Dunstable and Dunstable

[2014] FamCA 228

FAMILY COURT OF AUSTRALIA

DUNSTABLE & DUNSTABLE [2014] FamCA 228

FAMILY LAW – CHILDREN – Where the parties are agreed as to with which parent the child lives and with which parent and on what basis she spends time – Injunctions –  Where the remaining contentious issues involve an application for an injunction restraining the father from permitting the child to be in the presence of his partner – Family violence – Where there is a history of family violence between the father and his partner – Risk – Whether the child will be exposed to an unacceptable risk of emotional or physical harm – Where the father had previously undertaken not to bring the child into the presence of his partner – Where the father failed to comply with that undertaking – Best interests of the child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Dunstable

RESPONDENT: Mr Dunstable

INDEPENDENT CHILDREN’S LAWYER: Nicola Davies

FILE NUMBER: BRC 10520 of 2012

DATE DELIVERED: 9 April 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 and 27 March 2014

REPRESENTATION

FOR THE APPLICANT: Ms Dunstable in Person

SOLICITOR FOR THE RESPONDENT: Mr Hawkes
Adrian Hawkes Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nicola Davies
Legal Aid Queensland

Orders

1. That all previous parenting orders are discharged.

2. That the mother and the father have equal shared parental responsibility for the child, C born … 2004 (“the child”).

3. That the child shall live with each of the mother and the father on an equal time basis, to be given effect to by living with each of them:

   (i)week about during school terms, with the child to move from one parent’s care to the other parent’s care each Friday afternoon after school; and

   (ii)for half of each school holiday period, the first half with the mother and the second half with the father in even numbered years and the first half with the father and the second half with the mother in odd numbered years with the child to move from one parent’s care to the other parent’s care at the start and finish of the holidays at school and in the middle of the holidays at Business A, E Street, F Town, unless otherwise agreed between the mother and the father.

4. That the father is released from the undertakings he gave this Court on 26 November 2012 but in lieu thereof the father is restrained and an injunction is issued restraining him from permitting the child to come into contact with Ms B during any of the time that the child is living with the father pursuant to these Orders and the father shall use his best endeavours to ensure that the child is not directly exposed to his relationship with Ms B at any time.

5. That the mother and the father shall keep each other informed in a timely manner of developments in the child’s life that occur during the time that she is living with each of them and as to matters that are to occur in her life during the time that she is to live with the other parent as any such matters come to his or her attention.

6. That each of the mother and the father is restrained from:

   (i)Denigrating the other parent or any other member of their family or any of their partners to or within the hearing of the child;

   (ii)Physically disciplining the child at all;

   (iii)Having a blood alcohol concentration in excess of .05 grams of alcohol per 100 mil of blood at any time that the child is in his or her care pursuant to these orders.

7. That each of the parents shall undertake and complete within one year of the date of these Orders a Parenting Orders Program and a PPP Parenting Program provided by a person or organisation nominated to each of the parents by the administration of the Family Relationship Centre Sunshine Coast, …, Maroochydore, telephone … and each shall provide evidence in writing to the other parent of the completion of these courses as soon as they are completed.

8. That the father shall also undertake and complete within one year of the date of these Orders an anger management course or suitable domestic violence awareness program for perpetrators of domestic violence provided by a person or organisation nominated by the administration of the Family Relationship Centre Sunshine Coast, …, Maroochydore, telephone … and he shall provide evidence in writing to the mother of the completion of such a  course as soon as it is completed.

9. That the Independent Children’s Lawyer is discharged as soon as she has caused the child, C, to be informed of the outcome of these parenting orders proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dunstable & Dunstable has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10520 of 2012

Ms Dunstable

Applicant

And

Mr Dunstable

Respondent

REASONS FOR JUDGMENT

1. The mother and the father in this matter began living together in 1991 and married in October 1992.  They separated after around 19 years of cohabitation in early August 2010.  There were four children born of their relationship namely, K born in 1993 who is now 21 years of age, D born in 1994 who is now approaching 20 years of age, J born in 1996 who has just turned 18 years of age, and the child who is the only subject child in the proceedings before me, C, (“the child”) who was born in 2004 and who is now 9½ years of age.

2. The parenting dispute between the parties has been going on for some years and was listed for determination at trial before me that was set down for three days commencing on Wednesday, 26 March 2014.  The conflicting parenting orders applications of the parties were not very complicated.  Simply put, the mother sought parenting orders that the child live principally with her and spend alternate weekends with her father. The father sought parenting orders that provided for the child to live in an equal shared care arrangement week about with each of her parents.

3. When the matter came on before me on the morning of Wednesday, 26 March 2014, I was informed by the parties, including the Independent Children's Lawyer who had been appointed in the proceedings to act in the best interests of the child, that the parties had reached an agreement that parental responsibility for the child would be shared equally between them and that her living arrangements would be regulated by way of an equal shared arrangement, namely the week about arrangement that the father had been seeking. 

4. I was informed by the parties that there remained two issues for the Court to have to hear and determine. Those issues were:

   a)Whether or not the father could be permitted to bring the child into contact with his partner, Ms B, during the time that the child was in his care on a week about basis; and

   b)Whether or not when the mother has to go to work during the week that the child is to be in her care, the father ought to be allowed to collect her and be responsible for delivering her to school and collecting her from school and returning her to her mother’s care after her mother ceases work.

5. In respect of the first of these issues, the father, not surprisingly, opposed any injunction being placed upon his ability to bring the child into contact with Ms B.  Indeed, it was part of the father’s case that when these proceedings are concluded, he and Ms B intend to move into the same household and take up cohabitation, living as a family unit with Ms B’s three sons of a former relationship and the child, during the week the child is living with her father.

6. The mother proposed to the Court that an injunction should issue restraining the child from being brought into contact with Ms B during the time she is living with her father, asserting to the Court that was in the child’s best interests, namely to ensure her emotional and physical wellbeing during the time she lives with her father. 

7. Importantly, the Independent Children's Lawyer at the end of the trial also supported the mother in respect of this particular proposition submitted to the Court. For the ICL, it was submitted that I would find that there existed an unacceptable risk to the emotional and physical wellbeing of the child if indeed during the time that she lived with her father she was brought into contact with Ms B. 

8. I consider it important to immediately point out that the mother and the ICL based their submissions in respect of this particular matter, not on an assertion that Ms B herself posed an unacceptable risk of physically or emotionally  harming or abusing the child, but rather that the relationship between the father and Ms B is so volatile and one in which significant domestic violence occurs and is likely to occur, that it gives rise to an unacceptable risk of the child being exposed to emotional and/or physical harm if she is exposed to that relationship at any point in time during the time that she lives with the father.

9. In respect of the second issue it was the father who proposed that orders be made that the child be allowed to be collected by him during occasions when the mother is working during the week that the child is to live with her.  Although the mother expressed some understanding of the father’s position in this regard, at the end of the trial she made it clear to the Court that she did not agree to there being such an order nor consider it necessary in the child’s best interests, adopting the position that in the circumstances she is able to manage making her own arrangements for the care of the child as necessary when such occasion arises during the time the child is living with her. 

10. I was persuaded on all the evidence I read and heard in the case that it is in the child’s best interests to grant the injunction sought by the mother and the ICL so as to prevent the child being brought into the company of Ms B during times that she is living with her father.  Further, I was not persuaded that the orders sought by the father in respect of the child when she is in the mother’s care were necessary.

Some Background Facts

1. The mother’s case was that her relationship with the father ultimately broke down after and because of many years of turmoil and violence directed at her and her children, particularly the three boys of the relationship, during the course of the marriage. 

2. At separation the mother left the former family home in Town I in the immediate hinterland of the Sunshine Coast in Queensland, and took with her the two youngest boys, D and J, as well as the child C. 

3. At separation the eldest boy K remained living in the former matrimonial home with the father. The mother asserts that K ultimately left the home after being subjected to more violence by his father.  Although there is dispute between the parties as to whether or not the father perpetrated violence towards the mother and the children during the course of the relationship, there is no dispute that the relationships between K, D and J, and their father, are no longer existent.  Those three boys no longer have any contact at all with their father.

4. The two eldest boys now live independently of both of their parents. The youngest boy, J, lives with his mother and they live somewhere in the Town L on the Sunshine Coast area.  He has actually returned to complete his high school education at Town M High School and is currently in his final year of year 12, travelling to and from the high school each day by public transport as I understand it.  The mother provides solely for J’s financial support from the income that she earns in her employment and from Centrelink assistance. 

5. On 26 November 2012, interim orders were made in this Court by his Honour Justice Murphy with the consent of the parties.  Those interim orders provided for the child to live with each of her parents on an equal shared care basis.  During the week that she lives with her mother, the child lives in the home in the Town L area with her mother and brother J.  During the week that she lives with her father, as I understand it, she lives with him in a home of a friend, Ms N, in rooms that he rents from his friend, who also lives in the home. 

6. Significantly, the orders that were made by Justice Murphy on 26 November 2012 with the consent of the parties, were made upon a number of undertakings given by the father.  Relevantly two of those undertakings were as follows:

   a)He will not allow his girlfriend Ms B to come into contact or within 50 metres of the child whilst she is in his care; and

   b)He will not attend the mother’s residence or residence the child is residing in whilst in the mother’s care.

7. During the course of the early part of the trial, the mother who was without legal representation made it absolutely clear to the Court that she was agreeing to the child continuing to live in an equal shared care arrangement with her father because the child had made it clear to her that was what she wanted to do. The mother asserted, clearly, that she wanted to respect the child’s views in that regard.  She made it equally clear, however, that she persisted in seeking the injunction restraining the father from bringing the child into contact with Ms B during any time that she is in her care because of serious concerns she held for the child’s wellbeing if she is living with her father in circumstances where he continues to relate to and spend time with Ms B, or indeed in circumstances where he, as he indicated to the Court he wants to do, moves in with her in a situation of cohabitation.

8. In this respect, the mother essentially relied on:

   a)The recommendations of Family Consultant, Ms O, who had been retained as the single expert in the proceedings and who had provided three written family reports in respect of this family during the course of 2013; and

   b)Her own evidence of the violent nature of the father’s personality and in particular the violence he perpetrated against her and their children during the course of their marriage relationship and indeed in the period of time since that relationship ended; and

   c)Evidence of violence occurring in the relationship of the father and Ms B in the period of time since separation of the father and the mother in this case.

9. Quite significantly, in my view, the father, who was legally represented in this trial, maintained in his affidavit evidence and during the course of the trial, denials of the allegations of violence levelled at him by the mother.  He conceded no more than having held one of his teenage boys by the shoulders against the wall or fridge at one point during the relationship, saying that he was doing so in response to the boy being rude and abusive to his mother, and he conceded having verbally abused the mother during the course of their relationship.  On the other hand, the mother in her affidavit evidence relied upon by her in the proceedings, detailed a number of incidents of violence during the course of the relationship where physical and verbal violence was levelled at her and/or at the children of the marriage, particularly the boys.

10. As I understood the submission made on behalf of the father by his solicitor at the end of the trial, it was that these assertions of violence levelled at the father by the mother should not be accepted as correct and should not influence my determination of the issues in dispute in the case.  I understood the submission to be, on behalf of the father, that because there was no evidence of the mother ever having complained to police, to medical professionals, or ever having sought the benefit of domestic violence protection orders from a court during the course of that relationship; and where the allegations first surfaced in the course of contested parenting proceedings between the parties in this Court, scepticism should be had in respect of the allegations made by the mother.

11. Notwithstanding that submission and what I understood to be the supplementary submission made on behalf of the father that I really do not need to make any findings of fact about those issues in order to determine these proceedings, I am quite satisfied that the mother’s evidence about the violence that was perpetrated against her by the father and against the children of the marriage by the father prior to separation, is a correct version of the circumstances that occurred. 

12. I consider that it is appropriate to make findings that the father perpetrated violence as alleged by the mother against her and against their children during the course of cohabitation as it is an important part of the factual matrix that exists in this case that has ultimately persuaded me to the view that the injunction that I readily recognise as a very serious and significant impost on the adult freedom of the father is necessary in this particular case when the paramount concern that confronts me is the best interests of the subject child, namely nine year old C.

13. Since the breakdown of the relationship between the mother and the father in this particular case, the father has formed a close emotional relationship with Ms B.  Ms B has three boys herself, H, P and S.  These boys are relatively young boys, all less than 10 years of age.  As I understand the evidence, the father and Ms B began spending significant periods of time together in the years after the separation of the mother and the father. The father is self-employed as I understand in the heavy equipment industry.  Ms B is also involved in her own business in a field related to the father’s and I understand their involvement in such industry apparently brought them together. Their relationship is one in which they spend a fair degree of time together during their working hours and outside work in their private lives.

14. The father, however, continued to live in the former family home at Town I after separation. I understand this property has since been repossessed by the bank because of an unpaid mortgage liability.  The father then moved to live in his friend’s house during the time that the child is with him, but has spent and continues to spend most of the time when the child is not in his care in Ms B’s household, living with her and her three boys.

15. The evidence satisfies me that the undertaking that was given to the Court by the father in November 2012 was considered necessary by those who at that time were legally representing the mother because of evidence that was available at the time about the significant level of volatility and violence in the relationship between the father and Ms B.  In evidence before the Court at the trial were many documents that came from documents produced pursuant to a subpoena from the Queensland Department of Communities, Child Safety and Disability Services; from the Town I Medical Centre; from the Department of Education, Training and Employment; from the Queensland Police Service; and from the Sunshine Coast based psychologist who has been treating Ms B and the child for a few sessions.

16. It is clear from all of that evidence that the father and Ms B have been the subject of Queensland Police Service intervention on at least two occasions in the past for incidents of very serious domestic violence that occurred between them.  It is also clear on that evidence that both the father and Ms B had significant involvement in and responsibility for the level of violence that occurred on those occasions.  It is also clear on that evidence that they have come to the attention of the Department of Child Safety on a number of occasions in respect of the appropriateness of parenting that they have been delivering to the three boys of Ms B and also to the subject child of these proceedings, the child C.

17. Much time was taken up on the two days of the trial that occurred actually dealing with matters surrounding these incidents of domestic violence that have occurred between Ms B and the father.  Both the father and Ms B agreed that there had been an incident of violence between them in the middle of 2012 in which Ms B had taken a knife and “stabbed” the father.  Both of them accepted that to some degree alcohol had been involved and Ms B seemed to be at pains to attribute her behaviour to her state of mental health, but more particularly to medication that she was taking at the time that did not agree with her.

1. There is certainly medical evidence available to me that supports findings that around the middle of 2012 Ms B sought and obtained medical assistance from her general practitioner and a psychiatrist.  There is evidence before me that there has been a psychiatric diagnosis of Ms B and that it has been considered that she has bipolar effective disorder.  The evidence suggests reporting by Ms B to her psychiatrist of “poor motivation, poor energy, feelings of depression, sudden swings to increased mood, feeling strong, increased libido, rapid thoughts, irritability”. Ms B was placed on various types of medication to help her deal with it.  A psychiatric report contained within the subpoenaed documents has her recorded as having admitted to “lifelong visions and frightening apparitions including spirits, children appearing at night”, which she considered to be scary and intrusive.  They had her reporting that she feels she cannot control her mood no matter how much energy she expends working hard in her business. 

2. Interestingly, there are notes in the medical documents that are in evidence that Ms B was seen by a psychiatrist on 6 July 2012 and she is recorded as having reported that she feels like a normal person, no longer experiencing ups and downs at that time. She is recorded as having said that her mood was very unstable at times and having reported that she stabbed the father with a knife about a month before.  She said she felt highly agitated at the time and felt it was impossible to live and work with the father; she felt she wanted to die; she felt the father’s attitude was not helpful; she felt she wanted to hurt someone; and the police had been called and removed her from the premises.

3. It was put to both Ms B and the father during the course of the cross-examination of them by both counsel for the ICL and by the mother herself, that in fact there were two incidences in the middle of 2012 where Ms B had stabbed the father with a knife.  As I have already indicated, neither the father nor Ms B were prepared to concede or accept that there had been two separate incidences.  I am, however, on the evidence, quite satisfied that there were.

4. Indeed Exhibit 3, tendered into evidence by counsel for the ICL, is a record of a Queensland Police Service report no. … that records that at the hour of 22:20 on the evening of 9 June 2012, a Saturday night, at … Q Street, Town I, an incident of domestic violence took place.  The police records reflect that the father was allegedly outside in an entertaining area of the house listening to music and that Ms B has approached him and told him to turn the music down and slapped him in the face.  The father has then slapped Ms B in the face after which an argument has erupted.  During this argument Ms B received a bite to the arm from the father.  Ms B in response has obtained a knife from the kitchen and has stabbed the father with the knife no more than four times. The father has then grabbed Ms B and dragged her outside from the kitchen area, pushed her up against a railing, prised the knife from her grasp and attempted to restrain her by tying her hands with a cord to the railing at the back of the house. However, he was unsuccessful.  After this, Ms B has thrown the knife into the garden and police have been called. The police record reflects that was no recorded previous domestic violence incidence.  It records that there were injuries to both parties but no property damage.  The record says that alcohol/drugs were involved and that the father had been drinking.  The document records that Ms B’s three children at least were in the view or hearing range of the incident.  According to the details included on the document, there is a suggestion that the child C was also present on this particular evening.  I am not able to say, however, that I am completely satisfied that that was the case.  Indeed the father and Ms B have denied that she was. 

5. Interestingly, police records reflect that both the father and Ms B gave conflicting versions of events about what happened on the night when they were first interviewed by Police.  The police records reflect that the father told police that he was sitting outside the back of the house listening to music and drinking beer, when Ms B came outside from the house and told him to turn the music down as she was trying to sleep.  He reported to police that she then slapped him across the face and he responded by slapping her back across the face; they then argued and then Ms B went into the kitchen and obtained a kitchen carving knife from the drawer.  He is recorded as having told police he went inside to where she was and said to her “give it a good go”.  He said that she then stabbed at him about four times causing cuts to his face and his chest.  He said that he then grabbed hold of Ms B’s arms and dragged her outside and pushed her against the railing trying to prize the knife out of her hand.  He said that he tried to secure her wrists with some rope or cord but was unable to do so and he then contacted police. 

6. The record of the version given by Ms B to police is also in the same document (Exhibit 3).  Ms B told police that she had been lying on the top bunk on the children’s bed with one of her children putting earplugs in their ears because of the loud music that the father had been playing.  She reported to police that he then came into where she was lying and began to “have a go” at her about using the earplugs and telling her that he had paid for them.  She then told police that he then bit her on the upper right bicep area of her arm causing an injury.  The police records note that the attending police observed a large bite mark on her right bicep area of her arm as well as red marks on her face.  Curiously, in the witness box under cross-examination, Ms B had no memory whatsoever of having been bitten on the right bicep area of her arm and showing police any injury. 

7. The record continues to note that Ms B said she came out of the room and confronted the father who grabbed, slapped and pushed her, after which she has gone and obtained a knife from the kitchen and after the father told her to “do it”, she then used the knife to cut him.  She reported that she was then grabbed by the father, pushed and dragged outside to a railing where he tried to tie her or bind her wrists with a rope.

8. She is recorded as having told police that she is not in a relationship with the father but sometimes shared a bed with him.

9. The father was also reported to have told police that Ms B suffers mental health issues and has a propensity to become enraged due to this.  On the night in question Ms B was taken from the home and her sons were taken to be cared for that night by their father who also lives somewhere in the Town I area.  A few days after that event, the police caused mutual domestic violence family protection orders to be issued out of the Court in respect of each of the parties, ordering each of them to desist from committing domestic violence against the other for a two year period.

10. Exhibit 4, tendered into evidence by the mother, is another Queensland Police Service document being report no. …, reporting an incident of domestic violence between Ms B and the father that occurred on 14 July 2012 at 2.40 am, very early on a Sunday morning at the address of … Q Street, Town I.  The document begins by recording that both the father and Ms B were on that date subject to current domestic violence family protection orders that were taken out on 12 June 2012 that were in force to 11 June 2014.  Those orders have required the parties to be of good behaviour towards each other and not commit domestic violence. 

11. They record that on the Saturday night of 13 July 2012, the father and Ms B went to the R Hotel where they had dinner and consumed alcohol before going home and consuming more alcohol.  They record that during the course of the evening the father has had an argument with his adult son, D, who was also at the premises at the time and that resulted in D leaving the premises.  After the argument Ms B has spoken to the father supporting D’s position and a verbal argument began which then turned physical.  It is recorded that each party was moderately intoxicated and supplied conflicting versions.  The record says that Ms B stated she received a blow to the left side of her head by unknown means; the father then picked up a number of ceramic items and threw them out into the yard causing them to break; whereupon she took a picture frame of a photograph of the subject child off the wall and smashed it.  She said that she then rang the police.  The father is recorded as having stated that Ms B then went into a rage and she grabbed a kitchen knife and he used force to restrain her; stating that he was punched a number of times by her. 

12. The document records that the father also had injuries to his left and right arm and lower lip and that Ms B had injuries to the left side of her face.  The document records that children were also present in the home on this evening.  The document also records that the living conditions are untidy and cluttered and police observed the children to be fine and healthy. 

13. Given the production of these two documents I am satisfied that there were two separate events.  As I said during the course of hearing submissions at the end of the trial, there can really be only two possible explanations for the fact that the father and Ms B quite clearly asserted to the court that there was only one occasion when a knife was involved in domestic violence between them.  That is, that they are deliberately not telling the Court the truth about what happened or they simply cannot remember with any clarity that there were two separate nights on which significant domestic violence occurred between the two of them during which Ms B resorted to taking a knife from the kitchen and using it against the father. 

14. In the way in which all of the evidence came out, I am not satisfied that they are, having regard to the fact that they admit that there was an incidence where a knife was used, deliberately lying about the circumstances.  I am rather more satisfied that they really do not have a very clear and accurate recollection of the events that occurred as their recollection is affected by:

    a)the alcohol that was taken on the nights concerned;

    b)the medication that Ms B was taking at the same time as she was consuming alcohol; and

    c)the length of time that has expired since.

    I am also of the view that there is such volatility in the relationship that other incidences of violence are likely to have occurred between them to which police were not called and this fact makes it harder for them to remember the specific and detailed events of the two particular nights in question, namely 9 June 2012 and 14 July 2012. 

15. What Ms B did remember about the night of 14 July 2012 is that she, the father, the father’s son D and her three boys all went to the R Hotel for dinner on the Saturday evening.  She remembered that she had consumed a number of drinks containing vodka at the R Hotel and she asserted that the father had consumed two schooners of XXXX Gold beer which she described as light beer, but which of course is a mid-strength beer rather than a low alcohol beer. She mentioned also that D had been drinking but did not really provide any detail about what it was he was drinking.  She gave evidence that they all then returned home with the father driving and her three boys had been put to bed.  She said after that the father, his son D and Ms B continued to drink beer out the back of the home.  They continued to consume XXXX Gold cans. Although she had no exact recollection of how many they had, she asserted that they had effectively consumed half a carton of beer between them, which could have been 12 cans or if the carton was a 30 can carton, it could have been 15 cans between them.

16. She said that after they ran out of beer she and the father’s son D got on pushbikes to ride to the nearest hotel to see if they could obtain further supplies of alcohol to continue drinking into the night.  She said that she and D rode into the town, were unable to source further alcohol supplies as the hotel had closed and then returned home on the pushbikes, taking all together about an hour.  She said that on their return home the father was agitated and began to make verbal insinuations that she and D had engaged in some sort of inappropriate sexual activity whilst gone.  She said that D and his father then argued and that D had consequently left the home in anger.  She said that when she effectively challenged the father on the absurdity of his position a fight ensued and the father began throwing many items of sentimental value to her from the back of the house out onto the back lawn, smashing them thus causing her a great deal of emotional hurt.  Her immediate response to this emotional hurt was to take the photo of the subject child C from the wall and smash it so as to cause the father some hurt.  She said that this resulted in the physical fight between them but she has no recollection of getting the knife on that occasion, continuing to assert that she only got the knife on the other occasion in June. 

17. It seems that neither party was charged with a breach of the mutual domestic violence orders that were at that stage only a month old and there is, as was pointed out by me during the course of submissions at the end of the trial, no further evidence that Ms B and the father have been involved in incidents of domestic violence perpetrated by one against the other since that time.  Indeed, there is evidence before me, put before the Court by the father, that Ms B was receiving psychological cognitive behaviour therapy from a qualified psychologist over the last couple of years.   The evidence is that she did receive such counselling from the psychologist, Ms U.  Interestingly, the counselling began in March 2012, prior to these two incidents of significant violence in June and July 2012.  In fact, there were about three visits over a fairly short space of time in June 2012 around the time these events occurred. 

18. Ms U, in her affidavit, asserted that Ms B made good progress during the course of her sessions. She made absolutely no reference at all to any knowledge of the events that occurred as outlined by me already in June and July 2012.  She said that Ms B’s symptoms of depression had improved with the medication and counselling that she had been getting and the evidence she gave in the course of the trial was that the counselling continued through 2012 and then up until November 2013, which was the last occasion upon which she saw her.

19. I am satisfied that it was the existence of the evidence of the events of June and July 2012 and the medical evidence in respect of Ms B from 2012 that led to the giving of the undertaking by the father to the Court in November 2012.  Although in evidence during the trial the father asserted that he was unhappy giving the undertaking and simply gave it because he was told he had to, I am satisfied that he was represented by a solicitor, and indeed the same solicitor that appeared for him in the trial of this matter, at the time he gave that undertaking and that he would have obtained legal advice about it, the need to give it, whether or not it should be given, the implications of it and indeed the responsibility of honouring it, as well as the potential consequences for contravening it and indeed what would be required for him to be released or discharged from the obligations that he was indicating by his undertaking to the Court he was prepared to abide by. 

20. Having said all of that, there was evidence during the course of the trial that in the period between the giving of the undertaking at the end of November 2012 and commencement of this trial in March 2014 that there had been numerous contraventions of the undertaking given by the father.  Indeed, the father conceded that he had contravened the undertaking and Ms B conceded that the father’s undertaking had been contravened. Notwithstanding the concession, I saw no indication of remorse or feelings of responsibility for having contravened an undertaking given to this Court.  In fact, what I observed was completely to the contrary. 

21. Both the father and Ms B effectively asserted to the Court that it was simply impossible for the undertaking to be complied with.  The father began by asserting that it was impossible to comply with the undertaking because Mr B’s three boys go to the same school that the child goes to and that it is just a coincidence or just a fact of life that the child is likely to come into contact with Ms B at the school.  He went on to say that Ms B’s boys are involved in the same Scout troop that the child attends and that it is just unavoidable that Ms B and the child come into contact at Scouts.

22. However, it became clear to me after further cross-examination of the father that there had been a number of occasions where he and the child had either stayed over at the same house that Ms B and the boys were occupying and on which, by arrangement between the father and Ms B, Ms B collected the child from school for the father or Ms B was present in the same car as the child, and without any apparent compunction on the part of the father.  In actual fact, ultimately after having heard the evidence and observing the father and Ms B in the witness box, I was readily satisfied that the father simply reached a point, at some stage between November 2012 and the beginning of the trial, at which he decided to wilfully disregard the obligation imposed upon him by the undertaking without any real concern for the likely consequences of contravening the undertaking or without any real concern for the child’s wellbeing in respect of the issues that gave rise to the requirement for him to give the undertaking to the Court in the first place. 

23. Indeed, another aspect of the way in which the father and Ms B dealt with the matter was very disturbing. They both made fairly strong assertions in the witness box that were directed at implicating the Family Consultant, Ms O in sanctioning the contravention by them of the undertakings.  Both asserted that the contravention of the undertakings had been raised by them with Ms O and that they had told Ms O that it was simply impossible for them to comply with the undertaking. Both asserted that Ms O had responded in a way that made them think that she was approving of and acknowledging their contravention and in a way that made them believe that it did not matter that they were contravening the undertaking. 

24. I do not accept that Ms O did that.  Indeed Mr Hawkes, solicitor for the father, put that to Ms O during cross-examination and she quite confidently denied it and clearly displayed surprise at the suggestion that she had done that. 

25. The other aspect of that issue was that it became abundantly clear, having heard the father give that evidence during cross-examination and then later hearing Ms B make the absolute same assertions that the father had, that the father and Ms B had talked about the issue between the time that the father had given the evidence and the time that Ms B gave the same evidence in Court later in the same day. 

26. I asked the legal representatives during the course of submissions what impact a finding of wilful disregard of the undertaking would make upon my determination in these proceedings. Ultimately, I accept that such a finding is able to be used by the Court as evidence of the attitudes that the father and Ms B display to parental responsibility and their own responsibilities towards providing a safe environment for the subject child C to reside in when she is living with her father.  I was not hearing a contravention application in respect of the father’s alleged contravention of the undertaking and there is no requirement in these proceedings for him to be punished as a consequence of such a finding.  However, as I said, I am quite satisfied that it is a significant piece of evidence demonstrating parental attitude and particularly lack of acceptance of responsibility for past inappropriate conduct and past inappropriate behaviour that is a very good indicator at this point in time as to whether or not parental responsibilities in the future will be adequately addressed and accepted by the father and also Ms B.

1. Although I have already acknowledged that there is no evidence of any further domestic violence having occurred between Ms B and the father since that July incident in 2012, I do not thereby conclude that there has been none.  What I observed in the witness box, particularly in respect of Ms B, was a very emotionally volatile personality.  Ms B was agitated and angry from the moment she got in the witness box and could not contain her anger and agitation at all. Ultimately, she had a verbal confrontation with me during which she just continued to angrily attempt to talk over the top of me whilst I was trying to address her.  Indeed, I am not satisfied that she has even seriously begun to address questions of appropriate response to domestic violence in her relationship with the father, effectively denying and continuing to deny that he is any sort of risk to her and/or to her children in circumstances where the evidence that is before the Court suggests otherwise.  I am satisfied after having seen the father, both in Court sitting beside his solicitor giving instructions during the course of the hearing and in the witness box under cross-examination, that although he is described by his solicitor as an unsophisticated man, he is a man who would readily lose his temper particularly under the influence of alcohol.

2. I am quite satisfied that the father has a dependency upon alcohol and that he consumes far too much for his own good let alone the welfare of those around him. The evidence before me, that I accept, was that he has been consuming a lot of alcohol over a long period of time.  I saw evidence that one of his adult sons had reported that the mother would purchase two cartons of beer a week for the consumption of the father.  I saw reference in the family reports to him stating to Ms O that he consumed three to four beers a night on most nights, save for Fridays at which time he consumed eight beers.  Indeed during the course of his oral evidence, he confirmed that that is the quantities of beer that he is drinking at the moment however, asserted that that was after having cut down from drinking a lot more than that in the past. 

3. I am not convinced that that evidence is correct.  I am not satisfied that the father has in some way reflected upon his alcohol consumption and determined that in the past he drank too much and that it somehow contributed to his relationship problems, both with his former partner and his children. I am not convinced that he only drinks three to four beers a night during the week, and eight beers on Friday nights and consider it far more likely that he drinks more than that even to this day.  I am quite satisfied that even if he is only drinking three to four beers a night and eight on a Friday night, he is still consuming far too much alcohol for his own wellbeing and also for the wellbeing for others around him such as the child when she is in his care. 

4. There are a couple of other pieces of evidence that are relevant to my determination of the central issue.  Before the Court also are documents produced by the Department of Child Safety that refer to some events that happened in the household of the father and Ms B and her three children in 2013.  Early in the year, February or March 2013, notification was made to the Department of Child Safety by the school that the three boys of Ms B attend, that her second son P had arrived at school with an injury to one of his eyes that gave rise to cause for concern by the teachers and administration of the school.  It is reported that P and his older brother H, and the younger brother S gave variously conflicting versions explaining the origin of the injury.  It seems that what is asserted to have happened by the father, Ms B and the three boys, is that P had gone to bed on a Saturday night when the father was living at the home with Ms B and the three boys, that he had no injury, but that when he woke early on the Sunday morning the injury was present and no one can give an explanation for how the injury came to occur. 

5. It is not disputed that Ms B acted appropriately and took the child to a doctor to have him treated. The doctor ruled out a spider bite which was something that Ms B had apparently raised as a potential possibility.  The Departmental records reflect that Departmental officers determined that it was effectively a suspicious injury and not one that looked like it could have been inflicted accidentally.  Ultimately, they were unable to make any sort of determination that the injury had been inflicted by an adult such as the father or Ms B or even one of P’s brothers.  The Departmental finding of un-substantiation was recorded.

6. There was another incident, evidenced by Departmental documents sometime in July 2013, which happened at a house that the father, Ms B and the three boys were at.  The evidence satisfies me that some sort of incident occurred that evening between the father and Ms B’s two older boys.  Exactly what happened is more difficult to actually determine.  What is not in dispute is that Ms B was in the kitchen having prepared dinner for the family when she asked the father to go upstairs and get the boys to come down for dinner having unsuccessfully called out to them to come down for dinner on a couple of occasions.  The father went upstairs. Shortly after, Ms B heard a kerfuffle upstairs and the boys crying and she went to them. She says she saw them crying and the boys asserted that the father had hurt them. She immediately determined to tell the father to leave the house, which he apparently did. 

7. According to the father, he went upstairs and directed that the boys go downstairs for their dinner as called by their mother and was given a bit of obstinacy by the boys.  He says he put his hand on the back of one of the boys between the shoulder blades and gave him a bit of a push along to get him to go downstairs.  He says that the boy then, in his words, “supermanned” himself along the floor, threw himself down the floor at the top of the stairs, crying out and screaming out as if he had been hurt but he was not in fact hurt.  The father’s assertion was that the boy was pretending to be hurt and effectively acting up when he was not hurt and that his brother then effectively joined in and it was then that this kerfuffle and commotion would have attracted Ms B’s attention and involvement.  He agrees and accepts that Ms B told him to leave the premises and that he did. 

8. In fact, the boys are recorded as having reported to teachers at the school the next day (or some time shortly thereafter) that the father had pushed or thrown one of them down the stairs on the evening. 

9. There is also evidence from the Departmental records to reflect that the child C and H at least, have both been interviewed between 2012 and 2013 by the Department of Child Safety and each of them has been recorded as having told the Departmental officers that the father belts them with a strap, hits them on the bottom and effectively over-disciplines them physically.  When that was put to the father he denied it completely and said he was totally surprised and found it hard to believe that it could be said that he used a belt against them.  Ms B also denied it and said that she has never seen him use a belt against her children or against the child C.  I do not accept the denials and am satisfied that the father has and does use physical discipline against both the child C and Ms B’s boys. 

10. I am satisfied that he used excessive physical discipline against his other three boys during the marriage.  Indeed, there was some evidence that he had told Departmental officers that at some point in the past he had actually grabbed one of his boys and held him by the throat up against the wall or the fridge on an occasion that the boy had verbally abused his mother.  That was reported in a Departmental file note of an interview with the father.  In evidence in the Court, the father denied that he had ever held the boy up by the throat and he denied that he had told the Departmental officer that.  I do not accept those denials.  When he was cross-examined by the mother, she put to him that he had actually held the boy by the throat up against the wall, lifting him about 8 to 10 cm off the floor in the process.  He denied that. I do not accept that denial and I accept on the balance of probabilities that it happened.

11. No evidence was put before me by the father or on his behalf to suggest that he has ever sought any professional help with his apparent loss of self-control when he gets angry, particularly when he is drinking.  In all, I am simply not satisfied that his denials of the violence to his partner or excessive physical discipline to the children are truthful and can be accepted. 

12. I am not satisfied, on all the evidence, that there has been any significant change in behaviour or gaining of insight by either the father or Ms B in the time since the significant incidents of violence occurred in the middle of 2012. I am not persuaded that they have improved their relationship since then or that it is no longer a volatile one subject to angry outbursts and potentially serious incidents of violence.   I readily accept the submission made on behalf of the Independent Children's Lawyer that allowing a situation to exist where the child, whilst she is in the care of her father on a week about basis, goes with him to live in the same household as Ms B and her children, or even spends time with them on a social basis, as apparently occurred in the period since the undertaking was in place, exposes her to an unacceptable risk of emotional and/or physical harm through the likelihood of regular outbreaks of anger and violence between the father and Ms B.  I appreciate that the same risk exists in respect of the three of Ms B’s boys and my views about that were made clear during the course of the trial. I have to concede that those three boys are not the subject of these proceedings and I am not in a position to make orders in respect of them in these proceedings.  The child C is the subject child of these proceedings and as I am bound to determine appropriate parenting orders having paramount regard to her best interests, it is to that issue that I must turn my consideration. 

13. As I have already said, I acknowledge that it is a terribly significant impost upon the private life of an adult person to restrain him or her from being in a position whereby he or she can move in to live with the partner of his or her choice whilst at the same time parenting one of his or her children.  I appreciate how upsetting that must be for the father and for Ms B to be restricted in this way. 

14. Nevertheless, as I have made clear, the determination that I am statutorily charged with making is not one of determining parental rights but one of determining just how parental arrangements for children should be made in the best interests of those children.  It is not uncommon during the course of such determination for parental rights or parental wishes to have to be disregarded or at least placed second where the best interests of their children are paramount. 

15. I am, after having heard and considered all the evidence in this case, quite clearly satisfied that the child’s best interests require her to be cared for when she is with her father with total focus by the father on her care, undiverted by the volatility of the relationship that he has with Ms B. 

16. As I said during the course of hearing submissions, having regard to the injunction that I intend to put in place, the father will have a number of choices.  He simply will have to choose whether or not to continue the relationship with Ms B at all. If he chooses to continue it, then he will simply have to maintain it in the week that he is not caring for the child.  In that case, he will have to accept not spending time with Ms B in the week that the child is in his care. Alternatively, if he is determined, as he said he was at the time of the trial, to move the relationship to the level of moving in with Ms B and forming a family relationship, he will have to hand the care of the child back to her mother whilst he pursues that relationship.   

17. During the course of submissions Mr Hawkes for the father urged the Court to consider limiting such restraint to a definite period of time.  I pointed out to Mr Hawkes during the course of discussion about that submission that it would be difficult to do so having regard to my findings about the father and Ms B and the volatility of their relationship. I consider there to be a high probability of there being further violence between them unless they both acknowledge its existence and take serious steps to address it. Only when there is evidence that persuades that the risk is no longer an unacceptable one should the restraint be removed. 

18. It will be for the father to satisfy the mother in the first instance that the unacceptable risk that I am satisfied currently exists, no longer exists.  If he is able to convince her, then no doubt he would be able to get her to agree to an order being made by this Court with her consent that removes the restraint.  If he believes that her consent or agreement is being unreasonably withheld then his only option will be to come to the Court and seek the removal of the restraint.  As I have said, that will require him to be able to persuade the Court that there is no longer any need for the restraint.

19. I have already referred to the issue of alcohol consumption.  I raised my concerns about that during the course of the trial and at the end of the trial I asked for submissions about it.  As I understood the submissions at the end of the day, there seemed to be acceptance by the mother and the ICL and even a degree of acceptance by the father himself that some restraint needed to be placed upon the father in respect of his consumption of alcohol during the time that the child is with him. It also seemed accepted that restraining him from consuming alcohol at all during that time might be setting him up to fail. 

20. I am satisfied the father has a degree of dependency on alcohol and that it would indeed create real difficulty for him if an injunction was put in place that he not consume any alcohol during the time that the child is with him. The submission was made that restraint should be imposed upon him restricting his consumption of alcohol whilst the child is in his care to such that would at any point in time not allow his blood alcohol concentration to exceed the prescribed limit of blood alcohol concentration for driving in the State of Queensland, namely 0.05.  I accept that submission as appropriate. Such a restraint gives some satisfactory basis for in the future proving he has contravened it if he is charged with a drink driving offence whilst the child is in his care. I will make an order accordingly. 

21. Additionally, I am satisfied that the father should be restrained from using any physical discipline on the child at any point in time and I will make such an order.  I will indeed make it an order binding both parents.

22. In respect of the other issue that was raised by the father, that I have already indicated I am not persuaded to accept, the mother’s evidence is that during the week when the child is with her she has reduced her work obligations to only one shift. That occurs on a Tuesday morning when she starts work at 6.00 am and finishes at 10.00 am.  She currently lives in the Town L area and the current arrangements that she makes are that her son J takes the child C on a bus and then a train to Town I, takes her to school and then has to run back to the train to get on another train to Town M so he can go to school.  The evidence that was before the Court suggested that at the beginning of last year, this obligation, on a greater number occasions than just one morning a week, was proving difficult and resulted in the child being recorded as arriving late to school on a regular basis and having to leave school early on a regular basis, a situation that the father rightly disapproved of and the Court accepts is not appropriate. 

23. The mother, of course, says there is only one morning a week where she needs J to do that now.  Initially she indicated that she would not have such a great deal of difficulty with the father collecting the child on a Monday night and dropping her to school on the Tuesday morning, but later in the trial she made it clear that she does not accept that the child needs to go to the father on a Monday night when she has already had a week with him. She said it would be cutting into her time with the child and that it would be difficult for makeup time to be achieved in the other week because she undertakes all of her work shifts in that week when the child is not living with her. 

24. The mother indicated that another way around it was to move to Town I in the not too distant future when her current lease runs out so that it would be easier to make arrangements for the child to be cared for on that Tuesday morning and get her to school.  The intention to move to Town I was based on the view that the father was no longer living in Town I and that she would be happy to move there in those circumstances. The father’s evidence was that he is still living in Town I and has not moved away, so I was not able to be satisfied at the end of the trial that the mother was necessarily now still going to move to Town I.  That issue became a little bit uncertain at least. 

25. All that said, I am quite satisfied that the mother in this case has the best interests of the child at heart and is focused centrally upon them.  I am satisfied that she is aware now of her obligation to have the child cared for appropriately before school on a Tuesday morning and to get the child to school on Tuesday morning in that week when she is living with her, on time.  I am quite satisfied that the mother will now make appropriate arrangements, whatever they are and do not consider that the child’s best interests require an order that obligates the mother to hand the child back to the father on the evening before she starts a morning shift or at any other time during the week the child is with her when she is working. I am not going to make such an order in this case.

26. Indeed, I am satisfied the mother’s feelings about it are such that she will not necessarily be adverse to the notion of involving the father in the care or travel arrangements for the child if she considers that necessary in the event that she is unable to make satisfactory alternative arrangements. That may very well happen in any event in a co-operative manner.

27. I make the orders as set out at the commencement of these reasons.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 9 April 2014.

Associate: 

Date:  9 April 2014