Elliot and Day
[2017] FCCA 44
•30 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIOT & DAY | [2017] FCCA 44 |
| Catchwords: FAMILY LAW – Parenting – where serious allegations of family violence – where family violence established. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MR ELLIOT |
| Respondent: | MS DAY |
| File Number: | AYC 457 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 29 November – 1 December 2016 |
| Date of Last Submission: | 1 December 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 30 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilson |
| Solicitors for the Applicant: | Friedlieb Byrne |
| Counsel for the Respondent: | Mr Alexander |
| Solicitors for the Respondent: | Lees Luke Family Law |
| Solicitor Advocate for the Independent Children's Lawyer: | Ms Karagiannis |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
That the Mother have sole parental responsibility for the Children X (born (omitted) 2012) and Y (born (omitted) 2013).
That the Children live with the Mother.
That the Children spend supervised time with the Father at the (omitted) Children's Contact Centre, or other appropriate contact service as agreed by the parties in writing at such in times and with such frequency as the service can accommodate, no more frequently than each alternate month, with the Mother to deliver and collect the Children from this service for the purpose of them spending time with the Father.
That the Father is to be responsible for the payment of all fees associated with the supervision the Children's time with him in accordance with these Orders.
That the Mother have sole responsibility for giving consent to and making arrangements for the issue of the Children's passports.
That subject to any other requirements of the Department of Foreign Affairs and Trade passports be issued to the Children X (born (omitted) 2012) and Y (born (omitted) 2013) to enable them to leave Australia and its territories notwithstanding that the consent of the Father has not been obtained.
That each party refrain from making critical or derogatory remarks in relation to each other or the members of each other's family in the presence or hearing of the Children and that each party do all things necessary to ensure that no third party makes critical comments about each other party or the members of each other party's family in the presence of hearing of the Children.
IT IS NOTED that publication of this judgment under the pseudonym Elliot & Day is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
AYC 457 of 2013
| MR ELLIOT |
Applicant
And
| MS DAY |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about the long, dark shadow that is cast by previous acts of family violence. Whilst it is often the case that the passage of time heals many other wounds, the impact of family violence can often continue for extended periods. The wounds caused by family violence sometimes never heal. Even contrition and rehabilitation is sometimes not enough to erase the impacts of the past.
This case is about two children, X born (omitted) 2012, now 4 and a half years old, and her brother, Y born (omitted) 2013, now 3 and a half. The children’s father would like to resume a proper relationship with them. The children’s mother opposes this. The Mother makes serious allegations of family violence against the Father, both during the course of their relationship, and subsequently. As well as the Mother’s own evidence, she led evidence from the Father’s two former partners who also allege serious family violence perpetrated against them by the Father.
Background
The Mother is 31 years old, lives in the (omitted) district of New South Wales, and describes herself as an (occupation omitted). The Father is 38 years old, and lives in a suburb of a regional city in (omitted) New South Wales. He describes himself as a business proprietor. The Father is the Applicant in this case.
The parents commenced cohabiting in 2009, married in 2011, and separated on a final basis in June 2013. There were a number of separations during this relatively short relationship.
During the course of this relationship, the Mother gave evidence about the Father’s violence towards her, which included non-consensual sexual intercourse, verbal and physical abuse and controlling behaviour. On separation the Father asked the Mother to leave the family home with the children. She did so travelling to the maternal grandparents’ home in Sydney. Even after separation the Mother deposes to the Father’s ongoing abuse and harassment of her.
The Father commenced these proceedings in the Federal Circuit Court of Australia at Parramatta. On 10 December 2013, Judge Harman made Orders transferring the matter to the Wollongong registry of the Court. He also ordered that the parents commence the intake process for supervised time at a supervised contact centre. That supervised time commenced in the supervised contact centre in (omitted) in July 2014, and has continued since then.
In April 2014, the parents had entered into Consent Orders in relation to their property settlement. By January 2015, however, the Mother was forced to file a Contravention Application following the Father’s non-compliance with the property Orders made by consent in April 2014.
In June 2015, a dispute arose between the parents about whether the Mother and the children should be permitted to relocate from the (omitted) area where they were living at the time, to the New South Wales (omitted). On 4 June 2015, I made interim Orders restraining the mother from causing the children to be removed from their current home. Dr H prepared the first of two Family Reports and this one dated 31 August 2015, was released to the parties on that date. By then an Independent Children’s Lawyer had been appointed for them.
On 4 September 2015, I heard the interim application by the Mother seeking permission to relocate and on 25 September 2015, I made Orders permitting the children and the Mother, to reside on the New South Wales (omitted). The Father was to have supervised contact at the (omitted) Children's Contact Centre. That has continued since then. The Mother has since obtained work on the (omitted), and the children have settled into that community according to the Mother.
By way of further background, the Father’s first partner for present purposes was Ms R. She was in a relationship with the Father between 1997 and 2000. They bore a child, B, who is currently 16 years old. Both Ms R and the Father were very young at the time of commencement of their relationship, i.e. 17 and 18 years old respectively.
Ms W was in a relationship with the Father in November 2006. They bore a child, A, in 2008. She is now 8 years old.
The proposals
By the time of closing submission both the Independent Children’s Lawyer and the Mother proposed Orders to the effect that the Mother would have sole parental responsibility and the children would live with her. There would be no contact or communication between the Father and the children save that he would be able to forward to them appropriate gifts, cards and letters at a postal address to be provided by the Mother. The Mother had an alternative proposal, however – recognition contact a few times each year.
The Father proposed Orders for equal shared parental responsibility, that the children live with the Mother, and spend time with him on a gradually incremental basis but building up over time to weekends and school holidays. The Father proposed that his time be unsupervised.
Representation
All parties were very capably represented by a solicitor and Counsel (in the case of the Independent Children’s Lawyer, a Solicitor Advocate). The Court acknowledges the assistance of all legal representatives in the hearing of this case which despite its complexity and emotional intensity took place efficiently and effectively. The Court particularly acknowledges the considered approach adopted by Counsel for the Father in presenting his case.
The evidence
The evidence led in the Father’s case consisted of the Affidavit of the Father filed 22 November 2016, and of his current partner, Ms B, also filed 21 November 2016. Both were cross-examined. In the Mother’s case, she relied on her Affidavit filed 15 November 2016, that of Ms R filed 9 December 2013, that of Ms W filed 9 December 2013, and an Affidavit of Ms J filed 2 December 2013. Ms J is the maternal grandmother. She was not required for cross-examination.
In the Independent Children’s Lawyer’s case, reliance was placed on two reports of Dr H, a Regulation 7 Family Consultant dated 31 August 2015 and 9 September 2016. Dr H was extensively cross-examined.
Case overview
As is so often the case a matter is best understood by the time of closing submissions.
Ms Karagiannis for the Independent Children’s Lawyer and Mr Alexander of Counsel on behalf of the Mother both submitted that there was more than ample evidence that would lead the Court to find that the Father had perpetrated family violence of a very serious kind, not just to the Mother but to his two prior partners who gave evidence in this case. Moreover, they submitted there was ample evidence to indicate that the Father had a propensity to violence outside of these relationships, and that he had a serious underlying anger-management problem that was unresolved or unsatisfactorily resolved. They both submitted in effect that this is one of those cases where there was no benefit to the children of having a relationship with their father, and indeed that the risks to them of unsupervised contact was unacceptable even if the risk was characterised not as a physical one but a psychological one. They both submitted that the expert evidence of Dr H established that having regard to the existing relationship between the Father and the children, limited as it was to supervised contact at a supervised contact centre, there would be no, or minimal loss to the children if he were to no longer spend time with them. It was conceded, however, that on any objective view the existing supervised time arrangement has worked well and the children appear to enjoy their time with the Father. Nonetheless, they jointly submitted the Father was a repeat perpetrator of family violence and the Court would have serious concerns that the children would at some time witness the perpetration of further family violence by their father, or at least a manifestation of his anger-management issues.
Mr Wilson, Counsel for the father, acknowledged that it was open to the Court to make findings against the Father about family violence, but not in relation to the sexual violence allegations. As to the former, he submitted there was enough evidence in the Father’s own evidence by way of implied admissions and concessions in cross-examination that would warrant the finding. As regards the latter, however, he submitted that there was insufficient evidence on the Briginshaw standard for the Court to find that the sexual violence allegations had been sustained.
On the Father’s behalf, Mr Wilson submitted that he had demonstrated contrition and insight in relation to his past behaviours. He had admitted the past family violence (with the exception of the sexual violence which he denied) and had expressed remorse in relation to this. In circumstances where the evidence clearly suggested there was a relationship between the Father and the children, it was submitted that the opportunity should be given for this to continue. He pointed to the Father’s persistence with supervised contact over an extended period of time and indeed involving travelling many hundreds of kilometres for the sake of a relatively short period of contact with the children. He submitted that the Father had matured, had learnt from the past, and was not a risk to the children either physically or psychologically.
Applicable law
In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(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;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child 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); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said:
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Family violence is defined in s.4AB of the Act:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The expert evidence
Dr H’s first report is dated 31 August 2015, and was based on interviews held at the Wollongong Registry on 25 August 2015. The Mother’s very serious allegations of family violence was apparent to Dr H. She recorded that the Father denied the Mother’s allegation of family violence, and counter alleged that she was hostile and irrationally aggressive towards him (paragraph 5).
Whilst one of Dr H’s main interests was assisting the Court in making an interim decision about the Mother’s relocation to the New South Wales (omitted), she acknowledged that it was important to look at the longer-term arrangement for the children, and this necessarily involved consideration of the family violence allegations.
She recorded that the Mother was unable to identify any immediate benefits to the children of time with their father given their young ages, and her claim that they had no pre-existing attachment relationship with him as they were babies at the time of separation. She was concerned for the children especially Y, who had no idea about why he was taken to play with a stranger every second weekend. The Mother had concerns about the Father’s ability to remain child-focused outside of the artificial construct of supervision.
Dr H was obviously concerned about the Father’s perspective on the case. This is reflected at paragraph 33 of her first report:
Mr Elliott confirmed that he was still asking for visits on alternate weekends and half holidays. He had not moderated his application to the Court with further reflection about the children’s young ages. He appeared to understand my explanation of why it might be inadvisable to try and separate the children overnight from their mother at this stage given that they have no relationship based on continuous contact with him.
The Father or possibly his legal advisers had clearly taken on board Dr H’s concerns by the time of the final hearing. In his Further Amended Application filed 21 November 2016, shortly prior to the final hearing, he had moderated his proposal so that it would start with daytime contact, and not increase to overnight time until after a period of eight months.
At paragraph 34 of her report, she found that the Father tended to “foreground his rights as a parent and his feelings in this matter when it would have been more appropriate to discuss the children’s developmental needs”. Again, the Father appears to have taken on board this observation, because there was no trace of this in the evidence that he gave at the final hearing.
In relation to family violence, Dr H records at paragraphs 38-40:
38. According to Mr Elliott he was not physically violent to Ms Day (then Ms Day) during their marriage: if anyone provoked violent conflict it was her. He admitted that he had been violent towards Ms W saying that was a “horrible” relationship due to “a bad mix of personalities”. He said that he was not proud of his behaviour in retaliating to her provocation. He described Ms W as possessive and irrationally jealous, describing an incident in which she had “punched me in the face, kicked me in the balls” over unwarranted jealousy. He further claimed that after separation Ms W harassed him with telephone calls and attempted to ruin his career in the (omitted) by raising untrue, malicious allegations against him. Because she [sic] considered that she would continue to make false allegations if there was any contact, he had made no attempt to continue a relationship with his daughter A
39. When asked why he was not concerned about A’s safety with such a volatile, irrational mother Mr Elliott replied that he believed that the maternal grandmother provided most of the childcare and that she was adequately protective. He considered that A’s maternal grandparents would not consider him dangerous, knowing their daughter. He agreed that he could possibly attempt to make contact with this child via the grandmother despite his alleged fear of the mother’s malice towards him. (NB. There is some uncertainty about this child’s date of birth. (omitted) 08 was reported to Ms S and (omitted) 09 to me. Is A 6 or 7?)
40. With regard to his first partner, Ms R, Mr Elliott denies family violence and coercively controlling behaviour. He considers that Ms R has been maliciously influencing Ms Day and recruiting Ms W to that project. He asserts Ms Day knows him not to be a danger to children but is obstructing unsupervised contact because she was dissatisfied with the financial settlement. He denies her assertion that reducing his child support obligations is in any way a motivation in these proceedings pointing out that the cost of the litigation is far greater than that incurred by meeting child maintenance payments. He said he had agreed to pay 100% of the Catholic Care supervised visit costs.
It is interesting to reflect in the obvious change to the Father’s position from that recorded in paragraph 38 by the time of closing submissions. The Father’s position by then was that there had been no sexual violence to the Mother but he had conceded physical violence.
There was an observation of the Father and the children which is recorded at paragraph 45:
The children tolerated a brief separation from their mother in strange place with stranger quite well, and also made the transition from their mother to their father without fuss. They engaged in a friendly way with their father who tried to distribute his attention between them while they were engaged in different, independent play activities. A few times X called Mr Elliott “Daddy” when she spoke to attract his attention back to her drawing after he had turned to look at Y playing with the doll’s house. Mr Elliott’s behaviour was appropriate and kindly. The children displayed no fearful avoidance or aversion towards him. When it was time to leave Y and X parted without reluctance, tears or fuss, complying with my suggestion to kiss Daddy goodbye.
Dr H’s evaluation commences at paragraphs 50, the relevant paragraphs being 50-54:
50. In essence, the mother in this matter describes the father as a cold-hearted psychopath who has a history of remorselessly oppressing women and abandoning children. For his part, the father contends the mother is vengefully excluding him out of spite and has been aided and abetted in this endeavour by his ex-partner Ms R. Obviously, a brief screening assessment cannot make a finding of fact about such polarised characterisations. There is a great deal of evidence for the Court to sift.
51. Mr Elliott’s presentation at interview did not dispel doubts raised about his parenting capacity. In particular his vague, thin and other-blaming accounts of his behaviour in past relationships and towards his older children are deemed to augur poorly. In cases where father-child relationships have been disrupted by family violence (as Mr Elliott acknowledges was the case with his daughter A) a man’s efforts at reparative fathering (cf. APPENDIX) might be viewed as encouraging by the Court.
52. The literature supports the conclusion that there may be child protection reasons to restrict or extinguish contact between children and a parent who is a spouse abuser -even when there is no evidence that parent has ever physically harmed the children. Important insights provided by the literature include that after family separation spousal abusers tend to manipulate their children (to the detriment of the mental health and general well-being of those children) and to undermine their children’s relationship with their other parent. This child maltreatment risk cannot be judged to be diminished simply because said parents are observed to behave well during supervised visits and assessments. Nor does an apparently mutually affectionate relationship between a child and a spouse-abusing parent eliminate the risk that the child will be emotionally abused by that parent in pursuit of a tactical advantage.
53. If the evidentiary material is found to confirm the mother’s version of events with regard to the father’s coerciveness, violence and negligence as a parent across three family relationships, then unsupervised time with Mr Elliott in his home environment would be contraindicated – especially given the children’s young ages, the large distance between the two homes, that the children have no established attachment with Mr Elliott and the fact that no other familiar adult would be present during visits.
54. Even if all child welfare concerns about the father could be banished, careful consideration would still be required about how best to extending the subject children’s time with the father in carefully staged increments. They currently are too young for weekend separations from their mother in a strange environment. Both children are neurologically immature and require external-stress regulation (i.e. soothing) when upset. To cope with the stress of inexplicable separation from their mother, disrupted routines and unexpected events they would require reassurance from a known and trusted caregiver.
It is again interesting to reflect on the presentation of the Father’s case at the hearing, and Dr H’s observations of him during the first report. By the time of the hearing, there was no evidence that the Father’s perspective of the Mother was that she was “vengefully excluding him out of spite ...”
Paragraph 52 is important, because at the conclusion of the final hearing, a finding of family violence against the Father is not only open to the Court, but was at least in part conceded on the Father’s behalf. The risks to the children, particularly the psychological risks, are emphasised in paragraph 52.
Paragraph 53 is equally important, because the evidentiary material before the Court does indicate that the Father was violent across three family relationships.
Dr H ultimately supported the Mother’s relocation, based on what she considered to be the best interests of the children.
There is an important appendix to Dr H’s first report. She refers to it at paragraph 51, and the document is entitled Reparative Framework for Fantastic Fathers. It is a very interesting document setting out research on the process of healing between children and Fathers who have renounced violence. The importance of the document is that the Father was on notice of this since August 2015, over a year before the final hearing.
Dr H’s second report was dated 9 September 2016, and followed interviews held at the Wollongong Registry on 7 September 2016. This time, the interviews included the Father’s partner Ms B. Dr H observed that as at the time of the report interviews the Father’s proposal continued to be that he see the children each alternate weekend and half the school holidays. As has been noted above he did not change his proposal until shortly before the hearing.
Dr H found the Mother’s position to be largely unchanged. She impressed Dr H as being child-focused, rational and displaying no overt vengeful animosity towards the Father. Nonetheless, she was just as resolutely opposed to the Father’s proposal then, as she was in 2015, and for the same reasons.
The Father seemed to have impressed Dr H by expressing a greater willingness to follow professional advice and to propose contact arrangements to suit the children’s needs rather than his own convenience. Nonetheless, he had not by the time of the interviews changed his proposal. He had also not attended any post-separation parenting courses. He also impressed Dr H by maintaining his self-composure and not openly exhibiting resentment and self-pity.
Dr H met Ms B, the Father’s partner. She seemed impressed by her.
The children were again observed with their father. The observation is recorded at paragraphs 38-39:
38. X is a sweet, friendly child. She said she remembered me and the baby dolls in the playroom. She came to the waiting room to help me find Daddy. She greeted him with an enthusiastic hug. Mr Elliott was stilling with Ms B, who was introduced as Ms B. X was shy but polite in greeting Ms B. Mr Elliott was escorted into the playroom then the mother and Mr Elliot were shown out. The adults exchanged no greetings during this transition. Y briefly protested after his mother left but was quickly soothed by a cuddle from his father.
39. Both children continued their previous play activities. X set up a colouring task for her father to do then returned to check on her baby (whom she had settled down for a nap). Y continued playing with dinosaurs and toy soldiers, engaging his father’s attention. X told Daddy her news, and supplied information about bedtime comforters (teddy, blankie etc.) in response to his question. X seemed to anticipate and rapidly respond to the needs of others – particularly her brother. At one stage Y had a tumble. X quickly came to check on him. Mr Elliott was kindly attentive to the children. When it was time to leave I suggested the children pack up. X did so diligently without prompting but Y needed more encouragement. They parted without tears or fuss, complying with my suggestion to kiss Daddy goodbye. X seemed to understand Mr Elliott’s prediction of their next meeting.
The observation seemed positive.
Dr H’s evaluation commences at paragraph 45 of her report. Paragraphs 46-49 are important:
45. In a nutshell, (as stated previously) the mother in this matter describes the father as a cold-hearted psychopath who has a history of remorselessly oppressing women and abandoning children. For his part, the father contends the mother is vengefully excluding him without reasonable cause. There is a great deal of evidence for the Court to sift in order to discern if there is any middle ground between these polarised views
46. Mr Elliott’s presentation at interview in 2015 did not dispel doubts raised about his parenting capacity by the mother’s allegations. In particular his vague, thin and other-blaming accounts of his past behaviour and his reluctance to consider moderating his child care proposals on the basis of feedback about children’s developmental needs augured poorly about his parenting capacity. On this occasion Mr Elliott presented as more child-focused, and more receptive to advice about how best to meet his children’s needs. It is impossible to say whether this noticeable difference represents a sincere change of heart since the time of the previous report. It is also possible that in the interim period Mr Elliott has been wisely counselled about how to present himself more credibly as a concerned, responsible parent.
47. Reasons to favour the second hypothesis include that: Mr Elliott did not appear to have been as proactive in informing himself about the relevant literature (to which references were previously provided) as one would expect of a devoted, concerned father; that he had not attending parenting courses; that he has not fulfilled his parental responsibility to provide materially for his children; that he exhibits no insight into the obstacles posed by the mother’s resolute opposition to contact and describes no plan for allaying her anxiety in order to increase the chance she will facilitate contact/handovers.
48. It was noted in the previous report that in cases where father-child relationships have been disrupted by family violence (as Mr Elliott had acknowledged was the case with his daughter A but stoutly denied with respect to X and Y) a man’s efforts at reparative fathering (cf. APPENDIX) might be viewed as encouraging by the Court. Nothing emerged during this assessment to believe Mr Elliott has made any such efforts with regard to Ms Day. If her allegations of FV are untrue, his inertia is unsurprising. If the Court should find the evidence supports her claims, then the Court might well conclude that Mr Elliott is an unrepentant, unreconstructed spousal abuser.
49. It bears repeating that the literature supports the conclusion that there may be child protection reasons to restrict or extinguish contact between children and a parent who is a spousal abuser - even when there is no evidence that parent has ever physically harmed the children. Important insights provided by the literature include that after family separation spousal abusers tend to manipulate their children (to the detriment of those children) and to undermine their children’s relationship with their other parent. This child maltreatment risk cannot be judged to be diminished simply because said spousal abusers are observed to behave well during supervised visits and assessments. Nor does an apparently mutually affectionate relationship between a child and a spouse-abusing parent eliminate the risk that the child will be emotionally abused by that parent in pursuit of some tactical advantage.
It is clear that Dr H was concerned that rather than the Father having gained insight he was in fact simply undertaking impression management. In other words, he was saying the right thing but there was no substance beneath his words. The last sentence of paragraph 48 is somewhat chilling in light of the submissions made by the father’s counsel at the conclusion of the case. Dr H had clearly not ruled out the possibility that the father was not only a spousal abuser, but an unrepentant one. Moreover, at paragraph 49, she sounds the clear warning to the Court that any risk to the children was not necessarily abated because supervised visits have gone well.
Nonetheless, she acknowledged that there was evidence of an improved relationship between the children and their father. At paragraph 51 she states:
Firstly, as a result of pleasant, continuous contact the children now relate to the father as a trusted familiar (although he could not be considered an attachment figure on the basis of the contact to date, which does have not provided the opportunity for him to demonstrate his capacity to reliably meet their care needs over an extended period). Secondly, Mr Elliott is now proposing that when weekend visits commence they should occur in (omitted) in the home of Ms B. This decreases the length of the road trip, which I consider too onerous for young children. Although Ms B was only briefly interviewed, she presented as a normative parent who was suitably child-focused and sensible. She is deemed likely to be a protective presence.
Nonetheless, she urged caution about how the Court should proceed in making Orders for the children’s time with the Father should it decide that it was safe to do so.
Dr H’s conclusions and recommendation are found at paragraphs 58-74. The relevant ones for present purposes are 58-65:
58. As some unfavourable indicators about Mr Elliott’s parental devotion were noted across two assessments, doubt about his parenting capacity is not dispelled.
59. The children’s best interests will be served by living with their mother in a social environment which provides back-up child care if/when she is unwell: despite the changed composition of her household, her current environment seems supportive
60. The mother should exercise sole parental responsibility as there is no reasonable prospect that co-parenting will ever improve.
61. Supervised daytime visits should continue until Final Hearing.
62. It may help the Court in its deliberations to consider the extent to which each parent is able to apply insights gleaned from the recommended readings and courses in order to justify and frame their parenting proposals in a child-focused manner.
63. It may also help the Court to hear from Ms B at Final Hearing. To that end she should be granted leave to read this report and the 2015 report.
64. Whether unsupervised visits will ever be in the children’s best interests depends on the findings of the Court with regard to family violence and the father’s parenting capacity. No contact or restricted contact may emerge as the most protective options for Y and X. Should identity contact 4-6 times a year be ordered it is recommended that this continue at the contact centre currently used.
65. In the alternative case that all safety concerns raised about the father and his parenting are allayed at Final Hearing, then unsupervised day visits should commence in the children’s local area, on a fortnightly basis. Visits should be half day at first then run 9.30- 4.15 on Saturdays, with handovers at the (omitted) Children's Contact Centre
Dr H was cross-examined on the last day of the hearing. She had been previously provided with the updated evidence provided by the parents and by Ms B.
In cross-examination by Ms Karagiannis for the Independent Children’s Lawyer, Dr H explained that if the Court accepted the Mother’s allegations in relation to family violence it would have some serious implications on her assessment of the Father’s parenting capacity. This was because a spousal abuser would have destructive parenting practices especially undermining the other parent. They would be narcissistically self-absorbed and capable of emotional manipulation for their own purposes. They would be unable to prioritise their children’s needs over their own. The risks would be accentuated for young children. Indeed, the longer-term adverse consequences for them would be of concern.
Dr H explained that the potential consequences on the children particularly X, of having been exposed to family violence was the risk to her brain development to her attachment to her mother and sensitivity to stress. However, there was no evidence to suggest that X had in fact been so affected.
Dr H was referred to the appendix to her first report, the Reparative Framework for Fantastic Fathers. She acknowledged that it was very hard to do the things referred to in that document. It would often involve therapy possibly over a long time. Dr H observed that if the Father was serious about his rehabilitation he would have commenced it after the first report.
Dr H explained that if the Court made an order for no contact between the children and their father, the long-term impacts on them were not great because for present purposes he was a friendly stranger who they see sometimes but not an attachment figure.
Dr H was asked about the benefits of identity contact, and she explained that it would assist the children to make sense of who they were and where they came from and avoid both misapprehensions and idealisation about the other parent. She explained that even a sub-optimal parent could actually become a resource for the children through identity contact. However, identity contact should not be ordered if the stress of implementing it is greater than the benefit to the children. Dr H was much concerned about the Mother’s fearful aversion of the Father and how she would cope even with identity contact.
Mr Alexander, Counsel for the mother, explored with Dr H the consequences of finding that the Father was preoccupied with his own rights rather than the children’s needs. She explained that this would be an example of narcissism which, in itself, was often the tip of the iceberg beneath which often lay other maladaptive personality traits. The Court observes that Dr H’s evidence did not suggest that the Father in fact displayed such narcissism.
Counsel asked Dr H about the implications of the Court making a finding about the Father’s violence that was contrary to his denials to Dr H in the report. She explained that this was another example of faking good, i.e. positive-impression management with consequential issues about being able to believe the Father.
Counsel asked Dr H about the possible risks to the children, especially X, if the evidence included admissions by the father of using demeaning, degrading and derogatory words to the women in his life. Dr H would be most concerned about a child being exposed to that level of gender denigration not just X, but Y as well. There was the risk that this attitude would be transmitted to the children which was clearly not in their best interests.
Dr H explained that if the Court made findings about family violence in all three past relationships of the father, this would be of concern because it suggested an established, but repeating pattern of behaviour. Given the father’s age, 38, this behaviour would be very difficult to modify.
Dr H again confirmed that extinguishing the relationship between the Father and the children if he was found to be a spousal abuser would not carry many risks for them. She emphasised the need for any contact between the Father and the children to be stress-free for them and this was problematic in this case. Her focus was very much on the need for the benefit to them to exceed the stress.
Mr Wilson, Counsel for the father, also cross-examined Dr H. He challenged her evaluation of the Father at paragraphs 46-48 of the report, and her scepticism about whether he had in fact made positive changes in his life. She remained sceptical, and maintained her view that the Father was in effect, “faking good”. She pointed out that he had not done what he could have done after the first Family Report and what things he had done were simplistic and superficial at best. Nonetheless, she recognised that he had demonstrated admirable commitment and genuineness in persisting with supervised contact given the logistical issues involved. She conceded the possibility that the Father’s new relationship with Ms B has contributed to a change in his behaviour and attitude but she remained concerned about whether even a new relationship gave him insight.
He took her to the supervised contact centre reports which were almost invariably positive. She agreed that they were positive. Nonetheless, she characterised supervised contact as a holding pattern. She acknowledged that the records clearly suggested he could be very constructive with the children.
She reiterated that her concern was the risk of the Father undermining the Mother’s relationship with the children a common feature associated with spousal abusers. She believed that it was a fair generalisation to make in this case. Even the supervised contact records did not provide her with reassurance to the contrary.
Overall, there was nothing in the cross-examination of Dr H which would lead the Court to hesitate about accepting her recommendations. Indeed, it became clearer that if the Court made findings against the Father about family violence that in her professional opinion there were two options: firstly, that there be no contact between the Father and the children in which case there would not be harm to them because he was in effect merely a friendly stranger to them; secondly, that there be recognition contact on four-six occasions each year, but even this was predicated on the basis that the benefit to the children would be greater than the stress imposed by such an arrangement such stress to include consideration of how the Mother would cope.
In assessing Dr H’s evidence, the Court of course has the benefit of having heard the totality of the evidence in this case as well as the submissions made. A clear finding of family violence will be made against the Father partly based on his own admissions and concessions but indeed going beyond that. Dr H’s evidence must be assessed having regard to that.
The Father’s evidence
The Father’s Affidavit was affirmed on 22 November 2016. He explained that apart from X and Y, he has a daughter, B, who lives in Darwin and is 18 years old and a daughter A, who is 8 years old, and lives with her mother in (omitted), New South Wales. He does not see these children, but has occasional communication with B. In terms of his relationship with the Mother, he portrayed himself as a supportive partner. He deposed that just before the Mother fell pregnant “we started fighting a lot” (paragraph 38). This was in 2011. He described the Mother’s verbal abuse to him and that on one occasion shortly before X was born “she slapped me twice across my face, spitting and screaming ...” (paragraph 39). He then deposed, “After the second slap, I restrained her by her hair to stop her from assaulting me”. Even if the Father’s account about the Mother’s verbal abuse were accepted by his own admission he physically assaulted her for the first time in 2011, and he sought to portray to the Court that it was in self-defence.
He agreed that in March 2013, when X was nearly 1 year old there was an incident between the Mother and himself as a result of which the police were called. His evidence is set out at paragraphs 42-55 of his affidavit. In effect, there was an incident about the sound volume of the television that the Father was watching. There was a verbal dispute between the parents. X, who was sleeping at the time, woke up and started crying. He says that the Mother verbally abused him, removed the DVD from the player, and threw it at his head. The police were called. An application for an ADVO was made, but ultimately dismissed because the Mother did not attend. There was a three week separation as a result of this incident with the Mother and X moving out and staying in her parents’ holiday home.
The Father deposes that the final separation took place in June 2013 when the Mother left the family home in (omitted) and moved to the (omitted) of New South Wales with both children. X was 14 months old at the time, and Y only 2 months old. At paragraph 57 he deposes that the move was made without his knowledge and initially without his consent.
In November 2013, he deposed to commencing the present proceedings. He initially sought interim Orders for the Mother and the children to return to (omitted), but when the matter went to Court he did not pursue that part of the application and consented to the Orders that were made transferring the case to this Registry of the Court. He acknowledged that interim Orders were made by consent for supervised time at CatholicCare in (omitted).
The Father was aware of the Mother’s allegation contained in her Affidavit, that he had sexually abused her. At paragraph 71, he deposed:
When I first read the affidavit I felt sick. I might be rough around the edges with language, but I certainly don’t behave how Ms Day has described.
He denied ever forcing the Mother to have sex against her will. He acknowledged that there were times that sex was painful for the Mother because of her endometriosis, and on those occasions the sex would stop.
The Mother makes allegations about non-consensual sex whilst the parents were driving to certain places. At paragraph 79, the Father acknowledged that there were two occasions where the parents stopped whilst driving to have sex. He emphasised, however, that it was consensual sex. The Father’s perspective on their sex life is set out at paragraph 81 of his affidavit:
I considered, overall, that our sex life was loving and enjoyable for us both, and quite conservative.
Finally, on this topic, at paragraph 82, he emphasised that he had never forced the Mother to have sexual intercourse against her will. Indeed, he deposed that:
I tried to be sensitive and responsive to Ms Day’s emotions and needs around sex, because I wanted a happy marriage and I wanted Ms Day to be happy.
He deposed to the time that he spent with the children at the supervised contact centre initially at (omitted), and then at (omitted). From his perspective the time proceeded well and it was his belief that the children were ready for time outside of the contact centre where they could do more normal things with him.
The Father provided more evidence about his relationship with Ms R, and his daughter, B. They were clearly young at the time of this relationship (she was 17, he was 18). Ms R fell pregnant shortly after their relationship started. B was only 2 years old when they separated. Initially, B remained with the Father after separation, but from when she was about 3 years old she reverted to her mother’s care. There was litigation in the then Federal Magistrates Court in Darwin which resulted in an order for B to live with her mother, and spend time with him each alternate weekend and half the school holidays. Apparently, this did not in fact happen. It became almost impossible after the Father enlisted in the (employer omitted) in 2004 and moved away from Darwin. There was occasional contact with B, though his mother’s contact with B is more regular. At paragraph 143 he deposed:
I was also in regular contact with B, giving her emotional and financial support when I could. My parents were keeping me informed of any concerns that came up. She and I spoke, sent text messages, and had contact through social media.
The Father explained that he paid child support for B all of his working life, but now direct transfers money to her account when she asks for it.
The Father deposed that his relationship with Ms W started in 2006. They married in (omitted) 2008, but separated only two months later. At the time of separation Ms W was pregnant with A. He described his relationship with Ms W as “very volatile ... horrible at times” (paragraph 147). He agreed they argued a lot. He was aware of the allegations that Ms W made about him in her Affidavit sworn 6 December 2013, but categorically denied those allegations and “in particular that I spat on her, that I raped her, strangled her and broke her left foot” (paragraph 148).
He agreed that Ms W had made family violence allegations, that AVO proceedings were initiated but ultimately dismissed.
The Father seemed particularly concerned about the number of allegations that Ms W made against him to his (omitted). No further action was taken in that regard.
The Father explained that he did not pursue proceedings through the Court to spend time with A because of his concern that further false allegations would be made against him.
The Father denied Ms W’s allegations that during his relationship with her he used steroids that he had imported from the (country omitted).
The Father deposed that he pays child support for A, on the basis that he pays $100 per week to the Child Support Agency as he is assessed, and this is divided between a payment to Ms W on account of A, and a payment to the Mother on account of X and Y.
The Father deposed as to the circumstances of his current relationship with Ms B. They first met in (omitted) 2015. She has two children aged 10 and 14 who currently live with her, and spend time with their father each alternate weekend and for dinner during the week. He explained that he has been very open with Ms B about his previous relationships, and the current proceedings. Indeed, Ms B had read all of the affidavit material filed. The Father described this relationship as a developing one, and that they had recently leased a home in (omitted). Whilst he retains his home in (omitted) and needs to be because of his work it is his intention to be in (omitted) as much as possible particularly on weekends. He enjoys his time with Ms B’s children and is becoming involved with their activities.
Amongst other documents annexed to the Father’s Affidavit, there are two particular documents. Firstly, he annexed a Working with Children check and secondly, he annexed a National Criminal History Check provided by a company National Crime Check Pty Limited. The latter document was issued 16 September 2016. It states that:
A search of the National Criminal History data base has been conducted on:
Mr Elliot born on (omitted) 1978
Residing at (omitted), New South Wales, (omitted), Aus.
At the date of issue there are zero (0) disclosable court outcomes recorded.
The Father was cross-examined. He explained that the last time that he saw B was mid-2013, and the last time he saw A was when she was two or three months old. He agreed that there had never been a time when he had sought to facilitate a meeting between all of his children so that they could get to know each other. It was put to him by Counsel for the mother Mr Alexander, that in effect he was not interested in a relationship with B and A. He disagreed. Regrettably, the impression created from the evidence is that this is precisely the case. Particularly in the case of B, her mother appears to have tried to facilitate contact and communication between B and the father and the strong impression formed from the evidence is that it was the Father who did not pursue the matter including opportunities that were offered.
The Father was cross-examined about the assertion first recorded in the Child Dispute Conference Memorandum of 21 October 2014, but then later contained in his own Affidavit to the effect that he was, “not the monster ...” that he was asserted to be. He agreed that the Mother had made allegations against him about verbal, physical and sexual abuse as well as controlling violence which if true, would indeed be monstrous behaviour but he denied that it was the case. He agreed, however, that his relationship with Ms W did include physical violence which included pushing and “restraining Ms W’s hair ...” He agreed that in this relationship there were times when he lost control of himself and lost control of his anger. He accepted that there were no circumstances when physical violence could be justified against a woman, and he agreed that nothing could be said that would provoke such violence. When asked what he had done to ensure that he could better manage his anger following the relationship with Ms W, he explained that he had 12 months’ counselling after the end of the relationship with Ms W, as he had also done with the Mother. He said the counselling addressed anger-management issues, and was initially provided through Relationships Australia at (omitted) and then there was later individual counselling. There was also counselling undertaken through Relationships Australia at (omitted), which included anger-management counselling.
When it was suggested to the Father in cross-examination that if he had in fact undertaken counselling including anger-management counselling following the breakdown of his relationship with Ms W, having regard to the Father’s relationship with the Mother it was plain that the counselling had failed. The Father agreed. The father agreed that he still had anger-management problems notwithstanding the counselling he had obtained after the end of the relationship with Ms W.
Mr Alexander cross-examined the father about child support issues. He asserted that he was paying money to B from time to time as she requested. The Father’s evidence about this, however, was vague and unconvincing. The Father agreed, however, that he was assessed to pay child support for X and Y at the rate of $209 per week, but in fact only pays $33 per week. He agreed that each week he was in arrears substantially, and that this currently totalled about $15,000. He agreed he was behind in child support for A, and had been behind in relation to B. The Father was criticised in these circumstances for preferring to make cash payments direct to B, and he eventually agreed that it would have been better paid to B’s mother. He explained that his work was very slow at the moment and this meant he could not pay the child support as assessed.
The Father agreed that his self-assessment of his language as being “rough around the edges ...” in fact meant that he used inappropriate words with the Mother including, “cunt”. He agreed that the Mother hated that word and that he used it often. He eventually conceded that notwithstanding the assertion contained at paragraph 39 of his Affidavit that the Mother said to him, “You’re a selfish cunt”, she may not have used that word and perhaps used another word. He agreed, however, that he would often use the word “fuck”, call her a, “Fucking piece of shit”, and tell her to, “Get the fuck out”. He agreed he said to the mother, “Go fuck yourself”, “Fuck off” and called her a “whore”. He accepted that his language was demeaning of the Mother.
The Father was taken to exhibit D-1 to the Mother’s affidavit of 14 November 2016, in which she sets out the transcript of the conversation that took place on 3 April 2012 at 7:39 pm. He agreed that the transcript accurately records a conversation between the Mother and himself on that date. The Court observes that the Father’s language in this conversation is clearly abusive and demeaning of the Mother to an extreme level. He agreed that what he said was demeaning of the Mother. He agreed that the language he used with the Mother was probably also used in X’s presence, and that it would be a horrible thing for X to know that he had called her mother these names and it would probably cause X to become very sad. He agreed that if X were aware of these things, she would probably think that her father had a lesser view about women than he really ought to have.
He accepted that it would be possible to interpret his relationships with the mother, Ms R and Ms W, as reflecting a view that he had control of these women, but explained that these were issues that he had addressed in counselling “quite a lot”.
The Father was taken to his description of the relationship with the Mother as being a cold one without much affection. He agreed that that description also applied to the relationship he had with Ms W, and Ms R. He agreed that the relationship with Ms R was a violent one for which he accepted responsibility. Whilst the Father accepted that a side effect of taking steroids was to elevate aggression, he denied that he used steroids. The Court notes that it is a common feature of the evidence of Ms R, Ms W, and the Mother that the Father did in fact use steroids.
He denied this, but agreed that it was available in the gyms where he used to work out. It was not suggested that the father continued to use steroids but the Court notes his denials about past use are difficult to accept in circumstances where his three past partners all make the same allegation and there can be no dispute about the Father’s aggressive behaviour in each of these relationships.
The Father categorically denied that sex with the Mother was non-consensual. He agreed that there was perhaps an occasion when the Mother had indicated that she did not want to have sex and that possibly they nonetheless had sex. This is inconsistent with his assertion that he never had non-consensual sex with the Mother.
At paragraph 158 of his affidavit the Father described his relationship with Ms W as “toxic”. When asked to clarify, he described it as a violent relationship. He agreed that the toxic relationship with A’s mother also explained why he had little to do with A.
The Father was asked why he had not enrolled in the program known as Keeping Kids in Mind earlier than he had given that he had not completed it yet. The question was significant given the recommendations contained in Dr H’s first report. He agreed that he should have done something earlier, but he was busy at work. But he agreed that he had, however, possibly completed a post-separation parenting course with Relationships Australia.
The Father was then cross-examined about the National Criminal History Check document annexed to his affidavit. Tendered in evidence was a document produced by the Australian Federal Police dated 28 July 2003, entitled “Police Certificate - Name Check Only”. The document indicates that it was a record sent by the (employer omitted) in Darwin. The document, in fact, refers to three offences in respect of which the Father was convicted in the Darwin Court of Summary Jurisdiction. On 9 July 2001, he was convicted of assault person who suffered bodily harm and sentenced to imprisonment, suspended on entering into a two year good behaviour bond. On 27 July 2000 he was convicted of assault a female and fined $600. On 9 January 1996 he was charged with trespass, criminal damage and stealing and convicted on each charge, without passing sentence, a $500 good behaviour bond and restitution $25.
There is an obvious dissonance between exhibit R1, and the National Criminal History Check that the Father annexed to his affidavit. To the extent that the Father sought to convey to the Court that he did not have a criminal record the assertion was plainly incorrect.
The Father was cross-examined about these convictions. The Father insisted that the conviction for assault a female was a typographical error, and that he had not assaulted a female but the incident in question was an assault at a nightclub. As it turns out, the Court does not accept the Father’s explanation. The full picture about the Father’s violent conduct in the Northern Territory is formed by looking at all of the documents produced by the Northern Territory Police, as well as a document entitled “Disclosable Court Outcomes produced by Northern Territory Police”.
One of the convictions for assault appeared to relate to Ms R. It must be remembered that the Father agreed that this was a violent relationship. The Father was cross-examined on the basis of the various police records of the incidents in question. His recollection of these events was clearly not very good. The strong impression formed not just from the police documents, but the Father’s own evidence is that violence was sometimes fuelled by alcohol, and it occurred both in the context of relationships and outside. A strong impression was formed that at this stage of the Father’s life he was an aggressive young man who struggled to control his aggression particularly when under the influence of alcohol.
The father’s denials of the details of the violent relationship he had with Ms R, emanating from the police reports were unconvincing.
It became apparent that the Father was of the view that his three former partners had obviously spoken with each other about the relationship that they had with him. When asked whether he was of the view that the three of them had engaged in a conspiracy against him to fabricate evidence his response was “Not entirely, no.” He agreed that the allegations of verbal abuse were not fabricated. He agreed that the allegations about physical confrontations were not fabricated.
The Father was given the opportunity to clarify the denial recorded by Dr H at paragraph 2 of her second report of the Mother’s allegations of family violence. He explained that he was denying that there was any sexual component to the violence. Even though he denied that there was controlling behaviour he accepted that the mother might have perceived his behaviour as controlling.
The Father was taken to his assertion at paragraph 56 of his affidavit that: “Ms Day left our home in (omitted)...” It was put to him that, in effect, he kicked her out, having known for some time that she was going to leave with the children. He denied this. The Court prefers the Mother’s evidence about this. The Father was challenged about his assertion in paragraph 57 that he did not know that she was relocating. He was unresponsive, explaining that his concern was loss of contact with the children.
In cross-examination it emerged that the Father seemed hopeful that he could co-parent with the Mother. He agreed, however, that the Mother had attempted to get the Father to agree for X to have a passport, but that had still not occurred. He agreed that he was “happy to look at it now” and that previously he was upset about a suggestion that his name be removed from X’s birth certificate. He agreed that Ms R had also previously asked him to sign a passport for B, indeed for many years but again this never happened. His explanation was that incorrect forms had been completed and he “Never got round to doing it.” It was put to the Father that all of this suggested that the possibility of co-parenting was impossible. He disagreed. He did agree, however, there was no effective communication with any of the mothers of his children, a matter that he described as “partly my fault”, but “Definitely not 100 per cent of it.”
The Mother’s allegations of the Father’s sexual violence was systematically put to him in cross-examination. He denied these allegations. He did not deny that he had sex with the Mother, for example, twice by the roadside as he deposed in paragraph 79. What he did deny, however, was that the sex was non-consensual.
The allegations that Ms W made about sexual violence were also systematically put to the father and he again denied them. Having regard to the evidence of the other witnesses in this case the Court finds the Father’s denials unconvincing.
Ms Karagiannis, for the Independent Children’s Lawyer, cross-examined the Father about the proposal contained in his Amended Application. He explained that this had evolved as a result of considering Dr H’s reports and legal advice. He thought the children were ready to progress in his relationship with them. She cross-examined him about the nature and extent of the counselling that he received after the breakdown of his relationships. His description about the nature of the counselling he received and the benefits to him was superficial and unconvincing.
The Court found the Father to be an unconvincing witness and an unreliable historian. Of course, this finding is only made with the benefit of considering not just his evidence but the totality of the evidence presented before the Court both orally and in documentary form. The Father’s most common response to a question in cross-examination was to the effect that he did not know but often the matters put to him that elicited that response were quite serious allegations made by his three former partners. It is possible, of course, that the Father genuinely did not recall or did not know the answer to the question but based on the totality of the evidence, the Court believes the most likely scenario is that it was not convenient for the Father to accept the matters put to him. The Court finds that the Father clearly perpetrated family violence not just against the Mother, but against his two previous partners. The family violence was clearly both physical and verbal in nature. The Court’s findings about the allegations of sexual violence will be discussed below in circumstances where Counsel for the father submitted that the Briginshaw standard applied to these allegations and had not been satisfied.
The evidence of Ms B
Ms B's Affidavit was sworn on 19 November 2016. She is 42 years of age and a (occupation omitted) by profession. She met the Father in April 2015, and had been in a relationship since then. She has two children who live with her, aged 10 and 14. Both children see their father each alternate weekend and for dinner during the week. She deposed that in about October 2015 her relationship with the father developed into something more serious. She believes that they have developed a strong and loving bond.
She describes the father as follows:
I find Mr Elliot an attentive, caring and supportive companion. He has a warm relaxed manner that my children, family and friends have warmed to quickly.
She explained in her affidavit that the Father told her about his previous relationships early in the relationship with Ms B. Indeed, she has read all the Affidavits and in particular the Affidavits of the Mother, Ms R and Ms W. In addition, she has read both of Dr H’s reports. At paragraph 14 she deposes:
I have taken the description of Mr Elliot and the violence very seriously. The description of Mr Elliot in the affidavits does not represent the man I have come to know. My experience is quite the opposite. I’ve seen no signs or displays of violence from Mr Elliot at all.
Ms B was cross-examined. She agreed that, based on her reading of the Affidavit material a common feature of each of the Father’s past relationships was allegations of sexual, verbal, physical abuse and controlling behaviour. She agreed that another common feature was an allegation about steroid use. However, her evidence was that she had not experienced any of those things in her relationship with the Father to date.
She was asked about her awareness of the allegations that the Father had perpetrated sexual abuse on his previous partners. She was aware of it, having read the Affidavits with the Father together. When asked whether he admitted to this behaviour she explained words to the effect:
He was unsure why it was in the affidavit. He could not recall much about it.
Clarification was sought – did Ms B mean that he was unsure about whether events had happened or was saying that they had not happened? She explained words to the effect:
He just could not see that these events took place as set out in the affidavits.
It was put to Ms B that surely on reading about these allegations “alarm bells were ringing in your head?” She agreed that she had concerns from the beginning. She explained that one could not hear the Father’s history of relationships and not question it. She explained that she was most concerned about the welfare of her own children. However, as her relationship with the Father unfolded she decided to stay on. She stated that she could understand how it might seem that history was simply repeating itself but she was satisfied that the Father was in fact selfless and giving.
Ms B was an impressive witness. She seemed quite conscious of the possibility that her relationship with the Father might follow the course of his previous ones. She was appropriately protective of her children. She manifested an insight that the Father did not. The Court’s impression is that whatever the outcome of this case, she will be a mature, steadying influence on the father. If the father is ordered to have time with his children she will be not just supportive, but an excellent resource for the Father, and probably even the children should it get to that.
The evidence of the Mother
The Mother’s Affidavit was sworn 14 November 2016. The allegations that she makes about the Father’s violence are contained at paragraphs 6-28. The allegations that she makes about his sexual abuse are contained at paragraphs 29-48. She makes allegations about financial control at paragraphs 132-141.
The Mother’s allegations are characterised by their detail.
The Mother’s allegations about family violence, as distinct from the sexual abuse include detailed allegations of verbal abuse and physical violence. Many of the Mother’s allegations in this regard were either conceded in cross-examination by the Father or admitted in his own evidence. Significantly, however, she was not challenged about these allegations in cross-examination.
The Mother’s allegations about sexual abuse were not of course the subject of either concession or admission by the Father. Indeed, he maintained that no such abuse was perpetrated. To be clear, the Mother’s allegations were about forced or non-consensual sex. The Mother was cross-examined about her evidence and the Father’s denials put to her but nothing emerged from her cross-examination which would cause the Court to be concerned about the veracity of her allegations.
In relation to the Mother’s allegations about financial control, and control generally this was dealt with briefly in cross-examination and in effect the Father’s denials were put to the mother. Again, however, there is no reason not to believe the Mother’s evidence following her cross-examination.
So what was the Mother cross-examined about? It emerged from her cross-examination that she had been in a prior violent relationship before the Father. Indeed, it is possible that she minimised the nature and extent of the violence in that relationship. There were no children in that relationship.
The Mother conceded in cross-examination that up until the time that X was born, the Father was very supportive of her in many ways. Matters deteriorated significantly after X was born. The physical violence commenced. She denied that the hair pulling commenced before July 2012.
It emerged from the cross-examination that there were multiple separations and reconciliations during the period of the parents’ relationship. There would be violent incidents. The Mother would move out. She would eventually return. There was an incident in respect of which an AVO was issued, but it was dismissed at the final hearing because the Mother did not attend. She said that that was because the Father prevailed on her. It was never put to her, however, that the AVO did not proceed to final hearing because the facts alleged did not occur.
The seeming inconsistency of her early proposals for the Father to spend time with the children, her subsequent family violence allegations and her present proposal to the Court for the Father’s time were all put to her. What needs to be understood, however, is the context in which the early offers for time were made. The inescapable conclusion that the Court draws from all of the evidence is that the Mother was seeking to escape the gravitational pull of a violent relationship, the dynamics of which she did not fully understand until later. Moreover, her proposal was for supervised time anyway.
Clearly, the Mother did not disclose the sexual violence perpetrated against her by the father until well after most of the events in question but that is hardly an uncommon phenomenon in family violence cases in the Court’s experience, and it certainly does not convince the Court that mere non-reporting of violence means it did not occur.
The Mother was at least implicitly criticised for constantly going back to the Father but her explanations were plausible and reasonable. She explained that he kept promising to change; she was hoping that he would change for the sake of the children and, in any event she was merely returning to the home where all of hers and the children’s belongings were based. This explanation in no way detracts from the evidence the Mother gave.
Ms Karagiannis cross-examined the Mother. The Mother agreed that the evidence that Ms B, the Father’s new partner had given was comforting but then she add, “I felt the same way about the father early in the relationship.”
Ms Karagiannis explored with the Mother her alternative proposal for identity contact. The Mother explained that what identity contact would offer for the children is the opportunity to manage any sense of abandonment by the father. Questions were asked to explore whether the Mother would psychologically cope with the level of contact that she, herself, proposed (no more frequently than each alternate month), and how she would explain this to the children and her answers were more than satisfactory. Indeed, the Mother showed that she had considered her alternative proposal very carefully, including how it might be explained to the children and including what support she herself might need.
Towards the end of her cross-examination, the Mother again showed admirable insight by recognising in effect that whilst she kept going back to the Father hopeful for a better relationship, it was “not my best judgment”.
The Court accepts the Mother’s evidence. Nothing arose in cross-examination that might detract from it.
The evidence of Ms R
Ms R's Affidavit was sworn on 9 December 2013. Her affidavit annexes an affidavit she made on 21 November 2001 in the Federal Magistrates Court of Australia at Darwin in the proceedings between the Father (in this case) and herself.
At paragraph 3 of her affidavit of 9 December 2013 Ms R deposes:-
The relationship between Mr Elliot and I was very hostile and abusive. Throughout my relationship with Mr Elliot he was very controlling and verbally, mentally, emotionally, sexually and physically abusive towards me. On occasions Mr Elliot threatened me with knives, smashed windows in our unit, threw a pot of hot food at my head, head butted me and knocked me out. On one occasion Mr Elliot tried to throw me out of his car.
In paragraph 4 of that affidavit, she refers to the Father calling her “a fucking whore” and that she was “nothing but a fat lazy cunt”.
She gave evidence that after their daughter B was born the Father became very controlling. She too described a relationship that was marked by multiple separations and reconciliations. She gives quite detailed evidence in relation to B and the nature and frequency of the Father’s contact and communication with her.
The annexed affidavit of Ms R (i.e. the 21 November 2001 affidavit) contains similar allegations about violence and abuse, but also alleges that he used steroids during the relationship. She deposes, however, that when she asked him to get rid of them, “as far as I know he stopped taking them.”
Ms R was cross-examined about the inconsistency between the very strong allegations of violence she makes in her affidavits, and the fact that she proposed that the Father in fact spend regular time with B. Her explanation was quite plausible, however – she expected that the paternal grandmother would be present during B’s time with her father. She accepted, however, that is not something she deposed to in her affidavit.
It was suggested to her that notwithstanding her allegations of violence, she had not reported any of these incidents to the police. She insisted, however, that the police in fact came to the home several times.
It was put to her that her allegations about sexual abuse were false, but she maintained the veracity of the same.
Following the cross-examination of Ms R, there is no reason to doubt any part of her evidence.
The evidence of Ms W
Ms W's Affidavit was sworn 6 December 2013. At paragraph 2 she deposes:
During our relationship Mr Elliot spat on me, raped me, strangled me and broke my left foot. I was pregnant with our daughter A when Mr Elliot stepped on my left foot pressing down hard with all of his weight behind him. As a result Mr Elliot broke my foot.
At paragraph 3 she deposes:
During our relationship Mr Elliot was also verbally abusive to me. On one occasion Mr Elliot said to me words to the effect ‘All you are good for is to empty my ball sack into.’ Mr Elliot also said to me words to the effect ‘If I wanted I would have other women.’
At paragraph 4 she deposes to the Father’s steroid use. Their relationship ended when the Mother was about three months pregnant with A. The Father does not see A.
Ms W was cross-examined, but there was nothing arising from the cross-examination that would cause the Court to reconsider the veracity of her evidence.
The evidence of Ms J
Ms Day is the maternal grandmother. She swore an Affidavit of 29 November 2013. This Affidavit largely corroborates the Mother’s evidence. Ms Day was not required for cross-examination. Given that the Court accepts the Mother’s evidence there is no need to set out the contents of Ms Day's Affidavit.
Meaningful relationship?
Dr H described the nature of the Father’s existing relationship with the children as being something akin to a friendly stranger. That perhaps minimises the type of relationship that is portrayed in the supervised contact centre notes. Based on those documents, the impression formed is that the children experience their time with their father to be meaningful and enjoyable.
The Mother’s case, supported by the Independent Children’s Lawyer, is that because of the very violent relationship between the parents, to which the children were sometimes exposed (especially X) there was in fact no benefit to the children of having a relationship with their father. The difficulty with this submission is that it is inconsistent with the Mother’s alternative proposal for recognition contact and her own appreciation of the potential consequences to the children who might in the fullness of time feel a sense of abandonment without a father in their lives. This, the Court finds, reflected her insight into the reality that these children do have some form of relationship with their father being a relationship that they will miss if taken away. Even the mother could see the benefit of some ongoing relationship. Whilst Dr H was somewhat dismissive in terms of the benefits to the children of an ongoing relationship with their father saying in effect that they would be none the worse off for his absence in their lives, that is perhaps overly simplistic in circumstances where he has been a regular part of their lives now for several years. On balance, the Court believes that there is a benefit to the children of having a meaningful relationship with their father. That cannot be achieved, however, on a no contact order. This consideration, therefore, points towards an order for recognition contact, at the very least.
Protecting the children from harm?
The findings of family violence based on the evidence are inevitable. It is impossible for the Court to ignore the similarity in the experiences of the Father’s three prior partners including the Mother. There was a pattern of behaviour which seemed (in broad terms) to repeat itself in each new relationship. The Father the Court finds perpetrated the vilest forms of verbal abuse. He was physically violent towards his partners. The situation about sexual violence is not as clear but ultimately it makes no difference in the present case because the other types of violence are present.
So what do the children need to be protected from, given this history of violence perpetrated by the Father in the past? The risk was articulated as coming under two broad headings. The first risk was that the children would be exposed to family violence that occurred in any relationship that the Father had from time to time and, indeed, violence that he might perpetrate outside of the relationship. The history of the Father’s violence the Court notes does not exclude the possibility of violence to third parties especially when under the influence of alcohol. Inherent in the Father’s proposal for him to have time with the children is indeed the risk that could re-perpetrate. The children will either be there physically or otherwise be aware of his actions. The risk of the children being exposed to future family violence perpetrated by the Father is in this Court’s view a real one. The second risk, however, is the risk of psychological abuse to the children. In this regard, the concern is that the Father would not be an appropriate role model for the children and, indeed, there would be the risk that he would seek to not just demean women generally but do things or say things that directly or indirectly undermine the children’s relationship with their mother. This is a real risk the Court finds. Behind every action of violence how so ever described is an underlying attitude of power, control and superiority. This is reflected in Dr H’s evidence and is in any event quite consistent with the Court’s own experience.
The Father argues of course that he has changed. He has not established that to the Court’s satisfaction. Whilst Ms B’s description of him was nearly idealistic, even she acknowledged that it was early in the relationship. Whilst Ms B was an impressive witness, the totality of her evidence and the Father’s evidence does not satisfy the Court that there has been a change.
Accordingly, the children do need to be protected from the risk of either exposure to family violence or the psychological risks associated with having a parent who has perpetrated serious violence. The only way to manage this would be supervision. Supervision has been successful hitherto. The Father’s proposal for unsupervised time clearly ignores almost certainly minimises the inevitable impact of his past violent behaviour.
The children’s views?
These children are far too young to be able to express a view. The corollary of this as the Mother’s Counsel points out in his written case outline is that they are also too young to appreciate the impact that family violence has had in their lives and in their mother’s life. Whilst this may be a very positive thing, it does not detract from the risks of harm to them identified above.
The nature of the children’s relationships?
There is no doubt that the children enjoy a very good relationship with their mother. She is, undoubtedly their primary attachment figure. The children have an entirely different relationship with their father which is unsurprising given the artificial environment in which supervised contact takes place. Whereas they depend on their mother, they might enjoy fun time with their father. Dr H’s opinion is that the loss of the relationship with the father will not cause difficulty for them in the future. The Mother’s alternative proposal for recognition contact is the one which will ensure the children do not lose the relationship that they have with their father now irrespective of the quantitative and qualitative differences in that relationship as compared to their mother.
Participating in decision-making?
Because of the Father’s violence, his involvement in the children’s lives has been limited to supervised contact. He has demonstrated quite an impressive commitment to continue to spend time with the children even at a supervised contact centre and even though it involves extensive travel on his part. There can be no criticism in this case for the Mother not seeking to facilitate the Father’s greater involvement in decision-making about the children. One of the consequences of perpetrating family violence is the likelihood, indeed sometimes inevitability, of exclusion from decision-making.
Fulfilling a parent’s obligations to maintain children?
The Father has clearly failed in his obligation to maintain these children. He is not paying child support as assessed. His arrears of child support are substantial. Money is being paid to his oldest child, B, irresponsibly given the obligations he has for all of his children. The impression created from Ms B’s evidence is that she and the Father live a lifestyle which, prima facie, seems inconsistent with the impecuniosity that he claims for child support purposes.
The impact of change in the children’s lives?
Even if one were to put aside the family violence issues that permeate this case the Father’s proposal for the children to spend time with him would represent a very substantial change for them. True it is that the Father proposes an order that would provide an incremental expansion of the children’s time with him no doubt with a view to managing the issue of sudden change for them but it contemplates a move to overnight time within four months without appreciating the potential ramifications of this on Y, for example, who would not yet have turned four on the Father’s proposal. Even though the Father has made an attempt at a nuanced parenting order, it is still too much too soon in the Court’s estimation. The real issue, of course, is the need for his time to be supervised.
The cessation of any contact between the Father and the children would also be a big change for them. They have become accustomed to his regular presence in their lives. It may well be that the Court will incline to the view after reviewing all of the evidence that there is benefit to the children in continuing a relationship with their father on a recognition contact basis, i.e. reducing the frequency, but nonetheless making it often enough so that the children are able to remember their father in between visits. This proposal would in fact represent the least change for the children.
Issues of practical difficulty and expense
The Father has admirably managed to deal with these issues in the interests of spending time with his children. He has travelled long distances each alternate weekend for that purpose. It is possible that if the Father does in fact move to (omitted) this will merely increase the travel time to the children with their mother on the New South Wales (omitted).
The Mother’s alternative proposal mitigates these issues of practical difficulty and expense. Reducing the frequency of the visits will assist if it is otherwise considered in the best interests of the children. The overall impression formed from his evidence is, however, that the Father will adjust and will cope with these practical challenges.
Issues of parental capacity
The capacity of the Mother to meet all of the needs of the children is beyond question. The Father’s capacity is largely untested. The impression formed is that he could provide both the physical and the intellectual needs of the children. Given the findings made against him about the perpetration of family violence, there would have to be concerns about his capacity to meet the children’s emotional needs. He demonstrated only limited insight into, for example, how his violence might have affected the Mother’s parenting and capacity to parent the children long after he had perpetrated it. His parenting capacity is clearly limited and to adopt his Orders would in effect be to experiment in relation to the same.
Matters of background
These children are very young and thus still very much dependent on their mother. The Father’s proposal for time really minimises the potential issues that arise from this. The Mother’s alternative proposal for recognition contact recognises the issues here.
Parental attitudes
Any parent who perpetrates family violence against another parent of their children clearly has issues about their attitude towards the child the parent and to the responsibilities of parenthood. The Father clearly was an angry young man who was still very angry into his 30s. Whilst he has undertaken certain interventions to assist him it is clear these have not worked because his relationship with the Mother at least the third major relationship in his life was marked by the same patterns of violence in respect of which he had received counselling and assistance in earlier relationships. This might suggest an attitude of indifference or ambivalence or perhaps that the perceived problems that the perpetrators of violence have simply do not apply to him? An interesting attitude is reflected in his approach to this litigation. He had two Family Reports available to him and adequate time in between reports to seek to address the underlying issues raised there.
His failure to prioritise the financial needs of his children also reflect on a poor attitude to the responsibilities of parenthood.
Family violence
The Court must consider the family violence indeed it has a significant priority because of the risks to the children. The findings in this regard are quite clear. The definition of family violence is expansive and takes into account most of the Father’s behaviour. The sexual violence allegations cannot be established to the Briginshaw standard but that does not have any impact on the outcome of this case. At the very least, the Father’s time needs to be supervised because of the longer term consequences of his past events.
Parental responsibility
The Father sought equal shared parental responsibility whereas the Mother and Independent Children’s Lawyer proposed sole parental responsibility. The Father was both naïve and simplistic in suggesting that, somehow, consensual decision making was possible. There is no trust or communication between the parents which is unsurprising having regard to the violence that was perpetrated. The presumption of equal shared parental responsibility has been displaced. There has been family violence. It is otherwise not in the best interests of the children for there to be an order for equal shared parental responsibility. The only realistic outcome in this case is sole parental responsibility to the Mother.
Order in the best interests of the children
When all of the evidence is considered in light of the consideration prescribed under the Act, the Court believes that the only real choices available to it are either no time or recognition contact. The Father’s proposal for time as incremental as it is simply fails to recognise the complexity of the longer term consequences of the family violence perpetrated by him. Moreover, he has failed to satisfy the Court that he has changed that he has gained insight indeed, that he even has done the things that he could have (indeed should have) done to rehabilitate himself. In the circumstances anything but supervised time is out of the question.
The Mother’s alternative proposal for recognition contact demonstrated much insight on her part. It reflects the reality that these children do have a relationship with their father which in their interests should be sustained. But that cannot happen to the current frequency and indeed it would defeat the purpose of recognition contact as well as being quite impractical to order supervised time on an ongoing basis. The Mother’s alternative proposal is in this Court’s view in the best interests of the children. That she herself proposed it even on an alternative basis says much about her commitment to the children and a willingness to maintain a link between them and their father despite his past actions and what that says about what he can offer these children. Accordingly, the order will be in terms of that proposed by the Mother.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 30 January 2017
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