Frangoulis and Xennon (No 2)

FAMILY COURT OF AUSTRALIA

FRANGOULIS & XENNON (NO. 2)

[2019] FamCA 997

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where there are allegations of serious family violence – Where the father spends limited time with two of the children in the substantial presence of supervisors – Where one child refuses to see the father – Where the mother opposes any time between the father and the children – Where the father promotes that he should have equal time with the children – Best interests of the child – Orders.

Family Law Act 1975 (Cth) ss 60B(1), 60CA, 60CC(2), 60CC(2A), 60CC(3)

Baglio & Baglio [2013] FamCA 105
Beckham v Desprez [2015] FamCAFC 247
Blanding v Blanding [2016] FamCAFC 21
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Harridge & Harridge [2010] FamCA 445
Hunter & Berg [2017] FamCA 1051
M v M (1988) 166 CLR 69
N & S & The Separate Representative (1996) FLC 92-65
Pascoe & O’Keefe and Ors [2018] FamCAFC 243
Sigley & Evor [2011] FamCAFC 22
Vasser & Taylor-Black (2007) FLC 93-329

APPLICANT:

Mr Frangoulis

RESPONDENT:

Ms Xennon

FILE NUMBER:

ADC

4110

2015

DATE DELIVERED:

20 December 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

2 - 6 and 24 - 25 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Harry Alevizos

COUNSEL FOR THE RESPONDENT:

Ms O'Connor SC

SOLICITOR FOR THE RESPONDENT:

SE Lawyers

Orders

That all previous orders be discharged.
That the mother have sole parental responsibility for X born … 2009, Y born … 2011 and Z born … 2013 (collectively “the children”) PROVIDED that the mother will contact the father in writing in connection with any long-term issue and provide her views about any major long-term issue involving the said children and any decisions that she intends to make.
That X, Y and Z live with the mother.
That X shall spend time with the father as may be agreed between the parties subject to X’s wishes PROVIDED that if X shall express a wish to spend time with and/or communicate with the father THEN the mother will do all things necessary to facilitate the said time to be spent or communication.
That the father shall spend time with Y and Z as follows:-
That for a period of six (6) months commencing 11 January 2020 on each alternate Saturday from 1.00 pm until 5.00 pm with such time to be supervised by Mr C and/or Ms C;
(a)For the following six (6) months thereafter on each alternate Saturday from 10.00 am until 4.00 pm;
(b)For a further six (6) months thereafter from the conclusion of school on Friday until 4.00 pm on Saturday and each alternate weekend and thereafter from the conclusion of school on Friday until 4.00 pm on Sunday on each alternate weekend;
(c)Commencing in 2021 for one half of the short end of term school holidays as may be agreed between the parties but in default of agreement the father shall have the first half from the conclusion of school until the middle Saturday at 5.00 pm;
(d)Commencing with the Christmas school holiday period in 2021 on each alternate week but in default of agreement the father’s time shall commence from the conclusion of school until the following Saturday at 5.00 pm and each alternate week thereafter;
(e)From 4.00 pm Christmas Eve until 4.00 pm on Boxing Day in 2020 and each alternate year thereafter;
(f)From 4.00 pm Christmas Eve until 4.00 pm on Christmas Day in 2021 and each alternate year thereafter;
The children shall spend time with the mother:-
(a)From 4.00 pm Christmas Day until 4.00 pm on Christmas Day in 2020 and each alternate year thereafter;
(b)From 4.00 pm Christmas Eve until 4.00 pm Christmas Day in 2020 and each alternate year thereafter.
That Y and Z shall spend time with the father from 9.00 am until 5.00 pm on Father’s Day PROVIDED that they shall spend from 9.00 am until 5.00 pm with the mother on Mother’s Day.
That handovers shall occur at such place as the parties may agree but in the absence of agreement and the election of either party either at a police station that is geographically close to the mother’s residence or at a children’s contact service subject to availability and acceptance into the handover scheme.
That for a period of nine (9) months from the date of this order the father shall attend upon Dr F, psychologist, to comply with all instructions, counselling and/or therapy as may be recommended by him with such therapeutic intervention to be directed to the following areas:-
·Impulse control, frustration and self-awareness management;
·Psycho education regarding the physiological and psychological cues to anger;
·Anger arousal reduction techniques, e.g. deep breathing and calming techniques
·Safe, appropriate and respectful physical and emotional ways to “release” anger;
·Differentiating between assertiveness and being hostile;
·Rebuilding relationships damaged by anger issues; and
·Communicating needs without disrespecting others
PROVIDED that the father shall attend not less than six (6) sessions and that he forward to the mother a document prepared by Dr F confirming that the father has attended the requisite number of ordered sessions.
That thereafter, the father continue to undertake counselling with Dr F on at least four (4) occasions for a further twelve (12) months.
That each party is at liberty to receive all information, reports and photographs taken of the children, from the school at which the children attend.
That if any of the children suffer a medical emergency the parent with whom the child is residing or spending time with shall notify the other parent as soon as is reasonably practicable and advise of the nature of the medical emergency and the details of any hospitalisation or other treatment.
That the father is at liberty to forward gifts, presents and appropriate communication to the children to celebrate and/or commemorate their birthdays, Easter, Christmas and other special occasions.
That the parties are restrained and an injunction granted restraining each of them from:-
(a)Denigrating the other parent to or in the presence of the children or allowing any other person to do so;
(b)Denigrating the other parent on any social media website or forum or allowing any other person to do so.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Frangoulis & Xennon (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4110 of 2015

Mr Frangoulis

Applicant

And

Ms Xennon

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between Mr Frangoulis (“the father”) and Ms Xennon (“the mother”) relate to the ongoing parenting arrangements for X born in 2009, Y born in 2011 and Z born in 2013 (collectively “the children”).
At the commencement of the proceedings the Independent Children’s Lawyer (“ICL”) sought leave to withdraw. The order appointing the ICL was discharged.
There was focus on matters relating to property, however during the trial the parties were able to agree to consent orders to settle the property aspect.
Following the trial judgment was reserved.

Background

The father was born in Country M in 1970 and is 49 years old. He is a sales representative.
The mother is of Country M heritage and was born in Australia in 1971. She is 48 years old and is employed on a part time basis as a professional.
The parties first met in Country M in 1986 while the wife was on a family holiday.
The parties commenced a long distance relationship in 2004 and commenced cohabitation in 2006 in Country M. The mother says that since 2006 there has been family violence perpetrated upon her by the father. The father denies the allegation and asserts that it was the mother who was violent towards him on a monthly basis.
The parties were married in 2008 in Country M. The mother, X and Y relocated to Adelaide in 2011. The father initially remained behind but followed in 2012.
The parties separated on a final basis on 23 September 2014. Their divorce was finalised in August 2016.
The father presently spends no time with X. He spends time with Z and Y which is now in the substantial presence of Mr C and Ms C. Mr and Ms C are family friends who have been involved in the matter as supervisors of the father’s time with the children since 4 August 2017.

Orders sought

By Second Further Amended Initiating Application filed 28 June 2019 the father seeks that the parties have equal shared parental responsibility for the children. He seeks that the requirement for his time with the children to be supervised be discharged forthwith and that with respect to Z and Y, they spend time with him on a gradually increasing basis over a nine month period and thereafter live on an equal basis with each of the parties. He wishes to engage in reunification therapy with X and that upon the successful completion of the reunification therapy that X commence living with each of the parties on an equal basis.
By her Response filed 16 July 2019 the mother seeks sole parental responsibility for the children and that they live with her. She does not propose any time between the children and the father but considers that he should be permitted to forward gifts and correspondence for Christmas and to coincide with each child’s birthday.

chronology

1970	Father born in Country M.
1971	Mother born in Australia.
1986	Parties first meet in Country M.
2004	Parties commence a long distance relationship. The father lives in Country M and the mother in Australia.
2006	Mother moves to Country M and parties commence cohabitation.
January 2007	Parties separate and mother returns to Australia.
2007	Mother returns to Country M to retrieve belongings and parties reconcile.
2008	Mother obtains employment in Country M and remains employed until mid-2011.
2008	Parties marry.
2009	X born in Country M.
2011	Y born in Country M.
2011	Mother and daughters return to Adelaide.
2012	Father relocates to Australia.
August 2012	Father accuses mother of an extra-marital relationship. Mother denies the allegation.
October 2012	Mother ends the relationship and encourages the father to seek professional help with respect to his conduct.
November 2012	Parties attend relationship counselling.
December 2012	Mother alleges family violence and aggressive behaviour on the part of the father. The police are involved.
2013	Z born in Australia.
December 2013	Mother alleges that father is violent and that Z is thrown onto a couch.
April 2014	The parties and the children move into the matrimonial home.
September 2014	Parties separate after an altercation at the home of the maternal grandparents. The father is arrested and an intervention order is issued listing the mother and the children as protected persons.
July 2015	Mother agrees to withdraw charges against the father on the basis that he will enter into a life-long intervention order.
November 2015	Father files an initiating application seeking parenting orders.
June 2016	Orders allow for the father to spend time with the children at a children’s contact service.
November 2016	X spends supervised time with the father for the last time. X has not spent time with the father thereafter.
May 2017	The father puts forward Mr and Ms C who are prepared to supervise the father’s time with the children.
August 2017	Father commences supervised time with the children.
April 2018	Father takes Z to Kmart unsupervised. Mother subsequently files an application for contravention and to suspend the father’s time with the children.
June 2018	Court finds that the father has contravened the order and requires that he enter into a Bond to be of good behaviour, and to attend upon a psychologist for counselling in anger management and family violence for five sessions within ten weeks. The father’s time is suspended pending the completion of the ordered sessions.
February 2019	Orders made that the father attend upon Dr F, psychologist, and to reinstate father’s time with Y and Z.

documents relied upon

The father relies upon the following documents:-

Amended Initiating Application filed 28 June 2019;
Affidavit of father filed 15 January 2019;
Affidavit of father filed 28 June 2019; and
Affidavit of Dr F filed 16 August 2019.

The mother relies upon the following documents:-

Response filed 16 July 2019;
Trial Affidavit of mother filed 16 July 2019;
Affidavit of Mr S filed 16 February 2018;
Affidavit of Ms G filed 16 February 2018;
Affidavit of Mr H filed 15 February 2018;
Affidavit of Ms J filed 15 February 2018; and
Affidavit of Ms K filed 11 May 2018 annexing the report of Ms J dated 11 May 2018.

The evidence

At the commencement of the trial the Court highlighted the provisions of Div 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party spoke against the application of the provisions of s 69ZT.
I consider that the principles of s 69ZN would be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) as to the weight which would be given to the evidence, particularly if it is contentious.
Consideration was given to the objections to affidavits of evidence by application of r 15.13 of the Family Law Rules 2004 (Cth) and s 135 of the Evidence Act.
Exhibit “1” comprises a copy of the Intervention Order dated 20 July 2015. It provides for the mother and the children to be designated as protected persons. The parameter of the intervention order is wide-ranging and effectively prohibits any contact or communication with the protected persons other than in the following circumstances:-
12.Notwithstanding the other terms of this order contact is permitted at dispute resolution or at a court hearing under the Family Law Act 1975, the Children’s Protection Act 1993 or any other court or tribunal hearing.
13.Notwithstanding the other terms of this order contact is permitted in accordance with an order of a court exercising jurisdiction under the Family Law Act 1975.
The intervention order is what has been described as a lifetime order although it is capable of application to vary the terms of the intervention order. Neither of the parties indicated any intention to make such an application.
Exhibit “2” comprises photographs of the children interacting with the father and cards from some of the children to the father in celebration of a particular event or special occasion.
Exhibit “3” comprises observational reports taken by staff of the Children’s Contact Service engaged in the supervision of the father’s time with the children between 1 October 2016 and 25 February 2017.

The father

The father was challenged as to the early period of the parties’ relationship. It was put to the father that he first met the mother in 1986 when she was 15 years of age and then again in 1992 when she returned to Country M following the death of a grandparent.
The father remembered that he and the mother met every evening. He considered that they were romantically inclined. It was put to him that the mother’s position was to acknowledge a friendship only with no romantic component.
The mother returned to Australia and married her first husband. The father asserted that in 2004 the mother pursued him however in deference to her marital status, he avoided making contact with her and refused to take her telephone calls until a member of his family rang him and he was persuaded to speak to the mother when she next called.
The father was then told that the mother had separated from her first husband and had received a settlement of property.
The father was challenged as to his understanding of how the mother had dispersed the $100,000 received by her by way of settlement of property.
An amount of $40,000 was used for the deposit on a house property but the father disavowed any knowledge of how the balance of monies had been spent.
The focus of the father’s cross examination on this topic was to establish that he well knew how the balance of the mother’s settlement monies was spent and as such his answers were not truthful and it should therefore be a matter going to the father’s credit.
I did not consider that the father’s evidence was evasive, unreliable or that he had determined to mislead the Court.
Little turns on the topic in any event.
The parties were married in Country M in 2008. It appears that each of the parties’ families provided money as a wedding gift.
The parties purchased a property at City N, Country M in 2008 with a deposit sourced from monies given to the parties upon their wedding and a substantial mortgage.
There is some dispute between the parties as to whether it was intended that the mother would be the sole registered proprietor or whether following a gift of €15,000 from the father’s family the contract was then amended to include the father.
There is also some suggestion that the father’s brother was included. The father recollects that it may have been necessary to include his brother in circumstances where he had been put forward as an effective guarantor given the ratio of mortgage to the purchase price of the property.
Documents comprising Exhibits “4”, “5” and “6” relate to the purchase of the property but provide no assistance given that they were not the subject of translation.
I do not consider that any difference between the evidence of the parties would reach the status of an adverse finding of credit. The conflict between the parties is of long-standing and mutual deep mistrust.
Similarly, the father was challenged as to whether he owned but did not disclose an interest in a property at City O, Country M. It is the mother’s belief that the father owns the City O apartment although it may not have been formally transferred by his parents to him. She contends that funds were expended between 2009 and 2010 for construction work on the apartment although the sums were relatively modest.
The father denied ownership of the City O property and whilst he agrees that some modest expenditure totalling $4,867 was paid, this was to assist the father’s mother.
No evidence of value of the property was tendered nor is there any evidence that establishes either a gift or that the father had an equitable interest.
Of greater relevance to the proceedings is the mother’s allegation that in March 2009 the father began to exhibit aggressive and offensive conduct which should be considered as significant family violence. The mother contends that for trivial reasons the father was quick to temper and would shout and yell at the mother referring to her as a “fucking bitch” and “a whore”. On an occasion when the mother was about three months pregnant with X she locked herself in the back room of their home which caused the father to kick the door and shout at her.
In May 2009 following an argument the mother tried to leave the premises. However, she alleges that the father locked the gate; effectively trapping her.
The father denies the mother’s allegations and counters with his own assertion that it was the mother who was unreasonable, unable to control her anger and he would often leave the premises and hope that his departure would calm the mother down.

The mother, X and Y returned to Australia in 2011 and took up residence at the home of the maternal grandparents in the suburb of Suburb P.
The father returned to Australia on 24 March 2012. The mother complains that following her departure from Country M, the father made no financial provision for her or the children.
The mother alleges that from March 2012 the father had become increasingly verbally abusive and would often refer to the mother in derogatory and offensive language calling her a “lazy dog”, “a liar”, and “a whore”, often in the presence of the children.
The mother considered that the father had developed an irrational belief that she was conducting an extra-marital affair and accordingly she felt that her movements were under the father’s close scrutiny.
She asserts that she would be telephoned by the father on many occasions each day and such was his fixation with the possibility of the mother’s infidelity that she alleges the father would link unconnected and benign circumstances to fuel his belief of the mother engaging in extra-marital relationships.
I am in little doubt that there were aspects of the relationship between the parties which fuelled the mother’s underlying anxiety.
It is likely that at times the parties engaged in aggressive verbal arguments and inappropriate and offensive language may well have been exchanged.
The parties continued in their relationship and purchased a property at Suburb Q. The mother contends that notwithstanding her advice to him that she had sought assistance from the police and a domestic violence service, the father would not accept that the marriage was over and he refused to separate.
The father denies that he gave the mother any reason to be fearful of him but does concede that the parties experienced difficulties in their relationship and maintains his belief that the mother had commenced a relationship with a friend but in realising her mistake, put to the father that they should put aside their differences and resume a loving relationship.
The father complains that the mother was resistant to him spending time with the children notwithstanding he considered that prior to separation he had a close and strongly bonded attachment to them.
On 14 December 2013 the mother alleges that she and the father were in the lounge room of the maternal grandparent’s home. Z was three months of age and was being held by the father. The maternal grandmother was in the lounge room with the maternal grandfather in the back garden.
The mother remembers that the father was arguing with her but cannot now remember the content or context of the argument.
She alleges that without warning the father who had been seated on the couch got up and in an angry state “threw Z onto the couch and stormed out of the room”. The mother recalls that the child bounced when he made contact with the couch and then commenced to scream.
The argument escalated. The mother allegedly yelled at the father “how could you throw a baby like that” with his response to her calling her a “lying bitch”.
The father denies that he threw Z onto the couch. He asserts that the incident never occurred. The father was pressed but made categorical denials that he threw Z onto the couch as alleged by the mother.
He countered that it was the mother that had been physically aggressive towards X and it was more likely that he left the maternal grandparent’s home to escape the mother rather than because he was unable to control his anger.
The father then alleged that the parties were arguing and it was the mother that hit him on the shoulder, the arm and the hand. The father was reminded that he had not raised the detail of this incident in his affidavit. His explanation was that he had told his solicitors but they had not included it in the affidavit and in any event he wanted to downplay the mother’s alleged family violence.
The father’s explanation did not adequately explain his conduct in taking a photograph of his neck which he stated showed an injury caused by the mother. The father took the photograph and showed a medical practitioner.
The father did not consider that any “attack” by the mother had resulted in a significant injury and he did nothing about her conduct choosing to keep the family intact.
The father was reminded of the content of his Notice of Risk filed 4 November 2015. No allegations of family violence were contained in the document.
The father stated that he commenced proceedings once he became aware of the mother’s allegations that he had perpetrated family violence.
On 23 September 2014 it appears that the parties were arguing as to the status of the property in Country M. The father’s brother wanted to be discharged from the loan secured over the property and proposed that the property be sold. The mother said she agreed given her understanding that the loan was in arrears and the father’s brother’s home was threatened with foreclosure.
The mother contends that her apparent support for the father’s brother’s predicament was considered by the father to be an act of disloyalty and that he again referred to her as a “whore” and a “dog”, told her to take the children and leave the Suburb Q property threatening that if she didn’t go, he would kill her.
The mother packed some belongings for her and the three children and went to her parent’s home in Suburb P.
Later that night the father attended at the maternal grandparent’s home and the mother could hear the father and the maternal grandfather arguing. Although not seen by her, she understands that the father had jumped over the front gate and threatened the grandparents.
There was apparently a physical altercation, however, the father then removed himself from the premises and it was not long thereafter that Mr F, a family friend, arrived and he restrained the father and awaited the subsequent arrival of the police.
The father was charged with several criminal offences, however, agreement was ultimately reached that the charges would be withdrawn upon condition that the father entered into the current intervention order.
The father’s time with the children ceased soon after the incident on 23 September 2014.
The father places a different gloss on the distressing events of the day.
Upon his return to the Suburb Q property from work he found that the mother and children had left the premises. He denies that they did so because of any threat he made to cause the mother and/or the children harm.
When he returned, the maternal grandfather was present and they engaged in a discussion for one and a half hours.
The father determined that the children were at the home of the maternal grandparents and whilst he concedes that neither the mother nor her parents invited him to attend, nonetheless he went to the premises to see the children.
His particular concern was that the mother had often threatened that he would never see the children again.
The father agreed that he knew that he was unlikely to be welcome at the Suburb P property. He did not have a plan but contends that he did not know the mother was so angry.
When he arrived at the property he states that it was the maternal grandfather who was the aggressor in that he was holding a small axe. Moreover, the front gates were locked and upon him alighting from his motor vehicle the maternal grandfather began to abuse him.
The father was also shouting and whilst he denies swearing he agrees that he stated loudly that he wanted the children to return. He jumped over the fence and took the axe away from the maternal grandfather, gave it to a neighbour and requested that they contact the police.
By this time the father recollects that Mr H was in attendance but denies Mr H’s evidence that he tried to calm the father down, rather, considers that Mr H was fuelling the situation by abusing the father.
The father denies the assertion by Mr H and the maternal grandfather that Mr H restrained the father whilst awaiting the arrival of the police.
The circumstances surrounding the separation were distressing. It is likely that the children did not see or experience their father’s conduct or the response of the maternal grandfather and Mr H. They did not witness the police attend on that occasion, however, the emotion, distress and subsequent investigation involving the police attendance at the Suburb P property were matters that likely adversely impacted upon the children.
The mother’s evidence is of little assistance in circumstances where she did not witness the events, although she considers that she heard threats made by the father.
There can be no reasonable explanation for the father jumping the fence and confronting the maternal grandfather. Once he understood that he was not welcome to attend the premises and that the gates had been locked specifically to bar his entry, the father should have retreated without further incident. He did not do so. He jumped the fence and whether it was reasonable for him to disarm the maternal grandfather or not is to a very large degree a moot point in circumstances where but for him entering the Suburb P property without permission, there would not have been an altercation.
I accept the father’s evidence that he did not threaten the maternal grandfather with the axe, that he gave it to a neighbour and requested that the police be called.
Nonetheless it was an unnecessarily aggressive incident.
As would now be obvious, the difficulty with aggressive, violent and angry conduct is that it can have an effect beyond the physical interaction and can adversely impact upon parties, members of their family and ultimately involve the children in the internecine conflict between the parties.
The father agreed that his time with the children had been supervised by Mr and Ms C since 2017. Whilst not the subject of his proposal for the future parenting arrangements, Mr and Ms C remain prepared to continue to supervise the children’s time.
The father is aware that X has told the supervisor at the children’s contact service that she doesn’t want to see the father. The father also recognised that X justified her decision on the basis that she did not trust him and was frightened. She remembered bad things about the father although he denied that the children ever witnessed any incident or event which could have had the dramatic consequence of X not wishing to have a relationship with him.
The father considered that the likely explanation for X’s presentation is that she is old enough to have been influenced by the mother’s opposition to the children spending time with the father.
The father acknowledged that X’s position has been consistent throughout the period since separation as recorded by the family consultant.
Z also has developmental problems and receives input and assistance from a speech pathologist, social worker and an occupational therapist.
The father was aware generally of difficulties that adversely impact Z but his time with the child is limited to three hours and as such, there is little that he is able to do although he impressed in his assertion that he would like to do more.
His observation of Z is that when they are together their time is enjoyable.
X is recorded as having observed the father treat the mother poorly and in particular that she saw the father throw Z onto the couch. That assertion must be tempered by an acceptance that X was four years of age at the time of the purported incident and the mother is silent on whether X was present.
The mother’s claim that the father was fixated with the belief that the mother had been unfaithful was a constant theme running through the evidence.
It was put to the father that X had spoken to the family consultant expressing concern that the father had spoken to her about the mother’s purported boyfriend Mr R.
The father denied that he had discussed those issues in front of the child and opined that the mother must have told X that the father had accused her of having a boyfriend in order to turn the child against him.
In her interview with the family consultant, Y had reported that the father had screamed at the mother. The father denied that he had ever screamed or shouted at the mother but did concede that there was a level of volatility between the parties and that they often had discussed matters of contention between them.
Whilst the father was not able to explain why Y may have reported to the family consultant that she felt uncomfortable by the sometimes aggressive exchange between the parties, the father considered that the concerns expressed were without substance and the likely explanation is that they were adopting the mother’s anxiety about him.
A recommendation of the first family assessment report was that the father seek anger management counselling from Mr B. Mr B is well-known for his expertise in dealing with men with anger management issues.
The father understood the purpose of the referral to Mr B but did not consider that it was justified. He denied that he was angry but he recognised that if he was to resume a relationship with his children it was important to do whatever was requested of him.
The report of Mr B contained clear denials by the father that he perpetrated domestic violence. He did not consider that he had a problem with anger or with the regulation of his feelings. The father agreed that Mr B had accurately reported his position.
The father agreed that he had told Mr B that he still loved the mother and that she had no reason for her to be threatened or frightened by him.
He also agreed that he had told Mr B that it was the mother who had been aggressive towards him.
The father was supposed to attend for eight visits with Mr B but only finished two because Mr B did not consider that there was any benefit to be gained in circumstances where the father did not concede that he needed assistance with his anger management.
The conundrum for the father is that he did not consider that he had perpetrated family violence or that the mother had any reason to be frightened of him. As such, the father considered it would be a hypocritical approach to pretend that there was substance to the mother’s allegations simply to be able to complete the requisite number of visits pursuant to the order.
The father was reminded of X’s presentation to the family consultant as recorded in the second report that she remained fearful of the father. It was difficult for the father to provide a comprehensive response other than to deny that there was any basis for X to be fearful of him. The father also considered that it may not necessarily be the mother who influences the child. Members of the mother’s family are also opposed to the father and it is possible that X has adopted the clear opposition of others towards the father.
In the father’s Affidavit filed 11 May 2017 there is reference to the recommendations of Ms D (“The family consultant”) and the following appears:-
12.Although I maintain my denial that I have physically assaulted the Mother or the children, or that I have threatened to do so, I acknowledge that certain of my behaviours towards the Mother during the course of our marriage have caused her distress and to fear me. I have, therefore, in accordance with the recommendations of [the family consultant], sought to engage with Mr B. I will do so with the assistance of an interpreter. If my language difficulties frustrate this therapy, I intend to return to regular therapy with Dr F who communicates with me in Greek.
The father was not able to remember or explain what he had intended to convey as conduct attributed to him which caused the mother distress and fear. He did consider that the mother’s behaviour may not help the children and that she seems intent on keeping them away from him. He regrets that he spends little time with his children.
The father was asked to consider whether his proposal that ultimately the children’s care be equally shared between the parties was realistic.
Notwithstanding that the father seeks an order for shared care, his response is less nuanced in that he seeks “to have enough time to spend with my children, to have some relations with them and then abide by the law, whatever they say that I should do”.[1]
[1] Transcript of proceedings 4 September 2019 page 20 line 9
The father was not an impressive witness. Whilst not necessarily finding that his conduct was as severe and as florid as the mother alleges, I have little difficulty in finding that the father has minimised what was a relationship redolent with hostility and angry interaction.
It is likely that the father displayed volatile behaviour and became angry when he considered that the mother did not readily agree with the position adopted by him.
I did not find that the father could not be believed nor that evidence of others should be preferred over the father’s evidence.
I also accept that the father’s presentation may well have been affected by language proficiency and the necessary involvement of an interpreter to give his evidence
The father’s resistance to accept that there were anger management issues as between the parties causing Mr B to consider that further therapeutic intervention was unlikely to be helpful, is evidence of a stubborn refusal by the father to accept that which he had recognised in 2017; namely, that some of his conduct and behaviours had caused the mother distress and fear.

The mother

The mother supplemented her affidavit evidence by updating the current arrangements for the children to spend time with the father. There had apparently been some difficulty with the children transitioning to the father at the Contact Service and by agreement between the parties the children now spend time with the father under the auspices of a new program. It appears that the father’s time is supervised and they spend time with him at the Suburb L Contact Centre every fortnight on a Thursday after school. The mother considered that the children were resistant to spending time with the father other than under strict supervision offered by the Contact Service.
The mother has observed that the children seem more prepared to spend time with the father and seem happy with their interaction with him. The duration of time is two hours and there is a cost that is borne by the mother.
The mother denied that there was any incident in which she had assaulted the father and in particular that she had caused the injuries to the father’s neck as shown in the photographs comprising Exhibit “18”.
The mother did admit that there was an altercation between the parties in the mother’s car while she was driving to see her obstetrician. The interaction occurred in or about July 2013.
The mother agreed that she had pushed the husband away whilst she was driving but disavowed any knowledge of the injuries to his neck. When asked the direct question as to whether she conceded that she may have caused the injuries she admitted that it was possible.
At [247] of the mother’s trial affidavit the following appears:-
I confirm that since the filing of my original trial affidavit on 15 February 2018, X has refused, on all occasions, to spend time with the father. I have taken her to the contact centre on all occasions. I confirm that since April 2019, Y has refused to spend time with the father on 6 April 2019, 27 April 2019, 26 May 2019, 1 June 2019, 15 June 2019, 29 June 2019 and 7 July 2019. I have taken her to the Contact Centre for handover on all such occasions. I confirm that Z has refused to spend time with the father on 20 April 2019, 26 May 2019, 1 June 2019, 29 June 2019 and 7 July 2019. I have taken Z to the handover centre on all occasions.
The mother admitted that she had asked the children why they had been refusing to see the father.[2] She started asking when she received a letter from the father’s solicitor. She agreed that she had not spoken to the children prior to that letter.
[2] Mother’s Trial Affidavit at [248].
The import of the topic was that Y had missed seven occasions seeing her father before the mother considered it necessary to inquire of the children the basis for their reluctance.

The mother was asked to repeat the content and tenor of the conversation she had with the children. I find that if the mother has accurately reported the content of her conversation, she did not actively support the children’s time with their father nor indicate to them that any concern in respect of the presence of Ms C in the absence of his wife was inappropriate. The orders of 8 February 2019 amended the arrangements to require that either Mr or Ms C be substantially present but not require constant supervision.
The mother clarified her parenting proposal in that she seeks the father spend no time with the children but if he does it should only occur if each of the children want to spend time with him and in any event under supervision. The mother did not feel safe and secure unless there was an independent supervisor.
The mother was asked to consider the extent to which she encouraged the children to see their father. The mother provided the following explanation:-[3]
CounselSo on that occasion when you encouraged Z to see his father he did?
Mother:That’s right.
Counsel:Without any difficulty. So I guess the question now is, on the occasion that Z wore this suit, what did you say to [Y] to encourage her?
Mother:Well she – I told her to go and she got angry because she said, “you never make X go”.
[3] Transcript of proceedings 4 September 2019 line 13 page 45.
The mother confirmed that the child had repeated her opposition and reason for not spending time with the father to the contact centre worker. The mother considered that Y was now of an age (eight years) that she was able to exert her opinion.
The mother was challenged as to the incident on 14 December 2013 where the mother alleges that following an argument the father threw Z at aged three months onto the couch.
By reference to [117] and [118] of the mother’s trial affidavit, the mother agreed that in her account neither X nor Y were present. The mother conceded did not know where X and Y were but they were likely to be somewhere in the vicinity of the living room. There was also a possibility that the maternal grandmother may not have been in the living room.
The mother considered that the father was relentless in his criticism of the mother’s behaviour.
The mother was certain in her observation namely, that the baby bounced on the couch. She expanded the description by noting that “the baby went down and then up and then down”.[4] In her interview with the family consultant on 2 March 2017 the mother is recorded to have conceded that the incident involving Z would have had no effect on Y but did affect X. The mother considered that X would often bring the incident up. She keeps talking about it and the mother was then reminded of the description given by X to the family consultant as follows:-[5]
When I asked what happed she said, “Mum was sitting on the couch and Dad picked [Z] up and threw him at Mum”.
And then at line 12:-
“[Z] got wedged into the couch. She said he was used as a weapon”.
[4] Transcript of proceedings 4 September 2019 line 24 page 50.
[5] Transcript of proceedings 4 September 2019 line 7 page 53.
The mother agreed that X’s recollection may not be correct but that she had not told X that she had the wrong idea about her father arising from the incident.
The family consultant reported the extent of X’s understanding of the altercation that occurred at the home of the maternal grandparents on 24 September 2014:-[6]
Counsel:Yes. So they were asleep. And getting back to [the family consultant’s] report, still the same interview with X. After she talked about her father throwing [Z], she says this, or this is what [the family consultant] reports:
“When I asked whether there was anything else, she said that once he jumped over the fence. When she was at Grandmas’ he jumped over the fence onto her Grandpa. She didn’t get to know about that until she was five”.
[6] Transcript of proceedings 4 September 2019 line 5 page 59.
The mother agreed that at the time of the incident the children were asleep and were not immediately aware of what had happened.
The mother denied that she had told X of the incident but conceded that the children had somehow found out what had happened. She speculated on the extent to which the children knew something had happened given the police attendance and discussion with various members of her family.
The mother did agree that at one time whilst the mother and children were at McDonald’s she feared that the father was following her and rang the police. As a result of that conversation, she stated that she was advised to tell the children the truth and then did so. At that point the father’s absence from the children’s lives had been explained by the mother telling the children that the father was overseas.
The mother’s response in relation to the circumstances of the children, but in particular X finding out about the incident was unsatisfactory. It is likely that the mother did not intend to shield the children from the conflict between the parties but rather sought to reinforce her view that the children were not safe in the presence of the father.
The mother agreed that X remained fearful of the father but that Z did not.
The impact of X’s fear is her ongoing concern as expressed to the family consultant that the father would throw Z again or that he will throw something at her or Y.
Notwithstanding X’s concerns, the mother agreed that given the age of Y and Z she does not fear that he will throw the children or throw anything at them.
The mother conceded she was no longer scared of any aggressive interaction between the father and the children. Her current fear is that he would take the children overseas. The mother understood that there were no passports for the children and that they were on a Watch List order. She considered that he had told her there were “other ways to get them out of the country”.[7]
[7] Transcript of proceedings 4 September 2019 line 20 page 61.
The mother confirmed her fear of abduction by reference to her belief that the father had bought four different cars with four different number plates and that she believed he was driving past her house.
The mother’s fears were apparently reinforced by her belief that the father had moved into a home located 700 meters from the mother and 400 meters from her parents. She remained concerned that the father drove past her house often and that the police did not seem to want to investigate.
The mother conceded that none of the allegations which currently cause her to be fearful and anxious were contained in her trial affidavit.
The mother agreed that she had never alleged that the father had hurt the children other than the incident involving Z being thrown on the couch. The threat is therefore not that the father will hurt the children but rather, that he would take them when things do not go his way.
The mother was asked to expand upon her concerns as to the father’s unpredictable conduct. She considered that her decision that the children should never see their father is properly founded upon her belief that he did not tell the truth to Mr B or his psychologist Dr F and given the lies that she considers he tells, she is worried that in one of his fits of rage he may harm the children.
She summarised her position by expressing her belief that if he wants to get back at the mother he may do so by hurting the children.
She did agree that there had not been a breach of the intervention order even though it had been in place for a number of years and that her home has the advantage of surveillance cameras able to record any interaction or presence of the father.
The mother was asked to consider what other incidents or conduct of the father could have engendered the fear that X says she experiences.
The mother gave the following explanation:-[8]
Counsel:Yes. Put to one side what she said to you about the Z incident and the fence incident. What else do you say she said to you about the reason she’s scared of her father?
Mother:Well she said – we don’t – we haven’t spoken about it in a long time but in the beginning, she used to say to me she remembers him screaming at me. And then there was one time when he refused to allow a friend to come to her birthday party because he believed that the child – that the father of that child was my boyfriend. And he told me that he – she wasn’t allowed to come to the party and that if that child came, he would not be coming.
Counsel:Is there anything else?
Mother:But – well, just all the screaming. And I’m not sure where she was – she never – she has never spoken about it but I am not sure where she was that night he choked me.
[8] Transcript of proceedings 4 September 2019 line 3 page 79.
The mother was referring to an alleged incident on 12 August 2013 where she considered that following an argument the father grabbed the mother by the throat and screamed that he was going to kill her. The mother expanded upon her recollection of the incident and whilst conceding that she had not said anything about being thrown to the ground by the father, she confirmed her evidence that the father had his hands around her neck.
The mother did not know if X had witnessed the incident or if she did whether she remembered it.
The mother repeated her previous evidence that the father believed that she had been unfaithful to him and that he had called her a “slut” and a “whore”.
The mother was reminded of the observed interaction at the Contact Service. She agreed that X had expressed reluctance to see the father and was aware of the report of the supervisor that discussed with her why she didn’t want to attend the visit. It was recorded that X was not able to give any explanation.
It is likely that the mother did little to encourage X to spend time with the father.
There is evidence that Y and Z love their father but that Y is reluctant to see him because she sees that X does not have to go to see him. The mother provided the following explanation:-[9]
His Honour:   What do I do, [the mother], about the possibility that [Y] is reluctant to see her father because she sees that her older sister, X, doesn’t have to do and see him. What do I do about that? If there a general concession from you that [Y] loves her father and enjoys his company, what do I do about the problem of [Y] saying: “I don’t mind seeing Dad, he’s all right, but if X doesn’t have to, why do I?” And then Z saying “Well, if [Y] doesn’t want to go, why do I?” What do I do about that? You know your children. What’s the way to deal with that?
Mother:I don’t know.
His Honour:   You can see the difficulty, can’t you? I mean, at one level, the arrangement for the father to spend time with the children is unsatisfactory in the sense that it’s unnatural within a contact setting. I’m not saying it shouldn’t happen like that, but that’s how it is happening. And it wouldn’t be the most interesting time for the children. I mean, I sit here and I hear dozens of these things and I never get the sense that children really, really, really enjoy seeing one or other of their parents in a supervised contact centre. It is the worst form of contact, if you like, but it’s necessary – better than nothing, but not much. It’s for an hour and three-quarters is what it is, I think is it not, about?
Mother:That’s correct.
His Honour:   And there may be other reasons that [Y] has in respect of her presentation, but one of the matters that has come through, I think, from your evidence, is that [Y] says “Well, if X doesn’t have to go why should I?”?
Mother:And I think also the other thing that she has become more social, too, in the sense where she has been angry because she has had to miss out on a birthday...
[9] Transcript of proceedings 4 September 2019 line 46 page 97.
The mother also agreed that of recent date Z was also reluctant to see his father because he considered that Y did not have to go.
The mother was asked to consider whether the proceedings had in any way compromised her ability to care for the children. The mother conceded that she remained able to feed them, read to them, do their homework and put them to bed, but she did consider she was struggling, in particular because she has not slept well during the course of the trial.
The mother agreed that whilst she was not her normal happy loving self she was nonetheless “just getting on with it”. The mother repeated her mistrust of the father and in terms of her future parenting she thought that she would likely be stressed and highly anxious.
The mother alleged that in 2009 while the parties were living in Country M and the mother was three months pregnant with X, she and the father had an argument when she refused to accompany him into the village.
The mother has alleged that she was frightened for her safety, cognisant of her pregnant state and accordingly locked herself in the back room of the residence. Under cross examination it was her evidence that the father had kicked the door in, putting a hole in it that had to be repaired.[10]
[10] Transcript of proceedings 5 September 2019 line 40 page 137.
The alleged incident is important as it underpins the early history of the mother’s assertion that the father perpetrated family violence. She alleged that the father had smashed or kicked the door open and caused damage to the door.
By reference to her affidavit of 16 July 2019 the mother recorded that she was scared the father would smash the door open, but that he stopped and went to the village alone.
When asked to reflect on the inconsistency, the mother remained confident that he had smashed the door but was not now able to remember the circumstances. It is likely that the father may have hammered on or kicked the door but unlikely that he had smashed the door open.
The mother has kept a diary throughout the course of the relationship. The diary had not been disclosed until it was revealed in the mother’s cross examination.
The mother was asked to consider the diary entry for 21 December 2013 which records the incident wherein the mother alleged the father threw Z onto the couch:-[11]
21 December 2013
We are sitting in lounge room. [The father] is holding the baby. I tell him that I cannot continue to live like this. I am always feeling anxious. I told him that he needs to go to counselling. He tries to blame me for everything. I told him that I have the right to some sort of quality of life and he gets up, roughly throws the baby on the couch and storms out the door. My Mum is inside with the kids. She hears him slam the door and I yell out and tell him how dare he throw the baby like that. He tried to come back inside and was screaming abuse at me telling me I was a lying bitch. My dad came up and told him to calm down. He told my dad to let go of him otherwise he would smash all the windows in. My Dad took him to Suburb Q and told him to stay there until he calms down. Things again are escalating.
[11] Exhibit “19” page 43.
The mother was asked to explain why there was no reference to the baby bouncing on the couch in her contemporaneous record kept in the diary.
The mother demonstrated that the distance the child travelled to the couch was about one metre.
There remains considerable uncertainty as to how Z passed from the father to the couch. The mother conceded that Z never bounced off the couch but did not resile from her evidence that the baby landed on the couch.
There was no injury occasioned to the child but the father’s actions did cause the mother distress and anxiety.
I am not able to make a clear finding about whether the baby was thrown or placed roughly on the couch.
I am also satisfied that X and Y were not in a position to observe what had occurred.
I accept that there was an argument which comprised some significant volatility. I also find that the manner in which the father placed the child on the couch was not gentle and was intended to emphasise his frustration, anger and dissatisfaction with the mother.
I am not able to find that the father intended to cause injury to the child but his conduct was intemperate and unnecessarily rough.
The difficulties that confront the parties and the children is brought into stark focus by the mother’s concession that Z and Y should have a relationship with their father and should not be given the option of refusing to do so. The mother concedes Y and Z have a relationship with the father and that in particular Z wants to spend time with him. There was a point in the evidence where the mother also conceded that X probably loves her father. Even with those concessions, it is the mother’s case that there should be no time between the children and the father.
The mother would rather that the relationship between the parties had not got to the stage that they have.
Each of the parties seek what might be considered an extreme proposal. The mother seeks to terminate the children’s relationship with the father in its entirety, whereas the father seeks that there be shared care, or at the very least significant and substantial time with the three children even though he concedes it would not be easy to achieve.
Similar to the father, the mother was not an impressive witness. Her evidence was redolent with exaggeration, exacerbated by her highly anxious presentation.
I do not consider that she did not tell the truth but rather was prepared to embellish and exaggerate various incidents between the father and her.
I am able to find that the interaction between the parties was aggressive but that the father considered himself to be the dominant force in the relationship and lacked the ability to control his anger in circumstances where the mother did not readily agree with his view or proposal.
I am satisfied on the evidence that to the extent X and to a lesser degree Y and Z are aware of what appeared to be the critical incidents in the relationship namely, the allegation that the father threw Z onto the couch and the father jumping the fence at the home of the maternal grandparents, their information and knowledge comes from the mother.
The mother presents as being unwilling to promote the father’s relationship with the children even though she recognises that the children love him, and want to spend time with him, less so with X and Y, but more so with Z. The mother is unlikely to promote the children’s relationship with the father.
The father appears unable to accept that his aggressive and at times controlling conduct has exacerbated the mother’s anxious state.

Mr H

Mr H relied upon his trial affidavit. He agreed that in the 22 years that he had known the maternal grandparents, they had never locked their front gates. They were locked on the evening of 23 September 2014.
He drove to the premises of the maternal grandparents and saw the father pacing backwards and forwards outside of the gate. The father was yelling that he wanted the children back. He observed the father to be angry and using offensive language.
Mr H cautioned the father that he should not jump over the gate but that if he did it would be trespassing and the police would be called.
As it transpired, Mr H had arrived after the father had jumped the gate and then left the property.
Fearing that the father was again going to re-enter the premises, Mr H tackled the father and pulled him to the ground. He held the father until the police had arrived.
Mr H’s evidence was not challenged and I accept his version of the events subject to the caveat that he did not observe the father jump the fence nor enter into a physical altercation with the maternal grandfather.

Dr F

Consequent upon a finding that the father was in breach of an order, on 27 July 2018 he was ordered to be of good behaviour during the period of a bond of one year duration and to comply with all current and future parenting orders. The balance of the order has relevance to the evidence of Dr F, psychologist:-
2.That the father shall attend upon Mr B (psychologist) or if unavailable, such other therapist nominated by the Independent Children’s Lawyer (“ICL”) with expertise in the area of anger management and family violence and to comply with all instructions and further counselling and/or therapy as may be recommended by him or her.
3.At the completion of five (5) visits with the nominated therapist which are to occur within ten (10) weeks of the date of this order, the father is to obtain a report from the therapist as to his engagement with therapy and that he has successfully completed the five (5) visits.
4.If the father has not completed the five (5) visits as nominated THEN until further order, paragraph 1 of the orders made 4 August 2017 shall be suspended.
5.Upon the provision of a report from the nominated therapist that the father has successfully engaged with the therapy, paragraph 1 of the orders made 4 August 2017 shall be amended by the deletion of the words “supervised by Mr and Ms C” and the addition of the words “in the substantial presence of Mr and Ms C”.

The father contends that his solicitor made exhaustive inquiries of Mr B to engage him in the process. The father was advised that Mr B was due to travel overseas for six weeks during the relevant period and could not be engaged.
Accordingly, inquiries were made with Dr F who was prepared to undertake the process. The father’s solicitor sought the approval of the ICL which was given on 15 August 2018.
The father consulted with Dr F on three occasions namely 21 and 30 August 2018 and 18 September 2018. Dr F provided a report dated 4 October 2018.
There were difficulties with Dr F accommodating further appointments but he did see the father again on 4 and 16 October 2018.
There is some history to the attendance by the father on Mr B.
Exhibit “17” is a letter from Mr B in response to correspondence from the father’s solicitor dated 28 August 2017.
Mr B saw the father on two occasions in August 2017 in relation to Court Orders made by Judge Heffernan on 4 August 2017. Mr B had the advantage of an interpreter to assist the father and also copies of various affidavits including a report from the family consultant dated 12 April 2017 and a psychologist report from Ms J dated 19 April 2017.
Mr B supplied a letter dated 28 August 2017, forming Exhibit “17” in the proceedings. Mr B noted the concern of the family consultant that the father did not acknowledge “issues with anger or emotional self-management” and that she had recommended:-
[F]ocus on helping [the father] either develop, or express, an understanding about his contribution to what has occurred, and his understanding about the impact of conflicts on the children and X in particular.[12]
[12] Exhibit “17”.
The letter records that the father maintained denials of all allegations of domestic violence and that whilst at times he felt angry, he was able to control his anger.
Mr B reports as follows:-
I tried to engage [the father] in considering any possibilities that his behaviour, in the past, might have been perceived as hurtful or abusive and that [the mother] might feel threat or fearful in any way.
Mr B summarised his involvement with the father in the following terms:-
In summary, [the father] was not open to consideration of any difficulties with reactivity or emotional regulation. He was not open to consider any role that he might play in the conflict with [the mother] or any contribution to X’s difficulties or possible dilemmas that might arise for the other children.
Mr B was concerned that continued discussion with the father might “serve only to further entrench a fixed and limited position”. He terminated his professional relationship with the father after two visits rather than continue for six visits as had been the order.
The mother did not readily accept that Dr F should undertake the therapeutic process with the father notwithstanding that the order provided for the ICL to determine with whom the father should engage in circumstances where Mr B was not available.
I am uncertain whether irrespective of the physical unavailability of Mr B arising out of his travel arrangements it would have made any difference to his preparedness to re-engage with the father.
The focus therefore is very much upon the father’s involvement with Dr F.
Dr F holds the qualification as a Registered Psychologist, Qualified Social Worker and a NAATI Qualified Interpreter Level 2 in Modern Greek.
His tertiary qualifications include a Bachelor of Arts conferred in 1983, a Bachelor of Social Administration conferred in 1986, a Graduate Diploma in Community Languages conferred in 1987 and Honours Arts in Psychology conferred in 1990.
He became a Registered Psychologist in 1992 and established a number of programs that involved first male survivors of sexual abuse within a tertiary setting and commenced full time private practice in 1996.
The father was initially referred to Dr F for management of anxiety consequent upon marital separation. The father received ongoing counselling and therapy to “assist him with developing therapeutic strategies to reduce any anxiousness his children could experience while he re-engaged with them…”.[13]
[13] Exhibit “22” K2.
Dr F noted that the parties separated in 2015 “amid allegations of violence that [the father] strongly denied and has maintained to this date”.
The history given by the father was such that Dr F did not consider that there were clinical indicators that the children would be unsafe with their father.
The father attended for therapeutic assistance on 23 February 2018, 10 April 2018, 21 and 30 August 2018 and 18 September 2018.
Dr F recorded that the father had reported “positive interactions with [Z and Y] over the 18-month access period”.
The father expressed a view that he accepted X’s decision and did not want to force or pressure X into re-engaging with him.
The father was recorded as presenting in the following manner:-
[A]s a caring, committed and doting parent who has remained primarily focussed on his concern for the psychological well-being of his children. In short, he is keen to re-establish contact and commence ‘parenting’ again and it is my opinion that he does not pose any risk associated with resuming contact with his children.
Dr F was asked to review the father and provide an addendum report.
It is apparent from the report dated 15 March 2019 that Dr F had been asked to specifically consider and focus on the topic of anger management.[14] He provided further detail of his employment as a Social Worker in Community Corrections with a focus on providing:-
[C]ounselling to adult offenders with anger management difficulties and have continued to provide such treatment after the completion of further studies and becoming a Registered Psychologist.
[14] Exhibit “22” K3.
He has provided psychological and pre-sentencing reports with therapeutic recommendations as to anger management and has specialised in migrant mental health issues involving women who were subjected to domestic violence. He accepts referrals from a local domestic violence service.
Dr F acknowledged that he had read the various reports of the family consultant, Mr B and judgments delivered on 27 July 2018 and 19 November 2018.
Dr F records that the father continued to maintain he had not been violent or aggressive to the mother or the children but nonetheless over two therapeutic sessions on 5 and 12 March 2019 the following topics were the focus of therapeutic intervention:-
·Impulse control, frustration and self-awareness management;
·Psycho-education regarding the physiological and psychological cues to anger;
·Anger arousal reduction techniques e.g. deep breathing and calming techniques;
·Safe, appropriate and respectful physical and emotional ways to “release” anger;
·Differentiating between assertiveness and being hostile;
·Rebuilding relationships damaged by anger issues;
·Communicating needs without disrespecting others.
The father continued to express his upset that he felt he had been forcibly removed from the children’s lives.
For reasons that are not explained in the report, Dr F provided an opinion on the difficulties associated with “father absence” and the potential adverse consequences to a child’s emotional well-being of “parental alienation”.
Dr F did not observe that the father had ever spoken poorly about the mother and recognised that whilst at one point he was keen to explore a reconciliation with her, he now realises that the relationship is over; hence his focus on therapeutic assistance to relieve his anxiety.
Dr F initially saw the father to assist in his anxiety and was not made aware by either the father, his solicitor or the referring general practitioner that there were concerns as to the father’s ability to control his anger.
At all times, the father denied that he had ever been the perpetrator of family violence.
Dr F did not consider that the issues raised by the family consultant and to a lesser extent Mr B in his 2017 report were of sufficient force to cause the father’s trenchant denial of aggressive conduct to be questioned.
The evidence reflects a different circumstance than Dr F considered consequent upon the father’s history.
I am satisfied that Dr F has the requisite qualification and skillset to be of assistance to the father in respect of matters relating to anger management and benign presentation.
Notwithstanding the father’s denials, I have found that the father’s behaviour had features of aggression and that he was quick to temper.
Dr F had the potential to be more influential in assisting the father modify his behaviour, however, he was not assisted by the father’s denials that he had engaged in family violence nor the truncated information supporting the father’s referral to him.

Ms G

Ms G is the maternal grandmother. Her evidence is contained in her Affidavit filed 16 February 2018.
The maternal grandmother reports that there were various occasions when she observed the father reacting aggressively towards the mother and using offensive language. She refers to an incident in August 2013 when she observed the father to yell and scream at the mother because of his concern that she was seen in public with a “gay man”. She recalls that the father was loud and grabbed the mother by the throat yelling at her and threatening to kill her. The maternal grandfather intervened in the altercation.
The maternal grandmother was a witness to the incident involving the father “throwing Z onto the couch”. She records in that she was at home in her kitchen and remembered that the mother, father and Z were in the lounge room. She heard the mother shout “why did you throw the baby”.[15]
[15] Affidavit of the maternal grandmother filed 16 February 2018 [35].
She then observed the father leave the house, the mother locking the door so he was unable to re-enter and the father then referring to her as a “lying bitch”.[16]
[16] Affidavit of the maternal grandmother filed 16 February 2018 [36].
In her evidence she resiled from the contents of [35] and [36] of her affidavit and realised for the first time that the contents were incorrect.
It was her evidence that she was standing in the open space in the kitchen and could see the couch given that she was no more than a few metres away.
It is her recollection that the mother was not seated.
The difference is significant. Her affidavit is to the effect that she did not see the incident, whereas her evidence is that she now did see the incident. It was put to her that she had changed her story in order to support the mother’s evidence.
There were other significant differences in terms of the maternal grandmother’s observations which are inconsistent not only with her affidavit but also with the evidence of the mother.
I consider that the maternal grandmother’s evidence corroborating the mother’s evidence that the father threw Z onto the couch is unreliable.
I accept the general observations that the father was aggressive and that the mother was justified in her fear of the father and her consequent anxiety.

Mr S

Mr S is the maternal grandfather.
He corroborated the evidence of the maternal grandmother and the mother that there were many occasions when the father would yell at the mother, call her a whore and a liar and had accused her of extra-marital relations.
The maternal grandfather was present in August 2013 and observed an incident at the Suburb P residence where the father became angry at the mother because she had spent the day with a friend from Perth. The father considered that the mother’s friend was gay and became so angry that he grabbed the mother by the throat and told her that he was going to kill her.
The maternal grandfather intervened, pulled the father away and removed him from the premises to give him time to settle down.
On 23 September 2014 the maternal grandfather received a telephone call from the father advising that he was on his way to take the children. The maternal grandfather then padlocked the front gate and picked up a tomahawk axe for self-defence.
As anticipated, the father arrived, left his car and even though he was told not to enter the Suburb P property, he jumped over the fence, landed on top of the maternal grandfather and pushed him into the garden.
There was a short altercation between the father and the maternal grandfather. The maternal grandfather considers that the father threatened him with the tomahawk axe once he had taken possession of it, whereas the father admits to removing the tomahawk axe but only to ensure that the maternal grandfather did not use it.
The maternal grandfather was able to provide some insight into the relationship between the parties generally. He conceded that the father loved the children and in the beginning he was observed to play with the children, take them to the park, swimming and other fun activities. He put the children to bed at night and there were occasions when the maternal grandfather observed that the family were happy.
The father was observed to interact in a positive fashion with the children, but it was the father’s volatility that created uncertainty, upset and anxiety in the mother.
The maternal grandfather advised that he had asked the police to drop the charges and take no further action. The maternal grandfather was not injured. There were three young children and at that time he at least contemplated the possibility that the parties may reconcile.
I accept the evidence of the maternal grandfather. He was measured in his response and was prepared to concede that when not acting angrily the parties had enjoyed happy times and there was a strong affectionate bond between the father and the children.

Ms J

Ms J is a Director a counselling, consulting and training practice and a clinical practicing psychologist.
She has long experience with family violence and sexual assault and has been the mother’s treating psychologist since 12 September 2015. She received a request from the mother’s solicitor to prepare a report detailing her professional involvement with the mother. Reports were prepared on 19 April 2017 and 8 February 2018.
The mother was referred to Ms J on 8 August 2015 to assist in her recovery from a “violent relationship with her husband”. The initial diagnosis was of Post Traumatic Stress Disorder (“PTSD”) and the mother reported that she was not sleeping well, unable to socialise and feared coming into contact with the father.
Ms J recorded the mother’s history of the father’s controlling and violent behaviour and his threats to hurt the mother and members of her family.
The mother reported to Ms J that on one occasion the father had tried to choke her.
Ms J records the mother’s description of her marriage with the father in the following terms:-
I lived with a terrorist through the marriage…. He would ring me up to twenty times a day…I had to put in security… Now he attends Mum’s church and has brainwashed all the congregation to think badly of me… He’s organized the priest to have meetings with my mum to force me to reconcile with him… [The father] even brainwashed my father. Thankfully my dad saw a psychologist…Mum’s upset; she is not going to go to church for a while. [The father] told everyone that the police officer who arrested him was my friend and that my dad tried to kill [the father].
Ms J confirmed a diagnosis of PTSD following the application of a diagnostic standardised test.
In particular the mother’s symptoms were severe in that she had intrusive thoughts constantly reminding herself of the domestic violence perpetrated by the father; avoidance in that she had removed herself from many social and public activities; and hyper-arousal evidenced by difficulty in sleeping and concentrating.
Ms J recorded the mother’s awareness that the children, but in particular Z, want a father and whilst the mother would be keen to have a responsible caring person in the lives of the children, she did not believe that the father was capable of fulfilling that role.
In her report of 8 February 2018 Ms J considered that the mother was still suffering from PTSD although there had been some signs of improvement. The mother was now socialising at a more frequent level, had been seeing friends and making plans about the future.
It is a particular concern to the mother that the father had not been made accountable for his conduct and her fear is exacerbated by the father’s continued denial of his conduct.
Ms J was questioned as to the correctness of her diagnosis that the mother continues to suffer from PTSD.
However, she remained resolute that the mother displayed the requisite diagnostic criteria.
Ms J considered the hierarchy for treatment in dealing with an abusive party as comprising the following steps:-
·That a perpetrator needs to admit abuse;
·The perpetrator then needs to commit to change;
·Insight and remorse needs to be shown;
·The perpetrator needs to concede the serious consequences to the victim of family violence.
Ms J was an impressive witness and displayed considerable professionalism in her evidence.

The family consultant

The family consultant was appointed on the joint instruction of the parties to undertake a family assessment and to provide a report to assist the Court in determining interim and final orders.
The family consultant has produced the following reports:-
·12 April 2017 (“the first report”);
·8 February 2018 (“the second report”); and
·25 August 2019 (“the third report”).
The family consultant first saw the parties and the children in early 2017. The proceedings had already been the subject of court orders and the family consultant noted that the father was to attend on Dr F, an anger management course and a Circle of Security parenting program. The children were spending time with the father at a children’s contact centre. During the third visit X asked to leave and did not thereafter participate, whereas Y and Z attended without difficulty.
In interview the mother acknowledged that the two younger children “quite like the time with their father” but that despite X having attended upon a counsellor she remained reluctant to engage.
The mother considered that X had experienced a good time with her father but then “she remembered some things” and refused to attend further.
The mother’s presentation during the first report in 2017 was more kindly disposed to the father continuing a relationship with the children than her current presentation. She considered that:-
If [the father] loved the children he would do what the Judge has asked, which is to attend a Psychologist every week and still see the children fortnightly supervised for a year. …[17]
[17] Family Assessment Report dated 12 April 2017 page 3.
The family consultant recorded that the mother considered that the father had abused them socially and financially and that living with the father and her experiences post-separation were akin to “terrorism”.
In interview the mother maintained her fear of the husband and her rising anxiety was readily apparent.
The mother recognised that the children would benefit from having a relationship with their father providing it was safe to do so. The father’s continual denial that he had acted aggressively towards the mother increased her pessimism that she and the children could feel safe.
For his part, the father considered that the children love him and that they wanted to spend time with him. He did not accept that his behaviour had in any way been adverse to their interests.
He was not able to understand why X had decided not to see him after the third visit and he referred the family consultant to correspondence and photographs indicating X loved him.
He was concerned that the children were influenced by the mother.
The father’s denials that he was ever verbally abusive or threatening towards the mother have been his consistent position throughout the proceedings. In interview X indicated that she knew that the purpose of the interview with the family consultant was to explore why she did not live with her father.

Irrespective of the orders that are made in respect of Y and Z, the family consultant considers that it would be difficult and, in any event, likely to have a significant adverse impact on X if she were required to see the father.
Four years have now passed since X has had any communication with the father.
The evidence of the family consultant provide no adequate explanation for X’s trenchant refusal. Whilst I accept that X provides at least in part an explanation for her refusal to engage with the father, the father’s conduct in “throwing” Z onto the couch and jumping over the fence at the home of the maternal grandparents in September 2014, it is uncontroversial that she made no observations as to the latter incident, only learning about it several months later from the mother or her grandparents and it is also likely she made no observation of the Z allegedly being thrown onto the couch.
Since separation there is no evidence that the father has behaved inappropriately. There is no evidence that he has breached the conditions of the intervention order and his conduct with Y and Z is such that they each enjoy their time with him.
X’s decision to have nothing to do with the father was made in November 2016 at age seven years. There is no evidence that the initial refusal was made for good reason. It is not suggested that the child was possessed of a level of maturity and insight that would have enabled her to make such a decision and for it to be given overriding weight.
There is evidence that at the time X still considered that her father had something to offer her.
The evidence of the family consultant is that so much time has now elapsed that it is difficult to turn back the clock and attempt to restart the relationship.
I bring to account the proper observation of the family consultant that whilst little weight can be given to X’s specific recollection of incidents, her broad concern of the father’s at times aggressive controlling and coercive conduct is a matter that should be considered. Even with that consideration in mind, it is difficult to find that it represents a complete justification for the complete disintegration of X’s relationship with the father. The difficulty that arises from X not seeing her father is that Y and potentially Z may decide that they should be given the same latitude as X and cease time with their father not because it is without benefit but potentially because it is inconvenient and a disruption to their regular routine.
Subject to the further consideration of risk, there is nothing to suggest that X should not see her father, in particular with her siblings, but the evidence of the family consultant is that it would not be workable.
The mother did not impress as being prepared to exert any parental influence over the child to either see, speak or communicate electronically with the father. I do accept that the mother would not stand in the way of any request by X to communicate with her father, but I find that she is unlikely to promote X’s relationship with him.
In the absence of evidence that would assist the Court in a process whereby X is reunited with the father, I am not able to exercise my discretion other than to enable the father to provide gifts and appropriate written communication consequent upon a special occasion taking place.

Are the children at risk?

In M v M (1988) 166 CLR 69 the Full Court gave consideration to the treatment of allegations of sexual abuse. The Court considered at [19] treating an allegation of sexual abuse as the paramount consideration was an error identifying that in all proceedings under pt VII of the Act the “court is enjoined to “regard the welfare of the child as the paramount consideration” (s.60D).”
In Vasser & Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touch stone” of the principles to be applied in cases of asserted unacceptable risk of any kind.
The decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, assists at 82,713-4, where Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (supra), and proceeded to adopt the following list of inquiries with respect to risk assessment and analysis:-[20]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[20] As taken from B Mahendrafft “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I adopt that passage as helpful in cases such as these in analysing the asserted risk.
The mother has alleged a history of family violence and coercive and controlling behaviour perpetrated by the father.
The mother sets out aspects of the father’s behaviour that she considers exposes her and the children to family violence within the definition of s 4AB of the Act. I have considered the findings that the mother wants the Court to make as set out in her counsel’s case outline document.
I have little difficulty in finding that during the course of the relationship the father engaged in aggressive and controlling behaviour. The mother suffered from anxiety and the father’s conduct exacerbated her anxious presentation.
It is likely that the father did accuse the mother of having an affair notwithstanding the mother’s denials until she considered that the only way to mollify the father was to admit the father’s assertion.
Whilst denied by the father, the evidence of the mother’s parents satisfy me that at times the father used aggressive and offensive language in his description of the mother.
I am not satisfied that the mother’s assertion that the father threw Z onto the couch in 2012 occurred in the way that she describes.
Of greater moment is the mother’s complaint corroborated by the evidence of the maternal grandparents that the father alleged that the mother was “running around with a poof” and in the course of the argument grabbed the mother around the throat. There was also a threat that he was going to assault the maternal grandmother.
Family violence must not be ignored. In Pascoe & O’Keefe and Ors [2018] FamCAFC 243 the Full Court supported the position that family violence must be given strong weight:-
46.… In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child (Blanch v Blanch and Crawford (1999) FLC 92-837 at 85,745-85,748; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [32]-[36]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmadi (2012) FLC 93-506 at [189]).
47.The fact a child may not currently manifest symptoms of exposure to family violence does not mean the exposure has not already been harmful or that more exposure in the future will not compound the harm. The mother’s false contrary assumption underpinned one ground of appeal, which must fail (Ground 8). Her submission that the risk of harm to the child is reduced because neither B nor C exhibit any tangible ill-effects of their past exposure to the second respondent’s violence is therefore rejected as fallacious.
The children have the potential to be affected in different ways.
There are a number of considerations that must be balanced. Whilst the conduct of the father towards the mother was at times egregious, it is a relevant consideration as to whether the father has gained any insight and whether his conduct is likely to impact upon the mother, taking into account her “emotional fragility”.
The father denies the mother’s allegations of overt family violence. To the extent that his denial includes the broad assertion that his conduct was both aggressive and coercive I find in favour of the mother.
It is a more nuanced consideration as to whether post-separation the father has gained any insight at all. The father continues to deny his behaviour was consistent with family violence.
It is a relevant consideration that post-separation the father did engage with his psychologist and that he continues to maintain a relationship with him.
The mother remains fearful of the father and believes that he may be stalking her, driving past her home and that his conduct in living some 700 metres from the mother’s home and 400 metres from the home of her parents was deliberate and designed to further intimidate the mother and her family.
The mother also believes that the father’s involvement in what had been the family church is also a demonstration of his preparedness to intimidate her.
There is a finding that the father breached an order by taking Z into a shopping centre unsupervised. The father knew what he had done and it was only when the CCTV footage was the subject of subpoena that he accepted that he had been in the shopping centre for an extended period of time unsupervised.
That said, the father’s time with Z and Y has been largely uneventful. He has not been charged with any breach of the intervention order, nor has he challenged the longevity of the order.
Family violence must be given strong weight but it is not determinative and must be considered as one of the factors which needs to be brought to account in determining what is in the children’s best interests.
The family consultant was steadfast in her evidence that the children’s interests are best served by them maintaining a relationship with the father. She did not support the father’s parenting proposals but neither did she consider that the mother’s parenting proposal would benefit the children by the total cessation of any relationship with the father.
The family consultant’s evidence is consistent with a finding that the father has much to offer the children. Z in particular, is keen to see his father and enjoys his time. Y similarly enjoys her time with the father although there may be early indicators that Y may be influenced in her preparedness to continue to engage with the father given her observation that X is not required to do so.
I consider that there are risks to the children but the extent of the risk is not such as would justify a finding that there is an unacceptable risk of harm to them.
There is the further consideration of the mother’s reaction to the children maintaining a relationship with the father. I am satisfied that the mother’s anxiety is genuine and that there is some exacerbation of her anxious state by the continued presence of the father and the children’s relationship with him.
The evidence of Ms J is of assistance. The mother is coping with the current circumstances and able to continue her employment and care for and promote the development of the children.
The mother has considerable support from members of her family.
The mother has historically not been totally opposed to the children having a relationship with their father. She recognises that there may be benefit to them of a relationship continuing. She concedes that if X wanted to communicate and/or see her father she would facilitate it.
The mother agrees that the children would benefit by their father remaining in their lives providing he has something beneficial to offer. It is her position that the father lacks insight and until he accepts the consequences of his aggressive behaviour the children will not be advantaged by having a relationship with him.
On balance I consider that a cautious approach will ensure that the children get the benefit of maintaining a relationship with their father in circumstances where supervision can assist in the short to medium term.

Wishes of the child

The extent of the weight that should attach to the wishes of the children has been carefully considered by the family consultant. In respect of X, the family consultant considered that to put in place orders contrary to X’s wishes would be unworkable. X would be unlikely to spend time with the father and in circumstances where the mother does not instil any confidence that she would promote the relationship, X’s wishes should be given significant weight.
Y and Z are prepared to spend time with the father although there is uncertainty as to their attitude should there be a significant increase in the time that they spend with him.
There is no circumstance where the children’s wishes are consistent with the father’s application seeking shared care.
It is also a factor that the children are likely to be influenced not only by the mother’s lack of interest in promoting their relationship with the father, but also the difficulty arising from their observations of X not being obliged to attend.
I consider that Y and Z love the father and enjoy their time with him. Y impressed the family consultant by her desire for her parents to reconcile so that she could enjoy the benefits of an intact family.
Y and Z do not fear the father and Z considers that his time with him is enjoyable.
I give some weight to the views of the children, but taking into account their ages and the other factors that may impact upon them in terms of their mother’s attitude to the father, X’s refusal to see him and the somewhat artificial circumstances in which the children currently spend time with the father, I give some weight to the children’s views but do not consider that they should be determinative.

The nature of the relationship of the children with the parties and others

The primary attachment of the children is clearly with the mother. The reality is that the children have spent little time with the father since separation.
There has not been any overnight time and to date the children’s time with the father has been the subject of either supervision or substantial presence of a third party. At present, the children spend time with their father pursuant to a children’s contact service program.

The likely effect of any changes in the children’s circumstances

There will be no change to X’s current circumstances. I do not propose to make orders that would require her to spend time with the father, although I consider it would be in her interests given that her position towards the father is now more consistent with ambivalence rather than fear, that the father be permitted to forward to her gifts and appropriate correspondence.
The mother’s proposal is that the children should spend no time with the father. Whilst it might seem only a small change from the few hours a fortnight that the children currently spend with him, there is a qualitative difference between the children maintaining a relationship with the father and an order which would result in no relationship at all.
In circumstances where I find that the mother has little interest in promoting the children’s relationship with the father, it is unlikely that either Z or Y would spontaneously seek out a relationship with him.
The change in the children’s circumstances that would arise from the mother’s proposal would be far reaching and adverse to the children’s best interests.
To some extent, X’s presentation is an example of the consequence of a no time spent with order being put in place.
The father’s proposal seeking shared care is equally dramatic.
There is no evidence which would support the orders that the father seeks. He does not know how the children would react to an order leading to shared care and does not seem able to comprehend the pitfalls that confront him.
It seems that the mother needs the security of the children’s time with the father to be the subject of substantial presence or supervision whilst he undertakes further therapeutic engagement with Dr F. There is likely to be a more beneficial outcome to the ability of Dr F to provide therapy to the father in circumstances where the father and his psychologist will have the benefit of this judgment.
It is obvious that supervision is not a viable long term order. It is also apparent that the current involvement of the children and the father in the children’s contact service program is of necessity of limited duration.
Consideration therefore needs to be given as to the extent to which supervision should be put in place and whether at some point it should be dispensed with.
I must always be guided by the children’s best interests and as such I accept the evidence of the family consultant that the children have much to gain by maintaining a relationship with their father.

Family Violence

I have found that the father has perpetrated family violence in the manner as discussed. Whilst the mother’s evidence alleging family violence displayed an unnecessarily dramatic edge, it did not detract from the very real effect that the father’s conduct during the course of the relationship had on the mother, her family and by necessary association, the children. As considered by the family consultant, X may not have been a witness to specific incidents but she nonetheless was affected by the father’s overbearing and controlling conduct.
I did not find that the father’s conduct amounted to an unacceptable risk. The risk that does remain was able to be balanced against the very real advantage to the children in particular Z and Y, of maintaining a relationship with their father by the initial periods of his time being substantially supervised, the delayed introduction of any overnight time and the ongoing obligation for the father to engage with his psychologist. The father and Dr F now have the advantage of the orders and judgment in these proceedings and any future therapeutic intervention is now likely to have a more defined focus.
Whilst it may not be necessary to do so, I have also given consideration as to whether the father would act in a manner consistent with the mother’s fears.
The mother’s principal concern was that the father may remove the children from Australia.
The issue was never energetically pursued either directly with the father or by the presentation of independent evidence.
I have found that the children being placed on the Airport Watch List and that they do not have a passport held by the father is in and of itself a significant barrier to abduction.
I did not consider that the mother’s evidence supported a finding that the father either intended or had a propensity to remove the children from Australia. I was also impressed with the father’s presentation on the topic. I do not consider that there was a credible risk of the father abducting the children.
The parties have been separated for a significant number of years and whilst it is a valid criticism that the father has not been able to accept his conduct was potentially damaging to the children, there has been no credible incident or event which supports a finding that the father presents as a physical risk to the mother or the children.
There has been not much evidence as to the existence of the open-ended Intervention Order. It remains in place and it appears that the father has not sought to challenge the order or vary the terms and conditions such as to limit its operation. It adds a further level of protection for the mother.

The intervention order ads a further level of protection for the mother even though there is no evidence that it has been the subject of breach or challenge by the father.

Further Litigation

The parties have been before the Court since 2015.
There has been ongoing litigation and it is reasonable to find that neither party will be satisfied or content with the orders that I propose to make. I suspect that the parties will not be content to accept the outcome. However, whilst the mother’s proposal that the children spend no time with the father within the medium term bring the litigation to an end, that enviable goal must be subservient to the best interests of the children.
It would be an unacceptable outcome to find that no order for the children to have a relationship with their father would be better that the risks of further litigation.

Parental responsibility

Parental responsibility is to be informed by what is in the best interests of the children. At present the mother has taken on the obligation for all decisions in respect of major issues affecting the children. The father has been effectively excluded. Whilst there is always considerable advantage to the parents of children exercising equal shared parental responsibility, there are some circumstances that cannot be given effect.
Family violence is a factor that is the very antithesis of shared parental responsibility.
It is not reasonable to expect the mother to ever enter into a discussion with the father. The mother would run the very real risk of exacerbating her emotional fragility and thereby impacting upon her ability to maintain her employment, to pursue her desire for emotional stability and to continue the important role of being the children’s primary carer.
In those circumstances and by reference to the factors pursuant to s 60CC both as to the primary and additional matters, I consider that the mother should have sole parental responsibility. There is no reason why the mother should not communicate her decisions to the father but there is little or no likelihood of the parties being able to engage in productive discussion.

Conclusion

As discussed, I propose to make no order that would require X to spend time with or communicate with the father.
I propose to required that the children spend time with the father for a period of six months under the substantial presence of either Mr or Ms C with the father’s time to gradually increase subject to an order that the father re-engage with Dr F for not less than six sessions. The focus of the therapeutic intervention will relate to reinforcing the father’s insight into the potential for deleterious impact upon the children of family violence. Dr F has already commenced counselling and therapeutic intervention with the father and a continuation of those sessions is likely to be of benefit to the father and may ameliorate to some extent the mother’s anxiety.
Thereafter, I propose that the father’s time with the children will be unsupervised and be of increasing duration.
I make orders as appear at the commencement of these reasons.

I certify that the preceding four hundred and forty-three (443) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 December 2019.

Associate:

Date: 20 December 2019

[2019] FamCA 997

20 December 2019

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Remedies

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Procedural Fairness