Emerich and Emerich
[2009] FMCAfam 74
•5 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EMERICH & EMERICH | [2009] FMCAfam 74 |
| FAMILY LAW – Parenting – children aged 9 & 7 – where the children spent time regularly with the father between 2002 and December 2007 – where children have spent no time with the father since January 2008 as a result of the father’s second wife informing the mother of family violence between herself and the father – where court cannot be certain of the extent of family violence between the father and his second wife or the current state of their relationship – where the children are saying that they do not want to see their father – whether unsupervised time feasible – whether supervised time should be ordered. |
| Family Law Act ss.60B, 60CC, 61DA JG & BG (1994) FLC 92-515 |
| Applicant: | MS EMERICH |
| Respondent: | MR EMERICH |
| File number: | ADC 328 of 2008 |
| Judgment of: | Terry FM |
| Hearing dates: | 20, 21 & 23 October 2008 |
| Date of last submission: | 23 October 2008 |
| Delivered at: | Darwin |
| Delivered on: | 5 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Leeson |
| Solicitors for the Applicant: | Norman Waterhouse Lawyers |
| The Respondent | In Person |
| Counsel for the Independent Children’s Lawyer | Ms Lindsay |
| Solicitors for the Independent Children’s Lawyer | Barr Lawyers |
ORDERS
That all previous parenting orders concerning [X] born in 1999 and [Y] born in 2001 are discharged.
That the children live with the mother.
That the mother have sole parental responsibility for the children.
That the father not spend time with or communicate with the children.
That the father may send birthday and Christmas cards and birthday and Christmas presents to the children each year.
That no later than 30 June and 31 December each year, the mother shall send to the father:
(i)a recent clear photograph of the children;
(ii)brief information about their health and sporting and educational progress;
(iii)a copy of their most recent school reports;
(iv)any information which the children request be sent to the father.
That the mother shall promptly notify the father should either of the children be involved in a serious accident or be diagnosed as suffering from a serious illness.
That the mother and father shall each keep the other advised of their mailing addresses and notify the other within seven days of any change.
That the father is restrained and an injunction is granted restraining him from:
(i)assaulting, harassing or threatening the mother;
(ii)attending at the home of the mother and children; and
(iii)attending at the children’s school or in the vicinity of the school.
That the Independent Children’s Lawyers is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Emerich & Emerich is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES |
ADC 328 of 2008
| MS EMERICH |
Applicant
And
| MR EMERICH |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] and [Y] are a 9 and 7 year old boy and girl whose parents separated in 2002. They have lived with their mother ever since, and until December 2007, they saw their father frequently. Since January 2008 however the children have not spent any time at all with their father.
The mother does not want the children’s time with the father to resume, and said that children did not want that either.
The mother said that her position was justifiable, and the children’s views explicable, by the fact that the father had a long standing anger management problem, and was violent to women and occasionally to the children. She said that the children would be exposed to an unacceptable risk of physical and emotional harm if they were required to spend time with their father.
The father did not concede that he had a long standing anger management problem or a violent disposition. He said that he had been a loving, dedicated and involved parent to the children ever since separation. He said that he had been through a bad patch in 2007, when he was under stress, but had since done an anger management course and was working on his relationship with his wife Ms E. He said that this bad patch did not justify permanently cutting him out of the children’s lives.
The father’s case was that if the children were now saying that they did not want to see him, this must be due either to the influence of their mother, who had her own agenda, or to the children being a bit shy and apprehensive because so much time had passed since he had last seen them. It was the father’s case that any reluctance the children were expressing about seeing him could be overcome.
The father sought extensive unsupervised time with the children. He said however that if he had to accept supervised time at first, or end his relationship with his wife Ms E or do a course ordered by the court, he would do those things, just so long as he could see his children.
The evidence
The mother relied on the following documents:
i)her Application filed on 29 January 2008;
ii)some paragraphs of her Affidavit filed on 29 January 2008;
iii)her Affidavit filed on 22 September 2008;
iv)the Affidavits of her partner Mr W filed on 5 February 2008 and 22 September 2008;
v)
the Affidavits of her solicitor Georgina Parker filed on
20 March 2008and 13 June 2008, annexing documents obtained on subpoena from South Australian Police;
vi)the reports of Ms B, psychologist, dated 9 March 2008 and 17 October 2008.
In the mother’s case, the mother, Mr W and Ms B were cross-examined.
The father relied on the following documents:
i)his Response filed on 31 March 2008;
ii)his Affidavit filed on 29 March 2008;
iii)
the Statutory Declarations of Ms H, Mr C, Ms N and Mr B which were attached to the father’s Affidavit filed on
3 October 2008.
iv)the Statutory Declaration of his wife Ms E which was attached to the father’s Affidavit filed on 8 October 2008.
In the father’s case, the father was cross-examined. Ms H, Mr C, Ms N and Mr B were not required for cross-examination.
Ms E was an important person in these proceedings. It was her phone call to the mother which resulted in the mother ceasing the father’s time with the children. A central issue in the case was the extent to which Ms E had been a victim of family violence at the father’s hands.
The father professed to still be on good terms with Ms E and perhaps still in a relationship with her. He produced a Statutory Declaration dated 30 September 2008 which he said that she had signed, but he refused to make her available for cross-examination.
On the afternoon of the second day of the hearing, the mother’s counsel sought an adjournment of the hearing to allow her to issue a subpoena requiring Ms E to attend court as the mother’s witness. The Independent Children’s Lawyer supported the application.
It would certainly have been helpful to the court if Ms E had been available to answer questions. If the hearing had been adjourned however, it was unlikely that it could have been resumed before February 2009 at the earliest. Police records suggested that Ms E had previously not co-operated with the police when they charged the father, and she may have been similarly uncooperative with this court. I was concerned about the possible further delay in dealing with the matter, and was of the view that inferences could be drawn from the father’s failure to call Ms E, after filing a document signed by her as part of his case. I refused the application for an adjournment.
The father sought to rely on Ms E’s Statutory Declaration, despite his failure to make her available for cross-examination.
The mother opposed this course. The Independent Children’s Lawyer supported the Statutory Declaration being admitted as evidence, on the basis that it be given such weight as the court considered appropriate.
I intend to admit the Statutory Declaration. The statutory declaration is in my view important in these proceedings. I can place no weight on Ms E’s denial in it that the father physically abused his own two children or her son, [P], contrary to what Ms E told the mother on 3 January 2008 and 16 August 2008. The Statutory Declaration is however telling in that Ms E failed to deny in that document that serious family violence had occurred between herself and the father during their relationship.
A Family Report was prepared by Anthony McDonagh, and
Mr McDonagh was cross-examined.
The witnesses
The mother was not an entirely satisfactory witness. She was most insistent that the father had damaged her car during an altercation in December 2007, but her partner Mr W said that the damage to the car was barely noticeable and would not have bothered him.
The mother gave sworn evidence that she had complained to the police six times when she was living with the father about family violence, but not only did the mother slightly resile from this in evidence, saying that perhaps it was not as often as six times, but the police records did not corroborate this and Mr W said that the mother told him she had not called the police at all during her relationship with the father.
I am therefore cautious about unreservedly accepting all the details of the mother’s evidence because of a tendency to exaggerate and embellish. I also keep in mind that the mother, like the father, presented to the court only the positive side of her history and left the less positive aspects to come out if counsel or the father chanced upon them.
The mother was on the whole however a much more reliable witness than the father. She was willing to concede that she had not been perfect during her relationship with the father. She was calm in the witness box.
Mr W was a calm and responsive witness who tried to be fair and who displayed no animosity toward the father.
Ms B is a psychologist who provided two reports about her interviews with [X] and [Y].
The mother took the children to see Ms B on the pretext that she wanted counselling for the children, but then requested that Ms B write reports for the court proceedings.
Ms B gave clear and unequivocal evidence about what the children had told her. It would be unfair to be critical of Ms B for not critically evaluating the information, or even for her interview techniques, when Ms B was led to believe that she had been engaged in a therapeutic capacity only.
It is regrettable that the mother went about obtaining the evidence of a psychologist in the way she did, but this is in the end only a side issue in these proceedings.
The father was far from a calm and collected person, either in the witness box or in the courtroom. He became agitated and upset on a number of occasions on the first and second day of the hearing. During Mr McDonagh’s evidence the father twice became so agitated that he left the court room for a period of time rather than staying and listening to the evidence, and on the second occasion he left flinging the courtroom door back as he went out.
The father was impatient and angry when questioned about family violence between himself and Ms E, seeming to consider the issue as almost irrelevant. When he was led to make admissions, such as that he had punched Ms E in May 2007, the admissions almost burst out of him and were accompanied by a graphic demonstration of the punches or (on another occasion) of a clenched fist placed under a chin.
When it came to any allegation about his conduct, the father provided minimal information and many excuses. His evidence cannot be relied on.
Mr McDonagh is a very experienced social worker, family counsellor and mediator. He was employed by the Family Court from 1990 to October 2001, and since 2001 has been a child and family mediator in private practice.
Mr McDonagh was an impressive witness. He was cross-examined by counsel for the independent children’s lawyer, the mother’s counsel, and by the father and was in the witness box for three hours. He was able to articulate the reasoning behind his opinions and recommendations in a thorough and convincing manner.
General History
The mother and father were in a relationship for about nine years and separated in May 2002, when [X] was 3 and [Y] 1.
Between July 2002 and August 2003, the children spent two days each week with the father (during the day only), and handover was at McDonalds.
By agreement between the parents, from August 2003 the children’s time with the father was either every weekend from Saturday morning until Sunday evening or, if the father failed to give the mother an agreed five days notice prior to any weekend, the following Monday overnight to Tuesday.
By agreement between the parents the handover between them under this new arrangement took place at their respective homes.
In 2003, [X] was referred to Child and Adolescent Mental Health Services (CAMHS) because he was exhibiting difficult behaviours. CAMHS put [X]’s difficulties down mainly to the unsettled situation he had experienced after separation, particularly the mother’s frequent changes of residence.
In 2006, [X] was again referred to CAMHS as a result of difficulties he was experiencing in the classroom and at home. He was diagnosed as having an auditory processing disorder. There was also a suggestion that he might have Attention Deficit Hyperactivity Disorder. CAHMS recommended strategies to help [X].
During 2006, the mother proposed that the August 2003 agreement be changed. Among other things she wanted some weekend time with the children. The father, not wanting a reduction in his involvement with the children, would not agree to the changes the mother proposed.
In December 2006, [X] told the mother that the father had “almost punched him” making a punching motion with his fists. He also stated that “Dad has punched me before in the belly and back and head and sometimes Ms E has to stop Dad and get him away. Dad throws me onto my bed.”
The mother made a notification to Families SA. Nothing came of the notification. The children continued to spend time with the father throughout 2007.
During 2007, the father commenced living with Ms E, now Ms E. Ms E’s three children, [B] (15) and [C] and [P] (twins aged 11) were also part of this household, although [C] moved out in July 2007 to live with her own father.
There was a serious incident between the father and Ms E in May 2007, to which I shall return, but the mother was not aware of it at the time.
In August 2007 the father left his job. He was unemployed for quite a few months, and he ceased paying child support.
In September 2007 the father and Ms E went to Queensland for a holiday and while there, they married. The mother was resentful about the father going on this holiday, given that he was not paying his child support.
Before he left for the holiday, the father gave each of the children a mobile telephone, with the intention that he would ring the children on these phones while he was away. This became a source of friction between the parents, as the father did not consult the mother before buying the phones, and she considered it inappropriate for the children to have the phones.
There were difficulties about the use of the telephones, and the father formed the view that the mother was creating the difficulties. He threatened to send police and “Social Services” to her home unless the children answered his calls.
The father returned from his holiday in October 2007, and resumed spending time with the children as before.
On 16 December 2007 the mother and father had a terrible argument outside the father’s home over the mobile telephones. The children were sitting in the car during this argument.
Further incidents occurred in the father’s household in December 2007 between the father and Ms E, but again, at the time the mother was unaware of the incidents. The mother did receive a disturbing telephone call from the father on Christmas Eve, but the children went to their father for a visit on either Christmas or Boxing Day 2007.
Prior to Christmas, Ms E had attempted to contact the mother by telephone and text message. The mother initially did not respond but on 3 January 2008 the mother had a lengthy telephone conversation with Ms E.
During the telephone conversation Ms E made a number of alarming allegations. As a result the mother refused to send the children to their father for their next scheduled visit on 5 January 2008. On 29 January 2008, the mother commenced proceedings in this court. She applied for an order which would effectively prevent the father spending time with the children or going to their school.
The father has not seen the children since January 2008.
As to the current circumstances of the parties, the mother is 43. She lives with the two children and her partner, Mr W. The mother has been in a relationship with Mr W since about 2004 or 2005, and moved in with Mr W in about October 2007.
The father is 40. He continued to spend time with Ms E and her son [P] during 2008, but the nature at present of his relationship with Ms E and what is likely to happen in that relationship in the future was never satisfactorily established.
The mother’s telephone conversation with Ms E on 3 January 2008 and subsequent revelations about events in the father’s household during 2007 and 2008.
I accept the mother’s evidence that during the telephone call on
3 January 2008Ms E said the following to her among other things:
· that she had witnessed the father dragging [X] and [Y] through the house by their arms and legs and yelling at them;
· that the father had threatened to stab the mother to death;
· that the father had verbally abused Ms E’s children and threatened to kill her son [P] after accusing him of stealing a teaspoon;
· that Ms E had been hit by the father;
· that Ms E was scared of the father and sometimes walked the streets with [P] rather than go home.
Documents obtained from the police on subpoena contained the following information about events in the father’s household during 2007:
i)The police attended the Emerich home on 13 May 2007. The police spoke to the father and to Ms E. Ms E informed the police that after she and the father had returned home from a party, the father had accused her of flirting with someone at the party. An argument ensued and the father grabbed her and threw her off the bed and then grabbed her head and banged her face on the floor about five times. Ms E said that she bit the father, and the father then rang the police.
ii)After the police arrived, Ms E was taken to hospital for a check up. The police took photos of Ms E’s injuries which included severe bruising to her right eye and cuts and scratches to her left knee, grazes, and bruises to her hands, arms and right knee.
iii)At a later time the father admitted to the police that during the incident he repeatedly hit Ms E with a clenched fist to the head and face, after she bit him. The father was arrested and charged with aggravated assault. Ms E subsequently decided against giving evidence and the charge was dropped.
iv)On 27 December 2007 Ms E applied for a domestic violence restraining order. In her affidavit in support of this application Ms E made reference to the incident of 13 May 2007.
v)In the affidavit Ms E also said that on 18 November 2007, the father put a clenched fist under her chin and lifted her chin up.
vi)In the affidavit Ms E also said that on 9 December 2007, the father grabbed her and pulled her up by the hair and punched her in the head repeatedly with a clenched fist, and also kicked her in the face. Ms E said that she suffered bruising to her head face and arms and soreness to her head neck and chest. Ms E reported this assault to the police but told the police that she did not want any action taken.
vii)In the affidavit Ms E said that on 24 December 2007, the father was yelling at her and that in moving a chair she accidentally ran over his toe. In response the father picked up a sofa and slammed it down twice. Ms E was afraid of what might follow and ran and hid. She later called the police.
viii)In the affidavit Ms E said that the father left the house after the 24 December 2007 incident, but then kept coming around. On 27 December 2007 Ms E applied for the restraining order.
A domestic violence restraining order was made against the father, for two years. On about 9 January 2008 however Ms E applied to have the restraining order varied. I was not given a copy of the varied order, but was informed by the father that the varied order allowed himself and Ms E to spend time with each other but not to live together.
On 16 August 2008 Ms E rang the mother again. She informed the mother that the father had assaulted her son [P], 12.
After January 2008 the mother attempted to obtain evidence from Ms E for use in these proceedings, but Ms E was ultimately not willing to co-operate with the mother.
The father’s evidence about the allegations
In his affidavit filed on 29 March 2008 the father denied that he had ever physically abused [X] and [Y] or dragged them by the arms and legs as Ms E had told the mother. He denied that he had ever threatened to stab the mother. He denied that he had ever harmed or threatened to kill Ms E’s son [P].
As to events between himself and Ms E in 2007, the father said as follows:
i)he & Ms E had had their problems, but they were seeking help and as a couple they were going to counselling;
ii)there had never been any fighting in the presence of [X] and [Y]. He had been verbally abusive to Ms E but never around [X] or [Y];
iii)he had attended an eight week anger management course and had learned a lot.
The father denied that he had threatened or assaulted [P] in August 2008. He said that Ms E had made false allegations to the mother because she was angry with the father and had drunk five vodkas.
The police records referred to above were filed in court on
20 March 2008and 13 June 2008 respectively attached to affidavits of the mother’s solicitor. The father knew or ought to have known what was in the police records.
The father failed, either in his affidavit of 29 March 2008 or in any later material he filed in the court, to directly address the matters in the police material.
When interviewed by Mr McDonagh in early July 2008, the father simply ignored Mr McDonagh when Mr McDonagh mentioned that the police records disclosed that he had been violent to Ms E.
During the hearing, the father was questioned by the mother’s counsel about the 13 May 2007 incident. His first response was that the altercation was initiated by Ms E, who bit him. He said that as a result he hit her with an open hand and that she got a cut on the top of her eye and a black eye. The father dismissed the incident as a “drunken episode” and as “self defence”.
Later in cross-examination when the mother’s counsel returned to the topic, and confronted the father with the statement he had given to the police at the time of the incident, he admitted that he had punched Ms E in the head/face several times, although he still maintained that it was Ms E’s fault, as he had been in severe pain as a result of her biting him.
During cross-examination the father said that he could not remember an incident on 9 December 2007 and in fact his evidence was that the only significant incident between himself and Ms E was the incident on 13 May 2007.
Ms E
The father’s wife Ms E, whom the father said he continued to see, was an important player in this matter. On 8 October 2008 the father filed an Affidavit to which he attached a Statutory Declaration purportedly signed by Ms E. I have no serious reason to doubt that the Statutory Declaration was signed by Ms E.
In that Statutory Declaration Ms E said that she and the father had had issues during their marriage, but that the father loved his children [X] and [Y] and had never been violent to them. Ms E said that “the issues that happened [between us] were when the children weren’t with us.”
Ms E admitted ringing the mother on 16 August 2008 but said that it was not true that the father had in fact threatened or assaulted her son [P]. Ms E said that she had made the call because she was angry at the father and had had a few drinks.
Ms E did not deny that violence had occurred between herself and the father. She simply avoided dealing with the issue, just as the father had done with Mr McDonagh.
The father resisted all requests that he make Ms E available for cross-examination. I do not accept that he was told by the Legal Aid Commission that he should not do so.
The father’s failure to call Ms E meant that there could be no exploration with Ms E of the incidents referred to in the police reports, and whether what was recorded in the police reports was accurate, no questioning of her about the allegations she made concerning the father’s treatment of [X], [Y] and [P], and no exploration with her of whether [C], ([P]’s twin) indeed left home in June 2007 because of the violence between Ms E and the father.
It was not possible to explore with Ms E what had happened between the father and herself during 2008, or what the state of their relationship was at the time of the hearing in October 2008.
Conclusion concerning the father’s behaviour toward Ms E & [P]
The father had been aware for months prior to the hearing that the police records had been filed. He made admissions to an extent concerning some of the matters in the police records. The father refused to call Ms E, who could have been questioned about the contents of the records. It is open to me to infer that his failure to call Ms E was because he feared what she might reveal.
The father’s admissions, and the inferences I can draw from the failure of the father to call Ms E, paint a grim enough picture of incidents of violence between the father and Ms E. I am satisfied that the father physically assaulted, threatened and abused Ms E to the extent described in the police records, and that she suffered physical injuries at his hands on at least two occasions. I do not accept that there was any excuse for the father to commit these acts of violence.
What cannot be known however, because of the unreliability of the father as a witness and the father’s failure to produce Ms E for cross-examination, is whether the information the court has been able to obtain from police records and admissions by the father is the full extent of what happened, or only the tip of the iceberg.
In the face of the father’s failure to call Ms E, I do not accept the father’s denials that he threatened [P] in 2007 and 2008.
I will return later to the issue of the father’s treatment of [X] and [Y], as a separate topic.
Did the father simply go through a bad patch in 2007, or is there evidence that the father has had a long standing problem with anger management and violence?
It was the father’s case that in 2007 he went through what he described as a bad “few week period” or a “bad month or two”, and that he should not be judged and condemned simply because of what happened during that bad patch.
There is an immediate flaw in this proposition by the father, in that the father’s admissions taken together with the police records and Ms E’s failure to deny that violence occurred, suggest that the violence between the father and Ms E happened between at least May 2007 and December 2007, which is more than a period of a few weeks or even a few months.
It was the mother’s case that the father’s behaviour in 2007 was not out of character. It was her case that the father had been an angry impatient overbearing and violent man for at least fourteen years.
In support of her case, the mother referred first of all to material in the police records confirming that in 1993 a woman named Ms L took out a restraining order against the father.
The father denied that he had been violent to Ms L. It would be dangerous for me to conclude, from the mere fact that a restraining order was taken out, that the father was violent toward Ms L, and I do not draw that conclusion or rely on that evidence.
It was next the mother’s case that during her relationship with the father, the father had threatened, verbally abused and been physically violent to her.
The mother alleged that:
i)the violence started within a month of her meeting the father;
ii)the violence included the father dragging her down the hallway by her hair, hitting her in the head around her hairline, punching her to the ground, hitting her in the head when she was pregnant with [X] causing her to lose consciousness, holding a knife to her stomach when she was pregnant and threatening her with a knife on two other occasions;
iii)the father frequently verbally abused her, calling her a slut and mole (sic) among other things;
iv)the father rang her frequently during the day asking who she had been talking to and what they had been talking about, and frequently accused her of having affairs with any men she had anything to do with including neighbours and work mates.
Although the father ignored Mr McDonagh when Mr McDonagh asked him about allegations concerning Ms E, the father responded when Mr McDonagh raised the mother’s allegations. The father vehemently denied the allegations.
It was the father’s case that he and the mother had a volatile relationship, that the mother gave as good as she got, and that he was certainly not a violent and domineering partner.
During submissions a number of reasons were suggested for why the mother’s claims that she was a victim of violence at the father’s hands during their relationship should not be accepted.
Firstly, there were some inconsistencies between the mother’s evidence and other evidence in the proceedings. The mother said that she had called the police six times during her relationship with the father. The mother slightly resiled from this in oral evidence, saying that perhaps it was not as many as six times. The police records did not reveal any calls or complaints from the mother, and her partner Mr W said that the mother had told him that she had never called the police as a result of incidents between herself and the father.
Secondly, the mother behaved during and after the relationship in ways which might on their face seem inconsistent with her claim that she was a victim of serious domestic violence at the father’s hands. She stayed in the relationship for nine years for example. There was no independent evidence of the mother making any complaints to the police. The mother readily agreed to the father spending time with the children after separation, and called him on occasions asking for help with [X]. The mother has never applied for a domestic violence restraining order. In August 2003, the mother agreed to do handovers of the children either at her home or the father’s home, inevitably bringing her into contact with the father.
Thirdly, there was some evidence of the mother having a propensity herself for verbal abuse (for example the comment she admitted making to [X] about his nappy when he was two) and evidence that the mother was more than ready to stand up to the father and argue with him (her behaviour during the 16 December 2007 incident).
I bear these matters in mind, but based on the evidence as a whole. I do not accept the father’s denials about his behaviour toward the mother during their relationship.
I take into account first of all that the mother’s claims are not inherently unbelievable, given what is known of the father’s violence toward Ms E, his overbearing and threatening behaviour in relation to the mobile phones, his behaviour on 16 December 2007 and his behaviour in court.
The mother said that the father would “fly off the handle and become violent and abusive to me if anything annoyed him, for example if I did not move quickly enough.”[1] There is a poignant echo of this in [Y]’s comment to Mr McDonagh that “he [her father] is angry most of the time, like if we are playing a game and people play wrong he gets angry.”[2]
[1] Mother’s affidavit 22 September 2008 paragraph 16.
[2] Family Report, page
Secondly, there was evidence that the mother’s allegation that the father was violent to her during their relationship was not a recent invention. In the CAMHS notes in 2003, there is a mention of the mother telling CAMHS that her relationship with the father involved “domestic violence” and in the CAMHS notes in 2006 the mother again reported that the relationship involved lots of domestic violence (physical and emotional).
Thirdly, it is common for victims of domestic violence to behave in ways which may at first glance seem inconsistent with their claims that violence has occurred. One only has to consider what is known about Ms E’s actions during 2007 to see that.
Many of the reasons the mother gave for tolerating the violent relationship for so long are the same reasons many victims of domestic violence give for remaining in violent relationships: the mother thought she would be able to change the father’s behaviour,[3] had been in a failed relationship previously and wanted to prove she could make a long term relationship succeed,[4] felt ashamed that her relationship was not successful and attempted to hide the situation from her family,[5] and was threatened by the father that if she left him he would kill her.[6]
[3] Mother’s affidavit 22 September 2008 paragraph 7
[4] Mother’s affidavit 22 September 2008 paragraph 7
[5] Mother’s affidavit 22 September 2008 paragraph 15
[6] Mother’s affidavit 22 September 2008 paragrpah 19
There are many credible reasons why people who have experienced domestic violence during their relationship agree to their former partner seeing children after the end of a relationship, for example because the children want to see the other parent (and the mother said that [X] did want to see his father), because the parent who has been the victim of violence is under pressure in other areas of their lives (and the mother was, because of [X]’s behaviour) or because the parent believes that they have no choice.
Fourthly, although the mother showed a tendency to embellish and exaggerate on occasions, I considered her a generally truthful witness.
I accept the mother’s evidence about events during the relationship. I am satisfied that the father committed serious acts of domestic violence toward the mother during their relationship.
The father’s behaviour at handovers after separation
It was the mother’s case that there were often difficulties at handovers, after separation, both at McDonalds and at her home. The mother accused the father of pushing his way into her home on occasions, hanging about and refusing to leave, or being argumentative and threatening.
The mother’s evidence was that
“On occasions the father was physically threatening and abusive to me including that he held up his fist and told me “I’m going to get you” or other threats. The slightest comment seemed to set the father off and he would become aggressive and threatening. When the father acted in this manner towards me the children cried and held on to me and were clearly scared of the father.”[7]
[7] Mother’s affidavit paragraph 64
The mother said that after 2004, if Mr W was at her house when handovers occurred, the father would not come inside but would leave immediately with the children.
It was the father’s case that on no occasion did he behave as the mother described, and that the mother was fabricating this evidence.
I however accept the mother’s evidence about the way the father behaved to her on occasions at handovers after separation. This behaviour was unacceptable and was damaging to the children, presenting to them as it did a model for how women should be treated or problems solved.
The incident on 16 December 2007 was a particularly bad example of violent out of control behaviour by the father at a changeover. During that incident the father yelled abuse at the mother and ended by kicking her car. The children were sitting helpless and crying in the car witnessing this event. The mother was terrified.
The mother was not blameless for what occurred on 16 December 2007, because she could have simply taken the mobile phones and driven off rather than arguing back and thus exposing the children to the terrible scene which followed. However the mother’s refusal to take the mobile phones cannot excuse the father losing control, threatening the mother and yelling abuse and finally (whether he seriously damaged it or not) kicking the mother’s car.
Summary concerning the father’s propensity for violence
I am not satisfied that the father’s violence toward Ms E during 2007 was something which sprang out of nowhere and occurred only because the father was going through a short stressed period in his life. I am satisfied that the father was not only violent to Ms E, he was violent to the mother during their relationship. I am satisfied that on occasions after separation the father on occasions behaved in a threatening, intimidating (and on 16 December 2007 a violent) manner.
Has the father ever physically abused [X] and [Y]?
It was accepted by witnesses in this case (the mother and
Mr McDonagh, as well as the witnesses for the father who signed Statutory Declarations) that the father loved his children.
There was evidence however that the father has not always been able to keep his temper with his children. That evidence was as follows:
i)In December 2006, [X] told the mother that the father had “almost punched him” making a punching motion with his fists. He also told her that “Dad has punched me before in the belly and back and head and sometimes Ms E has to stop Dad and get him away. Dad throws me onto my bed.”
ii)In the telephone call on 3 January 2008 Ms E told the mother that the father had dragged the children by the arms and legs;
iii)[X] told Ms B that his father dragged him around and pushed him around. [Y] said her father had “dragged [her] along the floor by the arms just one time.”
iv)In July 2008 [X] told Mr McDonagh that his father had hit and slapped him.
The father admitted that on occasions he had grabbed the children by the hand and taken them to their room. He said that he may have raised his voice a bit. He strongly denied that he had ever behaved in a harsh or physically abusive way to his children.
The evidence about the father’s treatment of the children came from a number of diverse sources, including a statement by [X] to the mother in 2006 long before the litigation commenced.
It is not inherently improbable that the father, a person who has great difficulty controlling his temper, lost his temper with [X] in particular. It is not inherently unbelievable that the father might behave in a physically abusive way even to the children if he lost his temper. The father admitted grabbing the children by the hand and taking them to their room. He admitted raising his voice. It was a pattern in these proceedings for the father to make minimal admissions unless really pressed, and to downplay the seriousness of his actions.
I am satisfied that the father has behaved toward the children as [X] and [Y] and Ms E described.
Whether the father has changed since January 2008 or is likely to change.
The father said that he had done an eight week anger management course in February/March 2008, although he provided scant evidence to corroborate the claim that he had actually attended (as opposed to enrolled in) this course.
Whether the father did the course or not, it does not seem to have helped him. In May 2008 the father was unable to control himself when out with friends at night. He was either arrested or given an on the spot fine for disorderly behaviour.
The father entirely blamed the police, for overreacting when he swore at another person in his party.
On 16 August 2008, Ms E rang the mother and told her that the father had threatened and assaulted her son [P]. I do not accept the father’s denial that this actually occurred. This is yet another example of the father continuing to behave in a threatening and abusive fashion, despite having undertaken (he said) an anger management course.
The father was also not able to control his temper on occasions during the hearing in this court in October 2008.
Mr McDonagh pointed out that if the father was not able to keep his temper in the structured courtroom setting in which he was treated with patience and tolerance, how then could the court be confident that he would keep his temper when confronted with rude and oppositional behaviour from [X]?
There is absolutely no evidence that the father has changed, or is likely to change, from the person experienced in the past by the mother, Ms E, [P], [X] and [Y].
The father’s evidence that he would do a course if he was ordered to do so by the court inspires no confidence. It is well recognised that until a person accepted that they had a problem and needed help, they were unlikely to benefit from attending a course. There were no signs that the father genuinely accepted that he has a problem and needed to change his behaviour.
[X] & [Y]’s best interests
In deciding whether to make particular parenting orders about [X] & [Y], I must regard their best interests as the paramount consideration.
Sections 60CC(2) and (3) of the Family Law Act contain the primary and additional considerations to which I must have regard in order to determine [X] and [Y]’s best interests.
The primary considerations in s.60CC(2) are as follows:
a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The children have a meaningful relationship with their mother. At present they do not have any relationship with their father.
It is almost trite to say that children benefit from having a meaningful relationship with both their parents rather than with just one of their parents. A meaningful relationship, a relationship which is beneficial to children, is not created simply because children spend time with a parent.
I am satisfied that the father is a person who is unable to control his temper and is violent to women and occasionally to children. There is no evidence that he is likely to change.
If the children fear their father, bear the brunt of his anger and impatience, and are exposed to the way he treats women and resolves arguments, it will not be beneficial to the children and indeed will be positively harmful to the children if they have a relationship with him.
Supervised time may keep the children physically safe, and it may curb the father’s impatient and angry behaviour, but it will not necessarily result in a meaningful relationship developing.
If the children see their father at a contact centre, they may on a best case scenario have fun with him during a two hour period, and talk to him about what they have been doing at school or in sport. It does not necessarily follow that a meaningful relationship will develop however.
Unless the father changes, the children may never be safe with him in an unsupervised setting. Mr McDonagh’s opinion was that if the father’s time could never progress beyond supervised time, and the children could never know their father in context and interact with him in a variety of settings outside the contact centre, then there was little point in the supervised time commencing in the first place.
Mr McDonagh’s evidence also was that even within the confines of supervised contact, the children could be exposed (to their detriment) to the father’s negative views of women.
I place weight on Mr McDonagh’s evidence.
I am required by Section 60CC(2)(b) to consider whether [X] and [Y] are likely to be at risk of physical and psychological harm from being exposed to abuse neglect or family violence while in the care of either of their parents.
In regard to the impact on children of being exposed to family violence, Mr McDonagh said as follows:
“…any domestic violence would have an impact on the children. It would have an emotional and behavioural impact on the children. So that would probably take place at a number of different levels.
At one level, if my children are exposed to me being violent, that would tend to make them very nervous and very anxious being around me. They would want to look after my feelings and never make me angry or upset.
It would also tend to undermine things like their self-confidence. For instance, “If I’ve upset my dad I deserve to be hit.” So it can give children strange sorts of associations like that.
It can also make children replicate behaviour. So if one child is unkind to another child, the way to respond to it is with violence. You might respond to another adult. Maybe if it’s your mum or the father’s partner, if she says something to you that you don’t like you might respond to her with violence, replicating the father’s behaviour towards her.
In terms of a child’s emotional development, it sets up a very anxious and uncertain emotional environment for them, because you can never be sure when something is going to go wrong and dad’s going to get angry at somebody in the family, and you can never be sure what the consequences of that will be.
The other thing is, if I’m violent in front of my children or I’m violent to my partner, it sort of makes all the boundaries between the children’s and the adult world somewhat confused and uncertain also.
The children are always learning, so if I’m violent in front of them I’m teaching them something. I’m teaching them how to deal with conflict. I’m teaching them how to deal with people who have a different point of view to me. I’m teaching them that frustration is the only way to deal with the situation. I’m teaching them the best way to deal with opposition is to silence it, frighten it or intimidate it.
If we got into sort of gender-type things we might say, well, we’re teaching our children to have adult relationships. We’re teaching our boys how to be men and we’re teaching our girls how to be women, and that would come down to, again, violence in relationships. Like, a man’s opinion is better and more important and stronger than a woman’s, and if she disagrees, well, there’s a way of dealing with her and it’s not by arguing with her, its by hitting her.”[8]
[8] Transcript of Mr McDonagh’s evidence, page 2
Even if the children do not directly witness the violence, they still suffer harm if they live in a household in which there is a threat of this happening between the adults, especially here where the children themselves experience the father as a person who is unpredictable and bad tempered.
I am satisfied that family violence occurred in the father’s relationship with the mother, and that it occurred at handovers from time to time. It occurred at the handover on 16 December 2007.
I am satisfied that the father committed acts of family violence toward Ms E in 2007. Ms E suffered injuries on occasions, including a black eye.
I am satisfied that the children have witnessed family violence (for example on 16 December 2007) and may well have witnessed its aftermath (in the form of seeing Ms E with injuries). The father is either naïve or dishonest if he believes that the children were unaware of what was happening in his home in 2007.
I am also satisfied that [X] and [Y] have been subjected on occasions to excessive physical discipline and in the case of [X] being punched, an assault.
There is no evidence that the father has changed, or is capable of changing. He had not, at the time of the hearing, ended his destructive relationship with Ms E.
I am satisfied that [X] and [Y] would be at risk of physical and emotional harm from being subjected to abuse and family violence if they were to spend unsupervised time with the father. I am also satisfied that this risk would exist if the children spent time with the father supervised by a relative of the father’s.
The children would not be at risk of being subjected to abuse or family violence (as these are defined in the Family Law Act) if they spent time with the father at a contact centre.
There was no evidence that in the future the children were likely to be exposed to abuse or family violence in the mother’s care, provided that the mother and father do not come into contact with each other at handovers of the children.
I now turn to the additional considerations in s.60CC(3).
I must consider any views expressed by [X] and [Y] and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.
Independent evidence concerning the children’s views about spending time with their father was given by Ms B and Mr McDonagh.
Ms B saw the children on a number of occasions between March and August 2008. Ms B’s evidence was that the children “have remained adamant that they do not wish to see their father. [X] became agitated whenever he was required to speak about his father. He stated that ‘I feel really scared when I have to talk about it.’ [Y] was more hesitant in her responses but remained clear that she did not wish to see her father.”[9]
[9]Page 2 Exhibit A letter from Ms B dated 17 October 2008
Ms B said that on 7 May 2008 she discussed with the children the possibility of them spending supervised time with their father at a contact centre. Ms B said that “Again the children said that they did not want to see their father but appeared relieved when they understood that should these visits take place, they would happen at an independent location and with an independent adult supervising the visit.”[10]
[10] Page 3 Exhibit A
Mr McDonagh reported that when he spoke to the children in late June 2008, “neither child expressed any enthusiasm about seeing their father. Both children reported that he is angry when they are with him. [X] claimed that his father has hit and slapped him.”[11]
[11] Family Report page 9
For the purposes of the report preparation Mr McDonagh tried to persuade the children to spend time with their father while
Mr McDonagh was also present. He reported that “The children were not willing to voluntarily spend time with their father. They demonstrated no interest and curiosity in him.”[12]
[12] Family Report page 9
[X] downright refused to see his father in the company of
Mr McDonagh, even when tempted with the prospect of being able to ride his mountain bike at his father’s. He said that his father was “mean and angry” and that if he was nice it was only because he was pretending to be nice. [Y] responded to Mr McDonagh’s suggestion by saying “It’s a hard question. No, because I don’t know if he will be nice or mean.”[13]
[13] Family Report 2nd paragraph page 6
Mr McDonagh was asked if he thought that the children had been coached, and he was firmly of the view that they had not.
Mr McDonagh is a very experienced counsellor and I accept his view.
I need to consider however whether the children’s views about their father have been affected by anything which they have seen or heard since January 2008, or even by the passage of time.
[X] and [Y] could not help but be aware of their mother’s feelings about their father and they may well have heard their mother talking to Ms B or others about some of the disclosures and allegations. [X] reported during one interview with Ms B that “Mum told us that Dad punched Ms E.”
Exposure to a negative view of their father, or even a simple lapse of time, could have had their effect on the children. However, it was Mr McDonagh’s view that when the children talked about their father they were describing their own experiences of their father.
The children visited the father’s household frequently in 2007, and it is impossible to believe that they were totally unaware of unacceptable behaviour by the father toward Ms E and her children. I am satisfied that the children themselves have born the brunt of the father’s temper on occasions. The 16 December 2007 incident in which their father behaved most aggressively was undoubtedly frightening and upsetting for the children. The children’s reluctance or refusal to consider spending time with their father is entirely understandable in the light of their own experiences.
The children are however only 9 & 7, and it is likely that [Y] in particular might be persuadable on the point of seeing her father in a supervised setting. The children’s views are only one factor to be taken into account in assessing whether an order should be made for the children to spend time with the father.
I must consider the nature of [X] and [Y]’s relationship with each of their parents and other persons (including grandparents and other relatives of the children).
No issue was raised about [X] and [Y]’s relationship with their mother, or with her partner Mr W, and I accept that the children have a good relationship with their mother and Mr W.
No issue was raised about [X] and [Y]’s relationship with the father’s extended family. The unchallenged evidence of the father’s sister, brother-in-law and mother suggested that the children had had regular interaction with the paternal grandparents and extended family on the father’s side over the years. I accept that the children have a good relationship with members of the father’s family.
If I make orders which prevent the father spending time with [X] and [Y] in the future, a consequence is likely to be a continued severe reduction in the amount of time [X] and [Y] spend with the father’s family.
It was the father’s case that [X] and [Y] had a good relationship with him prior to January 2008.
The father gave some information about a range of fun activities he had done with the children in the past and referred to helping them with such things as readers. The Statutory Declarations from the father’s family and friend praised his dedication to his children and described activities he had done with the children. The evidence of these witnesses was unchallenged and I accept that the father engaged in these activities with the children.
The father did demonstrate knowledge of the children’s interests when choosing cards for them in May 2008. Mr McDonagh summarised the mother’s comments about the cards as follows: “the children both kept the cards for a while. [Y] likes Bratz dolls; her card was a Bratz card. [X]’s card had a picture of a footballer which he liked.”[14]
[14] Family Report 2nd paragraph page 4
The father’s evidence as a whole suggested however that he had no insight into the effect of his behaviour on the people around him.
I cannot place weight on the father’s opinion that [X] and [Y] had a good relationship with him prior to December 2007.
Mr McDonagh regarded it as telling that in June 2008 he was unable to persuade the children to spend time with their father. It was effectively Mr McDonagh’s opinion that if the children’s memories of their father had been generally good and positive, then he (Mr McDonagh) with his skills and experience would have been able to persuade the children to see their father. I place weight on this evidence.
I am therefore not satisfied that the father did have a generally good and positive relationship with [X] and [Y] prior to January 2008.
I must consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
The mother is not willing to facilitate and encourage a close and continuing relationship between the children and the father.
I am satisfied however that this is entirely the result of the mother’s desire to protect the children from exposure to harm and abuse.
There is no evidence that the mother is bent on cutting the father out of the children’s lives for the sake of it. Despite her own experiences of the father during their relationship, despite the difficulties occasioned by both children reaching school age and the father refusing to give up having the children every weekend, despite [X]’s disclosure in December 2006, despite the incident on 16 December 2007 and despite a disturbing phone call she received from the father on Christmas Eve 2007, the mother kept sending the children to spend time with the father.
It was only after the telephone call from Ms E on 3 January 2008 that the mother had finally had enough, and acted to protect the children.
I must consider the likely effect of any change in the children’s circumstances, including the likely effect of separation of the children from:
a) either of their parents; or
b)any other child, or other person (including any grandparent or other relative of the child) with whom they have been living.
The children have not seen their father now since 25 and 26 December 2007, so any resumption of time with him would represent a change.
A change which restored unsupervised time is unthinkable at this stage given the evidence. However the Independent Children’s Lawyer submitted that an order for supervised time should be considered.
There are however reasons to be concerned that if the father has not changed, even supervised time may have a negative effect on the children.
Mr McDonagh’s evidence was that if the father did not like women, his attitudes could be manifested to the children [to their detriment] even during a supervised visit.[15]
[15] Transcript of evidence of Mr McDonagh page 28
Mr McDonagh also expressed concern that the children might seem fine during a supervised session, and might even have fun playing with games and toys, but they might still suffer an emotional reaction after the session. He was concerned that there were no obvious resources available to monitor the children’s reaction to the visits. This was not a case which was likely to attract the involvement of Families SA, and in Mr McDonagh’s opinion a review by the court in twelve months was not a sufficient safeguard for the children.
I cannot predict how an order for supervised time would affect the children. They might, after initial reluctance, welcome a chance to see their father, especially if they knew that it would be within the safe confines of the contact centre. They might however feel stressed by exposure to his attitudes toward women, or feel a subtle unspoken pressure to support a return to unsupervised time or a subtle unspoken pressure to feel emotionally responsible for their father’s distress at not being able to take a more active role in their lives. They might experience anxieties which they were unable to articulate and unable to deal with except by acting out when with their mother.
During the hearing no resources were identified which could be called on to monitor the progress of supervised time and its effect on the children. I will need to bear this in mind when finally deciding whether supervised time should be ordered.
The second change which needs to be considered is the change which will result if the children do not see their father again in the foreseeable future, after having had involvement with him for the whole of their lives prior to January 2008.
Mr McDonagh conceded that he had dealt with adolescents who had felt angry about one of their parents having had no involvement in their lives, but this was more in circumstances where a parent had voluntarily disappeared or been unjustifiably excluded from the children’s lives.
If the father cannot change, and there is no reason to be optimistic that he can, then there is no possibility of the father’s time with the children moving once again to unsupervised time. There is thus no foreseeable prospect of the father’s time with the children being restored to what it was.
Supervised time would give the children a connection of a kind with their father. However Mr McDonagh questioned whether ordering supervised time in these circumstances was more about meeting the needs of the father than meeting the needs of the children. It was his view that if there was no prospect of the time moving beyond supervised time and if there was no prospect of the father being a positive role model for the children and providing them with guidance into adulthood, then the children would not lose anything by an order that they cease spending time with their father.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with a parent on a regular basis.
This is not a relevant consideration in the proceedings before me.
I must consider the capacity of each of the parents to provide for the needs of the children, including their emotional and intellectual needs.
Some criticisms were levelled at the mother, for example about her chastisement of [X] when he was two years old and about her participation in the incident on 16 December 2007. The mother herself admitted that she was not perfect. I am satisfied however that the mother generally has the capacity to meet the needs of the children, including their emotional and intellectual needs.
As to the father, I accept that he loves his children in his own way. He has adequately fed, clothed and housed them when they have been with him. I do not accept that he failed to provide them with adequate food. He has the ability to provide for the children financially.
The father is however simply unable to meet the children’s emotional needs or to provide them with a safe environment free from violence. He is unable to control his outbursts of temper, and he is unable to understand that his angry and confrontational behaviour frightens, upsets and alienates people.
The father’s relationship with Ms E was marked by violence, and to the time of the hearing in October 2008 the father had not extricated himself from that relationship.
There is no evidence that the anger management course changed anything, and no evidence which would create any optimism at all that the father is likely to change in the future.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the children and of either of the children’s parents and any other characteristics of the child that the court thinks are relevant.
[X] and [Y] are 9 and 7, a boy and a girl, who need to be shielded from any exposure to abuse and family violence. Their different sexes may mean that exposure to family violence will have a different effect on each of them, but the effects can only be negative in either case.
[X] has been diagnosed with an auditory processing disorder.
Mr McDonagh commented and I accept that [X] is a “special needs child who has behavioural and emotional problems. Things have to go right. His life has to be structured in particular ways. Parents have to be working co-operatively.”[16]
[16] Transcript page 50
I must consider the attitude of each of the parent’s to the duties and responsibilities of parenthood.
The mother told Mr McDonagh that she believed that the father only pursued a relationship with the children as a means to control her. Mr McDonagh recorded the mother as claiming that “the father enjoys his continuing power over her and that he has little interest in the children.”[17]
[17] Family Report paragraph 4 page 4
After observing the father during three days of the hearing, I do not accept that this is the case. In my view the father has a strong and genuine desire to spend time with his children. Mr McDonagh accepted that the father loved his children and the mother also conceded this in oral evidence.
In some respects the father has shown a good attitude to the duties and responsibilities of parenthood.
He has at all times since separation shown a keen desire to spend time with his children.
[X] has always been a very challenging child. The mother agreed that after separation, there were occasions when she rang the father because she was unable to cope with [X], and that the father would always help out.
The father has paid his child support. He was unable to pay for a period in 2007 when he was unemployed, but on Christmas Eve 2007 he deposited $5,000.00 into the children’s bank account (accessible by the mother) to cover arrears of child support and some future child support.
In other respects however the father has shown a poor attitude to the duties and responsibilities of parenthood.
During 2007, the children regularly spent time in the dysfunctional household in which the father and Ms E lived. The children were either directly exposed to the father’s violence or were exposed to the aftermath of it. The father kept seeing the children, week in and week out, and did nothing to shield them from what was happening in his home. It is likely that he would still be hiding the problem from the mother if he could. In this respect he showed a very poor attitude to the duties and responsibilities of parenthood.
In allowing himself to lose control and expose the children to a terrible scene on 16 December 2007, the father also showed a poor attitude to the duties and responsibilities of parenthood.
The mother can be criticised for her role in the 16 December incident. However I am satisfied that in taking steps to end the children’s time with the father after the telephone call from Ms E, the mother showed a good attitude to the duties and responsibilities of parenthood.
I must consider any family violence involving the children or a member of the children’s family.
I am satisfied that the father committed acts of family violence during his relationship with Ms E and earlier during his relationship with the mother. He committed acts of family violence during the argument between he and the mother in December 2007. I accept that the mother was terrified during this incident.
In JG & BG[18], Chisholm J. discussed the effects on parenting proceedings of a finding that one parent had committed acts of family violence toward another adult, and said as follows.
“Violence may take many forms and have a quite different significance in different cases. It might be, for example, a single outburst, out of character, caused by a stressful situation, for which the violent person feels immediately regretful and apologetic. It might be the result of mental instability or disease. It might stem from a person's inability to control his or her temper. It might represent a deliberate pattern of conduct through which the violent person exercises a position of dominance and power over the other. It might be associated with a particular situation, and be unlikely to be repeated in different situations, or it might be a recurrent pattern of behaviour occurring in many situations. The violent person may deny the violence, or seek to justify it, or alternatively might accept responsibility for it and be willing to take appropriate measures to prevent it happening again.
These and many other aspects of violence may be highly relevant to the court in its task of attempting to determine the relevance of the violence to the children's welfare. The court's ability to make this determination will of course depend on the evidence available to it. Violence associated with a pattern of dominance, for example, may be particularly serious. For children to grow up in a climate of a potentially violent and dominating relationship between their parents seems to me to be an unacceptable model of family relationships, and would be very likely to create a situation of stress and fear that may well be damaging over a period. It is quite wrong, in my opinion, to assume that violence can be relevant only if it is directed at the children or takes place in their presence. It is equally wrong to assume that violent behaviour will necessarily be repeated, or to assume too readily that it will harm children, or to give it excessive importance; it is of course only one factor relevant to the assessment of what the child's welfare requires, and it will be more important in some cases than in others. “
[18] JG & BG (1994)FLC 92-515
I am satisfied, both as a result of the evidence given in this case and as a result of observing the father during the course of these proceedings, that the father is frequently unable to control his temper and that this is a problem of long standing. I also consider it likely that the father on occasions uses a display of temper to control others, knowing that they feel intimidated by such behaviour and are likely to give in.
I am satisfied that the children’s experience of their father as an angry person has resulted in them fearing their father. The father is an unacceptable role model for the children.
The father is blind to the fact that his anger and inability to control his temper is a problem for those around him. Toward the end of the hearing, the real possibility that he might lose his children as a result of his behaviour seemed to come home to the father. He then said that if necessary he would end his relationship with Ms E and do whatever courses the court ordered him to do.
I am satisfied that the father has also on occasions been violent or threatened violence to Ms E’s son [P], and to [X] and on one occasion to [Y].
There is a family violence order in place between the father and Ms E. To the best of my knowledge the order is in force until January 2010. It was made without admission of liability, and does not by itself establish that violence occurred between the father and Ms E.
I must consider whether it is preferable to make orders which are least likely to lead to further proceedings.
It is always preferable to make orders which will end litigation for the parties and the children, but no order available to me in these proceedings is to be preferred because it is least likely to lead to further proceedings.
If I make the orders the mother proposed, it is likely that the father will bring further proceedings in the future. As Mr McDonagh observed in cross-examination, “…my feeling would be that I think Mr Emerich would be back. I just can’t imagine him going away. He does love his children. He feels very strongly about his children.”[19]
[19] Transcript evidence of Anthony McDonagh page 30
If on the other hand I make orders for supervised time, then, given that the mother has now been through one court case and is likely to be hyper-vigilant about the children’s well being in the future, there is a reasonably high risk that the mother may bring the matter back to court, if she becomes aware of any fresh disturbances in the father’s life or if she perceives the children as not coping with the orders I make.
Parental Responsibility
I am required by section 61DA to apply a presumption that it is in [X] and [Y]’s best interests that their parents have equal shared parental responsibility for them, absent there being reasonable grounds to believe that one of the parents has engaged in abuse of the children or another child who at the time was a member of the children’s family or family violence.
I am satisfied that the father has engaged in family violence. The presumption does not apply.
It is still open to the court, even if the presumption does not apply, to make an order for equal shared parental responsibility if the court considers that this outcome would be in the best interests of the children.
To an extent the order I make about parental responsibility depends on whether the father is to have any continuing role in these children’s lives.
If he is not, then he will have little ongoing knowledge of the children and will not have the information required to make good decisions about major issues concerning the children. The children themselves may come to resent the idea of a parent who has no interaction with them having a say about the school they are to attend or other major issues. If the father is to have no ongoing involvement with the children then an order that the mother have sole parental responsibility is indicated.
If the father is to have a continuing role in the children’s lives, there is some merit in giving the father a say in major decisions which are required for the children.
The mother might still argue that she should have sole parental responsibility, because the relationship between the parents is poor. They currently have no ability to communicate. However, while this might mitigate against any kind of a shared care arrangement, it does not necessarily mitigate against an order for equal shared parental responsibility. Major decisions are not required frequently, and mechanisms are available to resolve disputes if the parents cannot agree, even if one of those mechanisms is an application to the court.
Giving the mother sole responsibility for major decision making could have unexpected consequences. A sole parental responsibility order, coupled with an order that the father spend no time with the children, would allow the mother to relocate from Adelaide if she wished. She might do this. One of the complaints the mother made to Mr McDonagh was that the father had in the past prevented her moving out of Adelaide. One of the orders the father sought in Response (although he made no reference to it during the hearing) was an order preventing the mother from relocating.
I do bear this in mind, but in my view if the children are to live with the mother, and the father is to have no time with the children, the only realistic order I can make is an order that the mother have sole parental responsibility for the children. If she makes a choice for the children with which the father does not agree, then he will still have recourse to the court.
I therefore turn before making a final decision about parental responsibility to the question of whether the father should continue to spend time with the children.
The recommendations in the Family Report
The recommendations in Mr McDonagh’s report were as follows:
i)Families SA to be invited to intervene with a view to an assessment by the Child Protection Unit to determine the level of violence and abuse the children have experienced and been exposed to in their father’s care.
ii)If it is clear that the children have been exposed to ongoing abuse and violence between the father and Ms E, all visits between the father and the children are to be suspended.
iii)Children and their father to undertake a series of supervised visits through the Children’s Contact Service subject to any directions or instructions from Families SA.
iv)It would seem appropriate that Ms E provide the Court with an affidavit detailing the claims that she made to the mother about the father’s care of the children.
In regard to Mr McDonagh’s first recommendation, Families SA were invited to intervene in these proceedings prior to the commencement of the hearing. They declined to intervene.
Mr McDonagh’s next two recommendations are confusing. On the one hand Mr McDonagh seems to be suggesting that if it is found the children had been exposed to ongoing abuse and to domestic violence between Mr Emerich and Ms E all visits between the father and the children should cease. However in the next paragraph he recommends a series of supervised visits.
During cross-examination it was clear that Mr McDonagh’s recommendation to the court was that no order be made for the father to spend time with the children, even supervised time.
The answers given by Mr McDonagh during cross-examination revealed that his thinking about this issue in terms of the specific situation of [X] and [Y] had the following strands:
i)there was a “fog” around the issue of exactly what had happened between the father and Ms E, the current status of the father’s relationship with Ms E, and whether there was substance in the allegations Ms E had made to the mother;
ii)
this “fog” was caused by the father’s refusal to bring Ms E to court and the father’s ignoring Mr McDonagh when
Mr McDonagh asked him questions about allegations that he had been violent to Ms E;
iii)given that “fog” and given the strength and nature of the allegations about events in the father’s home and about the father’s actions toward other women in the past and toward the children, and given that the father did not acknowledge that he had a problem and that there was no evidence that he had changed, it was unthinkable that the children should spend unsupervised time with the father;
iv)the children would be physically safe if they spent supervised time with the father at a contact centre, and they might even have a good time there with their father if he provided suitable toys and games;
v)if the children’s time with their father at the contact centre appeared to go well, there was a risk that the arrangements for the children could too easily slip back to unsupervised time, without any proper examination of whether the father had changed such that the children would no longer be at risk if they spent unsupervised time with him;
vi)the resources were simply not available for the children’s emotional reaction after the supervised visits to be regularly monitored. If Families SA became involved they might be able to combine therapy with supervised time and appropriately and frequently monitor the situation. However this was not the kind of case which Families SA (given their resources) were likely to become involved in;
vii)A review in twelve months time by the court with nothing in between was not satisfactory for the children;
viii)[X] was a special needs child with behavioural and emotional problems and it was particularly important that for [X], everything went right.
ix)if the father did not like women, his attitudes could be manifested [to the detriment of his children] even during a supervised visit, because the “way [he] talked to [his] daughter, the way [he] put his son first or the way [he] decided what game will be played or what roles [each person] would have in the game could still demonstrate [the] attitudes that underline the things that caused [the father] to be violent to a partner, or cause [him] to denigrate women, or cause him to say “Your opinion is of no value.”[20]
x)it was questionable whether time at a contact centre was of any value if there was no prospect of the situation progressing so that the children could spend unsupervised time with their father in the future and get to know him in the context of his every day life and relationships outside the contact centre;
xi)while the court could order that the father attend courses and undertake therapy, unless the father acknowledged what he had done in the past, acknowledged that he had a problem and accepted that he needed help, he was unlikely to change.
[20] Transcript of evidence of Mr McDonagh page 28
I place weight on Mr McDonagh’s recommendations.
The Independent Children’s Lawyer’s submissions
Counsel for the Independent Children’s Lawyer proposed that orders be made which would allow the father to re-establish his relationship with the children in a supervised setting. The Independent Children’s Lawyer’s counsel also proposed that the father be required to participate in some ongoing treatment or therapy.
The Independent Children’s Lawyer’s counsel acknowledged the strength of the evidence that the father had been violent to Ms E. She acknowledged that the father did not appreciate the seriousness of what he had done.
The Independent Children’s Lawyer’s counsel submitted however that the greatest weight should be given to the fact that the father did love his children and wanted to be part of their lives. It was her submission that the years the father had spent week in and week out with the children should not simply now be disregarded and the father simply expunged from the children’s lives.
The Independent Children’s Lawyer’s counsel also submitted that it was important for the father’s extended family not to be cut out of the children’s lives, which could easily happen if the father did not see the children. The paternal grandparents, and aunts and uncles have had involvement with the children in the past.
Conclusion
By the end of the hearing, the proposals before the court were as follows:
i)The mother’s proposal that the father should spend no time with the children.
ii)The father’s proposal that the children spend alternate weekends and half school holidays with him, tempered with his willingness to accept anything the court offered (even if it was supervised time) if only he could see his children;
iii)The Independent Children’s Lawyers proposal that supervised time should be ordered and an attempt made to retrieve the relationship between the children and the father.
An order for unsupervised time is unthinkable.
During final submissions, the father said that if he needed to give up Ms E in order to be able to spend time with his children, then he was willing to do this. It would be impossible for me to place any reliance on this expression of intention by the father. I did not consider the father a credible witness.
It was not the case in any event that Ms E was the problem, or that the father changed in 2007 into a different person, as a result of financial and marital stress. Revelations about the father’s assaults on Ms E during 2007 simply brought the father’s deficiencies into sharp focus.
I am satisfied that the father behaved violently toward Ms E, not just during a period of a few weeks or a few months but over a much longer period. I am satisfied that the father has at the very least roughly handled and inappropriately hit the children on occasions. I am satisfied that the father was also violent to the mother and has a general propensity to behave in an overbearing, aggressive and threatening way. I am satisfied that his children perceive him to be often “angry and mean.”
The father has no insight into the effects of his behaviour on the people around him. Throughout the hearing he minimised the extent and nature of what had occurred in the past. The children would be at risk of physical and emotional harm if they spent unsupervised time with the father.
The question remains whether supervised time should be ordered.
The children said that they did not want to see their father, but they are 9 & 7 and they might in the right circumstances be persuaded to see him at a children’s contact centre.
For the reasons articulated by Mr McDonagh however, I am satisfied that there is a real risk that the children might suffer emotional harm if supervised visits took place, and it is questionable whether supervised visits would deliver any benefit to the children.
In Mr McDonagh’s opinion, supervised time ought not to be considered unless a body such as Families SA was available to closely monitor progress and to ensure that therapy was provided to all participants as needed. Families SA is not an available option. There was no evidence that any other organisations existed which might provide a similar service. There was no evidence about whether either parent could afford to contribute to the cost of such a service.
A possibility open to me would be to adjourn these proceedings in order to obtain evidence about whether there is any service available which (within these parents’ means) could closely monitor the reintroduction of the children’s time with their father and provide therapy for all involved.
If the father had shown any sign that he regretted his past behaviour or recognised how serious it had been or if there had been any evidence that the father might change, then this is an option I might have considered. The father did not however demonstrate any of these things.
It is a serious matter to exclude a parent from involvement with their children.
Section 60B of the Family Law Act sets out the objects of Part VII of the Family Law Act, and the principals underlying those objects. Section 60B(1)(a) is worth emphasising. It provides that:
“(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;”
Section 60B emphasises the rights of children, not the rights of parents. It is emphatic that any order the court makes about children spending time with a parent must be an order which is in the best interests of the children concerned.
It is implicit in Section 60B that all other things being equal, children benefit from the involvement in their lives of both, not just one, of their parents, and benefit from knowing and being exposed to the culture of both (and not just one) of their parents.
This is not a case however where the mother is trying, without justification, to exclude the father from the children’s lives. It is a case where the father has disqualified himself by his behaviour from a right to be involved in his children’s lives.
I do not intend to order that supervised visits occur.
I also do not intend to make any orders for telephone communication between the children and the father. Receiving telephone calls from their father has the same potential to place the children under emotional strain as supervised time. I do however intend to order that the father be permitted to send birthday and Christmas cards and gifts to the children. The children were not disturbed about the cards they received in May and receipt of cards and gifts does not require the children to deal directly with the father in the same way that telephone communication does. What has happened in this matter is not the children’s fault, and if the father does send them cards and gifts it will be a positive indication to the children that he does love them and does not blame them for what has occurred.
I intend to order that the mother send the father some information about the children each six months, including any communication from the children if they wish to send it. If this motivates the father to do something about his behaviour for his children’s sake, this may well be in the children’s long term best interests.
I intend to order that the mother have sole parental responsibility for the children. As previously indicated, in my view if the father is to spend no time with the children it is in the children’s best interest that the mother have sole parental responsibility for them.
There is no reason why the father’s extended family should not communicate with the children, as long as they do not allow themselves to be used as a conduit by the father. There is no reason why the father’s extended family cannot negotiate direct with the mother about seeing the children.
If the extended family are dissatisfied with the outcome of the negotiations then recourse to family dispute resolution or as a last resort this court is open to them. However, there is no application before me from any extended family member for orders and it would be inappropriate for me to make orders concerning the children’s time with or communication with their extended family.
There are psychologists available who could help the father, if he recognises that he needs help. The future is in the father’s own hands.
For all of the above reasons the orders will be as set out at the beginning of this judgment.
I certify that the preceding two hundred and sixty eight (268) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Rachel Hodgson
Date: 5 February 2009
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