile in that they constantly argued but it is his evidence that both parties “gave as good as the other”. It is the Father’s evidence that the Mother has made up the allegations of violence out of jealousy and spite because he quickly formed a new relationship shortly after the parties separated and with the sole intent of preventing X from ever having a relationship with him.
It is the Father’s evidence that he believes the Mother’s actions are placing X at risk of serious long term emotional harm and is therefore seeking orders that X, with appropriate therapeutic support be slowly reintroduced to him and there be a graduated increase in her time with him until she lives primarily in his care. It is the Father’s evidence that he believes this will be the only way X will be able to have a relationship with both parents.
The parties and X attended upon family consultant Dr L for a Child Inclusive Conference pursuant to section 11F of the Family Law Act 1975 (Cth) on 9 December 2015.
In the Memorandum to Court prepared by Dr L at the conclusion of the conference dated 9 December 2015 under the heading “Future Directions” she stated:
·Whether X should ever spend time with her father is highly dependent on whether or not the allegations of family violence are accepted. The alleged violence towards the mother is of a nature and severity that is associated with significant risk of harm, both psychologically and physically, to any children of the relationship. On that basis, the writer could not endorse unsupervised time and sees little merit in reintroduction on a supervised basis if there is no foreseeable graduation beyond this restrictive and resource-intensive arrangement, particularly as reintroduction would be potentially re-traumatising and is likely to undermine any sense of safety X has established post-separation.
·On the other hand, if the father’s version of events is accepted, the mother has gone to extensive lengths to obstruct X’s relationship with her father out of spite and jealousy. If so, reintroducing X to her father should be a priority. Given her current anxieties about her father, X will benefit from any reintroduction being in a controlled environment with a professional on hand for support (e.g., at a Children’s Contact Centre). X may benefit from more frequent attendance upon Ms J before and during any reintroduction period, to prepare her for seeing her father and to equip her with strategies for managing any anxieties that arise. If the supervised time proceeds without incident for a reasonable period of time (e.g., six to eight visits) and X is presenting as comfortable and relaxed in her father’s company (as assessed by the supervisor), graduation to less restrictive, unsupervised time should be considered at that time. These arrangements would require close monitoring, possibly by the ICL, to ensure compliance by the mother.
·The writer is of the view that, unfortunately, there is no interim, compromise arrangement that can meet X’s needs. The potential harm of reintroducing X to her father at this time, particularly if time may be reserved on a final basis, outweighs the potential harm of delaying reintroduction until the evidence has been tested. It is suggested that time between X and her father be reserved in the interim and that a final hearing be scheduled (if not already) as a matter of priority.
·X was interviewed at length for this conference and her recollections were explored in depth, until exhaustion. In the absence of any significant changes, a full family report is unlikely to elicit further information from X and carries risks (of shaping her narrative and memories and diluting the reliability of her report) associated with repeated interviewing of young children. Careful consideration should be given to the merit, if any, of a full family report in this matter.
In her vive voce evidence given at the final hearing Dr L stated:
The potency or severity of the violence were so concerning … and … the pattern of the violence too of a type that has as its – a basis in the dynamic of power and control – its what’s described in the literature as coercive controlling violence. It’s a … typology that fits … the description given by the Mother. That is a particular trajectory of risk – associated high risk of harm related to both the … partner of the intimate violence and the children of … that relationship. And so my recommendation would be that if the Court does accept the Mother’s case … and the violence has occurred in the way she says it has, then I would have significant concerns about the risk to X and I would have concerns, based on the Father’s complete and utter denial of the situation, I would have concerns about what benefit an ongoing relationship would have for X.
Dr L in her vive voce evidence then stated:
If the Father’s case … is accepted and these stories are a figment of the Mother’s imagination, her investment in this story is so strong that I would have concerns about her capacity to allow X to have a relationship with Mr Collins that is independent of her own. And that’s why … I made the recommendations that … reintroduction should occur, it should be a priority, and that X needs to be supported for that to … happen. But also the arrangements would require close monitoring for compliance … because I don’t want to say that this will happen but … she is … a very high risk of non-compliance, and at that point I think the Court would need to consider more drastic change in arrangements.
It is therefore apparent that in order to determine the living arrangements that are in X’s best interests, a finding must be made as to whether the Father was violent to the Mother during the relationship as she alleges or whether the Mother has maliciously fabricated the allegations to prevent X having a relationship with the Father.
Background
The Father was born on (omitted) 1986 and is aged 29 years. He is a (occupation omitted) running his own business. The Father has re-partnered with Ms B who has a son A, three years old, from a previous relationship. The Father is currently living with his parents and Ms B has her own independent rental accommodation.
The Mother was born (omitted) 1985 and is aged 30 years. She is a (occupation omitted) with (employer omitted) at (omitted). The Mother has purchased a home for herself and X in the (omitted) area near her father and her two brothers and their families. The Mother is not currently in a relationship.
The parties commenced a relationship in 2007. The Mother fell pregnant with X in (omitted) 2008. When the Mother advised the Father she was pregnant, the Father broke off the relationship.
X was born on (omitted) 2009.
The parties recommenced their relationship in early 2010 and again separated in early 2011. The parties reconciled in early to mid-2012 and separated for the final time in early 2014.
Whilst the parties’ evidence will be considered in depth in this judgment, I have prepared a chronology of the allegations and the evidence lead by the parties and the documents subpoenaed and tendered that relate to each allegation.
The chronology of the allegations and linked evidence is as follows:
| Year | Event/Allegation | Evidence |
| 2007 | Parties commence cohabitation | Parties’ affidavits / outline of case documents / vive voce evidence |
| (omitted) 2007 | Father’s 21st birthday Mother’s father observes Father punch a man at his 21st because “he perved on the Mother” | Mother’s father’s statement to police of 28 July 2015 and vive voce evidence of 14 April 2016 |
| (omitted) 2008 | Mother falls pregnant with X. Father leaves and relationship ends. | Parties’ affidavits/ outline of case documents / vive voce evidence |
| 18 Sept 2008 | Mother reports threatening behaviour to her counsellor at (omitted) Community Health | Subpoenaed (omitted) Community Health notes: “Ms Crawford reported that ___ was “out of control”, and that he had been drunk a lot, and very abusive to her, making threats to her friends. Discussed options around making herself safe, including reporting his threats to police and following recommendations from the nurse that she have a restraining order at the time of the birth. Ms Crawford feels guilty and conflicted about keeping ____ away from the baby… |
| (omitted) 2009 | X born | |
| Mid 2009 | Father sees X when Mother leaves her at paternal grandmother’s home | Parties’ affidavits and vive voce evidence |
| Early 2010 | Parties recommence relationship | Parties’ affidavits and vive voce evidence |
| May 2010 | Mother alleges Father hit her | Mother’s medical records from (omitted) Medical Centre contained in the Victoria Police Preliminary Brief: |
| Mid 2010 | Father moves into Mother’s unit at (omitted) | Paragraph 5 of Mother’s affidavit sworn 29 March 2016 |
| Mid 2010 | Father pushes Mother over, kicks her in the side of stomach and legs and X runs in yelling “don’t kick my Mummy”. Mother went to work next day with bruising and swelling which were noticeable. Wore a lot of make-up | Paragraph 8 of Mother’s affidavit sworn 29 March 2016 and vive voce evidence Ms S’s police statement dated 19 June 2016 and vive voce evidence of 13 April 2016 |
| Later in 2010 | Father comes home drunk, verbally abused Mother and hits her. Mother calls her father who drives from his home in (omitted) and collects Mother and X. Mother and X return to Father three days later | Mr W’s police statement dated 28 July 2015 and vive voce evidence at final hearing |
| Late 2010 | Father admits to Mother’s father at maternal family function he hit the Mother and apologises and says it won’t happen again | Mr W’s vive voce evidence at final hearing |
| Early 2011 | The Father comes home drunk, punches the Mother in the face and ear whilst she is asleep, waking her up. Mother defends herself with a broom and rings her father who again collects the Mother and X and takes them to his home. Mother returns to Father four days later | Paragraph 9 of Mother’s affidavit sworn 29 March 2016 Mr W’s police statement dated 28 July 2015 and vive voce evidence at final hearing Mother takes photos of swollen face, tendered as evidence Ms A’s police statement dated 21 June 2015 |
| 24/25 Jan 2011 | Mother attends (omitted) Medical Clinic | Mother’s medical records: has patchesof macular rash, well defined margins itchy got? hives again but less intense |
| Feb/March 2011 | Parties separate after Father’s drunken friend Mr C comes to the home and falls over chair | Paragraph 12 of Mother’s affidavit sworn 29 March 2016 |
| 19 March 2011 | Parties meet at McDonalds for changeover for Father to spend time with X. Parties argue and Father assaults Mother by grabbing her around the throat. Mother reports matter to police. | Paragraph 13 of Mother’s affidavit sworn 29 March 2016 |
| 21 March 2011 | Mother attends (omitted) Medical Clinic | Mother’s medical records: |
| 24 March 2011 | Mother attends (omitted) Medical Clinic | Mother’s medical records: |
| 6 April 2011 | Mother attends (omitted) Community Health | (omitted) Community Health notes: |
| 6 April 2011 | Mother obtains interim ex parte intervention order against the Father with herself and X as protected family members | Paragraph 14 of Mother’s affidavit sworn 29 March 2016 Victoria Police LEAP records |
| 11 April 2011 | X overheard at (omitted) Childcare Centre saying “Daddy hurts Mummy”, “Daddy hit me”, “Daddy hit the wall, Daddy hit the wall at my other house”. | (omitted) Childcare Centre Incident Report Form dated 11 April 2011 Ms A’s police statement dated 21 June 2015 and vive voce evidence at final hearing |
| 12 April 2011 | Mother attends (omitted) Medical Clinic and reports domestic violence | Mother’s medical records: Alleged h/o partner violence for one year she was assaulted with fists- on many occasions and sustained bruises face and body intermittently she has a daughter from the relationship aged 2 Going to court to seek restraint order from visiting her… |
| 20 April 2011 | Interim intervention order extended to 12 October 2011 as Father contesting order | Victoria Police LEAP records |
| April-July 2011 | Mother continues counselling at (omitted) Community Health | Mother’s notes from (omitted) Community Health |
| April-July 2011 | Mother arranges domestic violence therapy for X following their attendance at EASE | Mother’s notes from (omitted) Community Health |
| Mid 2011 | Father sends threat to kill text message to Mother | Father’s vive voce evidence |
| June/July 2011 | Parties agree through solicitors for X to spend supervised time with Father at (omitted) | Parties’ affidavits |
| 9 June 2011 | Father completes (omitted) Form, says parties “argue a lot” | Copy of (omitted) “Family Details” Form completed by Father |
| 12 July 2011 | Mother completes (omitted) Form, under heading “issues around separation” the Mother lists: “physical violence, emotional/mental violence, drinking/drug issues, split personality.” | Copy of (omitted) “Family Details” Form completed by Mother |
| Sept 2011 – Jan 2012 | Father spends supervised time with X at (omitted). Time goes well. | Parties’ affidavits Copy of Session Reports from (omitted) |
| Sept 2011 – Jan 2012 | Father commences Men’s Behaviour Change program | Parties’ affidavits |
| 13 Nov 2011 | IVO lapses as Mother does not attend Court | Parties’ affidavits |
| After IVO lapses | Father contacts Mother seeking to spend unsupervised time with X | Paragraphs 17 and 18 of the Mother’s affidavit sworn 29 March 2016 and the parties’ vive voce evidence |
| 2012 | Parties’ relationship resumes Father discontinues Men’s Behaviour Change program | Parties’ vive voce evidence |
| Sometime in 2012 | Mother and X move into Father’s home at (omitted). Father says this occurred early 2012 and Mother says late 2012 | Father’s Outline of Case Mother’s Outline of Case Paragraph 18 of Mother’s affidavit sworn 29 March 2016 |
| Dec 2012 | Parties argue and Father hits the Mother causing bloody nose and cut lip Mother texts Father’s sister asking her to collect her. Brother-in-law arrives. Father says to Mother: “you are a slut fuck off or I’ll kill you” | Paragraph 19 of Mother’s affidavit sworn 29 March 2016 and vive voce evidence Paragraph 7 of Mr S’s affidavit sworn 29 October 2015 and vive voce evidence Ms S’s vive voce evidence |
| Early 2013 | Parties become engaged | |
| April 2013 (day prior to Mother leaving for (employer omitted)) | Parties argue and Mother alleges Father puts hands around Mother’s throat. Father calls police, who attend | Mother’s vive voce evidence Paragraph 22 of Mother’s affidavit sworn 29 March 2016 |
| April 2013 | Mother commences training at (employer omitted) in Melbourne. Mother is in Melbourne for three months (M) or eight months (F). X is cared for by the Father with assistance from the paternal grandparents. Mother returns homes weekends and Wednesday. Mother is assigned to (omitted) as part of her training after three months in Melbourne | Parties’ affidavits and vive voce evidence |
| 26 April 2013 | Ms M, former work colleague of the Mother, receives inappropriate text messages from the Father’s brother-in-law, Mr S. Ms M contacts the Mother whilst she and the Father are in the car to advise of Mr S’s actions. Father becomes very angry. Father assaults Mother when they get home by putting hands around her throat before leaving the house. | Ms M's Police Statement dated 19 June 2015 Paragraph 25 of Mother’s affidavit sworn 29 March 2016 and vive voce evidence Ms A's Police Statement dated 21 June 2015 and vive voce evidence |
| Aug 2013 | Following the separation of his sister and brother-in-law, Father attends workplace of Mr S and attempts to assault Mr S with a baseball bat | Paragraph 2 of Mr S’s affidavit sworn 24 October 2015 Mr S’s oral evidence |
| 13 Dec 2013 | At the Mother’s (omitted) from the (employer omitted) in (omitted), X became locked in the toilet. The Father kicked the door down. At the hotel afterwards the parties argued and the Father threw the Mother to the floor | Paragraph 26 of Mother’s affidavit sworn 29 March 2016 and the Mother’s vive voce evidence |
| Early 2014 | The Mother came home at 2:00am having worked overtime. Found the Father in the garage in a drunken state with friends. X is awake in the parties’ bedroom fully clothed watching DVD. She had wet herself believing she had been locked in by Father. | Paragraph 28 of Mother’s affidavit sworn 29 March 2016 and the Mother’s vive voce evidence |
| Jan/Feb 2014 | X finds box in Father’s room and shows the Mother. Mother finds used syringes and discovers steroids in Father’s bathroom. Rang the Father who became angry. Took the drugs to the Father’s parents’ home and advised of this find. | Paragraph 29 of Mother’s affidavit sworn 29 March 2016 Mother’s vive voce evidence Paragraph 11 of Mr S’s affidavit sworn 29 October 2016 Mr S’s vive voce evidence – initial vive voce evidence was X found Father injecting steroids drugs but corrected this when his affidavit evidence read to him Vive voce evidence of paternal grandmother, Ms L: the Mother came to the home to advise she had found steroids but did not have them with her |
| Jan/Feb 2014 | Parties separate and Mother and X move in with friends. Father says he terminated the relationship. | Parties’ outline of case documents Paragraph 14 of Father’s affidavit affirmed 31 July 2015 Paragraph 32 of Mother’s affidavit sworn 29 March 2016 |
| April 2014 | Mother posted to Melbourne | Paragraph 36 of Mother’s affidavit sworn 29 March 2016 |
| April 2014 | Father commences relationship with Ms B | Paragraph 19 of Father’s affidavit affirmed 31 July 2015 |
| 23 April 2014 | Mother forwards Father a contract for the Father to sign which provides for the Father to see X subject to him not drinking for one year and not seeing named persons | Paragraph 18 of Father’s affidavit affirmed 31 July 2015 |
| April/May 2014 | Father rang Mother and threatened “if you don’t give me my fucking daughter I am going to kill you” “I’m going to put a gun to your head and fucking shoot you, you bitch” | Paragraph 37 of Mother’s affidavit sworn 29 March 2016 |
| May 2014 | Father sends Mother a text: “And tell ya boyfriend if he trys to be her Dad or do anything to my daughter I’ll fuckin kill the both of yas and that’s a promise I will make. Use this message in court ya cunt I don’t care anymore” | Paragraph 40 of Mother’s affidavit sworn 29 March 2016 Father agrees he sent the text |
| Mar-June 2014 | Parties exchange voluminous abusive texts the tenor of which are: | Paragraphs 19-35 of Father’s affidavit affirmed 16 March 2016 |
| M: “U should of always put me and X first and u didn’t. All u ever wanted to do was the opposite to what u knew I wanted u 2. No wonder it didn’t work Mr Collins.” F: “Jesus Christ I didn’t fuck any of your friends but that’s what I mean you would keep our daughter from me just cause you’re angry with me and it’s what you’re doing now that is fucking low Ms Crawford and it’s exactly what you’re doing.” M: “friggen disgrace. You are such a desperate, sleaze bag. It’s an embarrassment to me and X. Seriously I’m never speaking to you again.” “U need to grow the hell ya alcoholic, drugo … must be so cool going out all the time ya fuck head.” M: “we should be your priority. Just cause we ain’t 2getha doesn’t mean we aint a family. Also X has parent teacher interviews Tuesday night, can u come.” F: “Why should you be my priority Ms Crawford, X and X only is and will be my only priority this is what I mean you still think I should treat you like were (together).” | ||
| 17 June 2014 | The Mother sends Ms B the following messages on Facebook: | Paragraph 9of Ms B’s affidavit affirmed 16 March 2016 |
| M: “Don’t add me as a friend and think we will get along cause we won’t” Ms B: “No worries” M: “Your messed up” Ms B: “Calm down Ms Crawford. That’s no way to speak to someone. Have a nice day.” M: “Oh really well wat psyco adds someone on Facebook cause they are hanging out with their ex lol that’s crazy and stalkerish. Your nothing special to him just another knotch so don’t try and get me involved in it.” M: “And give u the hot tip u ain’t fucken going anywhere near my daughter ever. She would hate u. U are nothing not me” Ms B: “Yeah and use had a horrible broken relationship. Mr Collins has told me things he’s never told you. Me and Mr Collins have nothing but trust and respect for one another. I don’t need to compare myself to you, I really don’t. No worries, that’s fine by me. Hopefully oneday you’ll grow up. Because im going to be around for a very long time. Cya.” | ||
| 17 June 2014 | The Mother sends Ms B the following messages on Facebook: | Paragraph 9of Ms B’s affidavit affirmed 16 March 2016 |
| M: “Oh really I find that interesting. Trust and resoect, u don’t even know him hahaha u live in dream land. U won’t last a month same as all the rest so good luck with ya long time hahahaha” Ms B: “I won’t last a month? That’s actually funny because its already lasted longer thenthen a month and like I said you and everyonejust else for thatyou matter only know what we want use to know. I don’t know why you care so much anywaus? Like I said what Mr Collins and I do in our spare time is absolutely none of your business. Enjoy hating me no reason, I still haven’t got a bad word to say about you. Im not going to waste my time hating you … And I don’t want you being anymore of a harassing freak in his life. If Mr Collins is saying it for a reason and I respect that and maybe I shouldn’t have told you that im meeting his parents.” M: “Hahahaha yep keep dreaming.” | ||
| Jan-June 2014 | Father only seeks X twice. Mother says first time is at (omitted) in April. Father says (omitted) at Easter. Mother says second time was when she took X to Father’s home in June. The Father was drunk and they only stayed one hour. The Father says he last spent time with X for the weekend on 21 June. Parties exchange texts which clearly show X was with the Father this weekend. | Paragraph 38 of Mother’s affidavit sworn 29 March 2016 Paragraph 33 of Father’s affidavit affirmed 31 July 2015 Paragraphs 30-31 of Father’s affidavit affirmed 31 July 2015 |
| Sept 2014 | Mother hurts knee at work and requires a knee reconstruction. Mother transfers to (omitted) Police Station. Mother and X move in with maternal grandfather at (omitted). | Paragraph 47 of Mother’s affidavit sworn 29 March 2016 |
| 21 May 2015 | Father rings (omitted) Police Station to ascertain where the Mother is now working. Advised she is now at (omitted). | Paragraph 37 of Father’s affidavit affirmed 31 July 2015 Paragraph 50 of Mother’s affidavit sworn 29 March 2016 |
| 25 May 2015 | Mother obtains urgent ex-parte interim intervention order at Ballarat Magistrates’ Court against Father for protection of self and X | Paragraph 38 of Father’s affidavit affirmed 31 July 2015 Paragraph 51 of Mother’s affidavit sworn 29 March 2016 |
| 1 June 2015 | Father charged with threats to kill and common law assault | Paragraph 51 of Mother’s affidavit sworn 29 March 2016 Preliminary Brief from Victoria Police |
| July 2015, Unspecified dates | Mother alleges Father never hit X but was often aggressive towards her, yelling at her and “locking” her in her bedroom where she would become hysterical. The bedroom doors had no locks but the Father would hold the door handle so X could not open the door and get out | Paragraph 27 of Mother’s affidavit sworn 29 March 2016 |
| July 2015 | Mother and X commence seeing Ms J, psychologist, to assist X with anxiety, sleep and bed wetting issues | Paragraph 54 of Mother’s affidavit sworn 29 March 2016 Subpoena notes and vive voce evidence of Ms J |
The Father filed an Initiating Application on 10 August 2015 returnable on 14 September 2015.
The Mother was overseas on 14 September 2015 on a pre-planned holiday. Orders were made on that date for the Mother to file answering material, for the parties to undergo random drug screens and the matter otherwise adjourned to 23 November 2015.
On 23 November 2015 an Independent Children’s Lawyer was appointed and the matter adjourned to 7 December 2015.
On 7 December 2015 orders were made for the parties and X to attend a Family Consultant on 9 December 2015 for a Child Inclusive Conference pursuant to section 11F of the Family Law Act 1975 (Cth) and for the matter to be otherwise adjourned to 11 December 2015.
On 8 December 2015 the Mother’s intervention order application was listed for a directions hearing. The Father failed to attend and a ten year intervention order was made against the Father protecting the Mother and X.
In light of the recommendations of Dr L as set out earlier in the judgment, on 11 December 2015 no orders were made for X to spend time with the Father and the matter was listed for final hearing with priority.
On 9 February 2016 the Father filed an application seeking a rehearing of the intervention order proceedings. This application came before the Ballarat Magistrates’ Court in April 2016. On that occasion the Father offered to resolve matters on the basis there be a two year intervention order for the protection of the Mother and X without admissions. The Mother rejected that offer.
The Evidence
The Father
The Father relies on his affidavits affirmed 31 July 2015, 3 December 2015 and 16 March 2016. The Father also gave vive voce evidence at the final hearing.
The Father also relies on the affidavits of his mother Ms L affirmed 19 November 2015 and his girlfriend Ms B affirmed 16 March 2016. Both Ms L and Ms B gave vive voce evidence at the final hearing.
The Father also relies on the following subpoenaed material:
·the Department of Health and Human Services (“the Department”);
·Victoria Police and in particular the Preliminary Brief prepared by Victoria Police in relation to charges against the Father for threats to kill and common assault;
·(omitted) Contact Centre (“(omitted)”); and
·Ms J – psychologist currently assisting the Mother and X.
The Father adamantly denies the Mother’s allegations that he was violent to her during the entirety of their relationship or that X was in any way exposed to that violence such that she would have cause to be fearful of him.
It is the Father’s evidence that he believes that the Mother is motivated by jealousy and that she is maliciously making up these allegations to deliberately deny X the opportunity of having a relationship with him.
It is the Father’s evidence that he believes the Mother’s behaviour in this regard is causing and will cause X lasting emotional damage and that the only way X can be protected from the Mother’s behaviour is for there to be orders that provide for X to be gradually introduced to him so that over time and with the appropriate therapeutic support she ultimately lives in his primary care and spends time with the Mother.
It is the Father’s evidence that his and the Mother’s relationship was always difficult in that they constantly argued, primarily as a result of the Mother’s jealousy and her unfounded allegations that he drank and socialised to excess.
It is the Father’s evidence that because of the frequency of their arguing he would often retreat to his parents’ home for some respite from the difficulties in the relationship.
It is the Father’s evidence that at no time when the parties were together did the Mother ever make complaints that the Father had physically abused her in any way and that these allegations would only be raised when the parties were separated.
It is the Father’s further evidence that the Mother used the false allegations of violence and the withholding of X as a means to persuade him to return to the relationship or if that was unsuccessful, to punish him for separating from her. It is the Father’s evidence that the Mother’s allegations in these proceedings are a direct result of her jealousy of his relationship with Ms B.
The Father particularly questions the Mother’s allegations about the extent of his violence during the relationship on the basis that when she was required to live in Melbourne for the entirety of her (employer omitted) training, which he says was not for three months but from April to December 2013, she happily left X in his primary care. It is the Father’s evidence that this shows the Mother does not genuinely harbour concerns about his capacity to care for X or believes X is at risk when she is in his care.
It is the Father’s evidence that up until he last saw X in June 2014, they had a close and loving relationship and that she exhibited absolutely no fear of him whatsoever. In support of this claim the Father played to the Court a very short video of X singing and dancing in his backyard that was taken on the last weekend that he saw her.
It is the Father’s evidence that X also had a close and loving relationship with the extended paternal family and in particular the paternal grandmother, his sister and his sister’s children. It is the Father’s evidence that when the Mother was in Melbourne doing her (employer omitted) training, X was looked after by the paternal grandmother during the day. As his sister, then brother-in-law and their children also lived with the paternal grandmother, they all became very close, particularly X and her cousin B, who are of approximately the same age.
Ms L
Ms L is the paternal grandmother. She affirmed an affidavit on 19 November 2015 and gave viva voce evidence at the final hearing.
It is Ms L’s evidence that, contrary to the evidence of the Mother, the Mother at no time disclosed to her or members of her family that she had been subjected to physical abuse at the hands of the Father.
It is Ms L’s further evidence that at no time did she observe the Mother to have any bruising, cuts, swellings or other signs of injury on her person when she visited them during the relationship between the Mother and the Father.
It is Ms L’s evidence that the parties frequently argued and it was apparent that they were not a compatible couple.
It is the evidence of Ms L that the Father and X had a close and loving relationship and that he was an actively involved father.
It is Ms L’s evidence that not only did X have a close and loving relationship with the Father, she also had a close and loving relationship with the extended paternal family. It is Ms L’s evidence that from April to December 2013, X spent considerable time in the care of the extended paternal family while the Mother was completing her training at the (employer omitted) in Melbourne as the Father would drop X to her house in the morning on his way to work, she would take X to kindergarten or day care and collect her. The Father would then collect X from her home when he finished work.
It is the evidence of Ms L that not only has the Mother cut the Father out of X’s life, she has also cut out the entire paternal family and particularly X’s young cousins C, B and D.
When questioned about of the Father taking steroids, it is Ms L’s evidence that the Mother did attend at her home to express her concerns about finding steroids and the Father’s use of them.
It is Ms L’s evidence that when she spoke to the Father about his using steroids, he initially brushed her off but then conceded he had been using steroids and she told him in no uncertain terms that he had to cease their use.
Ms B
Ms B affirmed an affidavit on 16 March 2016 and gave vive voce evidence at the final hearing.
Ms B is the Father’s partner. She has been in a relationship with the Father since April 2014. Ms B has never met the Mother.
It is Ms B’s evidence that whilst she and the Father were living together, she recently obtained new accommodation. She and the Father decided that since she wished to be financially independent and the Father needed to save money to establish his new business, they would live separately while continuing their relationship.
Ms B has a three year old son A from a previous relationship who lives in her primary care and spends regular time with his Father by way of an amicable agreement between she and her former partner.
It is Ms B’s evidence that the Father has never been violent towards her or towards her son A. It is her further evidence that she has not known the Father to drink to excess or to use drugs.
She describes her son A as having an excellent relationship with the Father and that he has assisted her with her parenting of A, both in a practical sense and also in being able to give her advice given his experience as X’s father.
Ms B confirmed the Facebook exchange between herself and the Mother in June 2014 previously set out in this judgment. There has been no further communication between she and the Mother since that time.
The Mother
The Mother relies on her affidavits sworn 1 November 2015 and 29 March 2016. The Mother gave vive voce evidence at the final hearing.
The Mother also relies on the affidavit of Mr S sworn 29 October 2015. Mr S gave vive voce evidence at the final hearing.
Like the Father, the Mother relies on the subpoenaed documents from the Department, Victoria Police, (omitted) and Ms J. She also relies on the subpoena documents from (omitted) Community Health.
The Mother was given leave to issue subpoenas to give oral evidence to her former partner Mr K, her father Mr W, her former manager at (employer omitted) Ms S and her best friend Ms A. All of these witnesses had made statements to Victoria Police which were included in the Preliminary Brief from Victoria Police that has been prepared in relation to the charges against the Father of threat to kill and common law assault. All witnesses who were subpoenaed all attended Court to give oral evidence in response to the subpoenas.
It is the Mother’s evidence that she was subjected to ongoing physical and verbal abuse from the Father throughout the entirety of their relationship, both between 2010 and 2011 and again between 2012 and 2014.
In addition to the specific instances of violence set out in some detail earlier in this judgment, the Mother deposes in paragraph 33 and 34 of her affidavit sworn 29 March 2016 the following:
33. The whole of our relationship can be characterised by various periods of domestic violence. Numerous incidences of family violence took place and I am unable to recall each in particular detail. Mr Collins would often be absent from the home for a period of up to a week while he was binge drinking and partying. I believe he was also using the drug ice, and would become enraged very quickly. He frequently subjected me to assaults some of which are outlined in my affidavit herein. Most resulted in physical injuries to me.
34. As a result of the incidences which she has witnessed, X has become extremely anxious and scared of Mr Collins. She is anxious when she is around him. When X had seen Mr Collins assaulting me she would often try and stop him and lay over me to prevent him from hitting me. She would scream “Stop hurting my mummy”. There were many occasions where Mr Collins would physically drag me through the house and throw me outside and lock the door. X would scream and try to open the door to get to me. Mr Collins would push her away and I could hear her screaming as he pushed her.
It is the Mother’s evidence that whilst at times she did reveal that she was subjected to violence to her father, to her friend Ms A and to the paternal family, she was mostly at pains to hide the violence and the injuries she was subjected to. It is her evidence this was because she loved the Father, she was ashamed and because she felt intimidated and controlled by the Father.
It is the Mother’s evidence that she would cover up her injuries with make-up or would wear long-sleeved clothing, even in the midst of summer, so that the injuries and bruises could not be seen by others.
The Mother concedes that when she and the Father initially separated in 2014, she was jealous and very hurt when the Father so quickly after their separation formed a new relationship with Ms B. She openly concedes the inappropriateness of the communication between herself and the Father and that much of that communication reflects her initial hurt and jealousy at him moving on from their relationship so quickly.
In paragraph 45 of her affidavit sworn 20 March 2016, the Mother deposes to what she believes is the impact on X of having been exposed to the Father’s violence as follows:
45. During this period X was refusing to sleep in her own bedroom and would for hours on end. This behaviour had been occurring for quite some time and was at its worst just prior to our separation. X finds it difficult to be alone especially if the door to her room is shut. Mr Collins was never sensitive to her fears about this and used to say things to her like “you can’t be with your precious fucking mummy all the time” and he would then drag her back to her room screaming. X has always worn pull ups to bed. She is now seven years of age and still wears pull ups. X suffers night terrors almost every night and wets herself. X is embarrassed at this and tells me to keep it a secret from her friends at school. X still feels uncomfortable every time we come to (omitted). She once said to me “what happens if the baddy is there and he gets us”. X is always anxious and will ask me numerous times in the morning what time I am working, where I am working and when I will collect her. X often refuses to go to sleep unless I am home from work and will sometimes fall asleep on the couch after refusing to let my father put her to bed.”
It is the Mother’s evidence that through her employment with (employer omitted) she has accessed counselling assistance for herself and X. This has focussed on managing X’s anxiety, her refusal to sleep in her own bed and bed-wetting issues.
The Mother and X attended upon Ms J, psychologist, of (omitted) on 23 June and 27 July 2015. Ms J provided the Mother with strategies to assist X to manage these behaviours and to better manage her anxieties.
After the Father spoke to Ms J in March of this year and agreed to X continuing counselling with Ms J, the Mother and X again attended upon her.
It is the Mother’s evidence that since she has implemented the strategies suggested by Ms J, there has been some improvement in X’s behaviours. X is now sleeping more often in her own bed though she still needs to wear pull ups at night.
It is the Mother’s evidence that shortly after the parties separated she found X removing pictures of the Father from her iPad. The Mother did nothing to prevent X from doing this.
The Mother was cross-examined as to what she does when X is heard by her to say negative things about the Father such as “this is where the baddy is” when she, X and her former partner were driving through (omitted) or that X “does not have a Father.” It is the Mother’s evidence that she makes no comment when X says these things as she does not believe that she is the best person to be speaking to X about the Father given her experience of him as a violent and threatening man during the relationship.
The Mother adamantly denies that she has made up the allegations of violence against the Father out of jealousy or to maliciously prevent him from seeing X.
It is the Mother’s evidence that given X’s experience of the Father during the relationship, the behavioural problems she continues to exhibit, X’s genuine fear of the Father and the Father’s denial of violence or acknowledgement that there are aspects of his behaviour that he needs to address, there is no benefit at this time in X having a meaningful relationship with the Father and therefore orders should not be made for X to spend any time with him.
The Mother accordingly seeks that the Court makes orders that she have sole parental responsibility, that X live with her and that she spend no time with the Father.
Mr S
Mr S swore an affidavit in support of the Mother on 29 October 2015 and gave vive voce evidence at the final hearing.
Mr S was married to the Father’s sister Ms K from 1998 until their separation in 2015. Mr S, the Father’s sister and their children all lived with the paternal grandparents.
It is Mr S’s evidence that the Mother would regularly telephone his former Wife Ms K when she and the Father would argue. It is his evidence that she would ask them to come and collect she and X because the Father was being physically violent to her. It is his evidence that it would be he who drove to the parties home to collect the Mother and X as the Father’s sister did not drive.
It is Mr S’s evidence that on one occasion when he attended the parties’ home he entered to find the Mother and X crying and the Mother with blood around her nose and visible red hand marks around her neck. He deposes to hearing the Father screaming at the Mother, calling her a slut, to “fuck off or … (he) would kill (her)” and asking him to “take her or … (he would) fucking kill her as … (he hated) the cunt.”
It is the evidence of Mr S that the Mother told him that the injuries he observed on that occasion were caused by the Father assaulting her.
It is Mr S’s evidence that after his separation from the Father’s sister, which was caused by his infidelity, the Father attended at his place of employment brandishing a baseball bat and threatening to assault him with it. It is the Mr S’s evidence that a workmate had to intervene to prevent the Father from assaulting him.
It is Mr S’s evidence that he was present on the occasion the Mother attended at the Father’s parents’ home to tell them that X had found syringes and steroids in the Father’s bathroom cupboard. When giving his oral evidence Mr S indicated that the Mother told them that X had observed the Father using the steroids. In his affidavit sworn 29 October 2015, Mr S deposed that the Mother told them X had found steroids and syringes in the Father’s bathroom. When this inconsistency in his evidence was put to Mr S, it was his evidence that his viva voce evidence was incorrect and the circumstances set out in his affidavit were correct.
Whilst the Father had once been his best friend and that he had a very close relationship with the paternal family, Mr S agreed that since the breakdown of his relationship with the Father’s sister he no longer has any contact with any of the paternal family, including at this time his own children.
Mr S denies that he is supporting the Mother in these proceedings as a result of the breakdown of his relationship with the paternal family.
Ms S
Ms S is the director of the (employer omitted) in (omitted). Ms S made a statement to the police on 19 June 2015 and was subpoenaed to give evidence at the final hearing of this matter.
Ms S adopted her statement to the police of 19 June 2015.
It is Ms S’s evidence that the Mother worked for her in a (occupation omitted) role from 2010 until she joined the (employer omitted) in April 2013.
It is Ms S’s evidence that there was a morning the Mother arrived at work where, whilst the Mother always wore a lot of make-up, it was really “caked on”. It is Ms S’s evidence that she could see one of the Mother’s cheeks looked bigger and rather swollen.
It is Ms S’s evidence that one of the employees at the (employer omitted) told her that the Mother’s boyfriend Mr Collins had been abusive to her and so she approached the Mother and said “I’ve noticed a lot of bruises on you.” It is Ms S’s evidence the Mother just said “she was clumsy” and later in the day asked to go home.
It is the evidence of Ms S that a few times after this, employees of the (employer omitted) would approach her to say they were worried about the Mother because they had heard the Father was violent towards her. Ms S did not discuss their concerns further with the Mother.
It is Ms S’s evidence that she noticed bruising on the Mother’s arms on a regular basis but she never again saw any injury to the Mother’s face. She noted however that the Mother also covered up her face with a lot of make-up.
Ms S was asked in cross-examination whether the reports from the various employees had coloured her views on what was happening to the Mother. It is Ms S’s evidence as follows:
No, definitely no, because I had – before staff had come to me, I had a number of concerns with the amount of bruises that were on her on a regular basis, and wearing skivvies on days which were hot, you know, high-neck skivvies, long sleeves, all the times, so – which I thought was out of character.
Ms A
Ms A made a statement to the police dated 21 June 2015. Ms A was subpoenaed to give evidence at the final hearing.
Ms A adopted her police statement of 21 June 2015, save for an error she identified in her statement where she said she moved to Adelaide in February 2012. It is her evidence that she moved to Adelaide in February 2013.
It is Ms A’s evidence that she has known the Mother for about twelve years and that they have been work colleagues and are best friends.
It is Ms A’s evidence that she worked with the Mother from 2009 to 2013 as she too works in (employment omitted).
It is Ms A’s evidence that after the Mother and the Father reconciled when X was about 12 months old, there were any arguments between them as they were both very strong people.
It is Ms A’s evidence that by the time X was two, around 2011, the physical abuse by the Father to the Mother became very bad.
It is Ms A’s evidence that one morning the Father called her and told her that she needed to come over to the house to see the Mother. It is Ms A’s evidence that when she got to the Mother’s home, the Mother was sitting by the heater with X. The Mother was crying and trying to untangle her matted hair with a hairbrush. It is Ms A’s evidence that she asked the Mother what had happened and the Mother told her the Father had pulled her by the hair from the dining/kitchen area to the lounge room.
It is Ms A’s evidence she spent the rest of the day with the Mother and tried to persuade her to contact the police. The Mother refused to contact the police.
It is the Father’s evidence that there was an occasion where he called Ms A to come to the Mother’s house because he was concerned that the Mother had locked herself in the bedroom with sleeping pills and that she would take an overdose. Ms A was quite clear that when the Father rang her to come to the house, the Father did not tell her it was because he was concerned the Mother taken an overdose. It is her evidence all the Father told her was the Mother needed her. It is Ms A’s evidence that when she arrived at the parties home the Mother was not in her bedroom but sitting by the heater in the lounge room.
It is Ms A’s evidence that X was one of the children that she looked after at (omitted). It is Ms A’s evidence that X was not in the same room as the Mother and was not looked after by the Mother when at (omitted).
It is Ms A’s evidence that X said to her at least a hundred times that “Daddy hit Mummy” or “Daddy pushed Mummy into a wall and the wall went bang”.
It is Ms A’s evidence that on 11 April 2011 she and her co-worker Ms D were sitting at the (omitted) area with a small group of children including X. It is her evidence that one of the children started to talk about her father. X then said “Daddy hit Mummy, Daddy hit Mummy, Daddy hit Ms Crawford.” It is Ms A’s evidence that X then said “Daddy hit me”. X then started to hit her arm saying “Daddy hit me, Daddy hit the wall, Daddy hit the wall at my other house.” It is her evidence that X then put her hand into a fist and started to hit the mirror saying “Like this at my other house.” It is her evidence X then started to wave her hands around with her eyes closed saying “Daddy yell”.
It is Ms A’s evidence that because of X’s disclosure that she had been hit by the Father, she and Ms D completed an “Incident Report Form/Child” which they gave to their director, Ms S. This incident report was then referred to the critical incident team, which is the team in (omitted) that deals with matters of this type.
Presented to the Court was the incident report form that had been completed by Ms A and Ms D on 11 April 2011 at the time that this incident occurred. The details recorded in the form accord with Ms A’s evidence of what occurred on that day.
It is Ms A’s evidence that after X disclosed the Father hit her, she and Ms D immediately told the Mother what X had said. It is Ms A’s evidence that she understood that after this the Mother arranged for X to have art therapy to assist X to deal with the violence she had been exposed to whilst the parties had been together.
It is Ms A’s evidence that in the final two years she was working with the Mother at (employer omitted), she noticed the Mother come to work about three times with bruising on her body.
Ms A recalls an occasion where the Mother had a swollen bloodshot eye and that when she asked the Mother what had happened, the Mother told her that the Father had hit her.
It is Ms A’s further evidence that she remembers an occasion when the Mother came to work with one of her ears very red and again on that occasion the Mother told her that the Father had hit her.
It is Ms A’s evidence she remembers one other occasion when the Mother came to work. The Mother had a swollen and bruised cheek and that when she asked the Mother what had happened, the Mother told her that the Father had hit her but wouldn’t give her any information other than that.
It is Ms A’s evidence that she remembers the Mother telling her on one occasion that the Father had hit her after he had come home from being on “a night out” and that he had punched her in the face whilst she was asleep.
It is Ms A’s evidence that when she returned from Adelaide to (omitted) for a visit in about April 2013 she went around to visit the Mother who was at that time living with the Father in the Father’s house in (omitted).
It is Ms A’s evidence that when the Mother answered the door she was really upset. It is her evidence that she and the Mother went over to the park and the Mother told her that the Father’s sister and husband were having trouble. The Mother had received a message from someone saying that the husband had been cheating on the Father’s sister and that the Father had become angry with the Mother and had hit her. The Father then called the police.
Mr K
Mr K gave a statement to the police dated 18 June 2015 and attended Court pursuant to a subpoena to give evidence.
Mr K adopted his statement of 18 June 2015.
Mr K is the Mother’s former partner, having been in a relationship with the Mother for approximately 15 months after she and the Father had separated. They are no longer in a relationship.
It is Mr K’s evidence that on 30 January 2015 he received a Facebook message from the account of Mr Collins that read as follows:
Hey I need u to tell me were that cunt Ms Crawford is living with my daughter and I know u know we’re she lives. All I want is my daughter back and I’m tellin ya now I’ll do anything to get her back.
It is Mr K’s evidence that he blocked the Father from sending him further messages once he had received this message.
Mr W
Mr W is the maternal grandfather. Mr W gave a statement to the police dated 28 July 2015 and gave evidence at the final hearing pursuant to the subpoena to give evidence served upon him.
Mr W adopted his police statement of 28 July 2015.
When giving his viva voce evidence it is fair to say that Mr W was not a good historian in the context of accurately remembering dates. He otherwise impressed as being a witness of truth.
It is Mr W’s evidence that he met the Father for the first time at a 21st birthday party that was held at a hotel in (omitted).
In his police statement Mr W indicated that he thought that the birthday party was for the Mother’s friend Ms E, but conceded that it could well have been the Father’s 21st birthday as he has only ever been to one 21st birthday in a hotel and accepts the evidence of the Mother that he first met the Father at a 21st birthday party.
It is Mr W’s evidence that he was sitting at a table with three or four of the Mother’s girlfriends when she brought the Father over and introduced him to her.
It is Mr W’s evidence that later in the evening he and the Father went to the front area of the hotel where they were talking and having a drink. It is Mr W’s evidence that the Father said to him “that guy was perving at your daughter” and then the Father quite casually got up and hit the person.
It is Mr W’s evidence that bouncers then came over and intervened and he and the Mother left the hotel.
It is Mr W’s evidence that when X was approximately 18 months of age, the Mother rang him at about midnight or a little later, asking him to come and pick her and X up as the Father had hit her.
It is Mr W’s evidence that he drove some 115 kilometres from (omitted) to (omitted) to pick them up. When he picked the Mother and X up, he saw that the Mother had bruising to her face which he described as a black eye and bruising down one side of her face.
It is Mr W’s evidence that despite a very strong “father-daughter conversation” about the incident, the Mother returned to the Father’s home with X on the Monday night after that incident.
It is Mr W’s evidence that shortly after this incident the Father approached him at a maternal family function. The Father apologised to him for hitting the Mother and told him that he felt bad about not having control, that things had got out of hand and that it wasn’t going to happen again.
The following exchange took place between Mr W and Counsel for the Father:
Father’s Counsel: Again, I’m going to put to you that you never spoke to Mr Collins about this?
Mr W: No, that’s no true.
Father’s Counsel: Because he never hit your daughter.
Mr W: Well, that’s not true neither because he told me he did.
Father’s Counsel: He told you he did?
Mr W: Yes. He apologised for the incident.
Mr W’s uncertainty about dates, it was put to him that this first incident occurred sometime around January/February 2011. It is Mr W’s evidence that he does not believe this to be so. He believes this first incident occurred late in the year because the Father had come to a family function with the Mother not long after the incident and all of the maternal family functions are held later in the year.
It is Mr W’s evidence that approximately six weeks after the first call from the Mother he again had a call from the Mother on a Sunday morning at about 8:00am. It is his evidence that the Mother told him that she and the Father had a big fight the night before and that the Father had hit her and her eye was swelling up. It is Mr W’s evidence that he again drove from (omitted) to (omitted) and collected the Mother and X and drove them to back to his home in (omitted). It is his evidence that the Mother returned to (omitted) the following Tuesday.
It is Mr W’s evidence that he again sat down with the Mother and had a very strong discussion with her about what her future held. It is his evidence that he told the Mother that he didn’t think things were going to change and that she needed to decide what she was going to do with her life.
It is Mr W’s evidence that this second incident occurred shortly after Christmas and it was this incident that could have happened around January/February 2011.
Ms J
Ms J is a clinical psychologist practising in (omitted).
The Mother and X were referred to Ms J for counselling through a program provided by the Mother’s employer.
Ms J saw the Mother and X on 23 June 2015 and 8 July 2015. She again saw the Mother in March 2016. She also saw X briefly for ten minutes in March as she was with the Mother.
Ms J’s notes from 23 June 2015 and 8 July 2015 were subpoenaed. Ms J also gave vive voce evidence at the final hearing at the request of the Independent Children’s Lawyer.
In the notes taken contemporaneously by Ms J on 23 June 2015 by Ms J of her discussion with X she recorded the following:
Lived in (omitted) in Mr Collins’s house. Don’t see him.
Mum said he did horrible stuff.
He made Mum bleed – pushed her outside.
Little bit scared when we go to (omitted) because we saw him once.
Worry about Mum getting hurt – some of Mr Collins’s mates hurt her and follow Mr Collins’s instructions. Saw him say mean stuff.
Worry about me. Some people look after me who don’t know about Mr Collins – reassured that they all know.
Some days I have dreams and get in Mum’s bed.
Would like to be brave and go to bed but scared of Mr Collins.
In Ms J’s contemporaneous notes of her conversation with X on 8 July 2015 she recorded the following:
Not scared of Mr Collins anymore.
Sleep better in my own bed, he can’t get me now.
Not worrying about things so much.
Mum telling me that she will protect me and if he comes to (omitted) can call 000 and police will come and get him.
Mum tells me he’s not allowed to come near me and what to do if we see him or if he’s near us.
Think about things he might do, hurt people like before bad dreams Mr Collins come and scare the people.
Happy at school – Mr Collins can’t come there.
Mum says everyone will stop Mr Collins from coming near me or Mum. Worry he will get Mum and hurt her. Make her bleed like before. Cry when she’s late. She keeps me safe.
It is Ms J’s evidence that she is seeing X because she is not sleeping in her own bed, is having nightmares and is bed-wetting. It is her evidence she is focussing on working on these particular behaviours and dealing with her anxiety but is not delving into the reasons for that anxiety or the cause of those behaviours.
It is Ms J’s evidence that whilst on the second occasion X told her that she no longer feared the Father, X also told her that she was sleeping in her own bed. Enquiries with the Mother revealed that X was not sleeping in her own bed. It is Ms J’s evidence that children will often say things that are untrue when challenged on some of their confronting behaviour. It is her evidence that children will express that “it’s alright” so that they don’t need to continue with the uncomfortable actions that they would really like to avoid.
It is Ms J’s evidence that she believes X’s expressions of being fearful of the Father are genuine.
It is also Ms J’s evidence that she believes what X was telling her about the violence was a reflection of both her own experiences of the Father as well as things that she had been told by the Mother.
Ms J was asked whether the things X was reporting were coming from her own memory as opposed to them being a result of things that she had been told by her mother. It is Ms J’s evidence that there were situations where X was clearly telling her what she remembered, such as seeing her mum all bloodied. Ms J noted that there were things that X made clear that her mother had told her, such as “mum tells me he did horrible things”. Ms J also noted that there were aspects of what X was saying her mother had told her which were about reassuring X rather than the Mother telling X bad things had happened.
Ms J was asked whether she had formed a view as to whether X had been influenced or coached by the Mother to say inappropriate things about the Father. It is Ms J’s evidence that she didn’t get any sense that X had been coached by the Mother.
Ms J was asked whether X’s fear of the Father was a reflection of the Mother’s anxiety and fears about the Father’s behaviour. It is Ms J’s evidence that if the Mother is frightened, then X is going to pick up on that but that a lot of X’s fear is around things happening to her mother and that comes from seeing her mother hurt.
Dr L
Dr L holds a doctorate in child clinical psychology and is a family consultant with the Federal Circuit Court. Dr L saw the parties and X for the purposes of a child-inclusive conference pursuant to section 11F of the Family Law Act 1975 (Cth) on 9 December 2015.
Subsequent to that conference she produced a child-inclusive conference memorandum to Court document dated 9 December 2015.
Dr L gave viva voce evidence at the final hearing of this matter.
In the memorandum produced by Dr L under the heading “The Child” she sets out the following:
·X (6 years) is described as a typically developing child. Ms Crawford described some anxious behaviours (bed wetting, nightmares) and fears of sleeping alone, which she attributed to X’s alleged experience of being locked in her room by her father. She reported a recent, isolated incident of cruelty towards an animal by X, noting that she had witnessed her father beating his dog and was possibly imitating this violence. It is noted that Mr Collins denied any violence towards his dog.
·Ms Crawford reported that she engaged a psychologist for X on the advice of Victoria Police after seeking the intervention order. Ms Crawford reported that she had not done so before because she had hoped that X would be ok and would forget what she had witnessed with time. She said she thought she was “doing the right thing,” discouraging X from talking about it when she made comments and trying to “bury it.”
·X was interviewed alone for 35 minutes. She established rapport quickly and appeared confident to ask for clarification or express confusion when a question was unclear.
·When asked to tell the writer about when she lived with both mum and dad, X described innocuous events in family life (watching tv, visiting cousins etc). When asked whether she had her own room, X reported that she did, however, she would often go to her parents’ room when she “was scared of baddies” and that her father, whom she referred to consistently as “Mr Collins,” would tell her off. She said her mother would “come with me and look after me so Mr Collins couldn’t hurt me.”
·When asked if she ever felt scared or upset by her mum or dad, X reported, “Well um Mr Collins used to um push me into the wall… and punch me.. and mum, mum was bleeding on the lip and Mr Collins would throw her outside. But I opened the door and let her inside. Those are the things that would make me sad.”
·When asked how she knew these things, X responded, “Because I was at the house seeing it.” When asked if she had talked about these things to anyone, X said, “Only my lady I have. She helps me not have dreams so I don’t get scared.” She reported that the dreams were about “Mr Collins’s mates and him trying to catch me and mum and trying to kill us.” She reported that when she and her mother were leaving the house her father said “I’ll kill you if you go with mum.”
·X denied having spoken to her mother about these things, but later said she had told her mum about some memories. When asked what her mother did in response, X said, “She let me sleep in her bed until I wasn’t scared then started putting me in to see the lady.”
·When asked if she had any thoughts that were upsetting, X said, “Mum getting thrown by Mr Collins, Mr Collins speaking rude to mum, Mr Collins trying to kill me. That’s all.” She said these thoughts made her feel “scared and sad.”
·When asked if There was anything else she wanted to tell the writer about the time she and mum and dad lived together, X said, “Yeah one day [Mr Collins] was talking rudely to mum. He told me to got to my room but I didn’t. He was pushing her, saying swear words, punching her.” She reported that she once went in the room during a fight “when [Mr Collins] was bleeding mum… after he did that we stayed at [uncle] (omitted).”
·When asked if she ever went anywhere else because mum and dad were fighting, X said, “Mr S. Mr S came and got me.” She explained that “Mr S” was “B and C’s dad [Mr S].
·When asked why she called her father “Mr Collins,” X said, “I don’t think he’s my dad anymore. He’s a meanie and we left him…”
·When asked how she felt about seeing her father today, X said, “Scared. Because I don’t want him to kill me like he said.” She declined to accept a Christmas gift from her father (via the writer).
·When asked what would make her happy, X said, “Mr Collins not being near me and me and mum and Mr K [mother’s new partner] all safe and not scared by Mr Collins.”
·X reported that her mother had not told her how she felt but she thought her mother might feel “a little bit scared and sad that I’m going to get hurt.”
·The writer asked X specifically if she remembered a time when her mother came to live in Melbourne to learn to become a (occupation omitted) and X stayed in (omitted) with someone else for a little while. X could not recall this, stating that maybe she stayed with (omitted) (her uncle) or Mr S (Mr S, who lived with the paternal grandparents) as she couldn’t ever recall staying with anyone else. It is the mother’s contention that X was looked after by the paternal grandparents during this time, while the paternal grandmother and father have both sworn that X was cared for by Mr Collins.
·Based on X’s report, it was not considered appropriate to observe her with her father during this assessment.
Dr L then stated in her memorandum the following:
X’s report was generally consistent with her mother’s account of family violence. The level of detail was consistent with her age and development, with some conflation of events and alleged experiences. She believes these are her own, true memories. While there was no information to suggest otherwise, it is noted that X is of a highly suggestible age and she has been cared for solely by her mother for approximately 18 months, during which time she has had exposure to no other narratives of these events. Due to her young age her report must be considered unreliable and can only be given limited weight with respect to the facts of the family violence. However, her current fear of her father, whether based on true experiences or not, is undeniably genuine, and needs to be treated with sensitivity if reintroduction to her father is determined to be in her best interests.
The conclusions drawn by Dr L in relation to the ongoing conduct of the matter were set out under the heading “Future Directions” in her memorandum and have been previously set out in this judgment.
Dr L was asked what her recommendation would be if the Court made a finding that family violence had occurred. Dr L’s response was as follows:
… the nature of the violence described by the mother and the potency of the violence … the severity of the violence … is concerning … the pattern of the violence too was of a type that has its – a basis in the dynamic of power and control … what is described in literature as coercive controlling violence. It’s a ... typology that fits … the description given by the mother. That is a particular trajectory of risk – associated high risk of harm related to both the … partner of the intimate violence and the children of … that relationship. And so my recommendation would be that if the court does accept the mother’s case and … the violence has occurred in the way that she says it has, then I would have significant concerns about risk of harm to X and I would have concerns, based on the father’s complete and utter denial of the situation, I would have concerns about what benefit an ongoing relationship would have for X…
Dr L was asked that if findings are made with respect to some violence as has been alleged but not of such potency and coercion, what recommendation she would make. Dr L’s response was as follows:
I would still have concerns about the father’s level of insight into the impact on … X of any family violence, but different typology of the violence or different types of violence are associated with different trajectories of risk, and so there are different interventions and different measures that you can put in place that can lower the risk of harm in – in different types of family violence situations. (If) violence … was more of a mutual violence and what we would call … situational couple violence where it was … based in a dynamic of emotional dysregulation and … people not being able to be in control of their emotions and things getting out of hand … people who are able to mediate the handovers and … reduce the opportunities for conflict and contact between parents can be effective in significantly reducing the risk of harm to the children of those relationships and the partners.
Dr L was asked whether she would recommend a reintroduction of X to the Father if the Court found the violence was not at the level as described by the Mother. Dr L’s response was as follows:
I would still have concerns about the father … how much (he) understand what the impact is on the child, and would be suggesting interventions like behaviour change programs and parenting orders programs where there … are professionals involved to try and help develop that level of insight…
Dr L was asked whether she thought X was mimicking her mother’s anxiety rather than exhibiting anxiety arising from her own experience. It is Dr L’s evidence that she could not delineate the two on the basis of the information that she had. It is her observation that X is experiencing significant anxiety at this time and that anxiety can take on a life of itself regardless of the ideology. It is Dr L’s evidence that it is commonly accepted in social science that anxious parenting behaviours elicit anxious symptomology in children. She noted there is a risk of X being exposed to an anxious or fearful narrative about the Father but that she couldn’t say that is what is happening in this situation.
Dr L noted that whether X’s memories are her own or false memories, X certainly believes that the violence she describes as witnessing of her father to her mother occurred.
Ms J’s evidence that she believed X’s were genuine memories was put to Dr L. Dr L indicated she would agree with Ms J’s evidence and that there is a blurring of first-hand and second-hand experiences which give weight to the credibility of X’s reports. She did however note that X is only seven and a half and is at an age of high suggestibility – that if someone said to her “you were there for that” or “you saw that” she can present as if she had had those experiences.
It was Dr L’s evidence that she saw no evidence of X being coached by the Mother.
Dr L was asked about the positive reports from (omitted) in 2011 when X was reintroduced to the Father in a supervised setting after a period of not spending time with him, as well as the video the Father put before the Court of X very happily putting on a show for him during their last weekend together in June 2014 as evidence X was not fearful of the Father at that time. It is Dr L’s evidence that it is really difficult to take single behaviours out of context and try and give them meaning. Dr L noted that young children who have experienced family violence can also have good times with the perpetrator of that violence. It is Dr L’s evidence that a single piece of information cannot be relied upon to tell a story or discern the facts of the matter in relation to family violence.
Dr L was asked about the Mother’s evidence that when X has said she doesn’t have a Dad or when driving through (omitted) X talks about “the baddy” living there, the Mother doesn’t provide X with any reassurance and allows those stories to go unchallenged. Dr L was also asked about the Mother not preventing X from removing the Father’s photographs from her iPad and the impact this would have on X. Dr L’s response was follows:
It would have a different impact on X depending on what her experience has been … If this is a man who she associated with family violence and trauma and … significant abuse, arguably it’s a protective measure to say “You can put him in a box” … “you’re safe now” … It’s a reassuring safety measure. If, on the flip side, Mr Collins hasn’t done any of the things that the mother has said then it’s a very effective way of marginalising the father and … alienating X from him.
Dr L was then asked that if the Father has committed the violence as has been alleged, is the Mother’s behaviours as described the best thing she could be doing for X. Dr L replied as follows:
Look, if he has done the things that he has done he has little rights … in this situation. The impact of witnessing the type of violence that the mother alleges is extremely damaging to X’s emotional wellbeing and I see little benefit in trying to preserve that relationship … Paying lip service to the idea of a father saying “you need to continue to have these photos of him because he’s your father” … if he has done the things that he has done … that’s very unsettling for X to have to keep preserving that relationship and … giving that a place in her heart.
Dr L was asked that if the Court found the violence as described by the Mother had occurred, what would be the impact on X of the Father’s denial of every single incidence of family violence and the lack of insight that denial evidences. Dr L responded as follows:
It invalidates the child’s experience and she’s at an age where she’s looking for guidance from trusted caregivers to teach her about relationships, expectations in relationships and … her identity and self-worth. … In terms of her development of her sense of self and … her maturation as an individual you would expect her to have significant deficits in interaction, in problem solving or conflict resolution. You would expect vulnerabilities in mental health … in mood and anxiety, you would expect that there would be some implications for attachment in relationships … in her attachment and relationship-forming in the future, her expectations around intimate relationships … also how she will be as a parent and how she will parent her own children. So the modelling of the behaviour has … implications, as does the emotional experience of being abused. … Even if the violence stops and X is no longer exposed to that violence, if she continues to be expected to maintain a relationship with the perpetrator of the violence you’re sending a very strong message to her about how society values her and victims of … that behaviour, how little we care about the impact of … those sort of actions as a society. … A perpetrator of that violence and who … doesn’t admit or doesn’t acknowledge there is going to be some internalisation of the responsibility for that behaviour. So if: “it’s not his fault. It’s my fault. And I … deserved it” or “I did something wrong” … it has that flow-on effect in terms of relationship development and … emotional stability and so on.
Dr L was asked what the capacity of the Father would be to develop a level of insight into the impact of his violence if a finding was made by this Court that the violence had occurred. Dr L responded as follows:
I am pessimistic. Just given that, at this point in time, the father presented – his story was compelling. He is invested in his story. He believes his story as much as the mother believes hers, and if – I just wouldn’t find it convincing if he were to turn around in the short term and say “Oh, actually, yes I did, even though I told you all those things I didn’t, actually I did, and now I really, you know, having changed.”
It is the Father’s evidence that it makes no sense that the Mother got back together with him and left X with him when she went to the (employer omitted) for training if there had been the level of violence that was alleged by her to have occurred. Dr L was asked whether it was correct to say victims of family violence stay in relationships with their abusers and if they do separate, they reconcile. Dr L’s evidence is as follows:
That’s not inconsistent with a very common pattern or cycle in family violence where … there is a period of relative calm, where the perpetrator is often very remorseful. The victim is conflicted because there are aspects of the relationship that are loving, enticing … they’re invested in some aspects of the relationship. There’s promises of change. There’s … promises that things will be different. And so then there’s a reunion. And it may also be around … when there’s children, mothers or victims in family violence feel an obligation to try and promote those relationships and to make them work, and preserve that nuclear family. There may be other reasons why they cannot leave around financial dependence or isolation. But it’s not uncommon to see that cycle of reunion and then … a lead up out of that towards an escalation of another incident of family violence, and so we go all around again.
Dr L was asked that if the Court makes a finding that the Mother has deliberately alienated the Father out of jealousy, anger or resentment and will not promote a relationship between X and the Father, is the only way to support the relationship between the parents to make an order for a change of residence. Dr L’s response was as follows:
Yes. If the father’s case is accepted and these stories are a figment of the mother’s imagination, her investment in this story is so strong that I would have concerns about her capacity to allow X to have a relationship with Mr Collins that is independent of her own. And that’s why … I made the recommendations … that reintroduction should occur, it should be a priority, and that X needs to be supported for that to happen. But also the arrangements would require close monitoring for compliance by the independent children’s lawyer because … I don’t want to say that this is the case, but … she is a very high risk of non-compliance, and at that point I think the court would need to consider more drastic change in arrangements.
Dr L was asked if there was a middle ground or alternate way forward in this matter if the Court is of the view that whilst there had been violence in the relationship it was such that it would not be considered to be coercive or controlling or it occurred because there was something in the parties’ relationship that meant the violence was unique to that relationship especially given as there is no evidence the Father had been violent in any other relationship.
Whilst Dr L considered the possibilities of therapeutic interventions to assist X and the parties, she concluded as follows:
I think there’s dangers inherent in us trying to simplify it and find a middle road because that’s convenient for the professionals involved, and kind of patching things up and saying, well, we won’t accept either story, we will say that, you know, maybe it’s somewhere in between, because if X’s experience is that it was one way or the other, we’re doing her a disservice.
I asked Dr L at the conclusion of her evidence the following question:
If there’s a level of violence sufficient to cause me concern then if I’m to understand what you’re saying maybe the best interests of X are served by her not having a relationship with her father?
Dr L replied as follows:
There are situations in which it is not in the best interest of children to have a relationship with both parents, and I think … it is helpful to remain … to continue to keep that at the forefront of your mind that this is around X’s needs, and I think … more and more focus … that society is placing at the moment on family violence is telling us more and more about the fact that we need to pay attention to the sad fact that violent people do not necessarily bring a benefit to other’s lives just because they are biologically related.
The Law
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Best Interests of the Child
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
When determining what is in the best interests of the children, the Court must consider the matters set out in Section 60CC(2) and Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the children’s best interests. They are as follows:
Section 60CC(2)(a) – The benefit of the child having a meaningful relationship with both of the child’s parents
Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
Section 60CC(2A) of the Act provides as follows:
(2A) In applying the considerations set out in subsection (2), (of section 60CC) the court is to give greater weight to the consideration set out in paragraph (2)(b).
As set out at the commencement of this judgment, in order to determine what living arrangements are in X’s best interests, a finding must be made if possible as to whether the Father was violent to the Mother as she alleges or whether the Mother has maliciously fabricated the allegations to prevent X having a relationship with the Father.
Section 140 of the Evidence Act 1995 (Cth) sets out the standard of proof in civil proceedings as follows:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Given the seriousness of the allegations each party makes against the other and the ramifications of a positive finding either way, the standard of proof necessary in this matter is at the very highest end of the balance of probabilities.
The Mother’s allegations of violence by the Father against her in the presence of X are set out in considerable detail in this judgment as is the evidence that supports the Mother’s allegations.
In his closing on behalf of the Father, the Father’s Counsel submitted that the Court could not be satisfied on the balance of probabilities that the violence alleged by the Mother had occurred and in support of this submission identified what he described as the inconsistencies in the Mother’s evidence.
The alleged inconsistencies in the Mother’s evidence highlighted by the Father’s Counsel are as follows:
·In the Mother’s affidavit sworn 1 October 2015 she alleged that X had come from her room to protect the Mother being kicked by the Father in early 2011 but revised this in her trial affidavit sworn 29 March 2016 to mid-2010, which would mean X would have been only 18 months of age at that time.
·The Mother attended (omitted) Medical Centre on 20 May 2010 and made a report of domestic violence. However, nil injuries were sighted or observed by the doctor.
·In paragraph 9 of the Mother’s affidavit sworn 29 March 2016 the Mother alleges that one night in early 2011 the Father came home in the early hours of the morning and punched her in the face whilst she was sleeping. In the morning she called her father who collected she and X and at that time she was swollen and bruised. She deposes that on that occasion she attended (omitted) Medical Centre after she returned from her father’s house in (omitted) and reported the domestic violence. The notes from (omitted) Medical Centre show the Mother attending the clinic on 24 and 25 January 2011 to report a macular rash. She again attended on (omitted) Medical Centre on 21 March 2011 where the records show the Mother advised she had recently separated from her partner for three weeks and is “stressed, sleepless and depressed.” She again attended on 24 March 2011 where she complains of vomiting and pain in the abdomen. It is only on 12 April 2011 that she attends (omitted) Medical Clinic to report domestic violence. At none of these visits are there any injuries commensurate with violence noted.
·The incident report completed by the workers of (omitted) are by friends and work colleagues of the Mother and this report is made only five days after the Mother obtained her first intervention order.
·Whilst there is evidence from Ms A and Ms S that the Mother was often bruised, there is a statement in the Preliminary Police Brief from Ms M, who was also a colleague of the Mother. In Ms M’s statement she states that she never saw the Mother come to work with bruises or other injuries.
·When the police attended the Father’s home on the day before the Mother left to commence her training at the (employer omitted) they saw no sign of injuries on the Mother despite her evidence the Father had grabbed her around the throat and she had red marks on her throat.
·In paragraph 27 of the Mother’s trial affidavit sworn 29 March 2016, she deposes that the Father never hit X. This contrasts with X telling the workers at her child care centre in 2011, Ms J and Dr L that the Father hit her.
·X’s disclosures of violence to third parties only occur when the parties are separated.
·It is the Mother’s evidence that X did not spend a weekend in June 2014 with the Father after the parties’ separation, which is clearly refuted by the text message exchanges between the parties at that time.
·The Mother refers to X being “locked in her bedroom” in her affidavits, her oral evidence and in the statement made by her to the police. When it was pointed out to the Mother during cross-examination that none of the bedrooms in the houses where she resided with the Father had locks on them, she amended her evidence to the Father holding the doors closed so that X thought she had been locked in her bedroom.
·The Mother told Dr L that she was taking X to Ms J on a monthly basis when she has only taken X to Ms J on two occasions.
·The Mother told the Father that “the contract” she required him to sign in mid-2014 before spending time with X had been prepared by a lawyer. She agreed in cross-examination that she had not seen a lawyer at that time in relation to these matters.
·At paragraph 55.16 of the Mother’s affidavit sworn 29 March 2016 she states that she has tried to maintain a relationship with the extended paternal family but in the next sentence admits that following her move to (omitted) she made no effort to contact them.
·During cross-examination the Mother initially denied that she was jealous of the Father’s relationship with Ms B but later in cross-examination admitted that she was acting out of jealousy when she sent the text messages to the Father and Ms B between March and June 2014.
·On both occasions the Mother has made application for intervention orders it has been immediately after she has been contacted by the Father or lawyers on his behalf proposing the parties attend mediation.
·The Mother alleges that X’s bed-wetting and difficulties in sleeping in her own bed are as a result of anxiety arising from exposure to the Father’s violence, but concedes that these are issues X has had for most of her life.
In the closing submissions made on behalf of the Father it was argued the above listed inconsistencies in the Mother’s evidence and the timing of the allegations of violence made by the Mother such that they all take place after the parties have separated show her allegations are intentional lies told by her out of spite and jealousy in order to maliciously prevent the Father from having a relationship with X.
Counsel for the Mother in his closing submissions observed that if the Mother’s allegations are “all a rouse because of Ms Crawford’s jealousy and anger, it is an almighty and extreme conspiracy over many years with many co-conspirators”.
The totality of the evidence is such that I do not accept the Mother’s allegations are made out of spite or jealousy.
The first record of the Mother complaining about the Father’s inappropriate behaviour is in the records from (omitted) Community Health on 18 September 2008 when pregnant with X.
The next independent record of the Mother making allegations of violence against the Father is her medical records of 26 May 2010 when she reports to her treating doctors that the Father has hit her.
In 2010 and early 2011 the Mother tells both her father and her friend Ms A that the Father has hit her and they both observe injuries on the Mother commensurate with the alleged abuse.
The Mother’s work supervisor Ms S observes bruises, swelling, excessive make-up and the Mother wearing long-sleeves skivvies in hot weather over the three and a half years that she works with the Mother. The Mother does not tell Ms S that she has been abused by the Father but Ms S’s description of the Mother and her presentation accords with the Mother’s own evidence of what she would do to hide the evidence of her injuries when she went to work.
On 19 March 2011 there is an incident at changeover between the parties where the Mother alleges that the Father grabbed her around the throat and pushed her down. The records from Victoria Police confirm that the Mother attended the police on that day and made a report to them that accords with her description of the incident.
On 30 March 2011 the Mother attended counselling with (omitted) Community Health and details to them the violence that she says she has been subjected to at the hands of the Father during their relationship as well as the incident at McDonalds. The information given to the Mother and to (omitted) Health again accords with the Mother’s evidence of the violence she alleges she suffered at the hands of the Father as well as what occurred at McDonald’s. On that occasion she is advised by (omitted) Community Health to make application for an intervention order. This is before the Mother is contacted by the Father’s solicitor.
On 6 April 2011 the Mother again attended (omitted) Community Health for counselling. The Mother advised them that she has been contacted by the Father’s solicitor seeking mediation. (omitted) Community Health arranged for the family support worker at the Bendigo Magistrates’ Court to support the Mother in obtaining an urgent intervention order on that day.
On 11 April 2011 X is overheard at (omitted) Childcare Centre making disclosures about the Father hurting the Mother and hitting her. The child care workers complete a contemporaneous incident report that clearly sets out X’s disclosures.
In June 2011 after agreement had been reached for the Father to spend supervised time with X, the Mother completed the (omitted) Contact Centre intake documentation. In that document she sets out in detail her concerns in relation to the Father and his interaction with X. The concerns set out by the Mother are consistent with her evidence about the violence that she was exposed to at the hands of the Father and her other concerns in relation to the Father’s behaviour generally.
After the parties resume their relationship sometime in 2012, the date of which is uncertain, the Mother alleges the Father hit her and that she contacted the Father’s sister and brother-in-law, Mr S to collect she and X because of the assault. Mr S’s evidence is that he attended at the Mother’s home, saw blood on her and overheard the Father threatening to kill the Mother.
In April 2013 the Mother alleges the Father assaulted her after she was contacted by a work colleague who made allegations that Mr S had inappropriately propositioned her for sex. It is the evidence of Ms A that she visited the Mother on this occasion and the Mother told her that the Father had just assaulted her.
In early 2014 the Mother found steroids in the Father’s bathroom after X found a box of used syringes. It is the Mother’s evidence that she was very distressed about this and went to the home of the paternal grandparents to raise the concerns with the paternal family.
It is the Father’ evidence the Mother knew of his steroid use and that she took no issue with it as long as he kept the steroids out of X’s reach. The Father’s evidence in this regard is contradicted by his own mother in the evidence she gave to the Court. It is the paternal grandmother’s evidence that she confronted the Father about his use of steroids, that he initially denied their use and having conceded he was using them, promised her that he would discontinue their use immediately.
The Mother graduated from the (employer omitted) in December 2013. It is difficult to believe that a newly graduated (occupation omitted) would agree to having illegal substances in her home.
It is fair to say there were some inconsistencies and uncertainty in all parties’ and witnesses’ evidence in the context of precise dates and times. Given that many of the incidents about which evidence was being given took place two, three, four or six years ago, it is not surprising that there was some confusion about the exact time or dates that such incidences took place.
What is apparent however is there has been consistent reporting by the Mother of violence perpetrated on her by the Father throughout the entirety of their relationship and that this reporting has been at the time of, or shortly following that violence taking place.
The evidence of the maternal grandfather Mr W, the Mother’s friend Ms A and the Mother’s supervisor at the time she was working in (omitted) Ms S, was compelling.
Mr W was a witness of truth. Whilst initially vague on the precise dates of the incidents, I accept his evidence that on two occasions – the first in late 2010 and the second in early 2011 – he was telephoned by the Mother in a distressed state telling him she had been physically assaulted by the Father. I accept that he immediately got into his motor vehicle and drove 115 kilometres to collect the Mother and X and that on each occasion he observed the Mother to have injuries that were consistent with her having been assaulted.
I also accept the evidence of Mr W that shortly after the first time his daughter had called him to say she had been assaulted by the Father, the Father approached him at a maternal family function and admitted the assault and apologised for it.
The evidence of Ms A is that she has been a close friend of the Mother for 12-13 years. It is Ms A’s evidence that during the period the Mother was in a relationship with the Father there were a number of occasions when she saw bruising and swelling on the Mother and the Mother’s explanation for those injuries was that the Father had hit her.
Many of the instances where Ms A observed injuries on the Mother coincide with specific instances of violence alleged by the Mother.
I found Ms A to be a witness of truth.
Ms S was also a convincing witness. There is no doubt that during the time the Mother worked for her, Ms S observed injuries on the Mother and instances of the Mother wearing heavy make-up and clothing to cover up her body when such clothing was clearly inappropriate for the weather. This caused Ms S to have a genuine concern and belief that the Mother was being abused.
Whilst Mr S’s viva voce evidence as the circumstances under which X is alleged to have found either syringes or the Father’s steroids in early 2014 was initially inconsistent his affidavit evidence of this event, the balance of his evidence in the context of the Mother contacting his former wife and of his attending the parties’ home in response to calls of help from the Mother after being assaulted by the Father, was again consistent with the Mother’s evidence of what occurred during her relationship with the Father.
It is submitted on behalf of the Father that on each of the occasions the Mother made application for an intervention order against the Father, she did so immediately after being contacted by the Father’s then legal representatives proposing the parties attend mediation in relation to X spending time with the Father.
It is the Father’s submission the Mother’s applications for intervention orders were made to prevent mediation taking place and to prevent the Father spending time with X and not because there had been violence or because the Mother was fearful of the Father.
It is the Mother’s evidence, supported by the (omitted) Community Health records, that the Mother was initially advised by the police when she reported the McDonalds incident in 2011 that they did not believe there was sufficient evidence to support the making of an intervention order. It is also apparent from the (omitted) Community Health records that they advised the Mother to obtain an intervention order prior to the Mother being contacted by the Father’s solicitors.
It is the Mother’s evidence that she made an application for a second intervention order as soon as she received the telephone call from the Father as she was concerned he would stalk her as she realised he now knew where she was working and knew her father’s address having visited her father on several occasions when they were in a relationship.
In the Mother’s evidence she had not had need to apply for an intervention order prior to this date as she had not had contact with the Father since June 2014.
In these circumstances, I reject the Father’s submission the Mother’s applications for intervention orders were predicated by contact from the Father’s solicitors but were taken out because of genuine concerns for the safety of herself and X.
It is the Father’s unequivocal evidence that he never physically assaulted the Mother on any occasion during the entirety of the relationship.
The totality of the evidence led by the Mother that is supported by witnesses of credit is such that I am satisfied on the balance of probabilities at the highest standard that the Mother was subject to ongoing and consistent violence at the hands of the Father throughout the parties’ relationship and that X was a witness to that violence on multiple occasions.
It is the clear and unequivocal evidence of Dr L that if this Court makes a finding that violence occurred as described by the Mother, she would have significant concerns about the risk of harm to X if she were to spend time with the Father.
Further, because of the Father’s complete and utter denial of that violence, it is Dr L’s evidence that she would have concerns about what benefit an ongoing relationship between X and the Father would have for X.
Whilst ideally X should be afforded the opportunity to have a meaningful relationship with both her parents, section 60CC(2A) of the Act clearly provides that the need to protect X from the risk of being subjected or exposed to family violence and the resultant physical and psychological harm must be given greater weight by this Court.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must look at when determining what is in the child’s best interest. Each of the matters set out under that section must be considered in turn, where applicable, in determining what is in the child’s best interests.
Given the Court’s finding that the Father has committed serious violence towards the Mother and the ramifications that flow from that, given the evidence of Dr L the relevant factors under that section will only be considered very briefly.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
It is the evidence of Ms J and Dr L that X is genuinely fearful of the Father and does not want to see him.
Because of her young age, it is the evidence of Dr L that her reports as to violence must be considered unreliable and given limited weight with respect to the facts of the family violence.
Given this Court’s findings as to the veracity of the violence, the Court can conclude that X’s genuine fear of her father is a reflection of her own experiences and exposure to that violence.
Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child).
X has a close and loving relationship with the Mother who has been and continues to be her primary carer.
X has not spent time with her Father for over two years and is now genuinely fearful of him. As such, she has no relationship with him.
The Mother is now living in the (omitted)/(omitted) area in close proximity to her father, her brothers and their extended families. The extended maternal family provide considerable support to the Mother in the care of X given that she is a single Mother in full time employment as a (occupation omitted). X has a close and loving relationship with them.
Prior to the parties’ separation X had a close and loving relationship with the extended paternal family. Sadly, that relationship is no more.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
Not relevant.
Section 60CC(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
The Mother is fully responsible for meeting all of the costs of maintaining X.
The Father has not paid child support since the parties’ separation save for the Mother receiving approximately $2,000 from the Father’s 2014/2015 tax return.
When cross-examined about his commitment to paying child support into the future, the Father showed no willingness to commit to financially supporting X into the future. The Father indicated that the Mother would receive some child support if he was entitled to any refund when he next lodged his tax return, given it is the Father’s evidence that he has recently started his own business and that business is not making any money at this time, the Father’s offer in this regard is somewhat disingenuous as it is unlikely there will be any tax refund payable to the Father.
Section 60CC(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
Not relevant.
Section 60CC(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
Not relevant.
Section 60CC(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied the Mother has the capacity to meet X’s physical, intellectual and emotional needs.
It is of some concern, that the Mother has been very tardy in obtaining therapeutic assistance for X, particularly given X’s anxiety, long-term sleeping and bed-wetting issues which the Mother believes stem from X’s exposure to domestic violence.
It is the strong recommendation of Dr L that X have therapeutic assistance to help her deal with these issues and that the limited counselling she has had to date through the auspices of the Mother’s workplace are not sufficient to assist X.
It is therefore strongly recommended that the Mother obtain the appropriate referrals from X’s treating general practitioner to enable X to receive the professional assistance that she needs to move forward.
There must be and is a genuine concern about the Father’s capacity to emotionally support X given the findings made as to his violence, his blanket denial that such violence occurred and the evidence of Dr L of the impact this denial could have on X if she were to spend time with the Father in the face of that denial.
Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant
Not relevant.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60CC (3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Not relevant.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
The findings as to family violence have been clearly set out in this judgment.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This is a matter where it will be in the best interests of X that the orders of this Court see a finalisation of litigation.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
It is the submission of the Independent Children’s Lawyer that there is clear evidence that supports a finding by this Court that there has been a pattern of quite vigorous violence by the Father against the Mother over the course of the relationship which have greatly impacted upon X.
It is the further submission of the Independent Children’s Lawyer that if the Court accepts there has been a pattern of severe violence and hurt the only option at this time is for orders to be made that X spend no time with the Father.
It is the submission by the Independent Children’s Lawyer that the evidence does not support a finding that the Mother has gone about a process of deliberately alienating X from the Father, but rather that she has acted appropriately and protectively given the violence to which she was subjected and to which X was exposed.
Conclusion
As was clearly set out in the introduction to this judgment, the decision as to what should be the parenting arrangements for the parties’ seven and a half year old daughter X is dependent on a determination as to whether the Mother’s allegations of continuous severe domestic violence during the relationship was found to be correct, or whether the Mother was found to have maliciously fabricated the allegations to prevent X from having a relationship with the Father.
It is the Mother’s evidence that she was subjected to continuous physical and emotional violence throughout the entirety of the relationship and that X was a witness of and exposed to that violence.
It is the Father’s evidence that he never once physically abused the Mother and that she has fabricated the allegations out of spite and jealousy to deliberately prevent X being afforded the opportunity to have a relationship with him.
Having considered all the evidence placed before the Court I have determined on the balance of probabilities at the highest standard that the Mother was subjected to ongoing violence throughout the relationship and that X was exposed to and a witness of that violence.
It is the evidence of Dr L that if the Court accepts the Mother’s evidence that the violence occurred in the way she says it has and in light of the Father’s complete denial of that violence she would have real concerns about the benefit to X of an ongoing relationship with the Father.
It is Dr L’s evidence that it will not be in X’s best interests to be reintroduced to the Father even within the relative safety of a supervised setting if there is no foreseeable graduation beyond such a restrictive and resource-intensive arrangement, particularly as reintroduction would be potentially traumatising and likely to undermine any sense of safety X has established post-separation.
An order that a child not spend time with one of his or her parents is quite properly seen by this Court as to be one of last resort and should only be made when the Court is satisfied that the child spending time with that parent would place the child at an unacceptable risk of harm.
X is genuinely fearful of her father and has been and continues to exhibit genuine anxiety about coming into contact with him. She is slowly making progress in addressing those anxieties and developing a sense of safety.
It is Dr L’s evidence that requiring X to spend time with the Father in circumstances where he denies the violence sends her the message that her experiences of violence are not validated, which in turn could lead her to questioning her sense of self and have long-term implications for her emotional and psychological development.
Accordingly, I am of the view that this is one of those rare and unfortunate matters where it must be seen to be in the best interest of X that orders be made that she live with the Mother and that she spend no time with the Father.
Whilst section 61DA of the Act provides the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child, that presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence.
Given the findings that the Father has committed serious family violence, it is apparent that the presumption that it is in the best interests for the parties to have equal shared parental responsibility for X is rebutted. An order will be made that the Mother have sole parental responsibility for her.
Finally, it is the clear evidence of Dr L that X will benefit from much more extensive therapeutic counselling than that which she is currently receiving from Ms J. The Mother is strongly encouraged to put in place arrangements for more extensive counselling for X as soon as possible as it is apparent that whilst X has made some progress, she still requires considerable assistance to fully heal from the impact of her exposure to the violence of the Father.
I certify that the preceding two hundred and sixty one (261) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 19 February 2016
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Duty of Care
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