Gallagher & Day
[2025] FedCFamC2F 36
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gallagher & Day [2025] FedCFamC2F 36
File number(s): NCC 1910 of 2023 Judgment of: JUDGE BETTS Date of judgment: 20 January 2025 Catchwords: FAMILY LAW – Parenting – one child, age seven – where the father has a history of alcohol abuse and mental health difficulties – where the father behaved in a coercive and controlling manner throughout the parents’ relationship and continues to do so with his current partner – where the father has perpetrated high level family violence against the mother and more recently towards his current partner – where the father denies being a perpetrator of family violence and seeks to initially spend supervised time with the child – where the mother seeks a no time order – where the Court considers that the father poses a serious risk of harm to the child – where the Court considers that the father should spend no time and have no communication with the child – best interests of the child. Legislation: Family Law Act 1975 (Cth), Pt VII Cases cited:
Isles & Nelissen (2022) FLC 94-092
M & M (1988) FLC 91-979
Division: Division 2 Family Law Number of paragraphs: 211 Date of last submission/s: 11 October 2024 Date of hearing: 9, 10 and 11 October 2024 Place: Newcastle Counsel for the Applicant: Mr Gallimore Solicitors for the Applicant: Mason Lawyers Counsel for the Respondent: Ms Evelyn Solicitors for the Respondent: The Family Law Co Counsel for the Independent Children’s Lawyer: Mr Scarlett Solicitors for the Independent Children’s Lawyer: Coast Law ORDERS
NCC 1910 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GALLAGHER
Applicant
AND: MR DAY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS THAT:
1.All prior parenting orders are discharged.
2.The Mother will have sole parental responsibility for X born in 2017 (“X”).
3.X will live with the Mother.
4.X will have no contact or communication with the Father.
5.Pursuant to s68B(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), the Father is restrained from approaching, contacting or communicating in any way with X or from coming within two hundred (200) meters of X’s school or home. This is an order for the personal protection of X to which a power of arrest attaches pursuant to s68C of the Act.
6.Pursuant to s68B(1)(b)(i) of the Act, the Father is restrained from approaching, contacting or communicating in any way with the Mother. This is an order for the personal protection of the Mother to which a power of arrest attaches pursuant to s68C of the Act.
7.NOTING this Court’s concern about the physical safety of the Father’s partner, Ms B, these Reasons and orders will be immediately provided to:
(a)The Commissioner of Police, Queensland, NOTING that the Father and Ms B presently reside in City C;
(b)The Commissioner of Police, New South Wales, NOTING that the Father and Ms B may be returning to live in New South Wales;
(c)The Department of Communities & Justice (NSW);
(d)The Department of Families, Seniors, Disability Services and Child Safety (QLD).
8.The mother is at liberty to provide a copy of these orders to X’s school, and to any other person or organisation who has the care of X from time to time.
9.The mother is at liberty to provide a copy of these Reasons and orders to Ms D.
10.The ICL is requested to meet with X within fourteen (14) days and explain the orders to her in an age-appropriate way and the mother is directed to facilitate that meeting.
11.Any costs applications are to be heard on 26 February 2025 at 9.30am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
INTRODUCTION:
These parenting proceedings concern a young and vulnerable girl, X, born in 2017. X is presently seven (7) years old and will shortly be commencing Year 2 at school.
X is the daughter of Ms Gallagher (“the mother”) and Mr Day (“the father”). The parents commenced a relationship in 2010, married in 2017 and finally separated in May 2020 after a serious event of family violence in which the father was the perpetrator and the mother and X were the victims. It was not an isolated event; from early on in their relationship the father had behaved in a coercive and controlling manner towards the mother.
Post-separation, the mother remained single and X has lived with her. Under pressure from the father, the mother agreed to X spending unsupervised time with him, including overnight time.
The co-parenting arrangements for X abruptly ended in early 2022 when the mother unexpectedly received a call from the NSW Department of Communities & Justice (“DCJ”). They advised her not to send X to the father as they held significant concerns about X’s safety in his household in respect of high level family violence he had perpetrated against his new partner, Ms B. Specifically, Ms B’s two (2) young children had made disclosures about the father choking their mother; they had intervened to try to rescue her, only to have him ‘manhandle’ them as well. As a result, Police charged the father with various violent offences in respect of Ms B as well as applying for an Apprehended Violence Order (“AVO”) against the father to protect both Ms B and her two children.
“Triggered” by these allegations, particularly given her own past violent experiences with the father, the mother sought psychological assistance and decided not to send X to his home anymore. Facetime communication between the father and X also broke down soon after.
The mother subsequently brought these proceedings, seeking a “no time” order. She is however agreeable to the father maintaining some limited written communication with X on three (3) occasions per year, subject to her first ‘vetting’ same. Her case is that the father poses unacceptable risks to X on account of his longstanding propensity for family violence, alcohol abuse and alleged untreated mental health difficulties.
The father seeks supervised time with X for an initial period of twelve (12) months, followed by unsupervised time. He denies being a perpetrator of family violence, pointing to his later reconciliation with Ms B and to the dismissal of the various criminal charges against him, as well as the AVO for her protection. Notably, the charges and AVO were dismissed because Ms B did not want them to proceed and for her to have to give evidence. The father of Ms B’s children (Mr E) did however attend the Local Court on behalf of their two children, and the father in this case consented to an AVO prohibiting him from having any communication with those children for five (5) years – a lengthy period reflecting the gravity of what occurred and to which I will turn later.
The father and Ms B have since relocated to Queensland, a very significant distance from her home and family. Ms B has become increasingly ‘cut off’ from her own family. She no longer sees her own children.
The father did not call Ms B as a witness in this case, instead tendering a letter in her handwriting which he said she ‘dropped off in his letterbox.’ The letter is self-deprecating, entirely exculpates him for the violent incident and suggests that she is the one to blame for what happened. The letter corroborates the obvious power imbalance between them and otherwise makes for sad and rather pitiful reading.
Pursuant to extant interim orders, the father presently has supervised Facetime communication with X on a fortnightly basis for one (1) hour, supervised by F Contact Service, a professional supervision agency. It is common ground that this arrangement will cease.
For the reasons which follow, I have decided to make the mother’s proposed orders but without any provision for the father to continue to communicate with the child. This is the position which was ultimately adopted by the Independent Children’s Lawyer (“ICL”). In so deciding, I have come to the melancholy conclusion that the father poses grave and serious risks of harm to X. Moreover, the father poses such extreme danger to Ms B that I have decided to make a suite of orders specifically designed to protect her from him.
THE HEARING / MATERIAL RELIED UPON:
The final hearing took place from 9 – 11 October 2024. Mr Gallimore of counsel appeared for the mother, Ms Evelyn of counsel appeared for the father and Mr Scarlett of counsel appeared for the ICL.
The mother relied upon: Case Outline document filed 8 October 2024; Amended Initiating Application filed 30 April 2024; Affidavit of the mother filed 5 September 2024; Affidavit of the maternal grandmother, Ms H, filed 5 September 2024; Affidavit of Ms B’s mother, Ms G, filed 5 September 2024; and an Affidavit by the mother’s psychologist, Ms D, filed 5 September 2024 annexing her treatment report.
The father relied upon: Case Outline document filed 8 October 2024 and the father’s Affidavit filed 25 September 2024.
The ICL relied upon a Case Outline document filed 7 October 2024.
Numerous exhibits were tendered in the course of the hearing, including annexures to Affidavit material, subpoenaed records and a video-recording of the father’s violent behaviour towards the mother (with X present) in mid-2020. I also had the benefit of a Single Expert Report (Family Report) by Dr J, Clinical Psychologist, dated 1 March 2024, which was tendered as exhibit 1. I will refer to the exhibits to the extent that they are relevant.
In arriving at factual findings, I have been assisted by seeing and hearing each of the witnesses in the course of cross-examination.
As a broad statement, I found the mother to be an impressive witness. She had a solemn demeanour and came across as somewhat “flat”. I am certain that she has found co-parenting with the father very difficult and these proceedings quite anxiety-provoking.
I was impressed by the evidence of the maternal grandmother (which broadly corroborated that of the mother) and with the evidence of Ms B’s mother, Ms G. I was also impressed by the evidence of Ms D, who has done what she can to support the mother’s mental health ever since May 2023.
The father, in contrast, was an unimpressive witness. He consistently came across as not accepting responsibility for his own behaviours, deflecting or attempting to deflect blame for his behaviour onto others. These ‘others’ included the mother, Ms B and her ex-partner and father of their children, Mr E. He had a victim mentality; in his mind he had not done anything wrong and these people were simply ‘out to get him’. This was also how he had presented to Dr J in the Family Report interviews. Having considered all of the evidence it is unclear whether he genuinely sees himself as a victim or whether it was all just an act. In any case, he is clearly a perpetrator of high level family violence without remorse or empathy.
THE LAW:
These parenting proceedings are governed by the recently-amended provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When making parenting orders, the Court must regard the ‘best interests’ of the children as the paramount consideration: s 60CA of the Act. Amongst other things, parenting orders include orders allocating parental responsibility for a child, and orders for a child to spend time and/or communicate with a parent or with other significant people in their life.
In arriving at a ‘best interests’ determination, s 60CC of the Act provides:
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Island child – also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Additional considerations – right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a)the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii) to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
Though “safety” is not defined in the Act, it is clearly a term of wide import which encompasses not just physical but also psychological and emotional safety. It includes keeping a child safe from the risk of “family violence” which is broadly defined in s 4AB(1) of the Act as:
violent, threatening or other behaviour that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
Section 4AB(2) of the Act gives some specific examples of family violence, including assaults, sexual assaults, stalking, repeated derogatory taunts, and preventing a family member from making or keeping connections with family and friends.
Section 68B of the Act empowers the Court to grant injunctions that it considers “appropriate” for the welfare of the children, including for their personal protection.
Prior to the recent amendments to the Act, there was a well-established body of jurisprudence addressing how the Court is to deal with risks to children when making a parenting order. [1] The effect of the jurisprudence is that, as the Court’s ultimate obligation is to make a parenting order which is in the best interests of the children, an order cannot be made which places a child at an ‘unacceptable risk’ of harm. Until the Full Court or the High Court decide otherwise, my view is that this prior jurisprudence remains good law.
CHRONOLOGY OF EVENTS & RELEVANT FACTUAL FINDINGS:
The parents
The mother, 34, is an administrative officer. She lives with X at an undisclosed address in Region K.
The father, 32, is a tradesperson. He is Aboriginal. He lives with Ms B in the City C region in Queensland. At present, the parents live about 1,600 kilometres apart.
Early relationship
The parents commenced a relationship in 2010 when both were late teenagers. Each of them lived with their respective parents at the time. The mother found the father to be a charming and attentive partner, and the maternal grandmother also liked him. He told them both at an early date that he was “the black sheep of the family” and “always getting in trouble even though I didn’t do anything wrong”. They felt sorry for him.
Early on, the father began to subtly isolate, coerce and control the mother.
I accept the mother’s Affidavit evidence that:
·in the first couple of years of the relationship, the father discouraged her from continuing to attend Church on the weekend where she had various friends. Instead he encouraged her to sleep in and after about 18 months she had stopped going;
·the father slept with one of the mother’s friends and, when the mother found out, she confronted him and they broke up. He later apologised to the mother, saying he had “messed up” and that he had drunk too much and would never do it again. When they then reconciled, the mother further drifted away from her friendship group;
·once the mother had become distant from her friendship group, the father began pressuring her to spend less time with her family. When they went to events hosted by the maternal family, the father pressured her to leave as early as possible. He would use the excuse that he was playing competitive games, which while true was also a convenient pretext to cut short such events;
·the father regularly commented on the mother’s appearance, including her hair and clothes in particular. He alternated between telling her to “make an effort for him” but, when she did get dressed up, he then asked her questions such as “Who are you getting dressed up for?” and “Why do you look nice?” which would then lead to arguments as he would accuse her of planning to cheat on him;
·when the mother attended work functions, the father sent her a constant stream of text messages asking what she was doing, who she was talking to and when she was coming home. Over time, she found it easier to just go home.
Perhaps most significantly - and this was an ongoing theme in the relationship - the father would tell the mother that she was “crazy”, that “everything is in your head” and that she “needs help”. In the witness box, the father admitted saying these things and it is apparent that he did so over a very long period and in such a way as to make her doubt her own mental health and otherwise deflect responsibility for his own behaviours. Despite this admission, the father went on to say that his concerns about her mental health were genuine and that he had merely “gone about it in the wrong way”. That is to say, it was the use of language which he accepted was wrong, rather than the sentiment. It was hardly an expression of remorse.
I accept the mother’s Affidavit evidence that:
39.Within eighteen (18) months of dating [Mr Day], I had no friends, no self-confidence and my self-esteem had evaporated. Outside of work, my only points of contact were my family, or [Mr Day]’s. I often felt worn down, defeated and isolated.
Alcohol
About a year into the relationship the mother had begun to worry about the father’s drinking. For several months at a time he went on binge drinking sprees, spending the entire weekend drinking. He would then be abstinent for a period before bingeing again. Early on she observed him to be a “happy drunk” - affectionate until the point when he lost control of his limbs. Then he couldn’t walk straight, would slur his words and ramble incoherently, before passing out. The mother would drag him from the lounge room to the bedroom and put him in bed to sleep it off.
When the paternal grandmother passed away in 2012 the father’s alcohol consumption increased. He drank most afternoons and would often become melancholy. Sometimes he would tell the mother out of the blue “I want to be with my mum”. Occasionally, he would say to her that he wanted to “kill himself”. The mother encouraged him to see a GP or a psychologist but he resisted, telling her that he didn’t need help.
Cohabitation and pregnancy
The parents physically moved in together in 2016. By this stage the father was drinking every day. He would arrive home from work, sit outside or in front of his computer and spend an hour drinking a 6-pack of beer. This became his afternoon routine right up until separation.
When the mother fell pregnant with X, the father’s alcohol consumption increased. He was spending so much money on alcohol that it was causing financial strain on the household. But whenever the mother brought up this subject, he would tell her he didn’t have a problem with alcohol and that she was being “stupid” and “just money hungry”.
In 2017, when the mother was about 6 months pregnant, the parents married.
Given the level of the father’s drinking, the mother gently tried to broach with him the topic of how she was going to get to hospital when she went into labour. As he was on a Provisional Licence, he was required to have a zero blood alcohol level behind the wheel. The father rebuffed her, telling her it would be fine and that they would worry about it later.
When the mother went into labour, she woke the father up to ask him to drive her to the hospital. He did so, later admitting to her that he had consumed a 6-pack of beer just before.
I also accept the mother’s evidence that:
67.After [X]’s birth I had [medical conditions] postpartum. When I [fell ill] the second time, it was around four (4) pm. I asked [Mr Day] to drive me to the hospital. [Mr Day] said to me “I’ve had too much to drink, you need to call your mum”.
Sexual coercion
I accept the mother’s Affidavit evidence that:
103.Before I fell pregnant with [X], [Mr Day] frequently asked to video me or take photos of me during sexual acts. I said to [Mr Day] “no, I don’t want to do that”, which caused [Mr Day] to nag me relentlessly, day and night, until I gave in. I usually gave up and said to [Mr Day] “if you have to, just don’t get my face in it”. I recall putting a pillow in front of my face on several occasions to stop [Mr Day] from being able to film or photograph my face.
104.On several occasions, [Mr Day] filmed me or took pictures of me without my knowledge. On multiple occasions, I turned to see [Mr Day] recording me with his phone. I told [Mr Day] to stop, but he refused, saying to me “go on, no-one is going to see it” and “it is just for us”.
In the witness box the father suggested that the videos, filming and pictures were all consensual. I do not accept this. The mother’s psychologist, Ms D, referred to the mother as being a “compliant” person and her participation in these activities was, by and large, an example of such compliance. Overwhelmingly she felt pressured and coerced.
As noted, X was born in 2017.
I accept the mother’s evidence that:
105.The day after [X]’s birth, [Mr Day] and I were alone in a hospital room. Out of the blue, [Mr Day] said to me, “I deserve something now too, give me a blow job”. I said to [Mr Day] “no, I just gave birth, we are in a hospital, do not be ridiculous”. [Mr Day] said, “go on, no-one is going to know, I will shut the doors and curtains and turn the lights off, they will think we are asleep”. [Mr Day] nagged and pressured me for around twenty (20) minutes before I gave up and did what he asked. I recall thinking that if I just got it over with, I would be able to go to sleep.
In the witness box the father initially denied that the mother performed oral sex on him at the hospital; he later clarified and said that she had done so. His behaviour that day was highly coercive, entirely for the father’s gratification and the mother’s will was overborne.
When the mother returned home with X, feeling very tired, groggy and somewhat overwhelmed, the father was pressuring her to have sex with him daily. Prior to her 6-week checkup he insisted on regular oral sex from her. Once she was physically able to have sex again, he would wake her up for this purpose and she would say to him “just get it over with”.
I accept the mother’s evidence that:
109.On any occasion I said no to [Mr Day], he became very angry and often said to me “you go to bed too early”, “you’re ignoring me”, “you’re not meeting my needs, you should put the effort in” and “I deserve it.”
This evidence is consistent with the father’s own evidence in the witness box that, after X was born, the mother was neglectful of his needs and otherwise failed to give him the attention that he thought he deserved.
Baby X
The mother did the overwhelming bulk of X’s parenting. The father continued to drink heavily and, to some extent, he resented the fact that X was taking up so much of the mother’s time and attention. He complained that the mother was a “hovercraft” parent who was too fixated on ‘routine’.
I accept the mother’s evidence that the father was deliberately oppositional to her in relation to various aspects of infant X’s care. I accept her evidence that the father looked happy when intentionally doing the opposite of what she believed was right. She gives the example of baby-proofing the house when X turned 1, including installing a gate in front of X’s room to stop the cat entering her room. Having told the father what she was doing she then saw him teaching the cat to jump the gate and intentionally leaving the gate open and encouraging the cat to go in. I also accept the maternal grandmother’s evidence that she observed the father often making a point of doing exactly the opposite of what the mother had asked. She gives a poignant example of the mother on one occasion saying to the father, “Please don’t give [X] a lollipop, she’s too young, she could choke, it isn’t safe”. She then saw the father hand X a lollipop.
I also accept the mother’s evidence that on one occasion when she arrived home she found the father downstairs playing videogames with his headphones on while X was upstairs, unsupervised and standing on top of the dining table. X was approximately 1 year old at the time.
2019
By 2019, the parents’ relationship was breaking down. The father began behaving in more abusive and coercive ways. When drinking he began to say such things to the mother as “you have a wonky face” or “you have man-shoulders”. He accused her of not making an effort to look good for him, but as noted earlier, when the mother did dress up he then accused her of cheating on him or intending to cheat on him with someone else. He commented adversely on her weight gain when she stopped breastfeeding X, telling the mother that “you’re lucky I can still get turned on by you”. He told her that she was the controlling parent and that she was “crazy” or “money obsessed”. He began following her around the house, screaming various threats or insults at her - often in front of X. After a weekly dinner at the paternal grandparents’ house, he would start abusing her the moment the car door closed to drive home.
The mother annexes to her Affidavit some text messages exchanged between the parents in the early hours of early 2019. [2] It is quite apparent from their exchanges that the father was drink driving at the time, as well as texting. She asked him to come home and he responded with what he agreed were “smart-arse” comments - including that she did not trust him; that he wasn’t going to crash; that he was a superb driver exercising skill and raw talent; and that “sometimes in life you gotta risk a little”. He told her “I get enough shit from my family I don’t need it from you too”.
When he stormed off again in the early hours of the morning in early 2019, they had a further text exchange in which she was clearly challenging him about his drinking. His response was to call her a “cunt”, telling her he didn’t have a drinking problem but that she wouldn’t know because she didn’t drink. He asked her to “chill for once”, accusing her of worrying about minor things. He was deflecting and suggesting that she had the problem, not him.
I accept the mother’s Affidavit evidence that:
92.Sometime around the start of 2019, there was an incident where [Mr Day] entered the bedroom, turned the light on and started yelling. I woke up confused, with no idea what was going on. I noticed [Mr Day] was drunk, he was leaning against the doorway and slurring his words. I do not recall what he was screaming, but something caused [Mr Day] to turn and leave the room. A moment later I heard a loud thud in the hallway outside the room. I left the room and saw a fist sized hole in the hallway wall. [Mr Day] patched the wall a day or so later. Annexed hereto and marked “D” is a picture of the patched wall. [3]
The father agrees that he was drinking on this occasion but denied hitting the wall. I do not accept his evidence. The photograph that the mother took was tendered as an exhibit and I accept that it is a photograph of the patched-up wall. Ms Evelyn cross-examined the mother about when she had taken the photograph and she admitted that it had only been taken recently in the lead-up to trial. On this basis it was faintly suggested to her that it was not a reliable photograph but, as I observed to Ms Evelyn, walls are not organic and they do not heal themselves. Moreover, there is no suggestion that the hole was put in the wall on some other occasion or by some other person. The father’s denial was simply false.
I accept the mother’s evidence that:
93.On another occasion, sometime in 2019, [Mr Day] had been drinking all afternoon. I recall [Mr Day] was angry about something and screaming at me in the kitchen. For reasons I can’t remember, [Mr Day] dropped to the floor and started rolling around, all the while screaming at me. At some point, I saw [Mr Day] roll into the fridge and punch the lower fridge door, leaving it dented. Annexed hereto and marked “E” is a picture of the dented fridge door.
Again, the father denied this event and again I have a recent photograph in evidence. [4]
I accept the mother’s Affidavit evidence that, even more disturbingly:
79.Sometime in 2019, I received a phone call from [Mr Day]. When I picked up the phone, we had the following conversation:
[Mr Day]:“I’ve been in a car accident, I can’t breathe, there’s blood everywhere”,
Me: “Where are you, I’ll call an ambulance”;
[Mr Day]: “I can’t breathe, I’m in a ditch, the car has rolled”.
80.[Mr Day] started to make loud gasping noises, like he was struggling for air. A short time later, he terminated the call.
81.Around half an hour after receiving [Mr Day]’s phone call, [Mr Day] arrived in the driveway, with the car and himself intact. He entered the house and acted normally. [Mr Day] made no mention of the phone call.
In the witness box the father conceded making this call to test whether the mother still loved him. He conceded that what he did was “stupid” but this glib and shallow response failed to in any way grapple with the emotionally fraught nature of what he did. He seemed genuinely oblivious to the impact of his behaviours on the mother, and lacked any genuine remorse.
Up until 2019, the maternal grandmother had a generally positive view of the father. But after X’s birth, she had begun to notice adverse changes in the mother. She watched her change from being loud, bubbly and happy to quiet, nervous and reserved. The father rang her telling her that the mother was “money obsessed” or “crazy” or “paranoid” and needed to see a psychologist. The maternal grandmother began to worry about the mother and whether she was herself a bad mother to her. That she doubted the mother, as well as doubting herself, emphasises just how effectively the father was able to manipulate the situation.
The father complained to the maternal grandmother about his sex life with the mother, often telling her “I wish [Ms Gallagher] could see sex would help us” and “more sex would fix everything.” In the witness box the father denied any such discussions had ever occurred but I reject his denial as false. I accept the maternal grandmother’s evidence that his constant mention of sex made her feel uneasy and over time she started becoming concerned about the mother’s safety.
Around 2019 the maternal grandmother also became concerned about the father’s drinking after arriving at the parents’ home around 11am one Sunday morning to find the father drinking from a red wine bottle. She saw boxes in the laundry piled up with beer cans and various glass alcohol bottles. She saw empty beer receptacles and cigarette butts in the yard.
By the end of 2019 the father was expressing suicidal ideations to the maternal grandmother, telling her such things as “It would be easier for you and everyone if I wasn’t here. I might as well kill myself. Everyone would be better off without me”. He also told her that if the mother left him he would “I’ll kill myself”. Like the mother, the maternal grandmother encouraged him to seek professional help.
When intoxicated, the father started to become physically aggressive.
At times the mother was awoken to the sound of the father incoherently screaming at her from doorways.
I accept the mother’s evidence that:
94.On another occasion, sometime in 2019, I was woken up to [Mr Day] screaming at me “you’re not giving me enough attention”. Suddenly I felt a dull thud on my mid to lower back. I turned and saw a [an object] and realised [Mr Day] had thrown it at me. I said to [Mr Day] “what did you do that for”. [Mr Day] said to me, “that didn’t hurt, don’t be dramatic”.
The father denied this event; he was simply not accepting responsibility.
I accept the mother’s Affidavit evidence that:
98.Sometime in 2019, [Mr Day] approached my car as I was leaving the house. [Mr Day] walked up to my driver’s side window, punched it, and screamed several expletives at me. I was terrified the glass would shatter onto me.
The father denied this event; I reject his denial.
I accept the mother’s Affidavit evidence that:
95.[In late] 2019, I found [Mr Day] in the backyard, surrounded with beer cans. I realised [Mr Day] had been drinking all night. I said to [Mr Day] “I’m going to take [X] to Mum’s place, you’re no fit state to look after her”.
96.I went back into the house to pack up [X]. As I was trying to leave the kitchen area with [X], [Mr Day] used his body to block my being able to exit the kitchen. At some point, I said to [Mr Day] “I want a divorce”. [Mr Day] said to me “you can fuck off, but my daughter stays here with me. If you take her, I’ll find her, and I’ll make sure you never see her again”.
97.At some point during this incident, my Mum arrived and spent several hours calming [Mr Day] down. At around ten thirty (10.30) am, he slumped off and passed out in the lounge room.
The maternal grandmother was able to recount the events of that evening in quite substantial detail and I accept what is set out at paragraphs 47 to 50 of her Affidavit:
47.…I received a phone call from [Mr Day]. It was very early in the morning. I heard [Ms Gallagher] and [X] in the background of the call, screaming and crying. [Mr Day] said to me “you get yourself out here right now or I’m not going to be responsible for what happens”.
48.I immediately ran out of the house, got in the car, and drove to [Ms Gallagher] and [Mr Day]’shouse. I kept [Mr Day] on the phone and encouraged him to keep talking whilst I drove. I was terrified if the call ended, I would arrive to find [Ms Gallagher] dead, and [X] gone. At some point, [Mr Day] said to me “I’m going to take [X] away and you’ll never see her again”.
49.When I entered [Mr Day] and [Ms Gallagher]’s house, I immediately heard [X] crying from the kitchen. As I entered the kitchen, I saw [Ms Gallagher] and [X] barricaded behind [Mr Day], and [Mr Day] using his body to prevent their exit. I saw [X] and [Ms Gallagher] both looked tired and very frightened - [Ms Gallagher] was speaking to [X] and trying to calm her down. [Mr Day] looked heavily intoxicated, his speech was slurred, he was unsteady on his feet, his eyes were glassy, and his face was flushed. I don’t know how long I spoke to [Mr Day] for, it felt like a long time until he came calm. Eventually he stumbled out of the kitchen and went to sleep.
50.I spent the day with [Ms Gallagher] and [X], who were very frightened. [Ms Gallagher] said to me “[Mr Day] was drinking all night, normally he passes out, but he just kept going tonight and reached the abusive and violent stage”. [Ms Gallagher] and I spoke about doing something about [Mr Day]’s drinking. I suggested to [Ms Gallagher] that they try marriage counselling.
Notably, the father denies any such event occurred. His case is that both the mother and the maternal grandmother confected it. His denial was false.
The tensions in the home, particularly around the father’s alcohol consumption, remained high. In the early hours of the morning in late 2019 the father was arrested by Police for being in charge of a motor vehicle with a blood alcohol concentration. He pleaded guilty and was given what was essentially put on a good behaviour bond without conviction. The circumstances were that he had been parked just up from the parents’ house, drinking in his car to avoid any arguments with the mother about his drinking at home. The parties exchanged text messages from which it is quite apparent that he blamed her for being arrested rather than accepting any responsibility himself. Put shortly, he was deflecting. The messages included:
Mother: What are you doing?
Father: Don’t eanna (sic) talk
YOU FUCKED THIS UP
Mother: Well OK where are you?
What?
What did I do?
Father: Fuck you.
Can’t drink at home fkn shit
Fuck off
Bye
Even though these messages were sent at the time of the father being arrested, in the witness box he gave the fantastic account that he was not blaming the mother for his predicament. Rather, he said he was making a generic complaint about what he thought was her unreasonable attitude to his alcohol consumption, and it just so happened that he made the complaint around the time he was arrested. I do not believe him for a moment. The father is an intelligent man and he knew that admitting that he was in fact blaming the mother for his own driving offence would reflect poorly on him.
2020
I accept the mother’s Affidavit evidence that in or about early 2020, the father received some paperwork in the mailbox relating to domestic violence charges. He started screaming at the mother “What the fuck have you done!” and came stomping into their bedroom, waving the papers in front of her. I accept her evidence that:
99.……….. [Mr Day] was incoherently rambling before he screamed at me, “if you’ve reported me for domestic violence, I’ll show you real domestic violence”.
100.[Mr Day] then threw the papers at me, turned, punched a hole in the bedroom wall […] and left the room. I was extremely confused and frightened; I didn’t know what was going on or why I was in trouble. I looked at the papers and realised they were not [Mr Day]’s. I went to find [Mr Day] and said to him “these aren’t yours”. I tried to show [Mr Day], but he was still too angry and refused to listen to me. [Mr Day] continued to storm around the house in a huff, banging into things before entering the study to play computer games. I boarded up the hole in the wall using carboard (sic), and [Mr Day] patched the hole around three (3) months later.”
The father was increasingly unable to contain himself. I accept the mother’s Affidavit evidence that:
101.Sometime around early-2020, I spoke to [Mr Day] about his drinking and his behaviour toward me. I said to [Mr Day] “I’m afraid you might hurt me or [X] when you’re drunk”. [Mr Day] said to me “I might kill you in your sleep one day”. Thereafter, often said to me “I might kill you”. He would then laugh and walk off.
102.Sometime around [mid] 2020, following a dinner at [Mr E]’s house, [Mr Day] and I had an argument [outside]. [Mr Day] got out of the car and punched [X]’s passenger side window several times. I moved to get [X] out of the car and [Mr Day] stomped off toward the house. As I closed [X]’s car door with [X] in my arms, I turned and saw [Mr Day] picking up a bag of glass bottles located near the house entry, which he immediately threw at me. The bag missed us and hit the […] door. [Mr Day] stormed inside; this incident left me extremely shaken.
X was being exposed to family violence.
The night of separation
The parties finally separated in May 2020 when the father, again intoxicated, behaved in an abusive and aggressive manner towards the mother. I accept the mother’s Affidavit evidence that:
112.[In] May 2020, [Mr Day] woke me up in the middle of the night, screaming at me. I immediately saw he was drunk; he was slurring and unsteady on his feet. [Mr Day]’s screaming woke up [X] who I heard crying from her room.
113.I left the bedroom to go to [X]’s room. [Mr Day] followed me into [X]’s room, approached me and put his face inches from mine. I do not recall what he was screaming at me. I was mostly concerned that he was screaming in front of [X].
114.At one point, [X] said “stop it Daddy, it’s not nice”. This caused [Mr Day] to scream louder “look what you have done, you have turned my daughter against me”.
115.Eventually [Mr Day] left [X]’s room. At around one (1) am, I started to take a recording on my phone for my protection. I was scared for my life, more so for [X]’s life. I believed [Mr Day] was going to seriously hurt one of both of us. In the recording, you can hear:
a. [Mr Day] stomping into the kitchen;
b. Kitchen item [sic] banging and shattering in the kitchen area;
c. [Mr Day] punching holes in the walls and appliances;
d. [Mr Day] screaming various obscenities;
e. [X] talking;
f. Me, crying and saying to [Mr Day] “calm down”.
116.The recording is a small excerpt of the events that night. [Mr Day]’s yelling, screaming and assaults on the house went on all night. This was and remains the scariest night of my life. I continue to replay the night in my mind and regularly experience nightmares from it. Exhibited to me and marked Exhibit [MSG]-1 is a true copy of a recording I took on the night of our separation.
117.When [Mr Day] passed out at around five (5) am, I packed up [X] and we drove to Mum’s house. I realised I needed to end the relationship, and I told Mum what had happened. Mum said to me “enough is enough”.
The recording is exhibit 7. Though brief, it makes for chilling viewing. The camera is pointed down the hallway and it is clearly night time. Just after the video commences the father is heard to mutter “well, I’ll just kill myself.” Thereafter, the video intersperses between periods of loud smashing sounds and perhaps even more ominous periods of silence. Towards the end of the video the father comes back in the direction of the mother and there is another smashing type sound which the father said in the witness box was accidental – and which I do not accept. The mother tells the father to calm down and his response is to tell her such things as “fuck off”, “fuck you” and “fuck everything”. The mother is crying. At one point the child says “silly daddy”; she was clearly present throughout.
The father denied smashing anything and suggested that he had simply been banging his head and had punched a bench. I do not believe him. I am satisfied that he damaged the home as well as various other items, but more significantly, he was behaving in an extremely intimidating and indeed frightening way.
Though the mother’s Affidavit does not mention it, she had in fact telephoned the maternal grandmother in the early hours of that morning, crying, and the maternal grandmother had asked her to come over right away. A few moments later the mother had whispered “I can’t, I’ve got to wait until he passes out”. In any event, the mother and X presented at the maternal grandmother’s home somewhere around 5.00am or 6.00am that day. I accept the maternal grandmother’s evidence that X looked at her and at the mother and said: “mummy is scared of daddy, daddy is scary”. The mother later told the maternal grandmother about the events of the night and played the recording. The maternal grandmother convinced her to go to the Police, who took out a broad AVO against him for the protection of the mother and X. The father was prohibited from being in their company for at least 12 hours after drinking alcohol and he was prohibited from going to any place where they lived, or where the mother worked. [5] The father was separately charged with offences. [6]
The father’s trial Affidavit greatly minimised his behaviours that night:
57.I acknowledge that there was a previous ADVO for the protection of [Ms Gallagher] and [X] following an incident at the time of separation. On this occasion, I recall feeling confused and frustrated in my relationship with [Ms Gallagher]. I felt as though we had drifted apart since [X]’s birth and that [Ms Gallagher] had been purposely ignoring me. I would often return home from work and see all the lights on inside the house. However, when I entered the home, the lights would be immediately switched off and [Ms Gallagher] would be in bed asleep. I admit that on this occasion, I consumed some beers after work to try. I admit that this was not the best way to deal with my emotions. I then went into our bedroom and saw [Ms Gallagher] asleep. I woke [Ms Gallagher] and asked her what was going on in our relationship. I was very upset. [Ms Gallagher] responded, “I do not know”. This absolutely shattered me, and I started to cry uncontrollably. I recall that [Ms Gallagher] tried to comfort me, but I could not calm down. I went into [X]’s room for comfort. I admit that I should not have done this in the motional state that I was in. I then went to bed and when I woke in the morning, [Ms Gallagher] and [X] were gone.
58.I strongly deny that I berated [Ms Gallagher] for hours during the incident. I admit that I was upset and said things that I did not mean. I regret this. I did not punch a hole in the wall on this occasion.
Dr J spoke to the father about this event. To quote from the Family Report:
32.The father reported that on the night prior to the parents’ final separation all his frustration had been building up over time. In order to relax when he arrived home from work, he had a few beers and played on the computer. He stated that eventually he decided to go to bed and when he pushed the bedroom door open, he observed the mother pretending to be asleep. He asked her repeatedly what was going on in their relationship and the mother then pretended to wake up and she replied that she did not know. The father stated that this shattered him as he was needing reassurance from her, and she did not offer him any comfort. The father then began to feel very anxious and he was confused and angry and did not understand what was happening. He stated that he was crying uncontrollably, and the mother was trying to calm him down.
33.The father stated that the only person who could give him comfort was [X] and so he went to her room to talk to her. He sat on her bed and stroked her foot. Then the mother entered the room and asked him what he was doing? The mother told him not to wake [X] which upset him further. He stated that he was “lost and angry, broken and confused”. The father stated that when he woke up the next morning the mother and [X] were gone.
This whitewashed account essentially portrays him as the victim. Notably, the father prioritised his own needs over those of X. I accept Dr J opinion that the father’s engagement was “for the purpose of serving the father’s needs and was harmful to the child”. [7]
Early period post-separation
Shortly after separation, the father’s sister-in-law, Ms L, telephoned the mother to advise her that “[Mr Day] called and told us he’s taken a bunch of pills, he said he wants it to be over, but he didn’t actually take them”. In the witness box the father admitted speaking to his sister-in-law after having taken a tablet prescribed to help reduce his alcohol consumption and drinking some beer.
The father was highly motivated to resume the relationship and to get the mother to drop the Police involvement, including the AVO. He telephoned and texted the mother including messaging her to say “I’m sorry” and “I won’t do it again” and “you need to drop the charges and the ADVO”. None of this worked; the mother held firm.
By mid-2020, the father realised that the charm approach was not going to work and accordingly he tried a different tack. During a phone call with the mother, he said “this is your fault”, accusing her of having “reacted without thinking by going to the Police, all I wanted to do was talk. I can’t express myself.” He told her she had “pushed me to the point where I had to drink so I could put up with you” and said “I wasn’t at fault for anything. I didn’t do anything wrong at all.” In my view, these sentiments reflect the father’s true belief system in relation to the events of May 2020; he does not think he behaved badly.
The father pressured the mother to spend time with X on Saturdays and Sundays; she reluctantly agreed. By October 2020 he was pressing the mother for overnight time. She felt like she had no choice but to agree.
In the meantime, in late 2020, the father told the mother that she should not be attending the forthcoming Local Court hearing in relation to the AVO application and the associated criminal charges. He chided the mother by saying such things as “You’re not doing anything I ask, I’ve asked you not to show up for Court for the trial but you’re going to anyway”. She responded by saying that she would be attending if she was subpoenaed to do so. Later the same month he threatened to withhold X unless the mother agreed to let her stay with him on a Friday and a Saturday night. In the meantime the father continued to tell the mother on occasions that she was “crazy” and “needed help”. The following month he threatened the mother over the telephone by saying that “you threw me out and got the Police involved. If you show up, I’ll go to gaol, you can’t show up. I’d happily take a contempt of Court charge if the roles were reversed”.
Ultimately in early 2021 the father pleaded guilty in the Local Court to an offence. The associated charge was withdrawn. One of the charges constituted a breach of his Conditional Release Order in respect of his earlier traffic offence. He was fined, disqualified from driving and ordered to participate in an Alcohol Interlock program. [8]
The father’s attempts to dissuade the mother from attending Court had been unsuccessful. As will be seen, however, this modus operandi was more successful when he later partnered with Ms B.
The mother experienced significant anxiety and fear while co-parenting with the father. She had recurring nightmares about the relationship and was worried about the harm that X could experience in his care. She was constantly worried about him breaking into the house and as a result she slept in the same room as X with the bedroom door locked for about two (2) years from separation. Her anxieties and concerns were genuine and a direct result of the father’s behaviour towards her.
Around July 2021 when the mother picked X up from pre-school, X told her without prompting that “Daddy cries all the time because he misses me”.
In August 2021, the father telephoned the mother wanting to change the weekend plans and saying that he had to work. But when the mother had X Facetime him on the Saturday night, the mother immediately noticed that the father was highly intoxicated. Upon returning from a visit to the father some days later, X told the mother saying several disparaging things such as “my daddy said mummy sucks” and “daddy said mummy should die”.
Parenting plan
In late November 2021 the parents attended Family Dispute Resolution, entering into a Parenting Plan a few weeks later. [9] The Parenting Plan provided for equal shared parental responsibility, the father to spend one (1) overnight with X each week, being a Sunday/Monday in week one and a Saturday/Sunday in week two. On the evidence before the Court, there was no proper basis for such an arrangement to be implemented. If anything, the father’s time should have been supervised. The terms of the Parenting Plan are an example of the mother being “compliant” in response to the father’s requests for more time.
A few weeks later, the father was running late to return X to the mother. When he arrived, X was crying. The father asked X “just tell mum how you feel and where you want to stay”. The mother said to X “it’s ok come on you’re tired”. The father then became angry and told the mother to “stop saying she’s tired”. Later on the drive home, X said to the mother “I want to live with dad now”, before saying a few minutes later “mum, dad said I had to say I want to live with him, I always want to be with you”. The mother struggled to get X to sleep that evening and X said to her “dad tells me to shut up when I cry and that makes me cry more”.
A few days later, the mother telephoned the father’s sister-in-law Ms L, who told her that the father was drinking at family dinners but making sure that no-one saw him. She said that the father thought that the mother had a boyfriend and had tried to persuade X into speaking about it. She said she had heard the father say to X that “you don’t like mum’s boyfriend do you [X]? He’s mean to you isn’t he?” In the witness box the father agreed that he had asked X about the mother having a boyfriend.
The father was continuing to drink alcohol while X was in his care, contrary to the AVO. I accept the mother’s evidence that on one occasion in July 2021 she was Facetiming X when she noticed an open can of alcohol sitting behind X and the father.
2022
In early 2022 the father was struggling with quitting alcohol and suffering serious mental health issues.
In March, X started talking to the mother about “smashing bottles in the creek with dad” which X later clarified as being a stormwater drain that they had thrown glass bottles into. X said that the father had been drinking from the glass bottles first and then throwing them into the drain.
Subpoenaed medical records reveal that in the early hours of the morning in early 2022, the father presented at N Hospital with his housemate. The father reported suicidal ideations and had a plan to harm himself. He said that his mood and energy were low. He put his lack of energy down to his greatly reduced alcohol intake, having been to an AA meeting and had significantly reduced his consumption from 10 cans (inferentially per day) until that night when he had again been drinking spirits and beer. [10]
The record noted various psychosocial stressors and that he had a mental health care plan in place with his GP who had prescribed him medication. He reported insomnia and self-harming over the prior month which he described as converting his emotional pain into physical pain. He felt like this was his new coping mechanism instead of alcohol, but was worried about it. When spoken to by a doctor, he denied suicidal intent and his mood improved such that he (and the hospital) considered it safe to send him home.
The next day the father again presented himself there, reporting increased self-harm in the context of psychosocial stressors and alcohol withdrawal. [11]
The father did not advise the mother about these matters. In early 2020 he had simply cancelled his visit with X without explanation.
A subpoenaed letter from the Acute Care Team in early 2020 also records that: [12]
Over the course of one week, [Mr Day] has been contacting the team more frequently for additional validation despite having a contact earlier the same day. During contact last evening [Mr Day] expressed provocative statements in order to evoke a response from services, culminating in the NSW Ambulance Service being called. He was transported to [N Hospital]. He was assessed but not admitted.
His management was discussed at our Multidisciplinary Team Meeting this morning. There was a consensus that further ACT contact may be counter-therapeutic.
As per concurrent discharge summaries, [Mr Day]’s primary diagnosis remains alcohol use disorder with nil evidence of primary mood disorder… [Mr Day] has now co-ordinated multiple ongoing supports; seeing GP […], has linked in with psychology and AA and has commenced process of seeking admission under [M Clinic]. Given these factors, further ACT not indicated and plan confirmed to transfer care to other supports without further contact from team.
Taken to these notes in the witness box, the father accepted that he had been diagnosed with anxiety, an adjustment disorder and some alcohol abuse issues. In respect of alcohol abuse, he denied that attempting to cease alcohol had been a stressor at that time even though the contemporaneous notes record the opposite. His denial was false. In respect of mental health issues, he did acknowledge some past difficulties while substantially downplaying those as well. He admitted having had “suicidal thoughts” and when asked about self-harming, he denied that he “regularly” did so. He suggests that on one occasion when the maternal grandmother saw some injuries that these were due to injuries suffered at work and that they were better described as small marks. I prefer the evidence of the maternal grandmother which is much more graphic and in which she says that she observed that the father was covered in meticulous injuries and that she saw too many injuries to count. He had given her two different versions, on the one hand telling her he had injured himself at work and on the other hand saying that they were to do with the garden. He was lying. (The mother had also seen small but distinct marks on one occasion in or around early 2022.)
In early 2022 the father’s GP referred him to the drug and alcohol clinic at the N Hospital, describing him as suffering from alcohol addiction and trying to cease drinking. The letter noted that he would benefit from counselling and therapy and that his present level of alcohol consumption was ten (10) drinks per day, on three (3) days per week. [13]
There is no doubt that the father was struggling with trying to quit alcohol. I accept the maternal grandmother’s evidence that in or around April 2022 the father was living and spending time with X close to her home. At one particular changeover, the father walked to her home with his housemate, Mr O, who was holding X. The maternal grandmother heard the father slurring his words and he appeared unsteady on his feet. She could smell alcohol on him. Though in the witness box she was a little unclear about some of the detail of her observations, her clear recollection was that the father had been drinking and I accept that. Again I note that this was contrary to the AVO.
In April 2022, the N Hospital wrote to the father’s GP referring to an attendance with him in April 2022 at the Alcohol & Drug Unit. He gave them a history of alcohol use disorder. According to their letter:
He gave a history of an alcohol use disorder […] and was what we thought was looking for a goal to cease [sic].
He presented and saw our staff specialist, [Dr P] where he explained the withdrawal process of what to expect, the treatment and what our expectations were. I then followed up [Mr Day] myself the following day for day 2 of his alcohol withdrawal treatment. He unfortunately lapsed and drank […] alcohol that afternoon.
It did seems [sic] that although explained to [Mr Day] in quite significant detail that he either did not understand or wasn’t motivated enough that it was to be a complete abstinent period and that is what we were treating. We weren’t looking for decrease or moderation the goal of the treatment was for complete abstinence. We did explain that again after the lapse and were willing to continue and booked him in for further appointments to continue treatment. Unfortunately he didn’t attend any follow-up appointments and hasn’t made any further contact with our service.
We are more than happy to see him again if he wishes to cease his alcohol use… [14]
The father was unwilling, and perhaps unable, to cease his alcohol use. Instead he found a new partner who was more tolerant of him drinking – Ms B.
Father re-partners with Ms B
In late 2022, the father re-partnered with Ms B, a somewhat vulnerable person with Aspergers Syndrome. She had previously been in a relationship with Mr E following which she and Mr E had equal care of their son Q (aged either 6 or 7 at the time) and their daughter, R (aged either 5 or 6 at the time). Ms B was working as an allied health worker at S Centre.
She and the father moved in together in late 2022. The father gave the mother his new address but did not give her any specifics about his living arrangements. The mother found out about Q and R only through X, who would refer to Ms B by a nickname.
Ms B had a good relationship with her mother, Ms G, who regularly spent time with R and Q at her home. From Ms G’s perspective, however, ominous signs soon appeared in her daughter’s new relationship. Just prior to being introduced to the father, Ms G was catching up with Ms B and having a general discussion about work and life when suddenly Ms B’s expression changed. She appeared to have something on her mind and then slowly said to the mother “Mum, [Mr Day] whipped me with an [object]. I took photos”. Ms B pulled out her phone and showed Ms G some photographs depicting large red welts and bruising. Ms B said “He said he’s sorry and he is not going to do it again. He didn’t realise how hard he hit me”. Ms G responded, “Be careful [Ms B], that’s not right”.
In the witness box the father conceded that whipping Ms B, describing it as a consensual sexual act. On any view, he used excessive force and that, as was the case in his sexual interactions with the mother, there was a clear power imbalance.
Ms B soon began coming to Ms G’s house wearing a little earpiece in her ear. Ms G asked her daughter why she was wearing it and Ms B responded “Oh I love it, [Mr Day] and I like to communicate and stay in touch. I wear it everywhere even at work. This is how we keep in contact”. Ms G concluded that they were just deeply in love.
Cracks soon emerged in that façade when Ms B came to her house to have coffee on one occasion wearing the earpiece, and Ms G could hear the father speaking to her daughter while they were talking. She said to her daughter “Can you take that thing out, I can hear him, can we talk just us”. Ms B said to the father “Hang on [Mr Day] I’ll talk to you later”. Ms G then confronted her daughter about the father being constantly in her ear. Ms B agreed that “It’s getting a bit much I’ll talk to him”.
When Ms G first met the father, her first impression was that he was “very articulate and friendly”. This is also how he had first presented to the mother.
The father had by then abandoned his attempts at abstinence. As Ms G deposes, Ms B and the father had in fact met in a pub.
Like the maternal grandmother before her, Ms G observed the father’s use of alcohol to be problematic. Invited to attend the father and Ms B’s home on Christmas Day 2022, she arrived at 2.00pm to find empty beer bottles next to the kitchen bin, a half empty open carton of beer and the father holding a stubbie. He was affected by alcohol. Just after arriving, the father asked her to come outside so that they could talk. He then told Ms G that he had paid all of Ms B’s bills and that as a couple they were “doing so well, I’m doing so well, everything is so great”. She witnessed the father jump all over Ms B who was sitting on the couch, groping her breasts and kissing her. Later in the day, she observed the father drinking beer and scotch and by some point in the afternoon she could see that the Scotch bottle he had been drinking from was empty. After dinner, she again saw the father groping and kissing Ms B who appeared to be pushing him away and telling him to stop.
What followed next is set out in Ms G’s Affidavit:
31.When I realised [Ms B] was displeased, I said to [Mr Day], “hey [Mr Day], just let her do the dishes, you don’t need to be all over her”. [Mr Day] looked at me, laughed and said “she loves it” before moving to kiss her neck and head. I said to [Mr Day] “don’t, this is my daughter, leave her alone, she doesn’t like it”. I was very uncomfortable.
32.The moment I told [Mr Day] to leave [Ms B] alone, [Mr Day] looked at me with an expression of anger and defiance. [Ms B] looked embarrassed and said to me, “he’s just had a few drinks, he’s just mucking around”. I was disgusted and I went outside.
33.Around twenty minutes later, [Mr Day] approached me and said to me “I have a background in […], I know how to handle a woman right”. I went into a different room.
34.A short while later, my daughter [Ms T] came up to me and said, “all the kids just walked in on [Mr Day] and [Ms B] having sex, I saw them, they left the door open, the kids were watching them, we closed the door, we didn’t know what to do”.
35.A short while later, [Ms B] came up to me and said, “[Mr Day]’s really sick, he’s throwing up and has passed out”. I called it a night and went home. I was very worried about [Ms B].
Ms G observed that her daughter became increasingly isolated from her after this. I accept her Affidavit evidence that:
37.Around a week after Christmas, I realised I hadn’t heard from [Ms B]. I tried to call but she didn’t pick up or call back. This was very out of the ordinary for [Ms B]. I called my daughter, [Ms T], and asked if she had heard from [Ms B]. [Ms T] said “no, I haven’t, I left [some items] up there, I’ll text her and ask if I can come pick it up”.
38.To the best of my knowledge, [Ms T] went to pick [the items] up sometime in January. I received a phone call from [Ms T], she said to me “I went to get the [items]. When we got to their place, it was sitting out the front. I went to the door and [Mr Day] answered. I told him I wanted to see [Ms B], and [Mr Day] said she was asleep. I told [Mr Day] I wanted to see my sister and pushed my way into the house. [Ms B] wasn’t asleep and she called out to me when she heard me come inside. It was weird”.
39.On any occasion [Ms B] came to my house alone, she had the earpiece in. I tried to talk to [Ms B] about the earpiece, and she either changed the subject, or otherwise jumped up and said “I have to go”. On one occasion, [Ms B] said to me “I can’t take it out, he won’t let me”.
40.I was able to talk to [Ms B] on a couple of separate occasions, without the earpiece in, when she came to my house to pick up [R] and [Q]. On these occasions, [Ms B] said to me a number of things that caused me enormous worry, including:
“[Mr Day] drinks a bit too much sometimes. He drinks at work, and he drinks and drives, but he has a radar in his car that tells him where the cops are, so he doesn’t get caught”;
“I feel like a slave, all I do is work, I never have any money, he takes it all, I do everything and pay for everything and bring him beer”;
“[Mr Day] keeps me up half the night, interrogating me about the people I talk to or see, wanting to know what I spoke to [Mr E] about, wanting to know what I say when I’m here. He doesn’t let me sleep until I’ve finished answering his questions, I tell him what he wants to hear so I can go to sleep”;
“If we have an argument and I can’t take it anymore, I go to the kid’s room. [Mr Day] comes to the kid’s room and switches the light on and off; it wakes up the kids, so I have to go to back to the bedroom because I don’t want [R] and [Q] to be upset”;
“I can’t go anywhere without [Mr Day], I can’t even go to a public toilet. He stands outside the door, and I have to give him my phone before I go in”;
“[Mr Day] wants me to be happy in public and I feel like I have to be happy”;
“[Mr Day] keeps trying to get me pregnant, he wants to have a baby with me, I don’t want to have a baby with him, it’s ok because I work at a [health centre] and can get [medication] there without him knowing”.
41.I often said to [Ms B], “why are you still with him”. [Ms B] said to me “it’s so sad Mum, [Mr Day]’s dad was physically abusive toward him” and “he was an abused child, I feel so sorry for him, his mum died, and I want to help him, we understand each other”.
42.I said to [Ms B] on several occasions “this isn’t right [Ms B], be careful” and “when did I ever show you to put up with this” and “get away from him, I will help you”. [Ms B] looked sad and tired as she said “yeah”. I was always worried that if I pushed [Ms B] too hard, she would stop coming to me. I felt like I was walking on eggshells around her.
Rather than addressing his drinking, his mental health issues and his coercive and violent behaviours, the father was intensifying them.
I accept the Affidavit evidence of Ms G regarding early 2023:
53.[In early] 2023, around lunchtime, I received a text message through [social media]. It was from [Ms B]’s [social media] account and said “mum, can we have a coffee, can you pick me up from the [health centre]”. I wrote back to the number “yes that will be good, I’ll leave now”.
54.I arrived at the [health centre] and sent [Ms B] a text message to her phone ‘where are you, I’m here’. As I hit send, [Ms B] appeared and got in the car. I said to [Ms B] “I just text you”. [Ms B] said to me “I don’t have my phone on me, I used a friend’s phone and deleted the text messages, [Mr Day] has my phone”. [Ms B] looked stunned and frightened.
55.I drove [Ms B] to my house, and we talked along the way. [Ms B] said to me:
a. “I broke up with [Mr Day]”;
b.“[Mr Day] drives me to and from work, he sits outside and checks who is coming and going from the [health centre]”;
c.“[Mr Day] punishes me by laying on top of me if I do something I’m not supposed to do, he squishes me until I can’t breathe – I have passed out a couple of times”;
d.“[Mr Day] takes my phone off me when I’m in trouble, I’m not allowed to communicate. He gives me his phone and I go to work with his phone”;
e.“When I’m good, I’m allowed to have my phone, on trial, he says he wants to see whether I can behave”;
f. “I’m not allowed to see my friends; I can’t go anywhere without him”.
56.I said to [Ms B], “if you want to leave [Mr Day] that’s good, I can help you, we can go to [Ms U]’s place and get this sorted out”.
57.When [Ms B] and I arrived at my house, the phone [Ms B] had with her started to ring. [Ms B] put the phone on loudspeaker, and I heard [Mr Day] say, “if you don’t come home, I have a friend here, I’m selling your furniture to him right now, I’m keeping the money because I’ve paid all your bills”. I saw [Ms B] starting to panic. I whispered to [Ms B] “don’t worry about the furniture”. [Ms B] went outside and kept talking to [Mr Day] on the phone. A short time later, [Ms B] came inside and said, “I want to go back, can you take me back to work”. [Ms B] looked very agitated. I said to [Ms B], “I can take you to [Ms U]’s Place right now”. [Ms B] said to me “I have to go back to work”.
By early 2023, X began regularly saying concerning things to the mother about the father’s relationship. These included “Daddy and [Ms B] are fighting all the time”; “Daddy and [Ms B] were fighting. [Ms B] left and walked up the street” and “I had to use the other bathroom I don’t like, because daddy and [Ms B] were doing the S – word”; “[R] told me what sex is and that’s what dad and [Ms B] do … I’ve seen them do it during the day”. Asked what she had seen, X made a circle with one hand and poked her fingers through it with the other hand. R also made comments suggestive of she and Q having been exposed to sexual activity.
I accept Ms G’s evidence that she started receiving text messages from her daughter’s phone that did not appear to have been written by her. She raised this with her daughter who said that she let the father pretend to be her on social media.
On one occasion around this time, the father attended at Ms G’s home to collect R and Q while smelling strongly of alcohol. Ms G said to him “The kids can stay longer, look at you, you want to take the kids”. I accept her evidence that the father came towards her angrily, with a flushed face. He stood over her yelling “How dare you speak to me like that, you are so rude!”. Ms G was scared but told him to calm down and let the children stay on the basis that Ms B could either pick them up later, or Ms G could drive them home. The father left.
This was the point at which Ms G told Ms B she didn’t want the father coming to her house anymore. Ms B then withdrew from Ms G even more. Thereafter when she came to Ms G’s house to pick up R and Q, the father would be sitting waiting in the car while Ms B ran around, nervously collecting things as quickly as possible. She would usually be in and out of the house within a minute or two. Ms G became so worried about the dynamic in her daughter’s relationship with the father that she engaged with a counsellor. She had witnessed many adverse changes in her grandchildren over the course of her daughter’s relationship with the father. I accept her Affidavit evidence that on several occasions R curled up into a ball on the lounge and began to cry, scream and shake, saying she wanted to “go home”. Q become quieter and withdrawn. He was not willing to answer usual questions. When she asked him how he was, he looked at her and would not answer which was very out of character.
I also accept Ms G’s Affidavit evidence that in early 2023, after R had been dropped off to her house, R began to scream, cry and say, “I have to go home, if I don’t, [Mr Day] will hurt Mummy”. She told R that “[Mr Day] won’t hurt Mummy, you don’t have to worry”. On several further occasions, R told her that “[Mr Day] is hurting Mummy” and “if I’m not good, [Mr Day] will hurt Mummy”. Ms G told her daughter what R had said, and she responded that “he’s alright, it’s only when he’s drinking, but he’s alright” and quickly left.
On several other occasions, Ms G also told her daughter about the things R and Q were saying. On the first occasion, after a minute or so Ms B said “ok I’ll deal with it”. On all later occasions, she defended the father by saying things like “ [Mr Day]’s alright”, “he’s not that bad” or “don’t worry about it mum I’m handling it”.
I accept Ms G’s Affidavit evidence that:
58.Sometime in [early] [2023], I rung [Ms B]. [Mr Day] picked up the phone. I said to [Mr Day], “I want to talk to my daughter and see her.” [Mr Day] said to me “I will let [Ms B] see you if you stop telling her to break up with me.” I said to [Mr Day], “what, are you asking me to make a deal with the devil.” I heard [Mr Day] laugh. I said to [Mr Day]“fine, I’ll make a deal with the devil as long as I can see my daughter.”
The father’s self-appointed role as a ‘gatekeeper’ was an example of classic coercive controlling family violence.
The domestic violence incident in early 2023 leading to these proceedings
The father and Ms B are the only two adults who were involved in the following event. Yet despite them still being in an intimate relationship, Ms B was not called as a witness in the father’s case. I reject the father’s explanation that Ms B was unable to give evidence due to mental health issues. She holds down stable employment; moreover the mental health note the father relied upon dates back to mid-2023. Given the significance of this event, Ms B’s absence as a witness has not been adequately explained.
I begin with the father’s Affidavit version of events:
65.I acknowledge that an incident occurred [in early] 2023 at my home. On this occasion, [Ms B] and I were being intimate in the privacy of our bedroom with the door closed. [Ms B]’s children were in another room watching television and playing video games. [R] unexpectedly entered the bedroom and witnessed me strangling [Ms B]. This was a consensual sexual act. It is not unusual for [Ms B] and me to engage in consensual BDSM sex. I was not harming [Ms B], though, I can imagine that it was scary for [R] to see. [R] ran out of the bedroom with a mobile phone.
66.I panicked as I thought that [R] would call her father and that the incident she observed would be misinterpreted. I admit that I ran out of the bedroom to retrieve the phone from [R]. I chased after [R], and she ran into her brother and knocked him to the ground. As I was running, I slipped on a rug and knocked the phone out of [R]’s hand. [R] and [Q] were not harmed. I admit that I should not have chased [R], and I understand that this would have been frightening to her, especially in the context where she likely believed that I was harming her mother. I should have left it to [Ms B] to handle the situation.
Given all of the father’s other minimisation and false denials, I approach his version with substantial scepticism. Questions abound. Why were he and Ms B engaged in BDSM sex at 8.00pm or 8.30pm (as the father admitted in the witness box) when the children were obviously still up and about? Why did the children decide to enter the bedroom in the first place, especially given that it was locked and the father accepted that they had used a butter knife to open the door? Why was the father’s first reaction to panic and chase after the children to prevent them calling their father?
It is common ground that after this event the children remained in Ms B’s care until about midday ten days later when Mr E collected them. It is only then that the events came to light.
Mr E was not called as a witness but I accept the Affidavit evidence of Ms G that:
59.[In early] 2023, [Mr E] arrived at my house with [R]and [Q]. I immediately noticed [Mr E] looked very frazzled. [Mr E] said to me:
a. “[Mr Day] didn’t want to give the kids to me”.
b.“The kids have told me [Mr Day] abused them and [Ms B], they had an argument, he pinned her down and choked her”.
60.[Mr E] left [R] and [Q] with me and said, “I’m going to speak to [Ms B]”. I spoke to [R] and [Q] separately. [R] said to me:
a.“[Mr Day] and Mum fought, they had a big argument, they were yelling at each other”;
b.“[Mr Day] was laying on top of mum, he was choking her, there was a [weapon]”;
c.“I tried to stop him, I picked up [an object] from the bed and whacked him to try and stop him”;
d. “I tried to take the phone and call Daddy, [Mr Day] pinned me up against the wall with his hand”. [R] then pointed to her chest and said “that’s where his hand was”.
61.I then spoke to [Q], who said to me “I tried to stop it”. [Q] refused to say anything further.
62.When [Mr E] returned to my house, [Mr E] said something like “[Ms B] confirmed what happened”.
In the witness box the father confirmed that R had in fact picked up an object from the bed and hit him with it – an important fact his Affidavit had ‘omitted’.
The subpoenaed hospital and Police records paint a disturbing picture. It appears [15] that when Mr E first drove away from the home with R and Q that day, R said “Dad, I’ve got something to tell you”. Q then interrupted and said “No be quiet … Don’t tell dad anything otherwise [Mr Day] will hurt mum”. The children were hesitant in telling Mr E what had happened at home although they said that the father and their mother had had a massive fight and that the father had been choking her. R also said that she was attempting to call her father and Q was guarding the door so that the father didn’t see her but that he apparently did see her and then reefed the phone from her hand, grabbing R by the neck and pushing her onto a wall.
Mr E himself saw some bruising and a rash-like mark on R’s body and, when he asked R about it, she said that was where the father had slammed her head against the wall. Mr E asked R to show him what the father did and she grabbed her neck and pushed herself back. He took the children to the Police station, where Police told him that they would note the matter and attend his residence later to talk to him.
It seems that Mr E drove past Ms B’s home to check that the father was there – observing his vehicle at the house – and he then drove to Ms B’s workplace. As Mr E left the workplace, he saw that the father had arrived there in his vehicle and the father followed him all the way to the Police station. (By that stage Mr E had placed R and Q in the care of Ms G.)
The records of the children’s presentation at W Hospital in early 2023 reveal that Mr E and Ms G took them there at about 3.00pm, some three (3) hours after Mr E had first collected them. Ms G observed that Q was upset and looked scared when the Doctor entered the room, telling the Doctor “I don’t want to say anything, I’m going to get into trouble”. After a short time he opened up. In R’s case, she was immediately forthcoming to the Doctor, telling him “He’s going to hurt my mummy”. The treating practitioners noted that R had bruising on her [body], which she said had been caused by the father. The children reported that they had witnessed the mother being physically assaulted by the father. R said she had tried to kick the father and hit him with an object and both children stated that the father had pushed R against a wall causing her to hit the back of her head. On examination R was noted to have injuries. She had pain which she reported she had sustained after kicking the father too hard. In discussion with a social worker, R stated that the father had hit her head into the wall. She said her head had been really hurt. R had tenderness which would correspond with where her head hit the wall. She said she was trying to ring Mr E because the father was hurting her mother and she said that the father was choking her mother and dragged her, apparently with Ms B saying, “Kids go to your room and lock the door”. Q added that he was checking on his mother and blocking the father’s way when R was trying to call Mr E. R confirmed she had kicked the father and hit him in the back with an object. Both children reported that the father and Ms B fought a lot though it was not always physical. The children also talked about seeing the father and Ms B have sex.
After the children were discharged from hospital, Mr E told Ms G that “ [Ms B] and I have decided that I’ll have the kids 100% now”. That has in fact been the arrangement ever since, supported by the DCJ.
X had not been present at the father’s home on the date of the incident. The father had not told the mother about the event that had occurred, and had had X at his home around one week later. The mother therefore remained blissfully ignorant of what had happened until the DCJ called her as noted in paragraph [4] herein. The mother was shocked. [16]
Father tries to deflect and manipulate
That same day, the parents exchanged the following text messages:
Father: I’m getting [X] 2morrow morning 9am right? (5.26pm)
Mother:No. I’ve been advised of safety concerns at your house & to keep her with me until it’s been investigated. (5.29pm)
Father: What?? What do you mean? (5.31pm)
Father: What safety concerns here what is going on…..(5.33pm)
Mother: I received a call today. Unsure of specifics but if you haven’t been contacted yet, I’m sure you will be soon. (5.34pm)
Father:A call from who regarding what? This is ridiculous [Ms Gallagher] (emoji). I have no idea what is going on apart from [Ms B]’s ex constantly threatening our relationship here (5.38pm)
The father well and truly knew ‘what was going on’. He was being dishonest. Within a mere seven (7) minutes he had gone from denying all knowledge to blaming Mr E. [17]
The text messages continue:
Mother:I have no involvement in this beyond [X]’s wellbeing. Everything else is your business & I’m not discussing it any further (5.50pm)
Father:Can I call you for a min to figure this out as I know the “information” you are being is false and I know where it’s coming from but I need to speak to you foe [sic] you to understand (5.57pm)
Mother: No (5.57pm)
Father:Everything is fine here [Ms B] is with me here maybe you can speak to [Ms B] and she can clear things up if your not wanting to speak to me. (5.59pm)
Mother: No (5.59pm) [18]
At 7.03pm the father then texted the mother again to say the following:
Just thought I’d let you know I spoke to the police to find out what’s going on and they are under suspicion that [Ms B]’s ex is impersonating a police officer but there will be an investigation. So all good I won’t disturb you but I’d like to be able to facetime [X] when it suits over the weekend. Until whatever the hell is going on blows over.
Again the father was rushing to blame Mr E as well as dissembling.
In early 2023 a Police officer telephoned the mother to confirm the specific dates X was with the father, and that detectives were investigating the incident.
In early 2023, the father told X during a Facetime call that he needed to see her on the weekend because he was moving away and he wanted to see her as much as he could before he left. X looked at the mother and the father then accused her of telling X things, of keeping X from him and alluded to the possibility of taking her to Court. After the mother terminated the call, the father then texted her to say “I’m ringing the police”. He texted the mother again several hours later wanting to speak to X and asking to have her on the upcoming weekend. The mother did not respond.
The next morning, the father sent the Police around to the mother’s home for a welfare check. This was cynical, manipulative systems abuse.
Criminal & AVO proceedings brought against father
The status of the father’s relationship with Ms B around this time is somewhat unclear. While they do appear to have been living together, it is also apparent that Ms B did in fact go to Police and make a complaint about what the father had done that day. Police subsequently arrested the father, charging him with multiple offences.
All offences were alleged to have occurred between 6pm and 6.30pm on that date.
Though Ms B’s Police Statement is not in evidence, the Court does have the benefit of the Statement of Police Facts prepared for the Local Court which must have been drawn at least partly from her Statement. It relevantly reads:
As [Ms B] was cooking dinner the Accused began to argue with her about the contact she was having with her ex-partner [Mr E]. [Ms B] not wanting [R] and [Q] to hear the arguing has told the Accused to come into their bedroom. The Accused picked up a [weapon] before entering the room. [Ms B] not knowing why the Accused had the [weapon] told him to put it down, which he did.
The Accused continued to verbally argue with [Ms B] before pushing her to her chest with two open palms. [Ms B] in retaliation pushed the Accused to his chest. The Accused became enraged by [Ms B] touching him, grabbing her around the throat with two hands pushing her onto the bed, straddling her. [Ms B] screamed from the contact of the Accused before he squeezed her throat to the point of her not being able to breathe. The Accused held onto [Ms B]’s throat for about two (2) seconds before [R] and [Q] came running into the room screaming and crying for the Accused to let go of their mother.
The Accused tried to get off [Ms B] to go toward [R] and [Q] but [Ms B] wrapped her legs around the Accused’s [body] in fear of what he might do to her children. [R] then picked up a [an object] from her mother’s bed before hitting the Accused to the back and head area. [Ms B] yelled for [R] and [Q] to get help from the neighbours. [Ms B] told [R] to get her phone and contact her father [Mr E]. [R] got the phone, running from her mother’s room to her room whilst [Q] tried to stand in the Accused’s way to give [R] time to get help.
The Accused stood from the bed walking toward the door. [Ms B] got up to follow him concerned for her children when the Accused back handed her to the right side of her face with his right hand. [Ms B] fell to the bed and felt dizzy from the force of the hit. [Ms B] then heard [R] screaming and crying. She ran to [R]’s room observing the Accused to be leaving the room whilst holding her mobile phone. She then found [R] curled up on the floor crying. [R] stated, “He threw me against the wall mummy”. [Ms B] sat cuddling [R] whilst [Q] was in the front lounge room crying. [Ms B] told the Accused to leave and calm down which he did.
The next day [Ms B] observed bruised fingerprints to appear on her neck. She showed the Accused who advised her to wear make up to cover the marks.
[Ms B] organised for [R] and [Q] to be collected by [Mr E] in fear of their safety around the Accused. After getting collected by their father, [R] and [Q] disclosed what had occurred between the Accused, [Ms B] and themselves. [Mr E] took [R] and [Q] to the hospital where they also disclosed the above to the doctor. At a later date police obtained a statement from [Mr E] along with video statements from [R] and [Q].
[In early] 2023, Police attended [Suburb V] where they located the Accused, placing him under arrest before cautioning him. The Accused was searched before being conveyed to [City W] Police Station where he was introduced to the Custody Manager and read and explained his Part 9 Law Enforcement (Powers and Responsibility) Act 2002. The Accused spoke with Aboriginal Legal Service before being offered the opportunity to participate in an electronic interview which he declined.
While the Accused was in police custody [Ms B] expressed her relief of the Accused being removed from herself and her residence. [Ms B] obtained assistance from her family where they moved the Accused’s belongings from the location in fear of him ever returning. After this was completed [Ms B] attended [City W] Police Station where she provided police with a DVEC statement depicting the above.
Police separately took out an AVO to protect Ms B from the father, and presumably an AVO to protect R and Q as well, although the AVO is not in evidence.
The father declined to be interviewed. Police initially refused bail, their view being that Ms B was extremely fearful of him and as such had been reluctant to report prior incidents. Police held genuine concerns for her safety and for the safety of R and Q. Police were concerned that, if granted bail, the father would continue to try and control Ms B. Police considered there to be a real likelihood of a custodial sentence and noted that the father had shown “zero remorse” and refused to accept that any offence had taken place. [19]
A learned Magistrate later granted the father bail, conditional upon him living with his father, which was later varied to permit him to live with his grandmother in City W. He was subject to a curfew and was required to comply with the existing AVO protecting Ms B. The bail conditions also expressly prohibited him from going near, contacting or trying to go near or contact “any civilian prosecution witnesses (except through a legal representative)” and this included Ms B. [20]
Ms B makes some further disturbing disclosures
At that stage Ms B and the father had separated. Ms B was speaking to her mother and to Mr E. Ms G told her not to have anything more to do with the father, but Ms B said she was worried about his welfare and had gone to see him at Court. She reasoned that “I just want to see what he says, he didn’t see me, it was no big deal”.
In the days that followed, Ms B disclosed further instances of family violence in the leadup to early 2023 while she and the father had been on holiday in Queensland. She said the father had been angry at her when she was talking to Mr E, and that on one occasion they had had an argument and he had grabbed her phone and thrown it away, before grabbing her and dragging her to the balcony and trying to throw her off. She said she was screaming and other people saw them and the lady that worked at the property asked her the next day if she was ok.
Her account is corroborated by subpoenaed records of Queensland Police. Ms B appears to have told them that they had had an argument about Mr E and the father had hit her in the stomach with an object. When they got back into their room, she pushed the father in the chest which made him angry and he told her, “You don’t lay hands on me” before pushing her to the floor, straddling her and strangling her with two hands around her neck – similar if not identical behaviour to what R and Q witnessed not long after in early 2023. Ms B told Police that the father had also shaken and banged her head against the floor causing her to pass out due to the lack of oxygen. She said that when she regained consciousness a moment later, the father pushed her onto the bed where he began to strangle her again to the point of her not being able to breathe at which point he loosened his grip enough for him to be able to break free and run to the balcony where she threw a leg over the balcony wanting to escape and screaming “help!”. She said that he chased her onto the balcony before pulling but also pushing her causing her to feel like he was trying to push her over the balcony and kill her. While doing this he was yelling at her “Don’t kill yourself!”. She got free and ran back inside the room where the father closed all the blinds and locked the doors. She hid behind a lounge on the floor, cradling herself while crying. He offered her a glass of water which she refused and he then threw the water in her face and called her an “ungrateful bitch”. She tried to calm him by hugging him and telling him that she loved him but the father became angry, shook her by the shoulders, telling her to stop crying.
Although it is not possible for me to make a positive finding that these events occurred as described by Ms B, the weight of the evidence suggests that it is certainly possible if not likely. She had no apparent motive to make up the allegations, the allegations are detailed and are broadly consistent with other coercive and violent behaviours of the father.
Ms B told her mother that they had ‘made up’ afterwards and had sex, that the father had tried to video her for the purposes of a sex tape, that Ms B was scared but ultimately agreed to it. If true, such behaviours were consistent with what he had done to the mother years before.
R also said some disturbing things to Ms G, telling her one morning that “My head hurts, [Mr Day] is in my head, I can’t get [Mr Day] out of my head, get him out of my head”. When she said this, R was hitting herself just above her temple with her closed fist over and over. It took some time to calm her down.
Ms B and the father reconcile & she retracts her allegations against him
In mid-2023, the father claims to have found two (2) documents in his mailbox. One was a handwritten letter that Ms B had written dated early 2023; the other was a discharge referral for Ms B in respect of a mental health admission dated mid-2023. By inference, Ms B had dropped these documents off to him. He tendered both to the Court. The letter set out her new ‘account’ of the events of early 2023. The mental health discharge form was what he relied on to explain why she was not giving evidence.
I accept Ms B wrote the letter. [21] It talks about how much she misses the father and how she has not stopped crying and feeling sorry for him since his arrest. It says that the Police Statement she provided was all wrong “because I was pressured and manipulated by [Mr E] and my family to say”. She says it would be an understatement to say how sorry she is and she goes on to complain about Mr E manipulating her constantly throughout the eight (8) months of her and the father’s relationship. She says his manipulation led her to lie, that she became depressed and saw the damage that she was doing. She says she went over to her mother’s home and also told her mother lies about their relationship and that her family wanted her to make false statements to Police but she didn’t want to. The letter talks about begging the father to drive her to and from work given her alleged fears of Mr E. She talks about the day of the arrest and how she got her period which apparently played a huge impact on her mental state.
In essence, the letter says that she was manipulated by her own mother and by Mr E and that “I cannot express enough of how badly I feel and how sorry I am. I love you baby so much. I feel so scared being at home on my own without you…” She says that she still loves and cares for the father and hopes he can forgive her and that “I want to do the right thing and withdraw my statement and make a new one to defend you in Court”.
Her N Hospital Mental Health Service discharge form reveals that she had presented there voluntarily. She told them she had spoken to a barrister that day about legal issues and had become acutely distressed with the outcome, causing her to experience suicidal thoughts and depressive symptoms. She talked about problems with her partner and her family. She told medical staff that Police had brought the AVO as a result of “her false allegations to Police” and said she had tried to contact the father but was afraid of breaching her AVO. She complained that Mr E, not the father, was the stalking, threatening and intimidating person. She talked about her mother being alcohol dependent and said she had complex family dynamics. She accused her family of pressuring and manipulating her into making a statement to Police against the father and that she felt pressured and threatened that she would be unable to see the children if she didn’t give the statement. She claimed to have given Police a false statement, saying she had felt guilty, remorseful and depressed ever since.
Her change of heart suited the father’s case perfectly. But none of it stands up to any sensible scrutiny.
If the ‘new version’ is true, then within minutes of collecting them in early 2023, Mr E had managed to inculcate an entirely false narrative into the minds of both of his children. This narrative was also consistent with R’s observed injuries and with Ms B’s own initial narrative.
To be clear, I am satisfied that the events of early 2023 occurred substantially as described by the children, and by Ms B herself when she was free of the father’s influence and coercion. Though there are some inconsistencies between their accounts, this is unsurprising given the fraught circumstances and the ages of the children. The underlying theme is the same in all – that the father was acting in a highly violent manner towards Ms B and then acted violently to her children (particularly R, who he assaulted) when they intervened to help their mother. I reject the content of Ms B’s handwritten letter and I reject the accuracy of what she told the staff at the N Hospital Mental Health Service.
I have little doubt that Ms B would have been fearful of, and perhaps intimidated by, the prospect of giving evidence. But she had the capacity to do so; she holds down stable employment and a subpoenaed psychological note of the father [22] confirms that he was assisting her to put evidence together for her own parenting case. If her ‘new version’ of events was in fact true, one would expect that the father would have ‘bent over backwards’ to get her to Court. In my view he did not want her in the witness box any more than she did.
At or about the time Ms B dropped the documents in the father’s mailbox, it is apparent that she was struggling emotionally. She told her mother that she missed the father, saying she couldn’t eat or sleep. She had lost weight. She told her mother that she had gone to the paternal grandfather’s home – where the father was then staying – and begged for his forgiveness. She also said she was going to retract her evidence to Police, that she wanted him back and “I’ll die if I can’t be with him”.
According to a subpoenaed medical note, the father attended upon his GP for mental health treatment in early 2023. He told the GP that his partner’s ex-boyfriend had made false accusations against him. Ms B was sitting in the waiting room and he said he lived with her which he felt was not a breach of the AVO. At the very least, it was a breach of his bail conditions.
When the criminal charges and the AVO application later came before the Local Court, Ms B did not give evidence and in the circumstances the learned Magistrate dismissed all charges. Mr E did however appear and the father ultimately consented to a “No Contact” AVO for a period of five (5) years protecting both R and Q from him. [23]
These proceedings
The mother commenced these proceedings on 22 June 2023.
The mother had been feeling significant anxiety ever since the DCJ called her. Her GP referred her to Ms D, who she started seeing in May 2023. The mother talked to Ms D about her ongoing concerns for her own and X’s safety and was worried about bringing proceedings.
The father’s last Facetime contact with X had been on 26 May 2023. Ms B was in the background. The father had asked X “Why don’t you ask mummy to come for a sleepover?” The mother had immediately terminated the call.
According to a discharge summary from the N Hospital Mental Health Service, the father attended there in mid-2023 after contacting 000 and saying he was suicidal and thinking of self-harming. He complained about not being able to see X and about Mr E who he described as intrusive and manipulative. He acknowledged a previous diagnosis of alcohol use disorder, while reporting having had two (2) standard drinks of spirits that evening and that he currently did not see alcohol use as an issue. They considered that he had an adjustment disorder and upon his discharge he was to commence medication. His mental health presentations during 2022 were also noted. [24]
After being served with the mother’s Court proceedings, the father contacted her solicitor to advise that it was “all in the mother’s head and that she was crazy” before hanging up.
Father and Ms B relocate to Queensland
In 2023, the father unexpectedly attended at X’s school with Ms B. The purpose was to say goodbye and to give X a present. That evening, X told the mother that “Daddy and [Ms B] are having a baby, there was baby clothes in the car” and “Daddy gave me a [gift] and said to me to bring it every time I see him, it means he loves me”. The father’s interactions with X would have been confusing at best; going there was not a child-focused decision. When asked about it in the witness box the father gave the glib response that X “seemed happy” at the time of the visit.
The father and Ms B then relocated to Queensland for a fresh start. Ms B and her mother were no longer communicating by that stage. The father had also decided to stop taking his medication as he was “feeling good about myself”.
Interim orders & Family Report
On 4 December 2023, the parties consented to some interim orders whereby the father was to have Facetime communication with X each fortnight supervised by a professional contact service, F Contact Service, for up to one (1) hour.
At or about the same time that the interim order was made, Ms G received a phone call from a private number. She picked up the phone and recognised the father’s voice. He said to her “hello [Ms G], it’s the devil you made a deal with.” I am satisfied that he made this call and that he was deliberately trying to intimidate her.
As noted, Dr J prepared a Family Report in this matter which was released on 1 March 2024. The father’s apparent “surprise” at the allegations of family violence was expressly noted, as were the father’s attempts to externalise blame to others.
Mother’s current circumstances
The mother has continued to receive ongoing counselling and psychological assistance from Ms D. Ms D observed symptoms consistent with post-traumatic stress disorder, noting that:
[Ms Gallagher]’s treatment initially focused on anxiety management, predominantly using acceptance and commitment therapy (ACT) strategies of distress tolerance techniques combined with psycho education on Polyvagal symptoms and strategies to assist [Ms Gallagher] in dealing with both intense emotions as well as shut-down responses. [Ms Gallagher] responded well to this approach and has shown significant improvement in her anxiety and stress responses. It must be noted however that a significant portion of this improvement was in parallel with the timing of her ex-partner being restricted to supervised phone-calls with their daughter and his relocation interstate.
Ms D attempted a mode of therapy for the mother’s traumatic memories that she believed were causing the PTSD symptoms. This was unsuccessful because in Ms D’s view, while the proceedings are ongoing and a decision is pending, the mother does not have a sufficient sense of security regarding hers and X’s safety. This was a view that she reiterated in the witness box and I accept her evidence.
For the father’s part, he has taken up psychological assistance from a Dr Y at Z Clinic in City C. He started seeing him in 2024 and finds the sessions beneficial. But he did not call Dr Y as a witness and I would be surprised if Dr Y has been provided with anything like a true factual summary of the father’s past family violence.
The father has undertaken a Circle of Security course, started a men’s behaviour programme called “Men Choosing Change”, and completed a parenting orders program. (It appears Ms B has also participated in Circle of Security).
At paragraph 103 of his Affidavit the father sets out a description of what he has learned from the various courses. It carries no weight given his failure to accept responsibility.
The orders of 4 December 2023 required the father to undertake some alcohol testing. Although there were some delays in the father undertaking testing, he appears to have made some progress in relation to his alcohol abuse. On the evidence, he was abstinent from January 2024 to April 2024 save for having a few drinks on a special occasion. He also appears to have been abstinent from April to July 2024.
The Facetime orders have been broadly successful. The child enjoys speaking to the father and generally returns to the mother’s care afterwards looking happy and relaxed.
BEST INTERESTS FINDINGS:
Fundamentally, this case is about X’s safety. While X loves her father and wants a relationship with him, he poses her significant safety risks.
The father has perpetrated high level family violence both against the mother and Ms B. In relation to both the episode of family violence involving the mother in May 2020, and the episode of family violence involving Ms B in early 2023, the father engaged the relevant child/ren for the purpose of serving his own needs in a way that was harmful.
I accept Dr J’s opinion in relation to the events early 2023 that:
89.…While the children may have misunderstood what they witnessed between the father and [Ms B], their response was fear. While they attempted to access safety, the father chased [R] through the house to prevent her accessing help, and as an attempt to control the situation and avoid accountability. The father’s behaviour will have increased the children’s fear substantially, undermined their sense of safety, and damaged their relationship with their mother. While the father denies physically harming the children his behaviour will have caused emotional harm.
I also accept Dr J’s opinion that:
90.Without insight and acknowledgment of the inappropriateness of his choices, there is limited capacity for change. On these occasions, the father prioritised his own needs over the children in his care, raising concerns about his capacity to appropriately protect [X] in the future if confronted with conflicting needs.
The father’s violent behaviours are longstanding. He does not accept responsibility for them and has consistently sought to blame others.
I accept Dr J’s opinion that:
93.There are severe effects on children of being exposed to family violence. Exposure to violence includes hearing, seeing and playing a role either at the time of the violence or in the aftermath. Exposure to violence is deemed to be a form of child abuse. This is shown by the children exposed to violence having similar long-term outcomes to children who are a direct target of abuse. The greater the seriousness and incidence of family violence, the more children are adversely affected, suffering from higher rates of depression and poorer physical health. Exposure means living with the constant threat of violence being perpetrated against them or another family member. Young children who are exposed to repeated family violence are likely to experience a caregiver who is unpredictable and not emotionally available at times, and a sense of a lack of safety in relationships. Further, children who are exposed to repeated violence and required to use the vast majority of their coping resources to manage the situation rather than to attend to age-appropriate developmental tasks and accordingly their general physical, emotional and cognitive development may be compromised. In addition, paternal violence can also undermine the relationship between the child and mother, which then leaves the former particularly vulnerable without any parental protective relationship.
94.The report writer has concerns for the father’s parenting capacity. He has not demonstrated adequate insight, remorse, or empathy into the experiences of [X], [Q] and [R] while they were in his care. He is denying any family violence in relation to the mother and [Ms B]. He appears to be minimising the impact of alcohol consumption on his capacity to care appropriately for [X], and his proposed parenting arrangement prioritises his needs over [X]’s, without any regard for the challenges it will present [X]. The father was inflexible when this was discussed with him, and unable to understand from [X]’s perspective what this could be like for her. It is the view of the report writer that [X] will likely be placed at an unacceptable risk of harm if she is provided with unsupervised time in the father’s care.
The father’s violence impacted X; it has more dramatically impacted R and Q. He has no insight into these things, much less genuine remorse.
The father has co-morbid mental health issues in that he can become markedly depressed, and engage in self-harming behaviours with suicidal ideations. While he has sought some help from Dr Y, I reiterate what I said at paragraph [189] herein. He may perhaps suffer from deeper, personality-based deficits though I can make no positive finding about that. I merely observe that he has a troubling capacity to behave in a Machiavellian, highly manipulative, self-focused way, without empathy or insight. At times, particularly when affected by alcohol, he can act in a sexually disinhibited manner when children are present. Whether this is an impulse control issue, or reflects some other deficit, is unclear and ultimately does not matter.
The people who one might expect to know the father best are his own family-of-origin; in that sense his own self-description as the “black sheep” seems quite telling. It is also telling that no-one came to Court to attest to his “good character” (for want of a better expression).
The father has co-morbid alcohol abuse issues – albeit that he has made some recent progress on that front. He clearly needs to remain abstinent. Notwithstanding his recent progress, the risk of relapse in my assessment is likely to remain high for the foreseeable future.
In short, the father simply does not have the capacity to parent X safely. There is no pathway to unsupervised time at this stage and in my view there is no basis to make a supervised time order in the meantime in the ‘hope’ that the father will change. The father had a chance to address his issues and has not adequately done so. It is not the Court’s role to craft some sort of ‘halfway house’ outcome which keeps the father/daughter relationship alive while the father sorts out his problems.
Issues of the father’s Aboriginality, and the benefit to X of maintaining a relationship with him, simply fall away. That said, the mother has attempted to continue to engage X with the extended paternal family. I accept that the mother, assisted by the maternal grandmother, has done what she can to promote X’s Aboriginal culture in less-than-ideal circumstances.
Although it is not strictly necessary, I would also find that the mother’s parenting capacity would be substantially adversely affected by parenting orders in the father’s favour. I accept Ms D’s evidence in this respect, which is consistent with the mother’s own expressed anxieties. I accept the mother’s evidence that receiving a text message from the father can “make her blood run cold” and cause her to feel enormous anxiety; it is a subjective but very real stressor for her. I accept her evidence that she still continues to experience nightmares and flashbacks from time to time. The image of the father’s silhouette in a doorway remains a very vivid memory and causes her to feel faint. Any benefit to X in spending time with the father would be outweighed by the corresponding detriment to the mother’s parenting capacity.
CONCLUSION & ORDERS:
For the above Reasons, it would be in X’s best interests to make the orders set out at the commencement herein.
I decline to make the mother’s proposed orders for ongoing communication between X and the father on three (3) special occasions per year. I do not consider such order to be in X’s best interests. In my view, given that she does love the father, the making of the order will only cause her disruption and instability. It is highly likely that the communications will be emotionally upsetting, and any upset will likely outweigh the benefit. The mother’s proposed injunction that any such communications not contain negative or otherwise derogatory comment about her, or any member of her family, is likely to lead to interpretation and enforcement problems. Moreover, the mother’s proposed order reserved the sole discretion as to whether or not to pass such communications on anyway. So it seems to me that the order is not truly enforceable by the Court in any event. It is not in X’s best interests to maintain some ‘shadow’ of a relationship with her father in this way.
It is better to cease X’s relationship with the father in as clean a way as possible. In so doing I accept the risks and dangers identified in paragraph 98 of the Family Report in relation to the sadness, anger and confusion that X might experience, including grappling with questions related to her heritage, family history and personal identity. But these issues are manageable and the mother will manage them.
The injunctions I make are all “appropriate” and in the interests of X.
The orders are otherwise self-explanatory.
I certify that the preceding two hundred and eleven (211) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 20 January 2025
[1] See M & M (1988) FLC 91-979; Isles & Nelissen (2022) FLC 94-092 and the cases therein cited.
[2] Exhibit 8
[3] Exhibit 3
[4] Exhibit 4
[5] Exhibit 12
[6] Exhibit 29
[7] Family Report, paragraph 86, (Exhibit 1)
[8] Exhibit 29
[9] Exhibit 5
[10] Exhibits 20 & 21
[11] Exhibit 17
[12] Ibid.
[13] Exhibit 22
[14] Exhibit 23
[15] Exhibit 27
[16] Exhibit 33
[17] Externalising blame is part of the father’s modus operandi and was commented upon in the Family Report.
[18] Exhibit 13
[19] Exhibit 25
[20] Exhibit 29
[21] Exhibit 31
[22] Exhibit 28
[23] Exhibit 6
[24] Exhibit 18
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