FALCONE & FALCONE (No.2)
[2016] FCCA 1274
•15 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FALCONE & FALCONE (No.2) | [2016] FCCA 1274 |
| Catchwords: FAMILY LAW – Parenting – dispute as to live with arrangements for boy who is nearly 3 – where there has been family violence by the father – where the father and paternal grandparents have a poor opinion of the mother – where child has been living with the father and paternal grandparents and spending limited time with the mother – where there is dispute over parental responsibility – Held that child is to live with mother – mother to have sole parental responsibility – child to spend 5 nights a fortnight with the father. |
| Legislation: Family Law Act 1975 ss.4AB, 60CA, 60CC, 61DA, 65DAA, Pt VII |
| Cases cited: Eaby v Speelman [2015] FamCACF 104 |
| Applicant: | MR FALCONE |
| Respondent: | MS FALCONE |
| File Number: | BRC 7776 of 2014 |
| Judgment of: | Judge L. Turner |
| Hearing dates: | 15 March 2016, 16 March 2016 and 18 March 2016 |
| Date of Last Submission: | 18 March 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 15 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Galloway |
| Solicitors for the Applicant: | Fraser Coast Lawyers |
| Counsel for the Respondent: | Mr Slade-Jones |
| Solicitors for the Respondent: | Suthers Lawyers |
FINAL PARENTING ORDERS
That all previous parenting orders made before 15 March 2016 are hereby discharged.
That these orders are to be read in conjunction with the final parenting orders made by consent on 15 March 2016.
That forthwith the child, X, born (omitted) 2013 live with the mother.
That the mother have sole parental responsibility for the child and in the exercise of that sole parental responsibility the mother shall:
(a)Notify the father in writing prior to making decisions about any major long term issues in relation to the child.
(b)Invite the father to indicate his views in writing as to the proposed decision, with such views to be provided within twenty-one (21) days of the notification being given in accordance with Order (4)(a).
(c)Take the father’s views into account in making the decision.
(d)Inform the father in writing within seven (7) days of making the decision as to what decision has been made.
That unless otherwise agreed upon between the parties the father is to spend time with the child as follows:-
(a)Commencing 17 June 2016 each alternate week from 3:00pm (or after school once the child commences school) Friday to 9:00am (or before school once the child commences school) Monday.
(b)Commencing 22 June 2016 each alternate week from 3:00pm (or after school once the child commences school) Wednesday to 9:00am (or before school once the child commences school) Friday.
(c)That if the child is not with the father on the day of the child’s birthday then provided the mother is given twenty-four (24) hours written notice by the father to spend time with the child on his birthday then the father spend time with the child from 3:00pm until 6:00pm on the day of the child’s birthday.
(d)Commencing 2017 and every alternate year thereafter from 9:00am Good Friday until 9:00am Easter Monday.
(e)That if the child is not with the father for the Father’s Day weekend then from 9:00am Saturday to 9:00am (or before school once the child commences school) Monday of the Father’s Day weekend.
(f)Commencing 2016 and each alternate year thereafter from 9:00am 22 December until 2:00pm 25 December.
(g)Commencing 2017 and each alternate year thereafter from 2:00pm 25 December until 9:00am 29 December.
(h)That provided the father gives the mother one (1) month’s prior written notice before the fourteen (14) day periods begin then each calendar year the father may spend two (2) separate periods of fourteen (14) days with the child provided however that:-
(i)when the child commences school, such periods are to coincide with school holidays unless otherwise agreed; and
(ii)the period is not to include the special days as set out in these orders unless otherwise agreed.
That unless otherwise agreed the mother is to spend time with the child as follows:-
(a)Commencing 2018 and every alternate year thereafter from 9:00am Good Friday until 9:00am Easter Monday.
(b)That if the child is not with the mother on the day of the child’s birthday then provided the father is given twenty-four (24) hours written notice by the mother to spend time with the child on his birthday then the mother spend time with the child from 3:00pm until 6:00pm on the day of the child’s birthday.
(c)That if the child is not with the mother for the Mother’s Day weekend then from 9:00am Saturday to 9:00am (or before school once the child commences school) Monday of the Mother’s Day weekend.
(d)Commencing 2016 and each alternate year thereafter from 2:00pm 25 December until 9:00am 29 December.
(e)Commencing 2017 and each alternate year thereafter from 9:00am 22 December until 2:00pm 25 December.
(f)That provided the mother gives the father one (1) month’s prior written notice before the fourteen (14) day periods begin then each calendar year the mother may spend two (2) separate periods of fourteen (14) days with the child provided however that:-
(i)when the child commences school, such periods are to coincide with school holidays unless otherwise agreed; and
(ii)the period is not to include the special days as set out in these orders unless otherwise agreed.
That where changeover is not occurring at day care or at school then changeover is to occur, unless otherwise agreed, at the (omitted) Shopping Centre on the corner of (omitted) and (omitted).
That when the child is not in their care, the party may telephone the child provided that the telephone calls are made at a reasonable hour and do not exceed one (1) call a day.
That the parties do all acts necessary and sign all such documents as required for the child to forthwith attend the (omitted) Early Education Centre with the costs of attendance to be shared equally between the parties.
That forthwith the name of the child X born (omitted) 2013 be removed from the Airport Watchlist.
That forthwith the father shall deliver to the mother any passports in the name of the child and the mother shall hold such passports.
That the parties do all acts necessary and sign all such documents as required to renew the passports for the child when the existing passports expire.
That each party is permitted to travel overseas with the child:-
(a)Provided that at least one (1) month prior to the date of travel the travelling party provide to the other party:-
(i)Written details as to the destination, where the child will be staying, who the child will be travelling with and a contact number for the child when overseas.
(ii)Written confirmation of the return travel such as a booking confirmation email.
(b)Provided that at least fourteen (14) days prior to the date of travel the travelling party provide to the other party:-
(i)A general itinerary of travel.
(ii)A copy of the airline/cruise tickets.
That prior to any further court proceedings for children’s matters being commenced both parties must attend counselling or mediation to address the disputed issues.
Should the counselling or mediation prove unsuccessful, then written proof of the counselling or mediation must be provided to the Court prior to the filing of any application.
IT IS NOTED that publication of this judgment under the pseudonym Falcone & Falcone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7776 of 2014
| MR FALCONE |
Applicant
And
| MS FALCONE |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are the parents of X who turns 3 in June.
Issues
The following issues are in dispute:-
a)With whom X is to live.
b)What time X is to spend with the other party.
c)Where changeover is to occur.
d)What orders are to be made for overseas travel.
e)Parental responsibility.
Evidence
In considering these issues regard has been had to:-
a)The material as marked on the court file.
b)The family report by Ms E.
c)The exhibits.
d)The audio tape made by the mother of the father in October 2013 which was played in court.
e)The oral evidence of the parties and witnesses.
f)The oral submissions.
g)Part VII Family Law Act 1975.
h)Relevant authorities.
Both parties are legally represented.
For the father the following witnesses were called and cross-examined:-
a)The father; and
b)Ms C (paternal grandmother).
I struggled with the credibility of the father and the paternal grandmother; which is addressed later in the judgment.
Mr R (the paternal grandfather) was not required for cross-examination by the mother.
The mother was assisted by a (language omitted) interpreter.
Although there were comments made by the father as to whether an interpreter was required by the mother, I find given that English is the mother’s second language, that this was appropriate in all the circumstances.
For the mother the following witnesses were called and cross-examined:-
a)The mother.
I find the mother to be a credible witness.
Mr K (the mother’s partner) was not required for cross-examination by the father.
In addition to the parties and their witnesses, the family report writer Ms E was called and cross-examined by each party.
I find the family report writer to be a credible witness and I give significant weight to the family report and the oral evidence provided by Ms E.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Relevant facts
Before considering the issues it is useful to capture the agreed facts:-
a)The father is aged 38 and lists his occupation as home duties.
b)The father was born in Australia.
c)The mother is aged 37 and lists her occupation as (omitted).
d)The mother was born in (country omitted).
e)In 2010 the parties met on an internet dating site. At the time the father was living in Australia and the mother was living in (country omitted).
f)During 2011 the mother visited and stayed with the father in Australia on three occasions.
g)In 2011 the police were called by the paternal grandmother after an incident where the father was drunk and allegedly violent towards the mother (the Darwin incident). Subsequently a domestic violence order (DVO) was taken out against the father in favour of the mother.
h)During 2011 the father and the paternal grandparents visited the mother in (country omitted).
i)In March 2012 the mother moved to Darwin in the Northern Territory to live with the father who was then living with the paternal grandparents.
j)At the time of cohabitation the father had two children from his previous relationship with Ms K. The father does not spend time with the children.
k)In (omitted) 2012 the parties married.
l)During 2012/2013 the mother had a DVO taken out against the father in the Northern Territory.
m)In (omitted) 2013 X was born.
n)In August 2013 the parties moved from Darwin to live with the paternal grandparents at their new home in (omitted) in Queensland.
o)In September 2013 the parties together with the child and the paternal grandparents travelled to (country omitted).
p)In October 2013 an incident occurred which was recorded by the mother, whereby the father threatened to kill the mother (the October 2013 incident).
q)In August 2014 there was an altercation between the father, the paternal grandparents and the mother as concerns were raised that the mother was intending to return to (country omitted) with X. Allegations were also made that the mother was having an affair. The police were subsequently involved.
r)A few days later the mother left with the child to stay with a friend.
s)In August 2014 the father accompanied by the paternal grandparents, attended at where the mother was living and unilaterally removed X from the mother’s care.
t)The father then ceased time between the mother and the child.
u)In August 2014 the father commenced parenting proceedings in the Federal Circuit Court whereby the father sought by way of final orders that:-
i)The child live with the father.
ii)The parties have equal shared parental responsibility for the child.
iii)The mother spend supervised time with the child.
v)In August 2014 the father filed a Notice of Child Abuse alleging that:-
i)The mother had many times during the child’s life seriously neglected the child and caused the child to be in the danger of dying.
ii)That the mother had watched idly whilst the child was choking on food.
iii)The mother had given the child inappropriate items to play with.
iv)The mother had left the child unsupervised.
v)The mother had given the child soup made with chillies that had caused the child pain.
vi)The mother had screamed, shouted and argued in front of the child.
vii)The mother had tried to forcibly take the child.
viii)The mother had placed the child in danger with a man who is violent after drinking alcohol.
w)In September 2014 the mother commenced parenting proceedings in the Maryborough Magistrates Court which were subsequently transferred to the Federal Circuit Court.
x)The mother sought by way of final orders that:-
i)The child live with the mother.
ii)The father spend time with the child as can be agreed upon or as court ordered.
y)In September 2014 the mother moved to a women’s refuge.
z)In September 2014 it was ordered that the child’s name be placed on the Airport Watch List.
aa)In September 2014 it was ordered on an interim basis after an interim hearing that:-
i)The child live with the father.
ii)The mother spend full days with the child each Monday Thursday and Saturday.
bb)In October 2014 mutual DVO’s were granted to the parties.
cc)In December 2014 the mother filed a Notice of Child Abuse alleging that:-
i)The father had committed acts of family violence against the mother in the presence of the child.
ii)The father had inappropriately and harshly physically disciplined the child.
iii)The father has a gambling and drinking problem which results in the father not being attentive to the child’s needs.
dd)In December 2014 the parties, together with the paternal grandparents, attended family report interviews.
ee)In January 2015 the family report was released which recommended that:-
i)The parties have equal shared parental responsibility for the child.
ii)The child live with the mother and spend three nights a week with the father.
iii)That changeover occur at Harmony House.
iv)That the child attend limited day care.
v)That the father have first right of refusal for caring for the child if the mother is at work and the child is not in day care.
vi)That both parties attend medical appointments.
vii)That the mother continue her studies in English and attend counselling.
viii)That the father attend counselling for previous alcohol and gambling issues and to develop an increased awareness of healthy relationship skills and to access co-parenting support.
ix)That the child’s passport be held somewhere safe with it to be released once the parties have reached a written agreement as to the child travelling overseas.
ff)In late 2014 the mother commenced a friendship with her current partner Mr K.
gg)Sometime in 2015 the mother and Mr K commenced a relationship.
hh)In 2015 the mother became a permanent resident of Australia.
ii)In February 2015 the father completed a Post Separation Cooperative Parenting Program.
jj)In March 2015 the parties attended mediation which was unsuccessful.
kk)In April 2015 the father completed a Positive Discipline Parenting Course.
ll)In April 2015 the child hurt his hand whilst in the father’s care when the child fell over.
mm)In May 2015 the mother completed a Positive Discipline in Everyday Parenting Course.
nn)In June 2015 the mother completed a Single, Safe and Satisfied Course.
oo)In July 2015 the mother completed an Anger Friend and Foe course.
pp)In July 2015 the father completed a 1-2-3 Magic and Emotional Coaching Parenting Course.
qq)In July 2015 the father, who had been drinking, telephoned the mother several times late at night offering the mother money to leave Australia and return to (country omitted) (the July 2015 incident).
rr)In August 2015 the mother moved to a unit owned by Mr K. Mr K does not stay at the unit when the mother has care of X.
ss)In September 2015 the child sustained a lump on his head when with the mother as the child had run into a door.
tt)In October 2015 the mother travelled alone to (country omitted) to visit a sick relative.
uu)In October/November 2015 the father enrolled the child into the (omitted) Kids Children's Centre which is not accessible by the mother except by bus (and car once the mother obtains her licence).
vv)Over three days in March 2016 the matter proceeded to a final hearing.
As at the date of the final hearing:-
a)The father and X are living with the paternal grandparents at their home in (omitted).
b)X attends day care two days a week.
c)The mother is living in a unit in the (omitted) area.
d)The mother is taking driving lessons.
e)The mother continues to take English lessons.
f)The mother has enrolled to do a Triple P parenting course in June 2016.
g)The mother is spending time with X every Monday from 9.00am to 5.00pm and each weekend from 9.00am Friday to 5.00pm Saturday.
h)Changeovers occur at a public place with often the paternal grandparents attending without the father.
Agreed orders
At the final hearing the parties agreed to the following parenting orders on a final basis:-
a)That the parties have the day to day care for the child when the child is in their respective care.
b)Orders as to notifications in respect to address, telephone numbers treating health professionals and medical treatment of the child.
c)Orders to act as an authority to day care and kindergarten.
d)That the parties shall:-
i)Respect privacy.
ii)Not denigrate the other party.
iii)Allow the child to communicate with the other party.
iv)Not drive with the child in the car if the party is under the influence of alcohol.
v)Not consume alcohol to excess or illicit drugs when the child is in their care.
Proposals
The father proposes the following orders:-
a)That the child live with the father.
b)That the father have sole parental responsibility for the child.
c)That until the child commences school, the mother spend time with the child at times as can be agreed upon and not less than:-
i)Each Monday from 9.00am to 5.00pm.
ii)Each weekend from 9.00am Friday to 5.00pm Saturday.
d)That upon the child commencing school, the mother spend time with the child at times as can be agreed upon and not less than:-
i)Each week from after school Thursday to 5.00pm Saturday.
ii)During school holidays each week from 3.00pm Thursday to 5.00pm Saturday.
iii)That in the alternative every second weekend from after school Friday to before school Monday and during school holidays every second weekend from 3.00pm Friday to 9.00am Monday.
e)That changeover occur at the mother’s place of residence but once the child attends school then where possible at the school.
f)That the father and the paternal grandparents have the first right of refusal to care for the child if the mother is working or not available to care for the child when the child is in her care.
g)That the father hold the child’s passport and that neither party be able to apply for a fresh passport until the child turns 16.
h)That the child not be permitted to travel overseas until the child turns 16 and that in the meantime the child’s name remain on the airport watch list.
i)That the child attend (omitted) Kids Children's Centre at (omitted).
j)That the child be enrolled at the (omitted) State School.
k)That if the child is not attending school then the other party is to be notified.
In the event that the court was to order that the child live with the mother then the father is seeking the following orders:-
a)That the parties have equal shared parental responsibility for the child.
b)That the child live in an equal shared care arrangement of two days about with each parent.
c)Or alternatively until X commences school that the father spend time with the child:-
i)Every alternate weekend from 3.00pm Friday to 5.00pm Sunday.
ii)Every Wednesday from 9.00am until commencement of day care on Thursday.
iii)Every other weekend from 9.00am Friday to 9.00am Saturday.
d)Or alternatively when X commences school that the father spend time with the child:-
i)Every alternate weekend from after school Friday to before school Monday with time to be extended to before school Tuesday if Monday is a public holiday.
ii)Each Wednesday from after school until before school Thursday.
iii)One half of all school holidays.
The mother proposes the following orders:-
a)That the child live with the mother.
b)That the mother have sole parental responsibility for the child but will consult with the father and advise the father of the final decision on any major long term decisions.
c)That the child spend time with the father each alternate week from 9.00am Thursday until 9.00am Tuesday.
d)Or alternatively the father spends time with the child:-
i)In each alternate week from 9.00am Saturday to 9.00am Tuesday.
ii)In the other week from 9.00am Saturday until 9.00am Wednesday.
e)That at least once a week when the child is not in their care the party can call the child between 6.30pm and 7.30pm.
f)That the parties spend special event time with the child as follows:-
i)With the father for the Father’s Day weekend from 9.00am Saturday until 4.00pm Sunday.
ii)With the mother for the Mother’s Day weekend from 9.00am Saturday until 4.00pm Sunday.
iii)With the father from 2.00pm 25 December until 9.00am 29 December in odd numbered years and from 2.00pm 22 December until 2.00pm 25 December in even numbered years.
iv)With the mother from 2.00pm 25 December until 9.00am 29 December in even numbered years and from 2.00pm 22 December until 2.00pm 25 December in odd numbered years
v)With the father from 9.00am Good Friday until 9.00am Easter in odd numbered years.
vi)With the mother from 9.00am Good Friday until 9.00am Easter in even numbered years.
vii)That if a party is not with the child for the child’s birthday then upon providing notice is given then from 3.00pm to 6.00pm on the day of the birthday.
viii)Upon giving notice to the other party then that each party spend two separate periods of fourteen consecutive days per year with the child.
g)That changeover occur at (omitted) Shopping Centre (corner of (omitted) and (omitted)) or as otherwise agreed.
h)That the parties enrol the child into the Community Kids (omitted) Early Education Centre for at least one day per week or such other centre as agreed upon provided the parties share the costs equally.
i)That the mother hold the passport for the child and upon exchange of information as to overseas travel and notice then the child be permitted to travel overseas.
j)That the parties attend Family Dispute Resolution if agreement cannot be reached.
In the event that the court was to order that the child live with the father then the mother is seeking that the mother spend time with the child each alternate week from before school Thursday to before school Tuesday.
The law
I will now refer to the law.
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence, when making a parenting order, the Court must consider what is in the best interests of the child pursuant to section 60CA, but as succinctly put by Murphy J in Hardie & Capris (2010) FamCA 1046 at [48]:
“Best interests is not the application of a theoretical construct, but rather the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child of this parenting relationship.”
As discussed by the Full Court in Moose & Moose (2008) FamCACF 108 at [66], the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interest having regard to:
“the matters set out in section 60CC(2) and (3) guided in consideration of the provisions by the object set out in section 60B(1) and the principles underpinning it contained in section 60B(2).”
As for the primary considerations, in the leading authority of Mazorski & Albright (2008) 37 Fam LR, Brown J refers to such considerations as the “twin pillars” where:-
a)The first pillar is the importance for a child to have a meaningful relationship with both parents; and
b)The second pillar is the need to protect children from physical and emotional harm.
In deciding what is in the best interests of the individual child, section 61DA and section 65DAA come into play and if the child is subject to an equal shared parental responsibility order, then the amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.
The distinct pathway which applies to parenting matters where an equal shared parental responsibility order has been made is the subject of much discussion by the High Court in MRR & GR (2010) 263 ALR 368.
Application of the law
Primary considerations
Benefit to the child of having a meaningful relationship with both of the child’s parents
What is meant by the term “meaningful” was discussed at length by Brown J in Mazorski with the Full Court in Moose stating at [68] that “Her Honour’s discussions is helpful and her conclusions about s60CC(2)(a) are cogent.”
At [26] Brown J concluded:-
“What these definitions convey is that ‘meaningful’ when used in the context of ‘meaningful relationship’ is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or of ‘consequence’ ….a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.”
Kay J in Godfrey & Sanders (2007) 208 FLR 287 spoke of the legislation promoting a “meaningful relationship, not an optimal relationship.”
The Full Court in McCall & Clark (2009) FLC 93-405 at [117] adopted the approach discussed by Bennett J in G & C [2006] FamCA 994 and said the enquiry as to whether a relationship is meaningful is “a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child”.
In this matter the family report writer noted that:-
a)“The child clearly has an established meaningful relationship with both parents” ([15] family report).
b)“X is a very young child who ideally would have sufficient co-operative support by both parents to enable him continued access to his established meaningful relationships with both parents” ([109] family report).
Conclusion as to meaningful relationship
It is not disputed that X has and always has had a meaningful relationship with each of his parents.
Therefore, in determining the future parenting arrangements for the child this consideration is important in ensuring that the meaningful relationship is nurtured and maintained.
This consideration will therefore be factored in when determining the future parenting arrangements for X.
Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Unfortunately for this family, family violence looms large in these proceedings.
The mother alleges that the father was verbally, physically and sexually violent towards her and that at times this violence occurred in front of the child.
The mother maintains that she was afraid of the father during the relationship and that this fear continues.
The father paints a very different story.
The father states that:-
a)any violence was verbal only;
b)the mother was involved in the violence;
c)the mother provoked the violence;
d)that any violence was situational and historical; and
e)that at no time has the mother really been afraid of the father.
The father alleges that the mother has fabricated evidence as to the existence of family violence.
In order to understand the complexities of this issue it is necessary to look to the different aspects of the alleged violence in this matter and then draw conclusions as to how this may impact on the future parenting arrangements for X.
What constitutes family violence?
Family violence is defined in section 4AB Family Law Act 1975 as:-
“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.”
On the definition alone, without addressing the father’s concerns, I find that there is domestic violence due to the verbal arguments within the relationship.
Father’s history of violence prior to meeting the mother
When the father was aged 18 he commenced a relationship with Ms K.
The relationship lasted 10 years and produced two children, A and B.
The father informed the family report writer that both he and Ms K used marijuana and consumed alcohol during the relationship.
The father described the relationship with Ms K as “‘argumentative’ towards the end resulting in a serious incident of family violence” ([40] family report).
The paternal grandparents were aware of the incident informing the family report writer that “there was an incident of domestic violence at the end of the father’s relationship with Ms K” ([99] family report).
Actual details as to the incident were not provided by either the father or the paternal grandparents to the family report writer.
A discussion with Ms K however revealed that during the incident the father had threatened to “rape her and slit her throat with a knife” and that the “children were present” at the time ([108] family report).
The father attributed blame to Ms K for the incident informing the family report writer that he had never “engaged in a similar incident before or since and argued that he was provoked by Ms K for months before he reached that point” ([40] family report).
The father told the family report writer that “he regretted that he allowed ‘it to get to that point’” and that “he spent the night in lock up and Ms K obtained a Protection Order through Police involvement” ([40] family report).
However it emerged in cross-examination, after much dodging and weaving by the father as to the issue, that the father was subsequently charged and convicted of common assault and placed on 12 months’ probation for the incident.
The father denied any hurt to Ms K stating in court that “I have never hurt anybody” and that the “common assault you are referring to, nobody was actually hurt. I did make threats, I don’t deny that but I didn’t hurt anybody”.
The police report, as read into the court record, provides insight into the incident.
In the report it is recorded:-
a)The police noted that the father was “well intoxicated”.
b)The father said to Ms K “You have three choices. You’re stupid, ignorant or a punch in the head, and you’re not scared because you’re still sitting there”.
c)The father told Ms K to “Relax and lay on the table” whilst he held a knife in his hand and said “I’ll show you how much I love you and I’ll cut your throat”.
d)The father “threw’ Ms K against a buffet and hutch. Ms K informed the police that “her left wrist was sore and her left hip was sore” as a result of the father assaulting her.
The father in cross-examination agreed that that was the incident “but that’s not exactly how it happened”.
The father however pleaded guilty to the incident where the facts appear not to have been challenged.
Since separation the father has had limited contact with A and B.
The father informed the family report writer that he “tried to stay in touch” with the children and when Ms K married a year later that the father was “devastated” ([41] family report).
Although the father is critical of Ms K “depriving him of a relationship with the boys he considered Ms K to be good mother” ([41] family report).
The father explained how in 2013 he travelled to see the children but that “Ms K was not at home and the boys would not let him in” ([42] family report).
The father stated that “He had been ‘made out to be a monster’ to these boys” ([42] family report).
Mother’s allegations of family violence
The mother makes numerous allegations of family violence as summarised by the family report writer as being alleged “physical, verbal, sexual and financial abuse as well as complaining of the father’s gambling habit, expenditure and problematic alcohol use” ([55] family report).
Father’s attitude to the allegations
The father’s affidavit is basically silent on the issue of family violence, although the father was aware that this was an issue that would be raised by the mother at the final hearing.
However, to the family report writer and in cross-examination the father is openly critical of the mother in making these allegations.
This criticism has many facets:-
a)The mother is lying about the allegations:-
i)“The father stated that he denies and rejects the mother’s allegations of family violence and sexual violence saying the mother’s allegations in this regard are ‘complete fabrication’ which ‘makes me sick’. He complained ‘half of (omitted) thinks I’m a monster’” ([31] family report).
ii)The father told the family report writer that “I’ve never forced myself on her” ([34] family report).
b)The mother knew the father drank:-
i)“The father admitted that he did drink ‘a lot’ during the parties’ relationship….He argued that the mother married him ‘in that state’ thus knowing he drank and occasionally gambled and only ‘now complains’” ([25] family report).
c)The mother has never felt threatened or been afraid of the father:-
i)As to the October 2013 incident the father “argued that the mother was obviously not threatened by this event because she did nothing at the time” ([37] family report).
ii)“The mother did not leave him because of that particular threat and therefore was not actually fearful for her life as might be assumed or argued” ([115] family report).
iii)In respect to the July 2015 incident that father responded in cross-examination to the question as to the mother being afraid “I don’t think she really was afraid – no”.
iv)When it was put to the father “You think this is all an act” the father responded “yes”.
d)The mother had at times provoked and at times contributed to the conflict between the parties:-
i)“The father alleged the mother had increasing ‘tantrums’ for no reason. He defined a ‘tantrum’ as the mother becoming ‘hysterical, yell and carry on over minor things’ such as her coming home to find him feeding X lunch late because X had slept late. He questioned whether the mother’s moods related to her menstrual cycle but accepted his drinking played a part in the mother’s moods” ([30] family report).
ii)“He agreed that both he and the mother had yelled at each other at times of conflict” ([32] family report).
iii)“Mr Falcone added that the mother attempted to grab X from the paternal grandmother’s arms whilst in a hysterical state on the day which prompted the parties’ final separation. He stated that he pushed the mother away when she attempted this and argued that X was ‘very traumatised’ by the mother’s actions that day” ([33] family report).
iv)In respect to the Darwin incident the father explained that the police were called to the parties’ house “when he was very drunk’ and “she was argumentative” ([36] family report).
v)In respect to the October 2013 incident where the father threatened to kill the mother, the father “explained that earlier on the day of the recording the mother has ‘had tantrums’ and indicated that she might leave him” ([37] family report).
vi)During cross-examination in respect to the October 2013 incident the father explained that the mother “basically provoked” the father into saying certain things that he would not normally say so that these responses could be captured in the recording.
e)The mother’s allegation of domestic violence has been used and continues to be used by the mother to better her position:-
i)“The father argued that the mother used allegations of domestic violence to further her ability to assess Centrelink payments, to influence the child custody dispute and presumably to further her Visa application to remain in the country” ([118] family report).
ii)“Given the fact that the mother recently argued for changeovers to take place at her place of residence the father stated that he does not believe the mother really wants or needs the current Protection Order but uses the ‘system’ to her benefit with respect to Centrelink and the child custody dispute” ([38] family report).
The paternal grandparents echo the father in his concerns:-
a)The paternal grandmother deposes:-
i)“I have never witnessed any aggression from X towards Ms Falcone at all” ([19] paternal grandmother’s affidavit).
ii)“As to Ms Falcone’s allegations of domestic violence by X towards her and around X, I emphatically state that at no time during their relationship (before or during the time they lived with Mr R and I) did I witness any form of domestic violence other than the day X and Ms Falcone separated….when Ms Falcone injured X’s nail when she tried to pull him out of my arms” ([112] paternal grandmother’s affidavit).
b)During the family report interviews “when asked whether they had witnessed any arguments between the parties” the grandfather answered “only on her side” ([90] family report).
c)As to the Darwin incident where the mother complained of being hit by the father, which resulted in the paternal grandmother calling the police, the paternal grandmother informed the family report writer that she now “questions the veracity of this claim and reflected that the father maintained he did not hit her and there was no mark on the mother at the time” ([83] family report).
d)This is repeated in the paternal grandmother’s affidavit where it is deposed “Ms Falcone came to me in the early hours of one morning stating X had just slapped her across the face. Without thinking or questioning Mr Falcone, I rang the Darwin police station and told an officer my son had just slapped his wife and that Ms Falcone was scared. I made the report to the police without knowing for certain that Ms Falcone was telling the truth and despite not ever having witnessed any violence from X towards Ms Falcone during their relationship. Shortly after making the report when X denied Ms Falcone’s allegations I examined Ms Falcone and found no red marks whatsoever on her face or anywhere else on her” ([15] to [18] paternal grandmother’s affidavit).
e)In cross-examination in respect to the Darwin incident when it was put to the paternal grandmother:-
i)“Because you still hold out that he has never, ever, ever been domestically violent towards the mother?” the paternal grandmother replied “Yes I do. Yes”.
ii)“Despite the fact that in the statement you refer to the mother coming to you and complaining about being hit and slapped” the paternal grandmother responded “Yes, she did and I believed her”.
iii)“So you’re saying this is a fabrication by the mother” the paternal grandmother agreed stating “I do – I do….”
iv)“…that the whole domestic violence is a fabrication” the paternal grandmother stated “I do now say that that is a fabrications, yes, but at the time I believed her, yes”.
f)As to the October 2013 incident “the grandmother claimed that she did not hear the father threaten the mother despite remaining with the mother all night. In any case the grandparents asserted that the mother saw this for what it was at the time. Despite the admitted shock value of hearing the recording the grandparents argued it was ‘just words’ and argued she was not threatened given she did not leave because of this incident which was almost a year prior to the separation” ([91] family report).
g)In cross-examination, in respect to the October 2013 incident when asked the question “it is your case that it didn’t amount in your mind to domestic violence or family violence or anything similar; is that your case?” the paternal grandmother answered “yes”.
Details as to family violence
The mother submits that the abuse perpetrated by the father has taken several forms.
The first is sexual abuse.
The mother deposes:-
a)That in September 2013 after coming home drunk the father “woke me up, wanting me to give him a massage and masturbate him as well as conduct fellatio on him but I did not want to. The Father got very angry and said ‘Fucken bitch’….. The Father also threatened that he would hurt me badly by slitting my wrists and cutting the tendons of my feet. He showed me the actions for this and said that I would not be able to walk. I will never forget this because I was very afraid” ([38] and [39] mother’s trial affidavit).
b)That “the father has also at times when he has been drinking forced me to have sexual intercourse with him and to carry out sexual acts on him that I have preferred not to” ([41] mother’s trial affidavit).
c)“I can recall on another occasion about 2.00am the Father came upstairs to be very drunk. He wanted me to pleasure him. When I did not he got angry and threatened to kill me if I didn’t do what he wanted. I picked up X who was sleeping in the room and ran into the bedroom of the Paternal Grandparents. They told the father to leave me alone” ([41] mother’s trial affidavit).
The mother complained to the family report writer “that the father would wake her in the middle of the night and demand sex and not take no for an answer. This left her feeling ‘cheap’ and resentful. She recalled he had hit her during such situations and then laughed at her. She was concerned when X too seemed to think one event such as this was comical” ([64] family report).
The second is intimidation by father of the mother.
The mother informed the family report writer that:-
a)“When she was eight months pregnant the father once cut up linen she had bought for the parties and made her sleep on the scraps on the floor and laughed at her in the morning. She reportedly showed the grandparents what he had done the next morning and went home with them. She recalled the grandparents wanted her to end the relationship at that point but she was married and pregnant and still hopeful the father would change” ([56] family report).
b)“When he was intoxicated the father would talk and swear at her so much she grew weary. She stated that several times when the father was intoxicated she would be put out of the bedroom” ([57] family report).
The third is financial hardship imposed by the father against the mother.
The mother informed the family report writer:-
a)“By the time X was born the father was no longer working but rather than help her he drank……..She had a C-section delivery and reported the father expected her back to work too soon. She had worked through the pregnancy. Once the parties arrived in (omitted) the father reportedly told her that he could get the single parent pension (which he told her was his money) and she could work if she wanted her own money. Despite her wanting to stay at home with X she had no money for food or child’s needs so went back to work while the father stayed home” ([58] family report).
b)“Of the father’s tendency to waste money gambling……the father would spend his Centrelink payment within a day or two leaving them with no money to provide for the child” ([62] family report).
The fourth consists of the threats of violence by the father against the mother.
The mother deposes that “the father has threatened to kill me” and “has made threats to kill me or hit me in front of the Paternal Grandmother” ([40] and [41] mother’s trial affidavit).
The mother described to the family report writer “various situations when the father would get a ‘red face’ and ‘bulging eyes’ and yell at her to ‘fuck up’ adding he would ‘hurt me if I talk back’” ([64] family report).
The fifth is threats of violence by the father against X.
The mother deposes that after refusing to perform a sexual act on the father in September 2013 that the father, who had been drinking said “‘If you leave me I will kill you and the baby as well’…. ‘The baby still very small and very easy for me to kill. I can just break his neck and hear the crack sound, then baby die then you see that and will be shocked and mad’. As he said this he did the actions of twisting with his hands and made a cracking sound to show me what he meant” ([38] mother’s trial affidavit).
The mother deposes that “the father has threatened to kill….our son on several occasions” ([40] mother’s trial affidavit).
The sixth are acts of physical violence by the father against the mother.
The mother deposes:-
a)To the father “slapping me about the face” ([40] mother’s trial affidavit).
b)That on 21 August 2014 when the father accused the mother of wanting to leave with the child to go to (country omitted) “the Father held me tightly by the arms and then shoved me and I fell over onto the grass” ([12] mother’s trial affidavit).
The mother informed the family report writer:-
a)“That when she was three months pregnant the father was angry from losing money at the casino and he took her by the hair and pushed her against the wall and threatened to hit her and harm the baby because it was his as much hers” ([56] family report).
b)That in respect to the Darwin incident “when the father hit her whilst intoxicated and angry she called the grandmother to help and the grandmother rang the Police” ([56] family report).
The last are the acts of violence by the father against/with the paternal grandparents.
The mother deposes:-
a)After the paternal grandparents told the father to leave the mother alone when the father was drunk and demanding sex the mother deposes that “I remember him also swearing at them as well. It has not just been me that the Father becomes abusive towards. I am also concerned because on occasion the relationship between the Father and his parents has become volatile and they argue frequently” ([41] mother’s trial affidavit).
b)“One afternoon when we were living in Darwin and before I became pregnant…the father had been arguing with his parents…..the father got angry at his father. The Paternal Grandfather raised his fist at the Father and I held the Paternal Grandfather back from hitting the Father” ([42] mother’s trial affidavit).
c)“Another time when I was about six months pregnant, I went to (country omitted) with the father and his parents….the Father argued with his mother when they were drunk and when she refused to get him a beer. They were yelling and screaming at each other. The Father called his mother a ‘cunt’ which offended and upset everyone especially the Paternal Grandmother who yelled at him a lot” ([44] mother’s trial affidavit).
Corroborating evidence as to mother’s allegations of family violence
Often and sadly family violence is a secret which takes place behind closed doors.
As observed by the Full Court in Eaby v Speelman [2015] FamCACF 104 at [21] “Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic”.
But in this matter there is corroborating evidence.
As to domestic violence:-
a)In the statutory declaration made by the paternal grandmother to the police in September 2011 in respect to the Darwin incident the paternal grandmother swears:-
i)“At about 6.00am this morning Ms Falcone came into my room and asked me if there is anywhere she could go because she didn’t want to stay with Mr Falcone. Ms Falcone had told me that Mr Falcone had hit her when she was asleep….she didn’t want to stay alone with him. She told me that Mr Falcone had slapped her on the face and then told her to go and sleep in the other room” ([8] paternal grandmother’s affidavit).
ii)“Ms Falcone has told me that she is scared of X when he is drunk. When he is sober they are happy” ([13] paternal grandmother’s affidavit).
b)In 2011/2012 the mother had domestic violence orders against the father in Darwin.
c)In September 2014 the mother applied for a domestic violence order against the father. The lengthy affidavit accompanying the application sets out numerous alleged incidents of family violence by the father against the mother.
d)In October 2014 the mother obtained a domestic violence order against the father.
As to the sexual abuse:-
a)The transcript of the October 2013 incident records the following:-
i)Father: “Take your clothes off , lets…”
Mother: “No. Let go. X let go. Let go X ….. sleep …. OK”
Father: “I’m gunna get these pants off here”
Mother: “….Ow!!”
Father: “Ow? Come on” (Page 47 of 81).
ii)Father: “What’s that? Hey. Come and feel it…..This one and this one over here, and then feel this one again…Don’t talk….I tell you what you want! Suck it” (Page 49 of 81).
iii)Mother: “You talk and you touch my body so hard….Don’t touch my body” (Page 57 of 81).
b)During the family report interviews “the grandmother agreed that the mother had complained to her that the father would wake her for sex during the night” ([89] family report).
As to threats of violence by the father against the mother:-
a)The transcript of the October 2013 incident records the following:-
i)Father: “I will kill you. You listening? I don’t care if I go to jail or anything. I will kill you if you keep….anything smart. Ok?....You understand. Do you understand?”
Mother: “Mr Falcone, you talk with me about this one maybe 50 times”
Father: “Do you want me?”
Mother: “Don’t!”
Father: “Do you want me to fucking hurt you?”
Mother: “What you doing with me?”
Father: “Just teaching you if you do that again I’m gunna fucking kill you”
Mother: “You talk this one so much OK”
Father: “I will do it when you’ve got him right there….I’m talking to you. I’m trying to talk with you. I want you to understand”
Mother: “I hear too much time OK”
Father: “Do you hear”
Mother: “Yes”
Father: “If you do it again. I’m going to punch you in the face. I’m gunna get a knife and I’m gunna slit your fucking throat. You’ll be dead. (clicks fingers) Like that. That’s what I’m gunna do. If you fuck with me and him I’m gunna slit your fucking throat” (Page 56 of 81).
ii)Father: “You need to be careful about what you are doing to me and….And no doing this one….I don’t care if I go to jail or something….Don’t fuck with me. I will kill you. Do you believe me?...You cannot try and call police….And I one minutes….I love you, love X…dead. Is that what you want?” (Page 57 of 81).
As to the violence between father and paternal grandparents:-
a)In the statutory declaration made by the paternal grandmother to the police in September 2011 in respect to the Darwin incident the paternal grandmother swears:-
i)“Mr Falcone has been staying with us for about 6 years but lately he has been going downhill. When he is sober I have no problems with him. When he is drinking he is a different person. By that I mean I think he has psychological problems. When he drinks he turns nasty, he is verbally abusive towards myself “([2]).
ii)“He is very degrading and swears at me. He tells me to Fuck off and he is unbearable to live with” ([3]).
iii)“I am scared that Mr Falcone will continue to drink and the problems will get worse. If there is another argument I am scared someone will get hurt” ([10]).
iv)“I do not want him to live in our house anymore. His behaviour is getting worse and it is putting a strain on mine and …..relationship. We are both depressed because of his actions. I have told Mr Falcone that he has to move out, but I didn’t want my husband and I to get involved again as I feared it would end up in another argument, that’s one of the reasons I called the Police” ([11).
b)The transcript of the October 2013 incident records the following:-
i)Paternal grandmother: “Not gunna have that again. He can get out. It’s too much. Can’t cope with that…. All night he’s been threatening you, me. Too much” (Page 51 of 81).
ii)Paternal grandmother: “Get ready to call the police…..She’s feeding the baby Mr Falcone. Leave her alone Mr Falcone…Leave her alone Mr Falcone….Mr Falcone. I said leave her alone…..Mr Falcone, I will call the police”
Father: “I’m allowed to take my….”
Paternal grandmother: “What? Force your wife to do something she doesn’t want to?.....See you’re telling her what to do. You want me to call the police, do ya?” (Page 52 of 89).
iii)Paternal grandmother: “Get out of my face”
Father: “I’m not being in your face”
Paternal grandmother: “You’re being intimidating like you were just talking about”
Father: “I’m not being intimidating”
Paternal Grandmother: “I’m not talking with you. Get out of my face. You stink of smoke and alcohol. You reek of it”
Father: “So what”
Paternal grandmother: “Well I don’t want that in my face thank you very much”
Father: “So you’re gunna call the police for being in my face?”
Paternal grandmother: “Yeah I am” (Page 53 of 81)
iv)Paternal Grandmother: “Get out of my face…..You don’t have to sit right here”
Father: “…yourself, enjoy being by yourself. Enjoy being by yourself…that cunt on the left is being a fucking….” (Page 54 of 81).
Mother’s involvement in family violence
The mother is open in her evidence as to her involvement in the family violence:-
a)The mother deposes that in October 2014 the mother “consented to and order (referring to a DVO) against me as well because I did not think that I would be believed over the Paternal Grandparents” ([44] mother’s trial affidavit).
b)The mother acknowledged to the family report writer that “‘I was at him a lot’ which admittedly caused arguments” ([64] family report).
Mother’s explanation as to why mother remained in a relationship with father
The mother discussed her situation with the family report writer:-
a)“The mother’s first impression of the father was that he was ‘a good man’ and ‘a hard worker’ who had been ‘unlucky’ and poorly treated by his ex-wife who took her sons” ([53] family report).
b)“She was attracted by the promise of having a good man to provide for her to stay home and raise a family with” ([53] family report).
c)“However the mother soon observed that there were times when the father would drink all night and be very down about his past. After he hit her he apologised and told her he loved her but she resolved he was ‘sick’ (she tapped to her head to indicate mental health issues). She indicated that she felt he loved her and needed her and she wanted to help him” ([54] family report).
d)“In essence the mother explained that she continued in the relationship despite ongoing issues and concerns because she believed she could help Mr Falcone change. She first thought the pregnancy would help and when she saw no change she believed the baby would help but again saw no change. It was because the issues appeared chronic and enduring that she sought to leave the father” ([55] family report).
The mother’s stance as to the father was noted in the paternal grandmother’s typed letter to the mother prior to separation where the paternal grandmother writes “We supported you leaving X when he was very bad. But knowing what he is like you chose to stay with him; you had a baby to him. By doing that you made a commitment to him” (Exhibit “C”).
Conclusion as to existence of family violence within relationship
I find the mother to be a credible and consistent witness and I give significant weight to the mother’s evidence as to the existence and extent of family violence perpetrated by the father.
The mother’s detail and recall can only be by one who has lived through and experienced ongoing abuse.
The corroborating evidence supports this.
As to the father and the paternal grandmother, I find that both witnesses are far from credible on this issue.
The father has done his utmost to:-
a)Downplay the seriousness of the family violence;
b)Dismiss any violence on the basis that he was drunk;
c)Argue that the mother knew what he was like when he was drunk; and
d)Maintain that in any event the mother did not take him seriously in regard to any threats made by him when he was drunk.
Whether this is a deliberate strategy by the father, or one that has arisen out of the father’s complete lack of insight into the inappropriateness of his behaviours is an unknown.
As to the paternal grandmother, I find that she has blatantly lied.
I make this finding based on the following:-
a)The paternal grandmother in her evidence as to the Darwin incident was not believable.
b)Her allegation that somehow her statutory declaration had been written by the police officer using their words and not the paternal grandmother’s words is a complete nonsense.
c)The back peddling by the paternal grandmother as to whether in retrospect she believed the mother as being slapped by the father is equally as nonsensical.
d)The statutory declaration clearly indicates that the paternal grandmother instigated the call to the police because of the paternal grandmother’s fear of the father and his actions whilst the father was drunk as well as the father’s slap to the mother.
e)The paternal grandmother in her evidence as to the October 2013 incident was also not believable.
f)The audio recording was chilling.
g)The father presented as calm menacing and calculating in his intimidation of the paternal grandmother and his frightening threats towards the mother and X.
h)The paternal grandmother’s words and threats to call the police supported that she shared the intimidation fear and frustration of the mother in dealing with an unpredictable and frightening drunk.
i)The paternal grandmother knows that the father when he drinks is “bad”. This formed part of her letter to the mother before separation.
I find that during the relationship the mother was subjected to repeated verbal, physical and sexual abuse at the hands of the father and that this abuse falls within the definition of family violence for the purposes of section 4AB Family Law Act 1975.
I find that the mother feels intimidated by the father and is afraid of the father as a consequence of the habitual family violence perpetrated by the father.
I further find that X was subjected to this violence due to the threats made by the father against the child and the child being present during the abuse.
The question then arises as to how these findings impact on the future parenting arrangements for the child?
What is the impact of the father’s family violence on the future parenting of the child?
The father argues that as he no longer drinks then family violence will no longer be an issue.
Therefore this consideration does not need to be factored into the future parenting arrangements for the child.
The father submits that he had cut down his drinking in 2014 and that by September 2014 he had ceased drinking altogether.
However in the July 2015 incident a drunken father called the mother several times in one night.
The father describes the July 2015 incident as follows “In July 2015 I lapsed while out with my mates. We were drinking spirits which strongly affects me and I started making phone calls to Ms Falcone in an effort to persuade her to better co-operate with me regarding X’s care” ([95] father’s trial affidavit).
It transpires from the mother’s evidence and the evidence that emerged in cross-examination that the “effort to persuade” was the offer by the father to pay a substantial sum of money ($35,000) to the mother for the mother to return to (country omitted) without X or a lesser sum of money ($15,000) for the mother to have another baby and leave X alone ([121] to [126] mother’s trial affidavit).
The mother deposes to being upset by the calls that continued through from 11.00pm at night to 3.00am the following morning “They reminded me of what the Father used to be like when he drank to excess and there was domestic violence in our relationship. He keep getting very angry during the phone calls” ([127] mother’s trial affidavit).
The father denies that the mother was frightened by the calls stating in cross-examination “Well I don’t know what I’ve said that I shouldn’t have said that might have frightened the mother”.
However an apology was offered to the mother months later in November 2015 by way of correspondence from the father’s solicitors.
The reality is this; the father has done very little to address his drinking problem or to address his deplorable behaviour that emerges when he is drunk.
The father did nothing about his drinking and his behaviour after the horrific incident where he threatened to rape and kill his first partner.
The father did nothing about his drinking and his behaviour after the Darwin incident in 2011 when the police were called.
Although the father informed the family report writer that “X’s birth had motivated him to amend his ways so that he might be healthy and a good role model” ([28] family report) the father did nothing about his drinking and his behaviour in mid-2013 after the child was born.
The father did nothing about his drinking and his behaviour after the October 2013 incident where he threatened to slit the mother’s throat and kill her.
The father’s only attempt at addressing the problem was after separation in 2014 when the father ceased drinking.
The father’s affidavit is silent on the issue of receiving any independent assistance with dealing with his alcohol issues although the father deposes to attending “a counsellor to help deal with the stress caused by the end of the marriage and these legal proceedings”.
The father informed the family report writer that “he spoke with his doctor one month ago about his drinking and gambling habits. He was referred to a Psychologist and has had one session.” ([27] family report).
During cross-examination that father explained in respect to counselling “I think I only went to four sessions…..I didn’t feel it was – I needed to go to counselling – I think obviously I shouldn’t be drinking to that extent and that’s why I – I’ve dealt with that problem, and I don’t feel that counselling really was helping me at all…”
Evidence as to the father’s attendance upon any counsellor was not produced.
The father did nothing about his drinking and behaviour after the July 2015 incident.
Leading up to the hearing the father offered to undergo alcohol testing and was critical of the mother when she failed to take him up on the offer ([100] to [103] father’s trial affidavit).
The father however did not produce any alcohol testing results at the final hearing.
So given the fact that the father is currently not drinking and there have been no further drunken incidents since July 2015, should that be the end of the concerns as to family violence for X?
I find that the answer to the questions is a resounding “no”.
Firstly, the father has not addressed his problems with alcohol and related behaviours and it is concerning, especially as illustrated by the July 2015 incident, as to what the father may do and is capable of, should he go on another drunken escapade.
Secondly, the paternal grandparents (and in particular the paternal grandmother), in their fierce side taking with the father in these proceedings, may not be able to recognise or take the necessary precautions against the father if the father was to turn to drink again.
Thirdly, the evidence supports that hidden deep within the father’s psyche is a propensity for violence which the father still exhibits today towards the mother (albeit subtle); a propensity which may adversely affect X if X remained in the primary care of the father.
I base this finding on the following:-
a)The father lacks insight into the inappropriateness of his behaviours. It was only when pressed during cross-examination that the father admitted that his behaviour constituted family violence.
b)The father struggles to take responsibility for his actions stating that in cross-examination he was “disgusted” with his behaviour but that “he was not this sort of person. This isn’t a regular thing as it’s made out in the affidavits saying that I’m a violent…..”
c)The father fails to understand that his actions have resulted in losses in his life, choosing instead to blame others:-
i)The father partly attributes his poor behaviour towards Ms K as being due to his former partner being argumentative.
ii)The father blames the loss of his relationship with his first two children on Ms K for making him out to be a monster.
iii)The father also blames the loss of his relationship with his two children on Ms K because, as the father explained in cross-examination, his former partner “when I entered into a relationship with Ms Falcone…became jealous and told them…I don’t know exactly what she has told them but basically they didn’t want to talk to me anymore ….basically she stopped them from having communication with them”.
d)The father cannot accept that the family violence perpetrated by the father against the mother has negatively impacted on the mother.
e)When asked in cross-examination “Can you think of a reason why the mother might not trust you not to hurt her” the father responded “I don’t believe the mother thinks that I would hurt her…..I don’t believe that she is afraid of me or believed that I would hurt her”.
f)The father’s history suggests that the father has difficulty in his relationships and that this difficulty may continue into future relationships.
g)As noted by the family report writer “there are various indicators that the father’s personal relationships are problematic” ([114] family report).
h)I give significant weight to the concerns raised by the family report writer as to the healthiness of the relationship between the father and the paternal grandparents whereby it is noted “It is likely that his relationship with his parents is also not consistently good or mutually respectful” ([114] family report).
i)The incidents of family violence by the father are not limited to when the father was drunk.
j)The evidence supports that the father demonstrates a general disregard of the mother, her traditions, her opinions and her culture which in turn leads to intimidation of the mother.
k)I give significant weight to the opinion expressed by the family report writer that “it is clear from my assessment of the family that the mother’s cultural differences with respect to food and parenting were not valued by the father and the family who at various times questioned her and usurped her parenting decisions” ([123] family report).
l)This lack of regard by the father is illustrated by the following:-
i)The father did not respect the mother’s wishes in accordance with (nationality omitted) culture to breastfeed and co-sleep with the child until the age of 2 years. The father, together with the paternal grandparents, put an end to this when X was a baby.
ii)The father did not respect the mother’s wishes to introduce X to (nationality omitted) food early in his life, with the paternal grandparents and father highly critical of the food choices made by the mother for the child.
iii)The father informed the family report writer “with respect to X spending time with the mother the father raised issues with ‘what she feeds him’ and referred to the allegations in his material that the mother had fed the child hot chilli, ginger and choking hazards. He also complained that the mother allows the children too much salt given her use of oyster sauce and fish sauce and fermented cabbage which is full of garlic and chilli and ‘makes his breath smell’” ([45] family report).
iv)The father did not respect the mother’s choice for the child to be brought up bilingual with the father insisting that the mother speak English only in front of the child.
v)The father informed the family report writer that “the mother’s limited grasp of English is a potential safety issue for the child and in particular relating to his health needs. He argued it was better for the child’s educational development to remain predominantly in an English speaking home” ([46] family report).
m)The father has impulse and control issues which can impact on the father’s ability to parent the child.
n)This was demonstrated during the family report interviews when the mother arrived with three support persons:-
i)It is noted by the family report writer during interviews with the paternal grandparents that “At this point the father burst in and announced that he could not continue to wait in the waiting room ‘with all these people’ and he was going downstairs to wait…..The mother and her supporters were sent to wait elsewhere while the child was observed with the father and his parents and the grandparent’s interview was concluded later” (page 25 family report).
ii)During the observations it was noted that the “father paid X no eye contact or verbal attention when his almost two hour interview ended and he was reunited with him…….the father verbalised rather gruffly that he was uncomfortable and unable to interact with X for the purposes of observing X’s interactions with him and his parents having been disturbed by the mother and her supporters’ arrival” ([105] and [106] family report).
o)There is an ongoing power imbalance between the father and the mother as identified by the family report writer during cross-examination.
Fourthly, the family report writer has serious concerns as to the impact of the father’s family violence on X:-
a)“There is evidence to suggest that the father has threatened to kill both Ms K and Ms Falcone and both allegations related to occasions when his children were in view and hearing of these events. This factor poses significant potential risk factors for the child. The father and his parents tended to minimise but agree to the mother’s allegations of family violence. Family violence has been shown to greatly impact on a child’s development in a global sense” ([113] family report).
b)In cross-examination the family report writer stated “My concerns around the father’s propensity for alcohol misuse and family violence would continue” (cross-examination).
c)In answer to the proposition put forward from the bench that “if I was to make that finding (as to family violence), what impact is it for X to remain in a household where the father holds a strong view that he is not responsible for what his actions have caused to the mother” the family report writer responded “ …my concern would be for the long-term and global development of X more than the day-to day issues that I’m being told are…positive…My concern is that this young man might grow up….the boy, this young child, would grow into a young man with concerning ideas around family dynamics and…relationship dynamics, in particular dynamics towards women. In the longer term, X may well be at some level influenced against the mother. There is a risk that might occur. There is a risk that X may be developing, I guess, attitudes that are unhelpful for his future development and future relationships”.
d)The family report writer recommends that in the event there is a finding of family violence then the child should live primarily with the mother and spend significant time with the father.
Overall conclusion on family violence
I find that family violence of the father continues to pose a risk to the child and as such X is likely to be exposed to family violence if the child was to remain in the primary care of the father.
I make this finding based on the following:-
a)The father has done very little to address his alcohol issues and if the father was to relapse then the likelihood is that the father’s old behaviours will re-emerge.
b)This is likely to impact on the father’s ability to parent the child.
c)I give weight to the family report writer’s observations that the father’s past “difficulties with alcohol use, finance management and gaming” would have “impacted negatively on his parenting ability, focus, availability as a parent at least at times” ([112] family report).
d)The father’s lack of insight and lack of responsibility for his actions raises questions as to the father’s ability to avoid family violence into the future and to prevent X from being exposed to such family violence.
e)The dynamics within the father’s household with the father and the paternal grandparents may result in family violence occurring in front of the child.
f)The father’s attitude towards the mother may result in future family violence towards the mother.
As in accordance with section 60CC(2A) Family Law Act 1975 , this consideration must be given greater weight than all other considerations, then serious regard must be given to the recommendations of the family report writer whereby the child live with the mother and spend time with the father.
This consideration therefore supports an order whereby the child live with the mother.
Conclusion on primary considerations
The findings on the primary considerations support an order whereby it is in the child’s best interests for X to live primarily with the mother.
Additional considerations
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
Given X’s age, discussions were not had with X as to his views.
This consideration is therefore not relevant in determining the future parenting arrangements for the child.
Nature of the relationship of the child with each of the child’s parents and other persons
Although there are only two parties to these proceedings (the father and the mother), there are four significant adults in X’s life; the father, the mother, the paternal grandmother and the paternal grandfather.
As to the child’s relationship with the father and the paternal grandparents the family report writer made the following observations:-
a)“When observed with the father and the paternal grandparents however his bond with the paternal grandparents was highlighted” ([104] family report).
b)“The father paid X no eye contact or verbal attention when……he was reunited with him….. the paternal grandparents readily filled any void left by the father’s difficulties with this situation. X readily reciprocated the efforts of the paternal grandparents” ([105] and [106] family report).
c)“X mildly resisted the father’s few attempts to draw him close preferring instead to self-determine that which he was drawn into” ([106] family report).
d)“Of these three adults X seemed most drawn to the paternal grandmother, then the paternal grandfather then the father” ([106] family report).
As to the child’s relationship with the mother, the family report writer made the following observation “X ran quickly across the sidewalk to hug the mother when he transitioned from the father to the mother. The adults said nothing. The mother eagerly interacted with X and X excitedly reciprocated her efforts….There was a consistent holding quality between the mother and the child. The child several times hugged and kissed the mother and randomly stated ‘mum’. The mother spoke in a mix of English and (language omitted) when observed with the child and the child clearly understood the mother regardless of which language she spoke” ([107] family report).
As to the child’s overall relationship with the adults the family report writer made the following observations:-
a)“X demonstrated pleasure to see both parents and the paternal grandparents and readily separated from each party to be observed with the other” ([103] family report).
b)“Overall X exhibited no clear preference for either parent” ([104] family report).
c)“It is my assessment that X does not have a primary attachment figure but rather is closely bonded first with both the mother and the grandmother followed very closely with the father and the grandfather. The assessed differences between the child’s observed relationship with the four adults in his life amount to subtlety. X appeared to be experiencing little in the way of separation difficulties when moving between the parties. His interaction and delight was marginally more pronounced in the presence of the mother though I accept this could be explained by the current parenting arrangements” ([110] family report).
In cross-examination the family report writer observes that “…at the time of my assessment, he appeared to have a meaningful relationship with both the mother and father’s households and it would ideally continue on a regular and predictable basis”.
Conclusion on nature of the relationship
The evidence supports that X has a strong relationship with all four adults in his life and that it is in the child’s best interest that these relationships be maintained.
The evidence also supports that no matter where X is living, provided the child has substantial time with the other adult/s then these strong relationships will continue.
This consideration therefore factors heavily in determining the future parenting arrangements for the child.
Extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions, to spend time with and to communicate with the child
As the parties have not raised any issues under this heading, then this is a consideration which needs no further investigation and will not be factored in when determining the future parenting arrangements for the child.
Extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
As the parties have not raised any issues under this heading, then this is a consideration which needs no further investigation and will not be factored in when determining the future parenting arrangements for the child.
Likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child, or other person
X is a very young child; yet to reach the age of three.
For most of the first half of his life X lived with his parents and the paternal grandparents.
For the second half of his life X has lived with the father and the paternal grandparents.
X’s time with the mother has been limited to three day periods and one overnight per week.
It is acknowledged by the parties that a change of residence for X to live with the mother will bring about an enormous shift for X.
In cross-examination when it was put to the family report writer that “an alteration of those arrangements is likely ….to have quite a negative impact on X if he is removed from that place where he predominantly lives and goes somewhere else” the family report writer responded “Indeed it would be disruptive and a significant adjustment”.
When further asked as to whether such a move could be “damaging to X” the family report writer responded “it could be”.
When questioned as to the impact on X if the mother was to move accommodation if X was living with her, the family report writer commented “The evidence presented is that he is quite well developed for his age. His intellect may well reflect his academic prowess that is reported and in that case his ability to understand may well be above that for a child of his age”.
Conclusion on changes in the child’s circumstances
This consideration reiterates the need to ensure that a decision for a change of live with arrangements for X is a decision which cannot be made lightly.
Further if a change of residence was to occur for the child then the parents will need to handle the situation maturely to ensure that the transition is as less disruptive as possible for X.
This consideration will therefore factor heavily in determining the future parenting arrangements for the child.
Practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
As the parties have not raised any issues under this heading, then this is a consideration which needs no further investigation and will not be factored in when determining the future parenting arrangements for the child.
Capacity of each of the child’s parents and any other person to provide for the needs of the child
The father in his evidence raises numerous concerns about the mother’s ability to care for and meet the needs of the child.
These concerns relate to two time periods:-
a)Up until the date of separation; and
b)Since separation has occurred.
The concerns pertaining to the period up until the date of separation include:-
a)The mother’s lack of hygiene (paternal grandmother in cross-examination).
b)The mother feeding the child “inappropriate food for the age he was at…..When she cooked she would mash up chicken and rice….there would be lumps …he could choke on. She also used ginger…which is dangerous” (paternal grandmother in cross-examination).
c)The mother “often gave him inappropriate things to play with that he could choke on, like something wrapped in plastic….She had given him cardboard…..Broken hard plastic. He had choked on several occasions and she appears not to be able to know what to do in the circumstances” (paternal grandmother in cross-examination).
d)The mother’s care for the child such as “She would insert those cotton tips into his ears with a very sharp, pointy, hard…. end unlike the common one with the soft cotton wool” (paternal grandmother in cross-examination).
e)The child being within reach of “poisons….water purifier, fish food” (father in cross-examination).
The concerns pertaining to the period from the date of separation include:-
a)The child returning “exhausted, constipated, dehydrated ….. traumatised” (paternal grandmother in cross-examination).
b)The child returning with severe ear infections which the paternal grandmother and father attribute to the mother’s use of the pointy cotton tips (paternal grandmother in cross-examination).
c)The child returning with red marks on his arms which the father states are caused by the mother (father in cross-examination).
d)The child returning with bumps on his head (father in cross-examination).
Prior to the final hearing there was no evidence produced by the father in support of these concerns.
There have been no notifications which have been followed through by welfare departments or complaints to the police and there are no other medical records for the child.
However on the weekend prior to the hearing the father took X to the (omitted) Hospital and tendered the clinical notes at trial.
In the clinical notes prepared by Dr S it is noted:
a)“Master X, 2 years old, was brought ……on 13/3/16 by his father and grandmother following referral from the house call doctor”
b)“Master X has been unwell with fever and painful left ear since he was collected from his mother’s residence today. He has also vomited today and noted to have a cough. He also noted to be snuffly”
c)“It is alleged that he may have been exposed to smoke (cigarette) whilst at this mother’s residence. There was also concern voiced that a sharp cotton bud may have been inserted in his ears. Father also pointed to an area on his forearms that he stated were markings”
Further Dr S made the following observations of the child:-
a)“No discharge from ear noted”
b)“Alert. Looked tired. No obvious cough”
c)“Noted to be irritable when attempting to examine ear”
d)“No rash noted. No other bruising noted. Noted creases on the skin on the forearm pointed out by father”
e)“Right ear: TM mildly erythematous but no discharge. External auditory canal not excoriated or erythematous”
f)“Left ear: TM bulging but no discharge noted. No bleeding on the external auditory canal. Small wax noted in canal”
g)“Unable to currently determine if there has been trauma to the left external auditory canal as there is no laceration, no bleeding or discharge”
The child was subsequently prescribed amoxycillin and the father was advised to contact child protection if concerned.
This is the only independent evidence produced by the father and I find that this evidence in no way supports the father in his concerns that the mother has not or currently does not have the capacity to care for the child.
The lack of evidence by the father as to the serious allegations by the mother was also noted by the family report writer “There would appear on balance little substance to the father’s allegations with respect to the mother….the father supplies very limited evidence other than the reports of himself and his parents” ([116] family report).
The mother denies the allegations that point to her being neglectful and hopeless in her role as a parent.
The mother openly admits that X has suffered accidents in her care; such as when X walked into a door and got an “egg” on his head, which the mother promptly informed the father about.
Put simply; it is word against word.
And then, we have the view of the family report writer.
The father has always maintained that of the two parents, the father is more child focussed than the mother.
But the family report writer holds a contrary view, with the following comments captured in the family report:-
a)“It is concerning in my opinion to note that the father now suggests that the child would be better spending two rather than three days each week with the mother so that it felt a ‘treat rather than a chore’. It is probable that the ‘chore’ reflects his own feelings rather than that of the child. This point alone with observations and reports of the father’s conduct lend support to the mother’s claim that the father is more self-focused than child focussed” ([111] family report).
b)“I also noted in particular that the father paid the child no attention when reunited at the conclusion of his interview” ([111] family report)
c)“There are no indications of limitations in the mother’s parenting” ([107] family report).
d)“The mother presented as very child focused and determined to give the child a healthy life” ([119] family report].
e)“Overall I can readily appreciate the mother’s argument that her strengths when compared with the father’s weaknesses suggest that she is better able to provide the child with a healthy role model and preferable lifestyle and therefore better opportunities” ([119] family report).
Although the family report writer had not had the opportunity to interview the parties and the child leading up to the final hearing, the family report writer, having read the trial affidavits and having had the benefit of the father and paternal grandmother’s transcripts from their oral evidence, maintained her position as to the mother being the more capable parent for X.
Conclusion on capacity
I give significant weight to the views expressed by the family report writer and find that the mother is more child focussed and as such has the greater capacity to care for and meet X’s needs.
I find that this consideration supports an order for the child to live primarily with the mother.
Maturity, sex, lifestyle and background of the child and parents and any characteristic of the child that the court thinks are relevant
The parties have very different lifestyles.
X currently lives with the father in an extended family household.
The father does not work and is reliant on his parents in providing housing and assistance in bringing up X.
The mother is (nationality omitted) and has a strong work ethic and a driven commitment to provide for X as well as a desire to ensure that X understands and is part of her culture and traditions.
Conclusion on maturity sex lifestyle
This consideration factors into determining the future parenting arrangements for X where care must be taken to ensure that X is exposed to the differing lifestyles in both households.
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 the likely impact any proposed order will have on that right
As the parties have not raised any issues under this heading, then this is a consideration which needs no further investigation and will not be factored in when determining the future parenting arrangements for the child.
Attitude to the child and to the responsibilities of parenthood
As to the mother
The father and the paternal grandmother are dismissive of the mother as a parent.
This is clearly illustrated by the following:-
a)When asked in cross-examination “what is positive about the mother in respect to her parenting of X” the father after a long pause eventually answered “She’s a happy person. I’m sorry. I can’t really think of anything”.
b)When asked in cross-examination “what is negative about the mother” the father replied “I can’t think of anything negative – anything negative either, other than the concerns about the condition he comes home in. I don’t – I’m not there. I don’t really know anything about the mother’s current circumstances”.
c)When asked in cross-examination “what makes the mother a good mother to X…what are her positive aspects as a mother?” the paternal grandmother replied “she loves him and dotes over him….that’s all I can think of at the moment”.
d)When asked in cross-examination “Is there anything negative that you have to say about her parenting of X” the paternal grandmother replied “It’s not negative about her. It’s the fact that she doesn’t have the skills to care for him I believe”.
e)The father in cross-examination maintained that X did not miss his mother during the 25 days the father refused the mother an opportunity to spend time with the child after separation occurred.
f)The father is aware that the court ordered on an interim basis for the child to live with the father and spend day time periods with the mother in September 2014 because:-
i)“There was no evidence before the Court as to the suitability of the refuge for such a young child, how long the mother is able to stay at the refuge and where the mother is able to live in the event that the refuge is no longer available to the mother” (Falcone & Falcone [2014] FCCA 2315 at [35]).
ii)“The mother’s living situation contrasts sharply with the child’s current living arrangements, where X can remain in a home that he grown up in, surrounded by familiarity” (Falcone & Falcone [2014] FCCA 2315 at [36])
g)In respect to the spend time with arrangements for the mother the father informed the family report writer that “he considered two days each week with the mother to be sufficient and thus ‘more of a treat than a chore’” ([44] family report).
h)In cross-examination the father explained this comment stating “I believe it would be a chore for X’s mother to spend any more time than that with him…...If X’s mother had him for extended periods of time I believe it would be difficult for her to deal with him and she wouldn’t – I believe she would treat him better with shorter periods of time as it would be a treat rather than a chore whereas if she had longer periods of time I think she would find it a chore and wouldn’t treat him properly…..When we lived together I’ve witnessed her with X and she gets tired with his and get angry with his and you know….she also had support by myself when we were living together and I don’t think she’s capable of looking after him on his own for long periods of time…I don’t think he is safe with her for extended periods of time. I don’t think he will be looked after properly and I don’t think it’s in his best interests”
i)The father “argued he is more interested attuned and responsive in his parenting and thus the better parent for X. He argued that he has his parents for support and their environment is superior. He argued that he has more experience as a parent and is “very good with them [children]” ([44] family report).
j)The father was aware when the family report was released in January 2015 that the mother’s living arrangements had changed with the family report writer noting “at the time of the Orders made 19 September 2014 the mother’s post separation housing and financial situation was uncertain and thus the child’s ongoing stability in the father’s household likely presented the best option at the time….To her credit the mother has quickly resolved these former issues to establish independent living arrangements which she intends to maintain and grow from. Given the history of the mother’s behaviours and her assessed child focus it is likely she will do as she plans in this regard” ([125] family report).
k)The father was aware of the family report writer’s recommendations that the child live with the mother and spend significant time with the father but since the release of the report the father has yet to facilitate any time above that as provided for in the September 2014 interim orders, namely three day time periods and one overnight per week.
l)The father in his proposal for final orders makes no offer of an extension of that time which has been in place for nearly 18 months.
m)The father in his proposal makes no offer of special event time or holiday time between the mother and the child, maintaining that the parties can agree to these times although no additional time has ever been facilitated by the father for the mother with the child since September 2014.
n)The father maintains that such orders would keep the matter simple. When it was put to the father in cross-examination that “by keeping it simple you have, in fact, rejected the mother on every level apart from some week day and weekend time, haven’t you?” the father responded “yes”.
o)In addition to the father not offering further time between the mother and the child, the father has been inflexible in changing the spend time with arrangements resulting in the mother not being able to go away on weekends and not providing make up time when the mother travelled to (country omitted) to visit her sick grandmother.
p)The father did not provide Skype time between the mother and the child during her trip to (country omitted) with the father changing telephone numbers during her absence.
q)The father enrolled the child in a day care facility of his choice during the time the mother was in (country omitted).
r)The father offered the mother, in July 2015, a sum of money to go back to (country omitted) without X and a smaller sum of money for the mother to have another child and forget about X.
During cross-examination when it was put to the family report writer that if the father “continues in this belief, that this may also impact on his ability to facilitate time between the child and the mother should the child remain with the father” the family report writer responded “Yes, that would be the case, particularly if the mother was doing something that was displeasing to the father”.
Conclusion as to the mother’s attitude and responsibilities
There is nothing in the evidence to support that the mother does not hold a healthy attitude towards the child or does not take her responsibility as a parent seriously.
These views are views that have been created by the father with the assistance of the paternal grandmother so that their crusade to demean and undervalue the mother as an active parent in X’s life can continue.
I find that the views held by the father and the paternal grandmother are an extension of the control demonstrated by the father in ensuring that the mother does not play a huge part in the child’s life.
I further find that these views held by the father and the paternal grandmother have the capabilities of interfering in the mother’s involvement with the child should X remain in the primary care of the father.
This consideration therefore supports an order whereby X live with the mother and spend time with the father.
As to the father
The mother questions the extent of the involvement of the father in the parenting of X, questioning whether that role is more the role of the paternal grandparents (and in particular the grandmother) as opposed to the father.
Before separation the paternal grandparents were actively involved with X, especially during such time when the mother was working.
Since separation the father has remained living with the paternal grandparents.
The father informed the family report writer with “a description of the child’s routine, development and behaviour including that the child tends to commence the day with a bottle and use of the IPAD with the paternal grandmother on her bed, has breakfast with the paternal grandparents and has dinner with the paternal grandparents after spending the middle day period with himself. The father bathes the child at 4.30pm every day and puts the child to bed around 7.00pm. X sometimes wakes at night and can be resettled and when he cannot be resettled he gets into bed with the father and ‘if I’m not there my parents watch him” ([47] family report].
The father deposes that:-
a)“We all live under the one roof and as a result my parents are a big part of X’s life and his sense of stability and safety” ([62] father’s trial affidavit).
b)“My parents support me and they support me in caring for and educating X” ([84] father’s trial affidavit).
c)“My parents have never replaced me as X’s primary caregiver and father” ([85] father’s trial affidavit).
The paternal grandmother during cross-examination explained the extent of the paternal grandparents involvement with the child:-
a)“I support X in anything that he needs.”
b)“Day to day involvement….playing with him, reading with him….I cook dinner every night….I’ve taken him to the shops with my husband. We’ve all gone to the beach with him. Really I would say just loving him and playing with him and supporting X in raising him.”
The family report writer notes that “according to the mother, the grandparents make up for the father’s deficits” ([61] family report).
As captured earlier in the judgment the family report writer notes that in the paternal household the child’s attachment appears to be firstly with the paternal grandmother than with the father.
The family report writer concludes “In my assessment it appears probable that the father relies heavily on his parents for financial, practical and parenting support” ([115] family report).
Conclusion as to attitude and responsibilities
I find that whilst the father may be a responsible parent and have a healthy attitude towards parenting that the father has abdicated some of the parenting duties to the paternal grandparents.
The question then arises as to how the father would cope with parenting X should the father not have the financial, physical and emotional support provided by the paternal grandparents.
The family report writer has expressed concerns as to the stability of the father and grandparent relationship and therefore to conclude that the father may always have their support is, I find, a tenuous assumption to make.
The mother has already demonstrated her independence by obtaining employment and improving her circumstances as well as establishing a home environment for her and the child.
This consideration, therefore, supports an order whereby the child should, in the long term be in the primary care of the mother as that will provide stability for the child.
Family violence involving the child or a member of the child’s family
Findings have already been made in respect to family violence.
This consideration will therefore factor heavily in determining the future parenting arrangements for the child.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Both parties are seeking that this matter be determined on a final basis.
This has always been the parties’ intention.
However, the father is seeking simplistic type orders which will be dependent on the parties agreeing to certain arrangements such as holidays and special event time whereby the mother is seeking comprehensive orders.
Conclusion as to final orders
I find that it is important in this matter for final orders to be made.
I further find that such orders should be comprehensive orders and form the basis of a workable arrangement without the need for the parties to agree on basic orders.
I give significant weight to the comments made by the family report writer during cross-examination in response to the question “are you able to comment as to realistically whether these parties could possibly agree to other arrangements other than what is written in the orders?” where the family report writer said “I’m not convinced that they could. I would be concerned about any power imbalance in the relationship”.
This consideration therefore supports the need for a complete set of orders which provides for all aspects of the parenting for X.
Any other fact or circumstance
There is one other circumstance that needs addressing.
There is an allegation by the father that as the mother is in a new relationship that X has been exposed to their being together and this has resulted in X on one occasion mimicked sexualised behaviour after spending time with the mother.
The father deposes to the following:-
a)“Of concern for me in the presence of Mr K during times X is with his mother, particularly overnight” ([132] father’s trial affidavit).
b)“I understand Mr K owns the unit Ms Falcone lives in and unlike what he has stated in his material I believe he spends substantial time in the unit with Ms Falcone including overnight times when X is with his mum” ([133] father’s trial affidavit).
c)“I have little evidence as to X witnessing their sexual activities other than X’s strange behaviour on one occasion in February 2015. After spending time a Friday night with his mother I returned home with X and laid him face down on his bed before sleep. When placed in this position X started mimicking sexual movements and moaning. He began what I can only explain were ‘humping movements’ on the bed and started moaning ‘ah ah – yeah” ([135] to [137] father’s trial affidavit).
Although available, the father chose not to cross-examine Mr K.
The mother deposes to having started the relationship with Mr K some ten months before the final hearing and that she has only been living in the unit since August 2015 ([112] mother’s trial affidavit).
The mother deposes that “Mr K has not stayed over at my unit on any occasion that X has been at my house. X and I have now stayed at Mr K’s home but X has his own room and is has only been a few times” ([141] mother’s trial affidavit).
Although not contained in his affidavit the father admitted to also being in a new relationship but no details were forthcoming.
Conclusion on other circumstance
I cannot give weight to this circumstance for the following reasons:-
a)The dates conflict; with the incident with X occurring prior to the mother commencing her relationship with Mr K.
b)There is no evidence the child’s behaviour relates in any way to anything which has happened in the mother’s household.
c)It was a one off incident with the father not raising any other behavioural issues of the child regarding the mother’s relationship with Mr K.
This consideration will therefore not be factored into determining the future parenting arrangements for the child.
Conclusion on additional considerations
The findings on the additional considerations support an order whereby it is in the child’s best interests for X to live primarily with the mother.
Overall conclusion as to the parenting arrangements
With whom the child is to live
I find, based on the findings made in respect to the primary and additional considerations that it is in the child’s best interest to live with the mother.
I therefore make orders that X live with the mother.
In making this finding comment must be made as to the father’s conduct in this matter.
I find that the father had been deliberately mischievous in this matter; creating drama in order to achieve the desired outcome of retaining X in his care and minimising and demeaning the mother’s continued involvement with the child.
The father admits that his concerns about the mother absconding with the child to (country omitted) around the time of separation were speculation ([117] family report).
The father admits that the allegations made just prior to separation as to the mother having an affair (which have always been denied by the mother) were also baseless with the father telling the family report writer that “it was pure ‘speculation’ on his part that the mother had been having an affair” ([22] family report).
The father admits that it was his suggestion that the mother stay with friends for a few days after the father accused her of having an affair ([22] family report).
The father however has used the mother’s action in moving to what was allegedly an unsafe environment for the child as justification for the father (with the assistance of the paternal grandparents) to unilaterally take X into his care and then deprive the mother the opportunity to spend time with the child until court ordered.
The father’s allegations that the child was at risk with the mother when the parties first physically separated was nothing more than smoke and mirrors with the photographic evidence of the child supposedly near poisons an obvious set up. (The question begs; if the father was so concerned as to dangerous items being in reach of the child why not then put them up high out of reach instead of photographing it?).
The family report writer holds her own view as to why the father has persisted in his proceedings commenting that “There is little doubt in my opinion that the father’s understandable grief and loss surrounding his older children would be motivating his present application. The father would understandably be fearful of history repeating and admitted that his health and wellbeing has struggled in response to relationship breakdown in the past” ([116] family report).
The time has come, especially now with orders being made for the child to live with the mother, that the father address his personal issues and seek therapy and assistance before history again repeats itself.
The time has come for the paternal grandparents to accept and acknowledge the father’s shortcomings and to do all that they can to ensure that the father seeks out appropriate assistance.
If the father and the paternal grandparents do not change their ways and their attitudes then it is only a matter of time before X becomes aware of their biasness and narrow-mindedness towards the mother, which may then impact on their respective relationships with the child.
As to the mother; she has proven herself to be a true survivor.
The mother, who is from another country and another culture, has endured violence, humiliation and cruelness at the hands of the father the yet since separation has taken every opportunity to better herself and to make a life with X.
What time is the father to spend with the child?
What must be remembered in this matter is that X is a very young child.
As such I give significant weight to the family report writer as to what the child is capable of handling by way of a spend time with regime with the non-resident parent.
In cross-examination the family report writer expressed the following view “if the court was minded to take on the recommendation that the child was residing with the mother….at his age, generally if children have positive relationships with both parents can well tolerate one or two overnights away from their primary home environment in one go….some at this age can tolerate three nights. It is more common that they are able to tolerate one or two nights away”.
The father’s proposed orders in the event that the child live with the mother is for time of two days with the child, alternating between the parties.
The family report writer cautions against numerous changeovers explaining in cross-examination “I would be inclined to reduce the number of changeovers or, I guess, limit the number of changeovers that the parties are expected to undertake to hopefully reduce the potential for X to be exposed to ongoing parental conflict as much as possible”.
I find that this arrangement is not in the best interests of the child as, given the history of this matter, it would be unworkable.
The father’s alternate position if for two nights each alternate weekend from Friday to Sunday and then in the other week each Wednesday night and each Friday night.
I have difficulties with this arrangement because firstly it involves a number of changeovers and secondly it prevents the mother from having a full weekend with the child.
The mother proposes a block period of five nights a fortnight from Thursday to Tuesday.
I find, given the age of the child and the recommendations of the family report writer that this spend time with arrangement is not in the child’s best interests as the child may struggle in spending such long periods away in one block from the primary carer.
I therefore order that the father spend alternate weekends from Friday afternoon to Monday morning with the child and in the other week from Wednesday afternoon to Friday morning with the child.
I find that the mother will support such a spend time with arrangement between the father and the child.
Unlike the father, the mother has been accepting of the father and his faults and openly acknowledges and accepts that the father and the paternal grandparents “love X very much” ([73] family report).
Changeover
Currently the parties conduct changeover at the (omitted) shopping centre with the paternal grandparents attending without the father.
The father is seeking that changeover occur at the mother’s residence.
Conclusion on changeover
Given the family violence and the history of this matter, I find that it is not in the child’s best interest for changeover to occur at the mother’s residence.
Further there seems to be no legitimate reason as to why the current routine of changeover should change.
I therefore order that where changeover cannot occur at the day care centre or in the future at the school then changeover is to occur at the (omitted) shopping centre or such other place as can be agreed upon between the parties.
Child’s ability to travel overseas
Understandably the mother wishes to be able to travel overseas with X to (country omitted) to visit her family.
The father is opposed to overseas travel as the father is concerned firstly that the mother is a flight risk and secondly, that the child may not be safe with the mother in (country omitted).
The father is seeking orders whereby X be restricted from travelling overseas until the age of 16.
The issue as to whether the mother was going to abscond with X to (country omitted) loomed large around the period of separation although the father has subsequently admitted that this was “mere speculation” on his behalf (117] family report).
X holds two passports; an Australian passport and a (nationality omitted) passport.
The mother informed the family report writer that she obtained “a (nationality omitted) passport for X so he could have dual citizenship and no need for a Visa to visit his mother’s traditional land” ([59] family report).
Conclusion as to overseas travel
I find that the insistence of the father that X not be permitted to travel overseas until the age of 16 due to the mother being a flight risk and the dangers for the child in (country omitted) is yet another example of the father being overdramatic, the father demeaning the mother by undervaluing her heritage and ultimately the father wishing to maintain control over the situation.
There is not one scrap of evidence before the court that the mother will not return to Australia should the mother travel overseas with the child.
In fact her evidence supports otherwise:-
a)The mother considers Australia to be her home.
b)The mother has obtained her Australian Citizenship.
c)The mother is in a committed relationship in Australia.
d)The mother has established her home in Australia.
e)The mother has employment in Australia.
f)The mother acknowledges that Australia is X’s home.
g)The mother is supportive of X’s relationship with the father and the paternal grandparents and has every intention to facilitate spend time with arrangements.
I therefore find that there is no basis for the restrictive orders as proposed by the father.
I therefore find that overseas travel with X can occur and in essence, I have adopted the proposed orders as put forward by the mother.
Care for the child when the mother is not available
The father is seeking orders that if the mother is working or otherwise not available to care for X then the father and the paternal grandparents are to be given the first right of refusal to care for the child.
Conclusion as to care when the mother is not available
I find that it is not in the child’s interest for such an order to be made.
I base this finding on the following:-
a)The level of communication between the parties remains difficult and would result in such an order being problematic to implement.
b)The mother is able to make her decisions about the care of the child when the child is in her care.
c)Such an order would provide the father with an opportunity to pry into the mother’s day to day decisions and question her decisions if the father holds the view that the mother had not complied with the order.
d)The orders refer to the father’s ability to spend time with the child as otherwise agreed upon between the parties and therefore such an arrangement can be reached between the parties.
Parental responsibility
I find from the outset that due to the existence of family violence then pursuant to section 61DA(2)(b) Family Law Act 1975 the presumption of equal shared parental responsibility as provided for in section 61DA(1) does not apply.
The question then arises as to what order should be made for parental responsibility?
As an order has been made for the child to primarily live with the mother, the father seeks an order for equal shared parental responsibility.
The mother is seeking an order for sole parental responsibility but where the mother will confer with the father before reaching her final decision.
Conclusion on parental responsibility
I find that it is in the child’s best interest for the mother to have sole parental responsibility for the child but where the mother confers with the father prior to reaching a final decision.
I make this finding based on the following:-
a)Due to family violence, the absence of co-parenting whilst the child has been in the father’s care and the difficulties with communication between the parties, an order for equal shared parental responsibility will be problematic and is likely to lead to conflict which will impact on X.
b)The father has demonstrated a reluctance to properly discuss and communicate issues with the mother with respect to major long term decisions as illustrated by his choice of child care centre which is problematic for the mother to attend due to distance and location.
c)The mother is prepared to discuss her thoughts on major long term decisions with the father prior to making a final decision.
I therefore order that the mother have sole parental responsibility provided consultation occurs with the father before the mother makes the final decision.
I further order that the child attend the day care centre located near the mother.
As to schooling, no orders have been made as this is a future decision to be made by the mother after consultation with the father.
I certify that the preceding two hundred and ninety-four (294) paragraphs are a true copy of the reasons for judgment of Judge L Turner
Date: 15 June 2016
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Res Judicata
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