DEMPSEY and BRAHMS
[2017] FCWA 59
•12 MAY 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: SUPRESSED
CITATION: DEMPSEY and BRAHMS [2017] FCWA 59
CORAM: THACKRAY CJ
HEARD: 12 - 14 DECEMBER 2016
DELIVERED : 12 MAY 2017
FILE NO/S: PTW 6893 of 2011
BETWEEN: MR DEMPSEY
Applicant
AND
MS BRAHMS
Respondent
Catchwords:
CHILDREN - With whom a child lives - With whom a child spends time - Family violence - Father has engaged in coercive, controlling and abusive behaviour toward the mother and children over many years - Presumption in favour of equal shared parental responsibility does not apply because family violence present - Benefit to the children of having a meaningful relationship with the father outweighed by the importance of protecting them from psychological harm arising from father’s behaviour - children to live with mother and spend time with the father as the mother deems appropriate
Legislation:
Family Court Act 1997 (WA), s 66C, s 70A(1)
Category: Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Independent Children's Lawyer : Ms R
Solicitors:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Independent Children's Lawyer : Law Firm A
Case(s) referred to in judgment(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1I am required to determine future living arrangements for [Child A], [Child B] and [Child C], the three children of the father, [Mr Dempsey], and the mother, [Ms Brahms].
2For reasons that follow, I consider the children should live with the mother and only spend time with the father if the mother deems it appropriate.
The parties and their children
3The father, aged 46, lives in a “donga” on a bush block on the outskirts of [Suburb A]. He has no visible means of support. He told the Single Expert he had not worked for the last 12 years “as he has wanted to concentrate on his relationship with his children”.
4The mother, aged 43, lives with the children in a house in Suburb A. She receives a pension and is studying at university, while caring for her elderly father.
5The mother and father met in 2001. They never cohabited. The father came and went from the mother’s residences at his convenience, but was keen they not live together.
6Child A was born in 2002 and is now nearly 15; Child B was born in 2007 and is now 10; and Child C was born in 2009 and is now seven years of age. Child A attends one of the two local State High Schools, while the girls attend a local private school.
7The mother has two other children; [Child D] who is 25 and [Child E] who is 20 years of age. They were aged 11 and six when the mother and father met in 2001. Child D still lives in the mother’s home, but Child E lives independently.
8The mother and father “separated” in 2011, but the mother was cajoled into “reconciling” during Family Court proceedings, which ended with consent orders in October 2013 providing for an equal shared care arrangement. The “reconciliation” ended in about April 2014, and the parties have not been together since then.
Orders sought
9The father’s proposals were contained in a Minute filed in November 2015. He wants equal shared parental responsibility. He proposes that Child A lives where he wishes. He wants a week-about arrangement for the girls (save during holidays when they would spend up to two weeks with each parent).
10The mother originally proposed that the father spend regular time with the children; however, she had changed her mind by the time she filed her Minute in July 2016. She now wants sole parental responsibility; for the children to live with her; and only to spend time with the father subject to her consent.
11The Independent Children’s Lawyer (“ICL”) proposes that the mother have sole parental responsibility on the basis that the mother would inform the father of any decisions in relation to “significant health and education issues”. She proposes that the father have no time with the children until he has attended two specified programs, after which he could spend time with them, but only in accordance with their wishes and that for the first 12 months the time would be for a maximum of five hours each day for a maximum of five days at any one time.
12The parties and the ICL sought other orders that I need not detail here.
Credibility and impressions of the parties and witnesses
13I formed a very poor impression of the father. In my view, the mother came close to the mark when she said:
[The father] is an intelligent man who definitely has the ability to groom and charm people into believing whatever it is he is trying to get you to believe at the time. He wants to be liked by everybody he comes across in any way that will benefit him personally or financially and will mimic any behaviours required to achieve this.
14As a result of his charm, or perhaps out of their fear of offending him, the father had no shortage of people prepared to write (largely unsworn) testimonials for him. Indeed, he was even supported by a former female neighbour who he had physically manhandled off his property, for no good reason, during a social event. This occurred in the presence of friends, while the neighbour’s young daughters were in the vicinity.
15Contrary to what some of his associates and family believe, I find that the father is an aggressive, controlling and manipulative man. He has a propensity to bend the truth, and appears skilled at turning accusations against him back onto the accuser. He demonstrated no insight into the way that he made the lives of the mother and her adult sons (and to a slightly lesser extent his own children) a complete misery. He is quite oblivious to the harm his violent, abusive and controlling behaviour has caused.
16I formed a far more favourable view of the mother. Notwithstanding some flaws in temperament, she impressed as being focused on the welfare of the children. She demonstrated sound insight into the damaging dynamic of her relationship with the father, which she knew she had allowed to continue for too long. Some of her claims may have been exaggerated, but I found substance in most of them. She was a far more reliable witness than the father who frequently dissembled, consistently overstated his case and misrepresented the evidence given by other witnesses.
17I also formed a favourable impression of the mother’s adult sons, both of whom have been adversely affected by the years of violence and conflict they witnessed, especially Child E to whom the father took a particular dislike and who bore the brunt of his aggression, whereas Child D seemed to have perfected the art of keeping out of the father’s way. Although not being able to recall details, both these young men, in my view, accurately conveyed the flavour of life when the mother and father were in a relationship.
18I was not impressed by the father’s mother, although parts of her evidence indicated that she had a much greater focus on the welfare of the children than the father. The father originally did not plan to call her until I made it clear that I thought it would be disadvantageous to his case if he did not. Having heard her give evidence, I formed the impression that nothing would persuade the father’s mother to accept that there are any deficiencies in her son. She would not be the first parent to fall into that category, but I considered she went too far in joining with her son in what I considered to be unreliable evidence about why little Child C was bundled back into the mother’s car in November 2012 rather than being allowed to accompany her siblings to the [local event] (at a time when the father was denying he was Child C’s father).
19I formed a generally favourable impression of the father’s girlfriend with whom he has been in a relationship since January 2016. She is an [administration assistant] for a local [business] and met the father in the course of “business transactions”. She has a daughter, who lives in an “amicable” shared care arrangement. The girlfriend hopes that she and the father might live together in a few years’ time. Notwithstanding my favourable impression of her, I was doubtful about her candour when she claimed she had previously seen one of the appalling text messages the father had sent Child A, which she then sought to defend. I think it more likely she had never seen the message until confronted with it in the witness box. I also question her judgment in accompanying the father and his mother to the local park on the night of the first day of the trial, which led to a very unfortunate confrontation during which Child A was filmed (over his strong objection) and embarrassed in the presence of his mates, before the mother of one of the other boys called the police.
20The father’s brother, [D], presented in a better light than his brother. Although strongly aligned with his brother, he seemed to be a more sensible individual with far greater capacity than the father to control his emotions and behaviour. He and the mother have been able, in the past at least, to sort out some arrangements for the children which could not be resolved between the mother and father direct.
21It is unnecessary to comment individually on others called to give oral evidence. I accepted the veracity and independence of the professional witnesses and felt that the others attempted generally to give a truthful account. While the maternal grandmother and the mother’s friend, [Ms M], were clearly very poorly disposed toward the father, I consider they had every reason to hold such an unfavourable opinion of him.
Background[1]
[1] The evidence was presented in a haphazard fashion. This “background” is drawn from a large variety of sources and hopefully accurately represents the more salient features of the turbulent history.
22The parties were in a relationship from 2001 until August 2011, when the mother (and then the police on her behalf) applied for a Violence Restraining Order, following which the father commenced Family Court proceedings in December 2011. At the time, the father did not accept he was Child C’s father and obtained an order for DNA testing (with which he then did not comply).
23Prior to the Family Court proceedings being instituted, the parties commenced using the Anglicare Supervision Centre to facilitate contact between the children and the father. The father was reported by Anglicare as stating that he did not know whether Child C was his child and he originally told Anglicare not to include her in the supervised visits. She was only included after a consent order was made on 4 January 2012 for the father to see all three children each Saturday for up to three hours.
24Anglicare reported that the father “was not observed to treat the children equally throughout the service period as a distinct difference was observed between the small amounts of time [the father] attempted to spend with [Child C] in comparison to [Child A] and [Child B]”. The father was also observed on occasions making derogatory remarks towards the mother in the presence of the children and on other occasions failing to encourage the children “towards the mother”. On three occasions the father simply failed to attend at Anglicare to collect Child C. The report from Anglicare described how “confusing” it was, on other occasions, for Child C to watch her brother and sister leave to spend time with the father without her.
25The mother was recorded during all of the changeovers as being cooperative, encouraging the children “towards the father” and not making derogatory remarks about him. The girls were usually presented for the visits; however the following was recorded by an Anglicare worker on 30 January 2013:
The writer brought [Child A] and [Child C] to [the father] and stated that [Child B] was unwell and would not be attending that day. [The father] addressed [Child A] immediately stating “where is [Child B]”. [Child A] stated “she doesn’t want to come”. [The father] asked [Child A] again “where’s [Child B]”. [Child A] replied nervously “in the car”. [The father] stated in a forceful manner to the writer “I’m not leaving here without [Child B], it’s in the court orders. I don’t care if she’s sick or not, I’m going straight down the police station”. [The father] continued to talk about the court orders and [the mother] in front of the children. [The father] was asked to stop talking about [the mother] and court matters in front of the children, however he ignored all requests.
26Anglicare reported that the father continued to insist that he take Child B with him even when Child B came into the Supervision Centre and explained that she wanted to remain with her mother. During this standoff, the father told the Anglicare workers:
I don’t wish to be rude, but you’ve got two choices, you either get [Child B] or I go to the police station where they will go to her house and arrest her and charge her for breaching the court orders.
27Anglicare were not prepared to force Child B to go on the visit with the father, but she decided later in the day she would visit him after all.
28On another occasion the father was insistent on speaking about an alleged “hiding” the mother had given Child A. The Anglicare worker attempted to separate the father from the children to discuss his concerns, but he refused. The father stated:
I will talk about what I want in front of my children, I reckon I know what they need and what is best for them and people will not stop me from talking about these things to my children.
29The worker was only able to end the conversation by leaving the room.
30In February 2012, consent orders were made for Child A and Child B to live with the mother and spend unsupervised time with the father four nights a fortnight. Child C was not mentioned in the orders, although consent orders were later made for her to spend time with the father during the September/October 2012 school holidays.
31The proceedings progressed, with orders made directing the parties to file documents for a trial that was to take place in 2013. The father failed to file his material. The time to file was extended, but, just before the new deadline, consent orders were made in October 2013 for Child A to live in an equal shared care regime, and for Child B and Child C to spend significant periods with the father. Notwithstanding these orders, the children continued to be primarily looked after by the mother.
32I accept the mother’s evidence about the pressure brought to bear on her to agree to the October 2013 orders and to reconcile with the father until they “separated” again in the first part of 2014. Were it not for the gravity of the allegation, and the procedurally unfair way in which the issue unfolded at trial, I may have been prepared to find that the final straw in an already violent and abusive relationship came when the father sexually assaulted the mother while they were on a holiday [interstate] in the first months of 2014. However, it is unnecessary to make any such finding.
33It was only after the mother and father returned from interstate that the father commenced wanting to implement the October 2013 orders. The mother’s recollection was that this started in April 2014. It was only Child A and Child B who spent any significant time with the father during this period. Child C spent much less time with the father than her siblings did.
34I am satisfied that throughout the times they were with him, the father sought to undermine the children’s relationship with the mother. The father had behaved in the same way in the earlier “separation” and I find that this particularly impacted on the relationship between Child A and his mother. In an affidavit sworn in July 2013, the mother described her deteriorating relationship with Child A during that period:
431. [Child A] and I have always had a close relationship up until [the father] and I separated, since then I have felt him pulling away from me by being more and more distant after returning from each visit from his father’s. He obviously feels as though he has to choose by the pressure put on by his father telling him that “your Mum is trying to stop me from seeing you and that’s not fair, she is just being mean by not letting me see you more and I just wants to get along but your Mum is just being difficult”. [Child A] has told me this with blame his voice on many occasions…
432. [Child A] has even begun to mimic some of his father’s negative behaviours towards me if he doesn’t get what he wants. The looks of contempt, throwing and breaking things, constantly trying to badger me to change my mind on a decision. [Child A] said to me recently that “there is something wrong with the way you think, there must be something wrong with you in the head”, this is a very similar comment that [the father] used to say frequently during arguments that I was fucked in the head.
433. [Child A]’s social developmental behaviour needs to be addressed. I believe [Child A] has taken on board his father’s aggressive and controlling behaviours as he plays very rough with his two younger sisters and is having to be constantly told to stop doing it as he makes them cry very regularly. His attitude towards others is starting to have a very materialistic view about it and people are judged by their possessions.
35Child A’s behaviour continued to deteriorate during the second “separation” in 2014, while in the shared care regime. I find that Child B also responded badly to the additional time she was required to spend with the father. Child B, who had always been a very good student, was observed by her teacher to have “become noticeably withdrawn and sometimes not following instructions”. There was then an incident on 24 August 2014 when the father made physical contact with the mother’s face when she was collecting Child A. The police were involved, but no charges were laid.
36On 3 September 2014, Child A ran away to the father’s house. Just before doing so, he wrote a letter at school which he gave to the principal, [Mr L], in which he claimed that he had been subjected to ill-treatment by Child E; that his mother had kicked him in his legs;[2] his BMX had been confiscated; and saying that he wanted to live with his father. The mother says Child A later informed her that his father had told him to write the letter. This may be true, but in any event I consider it unlikely that the mother kicked Child A, or if she did so it would have been while trying to restrain him physically because of his atrocious behaviour.
[2] The father contacted the police some months later (on 22 November 2014), claiming the mother had “slapped and punched” Child A at around the time he left her home. It is unclear why the father delayed in reporting the matter to the police but I note that a few days prior to going to the police he had participated in a hearing at which the ICL was given permission to issue a subpoena to the police.
37After reading Child A’s letter, Mr L recommended that the father notify the Department of Child Protection (“DCP”). Mr L agreed that he had never previously observed anything to suggest there was a need for DCP to be notified about concerns about Child A while in the care of the mother. He was not prepared to guess whether Child A had told the truth in his letter, but felt the boy was “distraught and under pressure with everything in his life” at the time.
38The mother kept Child B away from school for many weeks after Child A went to live with the father. Although she was criticised for doing this, I am satisfied Child B was in a terrible emotional state at the time as a result of her father’s behaviour and the impact of the shared care regime, on top of her earlier exposure to violence and conflict. I find that the mother’s actions were well-intentioned and in Child B’s best interests, and that she attempted to ensure Child B was properly “home-schooled”.
39The father reactivated the Family Court proceedings in September 2014 seeking a recovery order relating to Child B; for Child B to then stay with him for 16 nights; and thereafter for Child B to live with each parent equally in accordance with the October 2013 orders. The father’s application also sought that Child A live with him, and only spend time with the mother in accordance with Child A’s wishes. No orders at all were sought for Child C.
40On 18 November 2014, an order was made for the mother to return Child B to school, and an injunction was granted to stop the father from going to her school. No orders were made about the time the children were to spend with each parent, and this issue was programmed on toward an interim hearing.
41During this period, DCP conducted an investigation, but concluded that they did not have “enough evidence to determine that either parent has exposed their children to significant or detrimental harm”. DCP did conclude, however, that the children had been “exposed to conflict between their parents”, and warned the parents that:
Recurring and intense conflict or fighting between parents has a negative impact on children’s sense of safety and security which affects their relationships with their parents and with others … It must be noted that during the assessment it was clear that both parents have placed the children in the middle of their dispute, especially during ‘handover’…
42On 24 March 2015, an order was made for the children to have time with both parents at Anglicare for four hours each week (two hours with each parent). The mother permitted the father to spend additional time with the girls during these supervised visits but the father did not reciprocate with Child A. Indeed, it is apparent from the reports that the father went out of his way to reduce Child A’s time with the mother.
43At the intake interview with an Anglicare worker, Child B said she was “fearful of her father and talked about a number of behaviours he had previously used that were threatening to her and made her cry”. She described the father punching his hand with his fist and threatening to give her a “belting”. Child C told the worker that she did not “feel good” when asked about having contact with her father. She said “he’s always mean ... he only loves [Child A] and [Child B] ... he used to love me but now he doesn’t anymore”. She nevertheless said that she wanted to go on the supervised visits as she wanted to see Child A.
44Child A was removed from direct involvement in the conflict between the parents when he went to stay with his father permanently. For a time, he settled down and began to behave better at school.[3] He started at the [High School A] in 2015 but had “a few behavioural issues” there and the school acknowledged that a “fresh start would assist [Child A] in positive engagement in education”. In late March 2015, the father moved Child A to [High School B] which is closer to the father’s home. Despite the father trying to paint a picture of Child A thriving in his care, a number of letters of concern were sent home by Child A’s new school, and in October 2015 the school wrote expressing concern about the number of absences Child A was having.[4]
[3] While I am prepared to accept that Child A’s short-lived improvement in attitude was associated with the move to the father’s home, it is also the case that Mr L, the very dedicated school principal, was making enormous personal efforts to mentor Child A and turn his behaviour around.
[4] The father was nevertheless able to obtain a letter from the school in December 2015 saying that Child A had attended school “regularly”.
45Meanwhile, Child B and Child C were progressing very well in the care of their mother. On 10 November 2015, their school principal reported that both had made “significant progress this year”. He said that the girls, having started at the school in Term 1, had both settled in and developed “a sound social network and interact effectively with both staff and their peers”. The principal reported that Child B has made progress in English and mathematics and was being supported with her development in English by attending literacy support sessions. Child C was reported as being “a very confident child who is achieving above expected targets in both her literacy and numeracy development”.
46On 16 October 2015, the father attended at the girl’s school in breach of the injunction. He was told by the head of the junior school there was an order preventing him from attending at the school, but the father denied there was any such order. When he was shown the order, he disagreed that it covered both girls.[5]
[5] Although she was not called to give evidence, the Registrar of Child A’s High School informed the Single Expert that the father had advised the school that there was an injunction preventing the mother from collecting Child A from the school. The father failed to provide the school with a copy of the injunction as requested and in fact would have been unable to do so since no injunction had been made.
47On 24 October 2015, the father grabbed the mother when she was walking down the stairs at a local nightclub; pulled her away from her female friend and spoke to her in threatening terms, demanding to see the girls. He had seen the girls on 17 October 2015 at Anglicare, at which time Child B had expressed a wish to see him for longer.[6]
[6] On the same day, the father told the girls at Anglicare that the “the first thing we are going to do when you come back to my place again is to get a puppy each”.
48The supervised visits ended on 31 October 2015 as the family had exceeded the maximum number of visits offered by the service. While Anglicare reported that the “tone of the supervised visits between [the father] and the children has been positive” and “both parents have been cooperative and friendly with staff” they also noted that “there is some contradiction between the behavior of the children towards [the father] and their comments when he is not present. This contradiction warrants further investigation and needs to be better understood before any significant changes to contact can occur”.
49There was a lacuna in the evidence about what happened after the last supervised visit in October 2015, but it appears the parents may have been cooperating with regard to arrangements for the children during the Christmas 2015/16 school holidays while the mother was working and the father was without a driver’s licence. Whatever agreement they had around this time collapsed when the mother’s lawyers wrote to the father’s lawyers early in January 2016 complaining about the father taking the children away from Suburb A, and Child C then having been returned without Child B. It seems Child B came back sometime later but the father then, without the mother’s consent, kept Child B in his care from 13–29 March 2016, during which time she did not attend school. Until confronted with evidence to the contrary, the father denied he had kept Child B this long. He explained that he had kept Child B away from school because “she and I are very, very close and she wanted to spend time with me”.
50On 29 March 2016, the matter was set down for an urgent hearing of a recovery order for Child B. An order was made for the mother to collect Child B the following day, with a recovery order to issue if she was not made available.
51On 13 April 2016, there was a telephone directions hearing during which the father apparently hung up on the presiding Magistrate.[7]
[7] See [13] of the reasons of O’Brien J delivered on 7 September 2016.
52On 27 April 2016, the father again attended at the girls’ school in breach of the injunction. I accept the mother’s evidence that the father began to hug the girls and tried to talk to them about these proceedings. I accept that in the course of the incident the father told the mother he was going to “fuck [her] up” and “fuck [her] life up”, and called her a “dog cunt”. I also accept that the father has spoken to the mother in similar terms over many years.
53On 26 May 2016, Child A ran away from his father and returned to his mother’s home, where he has remained ever since, spending only very occasional time with the father. In his oral evidence, the father claimed that prior to Child A running back to his mother, he had been encouraging him to go home to her because “I needed a break as I had had him for two years straight”. The father saw no risk associated with the circumstances in which Child A left his home, which involved the prospect of him walking 11 kilometres[8] after dark.
[8] The father’s brother thought it might have been 8 kilometres. The paternal grandmother, who was present at the time, was concerned about Child A being out at that time and went after him in the car, although she recalled hearing the father tell Child A he could walk to his mother’s place and reflect on “what was going on”.
54Prior to Child A’s departure, allegedly by way of “discipline”, the father removed Child A’s “big-screen TV, Xbox and iPad from his room” with a view to giving them to the “Salvos”. The father denied that he had destroyed all of these items in Child A’s presence, prior to throwing them into a trailer, but admitted that the television had been broken in the process of removal to the “Salvos”. While being cross-examined about his conduct, the father sought to deflect the criticism back on the mother. He said he had never approved of Child A’s electronic equipment and that the mother “unfortunately” has not got a yard at her place where Child A could kick a football around, whereas at his home “we live healthy outdoor lifestyles”. The father then admitted that it was he who had purchased the television and iPad as well as scooters and bikes for Child A.
55When the mother questioned the father about taking all Child A’s “precious possessions” from him, the father responded by saying “they were not precious to him – we are more out-of-doors people”. Under further cross-examination he admitted that Child A had been upset, but then asked gruffly “so what?” When asked to explain, the father replied, “This is how we got disciplined when we were children”. When asked whether there was anything he might have done differently about the way Child A’s possessions were taken off him, the father said “probably not … maybe next time he [Child A] will think about things differently”.
56After returning to the mother, Child A telephoned his father to ask for his belongings, but was told that he was “just like his mother and only rang when he wanted something” and that he should “get your mother to buy it”. There was an exchange of messages between Child A and his father in which the father said:
u had it all here buddy and ime sure u got everythn u need there as i havent heard from you i tried txtn u tried calln u and all i get in responce is u dont wana talk to me
57In another message sent to a phone used by Child A, the father said:
all good [t] [the mother’s name] u buy him a phone a moutain bike a skateboard some clothes an ipod some headphones u fuckn muppet how fukn silly do u think i am its you txtn not [Child A]
58This was a persistent theme in the father’s communications, claiming it was the mother not Child A who was sending him texts. I am satisfied the father was mistaken.
59The children went to the father during the September/October 2016 school holidays. During the visit, the girls asked Child A what had happened to his iPad. He responded by saying his father had smashed it because he is a “psycho”. On the following day, the father confiscated Child A’s phone, having twisted his arm to wrestle it away from him. Child A burst into tears when explaining this to his mother when she collected him and Child C from the place the father had dumped them after the removal of the phone.
60On 9 October 2016, the father sent Child A a text saying “cheer up ya sook start coming week around”. Child A refused, saying he would not come until his phone was returned. The father replied:
all good buddy ime not playing your game anymore u only gana come here wen u want something if u wana cone week around your welcome up to you cathya
61Child A responded by threatening to “press charges for stealing and the cops can come get my phone”. The father replied, “lol go cuz go”, but continued to text Child A, who told him “leave me alone you thief” – to which the father responded:
well that makes even worse u steel over $2000 for my room then come over and stole the phone out of my draw in bedroom i bought so we could keep in touch then u forge my signature at the bank and have stolen the money out of account I started for u for a car … all good u no any one at sk8 park who wants a sunday with all the fruit or a trek remedy 8 let me no or tell them to look on gumtree next couple of days thanks [in other words the father is threatening it seems to give away more of [Child A]’s possessions].
62Child A returned fire by saying:
i didn’t forge your signature once your 14 you can access your bank with out a parent so get your facts right and I payed half of that phone and you said it was mine not yours so I didn’t steal it from you but you jut recently stole my new phone and sell me shit Idgaf your just saying all this bullshit because I wont come live at your little druggo shed on the corner of [b road] so bye mate.
63Over the following weeks, messages continued to be exchanged between father and son. In one of these the father told Child A that he had:
gone from being a liked young man to a disappointing decision maker from [c sqad] to [local] park and i hear from a very good source and so called friend of yours that now your taking drugs…
64Child A responded:
I don’t do drugs but I know you do you hang around bikies sniffing cocaine drinking all the time smoking weed and I hang out at [local] park because its what I like to do and you took my phone of me because you don’t want me to have anything at mums and I didn’t smash the door handle of your house you don’t have one you live in a little shit box and none of my friends talk to you.you big homo.
65In response to this, the father again threatened to involve the police. He also told Child A to start using his mother’s last name, which led to the following exchange:
[Child A]: ill put what ever last name I feel like having buddy
The father: your clearly not a [father’s family name] we have more respect than u catch ya later
[Child A]: at least I wont beat up woman in my life and wont got to jail for bashing police
66Child A’s phone was an ongoing source of disputation right up to the time of the trial. The phone was only restored to Child A during the trial as a result of my intervention and with the assistance of the father’s brother. During exchanges about the phone, the father claimed it was no longer possible for it to be returned, having previously represented to me that he would return it as soon as he had been able to sit down with Child A “and have a bit of a talk about it”.
67At some point after Child A left the father’s home, he returned to the father’s residence with a couple of his mates to retrieve his phone. It seems he broke in and removed another phone instead. After this, the father sent Child A this text:
mate u are a sneaky intrustworthy boy i thought ude no beta all good if u donr return it by 9 am its my phone i bought in my name i have the receipt here or ile have u charged for theft to go along with your assault charge u have and ile call the police in morning as u have admitted you have it on my txt choice is yours return it by 9 or i will call the police your a silly boy
68This was followed by a further message to Child A:
all good mate ile have the police there in morning to get phone and have u charged
ile left message withya mum 9 o clock no phone ile have u charged for stealing off to a good start in life assault charge no report from school and if i dont get phone a stealing charge
69The father also accused Child A of removing $3,000 to $7,000 in coins from a bucket in the father’s wardrobe prior to Child A leaving the father’s residence. The father did not explain why he would have such an amount in coins in his wardrobe, but denied that it was “a lot of money”. The father gave evidence that he had contacted the police although he claimed that he did not want them to “lay charges”. It seems that he nevertheless followed the matter up with the police when they initially did not take any action, but again stressed that he did not really want any charges laid.
70In the meantime, the father was failing to comply with directions to have the matter ready for trial. On 12 July 2016, the matter was set down for hearing in the September 2016 circuit. It was ordered that the trial proceed on an undefended basis if the father failed to file his documents by 12 August 2016.
71The matter came before O’Brien J on 7 September 2016. The father had still not filed his documents. His Honour granted the father a further chance to file his evidence and then listed the matter for trial in the next circuit. His Honour also made interim parenting orders, on the basis that they would be made final if the father failed to file his documents. His Honour found there were reasonable grounds to believe that a parent had engaged in family violence and determined, in any event, that it was not in the best interests of the children for there to be equal shared parental responsibility. His Honour also found that there were “question marks about the capacity of the father in particular to provide for the emotional and intellectual needs of the children”.
72O’Brien J’s orders provided for the mother to have sole parental responsibility and for the children to live with the mother and spend time with the father subject to their wishes and the mother’s consent. Thereafter Child A did not see the father at all.[9] The last time the girls saw the father before the trial was in October 2016.
[9] Except on one occasion when the father tried to entice Child A to visit him when he saw him at a supermarket, after having attempted to entice him earlier by offering to take him out for a Chinese meal.
73The father belatedly filed his affidavit and the matter proceeded to trial over three days in December 2016. At the conclusion of the trial, I made it clear to the father he would not be obtaining the orders he wanted. I regret that due to pressure of work and competing priorities there has been a delay in the delivery of my reasons.
Child A’s school report received after trial
74During the trial, the father said he had recently received Child A’s second semester 2016 report which he found “very, very alarming”, and which demonstrated that Child A had been “spiralling downhill” since returning to his mother. This report was put in evidence; however, in order to consider the father’s claims, I directed the mother to provide Child A’s report for the first semester (for most of which time Child A was living with the father). The mother provided the report after the trial and, as foreshadowed, I have taken it into account.
75Examination of the reports shows virtually no change in Child A’s attendance. He missed 40 half days in Semester 1, compared with 43 half days Semester 2.[10] The first semester report said Child A had “not worked well” during that semester, although he had “made improvements in some areas”. Similarly, it was said in the second semester report that Child A had “not achieved at [his] best this semester”.
[10] Exhibit 2 revealed that Child A’s attendance in Semester 1, 2015, when he was with his father full-time, was only 76%. That report described his deteriorating conduct after moving to his new High School. While at his new High School, Child A was required to enter into at least two “contracts” to try to regulate his behaviour. The girls’ reports for second semester 2016 showed Child B missed only 12 half days and Child C 22 half days.
76Contrary to the father’s theory, the Semester 1 report was replete with complaints about Child A’s bad behaviour and lack of self-restraint. Exhibit 1 also detailed 22 separate days prior to Child A’s departure from the father’s home on which he was given detention or otherwise had negative behaviour recorded during 2016.
77Interestingly (given that he moved to his mother on 26 May 2016, and the Semester 1 report was dated 28 June 2016) Child A’s Humanities and Social Sciences teacher commented that:
[Child A] often does not come prepared for class and is both easily distracted and a distraction to others, however his behaviour has improved significantly in recent weeks.
(Emphasis added)
78The Health and Physical Education teacher also commented in the Semester 2 report:
[Child A] had a slow start to the year with very little work getting completed and a lot of disruption being created. Happily, as the year progressed it seemed he gained in confidence, engaging in class discussions and realising that he had quite a good understanding of the subject. If he maintains his current improved worth ethic, his grades will improve in Health Education. Well done [Child A].
(Emphasis added)
79While there were plenty of remarks in the Semester 2 report (and Exhibit 1) about Child A’s bad behaviour and lack of application during the time he was with the mother, the father’s interpretation of the Semester 2 report illustrates the hyperbole that permeated his entire case. The report also corroborates the mother’s evidence that she had been told at the parent/teacher meeting how Child A was engaging better at school after his return to her, and that a marked improvement in his appearance and attitude had been detected.
80The father’s interpretation of the Semester 2 report also illustrates his inability to understand the cumulative and long-lasting effects on the children of his violent and abusive behaviour toward the mother and the children. Sadly, it is very likely Child A will continue to get into trouble at school and possibly in the wider community while living with the mother. I have no doubt the father will blame this on the fact that Child A returned to his mother. In my view the reverse is true – Child A’s only chance, slim though it might be, of not “spiralling” further out of control will come from being in his mother’s care.
81Child A’s terrible school reports stand in stark contrast to the girls who have spent much more time living with the mother. Child B’s end of 2016 report noted:
[Child B] has been relentless in her pursuit to improve her grades this semester. She begins all tasks set promptly and is able to work independently and complete them within the given time allocation. [Child B] takes great pride in the presentation of her work and is always presented beautifully.
82After many more flattering remarks, the report concluded “[Child B] has been a pleasure to teach this semester and is wished every success in Year Five”.
83Similarly Child C’s report read:
[Child C] continued to work hard in all areas throughout Semester Two. She would begin tasks quickly and showed great pride in her finished work. [Child C] is a very capable student, but she was often easily distracted from her current task …. [Child C] is to be commended for all the effort, care and hard work she has demonstrated this year.
84I am persuaded that not only does the mother provide a far more conducive home environment for the children, but that she has a genuine interest in their education, unlike the father whose interest seemed to the Single Expert (and to me) to be more directed to impressing principals, teachers and other parents in order to gain kudos which he hoped would be of use to him in his battles with the mother.
The Single Expert and the deficiencies in his reports
85[Mr Y] was appointed as the Single Expert Witness in January 2016. He provided three reports (in April, September and November 2016).
86Mr Y, who is a social worker, was cross-examined by telephone. Although I accepted his opinions, the presentation of his reports was unsatisfactory. In particular, there was a complete failure to comply with Rules 15.62 and 15.63 of the Family Law Rules 2004 (Cth). Although it was therefore open to me to refuse to take the reports into account (Rule 15.64), it was also open to me to simply take the non-compliance into account when considering the weight to be given to the evidence. I have elected to follow the latter course, as Mr Y had valuable evidence that assisted me greatly.[11]
The Single Expert’s first report
[11] In future, Mr Y should perhaps seek advice from the ICL (if there is one) about the best way to comply with the Family Law Rules; the proper presentation of his reports; and the drafting of the affidavit by which the reports are verified.
87The Single Expert’s first report of 4 April 2016 provided an overview of his meeting with the mother and the girls at the mother’s residence in late February 2016, and his later meeting with the father and Child A at the offices of the ICL.
88In relation to the meeting with the mother and the girls, the Single Expert reported that, at different times, the maternal grandmother, the mother’s brother, and Child D and Child E were present. All of these people (other than the uncle) gave evidence. The Single Expert also spoke with a police sergeant;[12] the Registrar of Child A’s school; and the mother’s therapist. None of these people were called to give evidence, though there was an old report from the therapist attached to one of the mother’s affidavits.
[12] Who has supported the mother over a considerable period with family violence issues.
89The fact that the expert obtained information from third parties who were not witnesses is of concern, especially in light of the prejudicial information conveyed by the police sergeant, who clearly has a poor opinion of the father.[13] However, I accept the expert’s evidence that he did not place much weight on the information given by the sergeant as his report was primarily based on what he learned from speaking with the family, including the children who passed on some of the same information. However, to avoid any possible doubt, it is important to stress that while I accepted the opinion of the expert, I arrived at the same opinion as he did, independently of his report. I did so on the basis of admissible evidence given directly to me, as well as taking into account the evidence of the expert about what the children had told him.
[13] It was initially expected that the police sergeant would give evidence.
90The Single Expert had intended to see the father and Child A in the father’s residence, but this arrangement fell through. I do not intend to go into the detail of how this came about, but I am satisfied that the father acted unreasonably in going camping and not waiting for the expert. This is of some significance in light of the father’s complaints about the expert having met with members of the mother’s family, but not having met with his family. Had the interview taken place as planned, the expert would also have spoken to the father’s family had they been present in the same way he did with the mother’s relatives.[14]
[14] The father later complained to the Single Expert about him not having contacted a list of witnesses provided by the father, but I accept the expert’s evidence that he did not undertake to contact these people, nor was he under any obligation to do so. He had also read the affidavits of the father’s witnesses.
91After the first arrangement for the father and Child A to meet with the Single Expert did not eventuate, the father informed the expert that he did not think it would be worthwhile them meeting due to the expert’s “aggressive” attitude. It was only as a result of the ICL’s intervention that arrangements were made for the father to bring Child A to Perth to see the expert. During the father’s cross-examination of the expert, it became apparent that he had secretly tape-recorded their interview. The father confirmed this was the case.
92The father told the Single Expert during one telephone conversation that he was a “weak prick”. The expert gave evidence that after he told the father that any further contact would need to be made via the ICL, the father sent “an abusive text making comment upon my general demeanour, physical appearance and my role in interviewing children”.
93The Single Expert said he believed that the father would benefit from a program such as “Changing Tracks”, or from having “one to one work with a counsellor”. He recommended in this first report that the girls should remain with the mother and spend time with the father only during school holidays, provided the father agreed to attend “Changing Tracks”. The Single Expert recommended that Child A be given the opportunity to live with either parent, but if he chose to remain with his father he should have the opportunity to visit his mother and sisters weekly. He also recommended that “the children be at liberty to contact one another with parental support on a twice weekly basis”.
The Single Expert’s second report
94In preparation for the trial that was due to take place in September 2016, the ICL requested a brief updated report from the Single Expert. This was important as circumstances had changed as a result of Child A having moved back to live with the mother in May 2016.
95In his second report, dated 5 September 2016, the Single Expert said that Child A had told him he had left the father’s residence because he wanted to have his hair cut short, but his father told him that he would look “gay”. When the Single Expert suggested to Child A that a “haircut was important but not that important”:
[Child A] became markedly quieter and provided only one word answers. I posed the following to [Child A], “it must be difficult talking about your Dad to me, especially if you don’t feel okay about what has happened”. Reply Yep. “It must be tricky for kids if they don’t feel safe with a parent and have to move away”. Reply Yes. How did it feel to be able to ring Mum and ask her to come and get you? Reply, good.
96Child A reported that he had not spent any time with his father after moving back to the mother, and that he only wanted to telephone the father “whenever he wants to”.
97The balance of the report was taken up with a recitation of what the expert had been told by the mother, without any indication that the expert had spoken to Child A about these matters.[15] In any event, evidence was given later regarding Child A’s concerns about sleeping alone and his anxiety about his personal security after returning to his mother’s residence. The mother also reported to the Single Expert that since Child A had returned home, there had been a number of outbursts by Child A involving him threatening, name-calling and putting down his sisters. This was said by the mother to have arisen out of Child A being asked to do a job or follow rules. The expert also recorded the mother’s advice to him that Child A had, at times, threatened self-harm.
The Single Expert’s third report
[15] This was presumably because the interviews took place by telephone and the expert spoke to Child A first.
98The Single Expert met with the mother and the children at the offices of the ICL prior to providing his third report, dated 22 November 2016. Child A and Child B elected to be interviewed together, while Child C wanted to be interviewed alone. Although the expert was criticised by the father for interviewing Child A and Child B together, the reasons he gave for doing so were convincing. The children took comfort from being together in circumstances where the expert reported that they were both worried about the repercussions of speaking about their father.
99The Single Expert reported that Child A appeared “to have a happier more thoughtful demeanour about him and was more forthcoming with what he wanted to say”. He also reported that Child B “has quite an assertive manner … and is able to articulate her feelings and beliefs well”. When asked why she thought they were being interviewed again, Child B told the expert that there “had been difficulties between her parents and the judge wanted to make sure that they were going to be heard”.
100The Single Expert also reported:
[Child A and Child B] were worried about telling me things previously as their father would find out. When I explored this issue further, both children stated that their father would be angry at them. [Child A] stated that he gets scared when his father gets angry and believes he has no self control. [Child B] informed me that her father does not take care of them and is not interested in them when they stay. She also felt scared when he was angry.
Both [Child A] and [Child B] informed me that they worried about their mother as their father and the court case is very stressful for her. [Child B] further stated that her father has told them that he will move away if the court case does not go well.
…
[Child A said] his father made him say ‘all that stuff’ about his mother and believes that his father remains angry at what has happened. [Child A] clarified that he was referring to the time when he informed me he wanted to live with his father and told me about the fights he was having with his mother.
[Child B said] she felt scared when her father had his friends over during the evenings and there was a lot of drinking, bottles being smashed and vehicles doing burn outs on the road. [Child A] stated that his father’s friends where [sic] members of a [Suburb A] based motorcycle gang.
[Child A] and [Child B] worry about [Child C] who they believe is treated badly and differently by their father and paternal grandmother. When I asked them to explain this further, [Child B] stated that her father does not believe that [Child C] is his daughter and that was the reason why he treated her differently. I asked the children what they meant by differently, [Child A] stated that his father was just mean to her telling her she eats too much.
[Child B] stated that she gets very upset when her father speaks badly of her mother and her family and used the example of hearing her father say ‘mum should jump off a the Gap’ [the Single Expert explained that The Gap is a local landmark at which many people have committed suicide].
…
There appears to be a marked negative change in the relationship between [Child A] and [Child B] with their father. Both children have expressed their concern at their father’s anger, the difference in his demeanour whilst amongst other people Vs when he is alone with them and the way he speaks about their mother.
[Child A] in particular has changed his view of his father and he spoke of a number of things that had happened to him which changed his view. [Child A] states that he and his father had an argument about his wanting to get a hair cut, with his father saying no as he would look ‘gay’. [Child A] also is very upset by his father taking his mobile phone prior to him returning to his mother after the recent school holidays. [Child A] informed me that he had been arguing with his father who then twisted his arm and removed the phone from him and threatened to smash it with an axe.
When I raised this issue with [the father], he stated that he was disciplining [Child A] as there had been a number of confrontations between the two of them including [Child A] getting into trouble at school and not fulfilling his homework/school behaviour chart.[16]
…
[Child A]’s relationship with his mother appears to be quite positive and he has informed me that he feels better and safer living with her. [Child A] further stated that nothing goes wrong at mums; he gets to do fun stuff and is allowed to have his friends around. Similarly, [Child B] has changed her view regarding where she would like to live, which I believe is a positive reflection on her relationship with her mother.
[16] Yet when asked in cross-examination what he had done at home to assist [Child A] with his academic difficulties the father said, “well we don’t really do a whole lot of school work at home to be honest …because I’m one these that I believe that they go to school for eight hours a day and he’s never ever brought work home and stuff home and anyway he wouldn’t do it anyway and if he did bring it he still does and he never has and to me this is a problem that needs to be addressed at school”.
101The Single Expert expressed the opinion that:
Although the children are physically safe living with their mother I believe there is a significant element of stress in their lives which stems from the ongoing legal dispute between their parents and [the father’s] negative behaviour towards them and their mother.
…
I believe [Child C] has been affected to a lesser extend [sic], possibly due to her age and not having been exposed to or aware of some of the issues ... [She] indicated that she likes to see her dad, enjoys watching the footy and riding the motorcycle at the block. [Child C] did however state that she worried about her grandmother because of the fighting
…
[Child C] appears to hold a different view to that of her older siblings and indicated that she enjoys visiting her father as she likes riding the motorcycle, visiting her uncle’s block of land and playing with the dog.
102The Single Expert said he had asked the father whether he would be prepared to undertake a parenting program, but the father said he had completed programs and there was no need for any more. The expert observed that his experience with the father “indicates he uses various strategies to achieve his own means”. He recommended that the father be referred to a “forensic psychologist/psychiatrist for assessment with the view of qualifying any diagnosis and potential risk he presents to the children and [the mother]”. The expert otherwise recommended that the children live with the mother and that they should visit their father only if they express a desire to do so – and even then visits should be during daytime only.
The law
103These proceedings are governed by the Family Court Act 1997 (WA) (“the Act”), which makes the children’s best interests the paramount consideration.
104In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests are met by:
(a)ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests;
(b)protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(c)ensuring they receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
105Section 70A(1) requires me to apply a presumption that it is in the children’s best interests for their parents to share parental responsibility equally. The allocation of parental responsibility does not govern the time the children will spend with each parent. However, if an order is made for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time or, failing that, “substantial and significant time”, with each parent would be in the children’s best interests. If either alternative is in their best interests, then I must consider making such an order, provided I have found the arrangement to be “reasonably practicable”.
106In determining what is in the children’s best interests, I must consider the matters in s 66C. These are divided into “primary considerations” and “additional considerations”, but the law is now well settled that the “primary considerations” do not necessarily outweigh any combination of the “additional considerations”.
107The Act has been amended since proceedings first commenced in December 2011. An issue arises as to whether those amendments apply or whether I am required to apply the law as it was when the litigation started. I did not have any submissions on this issue and it is unnecessary to analyse the matter in detail because the outcome would be the same regardless. In my consideration of s 66C, I have used the factors which apply to proceedings commenced after the amendments.[17]
Primary considerations
[17] In my view, the amendment to the Act inserting s 66C(3A), which states that the second “primary consideration” in s 66C must be given greater weight, should be treated as a statement of the obvious, namely that the protection of children from physical or psychological harm should always be given priority.
108I will address the primary considerations first.
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
109I have no doubt there are great benefits to the children of having a meaningful relationship with their mother. She is focused on their well-being and has been their primary caregiver. She is a stable and steadying influence.
110I have no doubt that the children would like nothing more than to have a meaningful relationship with their father. While he is capable of having a good time with them, the father’s conduct toward their mother and sometimes toward them has been damaging. The children currently have an ambivalent relationship with him. In my view, they pine for the good times that they shared but also recognise, especially after they have spent time with him, how problematic his behaviour can be and how sad and scared this makes them feel. Overall, I consider that the benefit to the children of having a meaningful relationship with their father is outweighed by the importance of protecting them from the harm that often arises when they spend time with him.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
111The father has engaged in coercive, controlling and abusive behaviour toward the mother and children over many years. Apart from his physical and verbal abuse of the mother, I accept that the father has damaged every vehicle she has ever owned (sometimes when children have been in the vehicle and sometimes when they have been observing).
112In my view, all five of the mother’s children have suffered psychological harm as a result of their exposure to the father’s violence and abuse and the ongoing conflict between the mother and father. This is likely to be one of the main reasons for Child A’s poor behaviour and also for Child B’s nightmares and long-term self-harming, including her habit, developed very early in life, of twisting her hair until she was almost completely bald on one side of her head. It would seem the child least damaged by the father’s behaviour has been Child C who has had significantly less involvement with him than the other children.
113I accept that the mother remained in the relationship for as long as she did because of the father’s manipulative behaviour and because she considered this was the best way to keep her and the children safe. The father’s manipulation has included his efforts to drive a wedge between the mother and her friends and between the mother and the children.
114I accept that the father has not been charged with any offences arising out of his conduct towards the mother but that is far from conclusive.[18] As I have mentioned, the father is skilled at deflecting accusations. The difficulties the police would have had in resolving issues in this family are well illustrated by Exhibit 4, where the police recorded what happened when the father called them on 18 March 2011:
Police have attended in relation to complaint from [the father] that he had attended [the mother’s home] to collect his children from his ex partner … Whilst standing at the door an argument has ensued and [the father] claims that [the mother] has attempted to slam the door on him at which point he put [his] arm out to stop this and has accidentally hit the door and caused minor damage to the leadlight glassing.
Police have spoken with [the father] and attempted to explain that they needed to speak with [the mother] prior to making any decision on criminality by either party. [The father] was agitated and verbally abusive towards Police. ([The mother] and children NOT present at this point). [The father] stated that he would have to do what he did 15 years ago and speak with a friend that would go above Police and take action.
Repeated efforts made to communicate with [the father] however he refused to listen and drove from location.
During a conversation with [the police officer, the father] indicated he had been recording the conversation and relaying it to his solicitor on his mobile phone.
Police then spoke with [the mother] who stated that [the father] had arrived to collect children and argument had taken place at front door. [The father] has become abusive and [the mother] has gone to shut the door and [the father] had stopped it with [his] hand and cracked glass in the process. [The father] has then attempted to walk through [the] door and [the mother] has pushed him away and closed [the] door. [The mother] has stated that in doing [so] she may have accidentally made slight contact to [the father’s] shoulder or head.
Police explained to [the mother] that their [sic] was insufficient evidence to charge [the father] with damage.
[18] The father's convictions for common assault, resisting arrest, damage and hindering police are now historical (June 1991, August 1991 and April 1993).
115The police then issued a 72 hour Police Order and went to the father’s property to serve it. The police record noted that they “again attempted to explain the outcome but [the father] was verbally abusive and slammed [the] door on Police and walked away from [the] door after service was effected”.
116This event followed police involvement on 5 March 2011 when the police reported that a verbal argument had occurred between the mother and the father after the father had “taken offence” when he had seen (in the mother’s own home) a book that had been lent to her by a friend “regarding possessive and controlling males”.
117I do not accept the father’s evidence designed to suggest that it was the mother who was violent. That is not to say that there were not occasions when the mother, out of frustration, fear, or her own lack of self-control slapped or hit the father. I am nevertheless satisfied that she was very much the victim and he the aggressor.
118Both girls reported to the Single Expert when they first saw him in 2016 that they had seen their father hit their mother. Child C stated she had witnessed the father “smack mum around the face and throw rocks” which had led Child C to feel “scared”. Their statements were corroborated by statements made by Child A, Child E, Child D, the maternal grandmother and by medical records. I accept the expert’s view that “the children are at risk of psychological harm given [the father’s] behaviour”.
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
119When Child A first saw the Single Expert in 2016, he explained why he had chosen to live with his father. He told the expert that he “likes living with his father as they get to do good fun things, for example, go camping, go to the beach etc.” The expert observed a number of positive interactions between the father and Child A, which included hugs and play jostling. Child A spoke positively of his father and said he enjoyed living with him. He also spoke positively of his paternal grandparents and said he enjoyed spending time at their beach shack.
120Child A reported to the Single Expert in 2016 that he was, by his own choice, rarely seeing his mother or sisters. When the Single Expert asked Child A what it was like living with his mother, he replied that they “argued a lot and he did not like having to do things”. When the expert asked whether he would like to see his mother, Child A did not respond immediately “but became quiet and appeared to be thinking. Eventually, [Child A] did indicate that he might like to meet with his mother to discuss what had happened”.
121When the girls first saw the Single Expert, Child B indicated that she would like to live with her father. When questioned about this, Child B and Child C both told the Single Expert that “they don’t have to do any jobs at their fathers place and it is good fun”. When the expert asked them about living with their mother, Child B stated that they “have to do jobs like make their beds and clean their rooms”. The girls spoke positively of their father and indicated they enjoyed spending time with him and Child A. Child C was especially keen to visit her father and to play with their pet dog.
122Although Child B said she would like to live with her father, the expert reported that Child B appeared to have “quite a positive relationship with her mother”; she acknowledged that her mother helped her with her homework and that she was “good fun”. Child C also appeared to have a positive relationship with her mother and said that her mother is a “yummy good cook”. The expert observed both girls interacting well with their mother and they also spoke well of their maternal grandmother who lives in Suburb A.
123In commenting on the statements by the children that they would like to live with their father, the Single Expert said in his first report:
I believe [the mother] is in an invidious position where she is the parent that provides most of the day to day steady care for the girls and in the past for [Child A]. This often entails children complying with family rules around chores at home, expectations on behaviours and living the day to day existence which includes getting ready for school, doing homework etc. [The father] holds a different role and relationship with the children which appear to be one based on fun and activities, which for children the ages of [Child B] and [Child C] would be a more attractive option.
124I have already set out above much of what the Single Expert said in his third report relating to the children’s views after he met them following Child A’s return to the mother’s home. The expert summarised the children’s views by saying “they want to live with their mother and visit their father, but only when they want too [sic]” (emphasis added). The Single Expert recognised that this was a “significant turn around for the children”. He expressed the opinion that a number of factors had influenced this change, including Child A’s experience of living with his father, the children’s growing awareness of their father’s behaviour and the older children’s identification of the father’s treatment of Child C.
125I am satisfied all the children want to have a good relationship with their father but all of them, in different ways, have been traumatised by his behaviour toward them and their mother. I am satisfied that the statements made by the children to the expert, as reported in his latest report, are the most accurate evidence of their current views. I intend to give them considerable weight.
(b)the nature of the relationship of the child with –
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)
126I am satisfied the children have a loving relationship with their mother and maternal grandmother. Notwithstanding the father’s repeated extravagant claims that they have lived in an equal shared care arrangement with him for their “whole life”, I accept that the mother has been the primary carer, save for the periods when Child A and Child B were spending longer times with the father after the final “separation”.
127There have been tensions in the relationship between Child A and the mother, and I fear these will continue. I accept Child D’s assessment that while Child A now usually has good interactions with their mother, he can still sometimes be “very ignorant”, even though he is more “settled” since coming back from the father’s place. Sadly, no magic wand can be waved to remove the toxic and long-lasting effects of this young boy’s exposure to his mother being abused and humiliated by his father for almost his entire life. He is very likely, in my view, to “act out” as the mother attempts to have him follow rules and to pursue his education. The possibility of him independently returning to his father following an argument with his mother cannot be ruled out. In my view that would be entirely contrary to his best interests.
128There have also been problems between Child A and his sisters. This is not unusual but is particularly unsurprising in this family given their ongoing exposure to conflict and poor role modelling. However, I accept Child E’s evidence that the children are getting on better now they are all living with the mother and not spending time with the father. I accept Child E’s evidence that when the children used to visit their father, they would come home angry and fight a lot; did not like being around each other; and were “naughty”. Child D also described Child A and the girls as now having a “really good” relationship, although at other times they “annoy each other quite a bit”.
129I accept that Child E and Child A have developed the “very close relationship” Child E described in his evidence. I accept that Child A confides in Child E and I also accept that the two girls have a good relationship with Child E. I am also satisfied that Child A and Child D have the “pretty good relationship” described by Child D, which is now becoming “a grown up relationship”. Child D described Child A as a lot “nicer” now that he has stopped seeing the father. I am satisfied that Child D would also get along well with the two girls, he being a reserved, phlegmatic young man who is happy to keep to himself in his own room.
130Child A’s relationship with his father was at an all-time low leading up to the trial, as can be seen in the messages passing between them. Matters were only made worse on the first night of the trial when the father went to the local park to confront Child A. I do not accept that the father went to the park out of any concern for Child A’s welfare, but rather for the purpose of gathering evidence for the trial. His conduct, and that of the paternal grandmother, was entirely reprehensible. I am far from persuaded that it would be in Child A’s best interest to have a relationship with his father unless his father changes his ways significantly. Regrettably, the most likely way they would reunite is if Child A has a major falling out with his mother, and decides his father’s place is a better option.
131Child B’s relationship with her father is, in my view, a most ambivalent one. She greatly enjoys the activities and treats the father arranges for the children, and wants to have a good relationship with him. However, his behaviour when they are together leads to her being scared and afterwards she often regrets the time they spent together.
132There are also difficulties in the relationship between Child C and the father. She has told a counsellor that her father hates her and that the only times he says he loves her and wants her to sit on his knee is during supervised visits. Child C commented on how her father gets angry when she is naughty and how he also gets angry with his friends. Child C describes her father as a “wizard” who has “magic powers” that makes people do what he wants them to do.
133The father has had much more limited time with Child C than with the other children, although he says this is the mother’s fault. It is apparent the father still does not accept Child C as his daughter and, in the past, has treated her abominably because of this. When the mother was 24 weeks pregnant with Child C, the father told her it was not too late for an abortion. I accept this was said in front of the other children and probably members of the father’s family. The older children accept that the father has treated Child C differently.
134Notwithstanding all of these issues in the relationship between Child C and the father, she nevertheless has continued to express a desire to spend time with him. I am satisfied this is because she enjoys the activities he arranges and the things he promises her – puppies etc. I also accept, as the Single Expert said, that Child C has been affected by the father’s behaviour to a much lesser extent than the older children. I anticipate that Child C will from time to time continue to want to see the father as she will remember the fun times they spent together. I accept that she and Child B have, from time to time, and without their mother’s knowledge, contacted the father to let him know of their affection for him. I accept the Single Expert’s opinion about the likelihood of the children electing to contact whoever they want to contact by social media, especially as they move into their teenage years.
135The father complained in his trial affidavit about his parents not having been able to see the children. I accept the father’s evidence that his parents have had involvement with the children in the past, taking them camping and having sleepovers. There was no evidence of the grandparents having any insight into the appalling behaviour of their son, and they have supported him every step of the way during the proceedings. The paternal grandmother continued to support him in the witness box, even going so far as to defend the threatening text messages he sent Child A, and saying she would have sent something similar.
136The father’s brother, D, is a widower with two children to his deceased wife, as well as a baby to another woman. He describes himself as an “investor”, having previously owned and managed [Company C] stores. One of his children is the same age as Child A and they were previously very close. It seems a great pity that the children have lost contact with this part of the family, but I recognise the difficulties that would arise if an attempt was made to repair relationships with just one part of the father’s family. I would trust the mother to make the appropriate decisions for the children in that regard until the children are old enough to make their own decisions.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity –
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child
137Both parents have sought to participate in making decisions about major long- term issues and both have endeavoured to maximise their time with the children (save for the father’s earlier lack of interest in Child C).
(da)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
138Despite his protestations to the contrary, I find the father has always been reluctant to provide financial support for the children and that the mother has been almost entirely responsible for their maintenance (save for the times when the children have been with the father). When the mother challenged the father in cross-examination about his means of support he explained that he had “cleared $480,000” on the sale of one house but explained that he did not have to pay the mother anything out of this for the support of the children because “it is not income, it is capital”.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from –
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
139The children are currently living with their mother and are obliged to spend time with the father only in accordance with their wishes and subject to the mother’s consent. I accept the opinion of the Single Expert that “any requirement to force the children to visit their father would potentially adversely [affect] their feelings of safety and wellbeing”.
140Clearly, if the children continue not to see their father or his family, their relationship will become non-existent, save for whatever contact the children themselves might make by way of social media, or directly when they are old enough to make their own decisions.
141The dilemma facing the court is that it is very difficult, if not impossible, for the children to enjoy a full range of relationships with their entire family. Notwithstanding all that she has endured, until recently the mother was prepared to go out of her way to support the children’s relationship with the father. However, I accept the opinion of the Single Expert that the father will not support the children’s time with the mother and, to the contrary, he will positively undermine her.
142I also accept the expert’s opinion that there are concerns:
for the children and their ability to hold a positive loving relationship with their mother due to the behaviours exhibited by [the father] … [The mother] will struggle to maintain her relationship with the children if [the father] does not stop undermining her authority and using fun and activities as a means of promoting himself in the eyes of his children.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
143The parents live in close proximity and the only difficulty in arranging for the children to spend time with the other parent relates to the desirability of handovers occurring at a neutral place under supervision. Any other form of arrangement would leave open the possibility of violence, abuse or harassment.
(f)the capacity of –
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs
144I accept the Single Expert’s assessment that the mother “has a very good understanding of her children’s social, psychological and emotional needs”. She provides a safe and stable home. She has been living in her current residence since 2010. The Single Expert described the property as a “very comfortable five bedroom[19] two bathroom home which is adequately furnished”. The mother originally rented the property from her parents, but has subsequently purchased it. The home is close to the girls’ school and within walking distance to parks and shops.
[19] The mother’s affidavit indicates it is a four bedroom home.
145The father can provide for the children’s day-to-day needs, and is especially skilled at arranging enjoyable activities. Nevertheless, I am not satisfied that he provides adequate supervision for the children.[20] I was also troubled by Child E’s description of having regularly seen Child A out on the highway in the very early hours of the morning when Child E was driving to work when Child A was living with the father. Although I am troubled by this evidence, I place little weight on it given this assertion was not put to the father.
[20] See paragraph 376 and following of the mother’s affidavit of 3 July 2013.
146The father’s property is not well suited for children, consisting as it does of a “donga”, with little space for three children (although there is also a shed which serves as a “coffee room/kitchenette”). The father allegedly has a builder drawing up plans for a home, although it is not apparent how this would be funded given his inability to pay child support.
147The imperfections in the father’s accommodation would not be a matter of great concern if the father was capable of properly providing for the children’s emotional needs. But he is incapable of doing this, save for short periods when, for example, he is under observation at Anglicare. This emerges from all of the evidence, including from what the children said on the topic to the Single Expert. I accept the Single Expert’s opinion that the father has very little understanding of what is required of a parent and that “his focus is on the fight with the mother”. I accept his view that the father gives “a very inconsistent message to the children and shows a total lack of understanding of the children’s emotional needs”.
148The father can present as a quite intimidating figure, even to adults, especially when things are not going his way and he slams his fists together in the way he did during the trial. I am convinced that he can at times present to young children, including his own, as frightening, gruff and unsympathetic. I find that his own children’s fears of him come from extensive exposure to his behaviour and not from “brainwashing” or because “everyone has ganged up on me” as he alleged.
149I have not overlooked the evidence which described the father dealing appropriately and affectionately with the children, since I am satisfied that he can do so, when he chooses. For example, he was observed at Anglicare as demonstrating:
a relaxed and affectionate style of physical contact with the children throughout every visit. He often initiated and always responded to the children’s request for physical contact throughout each visit.
The children often sat close to him to play and eat and would sit on his knee occasionally. They hugged him spontaneously and allowed him to touch or carry them throughout the visits.
150Anglicare also reported that their staff had “observed signs of strong bonds” between the father and the children. The staff noted that at the commencement of the visits, the children had “initially expressed some concerns and a level of hesitancy around contact with [the father]; however signs of improvement were observed through some of the childrens’ comments”. Anglicare also observed the father “being responsive at a moderate to high level in addressing the emotional needs of the children during visits”.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
151The mother, and hence the children, have [Country A] heritage. This is relevant to one issue I will discuss later.
(h)if the child is an Aboriginal child or a Torres Strait Islander child …
152This factor is not relevant.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
153The mother arguably showed poor judgment by remaining in an abusive relationship for a long time. However, the difficulties of leaving such a relationship cannot be underestimated, and the mother now sensibly accepts that it was a “huge mistake” for her to have had children with the father. I accept that otherwise the mother has displayed a good attitude to her responsibilities as a parent.
154At many times the father has behaved well toward the children and given them a lot of fun and enjoyment. I also accept that the father has had significant involvement at the children’s schools, including volunteering in the classroom and canteen and attending numerous school excursions.
155Mr L, the Principal of Primary School A reported that the father:
has been a very supportive parent of the school and appears to have enjoyed a positive relationship with both [Child A] and [Child B]. From what I have seen of the interaction between them the relationship has [been] mutually beneficial.
156Notwithstanding these more positive (public) manifestations of the father’s capacity as a parent, he has displayed a poor attitude to the responsibilities of parenthood. This commenced at a very early stage in the children’s lives. I accept the mother’s evidence that from the time Child A was about eight weeks of age (and being breastfed) the father commenced taking him from her, and driving away in his car, often in the process saying degrading things to the mother and telling her to do them a favour and “go kill yourself”. The father would also tell the mother “you’re lucky to have someone like me in your situation, a single mother with two kids to two different fathers”. He would also say things like:
What the fuck would I want to have kids with a cunt like you for? You’re nothing but a flea or a tick or a parasite. You’re nothing but a fucking fat ugly lazy cunt.
157This became the pattern in the interactions between the parents. The father would abuse the mother and threaten to take, or actually take, the children from her. This would sometimes occur when the mother threatened to end the relationship because of the father’s failure to provide her with any financial support. On these occasions I accept that the father would, in the mother’s words:
take off with the kids in the car and drive off really fast doing burnouts and driving dangerously. He would then call me repeatedly abusing me whilst the children with in the car listening to the abuse … He did it to hurt me and caused me extreme anxiety and frustration and fear…
158In October 2011, the father took the children to [Country Town B] without the mother’s knowledge, and did not return them for five days. On another occasion the father kept the children longer than he was meant to during the holidays and as a result they stayed away for 12 days, having until then never been away from the mother longer than a weekend. I accept that it was around this time that Child B started pulling her hair out again and would not sleep in her bed when she returned home.
159In my view, the father has failed in the fundamental obligation of a parent – that is to give children a sense of safety and security. As a result, Child A has come dangerously close to “going off the rails” altogether, and Child B has a range of serious emotional issues which I fear will plague her for the rest of her life. In my admittedly unqualified assessment, Child E in particular of the two older boys has suffered from his exposure to his step-father’s conduct.
(j)any family violence involving the child or a member of the child’s family
160I accept the mother’s evidence that the father can appear charming, which he was to her in the early stages of their relationship, before he became “increasingly aggressive and controlling”. I accept her assessment that after the happy early days, the relationship became “dysfunctional and marked by violence”. I accept her evidence that the father struck her on numerous occasions, spat at her, pushed her, choked her and damaged property.
161I accept that the father was violent toward Child E and to a lesser extent Child A. The worst incident involving Child A was probably the occasion when the father “flogged” him after an incident between Child E and Child A. Child A ended up cowering in the corner of his bedroom, pleading with his father to stop hitting him, which he did not do until the mother intervened. On another occasion the father “flogged” Child A when he was at the father’s place after Child A had driven a vehicle, in which Child B was a passenger, into a tree. I accept that the children were very distressed when reporting this incident after they returned home.
162The father has not been anywhere near as violent toward Child B and Child C, but I accept that he has, at the very least, inappropriately hit them on their buttocks and legs. Child B saw a General Practitioner after Child A went to live with the father in 2014. The GP listed a large number of very concerning physical and psychological problems Child B was said to be experiencing. It is not apparent whether this information was provided by Child B herself, by the mother, or by both of them but I have no reason to doubt the accuracy of the list of ailments compiled by the doctor.
163The GP recorded that Child B had stated that “dad punches his fist into [his] hand and tells us we’re going to get a hiding even though we haven’t done anything wrong”. She was also reported as alleging that the father was “constantly saying negative things about Child B’s mother and her family”. The GP observed that Child B was “constantly fidgeting with [her] hair” and that there was evidence of “chronic scratching of [her] right hand”.
164The GP referred Child B to a psychologist for consideration of “depression”, “anxiety disorders” and “unexplained somatic disorders”. The GP informed the psychologist that Child B was not happy spending 50/50 time with the father, noting that the “paternal grandmother [is] mean to her and father favours her 12 year old brother”. Child B also reported that her father had “belted her with a belt for minor behavioural indiscretions”.
165The psychologist to whom Child B was referred reported, after first seeing her in late 2014, that she appeared to be “suffering from a highly significant degree of stress as the result of witnessing violent domestic conflict”. He observed that Child B’s “hands are scarred from constant scratching or picking”. Although he described her as presenting as a “bright, happy and outgoing girl”, the psychologist reported Child B as reporting “alarming” incidents of domestic violence perpetrated by the father against her mother.
166I find that the father commenced his violent conduct from an early stage in his relationship with the mother. The mother presented at a Suburb A doctor’s surgery in May 2002 when she was 33 weeks pregnant and was noted to have:
a chip to her right lower incisor tooth and a haematoma on the right side of her neck.
167This was observed to be consistent with the history she gave to the doctor of having been assaulted by the father.
168The mother’s doctor wrote on 13 December 2011:
I have known [the mother] for almost 20 years and have seen her change from a well adjusted, confident teenage mother to an anxious, depressed person showing a lot of negativity - almost resigned to her status in life.
I feel the ongoing stressful situation with her partner has significantly contributed to her deterioration of her health - she has issues of anxiety, depression, insomnia and dyspepsia.
169The father’s violence toward the mother and the rest of the family is a matter on which I intend to place considerable weight.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family — any relevant inferences that can be drawn from the order, taking into account the following –
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
170A restraining order was made against the father on 17 February 2012. On 21 February 2012 the father was served with the order at the Suburb A police station. He was noted as being “uncooperative with Police and walked away without paperwork. Serving officer served paperwork at vehicle”.
171It is not helpful to draw “inferences” from the restraining order proceedings given the wealth of evidence that I have relating to the father’s violent conduct. I have not overlooked the fact that the violence restraining order was cancelled.[21] I have also not overlooked the fact that the learned magistrate had a different view of the credibility of the parents than I have.[22]
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
[21] Nor have I overlooked the mother’s evidence that she had advice from Legal Aid relating to appealable errors said to have been made by the magistrate who cancelled the order.
[22] The issue involved in the relatively short restraining order trial was far more limited than the wide range of issues that were canvassed before me over three days.
172I regard this factor as being one of considerable significance. I accept that the mother has been re-traumatised by the necessity to relive the events of her relationship with the father and that these proceedings have been a serious distraction from her primary task of caring for the children and furthering her own future by obtaining qualifications. It would be contrary to the best interests of the children for there to be any further litigation.
(m)any other fact or circumstance that the court thinks is relevant.
173Child A is a talented footballer and was selected for the [Suburb C] Development Squad. The father claimed that he had been dropped from the team as a result of the mother not letting him attend games. The mother said Child A had dropped out of football because the father’s family was always there when he played. I also accept the father did not ensure Child A received his football gear when he left his home. Given that Child A struggles with his studies, I consider it highly desirable that he be given every opportunity to excel in areas in which he is proficient. I would hope that it is not too late for some arrangement to be made for him to resume his footballing career.
174The only other matter I should mention relates to the parties competing accusations about drug use. I am satisfied that both parents have used illegal substances. There was very little evidence to suggest that the mother now consumes drugs. There was more evidence to suggest that the father uses drugs and consumes alcohol to excess but I do not consider it necessary to make a definitive finding.
Who should have parental responsibility?
175The presumption in favour of equal shared parental responsibility does not apply because of the presence of family violence. I accept the submission of the ICL that it would be inappropriate for the parents to share parental responsibility given their inability to communicate, let alone reach decisions jointly. The mother can be relied upon to make appropriate decisions about long-term issues concerning the children and I intend to make an order for her to have sole parental responsibility.
176I accept the ICL’s view that the mother should inform the father about significant issues concerning the children’s health and education, but I do not propose to make an order to that effect, which would leave open the possibility of the father initiating contravention proceedings. I am satisfied the mother would ensure the father is kept properly informed.
With whom should the children live?
177As I have not ordered equal shared parental responsibility, it is unnecessary to consider any proposals for the care of the children other than those advanced by the parents and the ICL. It follows from all of the findings made above that I have no hesitation in concluding that the best interest of the children will be served by them living with the mother.
What time should the children spend with the father?
178It would be contrary to the interests of the children to spend any time with the father, save possibly for supervised time. If the children were to resume visiting the father unsupervised, he would immediately again begin undermining the mother, putting their important relationship with her at risk. He would also be highly likely to continue to behave in the same way he has behaved in the past, thereby putting the children’s physical and psychological welfare in jeopardy. My conclusion that it would not be in the interest of the children for them to have unsupervised time with the father is in accordance with the views expressed by the Single Expert and the recommendation of the ICL.
179Although it was not proposed by anybody, I have carefully considered whether there should be an order for the father to spend supervised time with the children. Supervision would remove some of the risks that I have identified, but in my view even supervised time would be contrary to the best interests of the children. The father is a law unto himself, and will say and do whatever he wishes regardless of what a supervisor might instruct him. In particular, the father would use supervised visits to undermine the children’s relationship with the mother and also to entice them to spend unsupervised time with him or to feel guilty about not doing so. I am convinced that what these children need is the break from the father sought by the mother and recommended by the ICL. I also accept the evidence of the Single Expert that the children found the supervision centre to be “boring” and would likely be resentful of having to return to that environment.
180I have also considered whether it would be appropriate to make an order for the children to spend time with the father in accordance with their own wishes. Child A’s age, lack of self-control and strength of personality are such that he is likely to attempt to do what he wants regardless. If for some reason he wanted to see his father, then he would probably make his own arrangements regardless of what his mother might try to do. In the case of Child B and Child C, I consider it highly likely that at some point they will express a wish to see their father, but I am firmly of the view that the mother should not be obligated to abide by their wishes, unless she herself determines that it would be in the interests of the children. This is not a case of me delegating to the mother the authority of the court to determine the time the children should spend with their father, but rather an acceptance by me that the mother has the best interests of the children at heart, and is the person best placed to determine whether it would be good for them to see their father (and if they do commence seeing him, whether they should continue to do so).
181In arriving at my decision, I accept the opinion of the Single Expert that the children should not be caught up in the “politics” of the situation in the way that they would be if their time with the father was subject to their wishes. In my view it is better, as the Single Expert said, that the children are made aware that the decision has been made by a “caring adult”, as this would operate as a “circuit breaker” for the children. I have no doubt the father will be sceptical that the mother would ever allow him to see the girls without a court order, but her conduct satisfies me that she would allow this if it was not going to be unduly damaging to the girls.
Should the father be permitted to communicate with the children?
182If the father were permitted to communicate with the children without being invited to do so, he would put pressure on them to visit him and seek to make them feel guilty for not visiting. I consider it would be in the interests of the children if the father were permitted to send them a gift and a card on their birthday and at Christmas, but otherwise not to communicate with them unless in response to a communication from the child. Difficult as it would be for the father, I consider it would be in the interests of the children that he not tell the children he misses them or that he wants them to visit him or that he has acquired puppies or other inducements. Instead, the father should only enquire after their activities and well‑being and encourage them in their endeavours. He should also be permitted to advise them of activities in which he and his family have been involved, but without giving notice of planned future activities as this would be a means of seeking to induce the children to visit.
183I accept the concerns of the ICL relating to the way in which the father would be likely to manipulate communication with the children and I therefore consider it imperative that the mother be permitted to monitor those communications.
Should orders be made to keep the father away from the children?
184Suburb A is a small town, and I recognise that there is considerable scope for the father and children to be in the same vicinity. Nevertheless, I consider it is in the best interests of the children for the father not to approach the children as they would potentially find such a meeting to be confusing and/or distressing. If the mother was in the vicinity at the same time, there is also the likelihood of confrontation.
Should orders be made for the father to attend any programs?
185I consider the father needs to reflect on his past behaviour and all of the damage that it has caused. While I have considered the evidence of the availability of programs which might assist him to turn his life around, I do not see any point in mandating his attendance. First, I am not satisfied that the father would attend if ordered. Secondly, if he did attend, he would be capable of giving the impression that he has taken on the knowledge and skills taught while not necessarily moderating his behaviour. Thirdly, I consider that the father’s behaviour is so deeply ingrained that it would be unlikely that any program could make a sufficient difference to his conduct as to make it appropriate for there to be an order in the future for him to spend time with the children.
Should there be parentage testing for Child C?
186The ICL suggested that I should order the father to undergo parentage testing to settle the issue of Child C’s parentage, as this would then allow the father and his family to determine what sort of relationship, if any, they wish to have with her. I do not propose to make such an order. The court has already made an order for parentage testing and the father elected not to comply with it. His evidence was that he was prepared to proceed on the basis that he is Child C’s father. There was no evidence to persuade me that it was likely that anyone other than him is Child C’s father. I would also be concerned about the impact on Child C if testing were undertaken, and if it was discovered that the father is not her biological father. That information would likely, in my view, get back to Child C and I have no evidence to assist me to understand what impact that might have on her.
Should the ICL explain my orders to the children?
187The ICL advised that she was prepared to explain my orders to the children. The mother was agreeable to this, and is prepared to bring the children to Perth for that purpose. The consequences of the orders are grave and I also accept it is difficult to know how Child B and Child C will react when informed. In my view, there will be advantage in having the ICL inform the children of the outcome rather than leaving this to the mother. The ICL has considerable experience and will be able to explain the outcome in an age appropriate fashion. She will also be able to gauge the initial responses of the children which may be of assistance in discussing with the mother strategies about future management of issues likely to arise.
Should an order be made relating to the children’s passports?
188The mother wishes to be able to travel overseas with the children if the opportunity presents itself in the future. She predicts that the father would not be prepared to sign the documents to ensure passports could be issued to the children.
189In my view, international travel would be of great advantage to the children, noting their Country A heritage. The mother does not have any close family overseas. She is not a “flight risk”. I therefore propose to make orders that will ensure she can obtain passports for the children without needing the father’s written consent.
Should an order be made restraining the father from commencing further proceedings?
190The mother is most anxious to avoid further proceedings. This is understandable as I accept that it has been debilitating for her having to relive all of the matters to which I have referred. Regrettably, the preconditions for making an order preventing further proceedings have not been established. However, the orders I propose to make will not be subject to any variation unless the father is able to establish a significant change in circumstances. It is difficult to imagine him being able to cross that threshold in the foreseeable future. In the event that he was to institute proceedings improperly it would be open to the mother to seek to have them dismissed summarily.
Should an order for costs be made?
191Although both parties were self-represented at trial, each had legal advice at various stages. The mother also drew attention to the fact that she had to agree to a caveat being registered over her property to secure some of the costs of the ICL and of the Single Expert. She also complained that the conduct of the father delayed the progress of the matter and increased her costs. These are not issues I can determine in this judgment. My orders therefore provide a timetable for the filing of costs submissions if either party wishes to pursue an application for costs.
Application to reopen
192On 13 March 2017, the court received an application from the father seeking leave to reopen to adduce further evidence. The application was supported by an affidavit in which the father complained that, after the trial, the mother had ceased offering him time with the children in the way that she had previously done during school holidays. He said:
I believe that [the mother] is not allowing the children to see me or to contact me. I further believe that [the mother] is punishing the children if they speak of me or asked to see me.
193The father deposed to the fact that, from 11 February to 14 February 2017, Child B had sent him a number of messages which then ceased and he had not heard from her again. The messages, as described in the affidavit, were affectionate ones, saying that Child B loved him and missed him and would love to come to visit him, and that she cries sometimes because she cannot see him. She said that she had asked to see her father, but had been told she was unable to do so “about 110 times”, that she is smacked by her mother almost every day and that she wishes to live with the father. The father asked that the messages be taken into account as evidence.
194I have decided to allow the father’s application to reopen and have received the messages into evidence. Recognising there has not been any cross-examination, I am prepared to accept the messages were sent by Child B. I note that in the first exchange of messages, the father said to Child B “i hope u can see me soon the man in court said u can come to c me or stay with me wenever u want to u have to ask mum coz u are alloud to”. Child B’s response to that was sent later on the following day and simply said “Love you daddy” with some “heart” images. The father then prompted Child B by saying “have u told mum u wana come c me”. It was only then that the father obtained the response that he was looking for, namely “Yes many times but she said no about 110 times but I would love to come over to you house”.
195I am not sure what the father thought that Child B might say in response to his messages prompting her to visit him. He is clearly unable to appreciate that a young child like Child B may be willing to engage with him using social media but is not going to be able to say he sometimes scares her and makes her feel sad. Nothing in the father’s affidavit persuades me that I should make different orders than the ones I have foreshadowed.
Correspondence from mother after the trial
196The mother has written to my Associate since the trial to request that an order be made preventing the father’s relatives from attending at the children’s school. She understandably wants the children to “attend school in a stress free environment” and does not want “their education and socialisation” adversely affected.
197Although I am aware of the correspondence, it cannot be taken into account. Further, if any order is sought against third parties it would be necessary for proper notice to be given to them. Now that the mother has a final order for sole parental responsibility she can request the girls’ school not to permit the father’s family to attend assemblies and other events. It will then be a matter for the school to resolve the situation in consultation with the mother.
Orders
198I propose to make the following orders:
1.The mother have sole parental responsibility for [Child A] born [in] 2002, [Child B] born [in] 2007, and [Child C] born [in] 2009 (“the children”).
2.The children shall live with the mother and spend only such time with the father as the mother deems appropriate.
3.The father be permitted to send the children a gift and a card on their birthday and at Christmas, but otherwise the father be restrained and an injunction is granted restraining him from communicating with the children unless in response to a communication from one of the children.
4.In communicating with the children, the father shall be permitted only to enquire after the children’s activities and well‑being; encourage them in their endeavours; and advise them of events and activities in which he and his family have been involved.
5.To ensure compliance with Order 4, the mother be at liberty to monitor all communications between the father and the children.
6.The father be restrained and an injunction is granted restraining him from attending at any premises where the mother lives or works, or approaching within 100 metres of the nearest boundary of those premises or in any event coming within 100 metres of the mother other than with the mother’s written consent, and in the event he finds himself inadvertently within that radius he shall promptly remove himself from the vicinity.
7.The father be restrained and an injunction is granted restraining the father from attending at the children’s schools or coming within 100 metres of the children without the mother’s written consent and in the event he finds himself inadvertently within that radius he shall promptly remove himself from the vicinity and shall not seek to communicate or engage in any way with the children.
8.The mother and the father be restrained and an injunction is hereby granted restraining them from abusing, insulting or denigrating the other in the presence of or within the hearing of the children.
9.The mother be permitted to obtain passports for the children which she may retain in her possession and the need for the father’s consent to the issue of the passports be dispensed with.
10.The Independent Children’s Lawyer is requested to inform the children of the outcome of these proceedings and for this purpose, if requested by the Independent Children’s Lawyer, the mother shall bring the children to Perth for that purpose.
11.The mother be at liberty to provide a copy of these orders to any school attended by the children.
12.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
13.In relation to material tendered as an exhibit:
(a)the parties or their agent must collect the exhibits tendered by them from the Chambers of the Chief Judge, no earlier than 28 days, and no later than 42 days, from the date hereof.
(b)the parties must contact the Chambers of the Chief Judge to arrange the collection of their exhibits.
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, may be destroyed without notice to the parties.
14.In the event a party or the Independent Children’s Lawyer wishes to seek an order for costs:
(a)They shall within 21 days of these orders file and serve written submissions (not exceeding five pages) dealing with the issue of costs.
(b)Within 14 days of service of the submissions referred to in subparagraph (a), the party against whom an order for costs is sought shall file and serve written submissions in response (not exceeding five pages).
(c)Within seven days of service of the submissions referred to in subparagraph (b), the applicant for costs may file and serve submissions in reply (not exceeding two pages).
15.All outstanding applications and responses be dismissed.
I certify that the preceding [198] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
12 May 2017
0
0
0