Edwards and Granger & Anor
[2013] FamCA 918
•27 November 2013
FAMILY COURT OF AUSTRALIA
| EDWARDS & GRANGER AND ANOR | [2013] FamCA 918 |
| FAMILY LAW – CHILDREN – Father convicted of serious crimes of violence against mother – children at unacceptable risk of physical and psychological harm from father – mother’s psychological health at risk if the children spend time or communicate with father – mother have sole parental responsibility for children and they live with her – father restrained from any time or communication with children – application by paternal grandmother for time and communication dismissed. |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (1),(2),(3),(4),(4A), 69ZR(1) and 69ZX(3) |
| MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424 |
| APPLICANTS: | Mr Edwards |
| RESPONDENT: | Ms Granger |
INTERVENER: Mrs Edwards
| FILE NUMBER: | HBC 81 | of 2011 |
| DATE DELIVERED: | 27 November 2013 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 2, 3, 4, 5 & 6 September 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kovacic |
| SOLICITOR FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Patrick Fitzgerald |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Commission of Tasmania |
COUNSEL FOR THE INTERVENER | In Person |
COUNSEL FOR THE INDEPENDENT Mrs Mooney
CHILDREN’S LAWYER:
SOLICITOR FOR THE INDEPENDENT Wallace Wilkinson & Webster
CHILDREN’S LAWYER:
Orders
All previous parenting orders in respect of the child L born January 2003 and the child S born November 2005 (‘the children’) are discharged.
Ms Granger (‘the mother’) shall have sole and exclusive parental responsibility for the children.
The children shall live with the mother.
Pursuant to s 68B of the Family Law Act 1975 (Cth) Mr Edwards (‘the father’) the father is restrained from:-
(a)living with, spending time or communicating with the children or either of them;
(b)directly or indirectly approaching and/or communicating with the mother and/or the children (included but not limited to) in person, by telephone, email, sms, facsimile and/or letter;
(c)going within 500 metres of any home or place where the mother or children are generally living or staying;
(d)going within 500 metres of any school where the children attend, visit or are enrolled;
(e)going within 500 metres of any place of employment where the mother may be working; and
(f)going within 500 metres of any place where the mother and/or the children may be present.
Pursuant to s 68C of the Family Law Act 1975 (Cth); if a police officer believes, on reasonable grounds, that the father (against whom these injunctions are directed) has breached one or other of the injunctions by;
(a)causing, or threatening to cause, bodily harm to the mother and/or children or any one of them; or
(b)harassing, molesting or stalking the mother and/or children or any one of them;
such police officer may arrest the father without warrant.
The children shall spend no time with the paternal grandmother, Mrs Edwards, (‘the Intervener’) and there shall be no communication between the children and the Intervener without the prior written approval of the mother or order of a court exercising jurisdiction under the Family law Act 1975.
Pursuant to s 65DA(2) and s 62B of the Family law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All other extant applications for orders (except costs applications) be otherwise dismissed and removed from the list of cases awaiting finalisation. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).
Following the expiration of the appeal period, all subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Edwards & Granger 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 HOBART |
FILE NUMBER: HBC 81 of 2011
Mr Edwards
Applicant
And
Ms Granger
Respondent
And
Mrs Edwards
Intervener
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
INTRODUCTION
The children L (aged 10) and S (aged seven) are the children of Mr Edwards (‘the father’) and Ms Granger (‘the mother’). Mrs Edwards is the children’s paternal grandmother (‘the paternal grandmother’) who intervened in these proceedings.
After a violent attack and sexual assault upon the mother by the father in late 2010 the father was charged with a number of offences. After a contested jury trial in the Supreme Court of Tasmania, the father was convicted of a number of offences and he was sentenced to a term of imprisonment. The earliest possible date for his release is 28 July 2014.
Apart from one inadvertent event, the children have not seen or communicated with the father since November 2010.
The mother seeks orders that she have sole parental responsibility for the children and that that the children live with her. She also seeks an order pursuant to s 66B of the Family Law Act 1975 (Cth) (‘the Act’) that the father be restrained from having any contact with the children and if the father breaches that restraint order he be arrested without warrant.
The father, who was represented during the hearing, seeks orders that he and the mother have equal shared parental responsibility for the children, that the children live with the mother but spend time and (and presumably or) communicate with him.
In cross-examination by the Independent Children’s Lawyer, the father indicated that if the elder child did not want to attend time with him (the father) it would be a matter for that child.
The paternal grandmother intervened in these proceedings and sought orders that the children spend time with her on alternate weekends and, in opening, she said she would anticipate that on some of those occasions the children would spend time and/or communicate with the father. The mother opposed that application.
At the trial, the paternal grandmother’s application was that the children spend every third Saturday with her for a minimum of two hours at times suitable to the mother. She proposes that they would meet at an agreed spot or have an agreed changeover. There would be no restriction on what she did with the children during the time and she also sought regular telephone calls. In addition she sought permission to attend at significant events such as football matches and end of year assemblies and the like.
Unsurprisingly, an Independent Children’s Lawyer was appointed and she sought orders substantially in terms of those sought by the mother.
THE ISSUES
The Independent Children’s Lawyer identified a number of issues to be determined, those being:-
(i)whether the children are to communicate with the father whilst the father is incarcerated;
(ii)whether the children spend time with the father whilst the father is incarcerated;
(iii)whether the children communicate with the father upon the father’s release from prison;
(iv)whether the children spend time with the father upon the father’s release from prison, and if so, the amount of time the children spend with the father;
(v)whether the children are to communicate and/or spend time with the paternal grandmother;
(vi)the father’s capacity in respect of court orders and measures which may be required to ensure the children and the mother’s safety (if in fact there is an issue as to their safety);
(vii)Parental responsibility.
In determining these issues the Court will need to balance if there is a benefit in the children maintaining a relationship with the father and if so to consider such benefit against any risks to the children and/or to the mother as the children’s primary carer. All these need to be considered in the light of the evidence and the relevant factors and considerations under the Act.
THE PROCEEDINGS
These proceedings were filed before the commencement of the Family Law Legislation Amendment (Family Violence and other Measures) Act 2011.
It was conceded by the father that there is no statutory presumption that the children spend time with each parent having regard to the father’s convictions in the Supreme Court of Tasmania.
I am satisfied that pursuant to s 69ZR(1) of the Act and pursuant to s 69ZX(3) of the Act that it was appropriate for the Court to receive into evidence the findings and judgments of the Supreme Court of Tasmania and the Tasmanian Court of Criminal Appeal in terms of the convictions. Further that pursuant to s 69ZX of the Act that there was no evidence led that challenged the integrity or correctness of the verdict in the Supreme Court, the facts of the matter including comments, findings, inferences or conclusions drawn by the Supreme Court judge as set out in her comments on sentence.[1]
[1] Exhibit ICL 1.
BACKGROUND
The father is aged 41. The mother is aged 39. The parties married in early 2000. The child L was born in January 2003 and is aged 10. The child S was born in November 2005 and is now aged eight.
On the evidence, I am satisfied that the parties separated on 26 September 2010 but remained living under the same roof until about 26 October 2010, when the father moved out of the then matrimonial home.
It was an agreed fact that on 31 October 2010 the father took both children aside and told them that he was going away forever and they would never see him again. He gave each of the children personal mementoes of his and requested that they look after them and use them to remember him by.
On 16 November 2010 the father discovered that the mother had been searching for a home to rent and said to the mother, in a hateful voice, that he hoped she would “rot in hell”. The father that day resigned from his place of employment and wrote a suicide note outlining his intention to commit suicide.
On 17 November 2010 the father went to the former matrimonial home where he read the mother his suicide note and subsequently attacked her, including raping her, sexually assaulting her and assaulting her.
Unsurprisingly, the police arrested the father and he was charged with a number of serious criminal offences. The father was initially refused bail but in November 2010 he was given conditional bail. Those conditions included restrictions on contact with the mother. In addition a Family Violence Order was made against the father for the protection of the mother and the children.
The mother suffered physical, emotional and psychological injuries as a result of the violence and sought medical treatment and assistance.
In early 2011 the father was charged in the Magistrates Court with one count of breach of bail and one count of breach of the Family Violence Orders. The charges related to the father withdrawing the mother’s wages from her bank account and then sending a text message to a friend asking the mother to take the children and his possessions back to the house so she could receive her money back. In terms of this part of the background the father conceded that he had gone to the bank, ascertained the amount in the account and had withdrawn all of the funds knowing that he had not, in recent times, placed any funds in those accounts. In June 2011 the father entered a plea of guilty to those charges of the breach of the Family Violence Order and breach of bail and received a six weeks term of imprisonment suspended on the condition that he was of good behaviour for 15 months.
In respect of the charges arising from the violence upon the mother on 17 November 2010 the father was convicted after a trial in the Supreme Court of Tasmania. He was sentenced to a period of five and one half years of imprisonment with a three year non-parole period. He was placed on the Community Protection Offenders Register for a period of 10 years.
In October 2011 the father filed a notice of appeal against both the convictions and the sentence. The father did not proceed with the appeal in respect of conviction but pursued the appeal in regard to the sentence. That appeal was dismissed in August 2012. In paragraph 30 of the appeal the Reasons for the Judgment in the Court of Criminal Appeal, Tennant J noted in regard to the factors as relevant to the case being:-[2]
[2] PTR v Tasmania [2012] TASCCA 8.
·The [father] was sentenced in respect of nine offences.
·All the crimes were serious, one, that of rape, being one of the more serious crimes dealt with in this jurisdiction.
·The crimes were committed against the [mother] in what had recently been the parties' family home. The commission of the crimes constituted a gross breach of trust.
·The crimes were committed in circumstances where the [father] effectively tricked [the mother] into agreeing to being alone with him, and where he planned to read her a suicide note and if possible have sexual contact with her (no finding was made he planned to commit the sexual crimes he did).
·The crimes were not crimes of passion, in the sense of crimes committed in immediate response to some significant stressor. There was an element of planning.
·Even apart from the sexual violence, the crimes involved actual physical violence and threats of violence.
·The crimes involved domination, physical degradation and humiliation of the [mother].
·The crimes were committed in circumstances where it had been made clear, prior to the day, that the [mother] did not wish to continue with the parties' marriage, a position which the [father] would not accept. As a consequence he was in a highly emotional state. It was accepted that during the reading of the suicide note he was crying.
·Prior to these crimes, the [father] was a good and loving father to his children, had consistently worked and provided for his family and was well thought of in his workplace. He had no prior convictions.
·The [father] had lost a great deal as a consequence of these crimes. He had lost contact with his children and faced an uncertain future as far as that was concerned. While he had resigned from his employment the day before the crimes were committed in anticipation of taking his own life, he will have considerable difficulty obtaining employment upon release.
·Incarceration will be difficult for the [father].
·The [father] was not entitled to any discount on sentence for a plea of guilty.
·The [father] had shown no remorse. The [father] gave evidence at trial during which he maintained the position that no assaults occurred and any sexual acts had been consensual. The [father’s] written and oral submissions on the hearing of the appeal were to the effect he had not committed any of these crimes.
·The impact on the [mother] has been significant and will require that she have ongoing psychological treatment.
The father took occupation of the matrimonial home in late November/early December 2010 and remained in that home for some time. The father declined to participate in the sale of the property. As a consequence he lived in the property and shared it with another person for some time. He made no loan repayments (although he had some capacity to do so) and did not obtain any rent or income from the person with whom he shared the premises. The premises were eventually sold by the mortgagee of the home after taking possession. As a consequence of this behaviour by the father, the mother has been left with a liability of about $80,000, the father having become a bankrupt.
The parties’ marriage has now been brought to an end.
These proceedings were commenced in the Federal Magistrates Court (as it then was) but were transferred to the Family Court.
In these Reasons any statement of fact is to be regarded as a finding of fact unless the contrary is indicated from the context of the statement.
THE LAW
When determining orders the approach is governed by Part VII of the Act. The objects of Part VII of the Act and the principles underlying them are set out in s 60B.
Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case) a Court exercising jurisdiction under that Act may make such parenting order as it considered appropriate.
The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act.
If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must then consider the children spending substantial and significant time with each parent. In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable. If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).
These proceedings were commenced before 7 June 2012, and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date do not apply to these proceedings, and the provisions in force immediately before that date continue to apply.
THE EVIDENCE
The Father
The father gave evidence in accordance with his affidavit sworn 31 May 2013 and filed 3 June 2013. He did not rely upon or read into evidence the statutory declaration which was Annexure B to his affidavit. Accordingly, that was not part of the material relied upon by the father in his case. In that affidavit the father sought orders that the children speak to him twice a week by telephone and correspond with him whilst he is incarcerated and that he be permitted to send them presents. He also sought an order that the children be permitted to visit with him each Saturday and Sunday whilst he is incarcerated. Upon his release, the father sought orders that there be shared care and that the children spend time with him on a weekly basis and half of the school holidays. The father denies that he committed the offences to which he was convicted and sentenced and asserted that it is part of a long running campaign by the mother to exclude him from the children’s lives and the children from his life.
The father’s evidence was problematic, to say the least. He was cross-examined in relation to the inconsistent statements he made to Dr W about a child’s motorbike on pages 27 and 28 of the report. The father’s evidence in this regard could only be described as contradictory and likely to be untruthful. I am satisfied that the father took the child’s motorcycle and said that the child could not have it back unless the mother allowed him to see the children. This took place after the events on 17 November 2010.
The father was cross-examined in relation to the removal of the money from the joint account which was, clearly, the mother’s income. The father prevaricated in respect of that evidence. It was clear he knew the money in that account was not his and had not been placed there by him. I accept the evidence of the mother that the father used this as another device to encourage her to enable him to see the children. He pleaded guilty to offences in respect of breach of bail in that regard.
The father was cross-examined in relation to the agreement he had entered into with the mother to set up boundaries. Irrespective of that agreement, the father ignored that agreement and breached the boundaries before the events on 17 November 2010 by going to the mother’s room, opening her emails and accessing her telephone. He had and continues to have no insight into the impact which this breach of agreement and overall breach of trust has had upon the mother.
The father was asked to facilitate the sale of the matrimonial property. He would not engage in that process but lived in the home without paying the mortgage and without seeking contributions from someone who shared the home with him. The house was sold pursuant to mortgagee sale which left a debt of $80,000. The father became a bankrupt and the whole of that liability is now that of the mother. The father was indifferent to the financial consequences. Similarly, he was at best indifferent to the financial consequences when he withdrew the money that was the mother’s wages from her bank account; it was an example of his controlling and domineering nature. They can only be characterised as financial abuse of the mother by the father.
The father was abusive of his father’s partner, Ms E, as he believed she was supportive of the mother. The father conceded that when he went to the house in which Ms E lived and she asked him to leave, he initially declined to do so. A Family Violence Order was made against him in 2011 arising out of those events and his evidence in that regard was unsatisfactory. He prevaricated and only when he was directed from the bench about how to answer questions was he slightly more forthcoming.
On his own evidence, the father said he was jealous, possessive and controlling of the mother. He has said to experts that he hated the mother. He denies the criminal offences for which he was convicted and continues to deny those offences.
He was unimpressive as a witness. He was not frank in his answers and some of the examples are set out above. There is evidence that the father regularly contacted the mother by telephone and text.
Despite the events of 17 November 2010 the father encouraged the paternal grandmother and the father’s sister to attend at the mother’s home.
Chillingly, the father acknowledged that when the mother gave evidence in the criminal proceedings she looked distressed, was shaking and it looked like it was harrowing experience for her yet, in paragraph 2 of his affidavit filed in this Court, he observes that the mother has had nearly three years to address the custody dispute. At best he has little or no insight into the impact of his behaviour upon her.
When questioned about what he would say to the children, about the incident involving their mother on 17 November 2010 and his subsequent conviction, when they raised this issue the father could offer no satisfactory response. I am satisfied that he is likely to pursue his inherently implausible version of events that the children’s mother (their primary parent) had made false allegations which led to the father being falsely imprisoned when in fact there is no reasonable doubt that he did so. When cross-examined on whether he will tell the boys “his side of the events” the father said he will do that when they are 18 years old. He denied that he would do so now, I do not believe him. His answer was deliberately evasive. The father has told experts that he will see the children even if he goes back to prison. The father says he has now changed his mind in that respect despite stopping counselling. I do not believe him.
It is still the desire of the father to live near the mother and jointly parent. At best he has not reflected on what this will be like for the mother, as primary carer of the children and consequently for the children.
Observing him give evidence and hearing his evidence he appeared callous or indifferent to the circumstances in which he placed the mother. Similarly his approach (as set out in paragraphs 70-73 of the mother’s affidavit) in informing the children of his desire to commit suicide (albeit indirectly) demonstrates he had little insight into the impact that this would have had on the then seven and a half year old and almost five year old children. Alternatively, he may still have been aware of such impact but was indifferent to it as that behaviour could be used as a method of intimidating the mother into reconciling with him in the abusive regime he had previously created in that family.
Prison records show[3] that whilst in prison the father has had discipline issues and has been defiant to prison officers.
[3] Exhibit ICL 1 – Prison case notes page 713.
The father will say whatever it takes to get a result whether true or false. Examples of this could be seen in a number of areas.
The first was in relation to his evidence about seeing the children (which I have referred to later in these Reasons) where he made it clear to the Court and Dr W that he would be seeing the children whether it was legal or not. His endeavours to redefine what he said are inept and untruthful.
Another example of this reconstructed evidence was in his obfuscation as to what he meant when he said to Ms N, the Family Consultant that he could fully understand why Family Violence Orders and court orders were breached by men.
This comment must be seen in the context that the father met the Family Consultant, Ms N, on 9 June 2011. The father had been charged with offences relating to breach of bail and breach of Family Violence Orders and he had appeared in the State Magistrates Court in February, March and April 2011 and where he had entered a guilty plea in that Court about two weeks later.
The father claims he was not controlling but these offences to which he pleaded guilty related to[4];
[the father] withdrawing [the mother’s] wages from [her] bank account and send a text to a friend asking [the mother] to bring the children and his possessions to the house so that [the mother] could get her money back.
[4] At paragraph 103 of the mother’s trial affidavit filed 3 June 2013.
It is also an example of the father’s controlling and intimidating behaviour, about which he does not acknowledge.
A further example was his evidence of the events at the X Hotel. The father gave evidence that the interaction between him and the mother was consensual and was at her invitation. When pressed by counsel for the Independent Children’s Lawyer about an earlier incident the father said that he was offered such interaction and he declined, he went on to say that he then followed the mother into a bathroom where he says they had consensual interaction. When pressed about his oral evidence and an inconsistent statement of his contained in paragraph 10 of his affidavit swore and filed 5 May 2011, he conceded that he had been untruthful about that part of his evidence.
An example of the quality of the father’s evidence was when he was asked how much he had to drink in September 2010 (when the mother allegedly ignored him). The father said he had some stubbies of beer and two scotches. The father was cross-examined as to a statement he had made in the criminal proceedings as to a larger quantity of alcohol. He had constructed his evidence to meet his perceived different needs in different courts and to minimise his behaviour and culpability.
The father endeavoured to rely upon an affidavit of his sister as to an alleged affair by the mother. The father did not disclose that the deponent of the statutory declaration was his sister but when an objection was made his counsel did not press its tender.
The father is aware of the mother’s fragile mental health but does not accept it. The father did not encourage his family to apologise for the serious threats made to the mother by his family members at the time of his sentencing and incarceration for crimes committed by him on 17 November 2010.
The father claimed that the mother had threatened him with a knife. This was in relation to the events on 17 November 2010 but this statement was provided out of context. I accept the evidence of the mother that this occurred when she was trying to escape him and he easily disarmed her. The father made serious attempts to kill himself. The father asserted that the mother was plotting to exclude him from the children lives when in fact she had hoped for an amicable break up with him spending significant time and remaining involved with the children.
The father asserted in evidence that he would follow advice of a psychologist in terms of the processes initially suggested by Dr W, however, the father would not accept the evidence of the psychologist that the mother has and continues to suffer psychological trauma.
The father’s evidence is unreliable and at times untruthful.
The Paternal Grandmother
Mrs Edwards (‘the paternal grandmother’) relied on her three affidavits filed on 30 August 2012, 24 January 2013 and 19 August 2013. Those affidavits were read into evidence.
In some respects the paternal grandmother’s affidavits were of limited value as much of what she said was of a cheer squad variety. She sat through the criminal trial and formed the view that the father had committed no offence and that his imprisonment was as a result of fabricated allegations by the mother.
The paternal grandmother said that members of her family were upset at the charges and angry at the allegations and subsequent conviction and sentence of the father. Members of the father’s family talked about the asserted false allegations, including with the father, prior to his incarceration.
The paternal grandmother said she believed an injustice had been done to her son. She said she had been very angry in the past but this anger had now moderated. She was aware of the sentiments expressed by her family after the father was sentenced and has taken no steps to have those threats withdrawn or sought to have apologies made to the mother.
The paternal grandmother said that the relationship between her and the mother prior to 17 November 2010 was cordial but not overly friendly.
In these circumstances it is likely that the paternal grandmother will be critical of the mother to the children if they are left in her unsupervised care.
The paternal grandmother is strongly aligned with the father and her evidence is coloured by that approach. She states that she loves the father and she would do anything for him.
The paternal grandmother was cross-examined by counsel for the Independent Children’s Lawyer. In that cross-examination she conceded that, at times, she was in two minds about whether her son had committed the crimes to which he was convicted or had not. The paternal grandmother had not (until that time) expressed that view to the father or to members of her family. She had remained with them in expressing a fixed view that the father was innocent and that the mother had fabricated evidence.
In her evidence the paternal grandmother struggled in relation to her loyalty to the father and her previous good views of the mother. The paternal grandmother agreed that prior to 17 November 2010 she had thought well of the mother and that the mother had done a good job with the children and was a good mother.
Cross-examination showed that the paternal grandmother had exaggerated some aspects of her evidence including the extent of the time she visited the father and mother’s home and the opportunity she had to observe his interaction with the children.
Strangely, she had not wholly read the report of Dr W and had not read the report of the mother’s psychologist, Dr D, notwithstanding the paternal grandmother’s strong view (albeit watered down during cross-examination) that the mother was feigning the impacts of the crimes upon her.
When pressed, the paternal grandmother conceded that the mother had prior to 17 November 2010 raised concerns about the father and his controlling and abusive behaviour. The paternal grandmother endeavoured to understate the concerns she had expressed to the mother in relation to the father being “moody”.
There was an occasion after 17 November 2010, and before the father’s incarceration, when there was an inadvertent meeting between the father and the paternal grandmother (in one car) and the mother and children (in another car) at a shopping centre. The paternal grandmother knew that an interaction like this put the father, her son, at risk of having his bail revoked. Yet, she and the father remained. They waited for the mother to leave (which was quite appropriate in terms of the mother) and expressed some sadness that the children did not see the father.
I am satisfied that the paternal grandmother is unlikely to stand up to the father. If she spends time with the children and the father is present or available for communications I am satisfied that she would bend to his will and allow the children to spend time or communicate with the father. The paternal grandmother’s approach in terms of that interaction at the supermarket and her failure to even tell the father that she was in two minds about his guilt or not are indicative of the impact of his power on her. She described the father as “stubborn”.
The paternal grandmother asserted she was a 64 year old healthcare worker who has 17 grandchildren and says that all she wants to do is spend time with these children. She asserted in her submissions that she tried to deal with the mother but the mother has refused to allow her to see the children. The paternal grandmother says she will be responsible with regard to the children. The paternal grandmother has an ambivalent view about whether the father committed a rape upon the mother. In her discussions with the single expert, Dr W, he reports his observations of the paternal grandmother’s understanding of the family violence which were:-
It would appear that [the paternal grandmother] recognises that an assault took place although she did not state openly to the author such an understanding. In her most recent Application however, she refers to the ‘rape’ that occurred, which would suggest to the author that she accepts that it was a sexual assault. However, she does not appear to accept that there has been any significant negative psychological impact upon the mother. She reported to the author her understanding that the mother is now working and had been going out socially, which to her were signs that the mother was well psychologically, and that therefore any negative psychological impact she was reporting was not true.
The paternal grandmother obfuscated in terms of her views as to whether the father committed sexual assault on the mother and whether the mother has really suffered a psychological trauma. In evidence she initially asserted that she absolutely believed that the mother had falsely asserted the assault and had feigned psychological illness. When pressed on this issue by counsel for the Independent Children’s Lawyer the paternal grandmother said that it was possible to be either way. It is clear that she was unwilling to challenge the impacts the father’s behaviour has had on the family, and in fact the paternal family’s, broader version that the father had been wrongly convicted.
It thus begs the question that if the paternal grandmother spends time with the children whether she would be strong enough to confront the father to prevent him seeing the children, prevent him from taking the children or expressing his views about the mother to the children.
I have concerns about the reliability of her evidence. She is unable to hold a view which does not appear to accord with her son’s. She exaggerated her relationship with the children and now seeks to spend more time with them than she did prior to the events on 17 November 2010. Her family is clearly hostile to the mother as shown in the evidence of one of the children’s paternal aunts in court, to which I have alluded elsewhere as “the Facebook entries.” The paternal grandmother will likely defer to her son and the risks associated with him also become associated with her.
The Mother
The mother gave evidence in accordance with her affidavits filed 3 June 2013 and 4 September 2013. That material (with the exception of paragraph 21 of her earlier affidavit) was read into evidence subject to weight. In addition the mother provided some evidence in chief arising out of the cross-examination and evidence of the father earlier in the hearing.
The father had received severance pay when he left his employment on or shortly before 17 November 2010 and I accept that the first the mother heard of the father receiving that sum, totalling about $13,000, was when he gave evidence during the hearing.
As to the extent of the father’s gambling, the mother said that he spent far more than $100 or $200 per week and at times he had run up credit cards and on one occasion spent $3,000. The mother said this had a huge impact on the family and that as a consequence she had trouble with managing finances. She said that the father asserted to her during the relationship that gambling was not a problem, when it clearly was. The mother said, and I accept, that that part of the reason they had lost an earlier home was due to the increase in interest rates combined with the father’s spending on gambling.
The mother gave evidence, and I accept that the father had a collection of pornographic DVD’s and that it was more extensive than conceded by the father. The mother gave evidence, and I accept that she had made no threats to the father or members of his family following the events on 17 November 2010. Similarly I accept her evidence as to the list of the belongings she took with her shortly after the events on 17 November 2010.
The mother has been in employment in the same industry for about 22 years. Soon after the birth of their second child the mother endeavoured to work a four day week so she could undertake her responsibilities as a parent. She had tried to persuade the father, in earlier times, to abandon shift work and be more available to the family. He was unwilling to do so, claiming the need for funds.
As to his controlling nature she said that this had become significant after the birth of the first child and became worse over the years. This controlling behaviour included asserting that she had affairs. She said that from time to time the father directed her in terms of the clothing she should wear.
The impact of the father’s failure to make mortgage payments on the former matrimonial home (in circumstances where he had termination pay out which could have been used to ameliorate that problem), followed by his removal of the mother’s wages from the joint account in 2011 and his subsequent self application for a bankruptcy order has left the mother in parlous financial circumstance. With the debt arising from the forced sale of the former matrimonial home she owes the bank some $80,000. The mother says she is likely to become bankrupt and this has had a profound impact upon her. She is unable to borrow money and it has caused her to worry and be anxious. The mother has always had a good credit rating but this has now been lost. She says, and in the past has shown, that she is a self-sufficient person who now needs to ask others for help which she finds difficult. The mother feels ashamed by her financial circumstances. Her demeanour when giving this evidence had great impact and I accept that evidence as being frank.
One of the consequences of this impecuniosity is that the mother and the children now economically live from week to week. The mother is unable to afford to see her psychologist as much as she needs and is currently on a plan where she is able to see the psychologist 10 times a year. The mother’s evidence was that these times need to be adjusted having regard to various court events. Another consequence would be that the mother is unable to provide any financial assistance in relation to any prospective arrangements to enable the father to see the children and/or to fund help to enable her or the children to cope with any consequences or issues arising from that process.
The mother made some admissions against her interest such as the threats by the father that she would “never see the children again”, she did not take as a physical threat and that both she and the father, when they argued, would endeavour to move the argument away from the children.
The mother said that she had not informed the children of the episodes of violence which the children apparently remembered. I accept her evidence in that respect. I also accept her evidence of the limited explanation she gave to the children in relation to the events on 17 November 2010. After separation in late September 2010 and before 17 November 2010 the mother encouraged and enabled the relationship between the children and the father.
The mother said, as to the impact on the children after the event the following:-[5]
The days following events on 17 November 2010 were not only traumatic for the children but emotionally draining. The children presented as being sad, clingy and asked many questions of me regarding what “daddy did to mummy” which I was unable to answer, again due to their age and limitation of understanding of the crimes their father had committed.
[5] At paragraph 92 of the Mother’s trial affidavit filed the 3 June 2013.
The mother went on to say she told the children that the father was incarcerated because he hurt their mother. That is the only detail they have been given and she has not given them further details. This was a child-centred approach by the mother. The mother made it clear to both counsel for the father and counsel for the Independent Children’s Lawyer that she would have enormous difficulties coping with seeing the father or having any form or contact with him whether it be by letter, telephone or face-to-face time with the children. She is concerned that the children could not protect themselves from physical or emotional abuse by the father and she genuinely believes that she and the children are at risk of injury or death at the hands of the father when he leaves prison.
On the occasion when the mother accidentally met the father at court she coped badly and needed to see Dr D to assist her with the impact of that encounter. The mother says that she finds it difficult to talk to the children about the father and often has to take time away from the children to compose herself before she can effectively deal with it.
When cross-examined by the paternal grandmother the mother said that she was verbally abused by her after the event and had received no support from the father’s family. A note had been left on her door seeking information but not seeking information as to the well-being of her and the children. She is concerned that the father’s family could inflict emotional harm on the children as could the father. This could be the father or his family expressing their views of the crimes that were committed upon her including asserting that the mother had provided false evidence and it was her false allegations that had led to the father’s conviction and incarceration. Having regard to the approach adopted by the father’s family, particularly the Facebook entries (for which the father could not be held responsible), but also the insensitive approaches to the mother by the father’s family, the use of the home and the financial circumstances which she found herself in, that is not an unrealistic expectation.
One of the telling factors in relation to the father’s family was during the cross-examination of the mother. The children’s paternal grandfather and a paternal aunt were sitting in the back of the Court. The aunt had a fixed and determined view of the mother and at one stage the mother, who was clearly upset and fragile asked that she move out of her line of sight. There was shaking of head by the paternal aunt and eventually I directed that she and the paternal grandfather leave. The paternal aunt’s expression was disrespectful and angry and displayed arrogance to the Court and to the mother.
When giving evidence the mother’s demeanour included:-
(i)shivering when sitting in the witness box;
(ii)a quavering voice;
(iii)being in tears and on the verge of tears many times;
(iv)obviously being jumpy;
(v)closing her eyes on many occasions to regain her composure.
The mother appeared anxious and stressed whilst giving evidence. Given my observations of her and the evidence of Dr D I find that this was the case.
The mother says, I accept, that over the time surrounding the separation the father was more interested in his relationship with her and focused on her and not the children. He followed her and raised issues when she was engaged with the children. The mother says, and I accept, that the father was verbally aggressive to her as she asserted in her written and oral evidence. In terms of the events on 31 October 2010 when the father threatened suicide, she said the father’s demeanour was of heightened emotion, flighty and anxious and on the turn of aggressive. She said she was “absolutely” scared. Yet he came back and said nothing had happened and provided no explanation to the children. It was, the mother’s view that separation should be amicable in the hope that there would be no aggression or issues. The mother’s strong, consistent and persistent view was that it is not in the best interests of the children to see the father. She said in her earlier affidavit:-[6]
I am deeply concerned that I would not cope with having to facilitate time between [the father] and the children. It was [the father’s] actions that damaged my ability to cope. Although the major contributor was the assault, his previous abuse and violence to me also contributed.
[6] At paragraph 189 of the Mother’s affidavit filed 3 June 2013.
Having regard to her evidence and that of Dr D I accept that evidence of the mother including her concerns of the impact of that on the children and their emotional well-being as well as her emotional well-being.
The mother gave evidence about Dr D’s report. She said she trusted Dr D and that she had helped her. She had talked to Dr D about what arrangements could be put in place for the father to see the children. It is clear that the mother does not want the father to see the children and fears that she is unable to cope. She discussed plans with Dr D because she felt that it was an option for the Court to make that order and perhaps there may be an inevitable meeting at some later time. The mother said that it would be a terrible burden for her to bear with any form of contact or communication with the father whatsoever.
The mother disagrees with the implicit view of Dr W that she would cope. The mother hopes that she would and said she would comply with Court orders but it is clear from her evidence that it would be extraordinarily difficult.
Having regard to her evidence (and that of Dr D) I accept that the mother would struggle emotionally and psychologically if the children spent time and/or communicated with the father or members of his family. The mother has concerns of the psychological impact on the children if the father spends time or communicates with them.
As to the father’s elder child, B, the mother said that he had not ever been part of their family. The father paid child support for B. The mother had positively discussed with the father whether they should be involved with B, but the father displayed no effective interest in spending time or communicating with B. The father’s lack of interest in B and his determined interest in the subject children is such that the mother fears that part of the father’s application is about his relationship with her. Having heard all the evidence that fear is well founded. It is clear that the father wants the mother in his life in some form or another. Even his answer to the questions earlier about his love for the mother and whether it had changed was troubling in that the answer was vague.
The mother gave evidence in relation to the two events of violence in 2007 and 2008. The first being the slap on the face set out in paragraph 11 of the mother’s affidavit filed the 30 of March 2011, paragraph 18 of her affidavit filed 30 March 2011[7] and the father’s response at paragraph 11 in his affidavit filed the 5 May 2011. There were clearly two instances and the mother has been consistent in relation to the instance where the child S saw her being slapped across the face. The other incident arose out of controlling behaviour by the father at around the same time when the mother went, in August 2007, to a function and the father wanted to leave and the mother did not. When they went home the mother proposed to leave the home and the father prevented her from doing so. When the mother endeavoured to force a way to leave the father engaged in violent, controlling behaviour of her. I accept and prefer the mother’s evidence as to both events.
[7] Exhibit ICL 3.
The mother gave evidence that during the assaults and attacks upon her on 17 November 2010 she believed that she was going to be killed by the father. She continues to have that fear for herself and for the children. From her perspective she has lost the security of a home, the ability to buy her own home, financial stability, a sense of safety and a sense of trust. She has lost some of her possessions and her connection with the paternal family. The mother says that she is not the person she was before. The mother gave evidence that she now has increased vigilance and fear including lack of sleep, watching cars go by the home and not allowing the children to play in the front yard. I accept that her evidence in that respect was frank.
The mother said that when the father was refused intimacy he would satisfy himself in circumstances where he would watch pornographic shows and occasionally left DVDs and/or magazines around the then home which were accessible to the children. The mother has concerns as to the father’s ability to care for the children having regard to that behaviour.
The father is not responsible when it comes to money having regard to his gambling and his approach with the former matrimonial home.
The mother is concerned that the father or members of his family would tell the children of their views as to the events which may undermine the relationship between the children and their primary carer. That fear is well-founded.
The mother continues to believe that the paternal grandmother supports her son (the father), notwithstanding the amelioration of that stance by the paternal grandmother during her evidence. Nothing the mother has heard changed her views in that regard. Nothing the father did in the course of this hearing assisted her in changing her views. The fact that the father has shown no remorse and continues to assert that the assault did not occur has entrenched the mother’s fears and concerns about the father and his broader family.
The mother’s evidence about the miscommunication between Dr D and Dr W was consistent with the evidence given by Dr D.
Counsel for the mother submitted that she was a reliable witness. As can be read later in these Reasons, I have accepted that submission. The mother had a good reason to be bitter with the father. She had been subjected to a violent attack yet she acknowledged that the children had loved their father and that he had been involved in their lives. She has protected the children from the full impact of the events which occurred on 17 November 2010. She has had the opportunity, in the last three years, to turn the children against their father, but has not done so. Interestingly when she was asked about how the children would be told when they find out (as they inevitably will in these times of Google and searches) of the events leading to their father’s imprisonment she said it would be inappropriate for her to say so which showed great insight. Having regard to all of the evidence and my assessment of the mother I generally prefer her evidence to that of the father and the paternal grandmother.
The mother was a credible witness. She made admissions against interest and clearly tried to answer questions frankly without an agenda. Whilst her evidence is, of course, subjective she was an impressive witness and I accept her evidence as frank and reliable.
Doctor D
Dr D is the mother’s treating psychologist. Dr D has seen the mother on numerous occasions since November 2010 and provided her first report in May 2011.
Dr D provided an affidavit sworn 31 May 2013 and filed 3 June 2013. That affidavit, attached curriculum vitae and report were read into evidence. No issue was taken as to Dr D’s qualifications. Also attached to her affidavit was a letter sent by Dr D on 8 February 2013 to Dr W.
In her affidavit Dr D said that contact between the children and the father would destabilise the mother’s post-traumatic recovery. In her May 2011 report Dr D said that the mother suffered a severe post-traumatic stress response to the crimes committed upon her on 17 November 2010. In her February 2013 email to Dr W, Dr D said that the mother in essence, broke down psychologically at the prospect of one of the children spending time with the father.
There was confusion between Dr D and Dr W as to the mother’s alleged “acceptance” of the resumption of contact between the children and the father. Dr D’s report was based (but not overtly expressed to be) upon an assessment by someone other than her that it was safe for the mother and for the children for contact to occur and it was predicated on the basis that a compulsory order was to be made. On that basis the mother and Dr D looked at a way of communication followed by time, followed by a graduated increase in time. It was on the basis that the mother would be the subject of a coercive court order and how she may, if possible, cope in those circumstances.
Dr W took this as being the mother’s expression that she accepted that there ought to be a resumption of time between the father and the children.[8].
[8] At pages 35-38 of Dr W’s report filed 27 February 2013
That clearly was not the case and there was serious miscommunication between Dr D and Dr W.
The comments made by Dr D were made in the context that the orders were forced and that the Court or some independent person or group thought it was safe, and that was the best way forward if it was safe to move forward in that way.
The mother had, reluctantly, provided Dr D with a history or her intimate relationship with the father. If the history provided by the mother was correct (and I accept that it was), the sexual conduct of the father was a manifestation of violence in the relationship. This controlling sexualised behaviour by the father was increasing in its violent nature which can be seen through the events which occurred at a tavern to the events on 17 November 2010.
The father’s sexual conduct is a manifestation of violence in the relationship. The use of handcuffs by the father was a method of control.
Dr D’s evidence was that the mother’s symptoms of post-traumatic stress disorder were episodic and were related to various events such as the criminal proceedings, these proceedings, and is likely to occur in other times in terms of the time between the children and the father when the father is released from prison.
The impact of this on the mother has been profound and is likely to continue to be profound. At present she is just barely coping and is endeavouring to make efforts to rebuild her life. Her recovery is brittle.
After seeing Dr W and receiving an indication that time between the father and the children should commence; the mother was emotionally devastated. Dr D said the mother saw her within 48 hours and the mother was sobbing, shaking, and had difficulty with thinking and was highly anxious. If this were to continue it may have a profound impact on the mother’s ability to care for the children. To manage this, if that was at all possible (and in that regard Dr D had serious concerns), the mother would need fortnightly treatments until the father is released from prison and then weekly treatments. These treatments are beyond the financial abilities of the mother and the father.
The impact on the mother would be in terms of loss of sleep, appetite and weight and a reduction in her immune system. She would be hypersensitive (in the ways the mother had described in earlier evidence) and her capacity to provide a stable home for the children would be jeopardised. Only a no contact order would provide stability.
I accept this evidence of Dr Dl. Dr D was asked questions in relation to whether the mother’s responses and fears were genuine. Dr D said having regard to the nature, consistency and her observations of the mother’s reaction that her symptoms were real. The mother had fears (justifiable in the view of the Court) that the father would tell the children that the mother was the cause of his imprisonment by telling lies and that she was feigning her psychological injuries. The mother is terrified that she will be harmed or killed and is terrified that the children will be harmed or killed.
The evidence of Dr D was further that the mother will not improve if time and/or communication is allowed between the children and the father and it is likely to be much worse. The mother’s fears in terms of the father are multifaceted and are not entirely relieved by his present incarcerated circumstances. Dr D’s view was that the best case scenario for the mother was for there to be no contact in any form. Dr D was questioned by the paternal grandmother and Dr D said that the mother’s fears are genuine and is of the view that she is not believed by the paternal family. Having regard to the Facebook evidence of the father and the behaviour of one of the father’s sisters in court that is not an unrealistic fear held by the mother.
Dr D noted that the mother had said that the children had loved their father and when she had made a decision to leave she wanted to co-parent and had facilitated a co-parenting model up to 17 November 2011.
The mother had believed that the father would not hurt her but that trust, in the circumstances, has gone. Dr D says that the mother believes that she and the children are unsafe and that that is a real fear. The mother was concerned about the father, or his family, expressing their views of the events to the children and this is a part of the fears which the mother needs to deal with.
Dr D was a frank and compelling witness. The conclusion she reached as to the mother’s wellbeing (as her treating health care professional) were not seriously challenged. I accept her evidence as reliable.
Family Consultant
Ms N (‘the Family Consultant’) prepared a Children and Parents Issues Assessment after meeting with the mother, the mother and the children and then the father over a period of days in June 2011. The Report was part of Exhibit ICL 1.[9] The Family Consultant has had experience over many years and is qualified as a psychologist. Her qualifications were not in issue.
[9] At pages 817-835
The child L, who was then eight and a half years old, expressed views to the Family Consultant that he had fears of his father taking him away from his mother and disclosed that he had seen some conflict between his parents. He worries about spending time with the father.
The child S, who at that time was five and a half years old, was more open to spending time with his father. The Family Consultant’s view was that, having regard to the issues of violence, this was not a matter where the wishes of the children would necessarily assist in the Court’s consideration. She observed that the father identified, at that time, strong feelings of love for the mother (to which the father still exhibited some signs during evidence in this hearing) and the father believed the mother was refusing time so that she can “hurt the father”.
There was an inadvertent meeting between the father and the mother at the Court in June 2011.
Two things arose out of this. First, the reaction of the mother, which was observed by the Family Consultant and which she said was profound. The second was that the father initially acted appropriately and turned away. However, the Family Consultant said later that the father expressed to her the mother’s reaction was angry rather than distressed. This was incongruent with what the Family Consultant observed. The father also was unable to understand the distress of the children. The mother was concerned that the father may have been unable to understand the difference between the children being scared or angry which in itself could be a problem. In his meeting with the Family Consultant the father expressed concerns about the mother in terms of her alleged alcohol use, domestic violence, affairs and contacting him in breach of a Family Violence Order. His explanation and rationalisation of the mother’s use of knife in the events on 17 November 2010 was troubling.
The Family Consultant observed the father was angry with the mother particularly with her preventing him from seeing the children. The Family Consultant formed the view that the mother’s concerns suggest that the risk of getting this wrong could be life threatening.[10] The Family Consultant said that there are likely to be higher levels of risk for the mother if and when she re-partners and when the father is released from prison. On cross-examination by counsel for the mother the Family Consultant said the mother’s symptoms were extreme and it was an involuntary fear. The Family Consultant had not read anything which made her change her mind as to the views at that time.
[10] Exhibit ICL1, p 826 –Children and Parents Issues Assessment, page 9.
Her report is of some value but it must be seen in the context of being some two years old and the nature of the reports as being an issues assessment rather than a full family report. I have had regard to those circumstances and I accept the reliability of her evidence, albeit that it was taken some time ago.
Mr H
Mr H is a psychologist who provided evidence in accordance with his affidavit filed 5 July 2011. Mr H’s affidavit was read into evidence and there was no issue taken as to his qualifications.
Mr H provided therapeutic psychological assistance to the father between December 2010 and May 2011. The father did not rely upon this report and it was adduced in evidence by the Independent Children’s Lawyer. There is some explanation for this as the father was initially not represented.
When Mr H first saw the father, he (the father) was suffering from extreme levels of depression, anxiety and stress although these moderated to normal levels over the period of time that Mr H saw him.
In his report Mr H said that he spoke to the father in general terms about the distressing and apparently violent interaction.[11] The father had said this discussion was in relation the mother’s view of the events. Mr H said it was clearly expressed to him as being the father’s view of the event. I prefer the evidence of Mr H.
[11] At page 4 of Mr H’s report dated 14 June 2011.
Mr H also said:-[12]
[The father] said, “I still don’t know why I attacked my wife [the mother]. That’s not me. To hurt the person you love so much, that doesn’t make sense.
[12] At page 5 of Mr H’s report dated 14 June 2011.
The father had said that this assertion was just wrong. Mr H went to his notes and said that the comment made by the father was written by him in a concurrent note and it is his recollection of what the father said. I accept that the father said this to Mr H.
Mr H concluded, with a provisional diagnosis, that the father suffered from a chronic Adjustment Disorder with Mixed Disturbance of Emotions Conduct. The father did not complete the course of treatment and did not undertake any testing with other psychologists. I accept that evidence insofar as the completion of the treatment. There is no evidence that the father has undertaken any further psychological testing or psychological treatment. It is troubling that the father has no remorse, continues to deny his behaviour and did not treat his gambling addiction nor did he treat his behaviour in this respect. He has not engaged in any therapeutic treatment which in itself is troubling.
I accept the reliability of the evidence of Mr H.
Doctor W
Dr W was appointed a single expert for the purpose of preparing a report for these proceedings. That report was annexed to his affidavit filed 27 February 2013. Dr W is a qualified psychologist and his qualifications were not challenged. I accept his qualifications.
Dr W prepared a report in terms of the order made by this Court on 19 December 2011. He interviewed the mother, the children, the father, and the paternal grandmother on a number of occasions. In addition he had a telephone discussion with the mother’s treating psychologist Dr D. During his evidence Dr W was provided with the misunderstanding of Dr D. It substantially changed the evidence which he provided. Dr W had believed that the mother was supporting a model whereby the father spend time with the children where this was not the case.
Dr W opined that the father was not a risk to the mother or children of physical harm. When cross-examined in relation to the father’s behaviours in managing conflict, particularly on 17 November 2010 but also on 30 October 2010, Dr W conceded that he could have little confidence of the father being able to contain himself when stressed. Having considered the evidence of the father and the other evidence in these proceedings I disagree with Dr W’s assessment that the father was not a risk to the mother and/or the children.
Dr W noted that the father insisted that he had a consensual intimate relationship with the mother on 17 November 2010 despite considerable forensic evidence and objective evidence of those who saw the mother on that day and that it was inconsistent with the father’s determined attempts to commit suicide after the events with the mother.[13] On 17 November 2010 the father made a series of determined attempts to take his own life.
[13] As to the father’s attempts at suicide see paragraph 3.2 (page 5) of Mr H’s report.
Dr W said that the father asserted that the mother’s behaviour was a plot to keep the children away where it was the mother’s desire to co-parent up to the events of 17 November 2010. This assertion by the father was inconsistent with the mother’s openness to the father spending significant time with the children prior to 17 November 2010 and his acknowledgment of that arrangement.
Dr W went on to say that if the mother does not have the capacity to cope with communications then there should be no communication until she is able to cope. This is a significant change in the conclusions, although Dr W was concerned about the mother’s wellbeing where he observed the following:-[14]
Finally, the author would like to express his concern as to the mother’s psychological wellbeing and ability to care for her two children, in the process of her attending the forthcoming hearing of this matter.
[14] At page 55 of Dr W’s report filed 27 February 2013.
The mother expressed to Dr W her preference that the children spend no time with the father until they are of an age of understanding which Dr W took to be late teens.
Dr W said he was cautious about the mother’s ability to cope with written communication.
In cross-examination Dr W said his concerns were that he agreed that it would be artificial to separate the interests of the children from the mother’s psychological wellbeing as they are, in these circumstances interdependent. Dr W accepted that the evidence of the developing sexual abuse and control were indicative of coercive and controlling behaviour.
When cross-examined about the father’s financial approach in terms of his taking the mother’s wages and his behaviour in respect of the former matrimonial home Dr W said it amounted to economic controlling abusive behaviour. Relevantly that is my view of that behaviour.
Dr W acknowledged that the father had shown no remorse and no acknowledgment of his behaviour and was told that the father had repudiated what he had said to Mr H. The evidence was that the father showed no empathy in terms of the mother and that therapeutic intervention was unlikely be of any significant value.
From the report of Dr W it is clear that the father continues to have a sense of injustice, as does his family. It is, in the view of Dr W, likely that the father or member of his family would give their view of the events on 17 November 2010 and their views as to the mother’s alleged feigning of her emotional responses. Dr W said it would cause significant emotional distress to the children now and into the future and may adversely impact on their relationship with their mother.
Dr W said that the father’s statements that he would see the children even if he has to go back to prison and his statement that he would choose to live close to the children and the mother show at best a lack of insight or at worst continuing endeavours to control the mother. In addition the father speaks with a sense of hatred for the mother, when Dr W last saw him.
When cross-examined about the mother’s need for psychological assistance if some sort of contact or communication was permitted Dr W agreed that the mother would need such assistance but if there were no funds to provide for that then it would be “built in failure”.
Counsel for the Independent Children’s Lawyer, the mother and the father were critical of the evidence of the report of the single expert, Dr W. Counsel for the Independent Children’s Lawyer asserted that the mother’s therapist accepted that the resumption of contact would need to occur at some point. That was a miscommunication between Dr W and Dr D to which I referred earlier. In some ways it appeared that Dr W and Dr D’s assessments were permeated with a pre-conception that a way must be found to ensure time occurs between the children and the father and it is only how it occurs that has to be determined. Counsel for the mother asserted that Dr W’s report was infected by confirmatory bias.
There seemed to be a view held by Dr D and by Dr W that time would inevitable occur. That was a misconception by those experts in relation to these proceedings.
Dr W’s position moved soon after the commencement of cross-examination. It seemed that he treated the report of Dr D as a green light towards the father spending time with the children and assumed that it was appropriate and that this was an argument about how the time was spent rather than whether there would be time spent. He was not careful in his analysis of the risks of harm. That may well be that he assumed that it was a task of the Court.
FINDINGS OF FACT
Insofar as the evidence of the paternal grandmother is concerned, I repeat the comments I made earlier in these Reasons. She says that she believes the father has been falsely convicted and imprisoned, and that this arose by virtue of the false allegations of the mother. At times during cross-examination the paternal grandmother was ambivalent about that view. It is clear that she supports the father and does not challenge him. An example of this is her visit to the mother’s home just before Christmas in 2010 or 2011, she was likely to have been encouraged to do so by the father.
At page 45 of his report, Dr W reports his observations of the paternal grandmother’s understanding of the family violence which were:-[15]
It is the author’s opinion that the paternal grandmother has little understanding or acknowledgement of the family violence perpetrated by the father during the relationship. Therefore, since [the paternal grandmother] does not appear to understand or acknowledge the family violence perpetrated by [the father] upon [the mother], she would have no acknowledgement of the impact of such violence. More specifically, she reports sharing a similar attitude in this matter to [the father] in regards to the specific impact of the sexual assault, in that she believes that [the mother] has not been significantly impacted upon by the assault as evidenced in Facebook posts showing her going out socialising and by her returning to work. It is the author’s opinion that [the paternal grandmother] does not acknowledge the impact of any family violence perpetrated against her by the father.
The paternal grandmother has reported that although she and the extended family are very angry with the children’s mother for preventing them from having contact/communication with [the children], they love both boys and would not do anything that [sic] cause them psychological harm or do anything that would jeopardise the boys seeing their father or their father’s extended family. This would include not talking to the boys about the assault or causing them unnecessary distress through discussing issues to do with their mother. The author has no reason to doubt the grandmother’s conviction or capacity in this regard.
[15] Ibid at page 45 paragraph (gg) and (gi).
The single expert, Dr W, may have no reason to doubt such discussion, but given the nature of the paternal grandmother’s evidence, I have serious doubts in that respect.
The paternal grandmother had heard most of the evidence in the criminal and civil proceedings; she had seen the impact of the violent events on the mother when she gave evidence in the Supreme Court. The paternal grandmother, by her silence, endorsed the threats against the life of the mother made by her other children on Facebook.
The paternal grandmother was content to live in the parties’ home without making contribution to the mortgage. This meant that the mother’s financial ability to support the children has been adversely compromised. The paternal grandmother put her support of the father ahead of the financial well-being of the mother and consequently the children.
Having regard to all of the evidence I find that it is likely that the paternal grandmother would be critical of the mother if the children were in her unsupervised care and that the paternal grandmother would be susceptible to the father contacting or communicating with the children while they are with her.
The father agreed that the marriage had been rocky since about 2007 with increasing arguments. He acknowledged that there were arguments about his gambling but denied that he had a gambling problem, despite sometimes losing between $100 and $300 per week. He said the impact of his gambling was in terms of luxuries, such as going out. The father did not seek help with his gambling and he did not see it as a problem. He denied that he had difficulties with home loans as a consequence of his gambling.
The father’s approach with regard to gambling is an example of his lack of insight. He said he had no difficulties with the home loans during the course of the marriage (I do not believe him) and yet when he received a payout of $13,000 from his employer after 17 November 2010, he said, and was not challenged, that of that sum he spent $3,000 by way of bail money which he has subsequently applied towards payment of counsel for the purpose of this hearing. Of the balance of $10,000 the father asserted that he has spent less than $1,000 on gambling, food, supplies and other expenses. He says that the bulk of the money was spent purchasing personal property such as furniture, beds, including children’s beds, a television and DVDs. The father did not inform the mother of this money and he did not apply it towards the repayment of the loan.
After the events of 17 November 2010 the mother left the former matrimonial home and lived with the children in rented accommodation. The father was granted bail in late 2010 and re-occupied the former matrimonial home. The paternal grandmother resided in the home with him. He did not meet the mortgage repayments in circumstances where he had some capacity to at least make some contribution. Eventually, when demands were made by the mortgagee for him to meet that mortgage liability, the father filed a debtor’s petition and became a bankrupt. I find that the father was aware that the financial impact of defaulting under the terms of the mortgage would fall to the mother; and this was in the light of his knowledge that the only parent providing financial support for the children was the mother.
The end result was that his approach undermined the mother both emotionally and financially. I have had regard to this in terms of his parenting application. The father put his anger, sense of resentment and self-entitlement ahead of the needs of the children and his responsibilities to them.
The mother acknowledged that the father was involved in most aspects of the children’s lives up until 17 November 2010, and I accept that evidence. The father said that the parties in effect jointly parented with the mother being slightly more involved than him, in areas such as birthday presents, school lunches and the like. Having heard that evidence, and for the Reasons set out elsewhere I prefer the evidence of the mother. I am satisfied that the mother was, and remains, the primary carer of the children.
The father gave evidence that he had suffered from a post-traumatic stress disorder on two occasions during the course of his relationship with the mother. The first occasion was at time when he was in military service in his mid to late twenties and the mother supported him through that event. The father was assaulted in his then work in 1999 or 2000 and the mother also assisted him through that incident of post-traumatic stress disorder. The father’s symptoms were that he was emotional, not interested in going out, inward looking, hyper-sensitive and suffered flashbacks. Some of these indicia were how the father was dealing with the events of 2010. The father denied the extent of his behaviour (as set out in paragraph 46 of the mother’s trial affidavit[16]) but said there was some truth to it. The father had informed Dr W[17] that he was shut down and more of a home body. He also told Mr H that he was changing. I accept that the father suffered a stress disorder which impacted on his ability to relate to others.
[16] Filed 3 June 2013.
[17] At page 47 of Dr W’s report filed 27 February 2013.
The father does not believe that the mother has a post-traumatic stress disorder, despite the evidence of the mother, Dr D (that the mother has that condition), Dr W (that the mother is fragile) and the evidence of the Family Consultant that the mother is fearful. I find that the mother is anxious, fearful and suffers from a post-traumatic stress disorder as asserted by Dr D and that the mother struggles to cope emotionally. I find that it is unlikely that the father will be responsive or insightful of the mother’s health or be aware of the impact the time he spends with the children has on the mother. The father has little or no insight into the impact of his behaviour upon the mother.
The father said that when he is released from prison he plans to obtain employment as a cook or in truck driving. He has a drivers licence (both military and civil) to enable him to drive trucks and although he has no formal qualifications as a cook he has significant experience in that regard. He plans to live with his sister and has had discussions with her. Once he has found employment and found his feet the father says he proposes to find his own accommodation near the school which the children attend. He proposes that when the children spend time with him it will be built up to week about time. The father concedes that if the child L does not wish to go he ought not to be forced to attend.
The father had access to a bank account in which the mother banked her wages. In early 2011, after the events of 17 November 2010 and whilst the father was on bail awaiting trial for that violence to the mother, he withdrew $1,300 from that account. He knew or ought to have known that the money was not his and that it was the mother’s wages. He was not financially supporting the children and implicitly knew that it was from this income that the mother supported herself and the children (including her housing rental). When the mother sought the return of her funds the father indirectly offered to repay the whole of the $1,300 if the mother would let him see the children. He said that at the suggestion of a local police officer he repaid slightly more than half of that money back. This meant that he kept about half of the mother’s wages. He may have had access to that sum but he had no entitlement.
Section 60CC(3)(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 ;
[36] This is bearing in mind that a significant part of the mother’s financial distress was directly brought about by the father.
There would be some minor practical difficulties inherent in the proposals suggested by the paternal grandmother and the father, but they would not be insurmountable.
Section 60CC(3)(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;
I am satisfied that the mother has, and has demonstrated that she has, the capacity to provide for the needs of the children, including their emotional and intellectual needs. This is at risk if either the father’s or paternal grandmother’s applications are successful.
The father conceded that at least in May 2011 he had been diagnosed with ongoing depression for which he takes medication and undergoes counselling. In addition he had suffered from two previous episodes of a post-traumatic stress disorder. In his evidence the father’s psychologist, Mr H, diagnosed the Father with chronic Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. The father did not take the treatment advice provided by Mr H[37].
[37] At page 5 of Mr H’s report annexed to his affidavit filed 5 July 2011.
Dr W said that the father did not exhibit any symptoms of mental disturbance. He said:-[38]
At interview, [the father] did not present with any overt signs of psychological disturbance such as suffering with anxiety or depression nor did he exhibit irrational or delusional thinking. As such, there was nothing in the author’s observations of [the father] that would give reason to suggest he suffered with a major mental illness.
[38]At page 39 of Dr W’s report filed 27 February 2013.
At present the father has no capacity to contribute to the children’s financial needs. His capacity to provide for their financial needs in the future is not known. The father says he will obtain work as a chef or as a truck driver. He had become a bankrupt while in prison. Dr W had reported that the father still had a debt of $32,000 to repay.[39] The father has not behaved responsibly in terms of the financial needs of the mother and children.
[39] Ibid at page 30.
In his report Dr W was critical about the father’s capacity to consistently meet the children’s emotional and psychological needs:-[40]
Based on the information at hand, the author holds some concern with certain characteristics of the father’s personality that may affect the way he would parent his children. The issues of concern are his general distrust of others, the alleged aggressive and anti-social behaviour whilst he was in a relationship with [the mother], coupled with his lack of admissions in regards to the sexual assault. The concern would relate to [the father’s] ability to feel empathy towards others and more particularly to be emotionally sensitive and responsive to [the children] and to be able to consistently meet their psychological and emotional needs, particularly within any significant care scenario. [The father] has reported that he does not wish to speak to the children about their mother. This is not to suggest nevertheless that such negative characteristics could not change or be ameliorated through some psychological intervention.
[40] Ibid at page 41.
It is significant that the father has not taken up the opportunity of some ‘psychological intervention’. The father undertook cognitive behavioural therapy through Mr H but declined to complete that treatment.
The father has the physical capacity to care for the children but does not have the capacity to meet their emotional and psychological needs. The father has attempted to commit suicide on a number of occasions and has told the mother and children of some of these threats of self harm. The father has a gambling difficulty, he has anger management issues and he has taken no steps to address either of these issues.
The paternal grandmother has the physical capacity to care for the children for the time she suggests. However, there is concern that she will not be able to meet their emotional and psychological needs having regard to the comments set out elsewhere in these Reasons.
The mother has a demonstrated capacity to meet the physical, emotional and intellectual needs of the children. The children are attending school and are performing adequately at school. I have previously dealt with my concerns that the mother would have difficulty in meeting the children’s emotional needs, due to her own distress, should they spend time and/or communicate with the father and/or the paternal grandmother. The mother’s capacity to care for the children is fragile having regard to the severe symptoms of post-traumatic stress disorder from which she is suffering.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents; and any other characteristics of the child that the court thinks are relevant;
No submissions were made in relation to this by the parties or the Independent Children’s Lawyer.
Section 60CC(3)(h) – If the children is an Aboriginal child or a Torres Strait Islander child;
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
No submissions were made in relation to this by the parties or the Independent Children’s Lawyer.
Section 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I repeat what I have said elsewhere in these Reasons.
The father had made it clear that he would see the children irrespective of the consequences. I have no confidence that the father will respect the orders of this Court and it is unlikely that he will refrain from contacting the children, despite his evidence during the hearing. Whilst the father ameliorated his views in evidence I am not satisfied that they reflect frank evidence and the Court has serious doubts about the father’s capacity to respect Court orders.
This Court is concerned that the father’s determination to communicate and spend time with the children is more about his desire to promote his relationship with the mother.
There are serious issues as to the purpose of these proceedings. The father has another child, B, and the father had little to do with this child (who is now about 18 years old) and has had little to do with him since he was about six months old. The father was in arrears of child support for this child at about or after the time of separation and has been unwilling to financially support the subject children since separation despite having capacity to do so prior to his incarceration.
There is a real concern that the father will act in a retaliatory manner against the mother to which the Court has referred to elsewhere.
The mother has acted protectively to the children and prior to 17 November 2010 was open to an equal time arrangement in terms of the children’s time with the father.
The father’s violence, controlling behaviour, capacity to intimidate, financial recklessness, and failure to acknowledge and treat his abhorrent behaviour is such that this Court is not satisfied that the father has a safe and responsible attitude to these children and has not demonstrated that he has a responsible attitude to parenting these children.
The mother on the other hand has demonstrated a responsible attitude to the children and the responsibilities of parenthood.
Section 60CC(3)(j) – Any family violence involving the child or a member of the child’s family;
and
Section 60CC(3)(k) – If a family violence order applies, or has applied, to the child or a member of the child’s family;
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
In terms of the family violence, I repeat what I have said elsewhere in these Reasons. There is a history of the father engaging in violent, coercive, and controlling behaviour. Such behaviour was prior to 17 November 2010, on that day and after that date. The father committed crimes of violence upon the mother in November 2010 with consequential psychological and emotional damage.
The mother believes that when the father leaves prison, he will come after her and try and harm her or kill her. The mother told Dr D that she wants to protect the children from any further distress and family violence as well as protect herself. The mother knows that the father takes no responsibility for crimes and that the father is capable of severe violence. Having regard to the findings of fact the concerns of the mother are not without foundation.[41] The mother’s rationale is that she trusted the father not to hurt her prior to November 2010 and that trust has been shattered. The mother suffered severe psychological damage as a result of the 17 November 2010 assaults.
[41] Ibid, page 35.
The father continues to deny his criminal and violent behaviour. He asserted his innocence to his family, the Supreme Court of Tasmania, Dr W, and to this Court both in his written and oral evidence. He originally appealed against his conviction but withdrew or did not prosecute that part of his appeal. As I indicated elsewhere, the father’s denials fly in the face of his initial partial admissions (to the prison psychologist and his own psychologist), the inherent implausibility of his explanations, his conviction for those crimes, his decision not to pursue the appeal in respect of that conviction and the mother’s cogent and consistent evidence (supported by the objective circumstances).
I accept the mother’s evidence and find that the father was at least controlling and intimidating of the children.
On 26 November 2010 a Family Violence order was made for the protection of the mother and children against the father. This order was to expire after one year.
Section 60CC(3)(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;
Any order providing for letters, cards or a gradual build-up of time between the father and the children would inevitably lead to more litigation which, in the circumstances of this case is not in the best interests of the children or their primary carer, the mother.
Section 60CC(3)(m) – Any other fact or circumstance that the court thinks is relevant;
It is submitted, and I accept, that the children deserve a stable, tranquil and happy home environment with a primary care giver who is able to do more than simply maintain a functional capacity to meet the demands of everyday life.
Section 60CC(4) – The extent to which each of the children’s parents have fulfilled or failed to fulfil their responsibility as a parent and the particular extent to which the child’s parents:
(a)Has taken or failed to take the opportunity
(i)to participate in making decisions about the major long term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child.
(b)has facilitated or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
and
Section 60CC(4A) – If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to the events that have happened, and the circumstances that have existed since the separation occurred.
It was submitted on behalf of the father that the mother abdicated her responsibility in relation to the children seeing the father and left it to the Court to determine. I do not accept that submission. The mother strongly believes that the children should spend no time and have no communication with the father and his family, but says that she will comply with orders of the Court.
I have considered the extent to which each of the child’s parents has fulfilled or failed to fulfil their respective responsibilities which I have detailed in these Reasons. Prior to 17 November 2010 the father had a significant involvement with the children as I indicated earlier. The father has been prevented from making decisions, spending time and communicating with the children since 17 November 2010. Prior to that date he had very flexible and significant time with the children.
The father has not fulfilled his obligations in terms financial support, as I discussed earlier, he has undermined and emasculated the mother’s financial circumstances, and thus those of the children. I have discussed this elsewhere in the Reasons.
I have also had regard to the circumstances that have existed since separation has occurred.
Parental responsibly
In these Reasons I have considered the findings of fact in the context of all the relevant considerations under the Act. I have relied on those findings of facts and considerations in terms of the question of parental responsibly. I intend to make orders that the mother have sole and exclusive parental responsibly for the children.
The Independent Children’s Lawyer submitted and I accept that:-[42]
(i)The presumption has been discharged by the family violence inflicted on the mother by the father (s 61DA(2)(b)) and on occasion witnessed by the children. The Court may draw conclusions based on the findings of the learned trial judge in State of Tasmania v [Edwards] (11 October 2011, unpublished) and the Full Court of the Supreme Court in PTR v Tasmania [2012] TASCCA 8 (section 69ZX(3) of the Act).
(ii)Given the nature of the parties’ relationship, equal shared parental responsibility is not neither practicable, reasonable nor would it promote the children’s best interests.
(iii)A shared care arrangement would be a new experience for the children as it appears to be common ground that during the relationship the father worked shift work and undertook fire-fighting duties, and the mother was primary home carer.
[42] At pages 5 and 9 of the Independent Children’s Lawyer’s Case Outline filed 26 August 2013.
Further, it is indicative of the father’s lack of insight that he submitted that there should be such a joint order. The mother could not reasonably be expected, in the circumstances, to engage with the father in the joint parenting of these children. Any contact between the mother and father would expose the mother to psychological trauma and add to her fear and sense if insecurity.
The mother has adopted a careful and child focused parenting model since November 2010 including protecting the children from the detail of the assault upon her.
The history of the father’s parenting approach since November 2010 has been to deny his behaviour, engage the mother through these proceedings without any real regard to her psychological state and to undermine her financial circumstance, where she is the only parent providing material financial support for the children.
Residence
In these Reasons I have considered the findings of fact in the context of all the relevant considerations under the Act. I have relied on those findings of facts and considerations in terms of the question of residence.
I am satisfied on the evidence that the children should continue to live with the mother. In his affidavit material the father expressed criticism of and about the mother. Having regard to the evidence of the mother, the paternal grandmother, the Family Consultant, and Dr W I find that the mother has parented well in difficult of circumstances. The children are well cared for and are seemingly thriving. The single expert, Dr W, says of the mother:-[43]
The author has previously reported that he has every confidence in the mother’s parenting ability and as such every confidence in the emotional well being of the children whilst in her full-time care.
[43] At page 49, Dr W’s report filed 27 February 2013.
The father’s time and communication, if any, with the children
In these Reasons I have considered the findings of fact in the context of all the relevant considerations under the Act. I have relied on those findings of facts and considerations in terms of the question of father’s time and communication, if any, with the children.
The substantive issue is whether the father spends time with and/or communicates with the children.
It is very serious not to allow a child or children to spend time with or communicate with a parent. I have considered this part of the father’s case in the light of the findings of fact in the context of the relevant s 60cc factors as detailed above.
I have determined that the children should not be permitted to spend time or communicate with the father whilst the father is incarcerated or after he is released.
The father presents as an unacceptable risk to the children, physically, emotionally and psychologically. He is an unacceptable risk to the physical well-being and emotional well-being to the mother.
The mother is unlikely to cope and continue effective parenting of the children if orders are made that the father spends time and/or communicates with the father.
There are generally benefits in the father having a meaningful relationship with the children but they are far outweighed by the benefits of the children’s relationship with the mother which is likely to be seriously compromised having regard to the mother’s psychological circumstances arising from the factors before, during and after the break down of the relationship.
The initial proposal suggested by Dr W as set out in his report (for which he no longer seriously supports) involved the provision of significant funds for counselling for the father, the mother, the children, supervision and assessment which is not available nor is it practical. It would profoundly impact on the children’s right to have the care of the primary parent, namely the mother, who would either cope at a basic level or not cope at all.
The father engaged in coercive and controlling behaviour which became worse towards the end of the relationship and during the period of separation. Since the attacks on the mother in November 2010 the father has not acknowledged his behaviour nor has he taken steps to deal with the underlying psychological issues. He has either refused treatment or not completed proper treatment. He had continued in that controlling behaviour as indicated elsewhere in these Reasons.
The father presents as an ongoing risk to the children.
The mother has a fear, which is rational and, in the circumstances well based, that the father will harm or kill her and/or harm or kill the children.
I reiterate that which I have said earlier in these Reasons.
Injunction
In these Reasons I have considered the findings of fact in the context of all the relevant considerations under the Act. I have relied on those findings of facts and considerations in terms of the question the injunction.
The mother seeks an injunction to prevent the father approaching her or the children. As part of that injunction the mother seeks an order that if the father breaches the injunction he could be arrested without warrant.
The father has expressed hate and anger against the mother. He has assaulted her and has been abusive and controlling of her and the children over a long period of time, including prior to 17 November 2010.
The father had made it clear to the mother that he will not be contained by adverse orders. This is apparent from Dr W’s report and from the statements he made to this court in December 2011.
I am satisfied, given all of the facts and findings, that the father will likely to try and approach the mother and or the children. Given my concerns about him and about the mother’s fear of him I determine that there needs to be a deterrent. That deterrent will be in the form of an injunction pursuant to s 68B of the Act that the father be restrained from:-
(i)living with, spending time or communicating with the children or either of them;
(ii)directly or indirectly approaching and/or communicating with the mother and/or the children (included but not limited to) in person, by telephone, email, sms, facsimile and/or letter;
(iii)going within 500 metres of any home or place where the mother or children are generally living or staying;
(iv)going within 500 metres of any school where the children attend, visit or are enrolled;
(v)going within 500 metres of any place of employment where the mother may be working; and
(vi)going within 500 metres of any place where the mother and/or the children may be present.
In considering making an order pursuant to s 68C of the Act empowering a police officer, on reasonable grounds, to arrest the father without warrant I had considered all other evidence of violence and his approach since 17 November 2010. The father was subject to a Family violence Order made on 26 November 2010.[44] On 29 December 2010 the mother and father inadvertently met at a car park. I accept the mother’s version of this event as set out in her trial affidavit.[45] The father had the option to turn away or move away but he did not do so. This upset and unsettled the mother and was likely to have been a breach of the order preventing the father from directly or indirectly approaching the mother and/or the children. The father was not charged in respect of this incident.
[44] Annexure “B” to mother’s trial affidavit.
[45] At paragraphs 98 to 102.
He was charged, in respect of one count of breach of bail and one count of breach of a Family violence Order in terms of removing the mother’s wages from a bank account and having a friend send a text offering to return the money if the father could see the children, and offering to join in the sale of the former matrimonial home if he were permitted to see the children as set out in the mother’s trial affidavit.[46] The father pleaded guilty to those offences and was sentenced to six weeks imprisonment, wholly suspended.
[46] At paragraphs 103, 105 and 105.
This is considered in the light of the evidence that the father made it clear that he would not be constrained by court orders in terms of seeing his children.
As such I am satisfied that an order ought to be made pursuant to s 68C of the Act as a further deterrent to the father and protection to the mother and children.
The paternal grandmother
In these Reasons I have considered the findings of fact in the context of all the relevant considerations under the Act. I have relied on those findings of facts and considerations in terms of the determination, with the exception of section 60CC(2)(a), in terms of any time or communication between the children and the paternal grandmother.
The paternal grandmother seeks two hours on a Saturday every third weekend but is flexible about time and the day of the weekend and is happy that if one of those is a weekend when the children sees the father there wouldn’t be an additional weekend. She seeks telephone once a week and ability to send presents and cards. The father supported this application. The mother and Independent Children’s Lawyer opposed this application.
The paternal grandmother had little to do with the children prior to separation. The relationship was more between the paternal grandfather and his then wife, Ms A. I accept the evidence of Dr W that the children have little or no relationship with the paternal grandmother and there appears to be no emotional connection between the children and their paternal grandmother,[47] in particular the comments on page 47of his report where he commented on what the children had said and what the paternal grandmother had said and concluded that there was no relationship. Dr W concluded in his report:-[48]
Both the paternal grandmother and [the children] have reported that there has never been a close relationship between one another. It would appear that the paternal grandmother’s motivation for making Application has been largely to ensure that the boy’s maintain a meaningful connection/relationship with the father’s extended family and not necessarily a direct relationship with her. It could be suggested her motivation was in part to ensure that in the case where the Application by the father to seek time with the boys was unsuccessful, her Application would ensure the boys maintained a connection with their father, indirectly through her and the father’s extended family.
It is the author’s opinion that not spending time with the paternal grandmother would not have significant negative impact upon either [child’s] emotional well being. Neither boy reported a wish to spend time with the paternal grandmother, and [L] has stated that he does not want to spend time with her. He also reported his belief that all the members of his father’s family are angry with his mother, that they do not like him or his brother or mother, and that he cannot trust them. It is the author’s opinion that considering [L’s] beliefs, an immediate re-establishing of time spent with the paternal grandmother in terms defined within her Application would be detrimental his emotional well being. It may be however eventuate, that if the boys are able to explore these issues through communication with their father and through discussion with a psychologist, they may feel more positive or motivated in this regard. As previously noted, the author would recommend that the father’s family be able to send cards and gifts to [the children].
[47] See the evidence of Dr W generally including paragraph 2 on page 47 of his 27 February 2013 report.
[48] Dr W’s report, page 50.
I accept that evidence and like Dr W, I have considered it in the light of my decision to dismiss the father’s application.
It is also likely that the children would be exposed to the father’s versions of the events of November 2010. The power of the father in terms of his mother is exhibited by her acceptance of his version of the events notwithstanding her own doubts. I repeat what I have said and found earlier in these Reasons. There is also the impact of this upon an already fragile mother.
In those circumstances, I find that it is not in the best interest of the children to spend time or communicate with the paternal grandmother.
I certify that the preceding three hundred and twenty seven (327) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 27 November 2013.
Associate:
Date: 27 November 2013
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