Daniel and Ibarra
[2018] FCCA 2427
•31 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANIEL & IBARRA | [2018] FCCA 2427 |
| Catchwords: FAMILY LAW – Parenting – final orders – two children ages 7 and 14 – what role, if any, the Father should have in the children’s lives – whether the Father should have supervised time and electronic communication with the children – whether the Father poses a risk of harm to the children – where the Mother is and always has been the primary carer – where the Father has had limited involvement with the children since 2015 – where the Father was the perpetrator of serious coercive and controlling family violence towards the Mother throughout the relationship, in the presence of the children – where the Father has a history of significant illicit drug and alcohol abuse – where the Father minimises past violence and externalises blame – where the Father undermines the Mother as a parental figure – where the Father has been unable to provide a healthy parental role model for the children – best interests of the children. |
| Legislation: Family Law Act 1975 (Cth) Part VII |
| Cases cited: M & M (1988) FLC 91-979 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR DANIEL |
| Respondent: | MS IBARRA |
| File Number: | CAC 1169 of 2016 |
| Judgment of: | Judge Betts |
| Hearing dates: | 28 & 29 June 2018, 2 & 3 August 2018 |
| Date of Last Submission: | 3 August 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 31 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brady |
| Solicitors for the Applicant: | Ferraro & Company Pty Ltd |
| Counsel for the Respondent: | Ms McMahon |
| Solicitors for the Respondent: | Harris Kelly & Associates Lawyers | |
| Counsel for the Independent Children’s Lawyer | Mr Guyder | |
| Solicitors for the Independent Children’s Lawyer | Krstina Wooi |
ORDERS:
That all prior parenting orders be discharged.
That the Mother have sole parental responsibility for the children, [X] born 2004 and [Y] born 2011 (“the children”).
That the children live with the Mother.
That pursuant to s.68B of the Family Law Act 1975 (Cth), the Father spend no time with, and have no contact with, the children.
That pursuant to s.68B of the Family Law Act 1975 (Cth), the Father is restrained by injunction from coming within 100 metres of any school attended by either of the children.
That pursuant to s.68B of the Family Law Act 1975 (Cth), the Father is restrained by injunction from coming within 100 metres of any residence where the Mother and children live.
That pursuant to s.68B of the Family Law Act 1975 (Cth), the Father is restrained by injunction from coming within 100 metres of any place of employment where the Mother or either of the children may work from time to time.
That within seven (7) days, the Independent Children’s Lawyer is to explain these Orders to the child [X].
That following compliance with order (8) herein, the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Daniel & Ibarra is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
CAC 1169 of 2016
| MR DANIEL |
Applicant
And
| MS IBARRA |
Respondent
REASONS FOR JUDGMENT
OVERVIEW:
These proceedings relate to the future parenting of the parties’ children, [X] and [Y].
[X] was born on 2004 and she is presently fourteen (14) years of age. [Y] was born on 2011 and he is presently seven (7) years of age. Both children live with the Mother in the Region 1 region and attend school there.
The Mother has always been the primary carer of the children. It has been no easy task. During the parents’ relationship, the Mother was subjected to the Father’s escalating pattern of coercive, controlling family violence. The violence included physical assaults, property damage, stalking-type behaviour, threats, and verbal and emotional abuse.
Much of the family violence sprang from the Father’s seemingly entrenched and paranoid belief system that the Mother was “having affairs”. The violence was fuelled by the Father’s abuse of illicit drugs (most notably amphetamines and in later times ICE), coupled with his abuse of alcohol when he was “coming down” from such drugs.
The legacy of the Father’s violence is that even now the Mother remains highly fearful of him; the children’s emotional health and wellbeing have been compromised.
Following the parties’ separation on 26 February 2015 after a particularly savage incident of family violence, the Father initially remained living in the Region 1 region. While there, he savagely assaulted the Mother again on 24 April 2015, as a result of which he was briefly incarcerated. He found himself in trouble with the law again after assaulting a work supervisor in January 2016.
Later in 2016, the Father entered into another turbulent, and likely violent, relationship with a fellow ICE user, Ms M, who later gave birth to their daughter [A] on 2017. [A] was taken into foster care as a baby and remains in foster care in the Region 1 region.
The Father relocated to Town A in the Region 2 region, where his mother and other extended family live. He attempted drug and alcohol rehabilitation there – but this was unsuccessful. He continued to harbour intense hatred towards the Mother and displayed no insight into his own behaviour.
In August 2017, just after the Family Report interviews, the Father relocated to Melbourne to further drug and alcohol rehabilitation. On the limited evidence before me at trial, he seems to have had some success with this. He enjoys living in Melbourne and plans to stay there long-term as he considers that it offers him more opportunities. He maintains ongoing contact with [A] through supervised visits and he hopes to have her placed into his primary care in the future.
As far as the children of these proceedings are concerned, the Father’s role in their lives has been very limited since late 2015.
In [Y]’s case, the Father has not spent any time with him since late 2015. Presently, the Father and [Y] are essentially estranged.
The Father has however resumed a relationship of sorts with [X] and their relationship became a focus of the evidence at trial. It began when the Father unexpectedly telephoned [X] on her birthday on 2017. Their contact has continued via social media and in more recent times they have spent physical time together.
Since resuming his relationship with [X], the Father has been a damaging and de-stabilising influence in [X] life. He has undermined the Mother. He has encouraged [X] to disrespect authority figures, including Police. He provides no proper parental guidance for [X] and their social media communication lacks proper parent/child boundaries.
[X] has since become rebellious, verbally abusive and defiant towards the Mother. [X] has run away from the Mother’s home on two (2) occasions, jeopardising her own physical safety. One of these involved her, at the age of thirteen (13), travelling by train on her own from the Region 1 region to Town A in the Region 2 (via Train Station). The Father, or a family member of his, had paid for [X]’s train ticket.
The resumption of the Father’s relationship with [X] has not been in [X]’s best interests. It has put the relationship between the Mother and [X] under genuine strain. It has diminished the Mother’s capacity to properly parent [X], including her capacity to place essential age-appropriate boundaries around [X]’s behaviour at a time when [X] needs those boundaries.
In these proceedings, the court has had to determine what, if any, orders should now be made to enable the Father to pursue a relationship with the children. The Mother and the Independent Children’s Lawyer (“ICL”) strongly opposed the Father playing any role in the children’s lives. The Mother’s and ICL’s proposed orders were consistent with the recommendations and oral evidence of the Family Report writer, Dr R.[1]
[1] The Family Report, dated 28/08/17, is exhibit ICL-1
The Father sought orders that he spend supervised time with the children and that he be able to communicate with them by telephone and other electronic means.
Having considered all of the evidence in this case, including the oral evidence given at trial and the submissions made to me, I am satisfied that the best interests of the children require that the court make orders protecting them from the Father. Orders for supervised time would not be sufficiently protective as in my view the children would still be exposed to an unacceptable risk of physical and emotional harm.
Moreover, I am satisfied that the Mother remains highly fearful of the Father as a result of the years of family violence and abuse she endured from him. Her fears are genuine and reasonable. Any court-ordered contact between the Father and the children would cause her substantial anguish and fear, with a consequent adverse impact on her mental health and parenting capacity. As a sole parent, the Mother has been struggling with managing [X] in her teenage years and in my view it is not in the best interests of either child that the Mother’s parenting capacity be diminished or put under any further pressure than has already occurred since the Father resumed his relationship with [X] in July 2017.
Ultimately I have come to the view that the best interests of the children require that I make the orders jointly sought by the Mother and the ICL.
BRIEF LITIGATION HISTORY & THE COMPETING PARENTING PROPOSALS ULTIMATELY PRESENTED AT TRIAL:
These proceedings were initially instituted by the Father in July 2016. In the course of the proceedings, a Child Inclusive Conference took place, an Independent Children’s Lawyer (“ICL”) was appointed, and a Family Report was prepared.
The proceedings eventually came on for what was supposed to have been a two (2) day trial in Newcastle on 28 and 29 June 2018. Ms McMahon of counsel appeared for the Mother and Mr Guyder of counsel appeared for the ICL. The Father was present in person and represented himself. Pursuant to a safety plan, the Mother sat in another courtroom and participated by videolink. At no point were the parents in the same room.
At this stage of the trial, the Father’s proposed orders were as set out in his Initiating Application filed 10 July 2016. Broadly these were orders for equal shared parental responsibility, that the children live week-about with the parents during school terms, that school holiday time be shared, that the parents spend time with the children on special occasions (such as birthdays and the like) and that there be regular telephone communication.[2]
[2] He also sought various injunctions as well as some machinery-type orders to facilitate communication
However, given the Father’s recent relocation to Melbourne, he clarified that he now simply wanted to spend time with the children during school holidays. A particular focus of his was to re-establish his relationship with [Y]. As for [X], the Father was more flexible about her school holiday time, saying that it would be “up to her what she does.”
The Mother’s proposed orders, as set out in her Case Outline filed 25 June 2018, were that she have sole parental responsibility for the children and that the children live with her. She further sought that the Father be prohibited by injunction from having any form of contact with the children, including approaching them at home, at school or at work.
At that stage the ICL tentatively supported the Mother’s proposed orders.
The trial proceeded rather slowly. By the completion of the Father’s evidence on day 2, it was obvious that the trial would have to be adjourned part-heard. In those circumstances, with my leave, the Mother brought an urgent oral application for interim orders in terms of the final orders she was seeking. Her application was strongly supported by the ICL.
In support of her application, the Mother was called to give some short evidence-in-chief, which was to the effect that [X]’s behaviour towards her had markedly deteriorated since the Father re-entered [X]’s life.
In a practical sense, the Mother’s urgent oral application was clearly directed at stymying the Father’s newly-emerged relationship with [X].
After hearing argument, I made the interim orders as sought by the Mother and the ICL. The interim orders were in the following terms:
1. That the Mother has sole parental responsibility for the children, [X] born 2004 and [Y] born 2011.
2. That the children live with the Mother.
3. That the Father spend no time and have no contact with the children.
4. That pursuant to s68B Family Law Act 1975 (Cth), the Father is restrained by injunction from coming within 100 metres of any school attended by either of the children.
5. That pursuant to s68B Family Law Act 1975 (Cth), the Father is restrained by injunction from coming within 100 metres of any residence where the Mother and children live.
6. That pursuant to s68B Family Law Act 1975 (Cth), the Father is restrained by injunction from coming within 100 metres of any place of employment where the mother or either of the children may work from time to time.
7. The Independent Children’s Lawyer is to explain these Orders to the child [X].
Orders 1 – 6 (inclusive) were as sought in the Mother’s Case Outline. I included order 7 as a safeguard, the evidence by that stage having established that [X] was regularly communicating with the Father via social media, and had, over the Mother’s objection, spent some time with the Father at a motel during the week of the trial.
The Father assured me that, although he didn’t agree with the interim orders I had made, he would comply with them.
The trial was otherwise adjourned for further hearing on 2 and 3 August 2018. At the Father’s request, I gave him leave to participate in the resumed trial by videolink from Melbourne.
When the trial resumed on 2 August 2018, the Father participated by videolink and this time around it was the Mother who was physically present in Court. The Father had by then engaged solicitors in Victoria, who had instructed experienced local counsel, Mr Brady, to appear in person on the Father’s behalf.
Upon resumption of the trial the ICL’s counsel advised the Court that, when the ICL had gone to explain the interim orders to [X] , [X] told her that the Father had already done so. The Father’s counsel took some instructions, following which that concession was made.
It also emerged that, with the benefit of legal advice, the Father had markedly changed parenting proposals. The final orders he now sought were as set out in a Case Outline e-filed by his legal representatives on 31 July 2018.
The Father was now conceding that the Mother should have sole parental responsibility, subject to her informing him by email as to any major health or schooling issues. He sought to have electronic or telephone communication with the children on condition that he did not denigrate the Mother or her family. He also proposed an order that if either child indicated an intention to engage in risky behaviour (such as running away), then he would inform the Mother in writing.
The Father was now seeking only supervised time with the children at a contact centre for one (1) weekend per month, to coincide with his supervised visits with his daughter [A]. The Father proposed that he be drug tested before and after weekend visits.
Notably, the Father’s proposal for supervised time had the potential to transition to something more meaningful, as envisaged in his proposed order 6:
6. In the event that the contact centre provides a report that recommends the children’s time with their Father progress to unsupervised time and the Father provides evidence of ongoing abstinence from illicit substances then the children spend unsupervised time with the Father as agreed and failing agreement no less than one weekend a month as follows:
6.1 Such time to coincide with the Father’s supervised time with [A] and in the event the Father is no longer having such supervised time then the fourth weekend of each month;
6.2 For the first six months on Saturday and Sunday from 10.00am to 7.30pm (no overnight time);
6.3 Thereafter from 10.00am Saturday to 7.30pm Sunday;
6.4 Changeover take place at a contact centre unless otherwise agreed in writing.
The Father’s proposed orders also contained the following Notation:
A. In the event that the parties are unable to agree to increased time between [Y] and the Father including block periods during school holiday time with the liberty to take [Y] outside of the Region 3 area once [Y] has commenced grade 7 and provided that there have been no further incidents of family violence and illicit drug use, then the Father have liberty to reapply.
THE EVIDENCE AT TRIAL:
The Father relied upon his Initiating Application filed 10 July 2016 and his affidavit filed 26 July 2016. In the first part of the trial he also tendered (ultimately without objection) a bundle of recent documents he had obtained relating to the apparent success of his drug and alcohol rehabilitation in Melbourne. These documents became exhibits F1 – F13 (inclusive). The documents included “clean” drug screens together with various supporting references and letters from persons involved in his treatment, including case workers, psychologists and some medical notes and a supporting letter from the Father’s general practitioner Dr S.
When the trial resumed on 2 August 2018, the Father was granted leave to rely upon a further affidavit e-filed by his solicitors on 27 July 2018. The affidavit deposed that the Father was attending weekly counselling sessions with a psychologist, weekly Alcoholics Anonymous meetings, weekly Narcotics Anonymous meetings, undertaking ongoing drug screens and attending fortnightly meetings at an Aboriginal Men’s Behaviour Change Group.
The affidavit contained thirteen (13) annexures, of which “D-01” to “D-10” were merely replications of documents he had already tendered. Annexure “D-11” related to the Father’s endeavours to obtain larger accommodation. Annexure “D-12” evidenced that the Father had undertaken some retraining with a view to employment. Annexure “D-13” contained the social media communications between the Father and [X] conducted via the “Messenger” app in the period from 3 March 2018 to 28 June 2018.
The Mother relied upon her comprehensive trial affidavit filed 1 April 2018.
The ICL relied upon the Family Report of Dr R dated 28 August 2017.[3]
[3] At trial, the Family Report became exhibit ICL-1
In the course of the trial, both the Mother and the ICL tendered various business records relating to the Father which had been produced under subpoena from NSW Police, from Region 2 Alcohol & Drug Services (“Region 2”), and from the NSW Department of Corrective Services (“DCS”). The ICL also tendered some Facebook communications between the Father and [X].
In her Case Outline, the ICL also formally relied upon the Child Inclusive Conference Memorandum of Family Consultant Ms C dated 3 February 2017. However, at the start of the trial I was advised that Ms C was not to be called as a witness and, for reasons of procedural fairness and particularly given that at that time the Father was self-represented, I declined to admit her Memorandum into evidence at that time. It appears that the question of admitting the Memorandum into evidence was never re-visited during the trial. In those circumstances I have only had regard to the Memorandum to the extent that its contents were the subject of specific cross-examination at trial. I consider that the Family Report of 28 August 2017, and the oral evidence of Dr R, would largely have superseded the Memorandum in any event.
THE FATHER AS A WITNESS:
The Father’s oral evidence was given at the time when he was self-represented.
It quickly emerged that he did not have with him a copy of the Mother’s Case Outline or trial affidavit, the ICL’s Case Outline, the Family Report or the Child Inclusive Conference Memorandum. In the circumstances, the Court provided him with copies.
The Father’s evidence-in-chief:
As the Father’s affidavit dated back to July 2016, I gave the Father leave to adduce some oral evidence-in-chief so as to update the court as to his circumstances. In the course of doing so, the Father tendered exhibits F1 – F13 referred to earlier.
The Father confirmed that he had relocated to Melbourne, after being accepted into Men’s Recovery Centre – a drug and alcohol rehabilitation centre based there. The date of his admission would appear to have been 15 August 2017, according to exhibit F-4.[4] This places his admission the very day after the Family Report interviews.
[4] Letter from Mr R, AOD Support Worker at Recovery Centre, dated 18/08/17
The Father said that he had successfully completed drug and alcohol rehabilitation through Recovery Centre - which included a requirement that he produce clean drug screens on an ongoing basis. The Father’s evidence as to his rehabilitation was generally corroborated by exhibits F1 – F13, particularly exhibits F-2[5] and F-6.[6]
[5] Letter from Mr M, Manager of Recovery Centre, dated 25/06/18
[6] Letter from Mr L, Psychologist at Men’s Recovery Centre, dated 25/06/18
The Father’s evidence was that, after successfully completing his rehabilitation through Recovery Centre in December 2017, he had moved into “House” in Melbourne – a home for recovering addicts which he said he shared with two older men who were previously alcoholics. He said that he gets on well with them and they all help each other to “stay on track”.
The Father said that he liked living in Melbourne and that he felt safe there. He said that it was about twelve (12) hours’ drive from where the Mother and children were living. The Father said that he was doing some casual work, while seeking full-time work.
The Father gave evidence that [X] had stayed with him at a motel overnight on the Tuesday that very week and that she had spent the Wednesday with him as well – noting that the trial started on the Thursday. The Father also said that he and [X] spoke daily on the telephone.
I asked the Father about [A]. The Father’s evidence was that he was “pretty messed up” at the time he met [A] mother (Ms M); that both of them were abusing drugs during their relationship; that their relationship was a poor one; he said that he was in drug rehabilitation when [A] was born. He conceded that [A] remained in foster care but said that he had supervised visits with her in New South Wales and planned to keep seeing her at least once per month.
The Father in cross-examination:
The Father was cross-examined at some length by both the Mother’s and the ICL’s counsel.
He admitted having perpetrated family violence against the Mother, saying that he had done some “terrible things” to her and was “ashamed” of his actions. He admitted amongst other things that he had choked and thrown the Mother. He admitted calling the Mother abusive names, perhaps including “dirty whore”. He admitted that during the relationship he had destroyed mobile telephones in anger, and punched holes in doors.
The Father admitted that during the relationship he had installed a “tracking app” on the Mother’s mobile telephone one evening around 2015 while the Mother was asleep. The Father conceded that he later confronted the mother about her movements, as tracked by the app and that he accused her of having affairs, which she denied.
The Father said that he accepted that these actions cast him in a very unfavourable light.
It was quite apparent that the Father clearly and unequivocally believed that he was now a completely changed man ever since his rehabilitation at Recovery Centre - that he was “no longer that person.” He said that he now accepted “full responsibility” for his past violence.
But in the witness box, the Father still sought to minimise his violence towards the Mother on the basis of her alleged behaviour.
Time and again in his evidence the Father told the Court about the Mother’s alleged affairs, listing numerous men she had allegedly slept with.[7]
[7] He had done the same during the Family Report interviews
At times, some of the Father’s evidence as to the Mother’s supposedly serial affairs had a paranoid flavour. One example he gave was that at a time when the mother was supposedly at work, he rang her mobile telephone and could hear that she was “huffing and puffing” while talking to him. She told him that this was as a result of climbing stairs but he said that she was meant to be working at (employer omitted) at the time. He inferred that she was lying and that she was having an affair.
On another occasion, the presence of some beer bottles in the garden meant that the Mother was having an affair.
The Father explained that the Mother’s “false” denials of the affairs finally unravelled when he read her phone book and discovered ear tags, pen markings and the like which confirmed to him that she was being deceitful about her movements. This included her having apparently circled (according to indents in the paper) a building/map depicting one particular man’s business premises – this person being a man whom the Father suspected was sleeping with the Mother at the time.
Having seen and heard the Father’s evidence, I was left in no doubt that towards the end of the parties’ relationship the Father was regularly confronting the Mother about these alleged affairs, that she was denying it and he wouldn’t believe her. This inherently unpleasant and intense dynamic, coupled with the Father’s drug and alcohol abuse, in my view fuelled the Father’s escalating family violence towards her.
Not only did the Father still see himself as a victim of the Mother’s affairs, he also portrayed himself as a victim of her allegedly false denials, which he labelled as “mind games” that had caused him mental harm and anguish. More than once in his evidence, the Father labelled the Mother as “an expert liar, manipulator and deceiver” in relation to her false denials. The Father said that towards the end of the relationship the Mother had “weakened his mind”. He said that when he would confront the Mother about her affairs he would end up feeling “confused” and even physically dizzy.
When it was suggested to him that his use of illicit drugs may have contributed to his violence, the Father maintained that the main cause was the Mother’s affairs. He even justified his illicit drug use on the basis of the Mother’s alleged affairs, saying that because of them he would use drugs in order to “numb” himself.
By continuing to paint himself as a victim in this way, the Father showed that he had not in fact “fully accepted” responsibility for his past violence. In my view he accepts partial responsibility.
Moreover and significantly, the Father even now remains oblivious to the impacts of the violence on the Mother and the children. I did not detect in his evidence that the Father had any genuine understanding or empathy for them as the victims of his behaviour. His evidence displayed a lack of child focus,[8] but rather his focus was very much on himself. This is perhaps best summed up by his statement in the witness box that he had been “punished for his actions” against the Mother and that, having now gotten himself out of a self-described “rut” in his life through rehabilitation and counselling, the past family violence issues were now no longer relevant or significant in terms of the future parenting of the children.
[8] Dr R made similar observations – see paragraph 34 of the Family Report; exhibit ICL-1
He reasoned that equal shared parental responsibility could work if the Mother simply made amends with him. In this regard, he said he was “not the one with the issue” but was ready and willing to make amends with the Mother. His view was that the Mother should now just move on.
The Father would not accept that the children had personally witnessed the past violence to any real extent. He would not accept that the children’s exposure to his past violence had in fact had any adverse impact on either child. In this regard he gave the specific instance of [Y] being “happy to see him” in May 2015, just after the Father’s release from custody for assaulting the Mother and breaching the ADVO in April 2015. Notably that assault involved the Father repeatedly striking and kicking the Mother in the presence of both children, leaving her covered in blood and having to be taken away by ambulance. In that context, [Y]’s apparent “happiness” when seeing him a few weeks later may be superficially true but it does not in any way recognise the insidious impacts of the children witnessing such harrowing and high level family violence.
While the Family Report had carefully considered the impact of the Father’s family violence on the children, the Father steadfastly refused to read it. His reasoning was that he did not want to look at that material as it only took him back to what was effectively a “dark time” in his life that he was ashamed of and from which he said he had moved on. Once again his focus was on himself only.
I was particularly perplexed that the Father refused to read the Family Report. I told him that, confronting as the Family Report might be, he needed to read it so that he could properly understand the risk case being presented against him. His stubborn refusal to read the Family Report reflected poorly on him as a litigant, as a witness but most importantly as a parent. In my view it was an abrogation of his parental responsibility and demonstrated a lack of capacity to empathise with the Mother or the children[9] or to even consider viewpoints different to his own.
[9] His inability to empathise having been noted in paragraphs 25 and 56 of the Family Report; exhibit ICL-1
To be fair to the Father, I consider that at least part of his lack of insight/empathy is a direct result of his own troubled upbringing, which was characterised by child abuse and family violence. The Father was meted out with violent treatment at a young age and probably normalised family violence in his internal world.[10]
[10] Family Report, paragraphs 54 & 55; exhibit ICL-1
The Father also continued to deny and minimise the full extent of his past violent behaviour towards the Mother and others.
He denied the Mother’s allegation that he was angrily threatening to kill the Mother with an axe on one particular evening. But he was willing to admit that he was drunk on that occasion, that he thought she was having an affair and that he may have sworn at her. As for the axe marks the Mother says she observed on the garage floor the next day, he “couldn’t recall” whether there were axe marks there or not. The Mother’s version of those events was plausible, credible and consistent with other evidence.
The Father denied smashing mobile phones of the Mother during the relationship and claimed only to have only destroyed his own phones. I reject that evidence. The Father was clearly checking the Mother’s mobile phone/s in relation to her alleged affairs and the Mother’s evidence that he smashed her phones was credible and consistent with other evidence.
The Father claimed at one point during his evidence that he had only hit the Mother “once”, which he later changed to “twice” but that evidence was inconsistent with the weight of the evidence as a whole, including disclosures made by the children and subpoenaed records.
In relation to the violent assault of 26 February 2015 which led to the separation, paragraphs 29 to 31 of the Father’s affidavit of 26 July 2016 had substantially minimised that event:
“We were at the front door arguing. I physically had hold of her arm and was trying to put her out of the front door.”
The minimisation still continued in the witness box. The Father now conceded that he had choked the Mother and had physically thrown her as hard as he could. However, he still maintained that on that particular day the Mother “made him do it” as she kept following him around for hours, essentially asking him to hit her. This was hardly a true acceptance of responsibility. Moreover, I reject his evidence that the children did not witness the violence. I am comfortably satisfied on the evidence that both children did, and were impacted by it.
The Father denied making death threats against the Mother on 18 November 2015 despite subpoenaed records revealing that his sister had made a 000 call to Police that day to warn them about his threat. [11] I reject the Father’s evidence that on this occasion his sister was simply being malicious and making up the threat as a result of a family argument. In this respect, I specifically note that the Mother’s unchallenged evidence was that in the days leading up to 18 November, things had been starting to “escalate” again, with the Father telephoning her to accuse her of having had affairs. Moreover, the Mother’s unchallenged evidence was that on the day in question the Father’s sister, mother and his brother had all tried to telephone the Mother to talk to her – despite all being estranged from the Mother at the time.[12] I would add that Police certainly took the 000 call seriously as they attended at the Mother’s home to warn her about it, during which time they observed a man ride a motorcycle past the Mother’s home. The rider matched the Father’s description and the motorcycle matched the Father’s motorcycle, but Police were not able to intercept him. The Mother, and her sister who was with her at the time, were understandably very frightened by this and went inside the house.[13]
[11] Exhibit ICL-8
[12] Importantly, the Mother was at that time estranged from these family members
[13] Police were not satisfied that they could provide identification of the Father beyond a reasonable doubt. Notably, the Father’s sister refused to cooperate with Police or provide a statement. Her actions in seemingly protecting the Father were inconsistent with her having fallen out with the Father as he claimed. I also accept the Mother’s unchallenged evidence that the very next day the Father had left abusive and threatening messages on her sister’s phone and her mother’s phone
The Father greatly minimised the circumstances surrounding his conviction for the offences of assault and stalking/intimidating his work supervisor on 10 January 2016. According to subpoenaed documents produced by NSW Police, when his work supervisor challenged the Father about breaching company policy, the Father quickly became enraged, telling the supervisor “You don’t know what I’ve fucking been through.” The Father then shoved his hard hat into the supervisor’s chin, forcing him backwards, punched the supervisor hard in the face and, as the supervisor retreated, the Father kept throwing punches at his face, which were deflected by the supervisor’s hands. Following this event, the supervisor was left in genuine fear of the Father and requested that Police apply for a provisional AVO to protect him, which they did.[14]
[14] Exhibit ICL-6
The full extent of the Father’s affidavit evidence as to this event was that “I had an altercation with my boss and I got sacked.”[15]In cross-examination, the Father continued to greatly minimise the event. Once again he was the victim – the supervisor had harassed and intimidated him. He denied throwing continued punches and even suggested that he may have been able to plead self-defence. I reject the Father’s self-serving account of this event and am comfortably satisfied that he was the aggressor and that, as had happened many times before, the Father had let his angry temper get the better of him.
[15] Affidavit filed 26/07/16, paragraph 62
The Father denied making threats against the Mother, and some other violent and concerning comments about her, that were recorded in business records maintained by uninterested third parties, namely Drug & Alcohol Centre[16] and the DCS.[17]
[16] Drug & Alcohol Centre
[17] NSW Department of Corrective Services
In relation to the DCS, the Father was in 2016 required to be under their supervision and to undertake various courses, including a course addressing his past family violence. The Father was specifically cross-examined about an interview he had with Corrective Services Officer Mr D on 13 July 2016. The interview notes record that the Father was keen to portray himself as a victim of the system, resistant to changing his own behaviour. Moreover, the notes go on to state that the Father was displaying hostility toward the Mother during that interview, referring to her as “that slut” and “that cunt”. While the notes record that the Father said that he did not agree with violence towards the Mother, he repeatedly admitted to CSO Mr D that he enjoyed perpetrating it as the Mother deserved it.[18]
[18] Exhibit M-3
In cross-examination the Father freely admitted that at the interview he may have called the Mother “that slut” and “that cunt” – but he denied ever saying that he had enjoyed perpetrating violence or that the Mother deserved it. He suggested that CSO Mr D and he had had a number of run-ins with the result that Mr D may have made those allegations up. I reject the Father’s evidence as another minimisation and am comfortably satisfied that the notes reflect the Father’s statements at that time.
In relation to Drug & Alcohol Centre, the Father underwent an unsuccessful attempt at drug and alcohol rehabilitation there between 10 July 2017 and 3 August 2017. Their subpoenaed records[19] showed that while there the Father was behaving aggressively and abusively, breaking rules and being unwilling to accept responsibility for his past actions. Notably, the Father told staff that his motivation for attending was to have contact with his children, but his attitude remained abusive towards the mother during several meetings. He was unrepentant about it, despite several staff trying to coach him about the issue.
[19] Exhibits M-2 and ICL-7
Ultimately the documents show that the Father was discharged from the Centre by mutual arrangement after having made threats to harm the mother, himself and the children -“take everyone out”. He told Centre staff that he would give the Police a good reason to put him in gaol. Staff had to contact Police to advise them of the Father’s threats.
In the witness box, the Father denied making the threat in question and again portrayed himself as something of a victim. Insofar as an altercation with one particular female staff member was concerned, he said she had been intimidating him, not the other way around. While he said he had become angry at times in relation to the Mother’s “lies”, he never threatened to harm her or anyone else. He said the Centre staff “had a beef with me” and that his placement there had not been “culturally appropriate”.
I reject the Father’s evidence. In my view the relevant Centre notes accurately depict their observations of the Father and his behaviour at that time and the notes are consistent with other evidence. I reject the suggestion that the death threats acted upon by the Centre were unreliable or false because of any personality or cultural clash.
While at Drug & Alcohol Centre, the Father had telephoned [X] on her birthday on 2017. This heralded the resumption of their relationship. What [X] reported to Police about this conversation is set out in exhibit ICL-5. [X] felt shocked when the caller identified himself. He said he had just wanted to wish her a happy birthday. But after some further conversation, the Father told [X]:
“I can’t be in the same room as your mum, your mum and her family are going to have to have police protection for the rest of her life.”
According to [X], the call ended some fifteen (15) minutes later. [X] later explained to Police how the Father’s threat made her feel:
“It made me feel scared for my mum and it made me feel like we are not safe to go out in public.” She reasoned that if she had simply hung up on him:
“he’d get angry, I had flashbacks of the past and thought I shouldn’t hang up in case he goes overboard.”
[X] corroborated this account in the Family Report interviews on 14 August 2017.[20]
[20] Family Report, paragraph 108; exhibit ICL-1
According to exhibit ICL-5, the Police contacted the Father and informed him of the allegation. His response sums up his attitude at that time:
“I don’t care what the court or police say, I want to contact my daughter and I will. I will not accept your paper work, I will not come to court, you will have to come to Victoria and arrest me.”
The Father was consequently charged with contravening the AVO which was in force at that time and with an offence of stalk/intimidate intending to cause fear. He pleaded guilty to those charges in the Local Court on 16 January 2018. [21] In the circumstances I am comfortably satisfied that the Father made such threats, and my conclusion is fortified by the fact that the Father agreed in cross-examination that on the day prior to the call (10 July 2017) he had told staff at Drug & Alcohol Centre that he “disliked the Mother so much he couldn’t say.”
[21] Exhibit M-1, page 16 of 16
In the witness box, the Father refused to read the Child Inclusive Conference Memorandum of 3 February 2017 when it was put to him. He was specifically cross-examined about the content of bullet point 9 on page 3 of the Memorandum which was in these terms:
· I asked [X] to tell me what life was like living with her father. She said that “one night he picked her (the mother) up out of bed by the shirt and he chucked her on the ground because she wouldn’t give him money to buy drugs. He was kicking into her on the floor. I jumped on his back and I was hitting and kicking him. He still wouldn’t stop. Then I bit him really hard and he stopped and drove off……I would have been about 9 at the time”. [X] described the mother as crying and apologising saying “I’m sorry I can’t buy you food for school tomorrow, you’ll have to go without for a day……I didn’t go to school. He came back, he didn’t apologise and he went to the shed and was in there for the whole time”. [X] said that the mother hurt her back after the incident. [The father “100%” denies this incident. He said that [X] has been brainwashed by her mother].
The Father refused to answer any questions about that bullet point paragraph, instead suggesting that any questions about it be directed to [X]. I considered that answer to be evasive.
The Father was cross-examined about some old convictions for assault and resisting Police, and he minimised those as well. He said police had “harassed him” and brought false charges when he was younger. These included offences to which he had pleaded guilty.
The Father’s cross-examination also revealed a glaring lack of insight in relation to what constitutes proper parental role modelling for [X].
During cross-examination by the ICL’s counsel, the Father conceded that he had earlier in the week of trial posted an anti-police message on [X]’s Facebook page.[22] It appears that [X] had posted a link from the [Newspaper], showing a picture of two (2) uniformed policemen with the caption – “Police operation targets youths on unregistered motorcycles”. In response to this, the father posted:
Fkn dogs are out the scrub now wanting to bust young kids on there [sic] bike not hurting anyone just being kids and having fun! Policing is lawful criminal business out to get paid n bust anyone they can for whatever they can to get money and they enjoy ruining peoples lives it puts a smile on there [sic] face. Its disgusting most of the work thease [sic] lawful criminal gangs are aloud [sic] to do and get away with.
[22] Exhibit ICL-2.
It is concerning that the Father would send such an aggressive anti-police message to his impressionable daughter. The Father clearly could not accept or understand the potential dangers to [X] in sending her such a message. Rather, he justified it on the basis that she needed to be aware that she could not trust the police.
Also very troubling was the Father’s Facebook post to [X] which became exhibit ICL-3. [X] had posted a photograph from the [Newspaper] depicting two (2) parents arguing (with a child standing between them, head in his hands) and the caption “Mothers who deny fathers access to the couple’s children after a break-up could be jailed.” [X] had posted “needs to happen”. The Father’s response was to post a thumbs up or “like”.
In the witness box the Father did not accept, or perhaps even understand, that in giving [X]’s post his approval he was plainly undermining the Mother’s authority and - more broadly - undermining the relationship between [X] and the Mother.
In the same vein, while the Father denied the proposition that he was “poisoning” [X]’s mind against the Mother, he also said that she was fourteen (14) years old, and now able to see through her Mother’s, her maternal aunt’s and maternal grandmother’s “lies” about him.
Though he did not admit it in the witness box, I am satisfied that the Father tried to mislead Dr R in the Family Report interviews. Prior to interviews the Father had had his solicitor contact Dr R to advise that it would be unlikely he could attend the interviews as he was in drug rehabilitation. This was probably true[23] but the Father then unexpectedly attended at interview, explaining to Dr R that he had left the program that morning “as he was not willing to miss the appointment”. This was plainly false and self-serving. The truth is that the Father had had no choice but to agree to leave drug rehabilitation due to his poor behaviour, including death threats he made against the Mother. For reasons that remain unclear, while in the witness box the Father was unwilling to admit that he had mislead the report writer about this but no other conclusion is available.
[23] The Father was undergoing drug and alcohol rehabilitation at Rehab Centre at the time
The Father also told Dr R that [A] was the product of a “one night stand” with Ms M. This evidence was plainly false as he admitted in the witness box that he had engaged in a somewhat turbulent relationship with Ms M for some months.[24]
[24] Family Report, paragraph 8; exhibit ICL-1
The Father also told Dr R at interview that he had not taken drugs “for a few months”. This was false – in other evidence the Father admitted that he had taken ICE only the day before the interview.[25]
[25] Family Report, paragraph 22; exhibit ICL-1
In conclusion, the Father’s evidence in the witness box was deeply troubling. While he appears to have rehabilitated himself to some extent in relation to drugs, he still minimised and denied the full extent of his past violence and he remained totally lacking in insight or in empathy insofar as the impacts of such violence on the Mother or the children were concerned. He believed the case was about him and his rights.[26] He had no insight into his undermining of the Mother’s authority over [X] and of the potentially damaging role he was playing as a parental role model for her.
[26] Consistent with paragraph 73 of the Family Report; exhibit ICL-1
THE EVIDENCE OF THE MOTHER:
The Mother gave some brief evidence-in-chief.
The Mother’s evidence-in-chief:
The Mother confirmed that [X]’s behaviour towards her had gone “downhill” as of about October 2017, which coincides with the Father and [X] starting to communicate via Facebook/other social media.
She confirmed that [X] had started calling her abusive names on occasions such as “white cunt” and “white slut”.
She confirmed that [X] had run away from home in February 2018 and again in March 2018.
For example, she had not consented to [X] going to visit the Father that week nor for [X] to visit [A]. She was simply unable to stop [X] from doing so.
The essential thrust of the Mother’s evidence was that she now had real problems managing [X]’s behaviour, and felt that she could not stop [X] from going to see her Father if she was determined to do so. She felt very much undermined by the Father and considered that [X] was using the Father’s words against her. She was desperate to suspend all contact between the Father and [X] but seemed helpless to do so.
She said that [X] had facilitated a secret telephone call between the Father and [Y] on [Y]’s birthday in 2018. [Y] had apparently told the Mother about it afterwards and he told her that their conversation was along these lines:
[Y]: “I’ve just been speaking to dad”
Mother: “Have you? That’s good mate”
[Y]: “dad told me you won’t let him pick me up from school”
Mother: “no”
[Y]: “dad’s getting better”
The Father’s statements to [Y] in that call – being the first contact between them in the better part of three (3) years - were clearly manipulative and undermining of the Mother.
It was at this point that the first part of the trial concluded and I made the interim orders earlier set out earlier.
The Mother in cross-examination:
Upon resumption of the trial in August, Mr Brady of counsel cross-examined the Mother.
At the outset, Mr Brady flagged that he would not be proposing to directly challenge the Mother’s evidence as to family violence. He said that in making that forensic decision, he acknowledged that cross-examining the Mother about these matters would no doubt cause her distress. The focus of his cross-examination was instead very much directed at ‘moving forward’ and eliciting evidence favourable to the Father’s case for a resumption of time with the children, albeit that it was now only supervised time.
It follows that the Mother’s evidence as to family violence in her Affidavit was not the subject of any serious challenge in the witness box.
The Mother confirmed [X]’s deteriorating and defiant behaviour towards her since October 2017, perhaps best exemplified by [X]’s decision to run away to the Father’s sister’s home at Town B in February 2018 and then to run away again to the paternal family in Town A in March 2018.
The Mother confirmed that when [X] ran away in February 2018, she was away from home for five (5) days and the Mother was constantly trying to contact her mobile phone during this period. At one stage [X] broke into the home, taking and then selling one of her motorbikes.
There was no challenge to the Mother’s evidence that [X] said to her such things as: “dad should have done the job properly and killed you”; that the Mother was “just a white slut”; or that “dad raised us better than you”.
In relation to [X] running away in March 2018, the Mother’s evidence was that she was unable to stop [X] from going. [X] told her that the Father had bought her train ticket. The Mother said she arranged for Police to try and intercept [X] from Train Station in Sydney but that was apparently unsuccessful.
The end result was that [X] ended up staying with her paternal extended family members in the Region 2 region, telling the Mother that “I want to, dad’s told me I will get a better education there, he can look after me better than you can”.
The Mother agreed with Mr Brady that she had arranged for School 1 Public School to send [X]’s student information to the School 2 School after [X] had started going to school in Town A. However, I accept her evidence that she did so reluctantly and that, as much as she wanted [X] to return home, the Mother’s priority at that time was to do what was best for [X]. The Mother was at that time in an impossible position.
The Mother’s evidence was that [X] stayed in the Region 2 region for only a couple of weeks, returning to the Mother’s home in Town C around 7 April 2018. As was the case after her February running away, [X] was apologetic to the Mother upon her return.
The Mother confirmed that she did not monitor [X]’s mobile phone and she was aware that [X] was secretive about her contact with the Father. She agreed that [X] did not always tell her the truth.
The Mother was cross-examined in relation to Aboriginal cultural issues. Her evidence was that she supports the children’s cultural connection and their Aboriginality. She said that [Y] was interested in Aboriginal dance and [X] was interested in attending the Aboriginal room at school. Further, the Mother facilitates ongoing relationships with the Father’s extended Aboriginal family in the Region 1 region.[27]
[27] Notably the Father’s family in Town A are not Aboriginal
The Mother became visibly upset when explaining how [X] had left school behind her back to meet [A] with the Father. This was clearly an arrangement made between the Father and [X], which the Mother said made her feel “horrible” as a parent.
The Mother was questioned about whether the children ever ask about the Father. Her response was that [X] talked to her about living with the Father in Melbourne at some future point but that the Mother had told her that it was a “long road” as the Father was in rehabilitation.
The Mother said that [Y] sometimes mentions the Father and she has told him that the Father needs help. [Y]’s response is that he wishes that the Father would get better.
The Mother agreed generally that the Father’s use of illicit drugs, particularly ICE, had made his violent behaviour worse. She maintained that the Father had threatened to kill her in November 2015 as outlined in her trial Affidavit and she said that 2015 was the last time she had actually spoken to the Father.
When the evidence as to the Father’s recent rehabilitation was put to her, she confirmed that she was aware of it and that the Father was saying that he was sorry for his past behaviour. However, she was concerned that some of the evidence he had given in the witness box reflected ongoing paranoia by him.
When asked how she would feel about the prospect of the Father spending supervised time with the children, she responded with “scared” and “I don’t know”.She said that her main concern is the children’s wellbeing and that, while [X] does what she wants, the Mother is very worried about the Father having a negative influence on [Y].
When specifically asked what could be done to allay the Mother’s fears, the Mother said she had no idea but that she would want a “100% guarantee” that supervised time would not adversely affect the children. The Mother also expressed concern about paternal family members visiting the children given her concerns about their violence and possible adverse influence.[28]
[28] The Mother’s evidence is that the paternal grandmother had telephoned her threatening to burn down her house down with the Mother in it
She was asked about her current relationship with [X], she said that it had improved somewhat, having been quite bad at the end of 2017/early 2018. She confirmed her evidence that the Father has made contact with [X] in September 2017, following which [X] had said to the Mother that the Father had told [X] that she needed to start “telling the truth about him”, and that he said he was “getting better” and had been off the drugs for four months.[29]
[29] Mother’s trial affidavit, paragraphs 213-215
In cross-examination by the ICL’s counsel, the Mother confirmed that [X] had admitted to having an anger management problem and had had a session with a psychologist at Headspace. The Mother did not sit in on that particular session and does not know what was said.
The Mother confirmed that both she and [X] had been quite upset about the deteriorating nature of their relationship after the Father reengaged with [X].
She gave evidence that [X] had been experiencing difficulties at school, and that she was spending too much time in the Aboriginal Room when school was too difficult. She was finding her school work more challenging and was missing too much school. She was only just passing most of her subjects.
The Mother confirmed that [X] had been suspended from School 1 High School for ten (10) days as a result of a fight not long after [X]’s return from Town A.
The Mother said that [X] was unhappy about the interim orders that prohibited her from contacting the Father.
Re-examination:
In re-examination the Mother confirmed that she was fearful about the children’s wellbeing in the event of the Court making orders for supervised visits. She was fearful whenever she knew that the Father was in town because she was aware of his past threats, particularly given his statement to [X] on the phone on 11 July 2017 that he didn’t know what he would do if he saw her. She said she was afraid to let the Father know her whereabouts.
Overall I found the Mother’s evidence to be credible and genuine. She struck me as being fearful of the Father and anxious about the future welfare of the children in the event that the Court made orders for supervised time. There is no doubt that she has struggled enormously with [X] ever since the Father’s reconnection with her in 2017.
I did not detect the Mother to be motivated by malice in any way. I find her position in these proceedings to be based entirely on what she believes to be the best interests of the children.
I accept the Mother as a reliable and accurate witness.
THE EVIDENCE OF DR R:
Dr R was the final witness to give evidence at trial.
The Family Report:
Dr R had written a comprehensive Family Report of 28 August 2017.[30]
[30] Exhibit ICL-1
The Family Report had noted that at interview the Father “did not appear to take personal responsibility” for the full extent of his physical violence, noting that such violence was by nature highly aggressive and forceful. Of “significant concern” to Dr R was “the absence of empathy and remorse, in addition to complete disregard for the impact of the events on the children”. The Father found it difficult to remain child-centred. He referred to the Mother’s alleged affairs. He minimised his own past violence and criminal convictions. I observed these same themes emerge when the Father was in the witness box.
At interview the Father had said that the violence he perpetrated against the Mother did not make him a violent person against women generally. Essentially he told Dr R that the Mother knew how to ‘get him going’. In the witness box the Father made similar statements.
Notably, the Father admitted to Dr R at interview that he considered himself to be a risk to the Mother considering his levels of distress at the time of the interviews – such a statement being entirely consistent with what he had said to [X] a month earlier during their telephone call on [X]’s birthday. He clearly remained very angry at the Mother as at that time, telling Dr R that the Mother was a “fucking cunt.”
The Family Report noted that the Mother was helpful and willing to participate in the interviews. That said, the Mother was “noticeably anxious and frequently cried throughout the assessment interview, however she provided a clear and concise narrative and remained child-focused throughout”.
The Mother corroborated her account of family violence. The Mother reported at interview that as a result of the children’s exposure to the family violence, both had a significant problem with using inappropriate language and that both would respond to their emotions with inappropriate aggression. At that time, [X] was expressing hatred towards the Father and saying that she wanted him dead. The Mother says she would respond by saying “he is your dad and I don’t wish him any harm”. The Mother confirmed that she had organised counselling for [X] and for herself at that time.
The Mother confirmed at interview that the Father was, in her view “paranoid” about the prospect of the Mother having had affairs and that this was a recurring theme of their arguments and his anger.
Dr R considered that the Mother was frightened of the Father and unwilling to have any further contact with him; that she wanted to protect the children from him. This was also my observation of the Mother in the witness box.
At interview, neither child wanted to see the Father. [Y] became quite tearful and upset at the prospect of seeing him.
[X] recounted to Dr R witnessing substantial family violence. She talked about her Father’s drug use. She said she had seen her Father throw her Mother across the lounge; pull the Mother out of bed with [X] jumping on his back; threatened to kill the Mother with a pair of scissors; and she referred to the particularly violent incident that occurred on 24 April 2015 when the Father slapped, punched and kicked the Mother and split her head open. [X] told Dr R that [Y] was present on at least two (2) occasions of such physical violence including the final incident on 24 April 2015.
Dr R ultimately concluded in the Family Report that the Mother had alleged significant family violence, witnessed by the children. Dr R was clearly very concerned about the Father’s life-threatening behaviours such as choking. She was concerned about the Father’s lack of empathy at interview, and his lack of insight into the impact of his violence on the children.
Dr R noted that [X] reported significant fear of the Father and hypervigilance impacting her normal functioning.[31] Dr R also noted the Mother’s reports of [Y] experiencing heightened anxiety and needing constant reassurance of the Mother’s location, coupled with his aggressive behaviour that required professional help. Dr R also noted [Y]’s own response to her question about seeing the Father, which in her view “indicated substantial emotional and psychological distress”.
[31] Family Report, paragraph 126; exhibit ICL-1
Dr R concluded in the Family Report that the Father had demonstrated a highly aggressive and violent propensity with little regard to the wellbeing of others, that he remained a significant risk to the children and that it would be in the best interests of the children that the Mother have sole parental responsibility for the children, that the children live with her and that the Father have no contact or communication with them.
Dr R in cross-examination:
In the witness box, Dr R confirmed the content of the Family Report and said that she had also considered the further updating evidence provided to her. She still stood by the Family Report recommendations.
Dr R was taken to Exhibits M-3, M-4 and M-5 being case notes produced under subpoena by the New South Wales Department of Corrective Services in which the husband had made threats against the Mother. She said that these threats were a significant risk factor, noting particularly that the threats were made in the presence of third parties and included threats to kill.
Dr R was specifically asked about [X]’s disclosure to her at interview that her father had told her during their first telephone call on 11 July 2017 that the Mother would be “in trouble” if the father ever saw her again and would need protection from him for the rest of her life. Dr R said that [X] made the disclosure to her in a very matter-of-fact way.
Dr R was asked why [X] may have subsequently decided to re-engage in her relationship with the Father. Her response was that [X] may have been unconsciously trying to protect the Mother from him.
Dr R accepted that the Father could be undermining [X]’s relationship with the Mother, as he had effectively given [X] “another option” at times when [X] might be arguing with the Mother, or otherwise challenging the Mother’s authority.
Dr R was taken to the unchallenged evidence in paragraph 213 of the Mother’s trial affidavit wherein she deposed that [X] had said to her in September 2017 that: “Dad said I need to start telling the truth about what sort of a person he is.” Dr R accepted that the Father may have been influencing [X] and that such influence may have been behind [X]’s later defiant and rude behaviour towards the Mother.
Dr R was taken to the social media communications between the Father and [X] contained in annexure “D-13” to the Father’s affidavit of 27 July 2018. Dr R was clearly concerned about the nature of these communications. She said that, in her view, the communications showed that [X]“desires a relationship with the Father but does not understand the bigger picture.”
Dr R expressed concern about the Father sending photographs of girlfriends to [X] in those communications. She said that sending such photographs was more consistent with the existence of a “peer” relationship rather than a parental relationship. She was concerned that the Father was not setting proper boundaries.
She was taken to a particularly heartfelt message from [X] to the Father of 23 April 2018 which was in these terms:
“I love you too dad but fuck you really hurt me sometimes. You just don’t think how I feel. I hate it when you talk about other girls to me, I hate it so much! And I try to wreck all your relationships bc I’m fucking jealous. I’m supposed to be your girl, I’m supposed to be getting hugs and kisses off you, I’m supposed to be on the phone to you for hours, I’m supposed to be the girl you take out. I don’t care how old I am, I want a dad. And the thing I hate the most is when the sluts have kids bc I’m scared they’ll take you off me. Like when you was with that Ms G chick, and you was calling me and telling me about how you took her kids to school and took them motorbike riding and brought them things, like that really fucked around with me and that broke me so much. Even when [A] was born I was so heartbroken bc I thought I was always supposed to be daddy’s little girl. Don’t get me wrong I love [A] more than anything but shit like that really breaks me dad….
I’ve lost you for long enough and I just want you all to myself and that’s why I don’t tell [Y] about you bc I want you to myself I don’t wanna share you”
Dr R’s concern was that this particular message demonstrated a “really concerning relationship” between the Father and [X] in which [X] was distressed, desperate to keep the relationship going, and felt threatened. She said that what was most important in a healthy parent/child relationship was predictability, consistency and confidence and that she wasn’t seeing these things in their messaging. Instead she was seeing fear.
Dr R was taken to [X]’s message to the Father of 28 April 2018 in which she said:
“Dad tell this junkie cunt to leave me alone. He’s got like five kids and he’s trying to get with me!”
Dr R’s concern was that this message again showed the absence of proper boundaries between Father and daughter and that the Father could not be seen to have properly addressed [X]’s issues.
Dr R expressed similar concerns in relation to the following exchange of messages between the Father and [X] on 15 May 2018:
[X]: “Dad can you please text this cunt and tell him to leave me the fuck alone.”
[X]: “Dad now one of the fucking lorkings is making up shit about me!”
Father:“Remember what I said! Now them cunts are just absolute scum of the earth not even worthy of nothing there fkn air thiefs dont worry about em. The old man is a lifetime junky his kids are all pieces of shit the grand mother is a life time dole bludger with the hugest ass ive ever seen there the ugliest family all of em they no good dont even bother with em block em all they mean nothing”
[X]: “yeah I know he’s a little shit talking dawg”
Father:“Dont get court up in there drama n bullshit them especilay arnt worth not even a txt fuk em the low life bottom feeders thays all they are n thats fact im not just being nasty what a putrid family”
Dr R expressed concern about the verbal abuse and poor role modelling being presented by the Father in these communications. Dr R saw [X] as presenting significant problems for the Father to solve and Dr R was concerned at the Father’s method of protecting [X] in that situation.
Dr R expressed concern about the Father holding out to [X] the future prospect of living with him in Melbourne. Dr R said that the Father was giving [X] the simple message that he would save/rescue her, which Dr R saw as problematic because it did not in any way facilitate the Mother’s relationship with [X]. It did not encourage [X]’s stability in the Mother’s household. It did not encourage [X] to take responsibility for her own actions.
Dr R agreed with the proposition that, if at trial the Father had downplayed the impact of his family violence on the children, then this would show a lack of insight. She said that if the Father did not understand the impact of violence on children then it was difficult to see how he could adjust his behaviour.
Dr R corroborated my own concerns about the Father’s refusal to read the Family Report. Her evidence was that his failure to read it may demonstrate that he still lacks the emotional capacity to properly regulate his responses when reading confronting material. She said that functioning adults need to have that capacity.
While Dr R considered that the Father appeared to have made some progress at Recovery Centre, and that he deserved recognition and acknowledgement for that progress, she was not able to herself be sure how much progress he had actually made and whether he had yet developed any real empathy.
Dr R was told about the Mother’s evidence that she would only be agreeable to supervised time if there was a “100% guarantee” that it would not cause the children any harm. In that context she was asked about the possible adverse impacts on the Mother if orders were made for the Father to spend supervised time with the children.
Dr R’s response was that it would be extremely difficult for the mother to tolerate a resumption of the Father’s relationship with the children having regard to her past experience of his threats and violent conduct. She considered the Mother’s fears for her own safety to be well-grounded and thought that any orders for the Father to spend time with the children would likely have an adverse effect on the Mother’s health by increasing her anxiety and her risk of depression. Dr R said that there was a risk that orders restoring the Father’s relationship with the children may result in the Mother becoming consistently hyper-vigilant in relation to her safety.
Dr R was asked about the potential benefits of maintaining a relationship between the Father and the children by way of supervised time at a contact centre. She said that one potential benefit was that it would give [X] an opportunity to maintain a connection with her Father, which is important for her development. She also agreed that if the Father/daughter relationship is maintained then this may potentially reduce the risk of [X] running away from the Mother’s home in future. A further potential benefit she identified was that [X] could ask the Father about past events and can get him to answer her questions.
However, Dr R did say that these positives had to be weighed up against the significant risk that if the Father remained unable to manage his own needs and behaviours, he would continue to present as an inappropriate role model for [X] and otherwise undermine the Mother as a parent. Dr R was also concerned as to the possible adverse impact on the sibling relationship as between [X] and [Y], given that [X]’s social media messages to the Father indicated a desire to keep the Father “to herself” and to exclude [Y].
Dr R noted that both children had demonstrated behavioural issues at the time of the Family Report interviews, and emphasised that both were children with “problems”. She considered that the challenges faced by each child were likely to be a response to their past exposure to the Father’s past family violence.
Given that the evidence of Dr R was adverse to the Father’s case, I allowed Mr Brady to cross-examine last.
Mr Brady valiantly attempted to challenge Dr R’s evidence and in my view he put all reasonable arguments and hypotheses to her that could reasonably have been put on the evidence.
Mr Brady asked Dr R what counselling the Father could undertake to become a better parent. She nominated some courses, but she considered it more important that he have individual counselling with a counsellor who had access to all of the evidence and medical reports and who could help the Father to address his inability to manage his behaviour and to understand its impact. She said this would not be an easy process and that the outcome of it was hard, if not impossible, to predict.
Mr Brady asked Dr R about the various courses and programs undertaken by the Father at Recovery Centre. Her evidence was that these were all useful courses and that the Father deserved credit for undertaking them. She particularly considered that, if he had remained clean in relation to drugs as claimed, then he had done very well.
With reference to the Father’s letters of support, Dr R accepted that while the Father may have developed some insight and some understanding into the family violence issues through his treatment at Recovery Centre, she did not know whether the authors of the various letters of support had been given “all of the information.”
Mr Brady suggested to Dr R that if the Father’s violent behaviour occurred as a result of him taking illicit drugs, then the risk of violence would be removed if the Father was no longer taking such drugs. Dr R did not see this as a complete “fix” and reiterated her concerns about the Father’s poor role modelling as evidenced by the social media communications in annexure “D-13” to his affidavit of 27 July 2018.
Mr Brady pressed Dr R about the benefits to the children spending time with the Father in a professionally supervised contact centre. Dr R remained firm in her view that it was not in the children’s best interests. In giving this evidence Dr R identified an additional concern, namely that any supervisor would have to be particularly vigilant to the possibility of the Father undermining the Mother. She said that this could occur subtly, particularly as between the Father and [X], and that any supervisor would not only have to quickly pick up on those subtle cues but also be ready to urgently intervene. The supervisor would then have to be able to properly manage the emotions of the Father and particularly [X] if one or both of them felt aggrieved by such intervention.
I would add here the Father is a strong, powerfully built man and I have little doubt that he could potentially intimidate many potential supervisors, particularly if he became angry. He has intimidated others before, including a work supervisor.
Dr R agreed with the general proposition that if supervised visits are to occur then it would be helpful for the parents to be kept apart and for the Father to prove to the Mother that he was clear of drugs.
However, Dr R kept coming back to how difficult it would be to find an appropriate supervisor to manage this complex case and the issues involved. Her view was that if supervised time was to occur, then it certainly needed to be on a formal basis at a contact centre. However, taking all things into consideration, including the impact on the Mother of any orders for supervised time, Dr R remained firm in her view that it would be best for the children that there be a “no time and no contact” order.
Overall, I found Dr R’s evidence, both in the Family Report and in the witness box, to be thoughtful and considered. Her evidence has been helpful to my determination.
RELEVANT LEGAL PRINCIPLES IN PARENTING CASES:
Part VII of the Family Law Act 1975 (Cth) (“the Act”) empowers the Court to make a “parenting order” in respect of children.[32]
[32] The term “parenting order” is defined in s.64B
There are a number of key objects and principles which underpin the operation of Part VII and these are set out in s.60B of the Act.
When deciding whether or not to make a particular parenting order, the Act requires that the court regard the “best interests” of the relevant child as the paramount consideration: s.60CA; s.65AA.
In arriving at a “best interests” determination, the Act prescribes mandatory considerations in s.60CC. The two (2) so-called “primary considerations" are set out in s.60CC(2)(a) and s.60CC(2)(b) respectively and they are:
· s.60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents; and
· s.60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Not uncommonly, those two (2) primary considerations pull in different directions. When they do, s.60CC(2A) resolves that tension by providing that the court is to give greater weight to the consideration set out in s.60CC(2)(b). A court will not make parenting orders that expose the child to an “unacceptable risk” of harm.[33]
[33] M & M (1988) FLC 91-979 (High Court of Australia).
Section 60CC(3) of the Act goes on to prescribe fourteen (14) so-called “additional” considerations, although the final such consideration in s.60CC(3)(m) is in the nature of a “catch-all” provision designed to accommodate the facts of each individual case and family that comes before the court.
Section 61C of the Act provides that, subject to court orders, each parent has “parental responsibility” for a child. Section 61B defines “parental responsibility” as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
By section 65DAC, parents who share parental responsibility for a child are obliged to consult with each other in relation to any “major long term issue” for the child, and must make a genuine effort to come to a joint decision. “Major long term issues” for a child are defined by section 4 of the Act to include long-term matters relating to a child’s education, religious and cultural upbringing, health, the child’s name and changes to a child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. Though the definition is an inclusive one, the statute expressly excludes from the definition a decision by a child’s parent to enter into a relationship with a new partner. Such a matter is not, of itself, to be treated as a “major long term issue”.
In relation to day-to-day decisions in relation to a child, section 65DAE provides that, subject to contrary provision in a parenting order, a person spending time with the child pursuant to an order may make such decisions without consulting a person who has parental responsibility for the child.
Section 61DA(1) of the Act imports a rebuttable statutory presumption that, when making a parenting order for a child, it is in the child’s best interests for his/her parents to be allocated equal shared parental responsibility for the child.
Section 61DA(2) provides that the presumption is not to be applied 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:
· “abuse”[34] 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
· “family violence”;[35]
in which case the issue of parental responsibility is at large, to be determined in the exercise of the court’s discretion with the child’s best interests being paramount.
[34] “abuse” is statutorily defined in section 4 of the Act
[35] “family violence” is statutorily defined in section 4AB of the Act
In circumstances where the presumption does apply, it remains rebuttable by evidence that satisfies the court that the making of such an order would not in fact be in the child’s best interests: s61DA(4). This is consistent with the paramountcy principle in s.60CA.
In the event that the court makes an order for equal shared parental responsibility, then this engages the statutory pathway set out in s.65DAA of the Act.[36] Put shortly, the court must consider as the first option making orders for the child to spend equal time with both parents if such an order is in the best interests of the child and reasonably practicable.[37]
[36] See Goode & Goode (2006) FLC 93-286
[37] As to reasonable practicability, see the decision of the High Court in MRR & GR (2010) FLC 93-424
CHILDREN’S BEST INTERESTS – PRIMARY CONSIDERATIONS:
I have already set out many relevant factual findings and observations in this judgment. Many of those findings are relevant across multiple “best interests” considerations in s.60CC. I will therefore try not to repeat myself unnecessarily in what follows.
Section 60CC(2)(a):
The children clearly have a meaningful[38] relationship with the Mother. She has been their mainstay throughout their lives and she consistently provides for all their day-to-day needs. The children greatly benefit from that meaningful relationship.
[38] “Meaningful” means of importance, significance and value to the child. It is a qualitative adjective, not a strictly quantitative one: see Mazorski & Albright (2007 ) 37 Fam LR 518 (Brown J); approved by the Full Court in McCall & Clark (2009) FLC 93-405
With some difficulty, I conclude that [X] presently has a meaningful relationship with the Father. They have been in regular contact by social media and they have spent some fairly recent time together, albeit limited time.
I am not satisfied that [Y] has a meaningful relationship with the Father at this time.
But the more significant question in the context of s.60CC(2)(a) would appear to be this: what would be the benefit to the children of having a meaningful relationship with the Father going forward?
The potential benefits, in short, are that [X] can maintain a connection to the Father; that this may reduce the risk of her running away in future; and she may be able to ask the Father questions about her past.
But given the Father’s undermining behaviour and lack of insight in that regard, I consider that the maintenance of a meaningful relationship between [X] and the Father may in fact increase the risk of [X] running away rather than the reverse. Moreover, the potential benefits to [X] in being able to ask the Father questions is nebulous at best and very much depends upon the likely accuracy and child-focus of the Father’s answers. In short, the Father’s answers to her questions may well be unhelpful rather than helpful, particularly to the extent her questions relate to the parents’ relationship breakdown and family dynamics.
In my view the Father presents as a poor parental role model for [X]. He has patently undermined the Mother as a parental figure and has at least acquiesced in - if not actively encouraged – [X]’s rebellion against the Mother and her family (who he sees as lying to [X]). The relationship between [X] and the Father is unhealthy and not good for [X].
[X] needs support and stability as she finishes her high school education and the Father appears to be a de-stabilising, anti-authority influence.
On the evidence before me, I am not satisfied that there is a prospective benefit to [X] in maintaining a meaningful relationship with the Father going forward. For the same reasons, I see no real benefit to [Y] in trying to create a meaningful relationship between he and the Father going forward.
My conclusion is reinforced by the likely adverse impact on the Mother’s parenting in the event that I made orders providing for a continuation of the relationship between the Father and the children.
Section 60CC(2)(b):
I accept the Mother’s evidence as to the family violence inflicted upon her by the Father both during the relationship and after separation. To the extent that her evidence conflicts with the Father’s evidence on this topic, I prefer the Mother’s evidence.
I have already outlined some of the violence earlier in this judgment.
By way of overview, I am comfortably satisfied that the Father began perpetrating family violence against the Mother around the time that [X] was an infant.
Over the course of the parents’ relationship, the Father’s violence became increasingly coercive and controlling in nature.
The violence included physical assaults, property damage, stalking-type behaviour, threats, and verbal and emotional abuse. Much of the Father’s family violence centred around his seemingly entrenched and paranoid belief system that the Mother was “having affairs”.
The Father’s violence towards the Mother on 26 February 2015 was particularly savage.
On 26 February 2015 the Father physically struck the Mother on the head while they were arguing in the garage. Later, when he came inside the house, the Father completely lost control of his temper, yelling at the Mother incoherently, and throwing items off the kitchen bench at her, including cups, plates and a vase full of little gel balls. [Y] was screaming and [X] was yelling “Stop it Daddy stop it!” The Mother picked up the house phone to dial 000. The Father ripped the phone out of the wall, grabbed the Mother’s shirt and hair and held her in a tight grip, yelling at her that she was a “cunt” and a “fucking slut”.
Then, with the Mother tightly in his grip and unable to escape, the Father walked her to the front of the garage where he proceeded to lift her off the ground with both hands around her neck so that she couldn’t breathe. She couldn’t talk to tell him to stop. He then threw her to the ground, leant over and punched her in the face.
The Mother asked for her car keys so she could leave. [X] said “We are going dad, just stop. I’ll get mum’s keys and we will go.” The Father would not let [Y] go with them. As the Mother and [X] were leaving, the Father threatened to kill the Mother’s family if she came back to get [Y]. He also said to her: “Look what you’ve made me do in front of the kids.”
Notwithstanding that Police later took out an AVO that day protecting the Mother, the Father continued to behave aggressively towards her, calling her a “cunt” over the telephone and demanding to see the children as and when he wished.
The Father’s behaviour intensified in April 2015 when he was telephoning the Mother demanding answers as to an alleged affair. [X] was also questioned by him. I accept the Mother’s evidence that [X] said to her:
“Please don’t say anything to dad and don’t worry mum I don’t believe him. He told me he only ever tells the truth to me. He said ‘every night when you are asleep your mother goes out to other men’s places and sleeps with them’. Mum I know it’s not true because you’re with us every night”.
The Father again savagely assaulted the Mother on 24 April 2015 at the maternal grandparents’ home. I accept the Mother’s evidence that the Father had telephoned her, demanding a DNA test for [Y] and that he then attended at the grandparents’ home a short time later. I accept the Mother’s evidence that the Father came into the home, tried to punch the maternal grandfather, forcibly put [Y] on the ground and then came at the Mother and started punching her in the head and anywhere he could. When she fell to the ground, he started kicking her. The children were witness to this and were screaming. The Mother rolled herself into a ball before neighbours intervened at which point the Father then ran to his car and drove away.
The Mother was taken away by ambulance, bloodied as a result of a large laceration to her forehead, with two loose teeth and (later) some severe bruising. She also suffered nerve damage in her back.
[Y] started wetting the bed after this assault and [X] needed to attend the school counsellor.
The Father had grossly minimised the circumstances surrounding the assault in his affidavit of 26 July 2016: “I responded to her hitting me by turning around and hitting her.”[39] While the Father was somewhat more forthcoming about the event in the witness box, he still showed a distinct lack of empathy and insight about what he had done.
[39] Paragraph 40
I accept that the paternal grandmother rang the Mother on 5 or 6 May 2015 to warn her that the Father had made death threats.
I accept that on or about 18 November 2015, when talking to his sister, the Father made further death threats against the Mother – which his sister was so alarmed about that she rang 000. Other family members of the Father also tried to call the Mother that day to warn her about the threat.
I accept that the Father telephoned the Mother’s sister and maternal grandmother the next day - 19 November 2015 - telling them during at least seven (7) calls that he was going to “kill them all”.
I find that the Father continued to be unable to properly manage his anger into 2016. He assaulted his work supervisor (as set out earlier); he continued to maintain his rage against the Mother and he was not able to contain himself when talking to DCS[40] officers.
[40] NSW Department of Community Corrections
On 16 August 2016, when interviewed by DCS Officer [K], the Father was challenged for saying “I just slapped her across the face” and his response was to say that he “should have killed her.” He was abusive and not accepting responsibility for his actions.[41]
[41] Exhibit ICL-9
On 12 September 2016, staff at the DCS were concerned about the Father’s “increasing verbalisation of animosity towards the victim of the offences and externalisation of blame for both his offending behaviour and his general behaviour towards authority.”[42]
[42] Exhibit ICL-10
On 16 November 2016, the DCS reported on the Father’s generally inadequate response to community-based supervision orders, his ongoing admitted amphetamine use, his lack of empathy towards victims of his violence, his continued externalisation of blame and his victim mentality. While he had by that time commenced attending a violence perpetrator’s course, he did not feel he needed to. When asked about the possible worst case scenario regarding sentencing he responded “going to gaol, getting out on parole and people get murdered.” He then asked the author not to record that statement and that he was merely trying to convey that custody would not help his anger issues. The Father continually insisted on holding the floor during the interview, and continually interjected with “let me have my say” and “let me finish”.[43]
[43] The Father’s tendency to give long speeches was also evident during his cross-examination in the first part of the trial
As late as December 2016, the Father showed little or no insight into the full extent of his past violence. On 13 December 2016 the Father was withdrawn from the perpetrator’s course on the grounds of unsatisfactory engagement. In particular, the Father:
“failed to attend 6 sessions, arrived late on a further 3 occasions, refused to watch victim impact DVD, failed to hold himself accountable for his DV behaviour and/or develop victim empathy. His continued threats to harm/kill the victim of his offence and his escalating resentment towards the justice system as a result of his participation in the program were concerning. He also appeared to have an effect on the willingness of other group members to engage.” [44]
[44] See exhibit M-5, being an update report from CSO Ms W dated 13/02/17. CSO Ms W noted that the Father’s attitude remained unchanged and her concluding recommendation was that supervision be removed.
The Father’s anger and aggression continued into 2017.
At the Child Inclusive Conference on 3 February 2017, the Father referred to the Mother as a “putrid cunt”.[45]
[45] Page 3 of the Memorandum, 8th bullet point – specifically put to the Father in cross-examination
The Father continued to behave aggressively during his time in drug and alcohol rehabilitation at Rehab Centre in July/August 2017. He was ultimately discharged by agreement after having made threats against the Mother’s life. While at Rehab Centre, the Father telephoned [X] on her birthday and during that call he threatened the Mother’s safety.
The Father has a past history of significant illicit drug use, most notably ICE. He has also abused alcohol. These drugs in combination fuelled his violent and aggressive behaviour.
On the face of it, since late 2017 the Father has successfully made some changes to his lifestyle and behaviour through Recovery Centre. In so doing, he may have somewhat reduced the risks that he poses to the children by reason of his past violence, drug and alcohol abuse. He deserves to be given credit for that progress.
A question mark potentially hangs over the Father in relation to a possible brief relapse into ICE use in April 2018 while he was at Town A - as reported by [X] to the Mother.[46] I do not make a positive finding that he used ICE at that time, noting that the allegation comes in hearsay form from [X], is not in any way corroborated and is inconsistent with the drug screen results provided by the Father. But the question mark remains in my mind as to whether there was a brief relapse to which the Father was not willing to admit. I cannot take that particular allegation any further on the evidence.
[46] Mother’s trial affidavit, paragraph 244
However in my view the Father’s evidence and attitude show him still to be a significant risk to both children. He still minimises his past violence towards the Mother (and others), he still externalises blame and does not accept full responsibility for his past behaviour.
Perhaps most significantly he is genuinely devoid of any real insight into the impact of his past behaviour on the Mother or on the children. I could not discern that he feels any genuine empathy for the children and I consider this to be a substantial parenting deficit. He would not read the Family Report. It may be that he simply does not want to revisit the past but his stubborn unwillingness to do so means that he chooses to live in denial and/or he has yet to develop the necessary skill of managing his emotions when faced with the confronting reality of his past actions.
The Father’s undermining of the Mother’s parenting to [X] is another serious concern. The Father has in fact been giving [X] an outlet for her frustration with her Mother and this outlet is not in her best interests given its inherently de-stabilising and undermining impact on [X] in the Mother’s household. It is a form of emotional abuse of [X] and has the proven potential to be disruptive to her needs (such as a stable home and school), thus exposing her to the risk that her core needs may end up being neglected.
The Father’s role modelling in relation to setting proper parental boundaries for [X] is troubling. The Father also presents as a poor role model for [X] as to authority figures – notably the Police.
The Father’s negative role modelling vis-à-vis the Police should be looked at in light of his past criminal convictions. These include offences of violence against the Mother, against his work supervisor, as well as other convictions for assaults (including on Police), resisting arrest, and damaging property. The Father has numerous traffic convictions including for high range drink driving, low range drink driving, driving whilst under the influence of an illicit drug, driving uninsured motor vehicles, driving while his licence was suspended or disqualified. There are also other anti-social type offences in his criminal history, including for using offensive language and behaving in an offensive manner in or near a public place/school.[47]
[47] See exhibit M-1
On all of the evidence, I have come to the view that the Father poses an unacceptable risk of physical and psychological harm to the children. The unacceptable risk of harm arises due to a combination of factors, namely:
· the Father’s past family violence and anger management difficulties. Though he has taken steps to rehabilitate himself to some extent, he still continues to minimise and deny the full extent of his past behaviour, and demonstrates a continuing lack of insight and empathy;
· the Father’s past drug and alcohol abuse – which is extensive and in respect of which his rehabilitation is of only recent advent and remains untested. I accept the ICL’s submission that it is too early on the Father’s road to recovery to expose the children to the risks that the Father poses;
· the Father’s undermining of the Mother to [X] and his seeming inability or unwillingness to present a healthy parental role model for her with appropriate direction and boundaries.
Orders for supervised time would not be sufficiently protective as in my view the children would still be exposed to an unacceptable risk of the Father emotionally abusing them and de-stabilising their home environment with the Mother. Moreover, there would be substantial practical difficulty in finding an appropriate supervisor who is willing to act on a long-term basis.
The Mother’s parenting would likely be diminished in the event of any long-term supervision order being made and this is also a significant consideration weighing against supervised time orders.
Orders for the Father to maintain some form of communication with the children, without seeing them, also result in unacceptable risk to the children given the Father’s role modelling and undermining behaviours, his attitude to the past and his lack of insight and empathy. It would not be reasonable to expect the Mother to monitor or ‘vet’ the Father’s social media communications with the children in circumstances where it would be emotionally confronting for her to do so and where it would immediately place her in the invidious role of ‘policeman’ as between the children and the Father. She does not want that role and in my view she could not, and should not, be expected to take it on.
CHILDREN’S BEST INTERESTS – ADDITIONAL CONSIDERATIONS:
I propose to be relatively brief in relation to the “additional” considerations.
The children’s views:
At the time of the Family Report interviews in August 2017, neither child wanted to see the Father. [X]’s statement at that time was unequivocal.[48] [Y]’s response was also telling. His face noticeably went red, his eyes filled up with tears and he stared at the ground and refused to respond to questions about the Father. His entire demeanour changed and he did not want to answer questions, despite prompting. Finally, Dr R asked if he would like to see his Father, and [Y] responded, without looking up from the ground: “no, he bashes my mother.”
[48] Family Report, para 114.
Since that time, [X] has to some extent resumed her relationship with the Father and I am satisfied that [X]’s view is that she does want to spend some time with him. [X] is however vulnerable and does not fully appreciate the full implications of her view, in particular the risks that her Father poses to her and the damage he has already done in terms of de-stabilising her home environment with the Mother.
[Y] is expressing some occasional interest to his Mother about seeing the Father, but [Y] does not at all have the capacity to appreciate the risks that his Father poses to him.
Nature of relationships with parents and others:
The Mother has a close and loving bond with both children. She has always been their primary carer and she provides a stable and loving home environment for them.
That said, the Mother’s relationship with [X] is presently under some pressure as a result of [X] resuming her relationship with the Father. [X] has used abusive names towards the Mother, including calling her a “white cunt” and a “white slut” and suggesting that the Father should have killed her.
[X] has run away from the Mother’s home. She has become defiant and her behaviour at school, and academic performance, have suffered.[49]
[49] Within days of returning to the Mother’s home after having run away to Town A, [X] was suspended from school for fighting
This pressure is causing [X] to act out in ways that are contrary to her best interests. It puts [X] at physical and psychological risk.
The Mother also facilitates the children maintaining an ongoing relationship with various members of both the maternal and paternal extended families in the Region 1 region.
The Father has an unhealthy relationship with [X] as explained in Dr R’s evidence.
[X] has required assistance from the school counsellor. She has required psychological counselling. She is a girl with significant emotional difficulties and vulnerabilities and the resumption of her relationship with the Father has not been in her best interests.
The Father presently has only a tenuous relationship with [Y].
I accept that the children have a half-sister, [A], but it is only [X] who has met [A] and any potentially budding sibling relationship is a regrettable casualty of the orders I propose to make. This court can only do the best it can on the evidence before it.
Extent to which parents have participated in children’s lives and decisions:
The Mother has been a constant. She has managed the day-to-day needs of the children throughout the relationship and post-separation. She has consistently put them first.
The Father has, since separation, chosen to continue to take drugs and to engage in other violent and aggressive behaviours. The practical impact of his decisions is that his opportunities to participate in the lives of the children has been substantially diminished either by his own choice or through the legal consequences arising as a result of his own behaviours (such as AVOs limiting his capacity to contact the children).
In more recent times, the Father has had to prioritise his own rehabilitation process. This has meant moving to Melbourne to access the necessary supports. To some extent he has made progress in this regard but axiomatically he cannot be self-focussed on rehabilitation and at the same time focussed on participating in the lives of the children, particularly where his rehabilitation and recovery is based interstate from where the children live.
In a practical sense the Father has not played a meaningful role in the life of [Y] at all since separation. With [X], such parental role as he has played has been problematic.
Fulfilling child maintenance obligations:
The Mother provides for all of the basic week-to-week costs for the children.
The Father is actively seeking employment but is not presently working in a reliable or full-time role. He is not practically in a position to provide any meaningful financial support for the children at this time.
Likely effect of any change in the children’s circumstances:
Orders for the children to spend supervised time with the Father and/or to communicate with him would expose them to unacceptable risk for the reasons identified earlier.
Moreover, it is likely that any Court-ordered reintroduction of the Father into the lives of the children will diminish the Mother’s parenting capacity as it will cause her substantially increased anxiety and fear.
In my view the children would benefit from:
· In [X]’s case, ceasing all contact and communication with the Father at this time; and
· In [Y]’s case, not starting down the path that [X] has recently gone down with the Father.
Practical difficulty and expense:
The Father lives in Melbourne but proposes to see the children at a contact centre in the Region 1 region. Practical difficulty and expense are not the impediments here.
Parental capacity and attitudes to parenthood:[50]
[50] It is convenient to group these additional considerations together – s.60CC(3)(f) and s.60CC(3)(i)
The Mother has a proven capacity to provide for the children’s needs, although she has struggled at times to manage and parent [X] ever since the Father resumed his relationship with her in 2017. Her capacity to properly parent both of these children hinges upon the Father remaining out of their lives. The Mother’s consistent attitude has been to put the children’s needs first as best she can.
The Father has not shown any proper capacity to provide for the needs of the children. He has not shown a capacity to properly nurture [X]’s developmental and emotional needs, nor has he shown a capacity to properly support her in her education and in her home environment.
The Father has little or no insight into the children’s needs and cannot empathise with them in any meaningful way.
The Father’s role modelling to [X] demonstrate that he lacks either the capacity, or the proper attitude, to the responsibilities of parenthood.
Maturity, sex and background of the children:
In the context of pursuing a relationship with the Father, [X] is a vulnerable fourteen (14) year old and [Y] is a vulnerable seven (7) year old.
Both children have been adversely affected by the Father’s family violence and have experienced emotional and behavioural difficulties during their lives. [X] reported her experiences of the violence to Family Consultant Ms C at the Child Inclusive Conference[51] and to Dr R in the Family Report interviews.
[51] Page 3 of the Memorandum, 8th and 9th bullet points – specifically put to the Father in cross-examination
In relation to the negative developmental impacts on children who experience family violence, I accept the evidence of Dr R at paragraph 124 of the Family Report:
“Exposure to violence is deemed to be a form of child abuse and can incur long term adverse effects such as higher rates of depression and anxiety. Exposure to family violence can cause children to experience emotional harm due to being directly involved in a traumatic experience and this can lead to symptoms such as nightmares, flashbacks and hypervigilance. It can also result in children feeling powerless, vulnerable and helpless in potentially terrifying situations. Very young children who are exposed to repeated family violence are likely to experience a caregiver who is unpredictable and not emotionally available at times and they can experience a sense of reduced safety in relationships. Children who are exposed to repeated family violence are required to use the vast majority of their coping resources to manage the situation rather than attend to age appropriate developmental tasks and accordingly their general physical, emotional and cognitive development may be compromised. In summary, children who grow up surrounded by family violence use all their energy just to survive which means that they do not have the opportunity or the energy to thrive.”
[X] and [Y] are such children.
The children’s Aboriginal culture:
The Mother’s unchallenged evidence is that she herself “doesn’t see colour” in that she does not differentiate between people based on the colour of their skin.
That said, she is keenly aware of and actively facilitates the children’s Aboriginality and related cultural development. She said that both children identify as Aboriginal and that [X] spends regular time in the Aboriginal room at school – if anything she spends too much time there, to the detriment of her studies.
[Y] is keen on Aboriginal dance.
The Mother also maintains relationships with some members of the Father’s extended family who are Aboriginal.
I am satisfied that the Mother can, and will, continue to properly facilitate the children’s Aboriginal culture going forward.
Family violence:
I have referred to this at length in these reasons.
Family violence orders:
The Police took out an AVO to protect the Mother on the day of separation. This AVO was later made final on 5 March 2015.
The Father breached the AVO by savagely assaulting the Mother at the maternal grandparents’ home on 24 April 2015. Following this breach, the protective conditions of the AVO were further extended.
In 2016 the AVO was varied so as to include the children as protected persons.[52]
[52] See annexures “A”, “B” and “C” to the Mother’s trial affidavit
On 13 April 2017, the Father was served with a further twelve (12) month AVO protecting the Mother and the children. That order was in broad terms, prohibiting the Father from approaching or contacting the Mother or the children except through a legal representative or as authorised by a parenting order under the Family Law Act.[53] The Father breached this AVO by telephoning [X] on her birthday on 2017.
[53] Exhibit ICL-4
The most recent AVO expired in March 2018. In any event, the Father has shown that he does not respect AVOs.[54]
[54] I would add that Ms M also obtained an AVO against the Father at one point, although in the witness box the Father denied behaving violently towards her
Orders least likely to lead to further proceedings:
In my view the orders least likely to lead to further proceedings are those jointly sought by the Mother and the ICL. In contrast, the Father’s proposed orders have a “to be continued” flavour, leaving significant room for future dispute between the parents in future.
PARENTAL RESPONSIBILITY:
The Father’s perpetration of family violence on the Mother means that the Court is not to apply the presumption that equal shared parental responsibility would be in the best interests of the children: s.61DA(2).
On a practical level the Mother has now been making all of the major decisions concerning both children for quite some time. The parents do not have any capacity to communicate. The Mother clearly remains highly fearful of the Father and could not even sit in the same room as him during the trial.
The parents both seek orders that the Mother have sole parental responsibility. Such an order is manifestly in the children’s best interests on all of the evidence and taking into consideration the relevant s 60CC factors.
The only “live” question is whether I ought to make the orders the Father seeks requiring that the Mother inform him by email as to schooling and health issues for the children in the exercise of her parental responsibility.
I consider such orders not to be in the best interests of the children. In my view such orders would likely exacerbate the Mothers’ anxiety and fear of the Father and I see no real benefit to the children in the Father being provided with that information in circumstances where he will not be maintaining any relationship with the children on the orders I am proposing to make.
LIVING ARRANGEMENTS FOR THE CHILDREN:
Both parents agree that the children should remain living with the Mother. Such an order is manifestly in the children’s best interests.
INJUNCTIONS:
Having regard to my earlier findings, I consider it appropriate to make the injunctive orders jointly sought by the Mother and the ICL for the personal protection of the Mother and the children.
CONCLUSION:
It is a very serious matter to make orders which effectively prohibit children from having a relationship with one of their parents. Such an order cannot be made lightly.
The regrettable reality is that the evidence in this case irresistibly leads me to the conclusion that no other orders would be in the best interests of the children.
For these reasons the court makes the orders as set out at the commencement of this judgment.
I certify that the preceding three hundred and ten (310) paragraphs are a true copy of the reasons for judgment of Judge Betts
Date:31 August 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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