CORBY & CORBY (No.2)

[2015] FCCA 3213

FEDERAL CIRCUIT COURT OF AUSTRALIA

CORBY & CORBY (No.2) [2015] FCCA 3213

Catchwords:
FAMILY LAW – Parenting – Child aged 12 years – Father sexually, financially and psychologically controlling and coercive – 13 year relationship – impact of Father’s conduct on Child.

Legislation:

Family Law Act 1975, ss.4,60CA, 60CC, 61DA, 65DAA, 65DAC

Applicant: MR CORBY

Respondent: MS CORBY

File Number: SYC 5639 of 2013

Judgment of: Judge Sexton

Hearing dates: 7, 8 April, 29, 30 June, 1, 7 July 2015

Date of Last Submission: 7 July 2015

Delivered at: Sydney

Delivered on: 3 December 2015

REPRESENTATION

Counsel for the Applicant: Mr J. Lloyd SC

Solicitors for the Applicant: Edwards Family Lawyers

Counsel for the Respondent: Ms E. Lawson

Solicitors for the Respondent: Gowland Legal

Counsel for the Independent Children’s Lawyer: Ms M. Neville

Solicitors for the Independent Children’s Lawyer: Louise Coady

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The Mother have sole parental responsibility for the child, X ("X") born (omitted) 2003.

3. X live with the Mother.

4. Subject to Order (5), from the date of these Orders until X attains 16 years of age, X spend time with the Father as follows:

   (a)In Week 1 (commencing on the first Monday after the date of these Orders):

   (i)From the conclusion of school each Wednesday until 8.00p.m.; and

   (ii)On Saturday from 8.00am to 6.00pm when, in the event X is enrolled in a sporting or extra-curricular activity and is required to attend the grounds at a time earlier than 8.00am to warm-up or for pre-game preparation, changeover occur 30 minutes prior to the time X is required to attend the grounds.

   (b)In Week 2 (commencing on the second Monday after the making of these Orders):

   (i)From the conclusion of school each Wednesday until 8.00p.m; and

   (ii)On Sunday from 8.00am to 6.00pm. when, in the event X is enrolled in a sporting or extra-curricular event and is required to attend the grounds at a time earlier than 8.00am for the purposes of warm-up or pre-game preparation, changeover shall occur 30 minutes prior to the time the child is required to attend the grounds.

   (c)At any other time by written agreement between the parties.

5. Upon X attaining the age of 14 years, the Mother be at liberty to propose to the Father an increase in X’s time with the Father to include overnight time, on condition that any such proposal is communicated to the Father in writing and accepted by him in writing before such time commences.

6. Upon X attaining the age of 16 years, X spend time with the Father in accordance with his wishes.

7. Except as otherwise provided,  X spend additional time with the Father on special days as follows:

   (a)If a non-contact Sunday, on Easter Sunday from 2.00pm to 7.00pm in years ending in an even number, and from 9.00a.m. to 2.00p.m. in years ending in an odd number.

   (b)If a non-contact Sunday, on Father’s Day from 9.00a.m. until 7.00p.m,

   (c)On X’s birthday as follows:

   (i)If on a school day, X spend time with the Father from after school until 6.30pm.

   (ii)If on a non-school day, X spend time with his Mother from 9.00am until 2.00pm and with his Father from 2.00pm until 8.00pm.

   (d)On the Father’s birthday as follows:

   (i)If on a school day when X not with the Father, X spend time with the Father from after school until 8.00p.m.;

   (ii)If on a non school day when X not with the Father, X spend time with the Father from 2.00p.m. to 8.00p.m.

   (e)Over the Christmas period, X spend time with the Father as follows:

   (i)On Christmas Eve, from 9.00am to 2.00pm in each odd numbered year, commencing 2015 and between 2.00pm to 7.00pm in each even numbered year.

   (ii)On Christmas Day, from 2.00pm to 8.00pm in each odd numbered year, commencing 2015 and from 9.00am to 2.00pm in each even numbered year.

   (iii)On New Year's Eve, between 9.00am and 2.00pm in each odd numbered year, commencing 2015 and between 2.00pm and 7.00pm in each even numbered year.

   (iv)On New Year's Day between 2.00pm and 8.00pm in each odd numbered year and 10.00am to 3.00pm in each even numbered year.

8. Changeover occur at X’s school when applicable, and otherwise at (omitted) Shopping Centre located inside (omitted) Shopping Centre.

9. X’s time with the Father be suspended on the weekend of Mother's day each year and in substitution X spend time with the Father on the following weekend at the usual times as provided in these Orders.  

10. The Mother be at liberty to suspend X’s time with the Father for two weeks a year, either consecutive or non-consecutive, by giving the Father at least 21 days written notice of her intention to suspend time, such time not to include Christmas Eve or Christmas Day.

11. In the event the Father will be unavailable for X to spend time with him, the Father give the Mother as much notice as possible of his unavailable dates. 

12. The Mother advise the Father by email at least 28 days before enrolling X in any sport or other extra-curricular activity which may affect X’s time with the Father, the Father respond to the Mother’s proposal by email within 14 days and the Mother have regard to the Father’s views before enrolling X in that activity. 

13. The Father take X to any sport and/or extracurricular activity scheduled during X’s time with him. 

14. The parties be at liberty to attend any event involving X to which parents are invited, including:

    (a)sporting fixtures;

    (b)extracurricular activities that allow for parental attendance;

    (c)school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions;

    And the party who has X in his/her care on the day of such activity will be responsible for his day to day care at such event and X’s transportation to and from the event.

15. X have telephone/facetime communication with the Father each Monday and Thursday between 6.00pm and 7.30pm (or alternative times by written agreement between the parties) when the Father will telephone X.

16. X be at liberty to initiate telephone/facetime calls to the Father at any reasonable time when in the care of the Mother. 

17. X be at liberty to initiate telephone/facetime calls to his Mother at any reasonable time when in the care of the Father. 

18. For the purpose of sharing information about X, the parties use email or SMS text messages unless otherwise agreed in writing or in an emergency.

19. Each party notify the other as soon as practicable if X suffers a medical emergency, and advise full details of the treating practitioner consulted and/or medical facility attended, full details of X’s medical condition, treatment plan and each party have access to X’s medical records/information upon request by that party.

20. The Mother provide all authorities necessary to enable the Father to receive notices/reports/photographs from X’s school and/or any other information relevant to his attendance and progress at the school, including information about upcoming school functions and activities/meetings relevant to X. 

21. The parties keep each other advised of their current telephone contact details ensuring any changes are communicated within 24 hours of such change.

22. The Father advise the Mother of any change in his residential address within 24 hours of any change. 

23. The Father be restrained from viewing any pornographic material whilst X is in his care or from exposing X to any such material.

24. Each party be restrained by injunction from discussing court proceedings with X or in the presence or hearing of X or allowing anyone else to do so.

25. Each party be restrained by injunction from denigrating the other party or members of the other's family or household in the presence or hearing of X or from exposing X to any such denigration.

26. The Father enrol in and complete a Parenting after Separation course as soon as practicable and provide the Mother’s solicitor with independent verification of its completion.

27. The Mother forthwith provide a copy of these Orders and Reasons for Judgment to her counsellor.

28. The Independent Children’s Lawyer explain these Orders to X at the earliest opportunity and the Mother facilitate X’s attendance on the Independent Children’s Lawyer for that purpose.   

29. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Corby & Corby (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5639 of 2013

MR CORBY

Applicant

And

MS CORBY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a complex parenting case concerning the parties’ only child X, 11 years of age at the time of hearing, now 12 years of age.  The Mother alleges coercive and controlling family violence by the Father over a long period.

2. Property proceedings between the parties were resolved on a final basis by orders made on 11 November 2015.

3. The Mother and the Independent Children’s Lawyer were represented by Counsel, the Father by Counsel when the hearing commenced in April 2015, and by Senior Counsel when the hearing resumed in June/July 2015.      

4. X has lived with the Mother since the parties separated in May 2013, and has spent regular but limited day time periods with the Father.

5. The Mother has significant concerns about the Father’s capacity to parent X. She describes him throughout the marriage as sexually, psychologically and financially coercive and controlling towards her, obsessed with sexual activity and pornography, an excessive drinker, verbally and physically abusive towards her and largely indifferent to X’s needs. While she supports X having a meaningful relationship with his Father, she seeks to protect X from exposure to the Father’s behaviours, and therefore seeks orders for X to spend only daytime periods with him and on certain conditions, until X is 16 years of age. 

6. Dr C, consultant psychiatrist, prepared an expert report for the Court.[1]

   [1] Exhibit 3

7. The Mother told Dr C at interview that she feels ashamed of what she exposed X to, and deeply regrets not leaving the marriage sooner.[2] In cross examination at hearing, the Mother said “I feel I didn’t protect X, but I am now.”[3]

   [2] Ibid at page 13

   [3] Cross examination of Mother on 30 June 2015

8. Dr C says that if the Mother was bullied, coerced and demeaned as she describes, it would have been very hard for her to leave the marriage. “People increasingly actually find it more difficult rather than less difficult to leave because one’s self-esteem and sense of efficacy is undermined over the years.”[4] Dr C said[5]:

   On the basis of Ms Corby’s history, the relationship was characterised by verbal abuse and sustained sexual coercion, an account that would suggest the pattern of ‘coercion and control’ that is typical of interpersonal or domestic violence. Sexual coercion is most often psychological coercion; it is frequently a feature of coercive control and is more often present where psychological aggression is more in evidence than physical aggression, as is suggested by Ms Corby’s history.  

   [4] Transcript of evidence - 7 April 2015 at page 38

   [5] Exhibit 3 at page 22              

9. While acknowledging many of the Mother’s allegations, at interview with Dr C, the Father expressed no shame for what had occurred, and in Dr C’s opinion, was genuinely perplexed by the Mother’s distress.  He told Dr C he did not know what he had done to upset the Mother, despite having read the Mother’s affidavit evidence, replete with allegations of his behaviour and how he made her feel.  In cross examination, he states he has never harmed her, nor threatened to harm her, nor has he ever harmed X. 

10. In her report dated November 2014[6], Dr C said[7] that in the event the Court accepts the Mother’s account of the history of domestic violence, especially of the pattern of coercive control, she would have concerns about the Father’s parenting capacity.   Dr C said[8]:

    … Research indicates that there is a relationship between various forms of child maltreatment and adult intimate violence; (Stanley et al,1993; Tomison 2000); research also suggests that individuals who are abusive towards their partner are likely to be deficient if not abusive as parents and that the risk of child abuse in the context of ‘coercive controlling violence’ is very high’ (Jaffe et al, 2008).

    [6] Exhibit 3

    [7] Ibid at page 24

    [8] Ibid

Background facts

1. The parties commenced living together in early 1998 and married on (omitted) 2000. X was born on (omitted) 2003. The parties separated on 29 May 2013 when the Mother temporarily left the former matrimonial home at (omitted) with X.      

2. The Father, aged 48 years, lives in two bedroom rented accommodation in (omitted).  The Father is employed as an (occupation omitted) for (employer omitted), where he says he manages a team of 12 staff.  The Father says he has flexible work arrangements and could leave work at 2.30p.m. to collect X from school. He says he is not currently in an intimate relationship, though has had a few casual sexual relationships since separation. 

3. The Father deposes to being fit and actively engaged in sport.  He enjoys a healthy lifestyle which he is keen to teach X. He plays (omitted) football and has won awards for “best and fairest”. During summer, he does 2 or 3 triathlons to stay fit. He describes his weekly exercise routine as a 10 km run on Monday lunchtime, a 7km run or 1km swim on Wednesday lunchtime, a 50km bike ride on alternate Saturdays, 2 to 3 km swim on alternate weekends and 2 to 4 gym sessions. He has participated in 9 City to Surf races and 3 classic fun runs. He describes himself as a good cook who eats healthy foods.

4. The Mother, aged 51 years, lives with X in a 2 bedroom apartment in a secure block with access to a pool and a hall. The Mother works 4 days a week for a (employer omitted) company in (omitted), Monday to Thursday. She tells Dr C she is sociable with a good network of friends, some very longstanding.  The Mother has not re-partnered.

5. X is in Year 6 at (omitted) Public School where he commenced in Kindergarten.  He attends before and after school care on the days his Mother works. At the conclusion of the hearing, the Court noted the parties’ agreement to enrol X at (omitted) College for his secondary education, although at that time, they had not resolved their property issues or who would meet the school fees.

Care arrangements since separation

1. As already noted, X has spent limited periods with the Father since separation in May 2013, with no overnights.  According to the Father, the Mother refused his initial requests for X to spend time with him.  Initially, X saw his Father at his weekly soccer game, but the Father was playing (hobby omitted) on a Saturday so could only stay at X’s soccer for an hour.  Next, X spent an hour with the Father after his swimming lesson, and from the end of June 2013, for 7 hours each Sunday when the Father organised a range of activities for him.  From August 2013, the Father says the Mother required X’s time with him to be supervised by Phoenix Rising.  An issue arose about the expense of the supervision, and it is not clear on the evidence whether that arrangement went ahead.  X and the Father spoke regularly on the phone.          

Current parenting arrangements

1. At the time of hearing, X was spending time with the Father in accordance with interim orders made in November 2013, on each Wednesday from 5.45 until 7.30p.m and on each Saturday from 2 p.m. until 7 p.m. The Father had the option to substitute the Saturday time for an 8 hour period on Sunday if the time was supervised on the Sunday by specified adults. X’s time with the Father is subject to certain conditions: unsupervised time must occur in a public place; (without admissions) the Father is not to consume any alcohol either during X’s time with him or in the previous 12 hours; (without admissions) the Father is restrained from viewing any pornographic material whilst X is in his care or to expose X to any such material; that the Father is not to take X to his home; that the Father is not to take X further than 20km from the matrimonial home; the Father must be present when X in his care with no other person except a supervisor or family member, unless otherwise agreed in writing; and the Father is to take X to swimming lessons each Saturday X is with him from 4 to 4.30 p.m.  These interim orders provide for time on special days and telephone time. The Father says he does not always use the telephone time but usually calls X once a week.  Changeover was occurring at the (omitted) car park in (omitted).  On the final day of hearing, the parties agreed changeover, when not at X’s school, would occur outside (omitted) Shopping Centre at (omitted) Shopping Centre.   

Orders sought by the Father

1. In final submissions, the Father seeks an order for equal shared parental responsibility and for X to live with the Mother. He seeks orders for X to spend time with him for a period of 3 months, each Wednesday after school until Thursday morning, each Saturday from 10a.m. to 5p.m, and for 5 consecutive nights in the September/October 2015 holidays. For the following 3 months, the Father proposes that X spend alternate weekends with him from after school Friday until 5.00p.m. Saturday, and each alternate Saturday from 10a.m. to 5.00p.m., each Wednesday after school until Thursday morning, and half the Christmas holidays. The Father seeks an order that X thereafter spend alternate weekends with him from after school Friday until before school Monday (or Tuesday if Monday a public holiday) and from after school Wednesday until before school Thursday in the alternate week.  He seeks half of all school holiday periods and time on special occasions. He seeks an order providing for a restraint on either party taking X overseas without the consent of the other party, and specific provisions about notice and sharing of information in the event permission is given for overseas travel.  He seeks orders about the exchange of medical information and contact details, as well as orders about attendance at school events, sporting activities and extra-curricular events.  The Father seeks an order providing for the parties to be at liberty to text or telephone X to promote reasonable communication, that each party be restrained from denigrating the other, or from discussing the proceedings in X’s presence.  His Minute notes that the Father will provide X with a mobile phone at his expense for X’s use.[9]

   [9] Exhibit 1 as amended

Orders sought by the Mother

1. In final submissions, the Mother seeks orders for sole parental responsibility, for X to live with her and until X is 16 years old, to spend time with the Father in a public place, unsupervised, each Wednesday after school until 8 p.m., from 8.00a.m. to 6.00p.m. on each alternate Saturday (or earlier if X is required at sport earlier on the Saturday), and from 8.00a.m. until 6.00p.m. on each alternate Sunday (or earlier if X is required at sport earlier on the Sunday). Upon X attaining 16 years, time be increased to each Wednesday after school until 8.00p.m. and each alternate weekend from after school Friday until 6.00p.m Saturday. Changeover to occur at school or at (omitted) Shopping Centre. The Mother proposes that X spend time with the Father on Father’s Day, on X’s birthday and the Father’s birthday, Easter Sunday and over the Christmas period. She proposes that the Father be at liberty to attend sporting fixtures, extracurricular activities when parents are permitted to attend, and all events at X’s school which allow parental attendance.  She seeks orders for telephone contact twice a week, and information sharing between the parties.  The Mother seeks injunctions to restrain the Father from consuming alcohol when X is in his care, and for 12 hours prior, from viewing pornographic material while X is in his care, or exposing X to such material, from physical chastisement, (and mutually with party in front of X.[10]

   [10] Exhibit 2A

Orders sought by the Independent Children’s Lawyer

1. The Independent Children’s Lawyer seeks final orders for the parties to have equal shared parental responsibility for X, for X to live with the Mother and to spend time with the Father from Wednesday after school until Thursday before school each week, on each alternate Saturday from 10.00a.m. until 5.00p.m, all day Father’s Day until the next morning before school, for one overnight in the October 2015 school holidays, for 2 nights from Christmas Day 2015, for 2 consecutive overnights in January 2016 and for 3 consecutive nights in the short school holidays in 2016. Once X attains 13 years, the Independent Children’s Lawyer proposes that X spend time with the Father each Wednesday from after school until before school Thursday, each alternate weekend from Friday after school until Monday morning, for one night over the Christmas period, for no less than 3 consecutive nights in the short school holiday periods, and Christmas holiday period, and on special occasions. The Independent Children’s Lawyer proposes that changeovers occur at school where possible, and otherwise at (omitted) Shopping Centre, and that the parties communicate by way of SMS or email unless an emergency. The Independent Children’s Lawyer proposes orders about information sharing and a non-denigration order.   

Recommendations of Dr C

1. In her report dated November 2014[11], Dr C did not support an equal time arrangement as sought by the Father at the time of interview. She highlights her serious concerns about the Father’s parental capacity if the Court is satisfied of the truth of the Mother’s allegations. In cross examination in April 2015, Dr C recommended that X spend time with his Father engaging in sporting activities, ideally involving a team or a club.  This would involve daytime contact only, away from the Father’s home. In cross examination in July 2015, Dr C said X may be safe with the Father for an overnight, as long as the time remained limited, to ensure the Father could prioritise X’s needs over his own. However, when X has matured (at say 14 years or so, although the time is “unknowable”)[12] she said that more time with his Father may be in X’s interests.  If there is a dispute as to when the increase in time should occur, the Mother should be the parent to decide.[13]

   [11] Exhibit 3

   [12] Transcript of proceedings  - 1 July 2015 at page 54

   [13] Ibid

Litigation history relating to parenting issues

1. On 26 September 2013, 4 months after the parties’ separation, and when X was almost 10 years old, the Father commenced proceedings for property adjustment and parenting orders providing for an equal time arrangement.  

2. On 25 November 2013, the Court made interim orders by consent providing for X to spend time with the Father for a short time each Wednesday evening and for 5 hours each Saturday, all time unsupervised.  The Father had the option of substituting an 8 hour period on a Sunday, supervised, for the shorter unsupervised period on the Saturday. 

3. On 10 April 2014, the Court made an order for the appointment of Dr C, consultant psychiatrist, as the Court expert.

4. On 20 November 2014, the matter was transferred to my docket. On 28 November 2014, Dr C’s report was released to the parties.

5. In late February 2015, the matter was listed before me on 7 April 2015 for final hearing on parenting matters, for 3 days.  An Independent Children’s Lawyer was appointed.

6. On 8 April 2015, after an interlocutory hearing on the admissibility of evidence of audio tape recordings found by the Court to be admissible, the final hearing was adjourned to 29 June 2015.  On 16 April 2015, reasons for judgment on the evidentiary issue were handed down.

7. On 29 June 2015, an order was made for the Mother to arrange X’s further attendance on Dr C, and for the Mother’s solicitor to forward the audio tape recordings to Dr C.

8. On 7 July 2015, the Court noted the parties’ agreement that X would attend (omitted) College in (omitted) for his secondary education, but they were yet to resolve who was to pay his fees.  An interim order was made by consent that changeovers occur outside (omitted) Shopping Centre at (omitted) Shopping Centre when X is not at school. 

Legal principles

1. These proceedings were commenced after 7 June 2012. Relevant amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore apply.

2. The principles governing parenting cases are set out in Part VII of the Family Law Act 1975. Section 60CA provides that the Court must regard the best interests of the Child as the paramount consideration. To determine the Child’s best interests the Court must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations, when determining what orders are in the best interests of the Child, the Court must consider all the factors before making a determination.

3. The primary considerations are firstly the benefit to the Child of having a meaningful relationship with both of the Child’s parents and secondly, the need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard. 

4. Section 60CC(2A) requires the Court, in applying the primary considerations, to give greater weight to the primary consideration in section 60CC(2)(b).

5. The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:

   ·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

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

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

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

6. The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children. An additional object has been included to give effect to the Convention on the Rights of the Child.

X’s care history

1. It is common ground that the Mother has been X’s primary carer since his birth, though the Father disputes the Mother’s claim that she almost exclusively undertook the caring role with almost no support from him. The Mother says she has always attended to X’s needs, as well as being fully responsible for domestic tasks inside the home. The Mother says the Father complained about the cleanliness of the house but did not help with the cleaning. The Mother says she struggled emotionally after X’s birth and despite her requests for help from the Father, he offered “minimal emotional support and assistance” and she depended on visits from a midwife.[14] She says the Father told her it was her job to get up to X at night, to change him, to bathe him and if she needed help she should stay with her parents.  Although she returned to part time work when X was 7 to 8 months of age, the Mother says the Father believed that caring for X was the Mother’s job and he therefore had minimal interaction with X. The Mother deposes to X being constantly in her care and to the Father spending his time outside working hours playing or coaching sport, socialising, or doing as he pleased. The Mother told Dr C that the Father missed X’s birthday party one year to go bike riding and on another he sat outside with his mates drinking beer. The Father trained for football two nights a week, played tennis one night a week and played football on Saturdays. He chose not to accompany the Mother and X on holidays with the Mother’s family.

   [14] At paragraph 27 of Mother’s affidavit sworn on 17 March 2015

2. According to the Mother, the Father has always given X’s wishes and needs low priority, took little interest in X’s activities, even when X asked him to be involved. At around the age of 6, X enjoyed dancing, but stopped when the Father said “Stop dancing. I don’t want you turning out gay.”  When X was practising a speech for school, the Father would rarely focus attention on X, increasing the volume on the television instead of listening to X’s practice. The Father went to X’s soccer matches only a handful of times in over 5 years, X’s swimming only a handful of times over 7 years. The Father agrees he never attended a parent teacher night because he stayed home to look after X.  He did not attend X’s presentations or after hours events.

3. The Mother deposes to the Father not accepting X’s diagnosed learning delay, taking no interest in the educational/health interventions organised for X’s learning support. The Father denied X suffered either from mild asthma, or from a learning delay. 

4. On the Father’s case, he bottle fed X, got up to him at night, and shared all caring tasks. The Father deposes to looking after X on his return home from work each evening.  He says he was responsible for dropping X to and from day care in (omitted) for 3 years, when the Mother was working 4 days a week. He was responsible for feeding X and caring for him for an hour or so before the Mother arrived home from work. The Father told Dr C that he did not cook or do the dishes but would help clean up.  He believed he did a lot of domestic work.  

5. As a school aged child, the Father acknowledges that the Mother was usually responsible for getting X to and from school.  However, the Father says he helped X out of bed to get dressed each morning until he was 7 years of age.  The Father reminded X to clean his teeth.  In the evenings, from the time they lived in (omitted), the Mother would prepare dinner and the Father would care for X, often playing football, handball, mini tennis or cricket outside. They swam together in the spa, jumped on the trampoline and wrestled on the couch. The Father deposes to being responsible for getting X into the shower most nights, helping him with his homework at least once a week, helping him with maths, listening to him reading, or helping him with tasks set by his tutor. He acknowledges the Mother helping X with his homework if he was cooking a barbecue or otherwise occupied. The Father deposes to attending “as far as possible”[15] most of X’s school events, including sports carnivals, the school fete and presentation evenings (including taking days off work) although acknowledges the Mother attended more events than he did.    

   [15] At paragraph 7(q) of Father’s affidavit sworn on 25 March 2015

6. In cross examination, it was evident the Father had made significant errors in his trial affidavit about the dates and the timing of particular events, and the extent of his involvement in X’s care. Dr C found it notable that the Father was precise with dates but confused about the year of X’s birth.[16]

   [16] Exhibit 3 at page 15

7. The Father’s poor recollection of X’s care history resulted in a number of inaccuracies in his affidavit.  For example, the Father said X started school in 2008 when he started in 2009; he said X was at (omitted) day-care for 3 years on 4 days a week, when he was actually there 2 days a week for 10 months. The Father did not mention X’s move to a preschool in (omitted) in early 2005 for 3 days a week, when the Mother and X lived with the maternal grandparents from February to July 2005, before the parties moved to (omitted).  Having deposed to doing all the transport to and from X’s day care for 3 years, 4 days a week, in cross examination, the Father concedes that the Mother did every drop off and pick-up when X was at (omitted) day care. The Father also concedes he could not have engaged in sporting activities with X as he claimed when they moved to (omitted), because X would have been too young.  In contradiction of his affidavit evidence, he acknowledged the parties did not have a spa at (omitted) until shortly before separation.  The Father concedes that he had never been to a parent teacher interview and has never organised a separate meeting with X’s teacher.  He said “I would just get the information from Ms Corby.”[17] The Father acknowledged that he did a lot for himself that did not involve the Mother or X saying, “there was a lot of sport.”[18]

   [17] Transcript of proceedings – 29 June 2015 at page 125

   [18] Ibid at page 130

8. In addition, I find unexplained inconsistencies in the Father’s evidence.  For example, he claims to have played outside with X on his return from work each day, but also says the Mother would not allow X to be outside with him.  He says he was actively involved in X’s care but that the Mother would never allow him to do anything with X or care for him.  He acknowledges his habit of having sex with the Mother on his return from work, yet claims to have engaged with X on his return from work when the Mother was cooking.  He claims to have been a capable carer for X when the Mother was visiting her mother in hospital each evening for a two week period, but then acknowledges not getting him any dinner on two occasions “because of other house chores.”  

9. I am not satisfied that the Father was involved in X’s care or in domestic tasks during the marriage to the extent he claims in his affidavit.  While I accept that he engaged in activities with X and in tasks outside the house, I find the Father has exaggerated his parenting and domestic role. Letters from (omitted) after school care, X’s soccer team manager[19] and swimming school[20] confirm the Mother’s evidence that she, not the Father, has been the parent to manage and support X’s extracurricular activities. I find the Father has had minimal involvement in X’s extra-curricular activities.  I find that during the marriage, the Father spent much of his time outside working hours engaging in his own social activities, particularly sport, leaving the majority of household tasks and X’s care to the Mother. My findings here are supported by Dr C’s observation of X when asked about spending time with the Father. Dr C said, “so I would wonder whether… there wasn’t...very much interaction even when the family was intact.”[21]

   [19] Annexure M to Mother’s affidavit sworn on 17 March 2015

   [20] Ibid at Annexure N

   [21] Transcript of proceedings – 1 July 2015 at page 43

Evidence relating to X

1. The Mother deposes to X being a happy boy who enjoys the company of other children, is a good swimmer, loves soccer, and is keen to start tennis lessons.  He enjoys playing video games and building lego. The Father deposes to X being fearful of new situations/experiences. He does not want to go camping because he is “scared of spiders, snakes and the dark” but has now decided fishing would be fun, and would like to give it a go.  He was once scared of swimming in the surf, but now loves the beach and the water.  The Father says X still has a fear of elevators and planes. Dr C assessed X in June 2014 as developmentally appropriate for his age, though not a mature child.  She assessed him as a quiet boy.  

2. The Mother says X was born with a severe tongue tie which was repaired when he was a few months of age. His milestones were delayed, crawling at 12 months and walking at 23 months. X’s preschool teachers noticed a delay in X’s communication and comprehension skills. In September 2010, X was assessed at the Learning Difficulties Clinic in the (omitted) Hospital, referred by his school counsellor due to concerns about his learning and attention.[22] The assessment revealed his need for ongoing speech therapy for language and literacy skills, need for support at school, and implementation of strategies to assist with his attention.[23]

   [22] Annexure L of Mother’s affidavit sworn on 17 March 2015

   [23] Ibid

3. According to his speech pathology review assessment of March 2015, X presented in 2010 with “mildly delayed overall language skills, characterised by receptive language skills within average range and mildly delayed expressive language skills.”[24] His verbal cognitive skills were within the low average range. A reassessment of his skills in 2013 did not indicate substantial improvement and recommended practice at home for short periods every day. In March 2015, X presented with receptive language skills borderline for his age. His expressive language skills were mildly delayed. X presented with poor reading comprehension and reading accuracy. It was recommended that X continue to attend regular speech therapy sessions. The speech pathologist said practice at home several times a week will be important for the success of the programme.[25]

   [24] Annexure A of Mother’s affidavit sworn on 17 March 2015

   [25] Ibid

4. X continues to attend speech therapy fortnightly during school hours and the Mother says X’s speech has been gradually improving. He has twice weekly lessons with the learning assistance teacher at school to assist him with comprehension and numeracy. X usually has weekly sessions with Ms B, a primary school teacher, to assist him with his homework, particularly maths, English and reading. The Mother says that X’s teachers told her at a recent parent/teacher night that X has been a lot more settled over the last year.[26] The Mother says the Father never accepted that X has learning difficulties, and took no role in assisting him.  The Father deposes to being told by the school (with the Mother) that X was only 6 weeks behind his peers.  He was unaware X was still having speech therapy. As already noted, I find that the Father has had limited involvement in X’s education or need for remedial assistance.

   [26] Transcript of proceedings – 1 July 2015 at page 3

5. X was having tennis lessons during second term and the Mother intended to re-enrol him in third term. He continues to love sport and swims in the complex in which they live, a home X loves and the Mother hopes to purchase.  

The Father’s conduct 

1. The Mother describes the Father’s behaviour towards her throughout the marriage as coercive and controlling.  She says he intimidated and harassed her sexually, financially, emotionally and at times physically, and that he drank alcohol to excess.  She says that he “spoke to me in a demanding, forceful and demoralising tone…his body language was intimidating and dominant.”[27] He believed he had ‘rights’ as her husband, and that she had ‘duties’ as his wife, those duties including caring for X, undertaking most domestic tasks inside the home, including all the cooking and cleaning, and servicing him sexually almost daily.  The Father concedes that he has said to the Mother “you’re female. It’s your duty to be in the kitchen.” She says even when she was ill, the Father expected her to cook his dinner.  He would be angry if the dinner did not suit him. Prior to them engaging in counselling in early 2012, the Father said:[28]

   …if you want this relationship to work you need to do things proper… that is proper sex and dinner… you need to be a proper wife.. .get those clothes off and put something decent on… put your g-string on…you need to wear one every day.

   [27] At paragraph 48 of Mother’s affidavit sworn on 17 March 2015

   [28] At paragraph 72 of Mother’s affidavit sworn on 17 March 2015

1. When challenged by the counsellor at Relationships Australia as to his behaviours towards the Mother, according to the Mother, the Father laughed and said the counsellor was on the Mother’s side.  He would not consult her again. The Father told Dr C that he could see no benefit because ‘from her point of view it was all me’.[29]  

   [29] Exhibit 3 at page 16

2. In February 2008, referred by her GP, the Mother reported the Father’s conduct to a counsellor, Ms M, whom she consulted for approximately 12 months. She had presented to her GP with stress related symptoms.[30] The Mother told Ms M that she was always nervous when the Father was around and felt powerless. Ms M advised her to leave the marriage but the Mother was frightened to leave him for fear of how he would react. The Mother wanted the Father’s behaviour to change but did not want the family broken up.  She did not see Ms M again until 2012.  From March 2013, the Mother consulted a counsellor, Ms L of the (omitted) and Children’s Centre whom she continues to consult fortnightly.  

   [30] Annexure F of Mother’s affidavit sworn on 17 March 2015

3. Ms L reports the Mother visiting (omitted) police on 4 separate occasions, finding herself too frightened to disclose to police how the Father was treating her on the first three visits. She was scared to leave the marriage, because “she feared for her life and the wellbeing of her son X.”[31] The Mother reported the Father’s behaviours to police for the first time on 14 May 2013.[32] She left the home on 29 May 2013.  On 3 June 2013, the Mother applied for an Apprehended Domestic Violence Order and a Provisional order was made against the Father on 4 June 2013 and a final order on 25 July 2013. In her statement to police of 3 June 2013, the Mother said[33]:  

   I have been living a life walking on egg shells, terrified that something I say and do will result in Mr Corby screaming and shouting at me.  I worry all the time that my son X is growing up in such a toxic environment that he will never know what it is to be in a safe and loving environment. I have noticed that X’s behaviour has started to mimic that of Mr Corby’s, in that he expects me to do everything for him and has started pushing me with his hands into my back.  I have made the decision that I need to leave…

   [31] Annexure B of Mother’s affidavit sworn on 17 March 2015

   [32] Ibid

   [33] Annexure E of Mother’s affidavit sworn on 17 March 2015

4. The Mother told police the Father’s anger towards her had intensified and she was always fearful around him. She said “he just glares at me…I am waiting for something bad to happen.”[34]  The police report[35] states:

   Police are of the opinion that the victim is living in a toxic environment and to benefit herself and family, either party needs to be removed from the situation.  Police feel the victim’s fears are real and of a concerning nature.  The victim’s demeanour when speaking with police has been extremely emotional, crying, she appeared scared, she found it very difficult to disclose to police her version of events.

   [34] At Annexure E of Mother’s affidavit sworn on 17 March 2015

   [35] At Annexure AD of Father’s affidavit sworn on 25 March 2015

5. In relation to his constant sexual demands of her throughout the marriage, the Mother says the Father made her feel “extremely uncomfortable and upset” “anxious” and “miserable”.[36] He required her to engage in sexual activity with him almost daily, 6 to 7 times a week, sometimes twice a day, often in front of a pornographic DVD.  She says in the beginning she complied with his wishes without complaint, but his demands escalated over time. When she refused him, there would be an argument.  The Mother deposes to feeling degraded, helpless and frightened by the Father’s demands of her.

   [36] At paragraphs 44, 47 and 52 of Mother’s affidavit sworn on 17 March 2015

6. In particular the Mother alleges:

   a)The Father demanded she engage in sexual activity with him whether or not X was in the home needing the Mother’s care and attention, whether or not the Mother was unwilling or unwell, including during her pregnancy. He would often say to her:  “this is something you should do as my wife, there shouldn’t be a debate.”[37]

   [37] At paragraph 44 of Mother’s affidavit sworn on 17 March 2015

   b)Nearly every day from the early months of the marriage until separation, the Father would say to her “get in the bedroom and spread your legs” and “lie down and pretend you like it” or “get something decent on” and “you know what you need to do – give it to me.”[38] 

   [38] Ibid at paragraph 48

   c)At times the Father would throw underwear at her or a dress or a top he wanted her to wear and say “put it on… you need to give it to me”.[39] At times he would go through her wardrobe, pulling out clothes for her to put on while they had sex.  If she tried a new dress on at home, the Father would say “come on, let’s do it… I need to do you in that dress.”[40] He screamed at her if she was not quick enough to get changed into something he wanted her to wear for sex.  At times, while having sex with her, he would grab her shoulders and move her into the position he wanted, hurting her.  She says “Mr Corby was very forceful in making me stand in a certain position.”[41] 

   [39] Ibid

   [40] Ibid at paragraph 53

   [41] Ibid at paragraph 48

   d)The Father’s obsession with pornographic material escalated after X was born. He watched pornography and masturbated in the study on an almost daily basis, at all hours of the day and night, including immediately after they had sex together, unconcerned about X’s whereabouts.[42] The Mother annexes a series of screen shots from the parties’ home computer to show the numerous sites used by the Father to view pornography. When in the study, the Father would remove his clothes and sit at the computer naked. The Mother several times walked into the study to see the Father naked behind the desk watching pornography and masturbating, whether or not X was awake or nearby.  She recalls saying to the Father on occasions “please turn the DVD/computer off/ or the volume down as X can hear it.”[43] On occasions X said to her “where is daddy, what is he doing?” and the Mother would respond “Daddy is just doing some work.”[44] At times the Father demanded she go to the study where he was watching pornography, and forced her into certain positions to pleasure him sexually. The study door had no lock, so if the Father was in there alone, the Mother would keep X away, or if possible, take him away from the house.  The Mother deposes to 3 occasions when she failed to stop him going in.  She says X walked into the study to find his Father naked, and masturbating.  On one occasion after X had gone in, he came out and said to her “Mummy, daddy is looking at ladies with no clothes on.”[45] If she was in the study with the Father, she would stand at the door to stop X getting in. 

   [42] Ibid at paragraph 40

   [43] Ibid at paragraph 40

   [44] Ibid at paragraph 40

   [45] Ibid at paragraph 39

   e)On Sunday mornings the Father used to say “give it to me twice today...it’s Sunday” or “give it to me now and I will leave you alone for the rest of the day”.[46]  If the Mother said “not now, I’m tired,” the Father would respond angrily “you are my wife… it is your job.”  

   [46] Ibid at paragraph 52

   f)A usual day consisted of both parties working, and the Father arriving home in the late afternoon/early evening. He would often refer to sex as “business”. As soon as he arrived home, whatever the Mother was doing (even if she was cooking dinner or helping X with his homework), the Father would say, “Get in the study or bedroom. I want it now.”[47]  If the Mother protested “not now, I am busy with X” the Father would become aggravated, raise his voice and say “give it to me now”.[48] The Mother says she often complied to avoid a scene. She would give X his iPad or turn on the television to make sure X was occupied and say to him, “mummy will be back”.  She says X was compliant. However, the Mother recalls approximately 15 times after 2009/2010 when X would come looking for them when they were in the bedroom or the study.  X would be at the door of the bedroom or study saying “mummy, what are you doing?”; “mummy, I am hungry, I need food” or “Mummy can you help me with my homework”. She would respond “Mummy will come out soon.”  The Father used to say “X, get away” and to the Mother “don’t go out there, finish off in here, you need to give it to me, X can wait.”[49]  The Mother says she was “captive in there.”  She would lie there and wait for the Father to climax.  It would take 20 to 30 minutes. 

   [47] Ibid at paragraph 45

   [48] Ibid

   [49] Ibid at paragraph 51

   g)She tried to avoid having sex.  Sometimes she would leave the house with X and delay their return to avoid the Father when he returned from work, because he had a habit of being at home for about 30 minutes, and want sex in that period, before leaving for sports training. 

   h)The Mother avoided having a bath when the Father was in the house, because he would stand over her and watch her. She used to wait until he was in the backyard or watching television or out of the house “to minimise the risk of him walking in on me getting changed and then wanting sex.”[50] If the Father was at home, “he would continually demand and harass me until eventually it wore me down and I did not have the energy to resist any further.”[51]

   [50] Ibid at paragraph 50

   [51] Ibid at paragraph 46

   i)His appetite for sex and pornography “was insatiable” and he would often boast about it to his friends.[52]  At one stage the Father bought binoculars to look at a girl showering in a nearby unit. On Australia Day 2010, the Father had gone to the home of the parties’ close friends Mr A and his wife Ms W.  Mr A found the Father in the spa with his wife and another couple, all naked.  His email to the Father dated 14 February 2010 describes Mr A’s disgust at discovering his “best mate” had treated him with such contempt.[53] “What made you think it was even remotely acceptable to take off your clothes, flop out your dick, ogle my wife’s pussy, encourage her to pash Ms L and do god knows what else before I put a stop to the whole affair – all while I was supposedly upstairs sleeping?” Mr A decided the Father could no longer be his son’s godfather and that he would also be unable to fulfil his role as X’s godfather.  The Mother says this was a significant loss for X because his son A had been X’s best friend.  The Father does not deny his role in the incident.  In cross examination he acknowledges that the events of that night resulted in an abrupt end to X’s friendship with his friend’s son A, and an abrupt end to the Mother’s relationship with the friend’s wife Ms W.  The Father says he was responsible for “hopping” in the spa naked with three others, but not responsible “for the wreckage in other people’s relationships.”[54]

   [52] Ibid at paragraph 57

   [53] Annexure I to Wife’s affidavit sworn on 17 March 2015

   [54] Transcript of proceedings – 29 June 2015 at page 162

   j)In February 2010, the parties were invited to a friend’s home for dinner. The host asked the Father by email the name and age of their child and if they had any dietary requirements.  In his email of 22 January 2010 the Father replied[55]^:

   [55] Annexure H to Mother’s affidavit sworn on 17 March 2015

   My dietary needs are – meat skewers served by skinny, big breasted, very short skirt & G string underpants, good looking young hot chicks! Other than that…just a few beers will be fine!  If you cannot accommodate, you have to ask Ms E, Ms Corby and Ms C to wear a tight short see-through clothing… and with a happy smile all day!  And, if that is not forthcoming… turn the porn channel on and let the kids play outside!   And, if you don’t have any porn!  We’ll just have to drink outside and mind the kids while the wives chit chat about nothing for hours on end!

   Despite being asked about his child, the Father did not mention X in his email response to the host. In cross examination, when asked about his email, the Father said it was a “fun, joking email – that’s the way he would have taken it.”[56]

   [56] Transcript of proceedings  - 29 June 2015 at page 160

   k)In February 2012, the Father was using a dating website, his profile describing his interests as “fetishes” “one night stands” and “threesomes”.[57] The Mother was frightened she would contract a sexually transmitted disease from him. She was scared to leave because he would threaten to take X, and to sell the house. However, the Mother thereafter refused to have intercourse every time he initiated it, citing medical problems. She told the Father a fabricated story that she was having tests and could not engage in sexual intercourse for a time.  He would repeatedly ask whether she had been to the doctor to get the problem resolved so he could have “proper sex”.[58] She asked the Father to use a condom which angered him.  She says that every day she still had to pleasure him in other ways. 

   [57] Annexure K to Mother’s affidavit sworn on 17 March 2015

   [58] At paragraph 70 of Mother’s affidavit sworn on 17 March 2015

   l)On 25 March 2012, the Mother refused the Father’s demand for sex. X was present.  She heard the Father screaming for her as he came up the hall. The Father wanted sex.  She said “No”.  X was present. She took X to the bedroom. The Father was angry.  She turned on the recorder on her phone.[59]  She says she “taped the yelling so that I could have some proof of what I had been experiencing in the relationship with Mr Corby”.[60] X was close by. The Father was yelling and screaming. X said, “Hey mama…. Are you really going to do that?” The Mother asked the Father to “settle down”.  She says she did not have time to get out of the house and did not know where the Father’s anger would lead.  She says “I felt degraded, helpless and that I had no say over my body. While he was yelling at me, I felt that I existed just to satisfy his sexual needs.”[61] The Father said, “fucking retarded bitch… get fucked … go to your fucking parents where you fucking belong.”[62]

   [59] Exhibit 4

   [60] At paragraph 9 of Mother’s affidavit sworn on 4 May 2015

   [61] At paragraph 10 of Mother’s affidavit sworn on 4 May 2015

   [62] Exhibit 4

   m)On 24 June 2012, the Mother made a further two brief audio recordings.  It was her birthday and she says she taped some of the yelling “because I felt no one would ever believe that I was living in such a relationship.  I felt that I needed to make the recordings for myself so that I would have some proof to remind myself of what my life was like.”[63] In one of the recordings, the Father said[64]^:

   [63] At paragraph 16 of Mother’s affidavit sworn on 4 May 2015

   [64] Recording 2 Exhibit 4

   …keep your fucking mouth shut if you can’t fucking say anything proper and you can’t fucking do it. I still have to fucking argue with you to fucking get it every single fucking time. Not once in years have I been able to get it without fucking debating about it.

   n)The other recording made on 24 June 2012[65] reveals similar tone and language to the first. The Mother says that X was in the house. The Father was angry and frustrated at her insistence he wear a condom saying, “now you’re saying wear a condom and you’ve still got to pull out. Get fucked. What the fuck is that bullshit?”

   o)In the fourth exchange the Mother recorded on 8 July 2012, the Father is heard expressing his anger and frustration at the Mother’s failure to resolve her ‘medical issue’.  He says[66]:

   Oh my fucking God. I think you’ve said that the last fifty fucking times I’ve asked you. … when was the last time you saw a doctor? Any doctor about it? 5 months ago? Fucking likely… what are you going to do?...And if you don’t mind, you do nothing for me….You wonder why I didn’t get anything for your fucking birthday because that’s when we had the last fucking argument… right there you go, it was only a couple of fucking weeks ago. See that’s how often I have to fucking argue to get it…. Why don’t you put in a bit of a fucking effort for all those 20 minutes that I ask for. Instead of saying aww it’s always too fucking cold and no I’ll leave this shit on, and no, doona stays on and turn the light off and all that fucking bullshit you know I don’t like… is anything going in here? Are you picking up any ideas? So what, we just leave it at that do we? 

   …of course I’m going to fucking do it. You know I’ve been chasing it. Yesterday you said I was going to get it and I didn’t get it. That’s not a very good start.

   … I get home and yeah…you got home late and then we should have been fucking do it… that condom has to fucking go.. when are you going to get that fixed? What are you going to do about it. …..

   …. you lied to me. Do you tell me that you’re going to see the doctor but you see the doctor about other things and not about…that.  And you’ve never told me what the doctors have actually fucking said or what they’ve actually given you.  All you’ve said is aw next week. It will go away next week and I actually asked you for about 10 fucking weeks in a row. Saying the same fucking thing. I want the fucking real shit without the fucking raincoat on. Without having to pull out.  Without having arguments….

   The Mother can be heard sobbing as she agrees that the Father should wear her g-strings, and he says to her “why don’t you put your stockings on and your garter-belt.”  The Mother says the Father “would not stop with the constant demands for sex, the yelling, criticism and abuse.”; “I felt exhausted and that I had no energy left in me to respond to Mr Corby.” While he yelled at me, “I felt ashamed and humiliated because it was clear I was no more than a sexual slave and my main job was to satisfy his sexual desires.  I could not do anything other than try to suppress my tears and wish for Mr Corby to stop yelling at me and leave me alone.”[67]

   p)On an occasion in May 2013, the Father demanded the Mother engage in sex. In her statement to police about this incident she said, “I was scared and didn’t know what to do. He stood over me, with his hands on his hip and chest puffed out and I knew I had to have sex with him.”[68] The Mother says she was in a lot of pain during the act of intercourse, told the Father he was hurting her and started crying. He continued to penetrate her, then stopped briefly and threw gel at her saying “use it”.  The Mother lay crying, eventually pushing the Father off, to discover she was bleeding. 

   q)The Mother says that X was exposed to a lot of arguments, initiated by the Father in X’s presence, about what the Father wanted the Mother to do. The Father often criticised and demeaned her in front of X using terms including “bitch” “fucking bitch” and “stupid”. The Father does not deny using those terms but cannot recall.  Notably, the Father’s sister in law, Ms J, has heard the Father calling the Mother derogatory names and swearing at her. 

   r)She told Dr C that at times X would intervene to help the Mother. 

   [65] Exhibit 4

   [66] Exhibit 4 – Audio 4

   [67] At paragraphs 17 to 19 of Mother’s affidavit sworn on 4 May 2015

   [68] Annexure E of Mother’s affidavit sworn on 17 March 2015

7. The Father says he has a high sex drive. However, he denies the Mother’s claim about the frequency of the parties’ sexual activity (he says more usually 4, not 6 or 7 times a week) but otherwise acknowledges that the parties often engaged in sexual activity on his return from work in the late afternoon, and that X would be in the home at the time. He acknowledged watching pornography on his computer alone in the study while naked, and when the Mother was not having sex with him, he masturbated. He says the Mother would have ensured X did not enter the study because she knew what he was doing in there.  Until late 2010 they had a “regular sex life, and we would have intercourse about 4 times a week. At times when Ms Corby and I had sex we would watch pornography together either before or during sexual intercourse.  Ms Corby encouraged this behaviour at the time.”[69] He denies ever forcing the Mother to watch these DVD’s.  The Father says that if the Mother refused him sex, he did not intentionally push her or make her feel as though she had to, so their sexual activity was always consensual.  The Father agreed they referred to sex as “the business…to ensure that X did not understand what we were talking about.”[70] X never witnessed them having sex. The Father denied ever saying anything like “you are my wife, you need to give it to me.”[71]

   [69] At paragraph 200 of Father’s affidavit sworn on 25 March 2015

   [70] Ibid at paragraph 218

   [71] Ibid at paragraph 220

1. The Father accepts the truth of many of the Mother’s allegations. He agrees that he was usually the one to initiate sex; that it was usual for him to want sex immediately on his return from work around 6.00p.m; that on most occasions when they were having sex X would be in the home engaged in an activity or watching television.[72] He agrees that the Mother would stop what she was doing to comply with his request for sex, whether doing something with X, or cooking dinner; that the Mother was reluctant to have sex as often as he wanted it. The Father said if he left his request for sex until later in the evening, the Mother would be too tired, so his only chance was when he got home from work.  He says they mainly had sex in the bedroom, but sometimes in the study. He disputed the Mother’s estimate of the number of times X came looking for them and knocked on the door.  He estimates only a handful of times.  The Father agrees he would then yell out to X “not yet” or “wait”. He agrees he did not want the Mother to get up to X, but to sexually satisfy him first.[73] The Father agrees he would want sex even if the Mother was doing something else; that he would sometimes urge her to do it, try to get her to come to the bedroom or study; that she was not always forthcoming so he would say a couple of times “can we go to the bedroom?”[74] He agrees that sometimes pornography would be involved, and sometimes he would ask the Mother to put on certain clothes.   He agrees there were a lot of conversations in the home about sex.  “I would use that term [‘business’] every time that I would talk to my wife about wanting to have sex.”[75] He says that if the Mother refused him sex, she would direct him to the study to watch pornography and masturbate. He would be in the study naked.  This occurred more frequently in 2012, sometimes at 6.00p.m. or 7.00p.m. at night but “It could happen at any time”, including on a weekend during the day.[76] He said it was possible that he looked up 17 pornography sites in one day, agreed that there was no lock on the study door so X could walk in, but the Father denied X ever doing so.  He said he tried to walk in 3 times by turning the knob, but the door did not open much. He says he immediately called out to X, and that stopped him from coming any further.  He denied the Mother’s allegation that X once saw naked women on the screen.  In cross examination, the Father concedes that he could have ‘done it’ later at night when X was asleep, but said “I would normally have an urge before I go and have a masturbate.”[77]

   [72] At pages 149 to 150 of 29 June 2015 transcript of proceedings

   [73] Ibid at page 151

   [74] Ibid at page 152

   [75] Ibid at page 154

   [76] Ibid

   [77] Ibid at page 156

2. While the Father made the concessions as outlined above, in cross examination the Father also denied putting pressure on the Mother to have sex.  He did not appear to understand that repeatedly asking for sex meant he was “putting pressure” on the Mother.  When his remarks from the 24 June 2012 recording were put to him, he said “I was trying to find out what her problem was. I wasn’t pressuring her to have sex…I was just letting her know I was annoyed.”[78] When the transcript of the recording made 8 July 2012 was read to him, he denied he was trying to pressure the Mother to have sex. “I just consider that me being upset.”[79]

   [78] Ibid at page 133

   [79] Ibid at page 135

3. The Father acknowledged the parties argued about having sex, as disclosed in the recordings. He said during arguments he was usually on the couch, facing away from the kitchen island, his back to the Mother who would be in the kitchen.  He said “2012 [the year of audio recordings were made] wasn’t a good year”[80] acknowledging that the recordings disclose that he was swearing a lot with a raised voice. In cross examination, the Father acknowledges that when yelling at the Mother, it is possible X was in the kitchen with the Mother, and though he says he tries not to have arguments with the Mother in front of X, acknowledged that X was in the house when he was yelling at the Mother, “get fucked. You can fucking – go to your fucking parents’ where you fucking belong.”[81] He also recalled X walking down the hall when he and the Mother were arguing, calling out “stop”.[82]  

   [80] Ibid at page 136

   [81] Ibid at page 140

   [82] Ibid at page 195

4. The Father was unable to comment on what impact hearing the Mother berated like that would have on X. He said “he probably thought, with just simple raised voices, that they’re – Mum and Dad aren’t happy.”[83] The Father did not consider these exchanges were relevant to a ‘custody dispute’ so did not include any of them in his affidavit.  He did not accept that what he said in the audio recordings would have made the Mother feel intimidated, coerced or humiliated.

   [83] Ibid at page 143

5. The Father gives his version of events on the occasion in May 2013 when the Mother alleges the Father demanded sex against her will on his return from work in the afternoon. The Father acknowledges saying to the Mother, “I need some proper sex… I want it tonight, and I’m going to the chemist to buy condoms and you will give me sex.”[84] He agrees that X would have been in the house.  On his return he agrees he probably said to the Mother “get into the bedroom and get changed” and she may have said “No, I don’t want this” though he does not recall.  The Father says “she wasn’t always forthcoming in going to the bedroom so that was normal.”[85] The Father agrees there was an occasion (which may have been that one) when she said “I’m stinging and you’re hurting me” and that she was crying.  He might have told her to hurry up and put the gel on and he might have been angry.  He said to her “this is no good for me. You’re taking too long” though says he was unaware she was bleeding.[86] He does not agree that he was aware the Mother did not want to have sex with him on that occasion. 

   [84] Ibid at page 145

   [85] Ibid at page 146

   [86] Ibid at page 146

6. The Father says that in 2011, the parties’ relationship began to deteriorate, partly from the stress of renovations, and partly because the Mother thought that he was having an affair. In December 2011 he wanted to separate, but the Mother wanted to try to resolve their issues.  The Father says, “I did not understand why the physical intimacy between us had ceased when previously it had been happening so regularly.”[87] The Father says the Mother would encourage him to go to the study to watch pornography and pleasure himself when she did not want to have sex with him.  He says he accepted her refusals, never forcing the issue. The Father says he would access pornographic websites in the study with the door closed and X did not know what he was doing. While the Mother told Dr C he would watch pornography every day sometimes for a few hours, often but not always when X was awake, the Father estimates he watched pornography once or twice a week.  He said that because the Mother was aware when he was watching pornography, X would never wander in. If X did knock on the door when he was watching pornography, “I would simply tell him words to the effect of “don’t come in”.[88]

   [87] At paragraph 206 of Father’s affidavit sworn on 25 March 2015

   [88] At paragraph 216 of Father’s affidavit sworn on 25 March 2015

7. As already noted, the Father agreed with much of the Mother’s account of the parties’ sex life during their marriage, and admitted having to persuade her to have sex, to arguing with her about having sex and to her not always being forthcoming about coming to the bedroom with him.  However, contrary to these admissions, the Father denied that he ever coerced the Mother into engaging in sexual activity with him. The Father denied that X was ever adversely affected by the pattern of his sexual behaviour, or his discussions/arguments with the Mother about sex. Even in the face of his loud, aggressive and abusive demands of the Mother disclosed on the audio tapes, the Father failed to show any understanding of the fear his behaviour would have engendered in both the Mother and in X, and denies his conduct shows disrespect for the Mother of his son.  Even though he agrees he called the Mother “a fucking bitch…a retarded bitch”[89] and that X may have heard this, the Father contends that the recording is out of context.  He says[90] “it seems to me that Ms Corby appears to have recorded part way through a discussion that we were having at the time… I used offensive language and I regret that it came to that, however it was in the context of a very low point in our relationship, and a stressful time being less than a year before we separated…”

   [89] Transcript of proceedings – 29 June 2015 at page 170

   [90] At paragraphs 10 and 11 of Father’s affidavit sworn on 4 June 2015

8. I agree with the Mother’s counsel that the tapes reveal a “very angry man”, an observation conceded by the Father’s counsel.  I also accept Dr C’s opinion when she says that these exchanges (heard on the audio recordings) would have been frightening for X because the anger is palpable.[91] She states that X is a quiet boy and this behaviour could be normalised for him because she observed that “he presents in rather a shutdown way.”[92] Dr C says “It’s probably a regular occurrence and I would think that the child’s presence is routine” which compounds the impact[93].  

   [91] Transcript of proceedings – 1 July 2015 at page 46

   [92] Ibid at page 46

   [93] Ibid at page 47

9. It seems that the Father believes that his conduct was, for the most part, appropriate. As he told Dr C, he did not understand how or why the way he behaved towards the Mother could have caused her distress.  

10. I accept the truth of the Mother’s allegations as to the Father’s sexually coercive behaviours. The Mother impressed me as a witness of truth.  Her evidence was at all times consistent, while the Father’s was not.  I find that the history the Mother gave her counsellors, Ms M and Ms L, consistent with the account she gave in her trial affidavit, the account she gave to the police, the account she gave to Dr C, and to the Court in her oral evidence.   I am satisfied that the Mother was repeatedly coerced by the Father to engage in unwanted sexual activity with him throughout the marriage. I find she was often fearful she would be raped if she refused the Father’s demands for sex. I find that at times she tried to resist, protective of herself and X, but she feared the repercussions if she did not comply. I find she was concerned to ensure X was not exposed to arguments which would inevitably ensue if she refused the Father’s demands for sex. I am satisfied that frequent arguments between the parties was normalised for X. In cross examination, the Mother answered difficult questions directly and thoughtfully. 

11. The Father’s own admissions corroborate the Mother’s version of events, though I find he understates the frequency of his sexual demands and activity. The Father acknowledges being “annoyed” with the Mother and angry, but “not all the time”, when she would not give him what he wanted sexually.[94] Having listened to the audio tapes, I find “annoyed” an understatement of his attitude. The Father acknowledges that there were lots of conversations between the parties in the home about having sex, and that the parties had arguments about having sex. He agrees that he was at times frustrated and angry when the Mother would not comply with his demands and that he had to have sex when he got home from work or he might miss out altogether on that day. The Father offers no alternative explanation to the one given by the Mother as to why such discussions/arguments about sex were ever necessary, if he never coerced the Mother into having sex and the Mother wanted sex as he claims. The audio recordings reveal the manner in which the Father at times speaks to the Mother. The terms and tone are derogatory, threatening and abusive.  

    [94] Transcript of proceedings – 29 June 2015 at page 163

12. I find the Father was indifferent to the impact of his behaviours on the Mother and on X. As I have accepted the Mother’s evidence of the Father’s conduct, I agree with Dr C that the Father’s approach to the relationship was that the Mother was there to meet his needs.[95] I accept her opinion that those attitudes will remain unchanged.[96]   

    [95] Transcript of proceedings – 1 July 2015 at page 49

    [96] Ibid

13. In relation to his use of alcohol, the Mother alleges the Father was known amongst his friends as “the last man standing”[97] before they were married and that she too would drink when socialising with the Father before X was born.  However, the Mother alleges the Father consumed alcohol to excess frequently during the marriage, including in X’s presence.  In particular the Mother alleges: 

    a)After X’s birth, the Father spent 2 to 3 nights a week out drinking with his friends, almost always including Friday nights. On some occasions he would not return home overnight, and on others he would return home intoxicated, with slurred speech and unsteady on his feet, and nurse a hangover the next day.  It was his habit to drink after tennis on a Tuesday night, after football training on a Thursday night as well as Friday after work and Saturday night.  He would often drink until intoxicated.[98] The Mother once found him passed out on the toilet floor.  X once found the Father passed out in the back yard. 

    b)On the night of X’s birth, he drank whisky with his friends in the hospital kitchen until asked to leave by staff.

    c)During the football season, he went out for most of the weekend from early Saturday morning to watch and play football, to the pub in the afternoon, to the pub or at the homes of friends in the evening, sometimes coming home in the early hours, sometimes late Sunday mornings, when he would be tired and would not spend quality time with X.

    d)In March 2012, the Father came home intoxicated after a night out.  The Mother observed his eyes blood shot, his speech slurred and she could smell alcohol on his breath.  He went directly to X’s room, but the Mother told him to get out.  She says on another occasion he climbed into X’s bed when X was asleep, heavily intoxicated.[99]

    [97] At paragraph 102 of Mother’s affidavit sworn on 17 March 2015

    [98] Ibid at paragraph 101

    [99] Ibid at paragraph 105

14. The Father agrees he would stay out on a Thursday or Saturday night with his football friends, but says he was usually home by 10.00p.m. He agrees that he stayed away from the house and socialised, mainly in the last 2 years of the marriage when the parties were unhappy.  He denies ever drinking to excess during the week. He initially denied that he drank to excess in front of X, but in cross-examination, contrary to his affidavit evidence, says he may have consumed alcohol to excess in front of X (such that he would have recorded a reading in excess of .05), but not when supervising him.[100] He denies being intoxicated in front of X such that “he has fallen over, unable to speak.”[101] He said he would have been over the 0.05 limit occasionally on a Saturday night, but not every Saturday night. He denied arriving home drunk 2 to 3 nights a week at times during the marriage. Ms J, the Father’s sister in law, says she has seen the Father drink to the point of intoxication when X has been present more than once, and has also seen the Mother drink to excess in front of X. I am satisfied the Father has significantly understated the level of his drinking during the marriage. On the basis of the Mother’s evidence, I am satisfied the Father frequently drank to excess during the marriage and that he got into X’s bed with X asleep on at least one occasion when intoxicated.   

    [100] Transcript of proceedings – 29 June 2015 at page 118

    [101] Ibid at page 119

15. The Father says his consumption of alcohol has decreased since separation. He now consumes about 5 alcoholic drinks a week, rarely drinks during the week or at all when at his home.  

16. Dr C says that alcohol dependency would impact parenting capacity but found nothing to suggest “frank alcohol dependency” in either party.  While I accept that the Father is a social drinker and is likely to drink to excess on occasions, I am not persuaded the evidence supports a finding that the Father has a serious alcohol problem.

17. The Mother alleges that the Father was physically violent on occasions.  In particular the Mother alleges:

    a)On 25 March 2012, as already noted, the Mother refused the Father sex.  The Father walked down the hall, punched the hall wall, leaving a dent. The Father admits he was so angry about the Mother’s refusal he punched the wall with his fist. He agrees X was at home when this occurred.[102]

    b)On 17 August 2012, the Father was angry that the Mother was on the phone.  He said “get off the phone and cook me fucking dinner.” (The Father agreed this may have happened though did not specifically recall). When the phone battery died, the Father grabbed the cordless phone and smashed it on the floor of the cement verandah.  The Father admits the incident.  He agrees he was angry that the Mother was often on the phone to her mother or sister, and that he deliberately smashed the phone in front of the Mother and that X saw the phone smashed on the cement verandah. The Father concedes that the Mother was probably scared at that point, because after the incident, she took X and locked herself and X in the bedroom and called police. The Father was banging on the door of the room to be let in. While the Father denied banging on the door, he agreed he may have said “open the fucking door.”[103] The Mother then tried to cancel the complaint for fear of the Father’s reaction, and when police arrived did not make a formal statement or seek an Apprehended Violence Order. The Mother heard the Father say to the male police officer words to the effect “you know what it’s like mate when you don’t get it.”[104] While the Father did not recall using those words, he agreed it was possible he may have. 

    c)On 24 May 2013, the Mother reported to police[105] that the Father was furious when she refused to comply with his request that she clean the bathroom. He grabbed a bucket from the laundry which fell on him. He kicked the bucket and kicked a pile of clothes all around the laundry.

    d)As already noted, on 3 June 2013, the Mother applied for an Apprehended Domestic Violence Order, a Provisional order was made on 4 June 2013 and a final order on 25 July 2013.

    e)On 20 June 2014, the Mother made a statement to police[106] to have the Apprehended violence order extended. She deposes to an incident on 14 June 2014 at the soccer field where X was playing, when the Father stood beside the chair the Mother was sitting on, having thrown a brown suede jacket which hit the bottom of her chair. The Mother felt intimidated. 

    [102] Transcript of proceedings – 29 June 2015 at page 163

    [103] Transcript of proceedings – 29 June 2015 at page 165

    [104] At paragraph 87 of Mother’s affidavit sworn on 17 March 2015

    [105] Annexure E of Mother’s affidavit sworn on 17 March 2015

    [106] Ibid at Annexure P

18. The Father says that while he agreed to an Apprehended Violence Order to improve his chances of seeing X, there was no basis for an AVO to be in place and no basis for the Mother’s allegations that he breached the Order.  The Father deposes to the following allegations being made against him: in August/September 2013, he approached within 2 metres of the Mother when he and X were together and saw her in the shopping centre; in September 2013, he sent a photo of X riding his bike to the Mother; on 10 February 2014, the Father drove his car onto the (omitted) property to enable X to get some dry clothes. On 10 June 2014, the Father accompanied X to the front door of the (omitted) property and on 14 June 2014, the Father attended X’s soccer game, threw a jacket which hit the bottom of her chair and stood close to where the Mother was sitting. While the Father says he did not realise the Mother was sitting there and denied throwing his jacket at her chair, he was charged in relation to the June 2014 incidents and the charges were proved.  In the Father’s view, these breaches were “technical” and not serious, which is the reason he says he was not convicted and received a s.10 bond. I do not share his view. I find the Father’s conduct serious.

1. Dr C says that the Mother’s anxiety should be viewed in the context of what she was going through and it was understandable in context, and she is justified in being concerned about X’s safety in the Father’s care. Dr C found no evidence of any psychological or psychiatric disturbance in the Mother to detract from her parenting capacity. 

2. As already noted, Ms J says she has seen the Mother drinking in X’s presence. The Father’s counsel cross examined the Mother about her drinking habits. The Mother says her drinking habits changed after X was born. She no longer stayed drinking at the football club with the Father after his match on a Saturday or went to the pub.  She has at most, had 4 wines with X in her presence, never driven while under the influence, never drunk “til on the floor passed out.”  I accept the Mother’s evidence that she was in the habit of drinking before she was pregnant with X, but thereafter limited her drinking. I find no basis for a finding that the Mother drinks to excess, and neither is a restraint sought by the Father in this regard.

3. I am satisfied the Mother has the capacity to meet X’s needs, including his emotional, and intellectual needs.   

4. The Mother says that the Father has demonstrated poor ability to appropriately supervise and/or adequately care for X from the time he was a baby.  She gives examples:

   a)In February 2005, when X was 16 months of age, X and the parties were at the beach. The Father was supervising X on the water’s edge when X fell face down into the shallow water. The Father did not immediately pick him up but stood over him, waiting for X to push himself up.  The Mother says she ran towards the water screaming for the Father to pick him up.[160] The Father acknowledges waiting a few seconds to see if the ‘babies swimming lessons’ had taught X anything.

   b)On an evening in June 2006, when X was two and a half, the Mother left X in the Father’s sole care. On her return, she found X on the floor of his room having breathing difficulties and the Father intoxicated. “His eyes were blood shot, his speech slurred and I could smell alcohol on his breath”.[161] X was taken to hospital by ambulance where he remained overnight with the Mother.   He had a high fever and respiratory rate.[162]

   c)When X was younger, the Mother heard the Father say to him on several occasions, “I will give you a dead arm if you don’t do what you are told” or “I will hit you if you don’t do what you are told.” In 2012/13, X complained to the Mother that “daddy hurt me” or words to that effect.[163] In May 2013, the Father hit X causing him to cry.[164] The Mother says she did not see the Father hit X, but heard the hit and X crying afterwards.  

   d)In March 2013, the Mother spent two weeks visiting her mother each afternoon/evening in hospital after her mother had a stroke.  The Father was required to care for X for a few hours each day of the two week period until approximately 8.30 p.m.  The Mother says she would arrive home to find X not fed, not showered, and his homework not completed.  At 5.57p.m one evening she received a text from X from his iPad asking for her to come home because “daddy’s not feeding me anything”.[165] On another evening, she arrived home to find X crying.  He said “mummy, daddy didn’t feed me.”  On another occasion, when she asked the Father to cook dinner for X, the Father said he did not know how to.

   e)The Mother says the Father has had a habit of driving too fast in the car when X is with him.  She has observed him driving too fast since separation when he leaves with X in the car after changeover.  The Mother describes the Father’s “terrible road rage” during the marriage,[166] banging his fist on the steering wheel and swearing loudly with X in the car.  She recalls the Father yelling “you fucking cunt” “get out of the fucking way” and tailgating cars.  The Mother recalls X saying to the Father “Daddy slow down” and the Father responding “Shut up, you sound like your mother”.[167]

   [160] At paragraph 34 of Mother’s affidavit sworn on 17 March 2015

   [161] Ibid at paragraph 35

   [162] Ibid at Annexure C

   [163] Ibid at paragraph 43

   [164] Annexure E of Mother’s affidavit sworn on 17 March 2015

   [165] Ibid at Annexure D

   [166] Ibid at paragraph 106

   [167] Ibid at paragraph 106

5. The Father concedes the truth of a number of the Mother’s complaints, though denies ever hitting X. He agrees that he wanted to check “for a few seconds” whether X would get himself up when he was face down in the water, and that he did not always feed X when the Mother was absent during her mother’s hospitalisation. He admits getting annoyed and frustrated with other drivers “as many people do”,[168] though denies swearing loudly or banging his hands on the steering wheel. The Father agrees he told X to “shut up, you sound like your mother” in March 2012 when X asked him to slow down.[169] Ms J has heard the Father swear while driving with the Mother and X in car. 

   [168] At paragraph 195 of Father’s affidavit sworn on 25 March 2015

   [169] Transcript of proceedings – 29 June 2015 at page 189

6. I prefer the Mother’s evidence over the evidence of the Father. I find it likely the Father has sworn at other drivers in front of X, and has denigrated the Mother in the car in front of X.  The Father acknowledges that he never cooked, so I find it likely he did not always provide dinner for X when the Mother was absent at the hospital. As already noted, I find the Father has a quick temper, and I am satisfied he has hit X, by giving him a dead arm as the Mother alleges.  I find it alarming that the Father delayed picking up X when he was face down in the water to check whether the swimming classes had been effective.  

7. Dr C says that the history of the Father’s coercive and controlling conduct provided by the Mother raises concerns about the Father’s parenting capacity.  As noted in the Introduction, Dr C says “…individuals who are abusive towards their partner are likely to be deficient if not abusive as parents and … the risk of child abuse in the context of ‘coercive controlling violence’ is ‘very high’.[170] As already noted, I accept Dr C’s opinion that the Father coming home from work and accessing pornography, shows his inability to set boundaries and his failure to prioritise parenting over his own needs, allowing those needs to distract him from important time with X.[171] Dr C says that to go to the study, take off his clothes, access porn sites and masturbate is a “huge preoccupation”,[172] neither acknowledged nor addressed by the Father.  I agree with Dr C that the Father is not troubled by his behaviour or motivated to modify it, despite the Mother separating from him and taking X.  I also find that during the marriage, the Father chose to pursue his own interests ahead of those of X or the family.  He had significant involvement in sport while rarely engaging in X’s school, sport or extracurricular activities. I am not satisfied the Father demonstrated the capacity to meet X’s needs during the marriage.

   [170] Exhibit 3 at page 24

   [171] Transcript of proceedings – 7 April 2015 at page 35

   [172] Ibid at page 36

8. Since separation, as noted, I am satisfied the Father has taken an interest in X’s soccer and has engaged with him in other activities during their time together.  However, I find no evidence to support a finding that the Father has gained any insight into the damaging impact on X of his past conduct towards the Mother, or of his prioritising his own needs ahead of X’s needs.  As Dr C says, the ability to prioritise a child’s needs over one’s own is fundamental to good parenting; it is what parenting is.  Dr C could offer no recommendation for treatment/education which might improve his parenting ability.  

9. While the Father says he is not currently in a sexual relationship, I agree with Dr C’s opinion that it is likely he will re-partner in time. Notably, the Father has had a few casual sexual relationships since separation.  The Father says that he meets his sexual needs by masturbating himself and continues to access pornography once or twice a week, using his computer. He has a “couple of DVD’s”.  Even if I accept that the Father’s sexual activity and access to pornography has decreased in frequency, there is no sign of any significant change or any evidence to support a finding that if in a new partnership, he would treat his new partner any differently from the way he treated the Mother.  

10. While the Father’s sister in law and Mr C, a long -time friend of the Father, and nominated by the Mother to supervise X’s time with the Father, are complimentary of the Father’s parenting skills, and have observed his genuine interest in X, neither were aware of his conduct towards the Mother inside the home.   

11. I give considerable weight to my findings under this factor.  

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.

1. I have nothing to add here. 

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.    

1. The Father believes the Mother does not support his relationship with X. He deposes to the Mother being “very unreasonable and inflexible” in relation to X spending time with him.[173] For example, he was unable to resolve the issue of X’s soccer game clashing with the changeover time on a Saturday, the Mother would not allow X time with him on X’s birthday in 2013, or on Christmas Day in 2013 or 2014.

   [173] At paragraph 105 of Father’s affidavit sworn on 25 March 2015

2. The Mother says the Father has continued to behave disrespectfully towards her since separation.  For example:   

   a)In late 2013, the Father would get into the back of the Mother’s car with X at changeover, intrusively looking under things on the seat. The Father says he had to walk X to the Mother’s car but denies ever getting into the car.  Sometimes he would lean into the car to put the seatbelt on X, then quickly shut the door before X put his leg out to stop the Father shutting the door. He says he may have moved a towel off the seat so X could sit down and he could strap X in. 

   b)In January 2014, X returned home from time with the Father with his own mobile phone.  The Father agrees he had not consulted the Mother on the issue. X said to his Mother “you are not allowed to touch it or use it.  The phone has a password.”[174] The Father did not want the Mother to have the password. The Mother removed the phone from X and later returned it to the Father. In March 2014, X again returned home with the phone. The Father then wanted to know from X whether the Mother had stopped him from using it.  At no time did the Mother have any objection to X speaking to his Father on the phone.    

   c)In March 2014, when X arrived home limping from time with the Father, the Mother was unable to obtain from the Father an accurate explanation of what had occurred.  

   d)In March 2014, X was scheduled to play soccer on a Wednesday evening during the Father’s time. The Father was unwilling to take him to the game unless the Mother agreed to extend X’s time with him that day. 

   e)In April 2014, the Father asked X to ask the Mother for an extra day with the Father in the holidays.  This upset and confused X. The Mother has heard the Father questioning X about what the Mother is doing, whether any men had come to the home, who had visited, whether X was having sleepovers. The Father asked X to walk around the house with his iPad so he could see the Mother’s apartment.  

   f)On 7 May 2014, when the Mother had collected X from the Father, X said to the Mother “will you get a boyfriend?... I don’t want another daddy.”[175]

   g)The Father has said to X, “if Mummy gives you a hard time or at school, let me know”.[176]  

   h)On 17 July 2014, the Father demanded the Mother collect X from his car and threatened to take X home and call the police if she did not do as he asked. 

   i)The Father has been critical of the Mother for not putting the right clothing for X in his bag. 

   j)In July 2014, without notice to her, the Father cancelled X’s swimming lessons on Saturday afternoons, where he had been attending for 7 years.[177] This was despite a Court order requiring the Father to take X to the class.

   k)In July 2014, the Father declined to do further changeovers at X’s soccer game on Saturdays, requiring the Mother to have X at (omitted) at 2.00p.m. resulting in X missing any game that finished after 2.00p.m. The Mother deposes to the Father nevertheless attending the soccer field to watch X play and standing in close proximity to the Mother.  The Mother had to pull X out of the game at half time to ensure he was at the changeover point by 2.00p.m. in accordance with the orders. Thereafter, the Father advised the Mother that he would not take X to any soccer game on a Wednesday afternoon in his time. After 5 years of playing soccer for the (omitted) team, X then decided not to play soccer at all.  The Father says he made these decisions because the Mother made a complaint about his conduct at the soccer field (resulting in him being charged with a breach of an AVO). 

   [174] At paragraph 137 of Mother’s affidavit sworn on 17 March 2015

   [175] At paragraph 181 of Mother’s affidavit sworn on 17 March 2015

   [176] Ibid at paragraph 182

   [177] Ibid at Annexure N

3. I accept the Mother’s evidence about these incidents which I find are all examples of the Father’s unsatisfactory attitude to his parental responsibilities.  The Father concedes he has asked X “once or twice” whether his Mother has a boyfriend.[178] He agrees he said to X if Mum gives you a hard time, or at school, let me know.[179] However, the Father seems unable to understand how this behaviour undermines the Mother.  

   [178] Transcript of proceedings – 29 June 2015 at page 190

   [179] Ibid at page 191

4. I accept the Father’s evidence that the Mother has not been prepared to be flexible about X’s time with him, and has chosen to follow the Court’s orders.  I am not critical of the Mother for her attitude, given the history of the Father’s behaviours towards her and her ongoing apprehension of him. I find the Father has continued to push the boundaries to the point of breaching the AVO against him, and then ‘punished’ the Mother and consequently X, for making complaints resulting in those charges.  As already noted, I find any breach of an AVO is a serious matter, however trivial the incident might seem out of context.  I find the Father fails to respect the Mother’s privacy and uses X to obtain information about the Mother. I find the Father fails to appreciate the damage he is causing X by his ongoing disrespectful attitude towards the Mother.  

5. I accept the Mother’s evidence that she does not denigrate the Father to X nor discuss these proceedings with him.

6. As previously addressed, I agree with Dr C that the Father has shown a poor attitude to his responsibilities as a parent by his denigration of the Mother in front of X and prioritising his own needs ahead of X’s during the marriage. I accept his evidence that his life is now less focussed on sexual activity, but also have regard to Dr C’s opinion that he has an entrenched pattern of relating to partners and is likely to partner again. I find it is a positive sign that the Father has consistently taken up the time allocated for X to spend with him, but am critical of the Father’s failure to respect the Mother’s privacy, his communication with the Mother through X and his failure to take any responsibility for X’s rude and abusive behaviour towards the Mother after spending time with him. The Father’s response that if he were present when X was rude to the Mother, swearing at his Mother, he would do nothing unless the Mother was unable to handle the situation. If that were the case, he would raise his voice at X who would then listen. I find the Father’s response to hearing about how X speaks to his Mother, that is, that he has not heard it himself, inadequate. 

7. I give some weight to these findings.

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.

1. I am not satisfied it is possible in the circumstances of this case to eliminate the risk of future litigation.  In Dr C’s opinion, the Father is unlikely to change his behaviour. If the Father is unwilling/unable to communicate with the Mother respectfully, and is unable/unwilling to speak of the Mother to X in positive respectful terms, and to teach X to do the same, I find that the risk of further litigation remains high, whatever orders the Court makes. However, I am satisfied that the risk will be reduced if X’s time with the Father is structured around sport and other social activities. I take these findings into account.

Parental Responsibility

1. The Father seeks an order for equal shared parental responsibility.  The Independent Children’s Lawyer proposes an order for equal shared parental responsibility or otherwise that the Mother have sole parental responsibility. 

2. The Mother seeks an order for sole parental responsibility. The Mother wants to be able to make decisions for X relating to his health, his education and his learning supports without having to negotiate with the Father. She proposes informing the Father about decisions she proposes, to giving careful consideration to his input, but she seeks an order that allows her to make the final decision. 

3. The Father deposes to the parties jointly making most decisions for X prior to separation.  In particular, he says they agreed on X’s school, his extracurricular activities, including swimming and soccer.  Since separation, they have agreed on X’s high school. They agreed to X’s religious upbringing in the (religion omitted) faith.  Each party’s counsel acknowledges, and I accept, that the evidence supports a finding that each party has the capacity and has exercised that capacity to communicate in a civilised and appropriate fashion post separation.  

4. The Father, however, says he has been fearful to talk to the Mother because he is worried about her alleging that he has breached an Apprehended Violence Order.  He also acknowledges that he cannot directly communicate with her and has used X as a messenger.  He agrees he was not prepared to discuss X having a mobile phone, or to discuss cancelling his Saturday swimming, and that he was not prepared not to do changeover at the soccer field even though that resulted in X being taken out of the game at half time. The Father’s answer to the problem is that “we could easily change”[180]^, and that he wants to discuss issues about X with the Mother.  

   [180] Transcript of proceedings – 29 June 2015 at page 186

5. The Mother agrees there have been civilised communications between the parties, particularly focussed on the issue of practical arrangements for spending time.  However, the Mother is not confident the parties will be able to communicate in the future in a constructive way.  As her counsel submits, further decisions may have to be made: if X changes schools, if he needs learning assistance, if he needs counselling. The Father has shown no interest in his learning issues and had almost no involvement in X’s school.  Amongst the civilised communications, the Father has also sent the Mother many rude SMS messages and she says she feels attacked by his communication saying “he makes me feel stupid.” She refers to the rude messages she received from the Father in relation to the sale of the former matrimonial home.  The agent had suggested certain things be done but she described it as a “real hassle” dealing with the Father.  She is pessimistic about these difficulties improving.

1. The Mother’s counsel submits that a victim of family violence should not be required to re-engage with the perpetrator of that family violence to effect shared decisions relating to X.  The power imbalance makes it unworkable. 

2. Dr C says it would be in X’s best interests for him to know both his parents are involved in decision-making. If both do a parenting after separation course, they would learn how to spare X being negatively affected by communication issues. In her view, direct discussion would not be possible, so communication would have to be by email and text message.  However, Dr C says that if the Mother’s account of the Father’s coercive controlling conduct is true, and the Mother finally found the strength to leave him, it would be very difficult for her to regularly engage with the Father, especially as the Mother is also anxious. She says the nature of the relationship between the parties during the marriage militates against an equal shared parental responsibility order.[181] Negotiation as an equal would not be possible, and the Mother would be likely to give in to the Father. Dr C said it would take some time before the Mother might be strong enough to deal with the Father, either in terms of negotiating to reach a decision or in relation to facilitating time.  But the latter will be easier as X becomes more autonomous.

   [181] Transcript of proceedings  - 7 April 2015 at page 38

3. Section 65DAC applies whenever a parenting order provides for shared parental responsibility, and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the children.  Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

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

   b)Family violence.

4. In addition, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility[182]. As a result of my findings that the Father has engaged in family violence, a position supported by the Independent Children’s Lawyer, the presumption does not apply.

   [182] Section 61DA(4) Family Law Act 1975

5. The Independent Children’s Lawyer submits that the Father has an important role to play in X’s life, and that there are no major decisions to be made imminently [except how X’s fees will be met at (omitted) in High School].   

6. As already detailed, I find the parties’ relationship dysfunctional and conflictual. I find the Father’s attitude to the Mother since X’s birth both destructive and harmful and I am not persuaded the Father’s attitude to the Mother since separation has improved in any significant way. He has breached an Apprehended Violence Order, he was difficult to deal with over the sale of the home, he has sought to invade the Mother’s privacy through X and he has made unilateral decisions affecting X without regard to the Mother’s views.  I find that while the parties have engaged in civil exchanges concerning X’s arrangements, and have agreed on the school X will attend next year during the course of this litigation, they do not have a strong history of working cooperatively together to make decisions for X. I find that the Mother will be unable to engage with the Father on an equal footing, at least in the foreseeable future. I find the Mother would be unlikely to express disagreement with the Father, whatever her genuine views, and the Father’s view would prevail, not necessarily in the best interests of X. In my view, it is in X’s best interests for the Mother to be given time to heal and to regain confidence in herself. 

7. Given my findings as to how the Father has treated the Mother, and how the Father has exercised his parenting responsibilities, including failing to shield X from the conflict caused by his behaviours, I am not satisfied it is in X’s best interests for the parties to have equal shared parental responsibility. I find that an order requiring genuinely shared decision making would be unworkable and would likely lead to further litigation. Any change in this position seems unlikely in the foreseeable future.  

8. I am satisfied the Mother will keep the Father fully informed of proposed decisions relating to X should they arise, will consider the Father’s views, and have proper regard to his input into any proposed decision. I find no evidence of the Mother making unilateral long term decisions without notice to the Father. 

9. The Mother will have sole parental responsibility for X. I am satisfied that if the Father gains insight into his past conduct, and he is able to have a constructive conversation with the Mother, the Mother will willingly engage in such communication. 

10. As there will not be an order for equal shared parental responsibility, section 65DAA(1) does not apply. 

Discussion and Determination

1. X is a 12 year old boy who has the right to benefit from a meaningful relationship with both his parents. He loves his Mother and his Father, but over a long time has witnessed his Father’s abuse of his Mother. 

2. The task in this case is how to achieve a parenting arrangement which gives X the benefit of a meaningful relationship with the Father, but also keeps him safe and limits his exposure to the Father’s conduct and behaviour which I have found to be damaging to X. The issue is one of trust.  To what degree can the Father be trusted to place X’s interests ahead of his own?  This capacity, as stated by Dr C, is the pre-requisite for acceptable and proper parenting. I agree with Dr C’s clinical assessment that the Father is prone to excessive self-gratification and lack of discipline in a number of areas that mitigates against him acting maturely and in X’s best interests at all times. 

3. I accept Dr C’s opinion that if there were no possibility for X to continue a relationship with his Father, that would be “damaging to him psychologically”[183] and he would grieve the loss of his Father. X would be left with a negative construction of his Father without the opportunity to see his Father in different settings where he can see him in a different light.  Dr C believes it is important that X sees positive aspects of his Father and I agree with her opinion.

   [183] Transcript of proceedings – 1 July 2015 at page 91

4. Dr C says that the Father’s past behaviours are predictive of his future behaviours. She states that the Father’s behaviour patterns are unlikely to be successfully addressed in therapy, particularly as he has shown no insight into the impact of his behaviour and sees no reason to change.[184]  Dr C expects that while the Father remains single, “the sexual boundaries would be looser than in the context of a stable, long-term marriage.”[185]

   [184] Ibid at page 93

   [185] Transcript of proceedings – 7 April 2015 at page 35

5. X is already mimicking his Father’s behaviours on occasions, using abusive and demanding language towards his Mother. I accept Dr C’s opinion that it may be very difficult for the Mother to manage and contain X’s adolescent aggression as he gets older. I accept Dr C’s opinion that X’s experience will have an impact on his identity of himself as a male and his relationships with both males and females.  I accept Dr C’s opinion that the issues for X are serious. And I agree with her that it would be difficult to restrain the Father’s behaviour by orders. 

6. The Father proposes that X spend weekend and weeknight time with him, being 4 nights a fortnight during school terms after a 6 month gradual increase in time. The Father says this would reduce the need for X to attend before and after school care when the Mother is working. The Father says he would help X with homework and his outside activities. He could meet parents and teachers and take X to soccer training. The Father’s counsel submits that Dr C never articulated the actual risks X faces in the Father’s care. Counsel suggested that the Father’s prioritising of his needs over X’s needs might be compared to a parent going for a run in the early morning or a lawyer going into chambers on a weekend. I share Dr C’s view that those activities do not pose a risk to the child. However, my findings in the body of this Judgment are that the Father’s conduct does pose a risk to X through both potential and actual damaging effects on him.       

7. The Mother does not support overnight time. The Mother proposes that X spend each Wednesday afternoon/early evening and one full day each weekend with the Father, until X is 16 years of age, when one overnight each alternate weekend could start.  

8. The Independent Children’s Lawyer proposes X spend each Wednesday overnight with the Father, with limited overnight time in school holidays. When X is 13 years of age, the Independent Children’s Lawyer proposes a 3 night alternate weekend and one overnight in the alternate week, a total of 4 nights a fortnight, in addition to 3 night periods in school holidays.

9. Dr C says daytime periods away from the home would ameliorate some of the risk factors, with the focus on structured activities, and time being “wrapped around a sporting activity.”  Dr C believes that the Father’s boundaries are more likely to fail in the home than in a public setting. However, in cross examination in July 2015, she believes if it was only one night, the Father could prioritise X for that period. She did not say how often that one night could safely occur or when it could safely start. She says that if longer, the Father would become more likely to feel the pressure of his own needs.[186] Dr C says the opportunity to be involved with his Father in physical activities, including X’s sporting commitments, and group activities, would be valuable. If time is linked to a sporting activity, then there is a priority given to the activity, and to interacting together.[187] Dr C says X needs to interact with his Father, “in ways where the Father is confident and displaying socially acceptable behaviours”, probably in a social setting and time involving a shared activity.[188] She emphasises that it is the quality of the relationship that is much more significant than the amount of time spent. She did not support the Mother’s initial proposal that X have time with the Father only when he is playing a sport, because that would not be enough time for X. Dr C suggests a number of additional possibilities: watching a particular football team, joining a cycling club together; ideally a club or team sport activity with a social context to it.  The priority should be on the shared activity and to interacting together. The presence of good friends or family might enable the time to be extended in a way that is safe.  In her opinion, X spending time in the Father’s home is not ideal.    

   [186] Transcript of proceedings – 1 July 2015 at page 96

   [187] Transcript of proceedings – 1 July 2015 at page 88

   [188] Transcript of proceedings – 7 April 2015 at page 45

10. I accept Dr C’s opinion that the longer periods of time X spends with the Father, the more the Father is likely to have trouble deferring his own needs.  I agree with her view that it is in X’s best interests if the Father attends X’s sport, and they then engage in an interactive activity for the rest of the day. She suggests a team or club sport would be a good option because X could then see the positive side of his Father in a safe setting, and benefit from the Father’s commitment to sport, health and fitness. Dr C otherwise suggests a movie, or a meal together, but recommends clarity in the orders and specified hours so the need for negotiations between the parties is minimised. 

11. I agree with Dr C that the Court’s options are very limited. Given the serious risk issues, I have decided to exercise caution on X’s behalf.  In formulating the orders about X’s time with the Father, I also have regard to Dr C’s opinion that if orders are made which upset the Mother, it will not be helpful to X’s relationship with her. If orders are made which upset the Father, it would be less damaging to X given the Father is not the primary carer. 

12. I have decided that X will spend daytime periods only with the Father, until he is older.  However, given Dr C’s opinion that the Father should be able to prioritise X’s needs over his own for short periods, even in his home, I have decided not to restrict X going to the Father’s home.  While this is not an ideal arrangement, I find it impractical, especially on a Wednesday evening until 8.00p.m. (as proposed by the Mother) during term times, for X to be away from a home setting from after school until 8.00p.m.  He needs to do his homework, which the Father will need to supervise, as well as have time for a meal. X will also have one full day each weekend, alternating Saturday and Sunday, when the Father will take X to his sporting events. Given Dr C’s opinion that X’s time with the Father should be wrapped around sporting activities, the Mother will be free to organise extracurricular events during the Father’s time and the Father will be required to take X to those events. The Mother will be required to advise the Father of any activity for X during his time, and have regard to the views before enrolling X.    

13. Even though Dr C says that the Father should be able to prioritise X’s needs above his own for a single night, and even though overnight time is supported by the Independent Children’s Lawyer, it is the task of this Court to make a determination in X’s best interests. On the basis of the findings I have made, I am not persuaded any overnight time would be in X’s best interests at this stage. The Father’s habit has been to engage in sexual activity and access pornography during the evening in the home, so X is more likely to be protected from exposure to those behaviours if not with the Father overnight. I note Dr C’s advice that X is not old enough yet to understand the risk factors at play. 

14. Dr C says that how old X would have to be, to be able to protect himself from the Father’s sexual behaviour, is purely speculative.  She says there may be scope for more involvement when X is 14, because, by then, X should be in a better position to assert his own needs, but that may be too soon.  However, she also assessed X is “not a mature child.”[189]

    [189] Exhibit 3

15. I am unable to make a precise finding as to when X will be safe to have regular overnights with his Father. Given the seriousness of my findings, I have decided to adopt the Mother’s proposal of aged 16 years.  From the time he is 16 years of age, X will be free to spend time, including overnight time, with the Father in accordance with his wishes. I do not support the Mother’s proposal that X’s time with the Father remain limited.  I am satisfied that by the time X is 16 years of age, he will have formed views of his own as to how much time he spends with the Father and I have decided that his views should be respected by the parties.  From the time X attains 14 years, it will be open to the Mother to increase X’s time with the Father to include overnight time, if she believes X would be safe, and it is in his best interests to do so.  I agree with Dr C that if there is a dispute as to when time should increase, the Mother should be the parent to decide.[190]

    [190] Transcript of proceedings – 1 July 2015 at page 54

16. The Mother will be permitted to nominate two weeks a year, not necessarily consecutive, and not including Christmas Eve or Christmas Day, when time will be suspended to enable X to have a holiday with her. The Father will be required to advise the Mother if he is unable to exercise time.

17. X will spend time with the Father on special days including Easter Sunday, X’s and the Father’s birthdays, Father’s Day, Christmas Eve, Christmas Day, New Year’s Eve and New Year’s Day.  X will spend Mother’s Day and time on his birthday with the Mother.  I have not made an order for X to spend time with the Mother on her birthday as if it is a contact day, he will see her in the morning and the evening.    

18. The Father will be at liberty to attend school or extracurricular events to which parents are invited. 

19. X will be at liberty to communicate with the Father and the Mother at any reasonable time when with the other parent, and the Father will be permitted to initiate contact with X on two occasions a week.     

20. In relation to a venue for changeover, although the Father proposed (omitted), he does not want to encourage fast foods, and agreed with the Mother on the final day of hearing that changeover would occur at (omitted) Shopping Centre, inside (omitted) Shopping Centre, if not at school.  I have made that order on a final basis. 

21. I have not made any order for the Mother to attend individual counselling as I am confident the Mother will continue in counselling for as long as she considers helpful, as recommended by Dr C.  The Mother will be at liberty to provide her counsellor with these Orders and Reasons for Judgment. As already noted, in Dr C’s opinion, therapy will not help the Father.  However, she believes that it may be helpful for the Father to attend a post separation parenting course to improve his parenting skills.  The Father says he has not done any courses since separation and would be willing to participate in a post separation parenting course.  I have therefore made an order that he complete such a course as soon as practicable.

22. I have included orders in relation to exchange of information as sought by the parties and the Independent Children’s Lawyer.  Given the serious nature of my findings of family violence, the Mother will not be required to divulge her residential address. 

23. I have made restraints as sought by the Independent Children’s Lawyer to protect X. As each party is restrained from discussing these proceedings with X, the Independent Children’s Lawyer will explain these Orders to X as soon as practicable. 

24. The Mother seeks a restraint on the Father’s use of alcohol, and on the use of physical discipline. I am not persuaded the evidence supports the need for such restraints, particularly given the limited time X will spend with the Father. 

25. As proposed by the Independent Children’s Lawyer, the Father will be restrained from accessing pornography when X is in his care.

26. I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of X.

I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Associate:     

Date:                  3 December 2015