Gallagher & Gomez

[2017] FamCA 944

FAMILY COURT OF AUSTRALIA

GALLAGHER & GOMEZ [2017] FamCA 944

FAMILY LAW – CHILDREN – With whom children should spend time with – Father seeks build up of time with children starting from supervised to unsupervised time, culminating in spending each alternate weekend with children – Mother seeks children have no contact with father – Whether father poses an unacceptable risk of harm to the children – Whether mother’s parenting capacity would diminish if children had a relationship with the father – Where children do not presently have any relationship with the father – Where father engaged in stalking and unusual behaviours towards to the mother during the relationship – Where it is found the father does not pose an unacceptable risk of harm to the children – Where mother would not support a meaningful relationship between the father and children – Where mother’s parenting capacity would severely deteriorate if the father were to spend time or communicate with children – Orders for children to live with the mother and spend no time nor communicate with the father – Orders for the children’s surname to be changed to the mother’s surname.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692
R & C [1993] FamCA 62
Bayer & Imhoff [2010] FamCA 532
Sedgley & Sedgley (1995) FLC 92-623

APPLICANT: Mr Gallagher

RESPONDENT: Ms Gomez

INDEPENDENT CHILDREN’S LAWYER: Ms Bassano

FILE NUMBER: CSC 110 of 2015

DATE DELIVERED: 23 November 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 25, 26 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jacobs

SOLICITORS FOR THE APPLICANT: Cuthbertson & Co Lawyers

COUNSEL FOR THE RESPONDENT: Dr Brasch QC

SOLICITORS FOR THE RESPONDENT: Cope Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Lawrence

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Bassano Law

Orders

1. All previous parenting orders are forthwith discharged.

2. The mother will have sole parental responsibility for making decisions about major long term issues regarding the children B born on … 2013 and C born on … 2014 (“the children”).

3. The children live with the mother.

4. The children have no contact with the father.

5. It is declared that it is in the best interests of the children that their surname henceforth be changed to Gomez, and that the formal record of this should be made to reflect that surname according to the laws and practice of Queensland.

6. The Independent Children's Lawyer is forthwith discharged with the thanks of the court at the later of the expiration of the appeal period from these orders, or the determination of any appeal that may be brought from them.

7. Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallagher & Gomez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC110/2015

Mr Gallagher

Applicant

And

Ms Gomez

Respondent

REASONS FOR JUDGMENT

introduction  

1. These proceedings relate to the parties’ two children, being B (born in 2013, and hence presently four years of age) and C (born in 2014, and hence presently three years of age) (“the children”).  As ultimately formulated, Mr Gallagher (“the father”) seeks orders that for the next six months he have Skype communication with the children once a week, and then move to spending five hours of supervised time with the children each week, split between two days, which after six months, would move to identical periods of unsupervised time.  Ultimately that time would commensurately progress until it culminated in the children spending time with him overnight on each Wednesday, and on alternate weekends, from Friday at 3:00pm until 5:00pm on Sunday.  He also seeks a variety of other orders, including an order compelling the parties to attend counselling.

2. For her part, Ms Gomez (“the mother”) opposes the father’s application, and says that he should neither see nor communicate with the children ever again.  She justifies those orders on two bases: firstly, she says the father poses an unacceptable risk of harm to the children, arising from his personality and history of unusual behaviours; secondly, she says that for him to have any relationship with the children or communicate with them, would so impair her parenting capacity, as to likely emotionally harm the children.

3. The Independent Children's Lawyer supports the orders sought by the mother.

4. At their heart, the mother’s and Independent Children's Lawyer’s cases rely upon a truly bizarre course of conduct embarked upon by the father between March 2011 and 29 March 2014, in which, notwithstanding that he was still married to the mother and cohabiting with her, he stalked her in ways that I will shortly detail, whilst pretending to be someone else.  Seemingly as part of that campaign, on 26 February 2014, he attempted to set fire to the mother’s brother’s car, albeit unsuccessfully.  Ultimately, the father was charged with attempted arson and stalking, and was sentenced to two years imprisonment; he ultimately served four months of actual jail time.

THE FACTS

The father

1. The father was born in North Queensland in 1984, and hence is presently 33 years of age.  He had difficulty at school; he developed a significant speech impediment, perhaps arising from an undiagnosed hearing impairment.  He told Dr D, a psychiatrist who examined him for the purposes of these proceedings, that he did not perform well academically at school, and had some behavioural problems, which led to him being expelled from two private schools.  He ultimately completed schooling to grade 10 at a public high school.  The mother also attended that school at that time, but they did not socialise.

2. At the conclusion of his schooling the father commenced an apprenticeship, although he struggled in that role.  It was at this stage of his life, in about either 2003 (according to the mother) or 2005 (according to the father) that the parties met and commenced a relationship.

The mother

1. The mother was born in Western Australia in 1985, and hence is presently 32 years of age.  She was born into a close knit family.  That family relocated from Perth to E Town when she was nine years of age, and in that city the mother completed her schooling to grade 12, and then went on to study a Bachelor of degree.  It was whilst she was so studying that she met the father, and commenced a relationship with him.

The relationship

1. Nothing turns upon whether the relationship commenced in 2003 or 2005; whenever it commenced, it appears as though the parties started living together in 2005.  However they did so in the maternal grandparents’ home, together with other members of the mother’s family.  Indeed they continued to live there for about seven years.

2. In about 2007, the mother and her sister Ms F, obtained casual work.  It appears as though at about this time the father became suspicious that the mother may have been being unfaithful.  The mother is adamant that she was not, and indeed never has been.

3. In 2010, the father started a traineeship with the public service.  Initially he enjoyed that work and performed well in it, but he began to believe he was being bullied. 

4. The parties married in 2010.  It seems as though not long afterwards they moved into their own home, which the parties had built.

5. It appears as though the father still maintained a suspicion that the mother may be being unfaithful to him.  According to him, he wanted to test that.  The means by which he resolved to test, it was to contrive a means, using a sim card procured in a false name, to send the mother a text message purporting to be from someone who met the mother during the period of casual work.  The message said:

   Hi its [Mr G] from [work], do you want to meet up.

6. It was received by the mother in about May 2011.

7. It appears as though the father’s plan was to see whether or not the mother would respond to that message, or otherwise act upon it, without telling him.  If she did, then the father seemed to think it would be proof that she was being unfaithful to him.  However the mother did not respond to the message, but brought it to the father’s attention.  Her affidavit records:

   The father took my phone from me and read the message.  The father became very angry towards me.  He did not exactly accuse me of cheating, however, he was swearing at me and made me feel like I had done something wrong…

8. On 17 October 2012, the father caused an email to be sent from an account called “…” to an old email account that was not then currently used by him.  It purported to be again from Mr G, who alleged that he and the mother had got together when they were working together, and mentioned physical characteristics of the mother which would normally be hidden by clothing.  It also referred to clothing that she wore during the work period.

9. Notwithstanding that the email was sent on 17 October 2012, it did not come to the mother’s attention until 2014, as I shall shortly relate.

10. Then, on 6 January 2013, the father caused another email to be sent from … to his obsolete email account, again purporting to be from Mr G, and purporting that the mother had sexual relations with him.

11. In about April 2013, the father engaged in a quite different species of deceptive behaviour.  Somehow or other he caused an empty condom wrapper to be placed in the jeans pocket of the maternal grandfather.  The mother was with the maternal grandmother when she was doing the family washing, and the maternal grandmother checked her husband’s jeans pocket before putting them in the washing machine.  When she discovered the empty condom packet, she became visibly shocked.  The maternal grandmother asked the mother to go out and tell the maternal grandfather of the maternal grandmother’s discovery, to see how he reacted.  When told, the grandfather was very shocked and denied any knowledge of it.  He told the mother “perhaps one of the boys from work had put it there as a joke.”  The mother then told the maternal grandmother about her father’s response.

12. Then sometime later (the mother thinks it may have been the next day) the father, using a Telstra payphone, sent an untraceable text message to the maternal grandmother, which said something like “check [Mr H’s] pocket, I fucked him last week if you don’t believe me check his pocket.”  Then on 8 May 2013, the father caused another Telstra pay phone text message to be sent to the maternal grandmother, which said:

    So you are still with my man after I fuck him well you have him I have more on bitch cunt.

13. The father told Dr D that the purpose behind placing the condom wrapper and sending the text messages was to try and get the maternal grandparents to split up, so as (he thought) the maternal grandmother would move back to Perth where she had family, with the consequence that the mother would likely also want to then move to Perth, where the father then wanted to move.

14. The next day the father engaged in some further, and again quite different, but still bizarre, behaviour.  I have previously mentioned the father’s alleged bullying at work.  It appears as though his employer was not investigating his complaints of bullying with the vigour the father believed they deserved.  According to the father, one day he was driving on the road and saw a dead wallaby.  He picked it up and took it into his work, presumably after hours, or in some other way where he could not be detected.  He then placed it on his desk.  There are photographs of the dead wallaby on his desk in evidence.  The father raised the presence of the dead wallaby on his desk with his employer, seemingly so as to implicate the alleged bullies, and to cause them to be disciplined, and perhaps even have their employment terminated.  Although it seems the employer investigated the incident, nothing ultimately came of it, at least at that time.

15. In 2013 the child B was born.

16. On 8 February 2014 the father caused a Telstra pay phone to send a text message to his mobile phone.  The message said “Hey [Mr Gallagher] hve you check email [Ms Gomez] is my girl so your email check them arsehole.”  The father checked his current email address (not the obsolete one he had sent the two emails to the previous year) but, not surprisingly, found no emails purporting to be from Mr G.  He told the mother of the emails; she again denied any involvement with another man.  That night the father slept in the spare bedroom, and refused the mother’s importunings to come back into the couple’s bedroom.  The mother says that she was pulling at the father’s arm and he pushed her away with such force that she hit the wardrobe and fell over.  The father nonetheless refused to come back into the bedroom.

17. On 10 February 2014 the father caused another Telstra pay phone text message to be received by the mother’s mobile phone.  It read “HEY [Ms Gomez] its [Mr G].  We met at [work].  You had a sexy green dress.  I’m back from OVER sea.  Can we get bacj tngertheh.  Lov yot…” (errors in original).

18. Unsurprisingly the mother became concerned about this text message, because it referred to a green dress, indeed she had worn such a dress at work.  She told the father about the text message, who again simulated anger at her, causing the mother to believe that he thought she had been involved with Mr G.

19. On 26 February 2014 the father caused another Telstra pay phone text message to be received by his mobile phone.  The text simply said “check your email.”  The father again checked his current email, but found nothing.  However he then purported to recall that he had an old email account, which he then accessed.  There he found four emails sent from the … address.  Of course those were all emails which the father had himself caused to be sent from that address to his old email address.

20. The father showed the emails to the mother.  She became very worried about the personal information which the sender of them obviously had in relation to her.  Her evidence is that she recalled “feeling absolutely petrified about these emails.”  She became scared for her life, for the father’s life and for the life of their infant baby.  She did not want to be by herself.  She began to feel sick and could not understand why this was happening.

21. Worse, after reading the emails, the mother says “the father was really, really angry at me.  The father was swearing at me and I recall him saying to me words to the effect of “what the fuck, how would anybody know that.””

22. Of course the father’s anger was not real, but simulated.

23. The mother spoke to her brother Mr J (presumably by phone) about the emails, and he referred her to a family friend who was a lawyer.  Other family members came over to the house.  The father was still at the home when they arrived, still simulating anger.  One of the mother’s sisters was trying to calm him down.  However the father maintained his simulated anger, and grabbed his keys to his car and left.  He didn’t say where he was going.  By the time he left it was early evening, and dark.

24. Unsurprisingly, the mother attempted to communicate with the father by text and phone.  He did not answer any of those messages.  The mother recalls that he was gone for hours, and came home sometime after midnight.  She recalls that he was not then angry anymore, and told her that he had been at a local lookout.  She again protested her innocence of any unfaithfulness to the father, and she recalls that the father hugged her and said words to the effect of “I trust you, I know you haven’t done anything.  I trust you.”

25. In fact during his time away from the home, the father had obtained some diesel from a service station, had gone to the mother’s brother Mr J’s home (Mr J was in Western Australia at a wedding) and poured diesel over his car, which was parked in a carport underneath the house.  He then attempted to set fire to the vehicle by igniting cardboard or the like.  It failed to catch. 

26. The father told Dr D that he knew that the diesel would not ignite properly, although he realised that there was some potential for the house above the motor vehicle to catch fire.  He said that to cover that eventuality, he had a hose available, in case the fire got out of control.  In evidence before me he said that he made sure that there was no one in the house at the time he attempted to set fire to the diesel.

27. The next day (still ignorant of the father’s attempt to set fire to her brother’s car) the mother resolved to tell police about the stalking messages which she was receiving.  She and the father were driving on the way to the police station when he enquired of her whether she had checked her emails that day.  She did so, on the mobile phone in the car.  She then saw an email again from “Mr G” which, of course, had in fact been sent by the father.  That message said:

    Hi, again.  Well I’m going to wait for you and [Mr Gallagher] to break up and I come in.

    Hahahahahahahahahaha.  Poor little [Mr Gallagher], just fuck off.  I can wait for a year for you.

    Until then.  See you soon.  [Mr Gallagher] may get knock off before this time.  How’s [Mr J’s] Car.  FIRE FIRE. Hahahahahaha.

28. Of course the mother had no idea what the reference to fire was.  Nonetheless she provided police with a copy of that email.

29. Whilst she was at the police station, she first found out about the attempted arson of her brother’s car.  Suddenly the reference to fire in the email made sense to her.

30. Both she and the father provided a statement to police.

31. The mother says that she was in such fear after receiving these text messages that she organised for private security to conduct patrols on her house.  She was aware that police were also organising for patrols of her house, and her parents’ house, to be made.  At the time she was of the belief that she was being stalked by a stranger who was fascinated with her and following her around.  That is scarcely surprising; it is exactly what the father intended her to think and fear.

32. The one consolation which the mother had, was that there was no mention of B in the messages.  She expressed that relief to the father.  However the next day, which is the mother’s birthday, she received a Telstra pay phone text message which, of course, the father had caused to be sent to her.  It said:

    HAPPY BIRTHDAY I just saw your fb your girl is so cute.  Love to meet her one day. Love you [Ms Gomez].

33. Of course, precisely as the father must have intended, this caused the mother heightened fear, because she believed that the stalker knew of her Facebook account, and was aware that she had a child.  She again advised the police.

34. Unsurprisingly the mother was terrified by this development.  In her trial affidavit she said that she did not feel safe at home, because the father’s employment often required him to be called out at nights.  She rang her brother Mr J, and her family organised her to fly to Western Australia, accompanied by a friend.  The mother left at 4:00pm on 28 February.  Although the mother does not complain of it, plainly this would have to be one of the worst birthdays that she has ever had in her life.

1. The mother recalls that the father drove her to the airport.  She said that she wanted him to come with her, but he said that he could not get out of work, and was on call, so he had to stay in E Town. 

2. The mother remained in Western Australia for five days, and returned on 5 March 2014.  She collected some items from the parties’ home, and moved straight back into her parents’ house.  She did so because she was too scared to live in her own house, and felt safer at her parents.  She hoped that the stalker did not know her parents’ address.

3. The mother recalls that, after a couple of days of her and the father living at the mother’s parents’ house, the father wanted to go back home.  He said things to the mother such as “it’s a bit extreme to move back to your parents’ house” and “I don’t think the stalker will actually do anything.”

4. In her trial affidavit at [56] she said:

   When I returned to [E Town] I finally worked up the courage to leave the house for the first time since the stalking started but I only did so with the father and my family.  I was six weeks pregnant at the time and I started bleeding.  I was so terrified that there was this bodily reaction.  I haemorrhaged for the next seven weeks straight, that’s how scared I was, the texts and emails just kept coming.  The obstetrician Mr [K] said to me words to the effect of, “if you want to keep this baby you need to take it easy.”  The father was aware of this advice because I told him yet continued to send messages which caused me immense distress.   

5. Of course the mother was not then aware that it was in fact the father who was sending the messages.  She thought – as the father intended – that it was another person altogether who was stalking her.

6. On 7 March 2014, the mother received a text message from a Telstra pay phone which read:

   SO YOU WANT HACK MY EMAIL AT HOME WITH MUM AND DAD I’VE BEEN CHECKING YOU OUT A [L] STREET

7. This message, which of course had been caused to be sent by the father, by making reference to L Street, disclosed that the stalker was aware of the maternal grandparents’ address.

8. In relation to that email, the mother said in her trial affidavit:

   I was really concerned by this text message.  I was really freaking out that this person knew where I lived and was watching me.  I felt like I was being watched all the time.

   From this day I was always looking out the window, keeping note of the cars driving past.  I was too scared to go out alone or do anything I would normally do.

9. The mother became concerned for the father’s safety as well.  Her evidence is that whenever the father got a callout at night, she would wake up as well, and watch his car drive away to ensure his safety.  However the father was not appreciative of her concern for him, and said words to the effect to the mother “he wouldn’t want to come near me I would kill him.”

10. On 8 March 2014 the mother again attended E Town Police Station.  They (unsurprisingly) suggested that the person stalking her might be someone close to her.  They commenced to ask some questions about her relationship with the father.  The mother recalls being very defensive to that questioning.

11. At about that time the mother gave the father her mobile phone to look after.  That was because she said she was not handling things very well, and was too stressed by the situation.

12. At some time around this period the mother’s sister, Ms F, had returned to Australia from overseas.  On 14 March 2014 the mother received a text message which referred to her, again sent from a Telstra pay phone by the father.  It read “HI [MS GOMEZ] I KNOW YOU GONE TO THE COPS BUT WHY.  ME AND YOU TOGETHER WITH YOUR GIRL.  SAY HI FOR ME TO [MS F.] LOVE YOU.”  It appears as though this message was advised to the mother at around that time.

13. Another two messages were sent by “Mr G” to the mother’s phone, on 28 March 2014 and 29 March 2014, although they were, in substance, kept from her.  She did, however, become aware that one of those messages was threatening to the father.

14. In fact the message on 28 March 2014 read “Hi [Ms Gomez] I’m sorry to bring bad news but [Mr Gallagher] has fuck some girl I have been floower 4some timenow.”

15. The following day on 29 March there was a message:

    Hey [Ms Gomez] you got 2 choice dump [Mr Gallagher] or the next time he on a callout I’m going to break his back.  Love u.

16. During this time, of course, the mother was pregnant, haemorrhaging and extremely stressed and anxious.  In evidence before me, she questioned how on earth the father could have continued to subject her to this stress when she was pregnant with their second child, given that the stress carried with it the prospect that she may miscarry.  The only answer can be that the father preferred whatever the motive was for his stalking (which I will discuss later) above the risk to his unborn child’s life.

17. The police investigation continued.  On 7 May 2014 they executed search warrants at the maternal grandparents’ home and at the parties’ home.  The mother was present when the search warrant at the maternal grandparents’ home was executed.  The police told her that the stalker had set up the email account on her parents’ computer.

18. That night the father was taken in for questioning by police.  He was later released.  When he returned home, according to the mother “he was really angry at the police” and said things like “the police are idiots and dickheads.  They’ve got it all wrong.”  I recall telling him that I could not believe that he was a suspect and he said words to the effect “the police are the biggest idiots and bad at their job.””

19. The mother recalls thinking that the father was being set up, and became very protective of him, and did not want to believe what the police were suggesting.

20. On a date which the evidence does not enable me to particularise, other than to say that it was in the middle of May of 2014, the mother and father, together with her brother Mr J, had a conversation.  By then Mr J was convinced that the father was in fact the stalker, and he pressured the father into telling the mother that.  At [77]-[78] of her affidavit the mother said:

    77. [Mr J] then came in a short time later and sat near us.  [Mr J] said words to the effect of “[Mr Gallagher] you really have to tell [Ms Gomez] the truth.”  The father did not say anything.  [Mr J] then said words to the effect of “look at her, she is your wife and she deserves to know the truth.”  [Mr J] further said words to the effect of “look at her she is crying and shaking you have to tell her.”  [Mr J] repeated this a few times.

    78. The father then said “yes, ok, yes I did do it.”  I asked “why” and the father said words to the effect of “I don’t know.”  I then said to the father words to the effect of “that is a load of bullshit, you know why you did it.”  The father just repeated “I don’t know why.”  The father pretty much closed up after that and I did not really say anything else.  I was in shock and upset after this conversation and I do not recall if the father stayed the night or not.  I do recall that the father was at the house the next day.

21. The following day the father left the maternal grandparents’ house.  When she realised that the father had left, the mother telephoned him.  She recalls the father was very angry at her, and said words to the effect of “I am gone; you will never see me again.  Don’t try and find me.”

22. It is a little unclear precisely when separation occurred, but the father says that it was on 10 May 2014.  It appears as though by then the mother had also confronted the father in relation to the condom wrapper incident, and he admitted having placed it in her father’s pocket.

Post-separation

1. After separation the father continued to spend time with B, supervised at the maternal grandparent’s home.  The mother says he came around once or twice a week, but because he was argumentative during those visits, his time was reduced to fortnightly.  Again, however, she recalls that the father “paid almost no attention to [B] and used those visits to vent his anger towards me.”  By then the parties were trying to wrap up their financial affairs by listing their home for sale.  The father was resisting that course of action.  He continued to show anger.

2. At [87]-[88] of her affidavit the mother said:

   87. I was trying to be amicable with the father despite everything he had put me through.  I wanted to try and resolve things with him so that at least we could move on.  I felt that if I kept the father happy things would be easier.  I felt intimidated by him.  I wanted to keep my daughter, myself and my family safe.  I believed that if the father was allowed some contact under a supervised regime then I would achieve that aim.  I had left him and I was worried that he would do something bad.

   88. At this stage I had decided to not proceed with a criminal complaint against the father.  I felt like the father had been living a lie and just did not know what the father was capable of.  I was concerned that he might do something to either myself or someone in my family if I proceeded with the complaint.

3. On 6 July 2014 the father telephoned the mother and demanded that he be able to take the child to visit his parents.  The mother refused him permission to take the child away.  The father attended the maternal grandparents’ home and during the course of hostile conversation thereafter, the mother says he yelled angrily words to the effect of, “if you want to play, let’s play.”

4. The father then left the maternal grandparents’ home.  

5. On 16 July 2014 police made application for a protection order against the father in favour of the mother.

6. On the following day the father attended his general medical practitioner and was referred to Dr M, a psychologist, pursuant to a mental health care plan.  He first attended Dr M on 1 August.  On 14 August 2014 he was referred to a psychiatrist, although was unable to get an appointment to see him until 25 November.

7. On 28 September 2014 the father attended at the maternal grandparents’ home to spend time with B.  By then the parties had agreed to sell their home, and the mother was attempting to talk to the father about the splitting of any proceeds.  The father did not want to talk about that, but when the mother insisted, she says he got really irate and then started yelling at me words to the effect of “dob me into the police.”  The father also said words to the effect of “do me a favour.  Well maybe you are bluffing and you can’t dob me in.”  The mother recalls that he was very angry and was placing his face very close to her face.  She remembers vividly a prominent vein in his neck bulging.  Her affidavit continued:

   I burst into tears.  At this time, I was 35 weeks pregnant.  I begged him not to talk to me like he was.  He appeared to be smiling when he made me cry.  At the end of the visit the father said words to the effect of “we will wait and see what happens after the baby is born.”  I said to the father words to the effect of “what do you mean by that?”  The father just shrugged his shoulders and said “I don’t know.”  I felt very scared and intimidated by what the father had said and of his attitude towards me.  Since that time [B] and I have not had any contact with the father.

8. Eleven days later, on 9 October 2014, the mother gave birth to C.  The father has never seen or spoken to C.  He did, however, attempt to access the hospital where the mother had given birth to C, but she had already left.

9. On 30 October 2014 the mother advised police that she indeed wished to proceed with the complaint against the father.

10. On 11 November 2014 the mother and the children moved to Western Australia, together with her parents.

11. In December 2014 the father was charged with stalking and attempted arson.

12. On 18 February 2015 the father initiated these proceedings, by filing an application in the Federal Circuit Court.  The mother’s Response filed on 18 April 2015 sought “no contact orders” in relation to the father.

13. The father’s affidavit, filed at the same time as his application, denied that he had sent any of the texts or emails to the mother.  Indeed that remained his position until his solicitor indicated, on 6 May 2015, that the father intended to plead guilty to all charges against him.

14. In late 2015 the father was sentenced in the E Town District Court for the attempted arson.  He was sentenced to two years imprisonment, but was eligible for parole from 26 February 2016.  Whilst in custody, the unlawful stalking charge was dealt with in the E Town Magistrates Court.  On his plea of guilty, he was convicted and sentenced to nine months imprisonment, which was wholly suspended for three years.  It appears as though a restraining order was concurrently issued, for a further three years.

15. The father was released from jail on parole in early 2016.

16. Part of the material before the sentencing courts, were reports from the father’s psychiatrist, Dr N, and his psychologist, Dr M.  Although those reports were not directly in evidence before me, aspects of them were referred to in the reports of Dr D.

Current situation

1. As at the time of trial, the mother remains living with the children in Western Australia in the same house as her parents.  She has not re-partnered.  She has some part time employment.  She has kept her precise whereabouts from the father.  I will discuss her psychiatric situation a little later in these reasons.

2. For his part, the father remains living in E Town, but is presently not in employment.  He appears pessimistic about obtaining future employment because of his criminal record.  Although the father has, post-separation, re-partnered, he is not presently partnered.

3. The children appear to be happy and healthy, save that there are some speech problems in relation to C.  It appears as though both children have a need for grommets, as indeed did their father.

THE ISSUES

1. At the Trial Management Hearing, and with the assistance of the parties, the following were identified as the issues in these proceedings, in the sense that their determination would likely largely inform the exercise of the discretion in relation to parenting orders:

   1.What is the nature of the relationship between each parent and child.

   2.What, if any, risk does the father pose to the children (particularly in relation to any mental health issues).

   3.Would the children benefit from having a meaningful relationship with the father and if so, how might it best be facilitated.

   4.Would the mother facilitate a relationship between the children and the father.

   5.What is the likely effect on the children of now commencing to spend time and/or communicate with the father.

   6.What is the likely effect on the children if they were never to have contact or communication with the father.

   7.Is the parties’ communication adequate enough to support equal shared parental responsibility.

   8.What would be the likely effect on the mother and her parenting capacity if the father were to now commence to spend time and/or communicate with the children.

2. Once I have addressed the relevant statutory provisions and legal principles, and in advance of a traverse of any residually relevant s 60CC considerations, I will discuss those issues in that order. I will then go on to determine the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s.140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities. In my view, the allegations made by the father that the mother presents a risk of sexual, physical and emotional harm to the child are of real gravity.

4. Further, the consequences attaching to a finding of the kind sought by the father could potentially be grave.  As is demonstrated by this case itself, based upon such a fact being established, a parent could seek to use it to found an argument that the other parent’s time with the child should either be supervised for some period of time, or even permanently.  Whilst on one view such a consequence may not be as grave as the consequences that flow from the proof of, for instance, criminal sexual abuse, it is nonetheless clear that the consequence of a finding that the mother presents as an unacceptable risk could be significant and have a grave aspect to it.

5. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1] 

   [1] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20] and [25] the Court said as follows:

   20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   …

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[2]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [2] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

2. Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed.  The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests.  Thus in R & C [1993] FamCA 62 the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account. A recent re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].

3. That approach was taken one step further by the Full Court in Sedgley & Sedgley (1995) FLC 92-623, in the context of the husband who had for many years intimidated the wife, failed to return the child at end of access periods and otherwise behaved in an intimidating and bullying way with no regard to compliance with Court orders. At 82,259 the Court said:

   Whilst the welfare of the child might require some continuity of contact with a non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.

4. Plainly however as adverted to by the Court in Sedgley itself, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.

NATURE OF THE RELATIONSHIP BETWEEN EACH PARENT AND THE CHILDREN

1. Ultimately this was not a matter of any controversy.  The father has not seen B since 28 September 2014, nor has he communicated with her in any respect since then.  The father is not mentioned to her, albeit it may be that there is some discussion of the father in the mother’s household.

2. The father has never seen nor communicated with C.

3. Whilst there might be some residual filament of recognition between B and the father, it could not qualify as a relationship.  The simple fact is that the father has no relationship with either child.

4. On the other hand the children do have a good relationship with their mother, who is their primary attachment, and provides then with their nurture and support.

RISK POSED BY FATHER

1. The mother contended that the father posed a direct risk of harm to the children, if he were to ever spend time or communicate with them.  This was quite separate to the alleged risk of harm which she said he indirectly posed to them, by virtue of her diminished parenting capacity, if he were to be introduced into their lives.

2. It is difficult to pin down precisely what the nature of the asserted risk said to be directly posed by the father to the children actually is.  Perhaps the easiest starting point is to address his personality, which was the subject of evidence of Dr D.  In his report relating to the father dated 2 September 2016, he said:

   [The father] certainly appears to have personality vulnerabilities related to emotional regulation, poor self-esteem, issues with resolving conflict, a degree of interpersonal sensitivity, and issues with assertiveness.  There are some issues with conduct during adolescence which include possibly supplying other children with cannabis, but he did not clearly qualify of a diagnosis of Conduct Disorder and, as far as I am aware he has not engaged in criminal activity aside from the recent matters.  Hence a diagnosis of Antisocial Personality Disorder does not appear to be warranted, nor does he meet the criteria for Borderline Personality Disorder or any other specific personality disorder.  Rather, he appears to have avoidant and borderline personality traits.

3. However it is difficult to then translate those personality features into a direct risk of harm.  The mother argued that leaving aside the stalking, the arson, and the condom wrapper episodes, the father “has engaged in antisocial, maladaptive behaviour extending beyond the wife.”  The matters specifically relied upon by her were:

   ·The wallaby incident, and particularly the fact that it thereafter diverted his employer’s resources to an investigation that was, of course, unnecessary;

   ·Causing the maternal grandparents’ relationship to suffer great tension by virtue of the  condom wrapper;

   ·Writing “dickhead, fuckwit and fuck head” on a newspaper when co-workers dared to look at it;

   ·Hacking the mother’s Facebook profile post-separation to change her status, profile and picture.

4. Turning then to his conduct towards the mother specifically, it has to be said that whilst perhaps the conduct per se – sending emails and texts – directed towards the mother may seem somewhat low key (for instance there was no actual following of the mother, nor was there any actual risk of physical harm to her) plainly it was calculated to, and did, cause her to genuinely fear for her life.  The father’s alleged motivations, which I will discuss later, namely that he wanted to motivate the mother to return to Western Australia, would suggest that he was quite willing to put his interests ahead of hers, to say nothing of the children’s.  Further, the fact that he knew that he was upsetting the mother extremely, but nonetheless pressed on, and worse, included new details in subsequent communications, specifically knowing that they would cause increased grief to the mother, suggest that he may be callously indifferent to the suffering of others, including those close to him.

5. Even taking all of that at its highest, is very difficult to construe it as a direct risk of physical or emotional harm to the children.  The mother does have some fears that the father may, were he ever to spend unsupervised time with the children, harm them, perhaps even fatally, in an act of revenge, but that must be recognised as far-fetched on the evidence.  Further, the mother believes that the father’s desire to have a relationship with the children, is part of a plan to extract emotional revenge upon her, and he may well use any opportunities to communicate with the children in ways to distort their understanding of things in a way that harms their relationship with the mother.

6. As I shall discuss later, the mother says that the father’s current alleged “better headspace” should be doubted, and that there is no real reason to believe that he is a fundamentally different person to the person who he was in 2014.

7. Again, that may well be so, but even adding that to the mix does not persuade me that the father presents a direct risk of harm to the children of any magnitude, and certainly not an unacceptable one.

8. The professional opinion supported that conclusion.  The Family Report writer, Dr M, in his oral evidence, said that he did not believe that the father posed any direct risk of harm to the children.  Dr D, whilst conceding that one could not rule out the father posing a risk of harm to the children, said that it was not a significant risk.  That said, he identified that when the father was under stress, he was prone to irritable outbursts, and people with that style of response are more likely to snap at children, which can increase the risk of harm to them.  However he did not say that therefore made the father an unacceptable risk of harm to the children.

9. Therefore I am satisfied that there is no direct risk of harm of any magnitude which the father poses to the children, were he to spend time or communicate with them.

BENEFIT TO CHILDREN FROM HAVING A MEANINGFUL RELATIONSHIP WITH FATHER AND BEST MEANS OF FACILITATION

1. Dr M’s unchallenged evidence was that, if one could quarantine the impact on the mother of the children having a relationship with the father, and if she were to prove able to facilitate and support such a relationship, then it would be of benefit to the children to have a meaningful relationship with him, in that it would benefit them to know of, and to have a positive concept of, their father.  His unchallenged evidence was that such a relationship would be best fostered by the father spending face-to-face time with the children, and being involved in their lives.  However, as I shall discuss shortly, he had grave doubts that the mother could facilitate it, and said she was almost certain not able to be supportive of such a relationship, and given that, on the parties’ cases, she would remain the primary care giver, her inability to foster the relationship or otherwise support it, would tend to suggest that the benefits that might otherwise flow, might not in fact occur.

WOULD MOTHER FACILITATE A RELATIONSHIP BETWEEN CHILDREN AND FATHER

1. As recently as 8 September 2017, Dr D interviewed the mother, and prepared a psychiatric report in relation to her.  Whilst I shall address that report in more detail when considering issue 8, it is pertinent to now observe that Dr D concluded that, if the children were to spend time with the father again, the mother would suffer extreme anxiety, to the point where it would impact upon her ability to function in the community as a result of agoraphobia and panic.  He said that:

   … Unfortunately, the anxiety that [the mother] will experience and the impact this will have upon her ability to function will depend on her subjective assessment of risk rather than the actual risk posed by the father.  Given the circumstances, it is understandable why she is so frightened by the prospect of contact resuming and it is unclear whether or not she will be able to change her perspective.

2. Later he said:

   [The mother’s] formulation is that the father is a deceptive individual who was intentionally seeking to cause distress to herself and her family because he enjoyed the situation and that his attempts to re-establish contact are part of the plan to seek revenge against her.  For this to be true, the father would need to be significantly antisocial and also have a degree of psychopathy.  His past history even taking into account his unusual stalking behaviour is not consistent with such formulation.  Unfortunately it will be very difficult for [the mother] to reformulate the situation… 

1. All of this predicts that the mother would not be able to bring herself to ever view the father in any positive way, and likewise to be unable to view any relationship between the children and the father in a positive way.

2. A number of additional points need to be made.  The first is that one cannot really over-emphasise the enormity of the father’s stalking of the mother and her family.  It was chillingly cold-blooded, to the point of horrifying.  Significantly, there was the degree of pre-meditation which the father admits, conceding that it had been his intention to so stalk the mother since the very first message referring to Mr G in 2011.  He then cold-bloodedly and calculatingly, over a considerable period of time, sent emails to the otherwise unused email account, with the express purpose, no doubt, of ultimately using them.  As has been seen, those emails were sent over some years.

3. Then, in 2014 and 2015, he calculatingly deceived the mother into thinking that he too, shared her concerns in relation to the stalking whilst, all the while not merely engineering it, but calibrating it by reference to her responses in a way that he knew would only further distress her.  There can be no doubt that that was the father’s intention, because he told Dr D that he was “trying to push limits” when he decided to send further communications with the mother, notwithstanding that he knew she was then “petrified.”

4. The mother is perfectly entitled and justified to wish to have no contact with the father, and seeing him as lacking any positive feature.  Whilst that may not be an objective conclusion to reach, it is a perfectly justifiable conclusion for a victim to hold.  As she has often noted, it was a most horrific and breathtaking breach of trust by someone she loved, and absolutely trusted.

5. The second point that should be made, is that the mother has now discovered other aspects of the father’s life during their relationship which were kept secret from her.  For instance she now knows that he had a bank account which he kept from her knowledge, and a post office box that she did not know about.  Further, it transpires that the father, on occasions during the relationship, had recourse to prostitutes, and even if that be only on the 10 occasions as claimed by the father to Dr D, it nonetheless (unknowingly to the mother) potentially exposed her to STI’s.  All of this, combined with the stalking of her, means that the mother now realises that the father was living a quite deceptive life, and that she really did not know the true person that she had been in a relationship with for all of those years.  The person that she now believes the father to be, is utterly different to her lived experience of him.  She genuinely believes that she does no know what he is capable of.

6. The third matter which needs to be addressed is the father’s proposal that the mother should be required to undertake treatment for her anxiety.  This was discussed in the cross-examination of Dr D by the father’s counsel.  Dr D said that the mother’s treatment, from his perspective, would best be a blend of anti-anxiety medication prescribed by a doctor or psychiatrist, and further psychological therapy, addressed to trying to change the mother’s response to the father.  Leaving aside whether or not the court would have any power – absent consent – to make an order for such therapy, the suggestion by the perpetrator that his victim should be compelled to undertake treatment to cure the very malady which he recklessly and callously created, so that he can obtain some benefit which she opposes, is breathtaking.

7. Dr M gave some evidence in relation to these matters.  He emphasised that the mother essentially has a fear of the unknown – she does not believe that she knows what the father is capable of, and therefore in her eyes he is potentially capable of anything.  He accepted that the mother’s fears in this respect were genuinely held.  Further, he said that her reaction was understandable, because what the father did was a violation of her trust which fundamentally rocked her understanding of relationships and her ability to judge people.  It impacted to the very core of her self-confidence.

8. All of that informed his conclusion that, on his observations and review of the material, at present the mother could not, and would not, facilitate a relationship between the children and the father, and would be unlikely to do so in the future.  That said, he noted that it was not impossible for that to change, but he did not believe it likely.

9. I accept that evidence, although I would reach those views irrespective of Dr M’s opinion.

10. The final matter I need to note is that between May 2014, and 28 September 2014, the mother did permit the father to spend time with B, although insisted it be supervised.  On one view therefore, with full knowledge of the enormity of the father’s conduct towards her, she nonetheless was able to facilitate the continuation of the father/child relationship.  However that was addressed in the evidence of the experts, who explained that the mother’s immediate reaction of disbelief, and the fact that it took her sometime to assimilate the facts and consequences of the father’s conduct, is quite consistent with the response of victims in such cases. 

11. Moreover, the reason why the mother refused to continue to facilitate that time, leaving aside the father’s regular presentation of anger, is that she construed two of his comments as threats.  The first was his comment to her on 6 July 2014 “if you want to play, let’s play” and the next was his conversation on the last occasion he saw B he said “we will wait and see what happens after the baby is born.”  As to this, it will be remembered she said in her trial affidavit “I felt very scared and intimidated by what the father had said and of his attitude towards me.”  I accept that, although the mother was able to facilitate time between the father and children initially post-separation, that does not speak to her present ability.

LIKELY EFFECT ON CHILDREN OF TIME AND COMMUNICATION WITH FATHER

1. Interestingly, the father’s own view of the effect of being reintroduced to B, as he told Dr M, was that she would “freak out.”  Dr M’s report continued:

   He said he would try to reassure her and if it didn’t work, he would continue to try but then he might need to reach out for assistance.

2. He told Dr M “I would imagine they would be confused over where have you been” but that he would wait until they were older to try and tell them the truth.

3. Quarantining the effect on the mother from this issue, and hence the indirect effect on the children of that, Dr M’s evidence was that in relation to B, one might anticipate that there would be some renewable bonds between her and the father, if they were to now spend time together and communicate, which might be experienced as a positive for her.  In relation to C however, there would be no such possibility of a renewal of a bond, which would need to be formed.  So long as the relationship was a positive one, Dr M opined C would likely obtain benefit from it.

4. However it is simply not possible to quarantine the impact on the children of the mother’s response and reaction to the father being re-introduced into their lives.  I will consider that further when addressing issue 8.  However for present purposes,  but for any adverse effect upon the mother’s parenting capacity, the likely effect on the children of now commencing to spend time or communicate with the father, is likely to be a positive one, although, of course, that would be dependent upon how the father conducted himself in that relationship.

EFFECT ON CHILDREN IF NO CONTACT WITH FATHER

1. Dr M’s unchallenged evidence in relation to this was that most research suggests that, when children have two caring parents, they do better across most measures and outcomes.  That said, his evidence was that, if the mother re-partnered, the children may nonetheless manage to have a father-like figure in their life, but if she did not, there would likely be a gap in their lives.  He said that whilst the maternal grandfather is assuming something of a fatherly role, that only went so far.  He said that it could be a good substitute to a certain age; later in his cross-examination, he thought that generally the age which a grandfather ceases to be a fatherly substitute for children, is about between the ages of 10 and 12.  I accept that evidence.

2. It therefore follows that it is likely that the effect on the children of not having contact or communication with the father will be a negative one, in that they are not likely to achieve as good an outcome in their lives than if they did have the father in them.  However whether that reintroduction would effect a net benefit to them, if at the same time it were to cause the mother’s parenting capacity to diminish, is another question.

IS PARTIES’ COMMUNICATION ABLE TO SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY

1. As the trial was ultimately conducted, the father did not seek an order for equal shared parental responsibility, and hence this issue evaporated.

LIKELY EFFECT ON MOTHER AND HER PARENTING CAPACITY IF CHILDREN SPEND TIME WITH FATHER

1. As ultimately argued, this was the real focus of the trial.

2. The mother’s evidence in this respect was not seriously challenged.  She said:

   ·I still live in fear of the father (affidavit [149]);

   ·The long-term damage the father has inflicted on me will never fully heal .. the fear for my safety and the safety of my children was and still is very real ([150]);

   ·If [the father] has contact with [B] and [C] in any form whatsoever, I truly fear for their safety.  The possibility of him having contact with [B] and [C] is terrifying ([156]);

   ·If the father relocated to Western Australia, my first thought is one of terror.  My second thought is how am I going to protect my family .. If he relocated to Western Australia, we would be in serious danger for the reasons deposed above and herein.  I would be forever looking over my shoulder.  I do not believe his deceitful nature will ever change ([158]);

   ·The thought of the father having any contact with the children is sickening to me.  If this was to happen, I do not know how I would cope or what I would do.  I would be distraught beyond words and increasingly inconsolable ([159]).

3. She was supported in that evidence by her treating psychologist, Ms N, who was directly asked what would be the likely effect on the mother and her parenting capacity, if the father were now to commence to spend time with the children.  She said:

   45. I believe that if [the father] were in communication or spending time with the children, [the mother’s] fear would increase in severity and persistence, and that as a consequence of her poor mental health would deteriorate further.  As previously stated, poor parental mental health would negatively affect [the mother’s] parenting capacity, which in turn would cause her even more distress.

4. Ms N was cross-examined by counsel for the father, not so much to challenge that evidence, but rather to suggest that if she were appropriately treated, the impact on the mother might be different.  Specifically she was asked as to what would be the preconditions for the father spending time with the children from her perspective, to which she replied that it was for the mother to feel that the children and herself would be safe.  In answer to the question how that could be achieved, she emphasised that is the nub of the problem.  She said that the mother is utterly convinced that the father is a threat, and not a safe person.  Asked how one could reduce that fear, she said that she was not sure that it could be reduced.  She opined that it could well be permanent, because some times it is simply not possible for a person to lose their fear about a feared person or a feared situation.  Plainly she thought that this was one of those cases, and that opinion has only been reached after numerous therapy sessions with the mother, involving a range of modalities of treatment.

5. To like effect was the evidence of Dr D.  At [84] of his report in relation to the mother he said:

   84. As pre-empted in my report regarding the father, the key issue will be how well [the mother] will be able to tolerate a situation where supervised contact resumes between the father and the children.  Based on [the mother’s] assessment of the situation and her escalating anxiety in the lead up to the court process, there is a definite likelihood of further deterioration in her condition with a resurgence of anxiety, panic and agoraphobia should the court endorse contact between the father and the children.  Thanks to the support that the mother has in Western Australia, it is likely that she would still be able to cope with her duties as a mother should this occur, but for a time I would expect her to feel very uncomfortable in the community and she would likely cease her employment and become restricted to her home.  Unless she were able to work through her anxiety, that would have a detrimental effect on her wellbeing and lifestyle and also impact upon the children.  Owing to [the mother’s] assessment of the father’s character, it would be very difficult for her to present the father in a positive way to the children and impossible for her to communicate effectively with the father.

6. Later at [93] he continued:

   93. If [the mother] were to become more distressed and anxious, there is a possibility that her emotional availability to the children would weaken and that emotional neglect could occur, but that seems unlikely particularly noting the close family [the mother] has available to her and the fact that she was able to maintain a strong bond with her children despite earlier having quite intense anxiety symptoms..

7. Then at [95], in response to a question about what the re-establishment of any contact between the father and children would do to the mother, he said:

   95. In my opinion, it is almost certain that [the mother] would become more anxious should contact resume and that her anxiety is likely to become so severe that it will impact on her ability to function in the community as a result of agoraphobia and panic.  This will make her less able to parent, but with support she is still likely to be able to parent adequately…  Given that the children are securely attached to [the mother] and according to my understanding, as [B] has only a limited (if any) bond with the father, in the short-term, the net effect of resuming contact with the father would be to cause emotional harm to [the mother] and children.  Over time [the mother] may become less fearful and then ongoing contact might be positive for the children in that they may be able to repair their relationship with their father.  [The mother] may be able to change her perspective through therapy but based on the belief that she expressed at interview, she would not be motivated to do so unless the court did order that contact was to resume.

8. A little later at [98] he continued:

   98. [The mother] is a long way off from being able to tolerate the prospect of unsupervised contact.  It is unlikely that she would be reassured by even a long period of supervised contact.  If contact with the father is re-introduced, it will be important that [the mother] continues psychological therapy.

9. In his oral evidence, he reiterated these opinions, and said that in the short term, the consequence of the father spending time again with the children would be that the mother would be “overwhelmed with anxiety.”

10. Again, the cross-examination by counsel for the father tended to focus upon the means that may be available to help the mother cope, including, in Dr D’s opinion, a combination of medication and counselling.  In that cross-examination he indicated that, in his opinion, the mother’s anxiety will remain until she can reassess the risk that the father poses, or alternatively, that she is no longer in a situation where there is a prospect of that risk arising.  He ventured that whilst the prospects of rehabilitation were there, the treatment for such an anxiety condition of itself necessarily provokes anxiety, and therefore the mother is unlikely to be motivated to engage in it.  The best solution, he posited, was for the mother to avoid the threat by having no contact with it.

11. In relation to the prospect that an order may compel the mother to undergo treatment, he said that the evidence is that it is not really beneficial to force people, against their will, to undertake therapy.  He said that you can’t “do” treatment to people.  He said that a person would be unlikely to “buy into” treatment if it were being administered to them against their will.

12. Under cross-examination by Queens Counsel for the mother, he agreed that the consequence of reintroduction of the father into the children’s lives could cause the mother to quite severely decompensate, and that before one could even countenance that time commencing, there would need to be significant change in the mother’s mindset.

13. To like effect was the evidence of Dr M.  He said the mother would not presently cope with the reintroduction of the father into the children’s lives, without professional help.  He did not have any confident prediction as to the efficacy of any such help, even if it were availed of by the mother.

14. Under cross-examination by Queens Counsel for the mother, he agreed that the mother’s reaction to the father being reintroduced to the children lives could not be accurately predicted, although faced with the additional material that was now available, he felt less likely that there would be a good outcome for the mother in that event, than he had at the time of his initial report.  He agreed that in this case, what was really needed, from the mother’s perspective, was peace and tranquillity in her household.  He agreed that the proposal that the father was advocating – namely that the mother undertake therapy and that he be then reintroduced into the children’s lives, was to some extent an experiment with the children’s primary carer’s mental health.

15. The evidence really only tells in one direction.  That is that the effect on the mother and her parenting capacity, if the children were to now commence to spend time or communicate with the father, would be to cause dramatic anxiety, panic and fear.  It is likely to see her return to a fear of even going out of the house, and likely to lead to her reduced emotional availability to the children.  In turn, that is likely to reduce her capacity to properly care for the children, and the longevity of that is unable to be predicted.

16. Even if the mother were to actively seek to engage with appropriate supports and therapies, there is no confident prediction that they would affect any real benefit to her.  It is fair to say, in the words of Queens Counsel for the mother, that it would be an experiment with her mental health.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already addressed both of the primary considerations, and a number of the additional considerations, in discussing the issues.  However by reference to some additional considerations, I further observe as follows:

2. The children are too young to express any views.

3. The children do not have any extant relationships with their paternal grandparents.

4. The father has paid child support in relation to the children from time to time, although it appears as though there have been arrears on occasion.

5. The father presently resides in Queensland, and the mother in Western Australia.  There is therefore practicable difficulty and expense in the children spending time with the father, but not communicating.  The father proposed, in the event that contact were ordered, that he would move to Western Australia, but given that the mother’s whereabouts is unknown to him, there may still remain some practical difficulty and expense in him spending time with the children. 

1. There has been family violence, and family violence orders, between the parties.  The father has been convicted and jailed in relation to those events.  It may fairly be said that his conduct towards the mother was shocking, vicious and premeditated.

2. It would be preferable to make orders that are least likely to lead to further litigation.

PARENTAL RESPONSIBILITY

1. The parties are agreed that the mother should have sole parental responsibility for the children.  I am well satisfied that order is in the children’s best interests, and will pronounce it.

WITH WHOM SHOULD CHILDREN LIVE

1. Again this was not in contest.  The father concedes that the mother should remain the primary residence parent for the children, for the balance of their childhoods.  Again I am well satisfied that is in their best interests, and will so order.

TIME AND COMMUNICATION WITH FATHER

1. This is the nub of the case.  During submissions, the following were identified as the points in favour of the mother’s and Independent Children's Lawyer’s proposal, or against the father’s proposal:

   ·The mother’s proposal wholly eliminates any direct risk of harm the father poses to children;

   ·The mother’s proposal wholly eliminates any indirect risk of harm the father poses to the children, from any reduction in mother’s parenting capacity, if contact or communication starts/resumes between the father and the children;

   ·The mother’s proposal may optimise the mother’s prospects of recovery, and hence her parenting capacity;

   ·The father’s proposal runs the risk of further harming the mother, and/or delaying any recovery;

   ·The father’s proposal might lead to further litigation.

2. Likewise, during submissions the following points were identified as favouring the father’s proposal, or being against the mother and Independent Children's Lawyer’s proposal:

   ·The father’s proposal is likely the only way the children may ever have any relationship with their father;

   ·The father’s proposal is likely the only way the children may ever have any relationship with the paternal family;

   ·There is some chance that the mother may cope with re/introduction of father into children’s lives, if therapy and/or medication can modify her perception of the risks he poses;

   ·The father’s risk of direct harm to children is not, of itself, unacceptable.

3. To my mind the critical issue here is the need for peace in the mother’s home and life.  The effect of the father’s proposal would be to destroy that peace, and to reignite all of the mother’s anxieties which were directly caused by his appalling abuse of her trust, by stalking her in the chilling and callous way that he did.

4. Counsel for the father sought to emphasise that the father has paid the price that the community, via his sentence, required him to pay for the commission of his crime, and that in effect, he should be given a second chance.  True it is that he has served his sentence (subject to him remaining on parole until next year) but it is simply not correct to say therefore he deserves a second chance.  Moreover, the cost of that second chance is unlikely to be borne by him, but rather the mother, his victim.

5. Having traumatised her once, he now proposes to do so again.  That cannot possibly be in the children’s best interests.  I am satisfied that this is one of those rare cases where the children’s best interests are served by ensuring that there is peace and tranquillity in their home.  There will therefore be orders that the father neither spend time nor communicate with the children.

OTHER ORDERS

1. The only remaining order sought by the mother involves the change of the children’s surnames to Gomez.  Dr D’s evidence was that there would likely be benefits to the children if, in the event that there was neither communication nor time spent with their father, their surname were to change to conform with the surname of the persons with whom they live and identify as their family.  He agreed that absent such a change of name, it could lead to them becoming confused as to why they have a different surname to their family.  That said, he opined that irrespective of sharing the same surname, the children are likely to have curiosity about to their father at some point during their childhood, so the issue will not entirely disappear.  I accept that evidence; it is, in any event, common sense.

2. The father was pressed in relation to the surname change in the witness box.  Particularly he was asked whether, in the event that he would in future neither see nor communicate with the children, it would make sense for their surname to be changed.  Although, ultimately, he begrudgingly appeared to concede that, I do not give that concession much weight.

3. I am satisfied that the orders sought in relation to the changing of the children’s surnames are in their best interests, and will make them.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding one hundred and seventy five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 23 November 2017.

Associate:

Date: 23 November 2017