Decosta & Decosta

FEDERAL CIRCUIT COURT OF AUSTRALIA
Decosta & Decosta [2021] FCCA 483

File number(s): BRC 9714 of 2019

Judgment of: JUDGE VASTA

Date of judgment: 19 March 2021

Catchwords: FAMILY LAW– Contact – child’s best interests – where the father was convicted of assault upon the mother – whether the father is an unacceptable risk to the children – whether the fact of the father spending time with the children would affect the mother to the point that it would be detrimental to her parenting of the children

Legislation: Family Law Act 1975 (Cth), ss 60B, 60CC, 60CA, 60CG, 61DA, 64B, 65D 65DAB

Number of paragraphs: 160

Date of last submission/s: 12 March 2021

Date of hearing: 17-19 February 2021 and 12 March 2021

Place: Brisbane

Counsel for the Applicant: Mr Blaxland

Counsel for the Respondent: Mr Alexander

Counsel for the Independent Children's Lawyer: Mr George
ORDERS

BRC 9714 of 2019

BETWEEN:
MR DECOSTA

Applicant

AND:
MS DECOSTA

Respondent

ORDER MADE BY:

JUDGE VASTA

DATE OF ORDER:

19 MARCH 2021

BY WAY OF FINAL ORDER, THE COURT ORDERS:
1.That the mother have sole parental responsibility in relation to the children X born in 2009 and Y born in 2012 (“the children”).
2.That the children live with the mother.
3.That the children spend no time with the father.
4.That the mother have leave to provide a sealed copy of these orders to:
a. Each child’s school; and
b. Each child’s treating medical practice/centre, specialist and any allied health practitioners.
5.That pursuant to s.11(1)(b) of the Australia Passport Act 2005 (Cth), the mother is permitted and authorised by this Order to unilaterally apply for an obtain an Australian travel document (or a renewal of such a document) for the children, or either of them, and each child is permitted to have an Australian travel document, without requiring the father’s consent to such a document issuing from the Australian Passport Office.
6.That the father is restrained from making an application for an Australian travel document for the children, or either of them.
7.That the mother is permitted to remove or send the children from the Commonwealth of Australia for the purposes of holiday travel and/or attending a school trip or extra-curricular trip and for these purposes, the mother is not required to seek or obtain the father’s consent or further order of the Court.

NOTATION:
A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Decosta & Decosta is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION

This is an application for parenting orders. The Applicant father, Mr Decosta, was born in 1978 in Country B. The father is also known by the name “Mr Decosta”. The Respondent mother, Ms Decosta, was born in 1978 in Country C. The parties met in Country B in 2006 whilst the mother was living there.
The father had a permanent resident Visa and, by 2007, the mother and the father were making arrangements for her to move to Australia, which included applying for a Visa. The parents began living together on the Region D in 2007. They married in 2008 and had a wedding celebration in Country B in 2008.
Their daughter, X was born in 2009. Their son, Y was born in 2012. These children are the subject of the application for parenting orders.
There is conflict between the parents as to their roles as parents leading up to their separation on 1 March 2017. In the grand scheme of things, nothing much turns on this. The mother also made claims that the father did not want to have a second child. Again, nothing much turns on this aspect.
The incident of family violence that occurred on 22 July 2018 is the one event that really casts its shadow over this whole proceeding. The children have not spent any time with their father since that evening apart from the short time in which Dr E observed the father and the children for the purposes of a family report.
Background
The mother describes behaviour leading up to 22 July 2018 which she now, retrospectively, characterises as coercive and controlling behaviour. She said that she did not realise that this behaviour was truly an example of family violence. She said that it was only when she began talking of her experiences to social workers and psychologists that those professional people told her that she was describing family violence.
The behaviour that she describes includes the father shouting at the children and pinching them as a form of discipline. The mother said that the father was good and bad. She said that when he was “good”, they would communicate well and he was an excellent father to the children. However, she said that when the father was “bad”, he would behave in an angry way and exhibit the behaviour that she describes.
The father denied such behaviour and testified that both he and the mother shouted at the children and both of them engaged in corporal discipline of the children. The father did not see anything coercive in the way in which he interacted with the mother. The father testified that he believed that all was well between the two of them and it was the mother that had changed and wanted to “not be with him” anymore.
The father continued to see the children after the separation of 1 March 2017. The mother describes that she would ask the children how their time was with the father. She said that she often got a reply that they enjoyed themselves but that they did make their father angry and they were either hurt or yelled at by their father.
Nevertheless, the mother had no fears for the safety of the children with their father. Whether this was because there were, in fact, no real concerns or whether the mother had an ignorance of domestically violent behaviour, really does not matter.
The father said that he would care for the children from Friday after school to Sunday evenings usually between one and two weekends per month. The father said that he was able to come and go from the matrimonial home as he pleased depending upon the children’s requirements, notwithstanding that he was living in a three bedroom unit himself. The father also described that, when the mother would go out on a Friday night with her friends, he would come to the family home and look after the children.
Both parents agree that the father told the mother that she needed to have some time away. The father convinced the mother that she should travel to Country C for some time so that she could have a holiday after all the stresses involved with the breakup of the relationship. The mother did go to Country C between 11 July and 21 July 2018 and the father stayed at the matrimonial home and cared for the children for this week.
22 July 2018
On 22 July 2018, the father contacted the mother and asked her to come to his residence so that they could talk about arrangements, both parenting and financial. The mother said that she had no desire to rekindle the relationship with the father and was somewhat apprehensive about venturing to his residence that night.
The mother decided to electronically record her interaction with the father that night. The mother had her mobile phone which was able to record conversations. The mother also had with her an electronic Dictaphone. These two devices were recording the whole conversation.
The father testified, and it was evident from the recording, that he did not want to separate and certainly did not want to divorce. He implored the mother, on many occasions, not to go down this path of separation, divorce and property division. However, when his arguments failed and the topic came to property division, the father was insistent upon a 50-50 split.
A transcript has been prepared of the recording from the dictaphone. The recording is in Country C language as this was the language that the mother and father used in speaking to each other. It was interpreted and transcribed by an interpreter but only those parts of the conversation that were relevant to the physical assault upon the mother by the father.
The father listened to the whole tape and has interpreted and transcribed the whole recording. The recording commences when the mother arrives at the father’s residence and continues for one hour and 24 minutes, concluding when the mother arrives back at her own residence.
While the transcript must be read in totality to provide a proper context, there are passages that give a true representation of the dynamic between the mother and father that evening. At about 25:00 minutes, the following interpreted conversation takes place:
F: so what else do you want?
M: the kids
F: so what would you like to do about the kids?
M: I want to raise/care the kids
F: that’s fine and what else?
M: but like how we discussed before I went back to Country C, you have demand that you will have 0% of custody but like on the weekend or even weekdays, I know you are saying no, but I like you to see them, like how a normal divorce is
F: mm
M: like how a normal divorce is, not saying we have to be ordinary, but I prefer to be like an ordinary divorce style
F: mm
M: and I also prefer to suit you was well
At about 41:00, the following conversation takes place:
F [So you are going to split in half? Pay me half?]
M [Well, if that is what normally is.]
F [Not about normal, from what we discussed, can you write those on paper?]
M [mm, so we are moving towards that.]
F [mm, If so, I am ok with divorce.]
M [Me too.]
F [If we are not divorcing, I was going to give all, really.]
M [Well, that’s different from what I have been told. You said whether divorce or not, Ms Decosta can do anything, I will also accept divorce]
F [No I did not say that.]
M [yes, you did.]
F [I did not say I will divorce]
M [You said you will leave everything with your lawyer and go]
F [That’s if I am ending my life. If you want me to do so, I will.]
M [I do not want you to die.]
F [If you want me to die, you can have everything.]
M [Sorry, I do not want to get involve with your decision on die or not.]
F [no, no, if you don’t want to get involve, so its mistake, if you don’t want me to die, I don’t want to divorce. If you saying that’s impossible and want divorce.]
M [Die or not has nothing to do with divorce or not.]
F [Don’t change subject. Ms Decosta]
M [You just said, about die or not, I do not want you to bring up that in my decision on divorce]
F [mm]
M [Die or not]
F [But Ms Decosta]
M [You are telling me to decide. If you do this I will die, if you do that, I will not die.]
F [You already made your mind, you are killing me anyway.]
M [That’s is not such way]
F [Ms Decosta, can I ask? I like you so much, is it wrong to love you?]
M [I think you are sick.]
F [I think that’s you]
M [no, no, no, like the way you think, you kill me, if you this I will divorce, if you do that I will not divorce, sorry no, if divorce I will die, if no divorce I will not die, so which? And ask me to pick, trying to get me to make that decision, what do you think?]
The Actual Assault - Father’s version
The father testified that he became upset during the conversation because the mother was talking about seeing a lawyer regarding the property division. He said that he told the mother that “I need a break” and then went outside onto the balcony to have a cigarette.
He said that he looked back towards the mother from his balcony and saw that she had a phone behind a handbag. He said that he walked back inside and picked up the phone and saw that it was recording. He said that he tried to stop the recording but he could not. He said that he and the mother were struggling “tug-of-war style” over the phone. He said that in trying to push the mother away, the mother fell against the sliding door and hit her head.
He said that she got up and sat down at the kitchen bench and began checking her phone. He said that he grabbed a wooden ornamental sword and swung it towards the mother but stopped himself from hitting her with any force, however the sword did come into contact with her shoulder. He said that they remained at his home for another 15 minutes and were still talking.
He said that he felt ashamed and embarrassed. He handed his keys to the premises to the mother and said “look after my stuff, you can sell it. I can’t do this anymore. I have to end myself”. He said that he left the premises and drove to Town F and sent the mother four emails.
He was found by police who arrested him. He was remanded in custody and charged with assault occasioning bodily harm whilst armed with a circumstance of aggravation that it was a domestic violence offence. He was also charged with wilful damage.
The Actual Assault - Mother’s version
The mother testified that the father looked over at her phone and became angry demanding to know whether she was recording the discussion. She admitted that she had recorded it. She said that the father began swearing at her and became furious. She said that he went to the door of his unit locked it and had a wooden knife, or sword, with him. She said he was wielding it like a swordsman and he swung it at her. She said that she was hit in the back of the head and she fell to the ground in immense pain. She said that he struck several more times with the sword. She said that the force of the strikes to her head and her body felt like the father was using his full force.
She said that the father then went over her, grabbing at her and putting her in a headlock. She said that he tried to put his arm across her throat and choke her. She said she managed to block his arm with her chin, putting her chin, as hard as she could, to her chest to protect her neck. She said that the father was squeezing as tightly as he could possibly squeeze and that she could not breathe.
She said that the father was shouting that he was going to kill her, the children and then himself and that they would all go together. She said that she fought back as best she could striking and pushing against the father. She said that she was able to break free and she got away from him.
She said that he grabbed her phone from the table and demanded that she unlock the phone. She said the father then removed the SIM card and snapped the SIM card into two pieces. She said that, as subterfuge to try and escape, she asked the father if they could go down to the beach and talk. She said that the father agreed and she grabbed her handbag and they left the unit.
She said once outside the unit, she started to raise her voice telling him that she would not go with him. She demanded that the father give her phone back to her. She believed that the loudness of her voice made the father apprehensive that a witness or neighbour might come and investigate.
The mother said that the father then threw his house keys at her and drove off in his car. She said that she became worried about the children’s safety and drove straight home. She called the police.
The Conflict
As can be seen by these diametrically opposed versions, what occurred was either a minor physical assault, or an action that was tantamount to attempted murder. Dr G, who provided a very helpful psychiatric report on both parents, said that the Court needed to adjudicate the veracity of the history by each parent in this matter and that such adjudication is of vital importance with respect to the deliberations of the Court. I agree with Dr G.
The recording, which was made exhibit one, was played during the course of the trial. The transcript from about 51:30 is extremely instructive. (I have amended the transcript so that it describes the sounds heard rather than any description from the father as to what is happening)
F [why don’t you write down here saying you are ok with 50:50]
M [I need to know the numbers and I will get the numbers produced]
F [So can you at least write down that you are ok with 50/50]
M [mmm]
F [state that you will agree with 50/50, can you write?]
M [yes, at this point of time.]
F [ok, I will write it]
M [at this point of time. The reason is Mr Decosta may have discuss with your lawyer once or twice or few times but I have not, I do not even know about my rights]
F [so you are saying that if your right allow you more than 50, you will go for it?]
M [I am not asking for all]
F [so you saying if you can get 60 or 70, you will go for it?]
M [for example, if it is just about the house, I would like it to be just the house.]
F [what do you mean?]
M [if we are just going to sort it without lawyer, if we are going to exclude savings and assets, just house]
F [if we are just talking house, then I am asking to return my parents money which is $375,000 and if we are not talking just house, then it has to be 50/50, according to lawyer when talking 50/50, that includes my belongings, car, boat, Ms Decosta’s savings, Ms Decosta’s car, all to be divided 50/50, which one do you want?]
M [All 50/50]
F [so if it’s 50/50, please write]
M [but Mr Decosta, I don’t want you to force me into this, I like to obtain professional opinion, they may say I should do such, when I say I am ok with 50/50, my lawyer may say if you are ok with that, or they may say I am entitle to such or they may say I am in disadvantage, I like to know that]
F [so you mean if you are entitled, you like to use the entitlement]
M [Mr Decosta, even you have asked lawyer opinion even you may say you don’t have a preference. Like what you are entitled too and you found that you can claim my Country C’s share as well. If this happen, I will do this, if that happen, I will do that, you have prepared all your cards and before I prepare my cards you want me to sign this]
[Sound of hitting table]
F [no, that’s not right]
M [I will agree once I have all my cards]
[Sound of hitting table]
F [Impossible]
F [I have prepared to die]
M [whether you have prepared to die or not, I like to discuss with my lawyer first]
54:25
F [impossible]
M [Whether it is impossible or not, I believe I have the right]
F [impossible, it’s impossible with me, you have cornered me enough]
M [I did not corner you, I just said I want to break up…]
[Sound of scraping paper]
F [whether break up or not it doesn’t matter, I need a break, I am going for a smoke]
54:47
[Sound of sliding door opening]
57:02
[Sound of sliding door opening]
F [Thanks for waiting]
F [why do you have your mobile out?]
M [why?]
F [why do you have your mobile out? Why are you recording?]
M [everyone told me to do, everyone told me to do it]
M [it hurts]
M [Ms Decosta screaming]
F [Ms Decosta, that’s enough]
M [Ms Decosta screaming]
M [I am sorry]
M [Ms Decosta screaming]
M [Mr Decosta please stop]
F [That’s not fair Ms Decosta]
M [No, it is fair, you can erase this]
F [what?]
M [No, no]
M [Ms Decosta continue to scream]
M [I am sorry, please]
F [Let’s go together]
M [No, no, I am sorry]
F [No, you are not sorry]
F [I knew it, I knew you will do things like this]
[Coughing sound]
F [I can’t do this, I can do this, we all going to die.]
*Alternative interpretation [We will group suicide, all of us]
M [Ms Decosta crying]
F [You have decided so right?]
M [no, please]
F [what?]
F [what?]
M [let’s talk]
F [no]
F [impossible, you tried to trick me.]
M [no I didn’t try to trick you]
F [Ms Decosta]
M [I didn’t trick you, Please calm down, I didn’t trick you]
59:00
M [let’s stop]
F [No]
F [Me and the kids will go]
M [Please, help]
F [You see, I knew it]
M [No, it’s not, please help me]
F [so do you want to talk?
M [let’s talk, but my words,]
F [Ms Decosta]
M [What should I do? I am sorry]
F [I hate this]
M [I agree]
F [it made me go crazy, I am not sick]
F [Ms Decosta, you realise what you are doing?]
M [I am sorry, I was scared. I was scared that I could not understand you]
F [you get influence by others easily]
F [I had enough, I will go]
F [I hate it]
1:00:00
F [Mr Decosta crying]
M [Ms Decosta crying]
F [I even consult with my friends.]
F [Please, I do not want to be punished by law, please just let me go alone.]
F [I am sorry, I had enough]
M [Mr Decosta]
F [I can’t do this anymore]
M [Mr Decosta]
F [Ms Decosta]
M [Mr Decosta, Mr Decosta, Mr Decosta, Mr Decosta]
F [Please let me go]
M [Mr Decosta]
F [Please let me go]
M [Mr Decosta]
F [I had enough]
[Sound of opening door]
F [I am sorry]
M [Mr Decosta]
F [Please take care]
M [Mr Decosta]
F [Please look after the rest]
[Sound of Door closing]
M [Ms Decosta crying]
1:01:24
[Sound of Car engine starting]
1:01:32
[Sound of car being put into gear]
1:01:45
[Sound like someone rifling through a bag]
1:01:53
F [Ms Decosta]
M [Yes?]
F [Why do you do till this point?]
M [I spoke to everyone, because you keep changing your mind, my friend suggest maybe I should record it, You also said I saying different things which I don’t believe so, so everyone said I should record it]
F [Why do you get influence by everyone?]
M [No, I thought if I record it I will have a record, that’s all]
F [Can I have your mobile?]
F [Why are you still recording]
M [I don’t know, because you.]
F [Can you unlock it?]
1:02:50
M [Hang on]
M [No, It’s not painful, it’s not painful, I am scared.]
F [Please sit, what do you want to do Ms Decosta?]
M [Mr Decosta, what do you think I should do?]
F [I just wanted to be together]
M [What should I do?]
F [It’s impossible now, please rest assured.]
M [You know that time?]
F [You know as I said,]
M [yes]
F [can you sit? Can you sit Ms Decosta? Can you sit? Can you sit Ms Decosta?]
F [Can you sit? Ms Decosta can you sit? Can you sit?]
M [I am scared]
F [Just sit Ms Decosta.]
M [I am scared Mr Decosta.]
F [Why?]
1:05:00
M [I am scared]
F [You did all of this, you cornered me]
M [What should I do.]
F [Can you sit? Can you just sit? I am not going to do anything]
M [I am scared]
F [Can you sit]
M [I am scared]
F [Can you just sit?]
F [What?]
M [I am scared, I am scared]
F [Can you sit?]
M [I am scared of you.]
F [Why do you want to corner me so much?]
M [No I don’t want to corner you.]
F [Shall I go to jail?]
M [No I don’t want you to go., I don’t want you to go]
F [What shall I do? What shall I do? As I said before, even there is no love, whatever it is, I want to look after the money as well. I just want to do something about it. I can even write it down, why do you hate me so much?]
M [I don’t hate you.]
F [You hate me. Am I that bad?]
F [I can’t take this anymore. It impossible. My friend told me not to hit but I did. Ms Decosta, even the guy today, the car, the property, I did work hard for it. Do you know how I feel? You said the person you like.]
1:07:00
F [Is it better I die?]
M [No]
F [But if I don’t die I will get caught]
M [I don’t want you to do that]
F [The fact that you have been recording, it is over]
F [Just tell me to die, if you encourage me I think I can do it]
M [Shall we go out somewhere and speak?]
F [No, I can’t do it, you said you are scared of me but you are just saying that.]
1:08:00
F [To be honest, I am scared to die, that is why thought I am not sick. If I am sick, I would have killed myself, you know, I have so many things I like to say, I worked very hard, but you never appreciate it, you remember what you told me about your parents? When your father bought a cake back and your mother said why you bought a cake back, and you father said it is my birthday, and you thought that was funny. I do not want to have a family like that, I don’t even want to think what I was doing, do you think it is ok as long as I am making money?]
1:09:00
M [No]
F [Then do not think you are ok as long as you are cooking and doing the house chores]
M [I don’t, I don’t]
F [Really? But I felt miserable and worked hard]
M [I guess I never understand you, I also]
F [You get too influenced. All your surrounding friends have gone through divorce and they do not respect man, sorry to be rude, can you just tell me to die?]
M [I don’t want you to die]
F [Just tell me to die]
M [no, I don’t want to, shall we go out and talk?]
F [What?]
F [Is there anyone in your car?]
M [No one]
F [How about that guy?]
M [He is at my place, he is staying tonight]
F [you realise that is also my home? You treat the home just like it belongs to you]
M [He is looking after kids with her]
F [I am so tired with this]
M [Sorry I got nervous]
F [Can you give me courage, can you tell me to die? You are so unfair. I love my kids, if I didn’t have kids, it would be easier for me to die. I feel so sorry for them, so sorry, X and Y.]
1:11:00
F [Well, we are divorcing]
M [Shall we go out?, can you come with me?]
F [where are you going?]
M [Let’s go outside, even just walking at the beach]
F [Impossible, can you sit? Where are you going Ms Decosta, can you sit?]
M [I am scared so can we go?
F [Ok, let’s go]
M [I am scared]
F [If you do something strange, I will go by myself]
F [What’s wrong? Why aren’t you coming? Let’s go with my car]
M [I am scared]
F [Ms Decosta, let’s go with my car, can you please decide? Can you please stop doing this to me?]
M [I am scared.]
F [Then just tell me to die, if you want me to do so, just say it.]
M [I am scared]
F [I am not going to kill you so let’s go]
M [I am scared]
F [So you never wanted to talk, can you please decide either way?]
M [I am scared]
1:13:00
F [Let’s go Ms Decosta]
M [I am scared]
F [Let’s go with my car. Ok, let’s go back into my unit]
M [I am scared, please stop]
F [So you are ok with this Ms Decosta? You really sure? Are you ok?]
M [I am scared]
1:14:00
M [Can I have my mobile back?]
F [Ok]
F [So that’s it, you are ok with good bye. You really sure?]
M [But.]
F [Ok, let’s go with your car]
M [ I am scared to go with you]
F [Ok, let’s talk in the unit then.]
M [I am scared]
F [I will just go by myself]
1:15:00
[Sound of car starting and driving off]
1:24:00
Recording ends

The screams that can be heard on the tape are quite terrifying. The voice of the mother is simpering and interspersed with sobs as she pleads for the father to desist in his actions. The fear in her voice is palpable.
After the tape was played in Court, the father testified that the recording was incomplete. What was recorded on the tape is totally inconsistent with the father’s claim that there was a scuffle over the phone and that he pushed the mother into the sliding door. The father said that because he knows that this actually happened, there must have been something wrong with the tape and that this part was not recorded. The tape is also inconsistent with his “desisting” and getting a sword and hitting her.
The father made no explanation as to how the recording was incomplete. Having listened to the tape a number of times, there is no break in any of the background noises that would be evident if there had been some form of editing or splicing, or even malfunction, in the recording.
The father then made the extraordinary claim that the mother was not as scared as she says she was. He maintained that she was calmly looking over her phone after she had been pushed against the sliding door. The father reiterated that he only hit the mother with the sword once and that was on the shoulder. He did agree that the mother was terrified after he had hit her.
The tape records what would seem to be the father starting his car at 1:01:24 and that it would seem that the mother was rifling through her bag at 1:01:45. The father testified that, after starting his car, he drove around the block and then went back to his premises. The mother testified that she recalled the father starting the car but that the car did not leave. The tape records that by 1:01:53, the father had returned to the unit. This is 29 seconds after the car engine had started and is totally inconsistent with the version of the father.
The mother was taken to the Region D Hospital. She presented with a haematoma to her left occiput, with pain to that same area and left scapular pain. The diagnosis was “minor head injury”. The report details that:
Examination shows evidence of two blunt impacts to the head - left frontal and occipital - with small haematoma associated, and bruising to the posterior left shoulder and left thumb. (Mother) describes being held in a headlock, however there was no element of choking/strangulation, no ligature marks, no LOC (loss of consciousness). The mother was observed for four hours post injury with no change in condition.
These observations by the hospital are far more consistent with the version given by the mother than that by the father. The father tried to explain the head injuries with the mother falling against the sliding door but I cannot accept this explanation.
When the father was cross-examined about the mother’s allegation that he was trying to choke her with his arm around her throat, the father denied this and said that, because the mother was becoming hysterical, he was trying to hold her from behind to calm her down. He then said that he put his hand over her mouth to stop her from screaming/making noise. He said to her that if she stopped screaming/making noise, he would let her go. She agreed and so he let her go. He said that she began screaming/making noise again as soon as he had let her go.
I cannot accept this evidence. Having listened to the recording, there is no discernible difference in her screaming and certainly no sounds of a muffled scream as if screaming with a hand over the mouth. In any event, the father had not ever made such a claim in any statement to the police or in his two affidavits filed in these proceedings. It was an opportunistic version that seemed to have been created, during cross examination, to explain the claims of the mother.
The father pleaded guilty in the Magistrates Court and did not contest the facts outlined to that Court. Those facts included the following:
The defendant went to the front door locking it, and picked up a wooden sword shaped like a Country C knife, and swinging it like a baseball bat struck her over the back of the head, he has then placed the aggrieved in a headlock, with his arm across her throat and squeezed, the victim struggled and managed to pull free.
Whilst it is true that persons do plead guilty without accepting all of the facts of the prosecution, there is no indication that the father ever raised with investigating police, prosecuting authorities or even his own defence representatives, that he disputed the contention that he had struck the mother in the head with the wooden sword and had tried to choke her with his arm across her throat.
Both Counsel for the father and counsel for the ICL submitted to me that there was a degree of embellishment on the part of the mother. I understood this submission to mean that counsel were submitting that, because of the traumatic aspect of the whole incident, there are matters that the mother has said that are not consistent with what is in the recording. Having gone through the matter in some detail, I find that the recording is very consistent with what the mother has said occurred.
I accept the version of the assault as given by the mother, in that she was hit more than twice with the wooden sword and that she had her airways obstructed by the father putting his arm across her throat. I accept that she manoeuvred her chin in such a way to ensure that she did not have her airways totally obstructed. I accept that she was able to get away from the father and that he then desisted in his physical attack upon her.
The father has dogmatically clung to his version, notwithstanding that the recording does not support his version in the slightest. But rather than concede that he is wrong, or even mistaken, the father contends that there has been, at the very least, a malfunction with the recording just at this vital moment (and not at any other time during the one-hour and 24 minute recording) or, at the most sinister, a deliberate action by the mother to interfere with the recording to hide the truth of his version.
The E-mails
The father drove to Town F after leaving his residence that night. He drove to a dead end street and sent the mother an email at 10: 47 that night. It was written in Country C language but has been interpreted as the following:
To Ms Decosta,
I am sorry with the way it end.
I have lost control with my anger.
I do not think I deserve to live.
Why did we met in the first place?
It is hard when we do not trust each other.
I really feel sorry for the kids and Ms Decosta.
I am actually scared to end myself.
I am very scared to leave you and the kids behind.
There are lots more things I wanted to do as family.
You have lied to me till the last moment.
Recording was a shock.
Without that, I would have more hope to live or try to move forward.
I have lost my sight/vision since the day you told me it is over.
Is it wrong to like/love you?
Is all your surrounding (friends and relatives) always right?
Why are you always right?
Since you are always right, then I should not be living.
I am sorry that I am weak.
However, it is not easy to end owns life than I thought.
Please listen to my last wish.
You have my house key so you can clear or sell the remaining personal items. Mr H will give you a hand.
Please send my regards to my kids.
Are you always right?
I do not know.
However, I was wrong too.
Perhaps it is too late to regret.
I realise I am not good enough.
That is why we end up splitting I guess.
Good bye, and please live on my behalf.
I will not kill you. The kids need you.
Sorry to leave everything with you.
I am sorry to be a husband who can not control its anger.
I do regret.
Regards,
Mr Decosta
The father sent a second email about 11 minutes later at 10:58pm. It reads, as interpreted, as follows:
By the way,
Password for my phone is ..., netbank password is ....
My car will be located at Town F (end of street).
My hard drive is in my work bag and the password is ..., if that does not work, please connect to my laptop, my laptop password is ....
I guess that is all? You have money, house, children, all of them.
I never had an intention of making it difficult.
Do you best.
To be honest, I do not know what is right or wrong at this stage.
What is the whole purpose of getting married or having a family?
2 of us it not good enough? 3 is not good too? How about 4?
I guess it does not matter anymore. Good bye.
I will go soon so please do not worry any more.
Regards,
Mr Decosta
The father sent a third email 31 minutes later at 11:29pm. It reads, as interpreted, as follows (with my underlining):
I break your sim card because I did not wanted to call you again, it had nothing to do with the recording.
However, it only cause inconvenient to you.
Please tell my kids I am really sorry.
Perhaps, I have pictured this.
To die is lot scarier than I thought.
I actually thought of killing our kids and myself in the past.
However, I do not hate you that much and doing that will hurt you and I was afraid that may cause you to suicide so I never did.
All I wanted was a little attention to me and accept my existence.
I always felt lonely and sad.
I am really tired too.
Regards,
Mr Decosta.
The father sent a fourth, and final, email one-hour and 10 minutes later at 12:39 AM on 23 July 2018. This email, as interpreted, reads as follows:
It has been more than an hour since and I am still scared.
Not only scared to die but also the fact that I am leaving my kids behind.
I wish I was able to leave my kids while I was not good with them.
Ms Decosta, you always had your way, never considered my opinion.
It is always your way and decision. It was not easy for me but if that is what you wanted, I was ok as long as I could have some sense of security.
To be honest, my mind is blank at the moment. Very confused. Just regrets.
I realise it is not easy to kill oneself.
What did you really wanted?
Why do you always test me?
What do you mean by stoker?
Why?
Why recording? Why are you so cruel to the end? It was tough.
Soon afterwards, the father was found by police and arrested.
The Aftermath
The father was sentenced to 12 months imprisonment but that imprisonment was suspended after he had served 10 days in custody; in effect, the time he had already spent on remand. He was also sentenced to a period of two years’ probation during which he would have to undergo such psychological or psychiatric treatment as recommended by his probation officer.
In accordance with his probation order, the father undertook 10 sessions with a psychologist, Mr J, pursuant to a mental health plan that was authorised by his GP.
The mother refused to allow the children to have any contact with the father following this incident. The father filed these proceedings in August 2019.
I appointed an Independent Children’s Lawyer upon the matter been placed into my docket, and I have been very appreciative of the efforts that she has made. In particular, I have had the assistance of thorough reports by Dr G, a psychiatrist, and Dr E, the family report writer. Both of these professionals gave evidence before me as well.
The Issue
In reality, there is only one true issue in this trial, and that is whether it is in the best interests of the children to have a relationship with their father. The father has conceded that the mother should have sole parental responsibility and he testified that he trusts her to make the right decisions for the two children.
There is no doubt that there should be no contact whatsoever between the mother and the father. To this end, I have been grateful to the legal representatives who have been able to negotiate a financial adjustment without the parties ever communicating or being anywhere near each other. At the beginning of the trial, I made orders in terms of the agreement that had been reached because I found that the orders were just and equitable. I later amended those orders, through the slip rule, in front of the parties, when they appeared before me to give their oral submissions in the matter.
Included in those orders was a departure order. This means that the father will pay a lump sum for child support which will last until January 2025. The effect of these orders means that the mother and father have no need to communicate upon any issue whatsoever until January 2025 at the earliest.
The question for the Court to decide is whether it is in the best interests of the children to have a relationship with their father. There are a number of aspects to this question that have been raised during the course of the trial.
Cannabis Use
The mother gave evidence that the father used marijuana. She said that when she or the children made the father angry, the father would storm away to the garage and smoke marijuana. She said that she and the husband had many disagreements about his use of marijuana.
In his interview with Dr G, the father told the psychiatrist that he had used marijuana since he arrived in Australia in 1998. The father told Dr G that “I smoke every now and then… Just to relax like having a beer or wine after work. The last time I smoked was (the weekend before his interview with Dr G) and before that was (three months before)”. He was asked whether marijuana had ever caused him any mental troubles or problems and he told Dr G that he usually went to sleep after smoking.
When speaking to the family report writer, Dr E, the father said that he would smoke cannabis with friends or when he felt upset. He said that he ceased smoking cannabis when he was in his relationship with the mother. He said, to the report writer at the time of assessment, that he was now smoking cannabis approximately every couple of months but he denied ever having experienced problems or complaints in relation to his use of cannabis.
Dr G said that
The presence of intoxication with cannabis, or the presence of a withdrawal state from the recent use of cannabis, or a state of angst or aggravation from life challenges in which the desire to become intoxicated with cannabis is thwarted, raise serious and variable and unpredictable risks for parenting functions.
Dr G said that the father’s use of cannabis was “chronic”. He said this intoxication has the effect of “deskilling” the father from learning to cope with normal emotional and psychological tasks. Dr G said that the father become dependent on the intoxication to relax and that his need for the effects of the drug in his life is that it acts as a “crutch”. He said that the father needed to learn to live his life and to cope with his mental reactions, to stressors in life, without cannabis.
Dr E recommended that there be drug pathology for the father before there be any form of contact between the father and the children.
The father, to his credit, produced two recent drug test that showed that he was “clean”; that is there was no trace of cannabis found in his system. This is a very encouraging sign. What was not as encouraging was the father’s evidence that Dr G “got it wrong”. The father was critical of Dr G and totally disagreed with what Dr G said about the father’s cannabis use. Yet, when Dr G was cross-examined, he was not challenged on the remarks he had made about the cannabis use.
There is always a risk of relapse when a person who has smoked cannabis for some 22 years quits using the drug. Notwithstanding the logical submissions on this point by Counsel for the mother, I am not concerned about the cannabis use of the father per se. However, I am concerned about the reaction of the father to what Dr G had reported. The father seemed to feel as though he was “attacked” by Dr G and could not contemplate that there was a measure of truth in what Dr G had said. This may be illustrative of the insight of the father.
Statements made by the father
In his interview with Dr E, the father made some instructive statements about the offending that occurred on 22 July 2018 and his feelings towards the mother in general. He had described a sense of injustice in relation to the manner in which the mother had conducted herself. The father had hinted that “men have no rights”. The father seemed to downplay what occurred on 22 July 2018 and simply referred to it as “the event” or “the incident”. The father had lost his employment licence because of the conviction. He appealed the decision to revoke his licence, referring to the offence as “a purely domestic matter”.
When speaking about the actual offence, the father denied to Dr E that he hit the mother as she claimed and said that if he had done so with force, the mother would not be alive. He said that after he dropped the wooden sword, the mother hugged him. The father said that he drove away from his residence but then returned having felt upset that the mother had not attempted to stop him.
The father told Dr E that “yes I was violent that night but never punched or hit her”. The father said that he had to agree with the police and the duty lawyer and plead guilty. When Dr E touched on the subject of his thoughts about killing the children, the father said that he wanted to hurt the mother. He considered the children (X and Y) were the one thing that was important to the mother. The father acknowledged that his thoughts of killing the children would be the means whereby the father could make the mother feel his pain. He told Dr E that he had no specific plans and that the email was his last attempt to make the mother know that he was struggling and hurt.
Evidence of the father
The father gave evidence before me. Whilst it appeared that the father wanted to avoid answering the difficult questions, it had to be taken on board that English is not his natural language. Be that as it may, I was still able to assess his demeanour. To my mind, the father was doing his best to impress the Court and to also give answers to which he thought the Court would approve.
I have already spoken about the bizarre claim that the tape-recording was either faulty or had been interfered with. However, there was another claim that was almost as bizarre. The father was asked about the mother being traumatised as a result of the offending of 22 July 2018. The father refused to believe that the mother was as traumatised as she says. His reason for this stance is that he believed that if she had been traumatised, she would have left the country and fled to Country C. He said that because she hadn’t gone back to Country C, she could not be traumatised. This stance is also illustrative of the insight (or lack of insight) of the father.
He also said that he believed the mother is deliberately trying to make him angry during the course of these proceedings. He said that the mother was saying (either personally or through her legal representatives) things that were not true.
At one stage, the father began crying. I did not accept that this was a display of genuine emotion or contrition but rather an act to garner sympathy for himself.
The impression I gained from the father’s evidence is that his outlook is very egocentric. He repeatedly spoke of his shame in being the only person from his family who has ever divorced and his feeling of betrayal by the mother. When he was asked whether he could understand the effects his actions had on the mother, his reply was, in effect, “you can listen to the tape and you can tell that I was not in my right mindset, so having someone not in their right mind in front of you would be scary”. His empathy for the mother is almost non-existent. He sees her feelings only as a consequence of how he was feeling.
Evidence of the mother
The mother gave evidence before me as well. The caveat that I had regarding the father’s evidence also applies to the evidence of the mother. She explained that she is still “reacting” to the events of 22 July 2018. She made a comment that seemed to suggest that the father should not have brought these proceedings. When she was asked about this she explained that the father does have a right to bring these proceedings but that she also has a right to object to what the father is doing.

She was adamant that the father did have an intention to kill her that night but he desisted. She was asked about her actions that night but replied that she used whatever strategy she could think of to survive. She said that she still does not think that the father is sorry for what he did that night.
When asked about the father’s parenting, she said that the father had two sides and when his good side was in charge, he was very good to her and the children. But when his bad side was in the ascendancy, the same actions of the children would now get a negative reaction. She said that this gave the children constant inconsistent messages.
The mother conceded that she did not have any concerns with leaving the children with the father for 10 days while she went for a holiday to Country C. She said that she never considered that the father would be thinking of killing the children and herself. When asked what the children’s reaction was when she returned from her time in Country C, the mother said that the children told her that they had a good time with their father but that they also had made him angry.
It was put to the mother that the father had not breached the DVO or any other court orders and that this was some evidence that he had reformed. The mother’s comment to this was that the father says that he is sorry, but he is not really sorry. She said that he will say what he needs to say, but he could then change his mind very quickly afterwards. She said that she was not convinced that he has reformed.
She said that she tells the children that the father is not a bad person, but that he can get angry. She said that she does not think that the father actually loves the children, but that the father needs to be loved by them instead. (I note that the children have not been in any way influenced by the mother in their attitude to the father, which bears out what the mother has said).
In a moment of insight into the whole dynamic, the mother said that the father’s pursuit of litigation was about the mother and not about the children. She said that she does not think that the children will ever be safe with the father.
The impression I gained from the mother is that she is extremely genuine. She was the person who wished to end the relationship, but she did not want the children to not have the father in their lives. The offence that occurred on 22 July 2018 has changed that. The mother cannot get past what occurred that night and candidly admitted that the father’s actions and attitude to the offending has also caused her to be resolute in what she is asking the Court to do.
I have no doubt that the mother genuinely believes that it is not in the best interests of the children for them to have contact with their father. I accept that the mother has this attitude, not for any reason to spite the father, but because of a genuine belief as to what is in the children’s best interests.
And this sums up the real question for this Court. It is really for this Court to see whether the subjective belief that the mother has, also has an objective basis.
Evidence of Ms K
Ms K is the mother’s current treating psychologist. Ms K gave the Court a short report about her treatment of the mother. It was her opinion that the anxiety that the mother would experience, knowing that the father was having contact with the children, would be such that it could potentially interfere with her parenting ability and consequently, be deleterious for the children.
Ms K said that, from what the mother described, the mother had been dealing with coercive control from the father for the duration of their marriage. She said that the mother is still dealing with the trauma of 22 July 2018, but also the trauma that occurred because of the coercive control of the father.
Ms K has tried to prepare the mother for all possible Court outcomes. She said that she does have a strategy for working with the mother if it is that the Court does order that the father can spend time with the children. Ms K said that even though she does have strategies to employ, this did not mean that the mother would actually be able to cope.
Ms K also gave opinions as to what she believed would be the impact on the children were they to have contact with the father as well as giving an opinion as to the father’s strengths and deficits. I made it clear to the parties at the beginning of the trial that my consideration of the evidence of Ms K would be confined to her opinion as to the effects upon the mother. Notwithstanding that intimation by me, both Counsel for the father and Counsel for the Independent Children’s Lawyer still asked questions of Ms K as to those other matters. Consistent with what I intimated at the beginning of the trial, I am ignoring all evidence given by Ms K that does not go to the question of the possible consequences to the mental state of the mother if the children began seeing their father again.
Family Report
Dr E provided the Court with a very detailed and thorough family report. As mentioned earlier, Dr E provided an opportunity for the father to interact with the children for the first time since 22 July 2018. The children have not interacted with the father since the family report interview.
At the interview, X told Dr E that the mother had told her that the father was a nice person who was unable to control his anger. X said that she remembered she had last seen the father between 18 months and two years ago. She did have some pleasant memories of her father, but also had some unpleasant memories. She described the father hitting her with his hands in response to her misbehaviour and that she had a red mark from such discipline. She was unable to recall past experiences from when the parents were together.
X said that she wanted the father to be “nice”. What she meant by this was that she did not want the father to respond in anger.
Y told Dr E that his mother had told them that the parents had had a fight. Y said that the mother explained that “she pinched but the father pinched harder”. Y knew that the father had used a wooden sword towards the mother. Y said that he did not like it when the father was angry with him. He said that he felt hurt when his father hit him with a spatula.
Y said that he felt scared to see the father. He said that the father may continue to feel stressed and angry towards the mother.
Notwithstanding this fear, the interaction between the father and the children was positive. The children stayed in proximity to the father and seemed relaxed around him. Dr E observed frequent eye contact, hugging, kissing and tickling. There was an exchange of hugs and kisses when the time had expired.
Dr E had recommended that the father have supervised time with the children. Dr E conceded that there was a risk to the children but he believed that such a risk would be alleviated under supervision.
It was put to Dr E, by the Independent Children’s Lawyer and Counsel for the father, that the father had been remorseful. When told that the father had conceded that the mother should have sole parental responsibility, Dr E said that such a step was beneficial to the children. When told that the parties had come to a financial settlement, Dr E said that this was a step forward and that it would reduce contact between the mother and the father. Dr E acknowledged what was said by Ms K and commented that the evidence of Ms K simply reinforced his opinion of the anxiety level of the mother, though it did not change his recommendation.
Dr E said that there is a potential for the fact of there being “time” between the father and the children to traumatise the mother. He said that he did not know whether this would actually impair the mother in her parenting capacities. He added that, on his observations, the mother is a very resilient person.
Dr E conceded that there was still a risk to the children with supervised time. The risk also extended to the fact that time in a supervised environment is time in an artificial environment and prolonged supervision is not ideal for the children. Dr E said that supervised time was better than no time.
Dr E said that the children have a loving relationship with the father, based upon his observations, and that there was a relationship worth saving. He said that the longer that the children do not see the father, the greater the damage is done to the relationship between the children and the father. He said that if the children did not have a relationship with their father until they were 18, the relationship would be almost impossible to repair.
Dr E was asked when he thought supervised time could cease and unsupervised time could commence. His answer was that he was not confident when there would be a diminution in the risk. He said that it would be no less than 12 months and that there would need to be a further reassessment to see if the father was accepting of his responsibility and whether he had received any professional help and gained insight.
Dr E said that the positive signs for the father (that he was working as a salesperson having had his license reinstated, that he had ceased smoking cannabis and that he had completed sessions with the psychologist, Mr L) indicated that the father was moving in the right direction.
This outlook however was tempered by Counsel for the mother informing Dr E of a number of matters. After being informed of those matters (most of which have already been mentioned in these reasons), Dr E said that the father has quite a lot more work to do on his insight. Dr E conceded that the risk of harm to the children has not been removed.
Application of the Act
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
Section 65D of the Act subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”) gives the Court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s.60CC(2) the “primary considerations” and s.60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s.60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s.60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
There are 14 “additional considerations” set out in s.60CC(3) which I will refer to later in detail in these Reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s.60CG).
I will also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.
Application of law to the circumstances of the case
I must now consider the application of the legal principles in the circumstances of this case namely the background facts and the findings I have made in these Reasons and how they apply in determining what parenting orders are most likely to promote the best interests of X and Y.
Primary considerations – section 60B
Turning firstly to the application of the primary considerations namely;
(a)The benefit to the child of having a meaningful relationship with both parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
My conclusion as to these primary considerations are in summary:
(a)It is important to X and Y that they have a meaningful relationship with their mother, however, I am not convinced that it is important to them that they have such a relationship with their father, and
(b)There is a need to protect X and Y from being exposed to the risk of family violence, harm or abuse.
My reasons for reaching those conclusions are as follows:
(a)The mother has been the main support for the children. She has acted protectively once the offence of 22 July 2018 occurred. The father has failed to understand the consequences of his actions upon the mother and the children. I do not think that the father values the children as individuals but rather as extensions of the mother; and
(b)Given the history of the father’s actions which led to the conviction for AOBH whilst armed, the family violence (coercive control) that has occurred and the father’s lack of insight into the consequences of his offending upon the children, there is a need to protect X and Y from being exposed to physical harm and psychological harm.
I treat these primary considerations and my findings as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of X and Y. Having made the findings that I have, s.60CC(2A) does have relevance here.
Additional considerations – section 60CC(3)
Going through the considerations seriatim, I find as follows:
(a)Even though X and Y are young, I have taken into account the positive interaction that occurred during the family report interview. I have also noted the trepidation they have about the father. Whilst it is always positive for a child to have a relationship with their father, this can only be done if such a benefit outweighs the risk;
(b)I have spoken of the nature of the relationship that X and Y have with their parents;
(c)I have taken into account that the events of 22 July 2018 have meant that the father has not been given the opportunity to participate in making these decisions. I also note that the father has no issue with the decisions that the mother has made or will continue to make;
(ca)I have taken into account that the parties have been able to successfully negotiate a financial settlement that will include a lump sum child support payment;
(d)I have looked at the effect of contact between the children and their father. I am quite cognisant of the statements made by Dr E that this is a relationship worth saving and that if the father and the children do not have contact until the children are 18, the relationship may be irreparable But I have ensured that the best interests of the children remains the number one priority;
(e)There is no practical difficulty or any issue with the expense of the father having supervised time with the children. I have taken into account that the most significant aspect is whether the mother would be able to cope with such contact;
(f)This circumstance has been a major one for me at which to look, mainly because of the attitude of the father to the matters for which he was convicted. There has been a lack of evidence from the father to show that he truly understands what the children have experienced. The evidence is that the children saw the state their mother was in when she arrived home on 22 July 2018, but it seems that the father has not really understood what effect this has had on the children;
(g)I have looked at all of the circumstances of the children. I have also had regard to the Country C culture to which the children have been raised and how all of the circumstances of this family dynamic may have affected them;
(h)This aspect has no relevance in this particular case;
(i)This circumstance is one that overlaps with previous circumstances. I have taken into account that the father has accepted that his behaviour on 22 July 2018 has led to the current Court ordered regime;
(j)I have taken into account the family violence and its proper context;
(k)I have taken into account both this order, and the current Court ordered regime, and that the father has been respectful of those orders. Any order I make will continue to be very mindful of the current order and the circumstances in which it arose;
(l)The orders that I make, are orders that I believe are least likely to lead to further proceedings; and
(m)I have taken into account all circumstances that I believe are relevant to this matter.
Parental responsibility
Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the children, or family violence.
In this case, having regard to the findings I have made, the presumption does not apply.
In coming to my final conclusions, I have also been guided by the objects and principles set out in s.60B, quoted earlier.
Consideration
This has not been an easy matter to adjudicate. The children have had very little contact with the father for well over 2 ½ years. The contact, in a physical capacity, has only been at the family report interviews while there have been cards and other gifts sent to the children by the father.
On the face of it, it might be seen that we have a father who wants a relationship with his children and two children who have reacted very well when given the opportunity to interact with their father. If this contact were supervised, there might seem to be very little risk.
This has been the attitude of both the father and the ICL. Both have submitted to me that, prior to 22 July 2018, there was no impediment to the father remaining an integral part of the lives of these two children, despite his separation from the mother. Both have submitted that, having regard to Dr E’s observation that there was a “relationship worth saving”, any risk to the children can be ameliorated by supervised time.
However, the motivations of the father are matters of which I have some concern. The time that the father spent with the children, between 1 March 2017 and 22 July 2018, does seem to have been still centred around the mother. The father would come and go from the former matrimonial home for much of that particular period. The father seemed to want to still ingratiate himself with the mother.
The conversation that the father has with the mother on 22 July 2018 is instructive. The father constantly reminds the mother that he does not want there to be an end to the relationship. It is only when the mother “shuts down” the conversation with respect to any resumption in the relationship, that the father then starts talking about property division. The children are dealt with as if they are property; either there is 50/50 or nothing. It is the mother who is insisting on the father seeing the children.
But what else is instructive is the manner in which the father is insistent that the mother agree to the 50/50 split of property. The controlling nature of the father then becomes obvious. It is evident in the change of tone of voice at the father is upset that the mother will not put in writing that she agrees to a 50/50 split of the property and is even more upset when it is that the mother says that she wants to consult a lawyer first.

When it is that the father is not getting his way, he tells the mother that he is prepared to die to which the mother replies that, whether the father had prepared to die or not, she wanted to discuss the matter with her lawyer first.
The father’s need for control is quite evident in the conversation. The father was not getting his way and the frustration was welling up. The father’s reaction to seeing the mobile phone recording the conversation is in keeping with his need for control. Whilst the father says that he felt betrayed and that is why he reacted as he did, I am of the view that it was something much deeper than that.
Because the mother had recorded the conversation, the father had lost control of the narrative. The mother now had proof as to what it was that the father had said and what the father may have agreed to in division of assets. The father could no longer control the mother and this realisation is what caused him to lash out in the way that he did. The threat to kill the mother and the children was, in my view, a very real threat and the ultimate statement of the father trying to assert his control.
The father desisted in his attack but it seems to me that the mother’s screams were a very big part of why it was that the father desisted. What occurred after the father stopped the attack was, again, an attempt to regain control. I do not accept the father’s excuses that he snapped the Sim card so that he would not call the mother again; it is clear to me that the father snapped the Sim card because he thought that this would erase the recording, notwithstanding what he wrote later in the emails that he sent the mother.
Whilst I only have the interpretation that has been transcribed, the manner in which the father says what he says, is clearly an attempt by the father to have the mother feel sorry for him. The father then attempts to put the attention back on himself. There was no empathy for what he had just put the mother through. The father was thinking only of himself and how things would look for him.
It is clear to me that the father was quite cognisant that he would/could be punished and sent to jail for what he had just done to the mother and his concern was for his fate rather than any sorrow for what he had just done to the mother. The father said to the mother “I do not want to be punished by law please let me go alone”. The father was inferring that he is going to commit suicide. He left the premises and started his car but has returned to the room, where the mother is, some 29 seconds later.
When asked in his testimony why it was that he returned to the premises at that time, the father said that “I thought she (the mother) would have stopped me”. It seems to me that there was never any intention of suicide and that the father was “playing games” with the mother’s very fragile state.
The father’s statements at about 1:06:00 of “why do you want to corner me so much?” , is an example of the father’s coercion and blaming the mother for what it is that the father did. The father then talks about him having to go to jail (obviously for what he had just done). When the mother said that she did not want him to go to jail, the father sees his opening and doubles down on his attempt to control the matter by forcefully telling the mother that he would commit suicide, rather than just saying it in a hyperbolic way as he had during the last hour.
He then repeatedly tells the mother to “just tell me to die”. The mother repeats that she does not want him to die. The mother is able to talk to the father and suggest that they go outside and talk more. It seems to me that the father believes that he has somehow regained control but that belief quickly dissipates once they are outside and it is clear that the mother is not going to do anything that the father asks of her.
The father then drives to Town F and sends a number of emails to the mother as a last ditch effort to get the mother back “on his side”. The mother does not respond to any of the emails and the father’s plan (to try and have the mother feel sorry for him, so that he can regain his control), is now failing. The father wrote that “I actually thought of killing our kids and myself in the past. However, I do not hate you that much and doing that will hurt you and I was afraid that may cause you to suicide so I never did. All I wanted was a little attention to me and accept my existence”.
To my mind, this is a telling admission. The father is admitting that the children are little more than pawns in a game that he would play with the mother; that their lives mean nothing other than as a means by which to hurt the mother.
There is no suggestion that when the father was found by police that he had made any preparations to harm himself, or that there was any indicia of him actually harming himself.
Both the father and the ICL have submitted to me that the father has displayed remorse and has shown that he understands what it was that he did on 22 July 2018. The ICL has submitted that the father was so ashamed by his actions, that his shame caused him to leave and drive to Town F. The father has submitted that he does have insight; that he has never harmed the children; and, that he poured his heart out to the Court. The father submits that he has not “misbehaved” in the interim and has fully complied with all court orders. Both the father and the ICL say that this behaviour is demonstrative of true remorse.
The father did undertake 10 sessions with the psychologist, Mr J, and Mr J opined that there was no need for further treatment after the completion of those 10 sessions. On 16 May 2019, Mr J wrote:
During our last few sessions, Mr Decosta has continued to show progress in relation to emotional processing strategies, which has reduced his experiential avoidance and he has reported reduced suicidal ideation and anger. During treatment, Mr Decosta has completed his anger management program and continues to manage his probation requirements. Furthermore, Mr Decosta is displaying an increased ability to cognitively defuse from negative emotions associated with his ex-partner which is enabling him to start to move forward.
During treatment, Mr Decosta has actively engaged in our sessions to date and in my opinion is showing progress regarding implementing various strategies and moving forward from this part of his life. Furthermore I feel Mr Decosta is demonstrating appropriate emotional processing strategies given his current circumstances and is displaying appropriate emotional and rational processing strategies. I do not believe that he requires further psychological support at this stage, however if his circumstances change in the future, I would encourage a new MHCP referral.
Having regard to what Mr J had written, one would think that the father had actually understood what he had done and gained some insight. However, when he was seen by Dr E, Dr E recommended that the father “commence appointments with a mental health professional with forensic expertise… The purpose of the intervention would be to monitor the presence of the maintenance factors outlined in the evaluation and deliver intervention to mitigate these risks”.
It begs the question then as to why it is that Dr E felt compelled to make such strong recommendations when, according to Mr J, there was absolutely no need for such interventions at all because the father was “well and truly on the right track”.
Nevertheless, I then made an order that the father partake in such counselling as recommended by Dr E. There is no report from Mr L but there is a letter that was written, ostensibly to assist the father in regaining his working license. This letter is an annexure to the father’s trial affidavit. The father testified that Mr L gave him this letter for these proceedings as well, however there is very little detail.
Mr L wrote:
[the father] has developed better insight into his behaviour that has led to his offending, but most importantly he has obtained a better understanding of the consequences of his behaviour, including the impact it had on the victim [his wife]. He is very remorseful and regrets the harm he has inflicted on the victim, his children, and his career. He often expressed his regret and shame for committing the offence during therapy. He has moved forward from his relationship and made significant efforts to revitalise his career and his life
And yet the father testified, in this trial, that he did not accept that there was as great an impact on the wife as she said because she had not fled to Country C. The father still sought to minimise his behaviour by denying that he struck the mother on the head with the wooden sword or that he put his arm across her throat at any time. And when it was that the recording did not support the father’s version, he made the totally unsubstantiated claim that there had been some form of interference with the recording.
Both Dr E and Dr G testified that the father still has quite a deal of work to do on his insight into the offending. Having regard to the evidence before me, such testimony was an understatement. Dr G said that the father was not able to focus on the gravity of the offence.
The father claims that having seen Mr J and Mr L, there is nothing more that he can do, but he is willing to do even more courses or undertake more therapy if it would help him get to a point where he could see the children. But the father has had every opportunity to have a proper assessment and to be in a position where there would be no need for there to be any further psychological intervention. As Dr G properly said “unless the father really has the motivation to want to change, then there will be no change”.
Accordingly, there is great merit in the submission made by the mother in this regard. The father truly does not have insight into what his role was on 22 July 2018. Because of that, he will always minimise what his true role was. Consequently, no therapy will be able to improve the father, because he will not accept any version of the facts that conflicts with his own.
This is also why the therapy undertaken by Mr J and Mr L will also be limited. If the father will not acknowledge anything further than what he has already acknowledged, then there is nothing more which any psychologist will be able to do; if all the father did that night was what he has already acknowledged, then there truly is no more need for therapy.
The father submitted to me that such a conclusion would mean that the father would never be able to progress unless he agreed with everything that the mother was saying that he did that night. If the father truly believes that he has told the truth, then to accept something that was not “the truth” could never be a positive action for him. While there would ordinarily be much force in what the father has submitted, the fallacy in his argument is that what the father perceives as “the truth” is in diametric opposition to the objective facts; that is, the recording of the incident and the injuries to the mother.
For that reason, there will always be a risk to these children from their father. I cannot see how this risk could ever be truly “acceptable”.
I accept the evidence of the mother that she will have great fear if it is that the father is able to spend time with the children. The mother summed up the situation very well during her evidence where she said that this litigation, from the point of view of the father, “is about me and not about the kids”.
Both the father and the ICL submitted to me that the evidence of the mother had not reached the high standard needed for a Court to be satisfied that her reaction to the father spending time with the children would cause a deterioration in her parenting of the children such that the best interests of the children would be served by them having no time with the father.
Both the father and the ICL submitted to me that the characterisation of the mother as being “resilient” is a proper characterisation. Both the father and the ICL submitted to me that the mother will be able to still parent the children effectively even though they are having time with the father.
I accept the evidence of Ms K who said that there was a potential for the mother’s parenting to be impaired because of the anxiety she would feel when the father has contact with the children. I accept the evidence of Dr E and Dr G who both said that they could see no malice or mischief in the mother and that they accepted that the fear and anxiety that she has regarding the father is real. This evidence totally undermines the submission that was made by both the father and the ICL.
But it is even simpler than this. The father told the mother that he wanted to kill the children on the evening of 22 July 2018. As I have already noted, this was no idle threat. The father then wrote to the mother later that same evening and told her that he had thought of killing the children in the past. One could ask rhetorically, how does any mother not have fear if a person who has twice mentioned that they wanted to kill the children, is now spending time with the children.
CONCLUSION
I am of the view that the father is incapable of change and that he will continue to minimise what he did on 22 July 2018. I am of the view that there is an unacceptable risk to the children of both physical and psychological harm, even in a supervision regime. I am of the view that there would be a diminution and impairment of the mother’s parenting of the children if it were that they were to have contact with the father and that his would have negative consequences for the children.
I accept that the children did have a positive experience with their father during the family report interviews. I acknowledge the force of the comments of Dr E who talked about the relationship between the children and the father being a relationship “worth saving”. But those considerations are well and truly outweighed by the danger for the children of having contact with someone who truly does not understand the gravity of his actions and who will continue to minimise his culpability for what occurred on 22 July 2018.
Even if I were of the view (which I am not) that those dangers could be ameliorated by a supervision regime, the consequences upon the mother’s parenting would be such that the positives of the children seeing the father would be well and truly outweighed by the negative result to the mother.
For these reasons I will not allow the father to have contact with the children.

I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.
Dated: 19 March 2021

[2021] FCCA 483

19 March 2021

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

File number(s):	BRC 9714 of 2019
Judgment of:	JUDGE VASTA
Date of judgment:	19 March 2021
Catchwords:	FAMILY LAW– Contact – child’s best interests – where the father was convicted of assault upon the mother – whether the father is an unacceptable risk to the children – whether the fact of the father spending time with the children would affect the mother to the point that it would be detrimental to her parenting of the children
Legislation:	Family Law Act 1975 (Cth), ss 60B, 60CC, 60CA, 60CG, 61DA, 64B, 65D 65DAB
Number of paragraphs:	160
Date of last submission/s:	12 March 2021
Date of hearing:	17-19 February 2021 and 12 March 2021
Place:	Brisbane
Counsel for the Applicant:	Mr Blaxland
Counsel for the Respondent:	Mr Alexander
Counsel for the Independent Children's Lawyer:	Mr George

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	19 MARCH 2021