Finlay & Finlay
[2024] FedCFamC2F 153
•31 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Finlay & Finlay [2024] FedCFamC2F 153
File number(s): NCC 1316 of 2021 Judgment of: JUDGE BETTS Date of judgment: 31 January 2024 Catchwords: FAMILY LAW – Parenting – final hearing – four children, aged 12, 10, 6 and 4 – where the parties had a volatile and difficult relationship – where both parties perpetrated family violence – where the father has had no time or communication with the children for three years – where the father has breached the AVO on several occasions – where the father seeks a gradual increase from supervised time to unsupervised time – where the mother seeks a no time order – where the father has displayed a distinct lack of taking responsibility for his actions – where the Court considers there is an unacceptable risk of harm – best interests of the children. Legislation: Family Law Act1975 (Cth), Pt VII Cases cited: Bieganski (1993) 16 Fam LR 353 Division: Division 2 Family Law Number of paragraphs: 254 Date of last submission/s: 26 October 2023 Date of hearing: 14, 15 September 2023, 22 September 2023 and 26 October 2023 Place: Newcastle Counsel for the Applicant: Ms Meares Solicitors for the Applicant: Georgia Flynn Solicitor Counsel for the Respondent: Mr Graham Solicitors for the Respondent: Tony Cox Lawyers ORDERS
NCC 1316 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FINLAY
Applicant
AND: MS FINLAY
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
31 JANUARY 2024
THE COURT ORDERS THAT:
1.All prior parenting Orders be discharged.
2.The mother have sole parental responsibility for the children, W born in 2011, X born in 2013, Y born in 2017 and Z born in 2019.
3.The children live with the mother.
4.Unless otherwise agreed in writing by the mother:
(a)The father is to have no time with the children;
(b)The father is restrained from approaching or coming within 100 metres of the children.
5.This Order authorises the children's schools to provide to the father at his request, copies of their school reports, school photographs, any photograph order forms and any other information ordinarily provided by schools to parents of students. The mother is to ensure that each school attended by the children has a copy of this Order.
6.The mother is to notify the father in writing as soon as possible in the event of the children being hospitalised. This Order will authorise the father to obtain medical information from the hospital and the mother is to ensure that the hospital has a copy of this Order.
7.If the mother agrees in writing to the father spending time with the children, the father is restrained pursuant to section 68B from:
(a)Consuming or being in any way affected by alcohol at any time when the children are with him;
(b)Possessing, consuming or being in any way affected by illicit substances at any time the children are with him;
(c)Administering physical discipline to the children when they are with him;
(d)Denigrating the mother or any member of the mother's family or household at any time when the children are present, or permitting the children to remain within the presence or hearing of any other person engaged in such denigration; or
(e)Knowingly exposing the children to "family violence" as defined in section 4AB of the Family Law Act 1975, a copy of which section is attached to this Order.
8.The mother is restrained from:
(a)Denigrating the father or any member of the father's family or household at any time when the children are present, or permitting the children to remain within the presence or hearing of any other person engaged in such denigration; or
(b)Knowingly exposing the children to "family violence" as defined in section 4AB of the Family Law Act 1975.
9.Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the mother is authorised to apply for and retain a passport for the children without the father's written consent or approval and without him having to sign any documents.
10.Pursuant to section 65Y of the Family Law Act, the mother is at liberty to travel outside of the Commonwealth of Australia with the children whether or not the Father has consented to any such travel.
11.These reasons are to be taken out in writing and provided to the party.
12.The proceedings are removed from the list of active pending cases.
NOTATION:
A.Nothing in this Order obliges the mother to agree to the father spending time with the children.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
INTRODUCTION
These are parenting proceedings involving four (4) children:
·W born in 2011, who is twelve (12) years of age. He will have started year seven (7) in High School this year;
·X born in 2013, who is presently ten (10) years of age. He will be in year five (5) at B School this year;
·Y born in 2017, presently aged six (6) years of age. He will be in year one (1) at B School this year; and
·Z born in 2019, who is four (4) years of age. She is presently attending daycare.
The applicant in these proceedings is the children’s father, Mr Finlay (“the father”). The respondent is the children’s mother, Ms Finlay (“the mother”).
The parents were in a relationship which commenced in around mid-2006. They married in 2015 and they finally separated on an unknown date. They disagree about the final separation date, but it certainly seems to have occurred in mid to late 2020.
Like many couples in this court, their separation was an emotionally fraught one with very high feelings all around, especially from the mother. The parties had had a volatile and difficult relationship, particularly in the later years when the younger two (2) children came into the world, and I will refer to that in more detail later.
It is common ground that the mother was always the primary carer for the children during the relationship and she has continued in that role.
The father has had a very limited role in the children’s lives since moving out of the former matrimonial home. The parties initially arranged for the father to spend some time with the older three (3) children, particularly the older two (2) children, W and X. But in around January 2021 the father’s time with these children came to an end as a result of various problems and difficulties that had emerged between the parties, including some significant family violence to which at least some of the children were exposed and emotionally damaged by.
Save for the mother facilitating one (1) supervised visit with the father around Easter 2021, the father has not had an opportunity to see the children now for the better part of three (3) years, nor does he have telephone or electronic communication with them.
Despite the fact that the parties live in the same area, literally only a couple of minutes’ drive apart, their proposals for the future care of the children are radically different.
The father is seeking to spend time with the children again, initially on a supervised basis through a professional supervision agency, such as C Contact Service, graduating to some weekend supervision by his sister and/or mother, being the paternal grandmother and paternal aunt respectively, and, ultimately, from there graduating to a regime of unsupervised weekend and ultimately holiday time. In a practical sense, the father is seeking a graduation to what might be called “substantial and significant time” with the children. The father also seeks that the parents have equal shared parental responsibility.
The mother’s proposal could not be any more different. She is seeking orders that the father spend no time with the children and that he be restrained from approaching or coming within one hundred (100) metres of them. She also seeks sole parental responsibility.
By reason of various acts of family violence on the father’s part - though I hasten to add that the mother has also perpetrated family violence against him - there has been an Apprehended Violence Order (“AVO”) in place for the mother’s protection ever since a violent incident on in mid-2020. In one form or another that AVO has continued and indeed the latest iteration of the order does not expire until mid-2024. The AVO is in very broad terms of a “no contact” nature, subject to the usual family law exceptions.
The case thus presents the Court with a difficult choice. “No time” cases are always particularly difficult. They are not a no-risk option for children. There are long-term consequences for children in having a relationship with a parent effectively severed. By the same token, arrangements whereby the Court puts in place strict orders for supervision and graduating to unsupervised time are also challenging, particularly when they involve serious questions as to the risks posed by a parent, in this case, relevantly, the father. Such cases require careful consideration and are not easy to decide.
THE HEARING & MATERIAL RELIED UPON
This matter was initially set down for a two (2) day final hearing on 14 and 15 September 2023. Regrettably, the hearing was unable to finish within that time and in the circumstances it was adjourned part-heard to 22 September 2023, at which time the evidence was concluded. Closing submissions were then made by each parties’ counsel on 26 October 2023 at which time judgment was formally reserved.
Throughout the hearing, the father was represented by Ms Meares of counsel and the mother was represented by Mr Graham of counsel.
The father relied upon: an Outline of Case Document filed 13 September 2023; an Amended Initiating Application filed 24 August 2023 (although this was superseded by exhibit 6, which set out his proposed amended final orders, which were further amended in the course of closing submissions); the affidavit of the father filed 24 August 2023; the affidavit of the paternal grandmother Ms D filed 24 August 2023; and the affidavit of the father’s sister, Ms E, filed 21 June 2021.
The mother relied upon: her Outline of Case Document filed 13 September 2023; her Amended Response filed 22 August 2023; the mother’s affidavit filed 22 August 2023; and the affidavit of the maternal grandmother Ms F filed 22 August 2023.
In the course of the hearing, the parties tendered various exhibits, including: a Child-Inclusive Conference Memorandum dated 3 August & 20 October 2021; a Family Report prepared by Ms G dated 28 November 2022; some transcripts of Local Court proceedings in respect of the various criminal charges brought against the father, to which I will turn a little later; the father's criminal history; some audio recordings and various other documents and business records were also tendered. Mr Graham had also prepared written submissions on behalf of the mother which were handed up on the last day of the hearing.
I have read all of this material again for the purposes of arriving at a decision. I do not intend to refer to all of the evidence, nor to try to resolve each and every one of the disputed facts in this case. I will however refer to the evidence and to the disputed facts that I consider to be relevant.
I have had the benefit, in particular, of seeing both parents give their evidence in the witness box. It might fairly be said that neither parent’s evidence was entirely satisfactory. Both of them omitted relevant information and, in particular, in relation to various incidents of family violence, each of them chose in their affidavit material to give the Court a version that was skewed towards what the other parent had done to them, while at the same time downplaying their own actions towards the other parent, including their own violence. In some cases, the violence that one or other parent perpetrated against the other was completely omitted from their own affidavit - in my view this was deliberate from both parents.
Of course it goes without saying that, when parties choose to be less than frank with the Court, it makes the Judge’s role all the more difficult. But unfortunately it is not an uncommon phenomenon. I also accept that given some of the fractious interactions between the parties and, no doubt, some of the high tension at the moment, that each of them may well have made mistakes and gotten things wrong, quite innocently - but nonetheless in a way that makes it all the more challenging for the Court to arrive at what the true facts are.
A particular concern I want to express about the father is that I have before me as exhibit 3 a recording taken by the mother in which he positively asserted a willingness to tell lies to the Police in relation to the mother hurting the children. This is a recording which does the father no credit whatsoever and diminishes in general his veracity and reliability as a witness. The recording was taken by the mother in late 2020.
DETAILED CHRONOLOGY OF EVENTS
Unless otherwise stated, any statement of fact made by me should be regarded as a finding. I am well aware of the relevant standard of proof and, particularly, of the provisions of section 140 of the Evidence Act 1995 (Cth), particularly section 140(2).
I turn then to the Chronology.
The parents
The father was born in 1981. He is presently forty-two (42) years of age. A self-employed tradesman, he works early in the mornings and finishes around 3 pm. He has some flexibility in terms of his employment. He has a girlfriend who lives fairly close by, but they do not apparently live together.
The mother was born in 1988 and is presently thirty-five (35) years of age. She is the full-time carer for the children. She has previously worked as a health care worker, but is currently studying. She had a partner as at the date of the hearing, but her evidence is that he had not met the children.
I have already set out the details as to the dates of birth of each of the children and will not repeat them.
The relationship
It suffices to say that it is common ground that the relationship between the parties fell into serious difficulty when the mother fell pregnant with Y in 2017. To say that the father was unsupportive of the pregnancy would be an understatement. He told the mother in no uncertain terms that he wanted her to “get rid of” the baby and to have an abortion. He reasoned that the parties already had W and X and that, from his perspective, they simply could not afford to have any more children. The mother refused to contemplate having an abortion and this was a source of significant tension and argument between the parties.
It seems that after falling pregnant with Y, the mother began sleeping separately from the father at least some of the time, and perhaps as much as most of the time. There is some dispute about the exact details of the sleeping arrangements and perhaps I do not need to attempt to make a finding as to exactly what occurred there. That the relationship was difficult is obvious enough.
I accept the mother’s evidence that the father was verbally abusive towards her, that he would regularly call her a “fucking bitch” and a “fucking cunt”. He would regularly tell her she was a “lazy cunt”, telling tell her such things as she was “a lazy cunt sitting on the lounge on her fat arse”. The mother said that if she was at home and she could hear the father driving home, she would make sure that she wasn’t sitting down and would simply start cleaning something.
After the mother gave birth to Y and Z, the father’s behaviour remained angry, embittered and resentful. He was equally resentful and angry about the mother falling pregnant with Z as he was about Y. Again, he was telling the mother that she should be having an abortion and again she was refusing.
After the birth of Y, and then Z as well, the father accused the mother of having had those kids - seemingly unilaterally - calling her “a cunt” and saying that she had chosen herself over him and the two (2) older boys. The father was particularly upset when Z was born, telling the mother he had almost forgiven her after Y was born “and now here we are again, you've taken the good life away from the boys”.
These sorts of comments from the father were often made in front of the children. Because of their ongoing negative nature, they caused the mother significant distress and dismay.
The maternal grandmother has provided evidence to the Court, and I accept her evidence and her observations that she personally witnessed the significant strain in the parties’ relationship following the birth of the younger two (2) children. She said she became very uncomfortable about visiting when the father was home and she generally tried to avoid him, because she could see quite clearly his resentment and angry manner expressed towards the mother. I accept her evidence that she witnessed times when the father spoke to the mother in a very disrespectful and humiliating manner and that this was done in front of anyone that was around, including the children. I accept her evidence that she heard the father swear at the mother repeatedly, using such words as “cunt”, “fuck” and the like. She witnessed that the parents were not really on talking terms after the birth of Z in particular.
I accept the maternal grandmother’s evidence that she spoke to the father about her concerns that W might start to mimic some of the father’s behaviours towards the mother, particularly by showing her disrespect. I accept her evidence that she asked the father "Do you think you could talk to [W] and ask him to stop and show [Ms Finlay] some respect?”, and that he replied, “No, I will not. She can show [W] some respect”. He also made reference to the mother’s apparent need to realise that the father “was king” and that the mother needed to learn to do what she was told.
I have before me as exhibit 32 some subpoenaed Police records which indicate that on two (2) occasions Police were called to attend the parents’ home - once in early 2018 and once in late 2018 - that is, after the birth of Y but before the birth of Z. On both occasions, it seems that a third party, probably a neighbour, telephoned to say that they would hear yelling and they were obviously concerned. Police attended on each of these occasions to investigate. The Police found no particular difficulty between the parties and no particular risks that they could discern, but it is obvious that these were but instances of the increasingly high levels of conflict between these parents.
As I have indicated, following the birth of Z, the father continued to behave in the same manner towards the mother. Leading up to Z's birth, I accept that the father told the mother that he wanted her to get an abortion and that she should never have told him that she was pregnant in the first place and that “You shouldn't be having any more fucking kids”. He was unsupportive of the mother’s pregnancy. Leading up to Z’s birth, I accept the mother’s evidence that he said to her that he hoped she bled out and died on the operating table “you cunt”. The father denies saying this to the mother and says that his recollection is that he asked her, “What if something happens and you bleed out?” I prefer the mother’s evidence. It is consistent with the weight of the evidence and the father’s attitude towards the mother and, particularly, his simmering resentment manifested now over many years in respect of these younger children.
I also accept the mother’s evidence that unlike in the case of W and X, with whom the father was actively involved in the children’s care, that he made a deliberate and seemingly callous decision to leave practically all of the parenting of Y and Z to the mother, presumably by way of punishment. He deliberately made the choice to be involved in a very limited way in relation to Y although I do accept that over time Y warmed to him and he warmed to Y and Y started spending increasing amounts of time with him. It seems that some of the father’s attitudes towards Y may have softened.
In relation to Z, the situation was much more complicated. After Z was born, given the father’s ongoing resentment and abuse of her in relation to these “unwanted” pregnancies, the mother seems to have reached a point that she simply did not trust the father to spend time with Z. I broadly accept the father’s allegations that the mother simply did not want him to have anything much to do with Z. It is something of a complicated and rather tragic set of circumstances and it arises as a result of the attitudes and behaviours of both parties, but the fact of the matter is that the father had very limited involvement in Z’s life. It can perhaps be illustrated by the fact that even the paternal grandmother has only met Z twice in her life and, as I understand it, the paternal grandfather has never met Z, nor was the paternal family even invited to Z’s christening. Z, in that sense, is a child who is somewhat different to the other three, in that she has had practically nothing to do with the paternal family.
I should also say at this point that the mother herself is no ‘shrinking violet’. The father accuses her of numerous acts of family violence towards him in the course of the relationship and subsequently and there is little doubt that she, too, perpetrated family violence against him. I accept the thrust of the father’s allegations that the mother on occasion physically pushed him, that she on occasion punched him, that she on occasion did such things as throwing remote controls for the television, etcetera. I also accept the mother’s evidence that on occasions the father physically pushed her, as well as himself engaging in similar minor property damage-type behaviour. This was a relationship, sadly, of mutual perpetration of family violence and the children were exposed to it.
Breakdown of the relationship in 2020
I turn then to 2020, which is really when the relationship between the parties crumbled and the sad sequence of events in this case really began to unravel.
It seems that by early 2020, in the face of the father’s unrelenting hostility in relation to the younger children, but particularly Z, and in the face of the significant conflict between the parents, including at times mutual physical and other types of violence to which I have just referred, that the mother’s mental health began to break down. It seems unsurprising to me that this was the case. She had a background of an admitted mental health disorder. It is certainly apparent on the material before me that she was mentally struggling and, to be fair, it is impossible to be critical of her in this respect, given the toxic nature of the relationship between the parents and particularly the violent nature of their relationship and the father’s ongoing derogatory taunts of her.
It seems that the mother formed the idea, probably wrongly, that the house was infested with cockroaches. The father is critical of her about this and points to it as a matter which demonstrates some compromised mental health on her part. He is probably right at that point in time, but he ignores his own, in my view significant, contribution to her mental health issues.
The parent's relationship was clearly ‘on the rocks’ at that stage and in early 2020, the mother and the children all moved in with the maternal grandmother. The father was thereafter spending some time with the older children and also Y to a lesser extent.
For reasons that are not entirely clear but seem to relate to the maternal grandmother’s home, it seems that in mid-2020 the mother and children moved back in with the father. This was in many ways a very unfortunate development. It is obvious to me, on reading the evidence and from seeing the witnesses in this case, particularly the parents, that the decision by the mother and children to move back into the home was an unfortunate one. The fact of the matter is the parent’s relationship was ambiguous. The mother wanted to reconcile. In my view, she was ‘clinging’ to what was clearly a toxic relationship. The father was much less keen to reconcile; he had already formed some sort of intimate relationship with his current partner. I am not criticising the father about this. It is merely a statement of fact. The practical result is that when the mother and children moved back into the home, the mother was desperately seeking to keep the relationship alive, perhaps for the sake of the children as much as anything else, and the father was obviously ‘caught between a rock and a hard place’, having formed another intimate relationship.
The stage was set for what was to follow.
It is quite clear at this time that the parties were engaged in continued and significant arguments, to which the children were exposed. The mother was an enthusiastic participant in such arguments. Sometimes the father attempted to get away from the situation by going out to the back shed, only to have the mother follow him out there and continue berating him about the nature of the relationship and about whether he was seeing another woman. The parties would seem to have slept in separate bedrooms and the environment within the home was entirely unhealthy for all concerned.
The father says that on occasions, indeed regularly, the mother taunted him about having obtained “a good family lawyer” and how the father was “a white male who apparently had no legal rights” and that she would “get an AVO on him” and generally make his life very difficult, both as to property and parenting matters. I do not accept that the mother engaged in that behaviour with any regularity, but I do accept that there were occasions when the mother would have said such things to him. She was herself very hurt and confused about the nature of the relationship between she and the father and she, too, as I have indicated, had a volatile streak.
In relation to Z, for example, I accept that the mother would tell the father that Z was “not his daughter”. This was said as a way of letting the father know that he had no real parental claim as a father to Z. It was the mother ‘lashing out at him’ in response to the resentment and negativity that he had been meeting out to her in relation to Z. In my view it was not intended as a literal statement that he was not the biological father. He obviously was.
I turn then to the sequence of family violence-related events, criminal charges and subsequent factual matters which have got us to this rather sad and sorry place where we are today.
Mid-2020
A serious incident of family violence occurred at the former matrimonial home in mid-2020. I begin by observing that each party in this respect has given the Court a different account of what occurred. To the extent that the father goes into significant detail as to what he said happened, he nonetheless greatly minimises his own physical violence towards the mother while highlighting and emphasising her violence to him. By exact the same token, the mother has completely glossed over/omitted her own violence to the father and entirely focus on his violence towards her.
The mother’s version appears at paragraphs 59 to 61 of her affidavit and comprise some seven (7) and a bit lines. The father’s version of events runs from paragraphs 49 through to 69 of his affidavit and is, obviously, vastly more detailed, though as I have indicated, he has omitted the critically important negative matters that relate to himself.
I have read each party's affidavit. I have considered the evidence that was provided by the parties to the Local Court, including the findings of a learned Local Court Magistrate. It is impossible to be precise as to exactly what occurred on the night in question, however I am relevantly satisfied of the following matters:
·firstly, that the event occurred late at night when the father was in bed. I accept the father’s evidence that the mother was sleeping in a different bed in a different bedroom on the night in question, rather than the mother’s evidence, which was that they were sharing the same bed;
·it seems that the children were initially asleep although, as will become apparent later, at least some of the children did in fact witness this event and have been traumatised by it;
·things seem to have come to a head when the father started receiving some late night texts from his girlfriend. The mother was immediately heightened. She came into the room desperate to get her hands on the father’s mobile phone. She jumped onto the bed. She was attempting to wrestle the phone off the father and in the course of that she was hitting and scratching his face. In that sense, the mother ‘initiated’ if you like, what was to happen, though what in fact happened does no credit to either party whatsoever;
·it seems that in the course of the struggle, the father rolled over and the mother ended up on the floor. He grabbed her by the wrists and he put his foot on her chest to restrain her. She was struggling to breathe for a brief period, and I accept that the father’s foot would have been at the top of her chest/base of her throat area;
·the mother grabbed the father hard by the testicles, causing him excruciating pain. At that point, the father grabbed her face - and it is possible, though I cannot positively find - that his hand may have been on her throat for a brief period as well. In any event, he was angry, upset and reactive in much the same way as the mother was;
·the father grabbed the mother and I am satisfied that, while she was on all fours on the ground, he deliberately rammed her head into the door approximately three (3) times. Y walked in at around this point and saw what was going on and was upset. The father let the mother go;
·the mother went into the kitchen. It seems that in a fit of pique and anger, the father decided to physically lash out at her. He says in his affidavit that:
I lost my composure and I did something very silly and bad. Her head was bent down over the sink while she was screaming at me and saying that I had given her concussion. Her face was about 10 centimetres from the sink. I was on the other side of the bench from her. I pushed her head face down onto the sink. Her nose hit the sink. It was not very hard, but it hurt her nose. She had a cut on her nose. I went back to bed.
I reject the father's evidence that he did not push the mother very hard. In his fit of pique he used significant force to push her head down into the sink, which is the very reason that she ended up cutting her nose and sustaining bruising. Unfortunately, it is accepted that Y witnessed what the father did and suffered emotional harm as a result. It also emerges from the Family Report interviews that W and X were impacted by this event as well, and I will come to those interviews later.
This was an instance of very high level family violence where both parties were physically violent to the other. The mother would seem to have come out the worse of the two, but perhaps it matters little.
The mother did not want to bring an application for an AVO. She had, however, spoken to her brother about what had happened and it seems, for reasons that I do not understand, that she told her brother that the father had “punched her in the face”. If she did in fact say that, it was plainly not true. It also seems - and I am referring here to the transcript of the Local Court proceedings exhibit 38 - that the mother also told one of the neighbours that on that occasion the father had “punched her in the face”. Again, this is not true.
In any event, Police attended the family home in mid-2020 and the mother at that stage ‘falsely covered for the father’ in terms of her facial injury. She said that the parents had had a struggle over a mobile phone and that in the course of that struggle the father’s elbow had accidentally struck her in the nose. Unsurprisingly, Police were suspicious about her version of events and they told her that they were applying for an AVO in any event.
Put simply, the mother was not honest with Police about what had happened. In my view, her lack of candour with Police arose as a result of a number of matters. Firstly, and perhaps most significantly, the mother wanted to stay in the relationship. She did not want an AVO that might make family life even more difficult than it already was. Secondly, the mother had herself perpetrated quite significant violence against the father, as well as actually instigating the whole altercation. I have little doubt that she didn’t want to get into trouble with Police herself about anything she might have done.
Importantly though, it is apparent from the subpoenaed Police documents that although the mother was ‘covering’ for her injuries arising from the kitchen sink, Police noted that she told them that the father would often call her names and put her down. This was true. Police noted that the mother “appeared as though she was mentally broken by the father”. Though obviously Police were not qualified to make that assessment without having the whole of the evidence before them, I think that what Police did observe was rather prescient. The mother was, to some extent, ‘broken’ as a result of the ongoing significant taunts, resentment and negativity the father had meted out to her for some years.
At this stage, apart from the AVO, no criminal charges were brought, because Police really had no reliable evidence to go off in terms of bringing a criminal charge.
Late 2020
The next significant event of violence or alleged violence occurred a couple of weeks later in late 2020. I am satisfied that the parties did not speak, or barely spoke, in the intervening period; the situation continued to be extremely toxic for all concerned.
2020 was Y's birthday. The father, as was his wont, was being critical of the mother in relation to having had Y at all. It almost beggars belief that he would start an argument about this on the boy’s birthday, but that is what he did. In turn, the mother became angry and was yelling at the father. Then when the father received a text from his girlfriend, the mother was further inflamed. The father told her that the relationship was over and that he was leaving the home that night.
Police seem to have been called to the home on this occasion. Once again, the mother was not asking them for an AVO, and not pursuing an AVO in any way. She denied any physical assault by the father on that day, notwithstanding that in her affidavit she deposed that he had shoved her out the garage door, that she had landed on the ground and that he had then slammed her up against the roller door, telling her, “I wish you were dead. My only regret is I didn't hit you harder”. I am unable to make a positive finding that the father did these things on this occasion although I do accept that Police were called and there was certainly a significant argument between them.
In any event it is common ground that after this event the father moved out to stay with the paternal grandparents at Town H, about forty (40) minutes’ drive away.
Subsequently, the parties reached agreement for the father to spend some time with the children on weekends and during the week; although I should say here that Z was not included as part of that agreement.
Late 2020
The father was going to and from the home for the purpose of collecting various personal items and the parents were still having some ongoing interactions. In late 2020 the parties had yet another argument at the home.
On that day, as referred to earlier (exhibit 3), the father threatened the mother that he was going to “call the Police and tell them that you're fucking mental and that you threatened to kill the kids”. To protect herself, the mother retrieved her mobile phone and then secretly recorded the father, asking him why he would tell the Police these things that were untrue. The father responded by saying such things as “I'm going to tell police you hurt the kids when you didn’t”, justifying such threat by saying that it would be “Just like the lies you made up. One lie is good for another lie”.
Whatever happened on this occasion between the parents, the father did in fact call the Police. He told them the mother had assaulted him. She contacted Police, making cross-allegations that he had assaulted her. Police ended up coming to the home, where they heard loud arguing, mainly the mother, and they found the mother seemingly berating the father in the garage. Notably, on that occasion the mother was wanting Police to “make him be a good father and husband” and to stay in the relationship. Put shortly, she was still not coping with the separation.
The father’s threat to the mother which was recorded by her in exhibit 3 is a matter of great concern as I have indicated earlier. The father was asked about it in the witness box and he said that it was “an empty threat” that he had no intention of carrying out. He was also clear in letting the Court know that the mother was threatening him with false allegations and generally berating him for something like two (2) hours leading up to him making this outburst. I accept that from his perspective the father felt like he was being unduly confronted by the mother and that she was making his life difficult. But equally, I did not detect in the witness box that the father took any real responsibility for what was a serious threat to make to the mother. Mr Graham asked the father how the mother would feel if an AVO was taken out against her on the basis of false allegations by him and he responded that the mother would feel “the same as I did”. I simply did not detect that the father took any real responsibility in relation to this threat.
Late 2020
There was an alleged incident of family violence which occurred in late 2020. The mother’s affidavit originally stated that the event occurred in late 2020, but she amended that date in the witness box. The mother said that the father had verbally abused her in front of the children and then physically assaulted her while she had Z in her arms and that he twisted her arm behind her back and said he was going to break her arm. She said he then threw both of them to the ground and both Z and she hit her heads.
This is a somewhat mysterious allegation in the sense that there was no evidence that I could find anywhere in the subpoenaed exhibits that the mother ever made a Police complaint to this effect - including afterwards when the relationship had well and truly broken down and there was no real prospect of reconciliation.
Given my concerns about the evidence of both parties as I have indicated, I am really unsure as to what happened on this occasion. It is possible that the argument between them relates to a keycard, because the father sent the mother a text in late 2020 (exhibit 29) in which he asked, “Where is my fucking keycard?” as well as saying, “These are my terms. Sell the house now, split it 50/50, share the kids 50/50. If not, you have everything 100/0, including the kids. Your choice”. It may be that the events are entirely unrelated.
I am not able to make a positive finding as to the father perpetrating the violence alleged by the mother, but I certainly consider that the text sent by the father to which I have just referred and which I infer was sent in late 2020 was itself a form of coercive behaviour on his part.
Final AVO
In late 2020, the Local Court made a final AVO. It would seem at that stage that it was a ‘standard’ order. That is to say, it contained the usual conditions. However on an unknown date, but presumably within a month or two on the evidence, the AVO was later amended to include more sweeping ‘no contact’ provisions, subject to the usual family law exceptions.
Late 2020
In late 2020, there seems to have been another event of violence or at least an altercation between the parents which neither party tells me about in their affidavit. Perhaps it is because this event does not paint either of them in a good light. I read about it in the subpoenaed material which was tendered to the Court.
It seems that on this day the parents had yet another argument at the home and that when the father went to leave in his car, the mother jumped in with Z and refused to get out. She would seem to have been sitting in the front passenger seat with no seatbelt and no car seat for Z and it seems that in that situation the father then drove with the mother and Z to the service station, where he went to get some fuel. He then could not pay and accused the mother of having taken the keycard. She seems to have left at some point and gone home. The father went to the Police at Town B to tell them about the mother taking his keycard. Police in turn went to the former matrimonial home and spoke to the mother, who denied taking the keycard. Ultimately, Police seem to have ‘thrown their hands up’ and laid no charges, because they were faced with entirely competing versions of events.
One thing is for certain, however, and that is that the father driving the mother and child in that situation was as reckless, foolish and dangerous as it was for the mother to insist on getting in the car and accompanying the father with Z when he clearly wanted to leave. Again, as I indicate, it does not paint either of these parents in a particularly good light.
Late 2020
In late 2020 the mother and children were going for a walk. They saw the father’s car at his girlfriend’s house. The father saw the mother and told her to, “Fuck off and go home”.
Late 2020
The next major event which occurred in terms of family violence was in late 2020. Like the events of late 2020, the allegations as to what occurred go in both directions. I have had regard to the evidence before me and, again, I have done the best I can to arrive at what I consider to be the true position. Once again, each party is downplaying or minimising their own contribution to what was a clearly rather ugly and unfortunate event.
I am satisfied that on this occasion the parents had been arguing at the former matrimonial home. On this occasion Y had a ‘front row seat’ to the debate. He apparently had defecated into his nappy, but was left in that nappy while the parents were arguing, a rather sad scene. The father left the home for a while, perhaps to ‘cool off’, and he then returned. The mother was upset and angry at him. They were still having relationship difficulties, obviously, and the issue of the father having another girlfriend remained a very sore point.
The father decided that he would start recording the mother on his phone. She became very upset about it. I am satisfied that she went and fetched Z and put her in the front seat of the father’s car, while at the same time grabbing the father’s mobile phone. She wanted to delete the recordings that the father had just been taking of her while she was in an angry state. She also, in my view, wanted to see what was on the father’s phone in terms of messaging between he and his girlfriend.
The mother suggested that the father had in some way taken Z from her through the passenger window of the car, but her version of events made no sense whatsoever and I reject it. I am satisfied that she effectively ‘dumped’ Z on the father so that she could get his mobile phone. Once again she was behaving reactively.
I asked the mother in the witness box why she would leave Z sitting in the passenger seat, apparently on her case ‘in harm’s way’ and I said that it seemed to me that she was more interested in the father’s phone. Her response was that she was “not thinking straight”. I agree.
In any event, having grabbed the father’s phone, the mother then ran out to the back of the property in a great hurry to delete his video of her, as well as to see whatever messages and other information she could read off the phone. Her actions were entirely provocative and entirely inappropriate.
The father chased her into the backyard. He was very upset. Both parties were yelling. The neighbours could hear the fracas.
Once the father got out into the backyard and confronted the mother and was able to get his phone back, a further incident of violence occurred, this time very much instigated by the father. He deposes in his affidavit that as he turned to walk away, the mother reached out and grabbed Z by the back of the shirt and tried to rip her out of the father’s arms really hard and that in doing so the mother “jerked [Z] back”. He deposes that Z nearly fell out of his arms and that he instinctively put his arm out to stop her. He said that the mother lost her footing and fell backwards and hit the fence, at which point he told her “You’ve lost it. That could really have hurt her. If you want her back, you ask for her”.
The mother's evidence is entirely different. I should say that her affidavit completely omits all of the lead-up to the assault in question. Her affidavit in relation to the assault says this:
The applicant had taken [Z] out of my arms by force and grabbed me around the throat and threw me into the fence whilst he was holding [Z]. When I hit the fence, it left an indent.
Neighbours heard a loud bang and one of the neighbours gave evidence in the Local Court that they saw the father push the mother hard into the fence. Indeed it looked like a punch from the perspective of the neighbour. They also saw the mother fall to the ground.
Now, looking at this version of events, one would think that the father might have admitted to what he did, particularly given that a Local Court Magistrate found him guilty of assault in this respect. But the father made no proper admission. His own affidavit was to the effect that the mother was the aggressor in relation to what had occurred in the backyard and that it was all, effectively, an ‘accident’. This is absolute and utter nonsense.
In the witness box the father admitted he did push the mother into the fence. He also admitted in the Local Court proceedings that he had pushed the mother into the fence. I do not understand at all why in his trial affidavit he chose to give a deliberately false, minimising version of what was a serious event of family violence. It demonstrated an extraordinary failure to take responsibility. Not only that, his affidavit attempted to paint the picture that the mother was the aggressor in the backyard and that he was, effectively, doing what he could to protect Z. That is to say, that he was the protective parent. I reject the father’s evidence that the mother attempted to pull Z out of the father’s grasp in the backyard and I am satisfied that the father pushed the mother into the fence hard and that his hand was on her upper chest and base of the throat as she said. It was a serious act of family violence, although, again, as I have indicated, there was some earlier provocation and totally inappropriate behaviour by the mother.
Mother complains to Police
In late 2020, the mother formally made a complaint to Police about the events late 2020, being the first event of very serious family violence to which I referred earlier. It was at that stage that Police charged the father with ‘assault charges’ in respect of the events late 2020. It seems they also charged the father with ‘breaching the AVO’ in late 2020 and ‘common assault’. It also seems that someone, perhaps the Police, contacted the NSW Department of Communities and Justice (“DCJ”) in late 2020 in relation to the event in the backyard.
Father’s altercation with Police in late 2020
In late 2020, the father had an altercation with Police that had nothing to do with the mother and was really just an example of his own capacity to lose his temper.
On this occasion, Police saw the father parked with W and X near the Police station. Police asked him if he was undertaking a changeover and, in front of his own two (2) young children, the father told Police “None of your fucking business”. It was an extraordinary thing for him to say. They asked him where the mother was and he said “Who fucking cares?” - again an extraordinary and totally inappropriate thing to say to the Police. He then left the children and drove off. The children were left standing on the footpath with their belongings and Police standing bemused wondering what was going on.
The mother attended a short time later. She told Police that the father had been messaging her about returning the children early and that she had suggested he do so at the Police station. This must be what had caused the father some angst.
Again, I was troubled by the evidence of the father in relation to this particular event. When asked how the children would have been affected by his actions in front of Police, the father’s very first response was to justify what he had done by saying that the mother always complained to Police whenever there was an alleged breach of AVO. Only upon further reflection did he then properly concede that it would have been “very scary for the children” and that they would have been upset.
The father can in no way blame the mother for ‘losing his cool’ on this occasion.
Children’s ongoing time with the father including attending sports events with him
In his supplementary affidavit which was tendered as exhibit 7, the father deposes that the mother made a threat to him around this time that she was going to “harm [Z] before letting the father have her”. I reject that evidence by the father and do not accept it to be true.
Whatever difficulties the parties were having, and notwithstanding the criminal charges that were by then before the Local Court, the mother did continue to facilitate the father spending time with the older children, particularly for sports. I accept the father’s evidence that he took them to sports events in different towns in late 2020. Notwithstanding the difficulty between the parties, the father was still continuing to have a relationship and spend some time with the children, as is clear enough from the mother making them available to go to sports events, but obviously the tensions between the parties remained and it was a difficult situation.
In late 2020, the father had some difficulty with W’s sports gear, which was apparently playing up. He sent the mother an email on his iPhone which reads:
Because you’re a selfish fuckwit and have kept all my fucking tools now [W]’s [sports gear] is playing up and can’t fix it. Hope you’re fucking happy, you selfish cunt.
Again, entirely inappropriate, demeaning and insulting and an example of the father not being able to maintain his own composure. I am satisfied that on this occasion W (and probably X) were exposed to his frustration and anger with the mother.
Notably, in the witness box the father admitted that on that occasion W’s sports gear had in fact been able to be fixed and that W had even won nearly every event thereafter. Why is that important? Because that piece of the picture was never relayed by the father to the mother. One would think, given his aggressive attack on the mother in relation to the tools, that he might have had the good grace to at least share with her the good news. He did not do so. It seems that the mother discerned the information about W’s success from the children themselves.
Late 2020
Another unfortunate event occurred at W and X’s sports presentation in late 2020.
Both boys are obviously talented at sports and the father has been actively involved in their activities since they were very young. On this occasion, there is a dispute between the parties about what was to occur for the presentation. The father says it had been agreed that the older two boys were to go into his care that day and that he would effectively have them in his care at the presentation and the next day when they were supposed to do some training.
In any event, what occurred was that the children did not go to the father and the father says that the mother had, effectively, changed the arrangements. The mother makes no such admission and in this respect, I prefer the mother’s evidence. But whatever happened, it is common ground that the father did get to the children’s presentation and that he arrived late. I accept the mother’s evidence that the father was in a bad mood at the presentation, saying to the children “Get in the car now or you will never see me again”, and that the children came over to she and the maternal grandfather clearly upset.
What the father did next was leave a voicemail message on the maternal grandmother’s phone, which recording was an exhibit in the proceedings. What he said to the maternal grandmother, an elderly woman, was this:
You and your cunt of a fucking daughter, you fucking lowlife piece of shit.
The recording was played in Court. The father had no choice but to admit that it was his voice on the phone. Perhaps unsurprisingly, his affidavit made no mention of this event. In the witness box he agreed that it was “disgusting behaviour” and he said that he was “appalled by it” and he agreed the maternal grandmother would have been frightened by it.
The father’s anger - taken out on a third party, namely, the maternal grandmother - is notable. I accept the submission by Mr Graham that the father, who was bound by a broad AVO at that stage, was deliberately contacting a third party so as to denigrate, if not threaten the mother, without putting himself within the potential reach of a breach proceeding in respect of the AVO. There was an element of manipulation in the father’s behaviour and it was utterly unacceptable and inappropriate.
Father charged with further AVO breach
It seems that in the ensuing days, the parties were exchanging some text messages. The mother was actively texting the father, despite there being a “no contact” AVO, and he was responding. At some point, it would seem that the mother no longer wanted to continue the communication, but the father continued to send messages to her and she ended up going to Police, who then charged the father with breaching the AVO again.
To be fair, despite the “no contact” provision both parties had been contacting each other, and both had been offensive towards the other on occasion: see exhibit 38.
Complaints about the mother to the NSW child welfare authority
In late 2020 it appears that somebody contacted the DCJ - alleging that the mother was not properly supervising the children. A complaint was made that apparently a couple of months earlier, Y had been left in the middle of the road while the mother was inside the house watching TV. It was also alleged that in late 2020, the mother had allegedly left Z in the pram in the middle of the road while she was standing on the footpath verbally abusing someone - presumably the father’s partner or perhaps the father - apparently for several minutes. The mother denied all of these allegations. It was also alleged that the children were riding pushbikes around the neighbourhood with no helmets. Notably, the caller expressed the view to the DCJ that the victim of family violence was the father, not the mother.
I am not satisfied that the mother engaged in any of these reported behaviours. It would seem that whoever made the complaint to the DCJ was ‘throwing fuel onto the fire’ in what was clearly a difficult situation where the father was by that stage facing some legal difficulties in respect of family violence issues.
January 2021: the co-parenting completely breaks down
In January 2021, the mother emailed the father about the oldest two (2) boys going back to school and asked him to contribute $284 for various school-related items. The mother also emailed the father about getting the children some sports coaching and it seemed she was happy for him to collect the boys the next day. However, when the next day came around the father made the mother sit in the car for about an hour at the public venue where they were effecting changeover, namely ‘J Venue’ on K Street. The father gave evidence that the children did not want to go back to the mother, hence the delay.
In January 2021 the father texted the maternal grandfather, seemingly angry again, telling him, “You can tell [Ms Finlay] to make the most of her power trip. Cause when my new lawyers my parents are paying for [sic] she’ll have to ask me for permission to see the children. [Z] too”. The father agreed that he sent this message to the maternal grandfather, but said that it was in response to the mother threatening him in relation to having her own lawyers that the maternal grandmother was paying for.
It is obvious enough that the father’s message to the mother was a threatening type of message, although the father did not accept that it was. Once again, there was an element of manipulation here in that the father was contacting extended family of the mother, rather than the mother herself.
It seems that in January 2021, given some of the difficulties with handovers and the ongoing tension and acrimony between the parties and having regard also to the family violence charges and issues, the mother decided that the father’s time with the children needed to be stopped or suspended for a period. On that day she emailed the father to say that she could not send the boys to him. The father texted her in response to say “Fine, be a fuckwit. Don't contact me. I'm not paying child support. You can have the kids. Fuck you”.
In January 2021, the father attended the maternal grandfather's home to collect the children. The maternal grandfather told him that the children were not there. The father became angry and left. A short time later, clearly seething, he rang the maternal grandfather back. According to what the maternal grandfather told Police, the father allegedly told the maternal grandfather “I’ve done nothing wrong. If I can't see my boys, I will fucking bash her. I know she’s your daughter, but I don’t give a fuck and I've got the keys to the front door. I will give them to someone else and they can bash her”. The grandfather asked “What if they kill her?” to which the father allegedly responded “I don't give a fuck. It’s yours and the maternal grandmother’s fault how you brought her up”. I should be clear to say that it is alleged that the father said these things to the maternal grandfather and that that was the content of the conversation.
The maternal grandfather passed away some time after this event and obviously he could not give evidence at the hearing. But what is apparent is that he did call the mother and that she repeats a similar, though somewhat different version of events at paragraph 77 of her affidavit when she says that:
My father relayed the conversation to me and said the applicant had said words to the effect of, “I will kill her (meaning me) I don't care if I go to jail. I will get a contract out on her. I don’t fucking care. I will burn down the house with all the cunts in it.”
The mother’s version is not the same as what the maternal grandfather told Police. What is clear, though, is that the essential thrust of each version is that the father was threatening the life of the mother.
Now, to be clear, it was not positively put to the father in the witness box that he had said such things to the maternal grandfather. And, as I have indicated, the maternal grandfather obviously could not give evidence. It is not possible for me to positively find in such circumstances that the father made a death threat; however, I consider that there is a real likelihood that he did.
Perhaps more significantly, I consider that the mother honestly and reasonably believed that he had made such a threat. This would be consistent with the fact that the maternal grandfather contacted the mother promptly, as well as himself going to the Police to apparently recount to them what he said was his version of events.
The mother had her then solicitor, Mr L, write to the father raising her concerns about the future care of the children.
Father charged with another breach of AVO
In early 2021 the father emailed the mother to say (exhibit 19):
This is a huge risk contacting you. I’m sorry for what I caused. I would like to transfer some money to help pay for the kid’s school stuff. I need your bank details. I’m so sorry for my behaviour.
To be fair, this message was the father attempting to make amends for something, although it’s not entirely clear what he was apologising for, given the substantial extent of his denials and non-admissions in relation to family violence.
But this ‘olive branch’ extended by the father was, in any event, rejected by the mother. She went to the Police to complain that the father had contacted her. He was then charged with another breach of the “no contact” AVO. I pause here to say that this was, really, somewhat ‘mean’ on the mother's part. I cannot imagine a less offensive message from the father than to apologise to her and offer to send her money. Nonetheless, it was a breach of the AVO.
Mother’s concerns communicated to the children
I am satisfied that the mother was genuinely concerned about what she perceived to be a death threat that had been made by the father. I am also satisfied that she either told the older boys about it or, at the very least, that she had discussions or aired concerns about it in their presence. I accept the father’s evidence that in early 2021 he attended at the school and that X was crying and told him “Mum told me that you're going to try to kill me”. In response, the father called the mother “a fucking cunt”. Really, another rather sad experience for X.
The mother denied in the witness box that she had talked to the children about any death threat by the father, but I accept the father’s evidence and, as I have indicated, I am satisfied that she made them aware of it one way or the other as indicated. That she did so would be consistent with her own fear, as well as being broadly consistent with those stated fears as set out in paragraphs 115, 121 and 123 of the Family Report (exhibit 2).
Local Court proceedings
Early 2021 was the first tranche of the Local Court proceedings in relation to the father’s various charges of assault and breaches of AVO. The father effectively pleaded guilty to all of the charges, except that he denied the facts in relation to one charge in mid-2020 and he denied any criminality on one date in late 2020. The matter did not conclude on the day. (The learned Magistrate ultimately heard evidence from the mother, the next door neighbours and the father.)
Another alleged threat
I accept the mother’s evidence that in early 2021, the late maternal grandfather told her that the father had said that he was going to harm himself unless he could see the mother and children again.
To be clear, the allegation in question, that is the suicide threat, was not actually positively put to the father in the witness box. And so, in my view, it is not possible for me to make a positive finding about it, save that, again, I accept that the mother honestly and reasonably believed that the father had done so.
The mother collected the father from the paternal grandparents’ house and took him out with the children where they got a pizza and there was some discussions between the boys and the father.
It seems to me that this was the last occasion when the father got to spend time with the children. I accept that from the mother’s perspective, the visit occurred because she was concerned as to the father’s mental health. He had not seen the children in some months and, clearly, was also facing various criminal proceedings in the Local Court. But equally, I consider that it is also likely that the mother was still open to some form of reconciliation with the father.
In any event, this was the last time the father saw the children.
The mother was open to the father spending time with the children, provided that it was supervised and that he provided a clear drug test; in this respect she was concerned about the father’s use of illicit substances.
The father was not seeing the children. He had provided a clear urine test in relation to drugs, but the mother was wanting a hair strand test, as well as supervision and guarantees that the father wouldn’t keep the children if he had them. It seems that the parties were at something of an impasse.
Breach of AVO mid-2021 / father ends up in custody
Against that unhappy backdrop, the parties had another unfortunate exchange in mid-2021 at the sports field.
On this occasion the mother was at sports with the maternal grandfather, X, W and Y. I should record here that the father was on bail at that time in respect of the various criminal charges which he was facing in the Local Court. On this occasion, despite being on bail and despite the “no contact” AVO, the father called out to the mother, asking why she wasn’t speaking to him. He then approached the maternal grandfather, who was standing with W at the canteen and asked W why W was not talking to him and asking him whether the mother was preventing them from speaking. Obviously, this would have been embarrassing and confronting for W, who found himself right in the middle of the family dispute.
When the mother went to leave the oval with the children, the father foolishly decided to cut across their path so that he ended up right in front of the mother. Y, still only very young, called out to the father who then approached them. The mother told the children “Let's wait until dad goes”. She was trying to de-escalate the situation. A third party then asked the mother if she was okay and she said “no” and that it was her ex-husband and that there were “domestic violence issues”. Again, no doubt, the children were exposed to this comment.
The father turned to the mother and said “fucking domestic violence issues? You're the one that fucking bashed me. You fucking think you’re entitled”. On any view, this was an avoidable and flagrant breach of the AVO, as well as a breach of the father’s bail conditions.
The father's affidavit at 113 deposes in relation to this event as follows:
There were two other occasions I breached the AVO. Once was when it was alleged that I spoke to [Ms Finlay] at the [sports] grounds. I was watching [X] play [sports] and I was talking to my friend. I did not want to fight it, so I pled guilty.
The father’s version paints himself as an entirely innocent victim being unfairly prosecuted by the mother and Police. His problem is that it is complete and utter nonsense. The father did exactly as I have indicated; that is to say, he tried to engage the mother verbally, as well as then cutting her off and ensuring that they came into contact with each other. Again, I find it extraordinary that the father adopted such a minimising - if not outright misleading - approach to giving evidence in this matter.
The practical effect of this particular event was that the father ended up being charged with breaching the AVO again. This is hardly a surprise, but this time around, because he was also in breach of bail, he ended up in custody for two (2) weeks.
This should have been a salutary and significant lesson to him that, no matter what the provocation and no matter what the mother did, the father needed to comply with Local Court orders. As will be seen, he did not do so.
Local Court proceedings are concluded & findings made
In late 2021, the learned Local Court Magistrate handed down judgment in relation to the father’s criminal charges.
Essentially:
·in relation to the assault occasioning bodily harm in mid-2020, the common assault and the breach of AVO in late 2020, the father was convicted and sentenced to a Community Corrections Order;
·in relation to the breach of AVO by contacting the mother in late 2020, he was fined;
·in relation to the breach of AVO where he offered to pay the mother some money, he was convicted and given no penalty; and
·in relation to the breach of AVO at the sports ground in mid-2021, he was convicted and fined.
It is apparent from the sentencing remarks that the learned Magistrate clearly took the view, and was satisfied to the requisite criminal standard, that the father had pushed the mother into the fence in late 2020 - contrary to the father’s trial affidavit - and that he had used some force in pushing the mother's head into the sink in mid-2020, or more force than he was willing to admit to.
Child-Inclusive Conference
Notwithstanding the findings of the learned Magistrate and the fact that the father had, obviously, been physically abusive to the mother on occasions, in his Child-Inclusive Conference interview on 20 October 2021 the father falsely denied ever being verbally abusive towards the mother or having used physical force against her. This was notwithstanding that the father well knew that he had engaged in family violence and, indeed, the children had clearly been exposed to some family violence. So much is apparent from what is set out in the children’s interviews.
Interim hearing on 16 November 2021
On 16 November 2021 there was an interim hearing before a Senior Judicial Registrar. The upshot was that the children were ordered to live with the mother, she was to have sole parental responsibility for the children, and the father was to spend no time with them. In a sense, the ‘die was cast’ pending the final hearing.
Father breaches AVO in late 2022
In the early hours of late 2022, the father breached the AVO again - an event that causes this Court significant concern. It is an event the father did not mention in his trial affidavit. Indeed, it was only dealt with in his supplementary affidavit tendered as exhibit 7.
In her affidavit the mother deposes that at 1.00 am in 2022, her garage security camera picked the father up on her driveway. He had his face covered with his shirt. He proceeded to walk down the side of the house, but was not successful as a fence has been erected there since separation. He could then be seen leaving the property. The children’s bedrooms were located on the side of the house where he had attempted to go down.
The mother says she discovered the footage on her camera the next day and she went to Police. She also saw the father drive past the house in his car that same day, notwithstanding that the father was not to go within one hundred (100) metres of the home.
The father gives an interesting account as to what happened. He accepts that he went to the home on the night in question. By way of context, he says that he had had a couple of beers at the pub in the afternoon. He says that later on, when he was drinking at the M Hotel with a friend “Mr N” (who was not called as a witness), that he had had half of his first beer before:
10.…[A] young lad asked me “Do you have a little […] boy?” I said, “Yes, why is that?” He said, "Do you know [Mr O]?” I said, “No, I don’t”. He said to me, “My mate’s [a drug] addict and we just went to your house and seen your little boy on the front lawn. We bought [drugs] of [Mr O] [sic] at your house while your son was running around on the lawn”. I asked them where the house is and they said [P Street]. I finished my beer. It was about 7.00 pm on Saturday night and I got a taxi to [Ms Q]’s house.
[For the record, “Ms Q” in the father’s girlfriend].
I went and laid on the lounge and went to bed at 10 pm. I woke up at 12.50pm and had been thinking about it all night, so I went for a walk and I went to [Ms Finlay]'s house. I wanted to make sure that everything looked safe because my children were there and I was worried after being told about the [drugs] being sold at the house.
11.I told police about this and the arresting officer. The Police officer said to me, “We will investigate it”. I chose not to give a statement in relation to the contravene Apprehended Domestic Violence Order and I pled guilty and I received a Community Corrections Order…
The father’s affidavit goes on to say that he has complied with the conditions of the order.
So the father gives an account which, once again, paints him as something of an innocent victim, a concerned father looking out for his children.
But is it true? Mr Graham on behalf of the mother contends that the father's version is a complete concoction. Who was this third party who came up to the father? How did this person know that the father happened to live or formerly live at the former matrimonial home? Why would this person tell the father about his friend being an addict?
Is the story in any way plausible? It all seems rather far-fetched. I do not accept any of it. I consider the most likely scenario is that the father was drinking, that the father became upset about what was going on about not seeing the children and that he decided to go off ‘on a frolic of his own’. In making that finding, I am aware that later in the month the father - or somebody in his orbit - made a complaint to the DCJ about Mr O being involved in drugs.
But that is neither here nor there in the grand scheme of the case. It is true that the mother was in a relationship with Mr O for some months in 2022, but they are not in a relationship any longer.
Even if the father’s evidence was correct and even if this unnamed third party had said this to him about Mr O, what possible good did the father think was going to happen in the early hours of the morning? There were proper ways for him to go about having this matter explored. Turning up at the house and wandering about in the early hours of the morning was taking the AVO and ‘throwing it to the four winds’. The father’s behaviour showed a serious disrespect and disregard for the law and for the seriousness of Court orders. And this particularly troubles me, given that the father had spent two (2) weeks in custody, that he would put himself in that position again.
Father opposes extension of AVO / sends inappropriate messages to the mother’s solicitor
Police later attempted to have the AVO extended for a period of four (4) years and, in response, the father wrote a letter opposing the application which was tendered as exhibit 8.
The letter is dated early 2023. I will touch on its contents a little later, but it suffices to say that it was a self-serving letter which effectively portrays the father entirely as the victim.
In the shadow of the final hearing of this proceeding on 8 May 2023 at 2.14 pm, the father emailed the mother’s solicitor to say this (see exhibits 16 & 17):
Sell the house. Give me 200K. I will give her 100 per cent custody. She agrees to me not paying child support ever. They will never see me again.
At 4.59 pm the same day, he emailed the mother’s solicitor to say:
If she agrees, she can change her name back to […]. My family don’t want such a low life sharing our last name and I will sign the paperwork so she can change the kids’ name to […], as well.
The father sent these messages in anger, but they are very troubling and highly demeaning messages.
In mid-2023 the AVO protecting the mother was extended to mid-2024.
PARENTING PROCEEDINGS – THE LAW
I turn then to the law in relation to parenting proceedings.
In making a decision about the future parenting of children, I am aware that the best interests of the children is the paramount consideration: section 60CA Family Law Act 1975 (Cwlth) (“the Act”). I am aware of the objects and principles of the Act set out in section 60B and of the relevant “best interests considerations” prescribed in section 60CC. I am aware of the provisions relating to parental responsibility and that each parent has parental responsibility subject to Court orders: section 61C. I am also aware that the interim order allocating sole parental responsibility to the mother in this case must be disregarded in arriving at a decision about parental responsibility. I am familiar with section 61DA of the Act, as well as the statutory pathway prescribed in section 65DAA of the Act.
In relation to risk, I accept that the Court cannot make orders which expose children to an unacceptable risk of harm, be it physical or psychological risk. I am familiar with the definition of “family violence” in section 4AB of the Act. I am well aware that risk is a central component in this case, particularly given the nature of the relief sought by the mother and given the nature of the case that she runs against the father.
I am also familiar with section 68B of the Act in relation to injunctions for the personal protection of children or parents and that any such injunction needs to be “appropriate”.
I propose to address the “best interests considerations” in a broadly holistic way. The fact of the matter is that most or many of the statutory considerations overlap and it is an artificial exercise to divide the evidence up into each individual consideration. I propose, however, to discuss all considerations to the extent that is necessary.
BEST INTERESTS
In relation to the primary considerations, I accept that the Court must consider the benefit to the children of having a meaningful relationship with both parents.
This case is a somewhat unusual one in that the father clearly has had a meaningful relationship with W and X. Indeed, he was fairly heavily involved in their lives up until the time that he finally moved out of the home in September 2020. He was involved in Y's life to a much lesser extent, though probably to an extent that would be regarded by Y as meaningful, but his involvement with Z has been practically zero. Any relationship that Z has with him is going to have to be formed ‘from scratch’ in circumstances where there are many difficulties that will impact on the formation and sustenance of such a relationship.
Of course, making a “no time” order is a very serious matter, because in a practical sense, children lose a family member, a very important family member in the form of a parent. This can impact children’s sense of identity and lead to a raft of other problems down the track, such as concerns about self-esteem and perhaps even questions later on as to whether the child should go looking for the absent parent and whether they might potentially idealise that absent parent in ways that are not helpful. As a generic statement therefore, there is obviously some benefit to the children having a meaningful relationship with the father - but the benefit of a meaningful relationship has to be weighed against the context of all of the other risks and difficulties which arise in the context of section 60CC.
I should also say here that my prime focus in these “best interests considerations” relates to the father’s relationship with the children, rather than the mother’s. This is the simple reality. I take that approach because on either party’s case the mother will be the primary carer of the children - or, on her case, the exclusive carer. So in that sense, going forward, her relationship with the children is ‘locked in’ whereas the father’s relationship at this stage, is not.
I turn then to what is really the gravamen of the case, which, in my view, is the question of risk of harm to the children. This is associated not only with family violence, but also with “attitudes to parenting” (section 60CC(3)(i)), “capacity to parent” (section 60CC(3)(f)); as well as being interrelated with the risk of future proceedings and the harm to the children if the proceedings end up back before the Court (section 60CC(3)(l)).
Some “non-issues”
I will start with a few issues that I regard, essentially, as “non-issues”.
Firstly, the father used to use illicit substances during the relationship. There is some dispute about how much he used. He would have the Court believe that he was using on a fairly occasional basis and the mother would have the Court believe that he was using very regularly. In all likelihood, the truth is in the middle. I do however accept the mother's evidence that the father was procuring illicit substances.
The father's evidence is that he stopped using illicit substances in early 2021 and provided a clean urinalysis in early 2021: see exhibit 37.
I do not consider that illicit substances by and of itself, or in combination with any of the other matters referred to in these reasons, gives rise to any unacceptable risk of harm if the father were to spend time with the children. I consider that such risks are quite manageable by way of injunctions under section 68B.
In relation to alcohol abuse, the mother says the father was a heavy drinker. It is true that the father has a ‘driving under the influence’ conviction dating back to 2005. It is also true that on two (2) separate occasions in 2008 the father made a nuisance of himself at a pub by becoming somewhat intoxicated and generally being rude and aggressive. But these events occurred many years ago now. And I should add that, according to exhibits 20 and 21, the father's blood and liver function tests, do not indicate any serious issue with alcohol at least as at August and September 2023.
As with illicit substances, I take the view that the risks associated with alcohol can be managed by injunctions.
Allegations are made about excessive physical discipline. Each parent accuses the other of excessively physically disciplining the children. This allegation was not really explored in any serious way at the hearing. The high water mark of this evidence against the father is that W told the Family Report writer that the father used to hit him on the back and the bottom with an object - some sort of a plastic object as I understand it - and that it stung. The father admitted doing so, but said he only ever hit W on the bottom and not on the back. I do not consider that this matter gives rise to an unacceptable risk and I consider again that a restraint can satisfactorily deal with those matters.
The real issues
I turn then to the issue of family violence, about which much was said in this case and much of the submissions and evidence were focused around.
As I have indicated, there is little doubt in this case that the mother perpetrated physical family violence against the father. There is no doubt, as I have indicated, that the mother has demonstrated quite significant volatility of mood and particularly in the period from 2020 onwards in the context of the relationship breaking down. I consider that issues relating to family violence perpetrated by the mother in that context can be dealt with adequately by way of injunctions. In this respect the father does not run a risk case against the mother per se. Likewise, in relation to the mother’s mental health, I should record that although the father raises concerns about it, he does not run a risk case in that respect per se.
I return then to the issue of family violence perpetrated by the father.
I reiterate that I accept the mother’s evidence that he was engaging in repeated derogatory taunts against her over a number of years since her pregnancy with Y and continuing on after her pregnancy and subsequent birth of Z. His conduct in this respect was longstanding. His conduct was demeaning. His conduct ‘brought the mother down’, in the sense that it eroded and chewed away at her self-esteem. The children were also willingly and frequently exposed by the father to such derogatory and aggressive put-downs. I regard the father’s intense antipathy and negativity in this respect towards the mother as being a very serious matter.
The father also engaged in physical violence against the mother, as I have indicated earlier, which was inherently serious, albeit that I accept that there was some context to what occurred in each case.
I am greatly troubled about the risk of psychological harm to the children in going back to see the father and resuming a relationship with him. It is a difficult matter. There has been a serious impact upon them as a result of the family violence which the father, in particular, has perpetrated.
W told the author of the Child-Inclusive Conference Memorandum that in his observation the father was “rude”. He also said he had seen the mother with injuries after the event of mid-2020 and that he felt bad, because of how hurt his mother was. He was also scared that the father might take the mother away from him.
X was more ambivalent. Asked if the father was important, it was clear that he was ‘stuck’ as it were. He said that the father was “not really important”, but, equally, that X was “kind of sad” that he had not seen him for a long time. X wanted his parents back together. He remembered “yelling” between them, but notably he remembered that the father was the one swearing.
The picture that emerges from the CIC Memorandum is that the older children were ambivalent, if not resistant, to seeing the father and that they were somewhat apprehensive about seeing him.
In the Family Report interviews, the children’s experiences were further explored. W said that he remembered the parents fighting at night when he was in bed. He said the father was frequently violent to the mother as he saw her with bruising the next day. He witnessed the sink event of mid-2020. He said that he was “scared” to see the father in case he was “mean to them or something”. He did not feel close to his father any more, due to the family violence. He said that his message for the Judge was “I don’t want to see my Dad”.
X is described by family members as being “quiet [X]”; that is to say he is the boy who sits and watches, rather than being as much ‘on the front foot’ as W. X gave a particularly harrowing interview to the report writer. In his interview at paragraph 173, the report writer says this:
[X] started to sob as he recalled [Mr Finlay] “hurting” [Ms Finlay]. [X] did not report this to anyone. The report writer comforted and empathised with [X] and moved onto other areas, so as to limit further distress.
It is obvious that X was deeply impacted by what he witnessed.
In her evidence, the report writer was very clear in saying that the children’s experiences within the home needed to be respected and needed to be validated. She said that based on the childrens’ subjective experiences, the children needed family therapy before they spent any time with the father at all. She thought this was so even if there was no unacceptable risk of harm. She said that the father should only spend time with the children if the therapist said that it was in order to do so.
If time was to occur between the father and the children, the report writer raised the prospect of an interim order being made. She was concerned that even strictly supervised time may not work, as the children needed to have their own concerns acknowledged. The report writer said that the father needed to demonstrate that:
·he had taken responsibility for the violence he perpetrated; and
·that he needed to show that he had made changes in his life, particularly since undertaking the R Course, to which I will turn now.
In August 2021, the father completed a ten (10) week R Course. He subsequently attended the course, apparently at their invitation, for another ten (10) weeks or so. The course covered such topics as types of domestic violence; the cycle of abuse; responsibility and accountability; family of origin; power and control; feelings and self-care; and relationships.
Given the family violence which the father perpetrated against the mother in this case, he has demonstrated to this Court a distinct lack of taking responsibility. That is not to say that the mother is without fault. I have already set out her physical abuse of him and the context to the events in particular of mid and late 2020 - but the problem for the father is he is not taking responsibility for what he did.
The report writer was particularly concerned about the father taking responsibility, particularly in the context of what are the children’s subjective experiences. In that respect for example, noting W’s observation about seeing bruises on the mother, the fact of the matter is that the father needs to:
·take responsibility and to be able to demonstrate to the children that he has caused harm;
·that he acknowledges it; and
·that he is willing to change and to support them, as well as support the mother.
On the evidence before me, I am far from convinced that the father is in any position to do any of these things. There are a number of difficulties that the father has.
For example, as I have indicated, he downplays the violence of which he was convicted in mid-2020. He downplays the violence of which he was convicted in late 2020. In mid-2023, his emails to the mother’s solicitors, whether sent in anger or not, demonstrate an inability to control his emotions and a desire to put the children ‘in the middle’. The suggestion that his family did not want to share the mother’s surname, given that she was such a “low life”, is exactly the sort of demeaning, critical, damaging behaviour which he subjected the mother to for years and which has seriously impacted on her. It has also seriously impacted on the children.
The father’s capacity to admit what he has done and to acknowledge the harm that he has caused is limited at best.
Does he have capacity to change his behaviour and to support the mother as a parent and to work with her for the benefit of the children? That is a very difficult question to answer in the affirmative. He, in my view, bears significant animosity and outright resentment towards the mother. His breach of the AVO in late 2022 by turning up at the mother’s house, plainly contrary to the orders of the Local Court, reflects very poorly on his capacity to manage his emotions. In the same way, the events of mid-2021 reflect on that incapacity as well.
And the problem in all of this is that the children need to be protected from the intense negativity that the father feels towards the mother, which has been reflected by the family violence and, in fact perhaps most significantly, the derogatory taunts over many years to which the mother has been subject and the children have been exposed.
In my view, the father does not at this time demonstrate a real capacity to empathise with the children and to acknowledge what he has done, not just since separation, but over many years before. I am also troubled about the risk of further denigration by the father of the mother. The risks run both ways, to be fair, but I am troubled that the father could seriously de-stabilise and undermine the children by denigrating the mother to them and by generally portraying her as someone who has sought to cut them out of his life.
I am concerned about the sheer level of conflict between these two (2) parents and the lack of trust between them.
I am concerned about the fear that the mother has of the father which, in my view, is reasonably based in relation to the alleged threats made to the maternal grandfather, to which I have referred.
In the witness box, the father admitted that the mother was afraid of him or, perhaps to put it another way, he accepted that the mother was afraid of him. The mother says in her evidence that she is afraid of him. It is apparent that she has sought mental health support and that she continues to seek such support for her anxiety and depression. She takes anti-depressants and anti-anxiety medication, as is apparent from exhibits 34 and 35. She has had the locks changed at the home and the security camera installed, which was done by way of her engaging with a family violence service.
The mother is genuinely - and given what she was told by the maternal grandfather, reasonably - fearful that the father in his anger might ‘lash out’ in some way to harm her and possibly the children.
I am troubled by the fact that the father holds such resentment and negativity in relation to the youngest children. It is not uncommon in this Court, particularly in high conflict cases, to see a situation where a party, usually a mother in my experience, says in her affidavit that the father “wanted to abort” one or other of the children. Such references are, usually, really unfortunate, because they only create problems and do little to assist the Court. Often they are an “own goal” for the person making the allegation, because the father has long since adjusted to the idea of the child being alive and has formed a relationship with the child.
But in this case, the father ‘maintained the rage’ and has continued to maintain a resentment against the mother for these very issues ever since she was pregnant with Y. Indeed, perhaps alarmingly, the father has spoken to the oldest two children about such matters, telling them that the mother was “selfish” for having had Y and Z, and telling X and W that that is why, that is the family generally, “have nothing” (financially). In a Court in which high level conflict and dysfunction are commonplace, this is one of the most extraordinary things I have ever read. It is extraordinary that the father would bring X and W into adult issues relating to the birth of their own siblings, suggesting that they should not have come into the world. It is emotional abuse at a very high level. The father admitted in the witness box that it was a terrible thing to say and a terrible thing that he involved the children in the parenting matters.
The fact is that these children have been psychologically involved in traumatic and damaging interactions between the parents, whether it is: the family violence to which they have been subjected and exposed; the mother letting the children know, as I have indicated, about the death threat that she believes the father made; or the father telling the two (2) oldest children that, in a perfect world, the two (2) youngest children would not be here.
It is difficult to imagine the trauma that could be visited on these children by these behaviours. I also accept that the father has involved the older boys in the dispute by disparaging the mother and telling them that because the mother was not letting them go to sports events, he may as well sell their sports gear. The father explained that the sports gear deteriorate over time. This may well be true, but the fact is that he wanted to let them know that selling them was all the mother's fault.
These boys are going to be very much in harm’s way emotionally and psychologically if they have a relationship with both parents in the current environment. I have no doubt about that. When he saw the father drive past in mid-2023, W’s own reaction was to raise his middle finger at the father and tell him to “fuck off”. Again, I reiterate that the family report writer was very clear in her evidence that the children need family therapy before any time with the father could begin, whether or not the Court made a finding of unacceptable risk.
If I were to order that the children spend time with the father and that they have effectively have a relationship with both parents, I consider that they will be very much in harm’s way psychologically. I am concerned about the father’s pathological hatred of the mother, which I consider to be very much ever-present. I am also concerned about the possibility that the children will continue to be caught up and drawn up in parental issues, which is emotionally toxic for them.
Supervision?
It is true that I could order supervised time to ameliorate these problems.
There is nothing to stop the father spending time with the children at C Contact Service, for example, save that it clearly is not a long-term solution. Neither parent wants a long-term supervised order and the jurisprudence of the Full Court of the Family Court of Australia is quite clear that in the usual course, long-term supervision is not in the best interest of children. In the case of Z, she does not even really know her father. In this case, that is also something of ‘an elephant in the room’ as well.
What about having the father's family act as supervisors? Can such an arrangement be rendered emotionally safe?
I begin by observing that I accept the report writer’s evidence that these children need therapy before any form of a relationship with the father can commence. So the answer, in a nutshell, is “no”.
However, for completeness I make these observations. The paternal grandmother is seventy-eight (78) years old. I consider her to be an honest and essentially decent person. I make no criticism of her. She is, however, an elderly lady with quite significant health issues and, in my view, it would be entirely unreasonable and inappropriate to put her in the burdensome position of having to police her own son’s interaction with her grandchildren.
Asked in the witness box what she would do if the father “bad-mouthed the mother”, she said she would intervene to protect the children, but quickly added that she would be concerned if either parent denigrated them, not just the father. Asked why in that scenario she would not just correct the father’s behaviour and take the children home (to the mother), she assured the Court that the father was “a changed person” and said that she would “need to check with the father and see what the problem was” before committing to any suggestion that she would take the children home.
In the case of the father’s sister Ms E, she is a 39-year-old health care worker. Her children are known to these children, though not really to Z. She has some capacity to assist. She has had some interaction with the children. I accept her evidence that she is a mandatory reporter in her role and has a ‘Working With Children’ Check. She was quite clear that she wanted to do the right thing and I accept her intentions are good. She said she wanted a clear set of rules and that she was willing to follow those rules.
She has some understanding of the impacts on children of family violence, but like the paternal grandmother she is in a position where she would be required to police her own brother in interactions with her nephews and niece. Her own involvement with Z has been very limited indeed.
It seems that the mother asked the father’s sister not to contact her any more, so that the relationship between them ended. In the Family Report, the father’s sister referred to the father as being “a softie” who would never hurt the children and this troubles me to some extent, because it highlights the very difficult position that family members find themselves in when they are called upon to supervise.
I accept that the mother does not trust the paternal grandmother or the paternal aunt and, of course, against all of this, I have to take into account the father’s own words in his message to the mother of mid-2023 that “My family don't want such a low life sharing our last name and I will sign the paperwork so she can change the kids last name to […], as well”.
The father’s family clearly think there should be a fifty-fifty care arrangement in place. Indeed, the father’s sister said as much in the witness box.
I do not consider it appropriate in this case that the paternal aunt or the paternal grandmother supervise the father’s time. I consider they would be in a hopeless conflict of interest. I consider that they could not be sufficiently protective because of that conflict. I consider that this is a case which falls within the category of case identified by the Full Court in Bieganski (1993) 16 Fam LR 353 where it simply is not appropriate for family members to supervise.
More fundamentally, where is supervision going in any event? Supervision should be a stepping stone to unsupervised time. Unsupervised time is what the father wants and, ultimately, obviously in an ideal world where the children were not at risk of harm, this is the sort of result the Court would be looking to as well. I do not see a pathway to unsupervised time at this stage. I simply do not see one on this evidence. These children will be ‘in the crosshairs’ of an intense family law dispute between these parents the moment that they have to go to see the father.
Long-term supervision is not appropriate. Supervision by a Contact Centre is not what anyone wants, nor is it in the children’s best interests. The father’s family are not sufficiently protective despite their best intentions. And the Court cannot place the children in that situation, which I consider would be, for the record and to avoid doubt, an unacceptable risk of psychological harm if I were to put in place such an order.
The problems relating to family supervision are highlighted further by the fact of the father’s breaches of AVO, most particularly the late 2022 breach. The father has shown a lack of respect for AVOs.
The father’s letter to the learned Magistrate, tendered as exhibit 8, is further evidence which is demonstrative of the risk. His statement therein was that he breached the AVO in late 2022 by “walking past the house” after he had been informed about drug use by the mother’s boyfriend. He simply reiterates his version of events, which evidence I do not accept. His letter says “the system is biased”, that there is no need for an AVO. He minimises his actions in going to the mother’s home in the early hours of the morning.
The father is a long way from the crossroads of change. True it is that he has not perpetrated -or there is no evidence that he has perpetrated - any family violence against his current partner. I accept that. I take that into consideration, but, in my view, the father nonetheless poses an unacceptable risk of causing psychological harm to the children if he were to spend time with them, and it is more nuanced than that. I also consider that the sheer toxicity of the relationship between the parents and the mother’s genuine fear of the father are such that the children would also be placed in harm’s way psychologically if orders were to be made for the father to spend time with them.
In relation to the children’s views, on the evidence I am satisfied that W is resistant to wanting to see his father. I accept the evidence that both W and X have been distressed and anxious about the father attending at their sports games. I accept the mother’s evidence that the children have reacted badly to the father attending. In X’s case, he stays at one side of the field away from the father, keeping himself at a distance. On one occasion he came running, crying to the mother saying that he thought a man was waving at him and that he thought it was his Dad.
I understand the father wanting to attend the games and have some background involvement with the children, but it makes the children uncomfortable that he does so. In the case of W, the mother says that he has told her that there is effectively “no way” that he is going to see the father. Now equally, I am sure that at times when with the father, W has demonstrated to the father an unwillingness to go back to the mother’s care. This is the very problem that we see in cases of high conflict where children are in that impossible position.
The fact of the matter is though that to effectively force the children to go to spend time with the father - supervised or unsupervised - given their life experiences and given what I consider to be the inadequate progress of the father in terms of addressing his issues, is such that such an arrangement is not in the children’s best interests. The children ought not to be forced into anything at this point in time, given what they have been through. And in that regard, to be clear, neither parent is entirely innocent in this situation.
I accept that Y was not able to be interviewed for the Family Report. The mother stymied it. She prevented it happening. She was obstructive in that respect, but Y is a very little child in any event. His views would be, in a practical sense, of no real relevance and particularly in circumstances where there are risk issues, as I have identified.
I should also add that in this respect the child, Z, simply has no real relationship with the father at all and that another difficulty that arises in this case, whether it be addressed under section 60CC(2)(b), 60CC(3)(a) or perhaps 60CC(3)(m) is that the older boys, in particular, W and X, could potentially influence their younger siblings, Y and Z, in an adverse way against the father as well. It would be no easy path for these children to be forced to spend time with the father, and from the viewpoint of the report writer it would be entirely inappropriate to force them to do so.
This is not to say the father has not had a good relationship with the children in the past. I accept that they initially missed him when the time ceased in 2021. I accept the father was an actively involved parent, particularly with the older boys when they were young.
In the witness box the father himself seemed to accept that, even if the Court were to make orders for time, there was a possibility that the children may not come to him anyway. If W did not want to come, for example, the father seemed to be open to that being W’s choice. I suspect, though, that if orders for time were made and W did not attend, the father would be frustrated and that there would be likely further problems, including denigration or other such behaviours to which the children would be exposed.
The risk of future litigation is very significant in this case as well. The fact of this matter is that orders for time put these children ‘in the crosshairs’ of potential future dispute. The two (2) parents have ample capacity to create arguments and I have little doubt that with the children’s experiences, the mother’s unhappiness about promoting a relationship between the children and the father, her genuine fear in relation to the father, and the father’s negative attitudes towards her, that orders for time would create real and significant risk of future litigation.
There are some other minor issues which I will briefly touch on. One is child support. The father is in arrears of child support, or he was at the hearing date, of some $3,126. I accept the submission made by Mr Graham on behalf of the mother that the father was able to find upwards of $20,000 for the purpose of the various Local Court proceedings and, clearly, he paid for the transcript of those proceedings in order to advance his case in the present proceedings. It is clear that the father has attempted to leverage child support at times in relation to parenting issues. So much is clear from the terms of the offers that he has made to the mother. See for example exhibits 16 and 18.
The father's attitude to child support reflects the resentment he has towards the mother, which is really the major and much more significant concern I have.
The mother’s capacity to parent the children is also somewhat stretched, given her fears and anxieties. I have touched on her mental health issues already. I am satisfied on the evidence before me that although without doubt there is some jealousy on the mother's part in relation to the breakdown of the relationship and the father re-partnering that, equally, the mother would struggle and her parenting would be adversely impacted if the Court were to put in place an order that enforces some form of relationship between the father and the children, given her own anxieties and her genuine fears about the father. I have little doubt that the mother’s concerns would be passed onto the children, either deliberately or otherwise, and that this would add to the children’s anxieties - particularly Z, who does not even really know her father. This, again, feeds back into the observations I make about section 60CC(3)(l).
The mother has the basic capacity to parent the children. The father has had a previous basic capacity to parent the children, but the major problem that exists in this case is the capacity of the parents to co-parent these children, particularly in the current very difficult circumstances therein.
The children are doing as well as can reasonably be hoped in the current circumstances. W and X are progressing well socially and academically at school, although each of them has some anxiety and I accept the mother’s evidence that they are on waitlists to see a child psychologist. Y and Z seem to be doing reasonably well.
CONCLUSION & ORDERS
Weighing up all of the evidence in this case, I simply do not see a way forward for these children to resume a relationship with the father at this time; I just do not.
If there was a way forward for that relationship then I would make orders to that effect, but the evidence overwhelmingly leads me to the melancholy conclusion that I must essentially accede to the orders sought by the mother.
Having said that, I do not intend to make orders exactly as sought by the mother, but rather to make orders that are somewhat different and I will now turn to those.
I begin with the issue of parental responsibility. I do not see any basis whatsoever to make an order for equal shared parental responsibility; I just do not. The father's own evidence in exhibit 8 to the Local Court Magistrate in early 2023 was:
My relationship with [Ms Finlay] is over. I don’t want to talk to or communicate with [Ms Finlay] ever again.
Little more needs be said by me than to make the observation that is the children will be living with the mother. It is common sense, as much as anything else, that she needs to have sole parental responsibility. Nothing else would be workable for the children in this case.
What I propose to do, for these reasons, is to make the orders set out at the commencement hereof, and I will now touch upon some of these orders with some brief additional reasons as I go.
The orders ‘leave the door open’ for the mother to agree in writing for time to occur, because it may be the case that down the track at some unknown time the mother decides that the children should have the opportunity to see their father. Perhaps things might improve in a way that is not foreseeable to me at the moment. I do not want to exclude the possibility, but equally I can only decide the case on the evidence before me now.
The father should not take this as an encouragement to ‘bombard’ the mother with messages. I would not want to see him getting in trouble in respect of the AVO. By the same token, I want the mother to understand that in the future things may potentially change and there may potentially be some prospect that the parties could move forward in some way - but the mother, effectively, has the power. That is the effect of the order, subject to the parties later coming back to the Court on a ‘change of circumstances’.
So I am ‘leaving that door open’ for what it is worth in the best interests of the children.
As for the one hundred (100) metre restraint the mother seeks, I have struggled over this particular order. My reason for acceding to it is that it avoids the children being ‘caught in the middle’ at social and sporting events and the like if the father happens to be in the general locality. These children need to be shielded as much as possible from the dispute.
In terms of overseas travel, the mother seeks the issue of an Australian passport and the capacity to take the children on overseas holidays. The evidence about this is extremely thin. The best that can be said is that it is really a request for orders that will avoid future litigation. Given that one of the Court’s desires is to avoid these children being caught in future litigation, that basis justifies me making such orders.
Obviously, if the mother is able to travel overseas with the children, to get passports for them, this is in the usual course a benefit to children. That is the usual experience of the Courts and these children would be no different. The Court sees no reason to leave the father with a veto power over such travel and over such passports, because all it will do is cause tension and angst. And if there is not an agreement we will all be back here in this Court again, and the risk of there being further AVO proceedings and ‘tit-for-tat’ allegations and the like which are also things that I am mindful of.
For those reasons, I propose to make the orders.
I certify that the preceding two hundred and fifty-four (254) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 31 January 2024
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