Gillen & Lindo (No 3)
[2022] FedCFamC1F 1031
Federal Circuit and Family Court of Australia
(DIVISION 1)
Gillen & Lindo (No 3) [2022] FedCFamC1F 1031
File number: CAC 2594 of 2019 Judgment of: GILL J Date of judgment: 21 December 2022 Catchwords:
FAMILY LAW – PARENTING – Where the mother seeks sole parental responsibility and for no contact from the father – Where the father and Independent Children’s Lawyer have an aligned position of supervised time with the father transitioning to unsupervised time – Where there are no alternatives between the polarities of the orders – Where the father has a history of coercive conduct and physical violence towards his former partners – Where consideration of a meaningful relationship between the father and the child is to be weighed against the child’s protection from unacceptable risk from the father’s vulnerability to anger and resort to violence including choking – Where the father’s risk may be nullified for the period of supervised time but not sufficiently ameliorated when transitioning to unsupervised time – Where the mother has also undermined the child’s relationship with the father – Father to be prohibited from coming into contact with the child and the mother – Mother to have sole parental responsibility.
Legislation: Australia Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA
Cases cited: Eastley & Eastley [2022] FedCFamC1A 101
Isles & Nellisen [2022] FedCFamC1A 97
Jollie & Dysart [2014] FamCAFC 149
Marsden & Winch (No 3)[2007] FamCA 1364
M v M (1988) 166 CLR 69
Phillips & Hansford (No 2) (2019) 60 Fam LR 160
Division: Division 1 First Instance Number of paragraphs: 225 Date of hearing: 12–15 December 2022 Place: Canberra Counsel for the Applicant: Ms Petrie Solicitor for the Applicant: Parker Coles Curtis Counsel for the Respondent: Mr Watkins Solicitor for the Respondent: GA Lawyers Counsel for the Independent Children’s Lawyer: Dr Leslie Solicitor for the Independent Children’s Lawyer: Legal Aid ORDERS
CAC 2594 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GILLEN
Applicant
AND: MS LINDO
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for X born 2018 (“X”).
3.X live with, Ms Lindo (“the mother”).
4.X shall spend no time with and have no communication with Mr Gillen (“the father”).
5.The father is, until X reaches the age of eighteen:
(a)restrained by way of injunction from approaching X, any daycare, pre-school or school which X attends and X’s residence.
(b)restrained by way of injunction from approaching the mother, or any place she may reside, and from contacting her other than through a legal representative.
6.For the purposes of section 11 of the Australia Passports Act 2005 (Cth):
(a)X is permitted to travel internationally;
(b)The father is restrained from making an application for an Australia passport or travel-related document for X; and
(c)X is permitted to have an Australian passport or travel-related document provided the application for that document is made by the mother, who may sign any declaration on the application in the form approved by the relevant Minister.
7.The mother may apply to the relevant authority for the correction of the name on X’s birth certificate from X to X.
8.The mother is not otherwise at liberty to change X’s name without further order of the court.
9.Despite the terms of Order 5 above, in the event that the father’s approval is required to effect the change in the birth certificate, the mother shall provide to the father such documents for his execution and the father shall forthwith execute and return to the mother via her legal representatives any such documents that he is required to execute to achieve the correction of the name.
Costs
10.Should a party seek costs in relation to this judgment then:
(a)Any such party pursuing costs is to file and serve submissions in support of any such orders, restricted to no more than five pages in length by 4.00 pm on Wednesday 25 January 2023;
(b)Any party resisting such order is to file and serve submissions in resistance of any such orders, restricted to no more than five pages in length by 4.00 pm on Tuesday 7 February 2023; and
(c)Any party seeking to reply to such submissions is to file and serve written submissions of no more than two pages in length by 4.00 pm on Tuesday 14 February 2023.
11.Absent any application to be heard orally the issue of costs will be determined in chambers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillen & Lindo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Introduction
Background
The parties to this matter are Mr Gillen, the applicant father (born 1985), and Ms Lindo, the respondent mother (born 1993). The parties started a relationship in about early 2017 and commenced co-habitation in mid-2017. The parties did not marry. They separated in mid-2019. There is one child of their relationship, X (“X”), born 2018.
An Independent Children’s Lawyer (“ICL”) was appointed on behalf of X.
These proceedings concern the arrangements for X which will serve her best interests.
The mother pursues orders for X to live with her, for her to exercise sole parental responsibility, and for X to spend no time with the father and have no communication with him.
The ICL submitted that orders be made for the parties to have equal shared parental responsibility, X to live with the mother, spending gradually increasing supervised time with the father in the presence of Mr D (his brother) over the weekends and transitioning to regular unsupervised weekend time.
The father pursues the same orders as the ICL. He has indicated that he also seeks to complete the “Men – Room4Change” course.
Litigation History
As noted above the parties separated in mid-2019. In mid-2019 the mother contacted the NSW police regarding an alleged assault by the father. A provisional apprehended domestic violence order (“ADVO”) was issued.
In mid-2019, the father was arrested and charged with common assault on the mother. Bail conditions were imposed upon him.
Some time later, in 2019, the father was acquitted of the common assault charge, although an ADVO was put in place for 12 months.
The father commenced these proceedings on 13 December 2019.
Interim consent orders were made on 13 February 2020 by Judge Neville that provided for X to have supervised time with the father at E Family Services each Saturday for a period of two hours.
The ADVO expired in mid-2020.
In mid-2020, the mother applied to extend the ADVO and a short time later an ADVO hearing was held at F Town Local Court. The mother, however, withdrew the ADVO extension.
On 12 December 2022, the trial of the matter was heard.
Material Relied Upon
Applicant father
The father relies upon the following documents:
(1)Affidavit of Mr Gillen filed 18 November 2022; and
(2)Affidavit of Mr D filed 18 November 2022.
Respondent mother
The mother relies upon the following documents:
(1)Affidavit of Ms Lindo, filed 5 December 2022;
(2)Affidavit of Ms C filed 15 March 2021;
(3)Affidavit of Ms B filed 27 April 2021;
(4)Affidavit of Mr B filed 27 April 2021;
(5)Amended Response to Final Orders filed 13 July 2021; and
(6)Affidavit of Mr G filed 13 September 2021 (this was ultimately not permitted to be read in the proceedings as Mr G was unable to be contacted for cross-examination).
Independent Children’s Lawyer
The ICL relies upon the following documents:
(1)Amended Application for Final Orders filed 10 July 2021;
(2)Affidavit of Mr Gillen filed 18 November 2022;
(3)Affidavit of Mr D filed 18 November 2022;
(4)Amended Response to Final Orders filed 13 July 2021;
(5)Affidavit of Ms Lindo filed 2 December 2022; and
(6)Affidavit of Family Report writer, Ms H, filed 8 August 2022.
Principles
The focus and the paramount consideration in determining what order should be made for X is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of X. That is to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The objects and principles give a legislative background for the examination of the considerations contained at s 60CC of the Act in determining best interests. They are as follows:
(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).
It may be thought that in any individual case the objects and principles may point in different directions and find different emphasis, depending on the circumstances of the particular child. It might also be observed that the objects and principles contain a degree of circularity, themselves being conditioned on the notion of the best interests of the child.
Against this background, in determining a child’s best interests, the Court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings,”[1] and are “relevant to the particular circumstances of the child.”[2] This calls for a focused examination of the considerations that arise in the individual case. While often the evidence filed in a case ranges across, and touches upon many of the considerations, those that require closest attention can usually be identified from the matters that the parties ultimately placed emphasis upon in the trial.
[1] Phillips & Hansford(No 2) (2019) 60 Fam LR 160 at [43].
[2] Jollie & Dysart [2014] FamCAFC 149 at [45].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes and, by virtue of s 60CC(3)(m) may include any “fact or circumstance” relevant to the wellbeing of a child. It is the synthesis of the considerations that determines best interest.
The considerations have themselves been divided into primary and additional considerations.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence.
The structure of s 60CC points to some emphasis being given to the two primary considerations. In Marsden & Winch (No 3),[3] Warnick and Thackray JJ observed that the primary consideration are “manifestly of the utmost importance in determining what outcome will best advance a child’s interests.” Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations.
[3] [2007] FamCA 1364 at [78].
The primary considerations are to be considered as a part of the whole suite of considerations contained at s 60CC. Often there is overlap, between the considerations, and often many of the additional considerations are effectively subsumed into the primary considerations. For example, s 60CC(3)(j)’s reference to “any family violence involving the child or a member of the child’s family” necessarily forms a part of the protective considerations of s 60CC(2)(b) and may also form a part of the consideration of the degree of benefit flowing to the child from meaningful relationship with a parent at s 60CC(2)(a). Similarly, s 60CC(3)(f)’s reference to the capacity to provide for the needs of the child necessarily forms a part of the consideration of the benefits of meaningful relationship at s 60CC(2)(a).
In this case, the dominant issues were related to the protection of X from harm occasioned by being subjected or exposed to family violence by the father, the amelioration of such risks, and consideration of the benefits of meaningful relationship with the father.
This requires careful assessment of the risk of harm to X, and the amelioration of that risk.
As identified in the Full Court case of Isles & Nellisen,[4] the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.”
[4] [2022] FedCFamC1A 97 at [138].
Here, not unusually, factual findings about past events take place in the context of contested facts, where the parties are in dispute as to what has happened both between them and to X, and accordingly where there may be uncertainty as to what has gone on.
The Full Court identified that, depending upon the evidence before the Court, a risk of future abuse may be established by the possibility of past abuse, a conclusion consistent with the reasoning of the High Court in the foundational case about risk, M v M.[5]
[5] M v M (1988) 166 CLR 69.
Such an understanding was recently further confirmed by the Full Court in Eastley & Eastley,[6] (at [18]):
…the assertion the primary judge was obliged by law to settle certain nominated factual controversies is rejected. The parties’ evidence revealed a multitude of factual discrepancies, many of which were specifically addressed by the primary judge in the reasons for judgment, some without any positive or negative finding being made. Importantly though, the primary judge was not required by law to definitively resolve even the pivotal factual disputes when assessing the risk of harm within the wider context of the discretionary determination of the particular orders which would best promote the children’s interests.
[6] [2022] FedCFamC1A 101.
Further, in the same manner (at [31]):
There could be no error in abstaining from making a definitive factual finding when the primary judge explained why he was not convinced on the balance of probabilities the incident occurred ... However, the primary judge’s enduring suspicion the incident might have occurred ...was still legitimately available to take into account as part of the matrix of evidence upon which the finding of “unacceptable risk” was premised. It is well accepted that an accumulation of factors, not individually proven on the balance of probabilities, can still be enough to demonstrate the existence of an unacceptable risk of harm to children.
Finally, in that same case the Full Court observed the need for a trial judge to consider the whole of the evidence in determining the question of risk, rather than merely dealing with each allegation in an isolated fashion:
…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).
This understanding of risk analysis is central to the determination of this case where such emphasis was placed upon the risk occasioned to X of exposure to family violence by the father, such risk being asserted to be derived from past conduct alleged against the father.
The Trial
The factual disputes between the parties covered three distinct areas.
The first related to two previous relationships of the father, and to contentions that he engaged in coercive and controlling behaviour within those relationships. In support of these contentions the mother called those previous partners, Ms C and Ms B to give evidence.
The second related to the relationship between the mother and father directly.
The third related to the conduct of the parties’ post separation, including the mother’s conduct in respect of X, attempts to minimise the father’s role in X’s life and to undermine their relationship, and the nature of the time that the father and X have spent together.
Previous relationships
Ms C
The father was in a relationship with Ms C from about the end of 2007 until about mid- 2008.
Ms C recounts three occasions during the relationship that the father damaged the home that they were living in as a product of his anger, punching and kicking holes into walls and a door. The father denied such. She also asserted that he regularly used a prohibited substance and other drugs, him accepting that he used the prohibited substance, but to a lesser frequency than the daily that was alleged by Ms C, saying he used it once every one or two months. He denied other drugs.
Ms C also alleged particular assaults of being pinned to a wall or floor, causing her to have a panic attack and experience difficulty breathing, and being grabbed and pushed. Each was denied by the father. She further alleged an incident where she was pinned by the father and scratched him, which again he denied.
Of greater clarity and certainty was an incident following the end of the relationship which resulted in criminal convictions against the father.
That incident occurred in early 2009, where the father and Ms C encountered each other at a J Town local venue months after the end of their relationship. Following some dispute there the father attended her, and her child’s home in the company of one of his friends. During the following argument Ms C indicated that the father did not need to repay money owed to her, but that she was removing him from her medical insurance.
Ms C alleges that the father attacked her in the following manner:
… (he) became very aggressive and grabbed me by the throat and held me against the wall by the throat I could not breath[e] and grabbed at [Mr Gillen] to his groin area and he let me go.
I was very upset and began screaming at [Mr Gillen], “Get out of my house!” [Mr Gillen] picked me up and slammed me into the wall head first. My son [K] aged […] was in the house and observed [Mr Gillen] attacking me and slamming me into the wall.[7]
[7] Affidavit of Ms C filed 15 March 2021, paragraphs 26–27.
The father denied this exchange.
He however accepted that he attempted to spit at Ms C, she covering his mouth to prevent such. While he described it as regrettable, unfortunate and disgusting, he was unable to explain why he spat at her, other than it was the end of the relationship and he was angry.
The father accepted that the mother then attempted to have him leave the house. He claimed that she attacked him and to defend himself he put her onto the ground. Ms C described that the father picked her up and slammed her into the wall head first. Ms C struck her head in this exchange and attended hospital.
The father returned to Ms C’s home a number of times, first immediately after and then by breaking into the home that evening and removing items such as the washing machine.
He was subsequently convicted and sentenced to a suspended gaol term.
Ms B
The father and Ms B were in a de facto relationship between, approximately, late 2012 until sometime in 2016. Ms B’s evidence centred on allegations of family violence perpetrated by the father upon her in that relationship.
Ms B provided an affidavit, but was examined and cross-examined in a non-conventional manner. Prior to the trial an application was made for her to give evidence by telephone, giving answers by writing on a whiteboard and having her answers read out by another person, on the basis that Ms B became non-verbal when stressed. I determined that there was insufficient evidence to permit such a method and directed that Ms B give her evidence remotely via Microsoft Teams.
At the commencement of Ms B’s evidence it became apparent that Ms B was unable to communicate verbally, but capable, whilst on screen, of typing answers to questions into Microsoft Teams. I ruled that she may give evidence in this manner, given the importance of her evidence to the proceedings, and the importance of allowing such evidence to be tested.
It may be observed that Ms B was most reluctant to be involved in the proceedings, explaining that she did not want to go to court and to relive issues, or to have any further dealings with the father.
In order to secure Ms B’s involvement the mother messaged and called her, imploring her to give evidence, in order to “save” her daughter. The mother sent Ms B a video of X screaming “no” when the mother suggested calling the father. Court related documents were sent to Ms B by the mother, who again contacted her in early 2020, saying that she needed Ms B’s help to protect her daughter, and that failure to help would be something that Ms B may seriously regret. In mid-2020, the mother contacted Ms B asking her to “save” her daughter. Further correspondence from the mother in mid-2020 asserted that the father had lied, had multiple serious charges and that she wanted to show what he “is really like.” Ms B said that she ceased to open the mother’s communications. The father tendered Facebook messages between the mother and Ms B, which indicated that Ms B was apparently willing to assist, but that in about mid-2020 she appeared to cease responding to the mother.
Eventually Ms B provided an affidavit on 12 March 2021.
Ms B asserted significant drinking during the first part of their relationship on the part of the father. She described that after he finished working he would drive down to the licensed local store in L Town and drink until that store closed, then drive home intoxicated bringing further alcohol with him to drink for the rest of the night. She says it was a matter of dispute between them.
Ms B further asserted that during the relationship the father would call her “a bitch”, tell her that she was “useless” and that she was a “cunt” and “good for nothing and couldn't do anything” and that she was a “spoilt rich city kid.”[8] She said that he also described her as a lazy bitch for not wanting to clean up after him. The father denied using these terms on Ms B, save for having called her perhaps, a “bitch” once or twice.
[8] Affidavit of Ms B filed 27 April 2021, paragraph 12.
Ms B was challenged as to her evidence, for example as to whether her social anxiety made her more sensitive to the father. She denied that this was the case, but rather that the father caused her to be careful as to what she would say in public for fear of later criticism by him of what she had said.
In response to the assertion that he was quick to anger the father denied such but accepted that he may have been misinterpreted. That is, he agreed that he might have appeared to Ms B to have “blown up” but that from his perspective it was not the case.
Ms B also described that during arguments the father would destroy things, for example plates or tools, a matter that he also denied.
Ms B further asserted that the father would regularly consume a prohibited substance with his friends. He denied that there was regular consumption but accepted that he consumed this substance from time to time.
Ms B alleged that the father broke some property that she had had obtained, which the father denied.
Ms B and the father separated but reconciled prior to their final separation. The father accepted that following the first separation he said to Ms B that things would change, that he would go to counselling, and that he would give up alcohol and the prohibited substance. It was accepted by Ms B that his drinking was greatly reduced after this time.[9] However, Ms B asserted that the father became angrier when not under the influence of alcohol and the prohibited substance, a matter denied by the father. The father however accepted that they would still argue and that arguments may feature raised voices.
[9] Affidavit of Ms B filed 27 April 2021, paragraph 28.
Ms B described that the father engaged in animal cruelty during the relationship, including grabbing dogs by the throat, slamming dogs against crates.[10] The father denied having done so.
[10] Affidavit of Ms B filed 27 April 2021, paragraphs 30–32.
Ms B further alleged regular physical violence by the father, including pushing her, shoving her, and trapping her in a room. She also described:
There were times when he would grab me by the throat and hold me against the wall, and call me every name he could think of.[11]
[11] Affidavit of Ms B filed 27 April 2021, paragraph 38.
She asserted that on one occasion the father blocked her from leaving a room such that she tried to climb out of a window. She further alleged that he tipped her out of bed when she was ill one day, that he held a knife saying he could not live without her, and that he threatened that he would find her if she left him. He denied each of these matters.
Ms B accepted that although the father attempted to contact her for several months after they had broken up, he has not contacted her since, over the ensuing six years.
It may be accepted that Ms B, as contended by the father, has a poor view of him. It may be observed that, if her evidence is accurate, such an attitude toward the father is unsurprising.
Despite the unorthodox manner of the taking of evidence from Ms B, and giving due allowance for such, there was no matter that I considered detracted from her evidence.
Mr B is Ms B’s father. His evidence gave some support to that of Ms B. He described interactions that indicated that Ms B was isolated from her family by the father. He also supported Ms B to leave the father on a number of occasions. He was however unable to independently corroborate much of what Ms B described.
The parties’ relationship
The parties commenced cohabitation in mid-2017, X being born 2018.
The parties agree that an incident occurred, early in their relationship, in early 2017, when they were returning from an event in M Town that the mother had participated in.
The mother describes that the father asserted that she was ungrateful, that he had been there to do everything for her, that she was “bipolar, backwards...a psycho freak, fucked in the head”.[12] She says that she told him to pull over as she was getting out of the car. She described that she put her hand on the handle, the father grabbing her saying “don’t be a dickhead and pull your head out of your arse and stop making this all about you.”[13] She says that she saw the speed of the car increase from 110 km/h to 140 km/h. When she said she would call the police, she says that the father responded that she did not need to and that they would not believe her. She describes that he pushed her, then pulled her by her collar saying “you don’t need to call the police, this is fucked up.”[14]
[12] Affidavit of the mother filed 5 December 2022, paragraph 12.
[13] Affidavit of the mother filed 5 December 2022, paragraph 13.
[14] Affidavit of the mother filed 5 December 2022, paragraph 14.
The father, in his oral evidence, said that he grabbed the mother by the hand to stop her jumping out of the moving car. He agrees that he said that she did not have to call the police and that it was “fucked up”, but that as he did so they were stopping the vehicle. He denies that he accelerated to 140 km/h.
In his affidavit evidence the father asserted that he grabbed the mother after she had hit him in the face and grabbed his throat while he was driving, then tried to jump out of the moving car. He accepted that he referred to the mother as “bipolar”.[15]
[15] Affidavit of the father filed 18 November 2022, paragraph 45.
It is inherently unlikely that the mother was, or the father thought that the mother was about to jump from the car, whether it was travelling at 100 km/h or 140 km/h. It may be accepted, on either version that the mother wanted the father to stop the car. It may be accepted on either account that the mother threatened to call the police. I do not accept that the mother suddenly attacked the father, but rather that the father’s verbal conduct prompted her to want to get out of the car, and his physical conduct prompted her to threaten to call the police.
The mother says that in late 2017 she found, in a kennel that the father had previously told her to stay away from, the carcass of a dog that the father was looking after for another person.[16] She described the dog as malnourished.
[16] Affidavit of the mother filed 5 December 2022, paragraph 18.
The father accepted that the dog had died. He did not accept that it was the result of malnourishment. It is unclear why the dog died.
The parties agree that an incident occurred when the mother was attempting to leave the property in early 2018, when the mother was pregnant, where the rear window of her Motor Vehicle 1 was smashed. They put different complexions on this incident.
The mother says that after an argument she told the father that she did not want to be around him at that moment. She started to drive out in her Motor Vehicle 1, when she saw the father running across and then jumping from the veranda, then running to the Motor Vehicle 1. She described that she heard a “massive bang” causing her to brake, and then seeing a fist through the rear window.[17]
[17] Affidavit of the mother filed 5 December 2022, paragraph 22.
She says that the father climbed off the vehicle, came to the driver’s door and tried to pull her out by the arm.
When the mother asked him how he could do this as she was about to sell the car, and that she just wanted to leave, she says that he said to her “you’re not right in the head” and further that she could not take the car. [18]
[18] Affidavit of the mother filed 5 December 2022, paragraph 23.
The mother described that she felt scared and unable to leave as he then had the car keys. She described feeling trapped and alone.
Although struggling to find the words to describe it, the father asserts that the mother was agitated at the impending sale of her Motor Vehicle 1, observing that she would become so around such events.
In his affidavit he denied trying to stop the mother from leaving the property, or that he punched through the back window, breaking it. Rather, he described that as she was driving away, in a hysterical state, screaming and crying, he jumped onto the vehicle, and alleged that the mother accelerated then braked heavily causing his head to hit the rear window and break it.[19] He said that he did this to try to calm the mother as he did not consider that it was safe for her to be driving.
[19] Affidavit of the father filed 18 November 2022, paragraph 43.
In his oral evidence the father said that he jumped into the vehicle to calm the mother down and so that she would not drive off. This conflicted with his earlier denial of attempting to stop the mother from leaving the property. It is also reflective of a complete lack of insight as to the potential impact of chasing the mother and jumping onto her moving car as she attempted to leave, or of its inherent lack of capacity to calm the mother.
In his oral evidence he amplified his account to say that the mother said to him that he would not be seeing his child.
The father denied attempting to pull the mother from the driver’s seat, asserting that she got out of the vehicle and came to him. He accepts that he may have said to the mother that she was not “right in the head”.
The father says that he then drove from their home in N Town to City O overnight to obtain a replacement back window as the vehicle was about to be sold.
This was a frightening and controlling event perpetrated by the father upon the mother. She was prevented from leaving the property. Her vehicle was damaged. She was scared by the conduct of the father. I do not accept the father’s description that his conduct was the result of the mother screaming, crying, and acting hysterically, in a manner that meant that he considered that it was not safe to drive. Such does not explain why he would act in a manner highly likely to increase distress on the part of the mother. The manner of description by the father presents as an attempt to minimise his conduct and its impact and to deflect responsibility to the mother due to her alleged hysteria.
I do not accept that the father’s actions were as benign as he attempts to paint them. I consider that the father’s description is calculated to whitewash the incident.
His conduct was frightening and designed to prevent the mother from leaving. I accept the mother’s description of the breaking of the window, of the fist through the window and of the attempt to pull her from the car, despite other doubts about the mother’s reliability.
The mother asserts that the father was cruel to her dog, his dog as well as neglectful of dogs. The father denies this was the case.[20]
[20] Affidavit of the father filed 18 November 2022, paragraph 45.
The broader context to this accusation are the allegations made by Ms B that the father was observed by her to be cruel to animals.
I am unable to conclude that the father was, or was not, cruel to animals.
X was born in 2018.
The mother was the primary carer of X during the relationship. Although the father has attested to flexibility in his work, even on his account he worked such long hours that the key responsibility for parenting X rested upon the mother, the father often working from before X was up in the morning until after she was in bed. However, it may also be accepted that the nature of the father’s work was that he had contact with the mother and X during the working day when he returned to the home.
The mother accepted however that the father would, at times, bathe, change nappies, read to and play with X, and that she considers that he “adored” her.
The father alleges that during the relationship the mother repeatedly accused his mother of trying to take X from them. The mother denied such, asserting that the genesis of such an allegation was in his family having X for “hours” immediately after she was born, in a manner that was distressing to the mother.
The father’s temper was an apparently live issue during the relationship. Exhibit M7 is a text exchange between the mother and the father’s mother of late 2018 where the mother says that the father had “gone out of control” swearing and yelling in front of X, and that he had an “out of control temper.”
The mother says that there were occasions when the father threw or broke things. This was denied by the father.
The parties agree that on a number of occasions the mother left the father, the mother asserting four or five, the father even more.[21] The mother asserts that on each occasion she would return to live with her parents, and the father would promise that he would better his behaviour or attitude, but after she returned he would accuse her of starting arguments or being hormonal. The father asserted that the mother leaving occurred in a context of constant accusations of the father womanizing, drinking, being out places, not loving the mother, and not knowing how to care for X.
[21] Affidavit of the father filed 18 November 2022, paragraph 7.
The mother alleges that the father was violent to X during the relationship, forcefully pulling her from a highchair, smacking her hard, yelling and screaming at X. The father denied this.
The mother described that in early 2019 X was making a mess, eating in her highchair. She said that the father told her to stop making a mess and to eat her food.
The mother described that the father suddenly grabbed X, pulling her violently from the highchair, becoming angrier and angrier and pulling harder as X was stuck. She says that the father then smacked X so hard that X went “floppy”.[22] She described that she saw marks on X corresponding with where she had been hit. The mother did not seek any medical assistance in respect of this incident.
[22] Affidavit of the mother filed 5 December 2022, paragraph 28.
The father accepted that he had told X to stop making a mess and to eat her food, and that he removed her from the highchair, but denied that he was violent, angry, or that he struck her.
Whatever occurred was sufficient for the parties to each recall the incident, each recalling that X had been messy, had been rebuked and then removed from the highchair. On the father’s account it was a nothing incident, on the mother’s highly memorable.
They are at variance, effectively, as to the father losing his temper and violently or roughly removing X from her highchair.
I accept that, although I cannot conclude the extent, the father’s removal of X had features of roughness or violence, consistent with a loss of temper, such as to mark the incident as other than an everyday incident of the removal of a child from a highchair.
The mother described a further incident in early 2019 where she had X out of bed during the night due to colic. She described that the father got out of bed saying “what the fuck is going on, what is wrong with her” and grabbing X violently, smacking her on the bottom. The mother described that X was screaming. She said that the father further asserted that X was “being silly” and that he could not sleep with her crying, and that the mother was letting her get away with it.[23]
[23] Affidavit of the mother filed 5 December 2022, paragraph 33.
The father’s description is more benign, being that he merely enquired as to what was going on, denying violence, abuse and smacking.
Again, despite some concerns as to the mother’s reliability, but in the context of compelling aggregated evidence from each of the former partners’ evidence as to the father’s inability to control his temper, I accept, at least in general terms, the mother’s account of this interaction.
The parties finally separated shortly thereafter in mid-2019.
On that day the parties attended a lunch in F Town. The mother alleges that the father drank two bottles of wine, he denying such. On returning home, the mother went straight to bed, the father coming in later and asking the mother why she was “sulking” or “sooking”.[24] He agrees that he asked her why she was “so ungrateful”. The mother asserts that he called her “ungrateful... psychopath... ungrateful cunt... psychotic... fucking bitch... you can’t treat me like a dog.”[25] He denies being angry or calling her, at this stage “psychopath... cunt... psychotic... fucking bitch” although he accepts that he may have called her a “bitch” later.
[24] Affidavit of the mother filed 5 December 2022, paragraph 39.
[25] Affidavit of the mother filed 5 December 2022, paragraph 39.
A physical interaction then occurred between the parties.
The father alleges that he was attacked by the mother, pushed and punched, sustaining injuries.[26] He produced images of apparent bruising, in particular to his shoulder.[27]
[26] Affidavit of the father filed 18 November 2022, paragraph 24.
[27] Exhibit F18.
The mother alleges that the father pushed her onto the bed, held her, saying that this is what he could do to her. The parties agree that the father’s face was scratched by the mother, he says as she punched him. She says she scratched him as she tried to push him off her. She says she went to grab X who was also on the bed, but that he held the mother down by her head. When she tried to reach her. The mother alleges that the father held her by her throat, choking her and kneeing her to the stomach. He denies this, but accepts that he then said that the mother was “bipolar” and “psychotic” and that “this is fucked”.[28] He accepts that he may have described the mother as “fucked in the head”.[29]
[28] Affidavit of the mother filed 5 December 2022, paragraph 44.
[29] Affidavit of the mother filed 5 December 2022, paragraph 44.
The mother produced an image of apparent bruising to her neck area.[30]
[30] Exhibit M6.
In an earlier affidavit the mother had also described that the father had hit her with his chest and headbutted her to her head. Neither of these matters appeared in either the trial affidavit, nor in the information relied upon by the police in their application for an AVO. The mother could not explain why the chest push and headbutt were not referred to, asserting that they had in fact happened.
It may be accepted that on either account this was a traumatic event and some care should be taken in considering the significance of variations in the accounts, although the omission of the headbutt raises cause for some caution in respect of the mother’s testimony.
The mother said that she struggled to get X, while the father continued to hold her by the throat with his right hand and held X tightly with his left hand.
When the father let go of the mother she said she was going to call the police. She says that he said to go ahead, that they would not believe her as he was the one injured. She says that as she went to do so he was calling her “psychotic” and “bipolar” telling her that she did not need to call the police, and that she was causing the arguments.
The mother called the police and left the property, speaking to the police as she left and arranging to meet them in F Town. The father also described that the mother called the police as she left. The mother described in the 000 call that the father had tried to choke her.[31] The father can be heard in the background of the recording yelling at the mother, at this point, that he was the one bleeding and not to lie. He continued to yell as she was on the phone to 000.
[31] Exhibit M5.
The mother says that the father physically resisted her putting X into the car, trying to pull her out of the car, and that X was crying and screaming. Although the mother was distressed during the call, the fracas around getting into the car was not apparent on the recording of the 000 call. What was contained on the recording was inconsistent with this aspect of the mother’s account.
The 000 call supports the notion that the parties were in sharp conflict at this time, and contains an immediate claim by the mother that she had been choked. However, the inconsistency as to the interaction at the car points to unreliability on the part of the mother in her description of this incident.
The mother says that the father then stood in the way as she tried to back the car out.
An ADVO was issued. The police attended the home and the father was arrested, charged and placed on bail.
On either account the conflict commenced with the father’s demeaning enquiry of the mother as to why she was “sooking”.[32] I am unable to determine exactly how the physical interaction unfolded from this point. I am unable to conclude that the father headbutted the mother, or that he pursued her to, and struggled with her at the car.
[32] Affidavit of the mother filed 5 December 2022, paragraph 39.
I cannot exclude that the father was injured in the altercation.
I accept that the father choked the mother, noting her early description of this, and noting the father’s conduct toward his previous partners, which will be examined further in the discussion part of this judgment.
This marked the last of the incidents between the parties.
X was shortly thereafter hospitalised. The father says that while she was in hospital he came and slept on the floor with the mother and X.[33] The mother denies that the father visited the hospital.
[33] Affidavit of the father filed 18 November 2022, paragraph 32.
In mid-2019, the father was acquitted of the charge, although an ADVO was put in place for 12 months.
Alcohol and drug use
While Ms C and Ms B described that the father used a prohibited substance during their relationships (and the father agreed albeit to a lower level) the mother does not contend that the father was using the prohibited substance during their relationship.
Further, whilst the father’s excessive consumption of alcohol was described by these witnesses, the mother agrees that in her relationship while the father drank, and at times excessively, this was not a regular feature of their relationship.
I doubt, on the description of the father, Ms B and the mother, that this is a prominent ongoing issue of risk, but note that the father agrees to orders that provide or hair follicle testing and restraints in relation to consumption in order to ameliorate concerns in respect of these issues.
Post separation
The father says that from separation until about a month later he spent time with X for between half an hour to three hours, unsupervised and then from his acquittal of criminal charges in mid-2019, supervised by the mother. The father asserts that this occurred on fourteen occasions up to late 2019. The mother denies this. Although she initially denied ever supervising, eventually she accepted that there was one occasion of time supervised by her on Father’s Day, being an occasion when the father’s family unexpectedly attended and the mother called the police.
Countering this evidence, the father produced firstly a text exchange,[34] indicating agreement between the parents for him to spend time with X the day after the Father’s Day when the police were called. The text exchange indicates a settled agreement. The mother initially said that she did not recall such eventuating, and then that she did no turn up.
[34] Exhibit F5.
The father secondly produced a series of images of X dated four dates in mid-2019.[35] The mother asserted that the image of one date 2019 was one taken by her rather than the father, but otherwise, while she accepted that each was an image of X, she denied that the father had spent time with X on those dates, despite the date stamp on the images.
[35] Exhibit F9.
Given this response the father sought to reopen his evidence to lead evidence of a video recording of that date in mid-2019, which incorporated the image referred to above, but also recorded the father singing to X, indicating his that he was with X at this point.[36]
[36] Exhibit F12.
The father’s testimony and the dated images, that appeared to correspond to the assertions as to time made by the father are, sufficient to establish his claims as to time spent shortly post separation. They also undermine the mother’s reliability. It may be accepted that he spent time with X post separation and prior to there being supervised time.
The mother says that the next time that X spent with the father was professionally supervised by P Supervision Service, which she thought commenced prior to court orders for supervised time. Those visits took place in City Q on three dates in late 2019. In late 2019, the mother ended this arrangement, accusing the supervision service of failing to properly supervise, and of allowing X to be injured while under supervision. This was not explored at trial. The father and X then did not spend time together until March 2020.
Following orders made in February 2020 the father commenced supervised time at E Family Services on 21 March 2020. Although provision was made for weekly time, until mid-2022 the father spent time with X on a fortnightly basis. From about August 2022 X was spending supervised time with the father twice weekly. The mother accepts that X has had a positive time with the father during the supervised sessions. No issue of adverse behaviour on the part of the father in the visits that have spanned eighteen months has been raised.
The father however describes that X has called him “Mr Gillen” on a number of occasions during the supervised sessions. The mother says that she calls the father “Mr Gillen” at times, and at other time refers to him, to X, as “dad”.
The father has also had electronic communication with X. The parties are at odds whether the father exercised this time twice or three times per week. The father asserts that the mother interfered with the time, and that the calls were generally short and with little interaction from X. The mother asserts that she ceased allowing video calls as she said the father was asking X questions about where they were.
During the currency of the proceedings the mother has provided court documents to a number of persons.
The mother accepted that she provided court documents to a Ms R, who is a friend of the father’s most recent girlfriend (that relationship ending shortly prior to the hearing).
Although the mother argued that some form of adverse inference should be drawn against the father for not calling his former girlfriend in the case, no such inference is properly available.
The mother then denied having given the documents to anyone else. She then accepted that she had also provided her Response, Notice of Risk, the affidavits of Ms C, Ms B and Ms B’s father, and an AVO to X’s preschool. She says that this was because they asked for court documents. She explained that she did not think of having done this when she asserted that she had not given documents to anyone else.
The mother also provided court documents to Ms B and to Ms B’s father.
She said that she did not understand that this was inappropriate, but now understands.
The mother has also enrolled X as “Lindo” at her preschool, despite her surname being “Gillen”. While the mother asserted that she had been enrolled as “Gillen” and that there was no option for the preschool to do otherwise, the enrolment documents of late 2019 do not support such.
Similarly the mother sought to enrol X into kindergarten under the name Lindo, a step that was refused by the school given that it did not match X’s birth certificate.[37]
[37] Exhibit ICL1.
The mother accepted during the proceedings that X should be known as Gillen, the name on her birth certificate.
The Mother
The mother’s case is that she is very fearful of the father, considering him to be dangerous, unpredictable and prone to sudden anger. She has declined to provide her address in the proceedings, which she explains is because she does not feel safe from the father. The mother has expressed a fear that the father will attend at her home.
The mother accepted that since final separation there has been no incident involving the father, nor of his approaching of her or her home.
The mother contends that X is not safe with the father, being concerned that if she was to defy the father she may reap his anger, potentially to the extent of life-threatening injuries.
While the mother considers that X will be happier without the father, she was unable to say whether she would be better off without the father, considering that if there could be a one hundred per cent assurance of X’s safety that there could be a relationship with the father.
The mother considers that the father may now be pursuing time with X in order to hurt the mother.
It may also be seen that the mother has taken steps to undermine the father’s position with X, enrolling and attempting to enrol her as “Lindo” and providing documents about him to third parties.
The Single Expert
Ms H, a forensic psychologist, was engaged by the parties as a single expert in the proceedings. She reviewed the materials, interviewed the parties and observed X’s interactions with her parents. Ms H prepared a report dated 7 August 2022, and was cross-examined by the parties and the ICL.
In assessing the parties, Ms H considered that the mother was “a nervous woman” who was:
…subthreshold for a diagnosis of trauma-related disorder. However, she reports sufficient symptoms directly related to her relationship with [Mr Gillen]. to meet criteria for Adjustment Disorder with Mixed Anxiety, chronic and Depressed Mood. Such conditions are expected to move into remission within six months of cessation of the stressor. As [Ms Lindo] is likely to have some contact with [Mr Gillen] for the foreseeable future, the ‘chronic’ specifier is applied.[38]
[38] Family Report dated 7 August 2022, paragraph 11.15.
Regarding the father, Ms H considered that he “presented with some concerning patterns” seen in his discussion of his alleged history of violence, as he “deflected to discuss the apparent frailties and actions of the other party involved.”[39] Further, the father denied that he had any issues with “anger, emotional volatility or violence.”[40] She considered that, dependent upon the fact finding in relation to the various conflicts, the father “demonstrated no insight into his role in any of the arguments.”[41]
[39] Family Report dated 7 August 2022, paragraph 22.12.
[40] Family Report dated 7 August 2022, paragraph 22.12.
[41] Family Report dated 7 August 2022, paragraph 22.14.
Observations were conducted with X and each of the parents. X referred to the father as “Mr Gillen” during the session, and although she engaged with the father she was observed to be “physically ambivalent” around him, for example permitting him to pick her up, but being “mostly limp” and retracting from physical contact as he left.[42]
[42] Family Report dated 7 August 2022, paragraph 23.2.
Ms H considered that this may be explained by being the first time outside E Family Services and the newness of the environment. In contrast she observed X remain close to the mother, and as “much more animated during their play”.[43]
[43] Family Report dated 7 August 2022, paragraph 23.4.
When Ms H asked X about whether either parent said things to her about the other parent, she said, of her mother, “look, she doesn’t like [Mr Gillen]”.[44] X, when asked, said that she liked the father. Ms H considered that this meant that X was aware of the mother’s concerns, but that she did not indicate how she learned about those concerns. She further thought that X is forming her own view of the father.
[44] Family Report dated 7 August 2022, paragraph 23.6.
In her assessment Ms H concluded that X “presents as a largely happy young girl who is healthy and well cared for.”[45] She considered that the report from the day care centre indicated that X is “doing well socially”.[46] She further thought that the reports from E Family Services “suggest that [X] enjoys playing with her father.”[47] This was however under circumstances where their relationship had not been tested, and where the visits were limited to two hours.
[45] Family Report dated 7 August 2022, paragraph 23.7.
[46] Family Report dated 7 August 2022, paragraph 23.7.
[47] Family Report dated 7 August 2022, paragraph 23.8.
Ms H considered that X is:
fast approaching the age where spending two hour periods at the same contact centre is likely to become burdensome to her...(t)o meet [X’s] needs and to enable her to develop some understanding of [Mr Gillen] as her father and not a playmate, their relationship needs to expand beyond its current limits.[48]
[48] Family Report dated 7 August 2022, paragraph 23.9.
Ms H considered that, subject to the court’s factual findings, it is important that X learn that the father is her father.
Ms H recommended that both parties have psychological intervention.
Again subject to factual findings, she recommended that X live with the mother and that there be a graduated increase in supervised time, with eventual consideration to be given to removing the requirement for supervision if all proceeded without incident. She also recommended that an appropriate supervisor be agreed by the parties.
In her oral evidence Ms H described that the potential benefits of meaningful relationship with the father included that the more loving people that a child has in its life, the better (as long as such is safe), that it is beneficial to have a parent who cares involved in a child’s life, and that if a parent is absent it can impact a child’s self-esteem.
When asked about the ramifications of not having a relationship with a parent, Ms H indicated that such depends upon what else might be available to the child in terms of other relationships.
As to the impact of exposure to family violence, Ms H noted that:
The research and reports are clear that a child experiences domestic violence as much as the parent does, regardless of who the perpetrator is or isn’t.[49]
[49] Family Report dated 7 August 2022, paragraph 24.2.
Further Ms H observed that where a person has engaged in a pattern of coercive or controlling behaviour in intimate relationships, then the characteristics exhibited to those partners tend also to be exhibited towards a child. She further observed that exposure of children to coercive controlling behaviour subjects a child to trauma, and degrades the benefits of meaningful relationship with that parent.
Returning to the potential benefits of meaningful relationship, she considered that it is important for all children to be exposed to an adult model of respectful and caring behaviour toward a child or intimate partner. Considering this evidence, presumably, where that is not the mode of relating displayed by a parent such benefits are unavailable. Further, it appears that it may be inferred that exposure to family violence rather than respectful and caring behaviour is deleterious in the sense that it models what is harmful as acceptable within a relationship.
Ms H identified a risk that if the mother is anxious about the father, such may lead to anxiety on the part of X in relation to the father. However, X is not at present demonstrating such anxiety. Ms H identified that the mother’s anxiety about the father may be diminished should there be ongoing safe interactions between X and the father. Potentially safeguards would also build confidence on the part of the mother in relation to X’s time with the father.
In her oral evidence Ms H accepted, subject to factual findings, the structure of the orders for transition into unsupervised time proposed by the ICL as appropriate. That is, she considered that if the father does not represent an unacceptable risk of harm, that there be a transition into increased supervised time and then into unsupervised time.
Practically, Ms H recommended that any changeovers preferably occur in a manner where X is engaged in an activity, and the parents simply switch, presumably in a manner to distract X and remove any overlay from the transition. A handover at school or preschool could have a similar sort of effect.
On the issue of parental responsibility, Ms H noted that although an order for equally shared parental responsibility could counteract the exclusion of one parent by another, here it could also lead to high levels of anxiety for the mother. Further it carries with it the potential for conflict, and for X’s exposure to that conflict.
In terms of support for the parties, Ms H supported the mother continuing to consult a psychologist, and described that Men’s Behavioural Change programmes had fair success in improving a person’s view of their partner, communication, understanding of their own needs, and awareness of their emotion and cognition in disagreements. She described that such courses are typically of eight to twelve weeks in duration and that while they require frankness and honesty, gaining acknowledgement forms a part of the intervention offered by such courses.
The father offered that he would attend such a course, offering to be bound by an order to require such. He submitted a draft order to chambers in support of such.
Ms H was also asked about the benefits of limited supervised identification or recognition time on limited occasions each year. Ms H questioned the benefits of such orders, in particular as to whether they would benefit or confuse X.
Ms H was also asked about issues relating to X’s surname. At present she considered, at X’s stage of development that it was not yet a matter of importance, although as she ages it may become more important to her.
Discussion
The key tension in determining what is in X’s best interests is between the primary considerations.
There are potential benefits to X of meaningful relationship with the father. Those benefits require a change in the nature of the time that X spends with her father so that she might come to know him as her father, rather than a playmate, the current supervised arrangement being one ill adapted to X as she gets older.
The potential benefits were identified by the Family Report writer as including from X having a number of persons who love and care for her in her life, and countering risks to her self-esteem if there is a parent absent.
Some confidence in the availability of these benefits can be obtained from the positive reports from supervised time, which has apparently been enjoyed by X, to an extent where X holds a positive attitude to the father despite knowing that her mother does not like him. Against that the limited periods of time in the supervised setting mean that as yet the relationship is untested.
It may also be observed that X’s reaction to the father in the observation with the Family Report writer was limited, seen in the manner that she physically interacted with him. It was however identified that this may have been an effect of the change in circumstances being the first time X has seen him (in a long time) outside of E Family Services.
While a further potential benefit was identified in the modelling of respectful and caring behaviours to partners, that is not a benefit that can be relied upon in this case due to the manner in which the father has treated the mother and his previous partners, which was at times both highly disrespectful and uncaring.
The ICL and the father both asserted that a transition to unsupervised time was in X’s best interests, as opposed to the mother’s position of no time.
It should be recognised that there are no identified options that sit between the mother’s proposal and that of the father and the ICL. If time with the father is to transition to unsupervised, no better arrangement to do so than the proposal was identified. If a transition to unsupervised is not to take place, no fall-back position other than no-time has been identified either, no party seeking that there be mere recognition time, and such an option being unsupported by the expert.
A large part of the support given by the ICL was predicated on the proposition that although the evidence supports a conclusion that the father presents a risk of harm to X it is not, in the context of the proposed protections, one that is unacceptable.
The ICL proposes, as the first of those protections, that in the short term there be supervision by the father’s brother. He gave evidence and was cross-examined. He impressed as a suitable supervisor for the period proposed by the ICL, committed to the travel and the obligations that would be imposed upon him, willing to intervene if there was an issue, and proffering an undertaking supportive of such a role. He was also willing to comply with the reporting aspects of supervision sought by the ICL, being willing to facilitate contact with the mother, and to send video footage to demonstrate the circumstances of supervision of X’s time with the father.
If such an arrangement was appropriate to X’s best interests, then I accept that the brother would offer sufficient protection for the limited period of his supervision.
Those protections would no longer be available once supervision came to an end.
The ICL proposed a second protection, being that the father undertake a Men’s Behavioural Change programme. Such, in generic terms was commended by the Family Report writer. It should, however, be recognised that even if, in the absence of direct evidence about this course, it is assumed that they are generally beneficial, I am unable to simply assume that the father’s participation in such would bring about change to sufficiently abate risk.
Perhaps if the father had undertaken therapy, the results of which were presented to the court, or perhaps if he had undertaken such a program and given evidence of its impact, it would be a different situation. However, at present I am simply left with speculation as to the benefits that may accrue from participation in the course.
The third protection proposed was as to drug testing of the father, to confirm both drug (non) use and whether he was abusing alcohol.
While at times there was correlation between times of alcohol abuse and abuse of his partner, and while it might be considered that intoxication had a disinhibiting effect, the father’s conduct was not caused by alcohol abuse, rather than at times being associated with it. The father’s adverse conduct occurred whether or not he was intoxicated.
The critical issue then turns to the nature of the risk posed by the father to X.
That risk flows from his vulnerability to anger and his resort to violence and abuse. While it is true that he has undertaken an anger management programme, there was little reason to consider that this course fundamentally changed his responding in anger.
The risk presented by the father in his vulnerability to anger and resort to violence and abuse may be seen in the various interactions with the mother as set out above. They may also be seen in his interactions with his previous partners.
The most cogent exemplar of risk may be seen in the father’s choking of his various partners.
A difficulty in the mother’s case arose from her evidence of the conflict at the point of separation. Given the inconsistency between the mother’s account and the 000 call there is good reason to consider that her account was embellished. However, insofar as her account alleged choking, I note both that she immediately reported this to police, and at a time when she did not know either Ms C or Ms B who likewise report choking. That is, the mother’s account of choking was not something that arose on hearing the account of Ms C and Ms B, but as she was fleeing the father.
The accounts of each of the three may be seen as strands supporting the proposition that the father has a tendency to resort to such force. The account of each gains strength from the account of the others to together support a conclusion that the father has a tendency to choke as an outworking of his anger.
The mutual support that the accounts give to each other to establish such a tendency also supports each account in respect of the individual accusation of choking.
Despite some unreliability on the part of the mother, I accept the account of the mother, Ms C and Ms B that the father has choked each of them, applying force to their necks in episodes of violence perpetrated upon them.
Even if I am wrong to ultimately conclude on the balance of probabilities (as I have) that the father has choked each in the manner described, and each of the episodes is taken not to be established, nor should it be the case that any of the three should be rejected as not having occurred, again providing sufficient strands to be demonstrative of serious risk.
The seriousness of the risk may be seen in the nature of the choking. By its nature it is an act that is dangerous, directed as it is towards a person’s ability to breathe, such an ability being essential to life. While control or coercion effected by other physical means may be serious, acts of choking may be seen as particularly so.
While the father was at pains to point out that a number of these allegations are now dated, the corollary is that the father has now engaged in them over a long period of time and upon different persons of importance to him.
Accordingly, whether the choking incidents are taken as proven, or as merely uncertainties, they point to a serious risk of harm to those the father is close to. When they are seen in the context of the other incidents attested to by the three partners it may be seen that both the degree and seriousness of the risk is indicated by a broader range of behaviour than just the choking.
Risks also be seen in the incidents directed at X as attested to by the mother, both in the rough removal of X form the highchair and in the response to her distress when suffering colic. Similarly, I accept that Ms C’s child was, as indicated by her, in the vicinity of the father’s attack upon her. There are therefore multiple examples of children being exposed to the father’s behaviour toward his partners.
It is important to recall the assessment of the Family Report writer that children experience family violence as much as the parent the subject of the violence, and in these instances, they were directly exposed to such by the conduct of the father.
While it may be considered that this risk is nullified for the duration of supervision by the father’s brother, that supervision is only proposed on the basis that it is a stepping stone to unsupervised.
The risk is not sufficiently ameliorated by the various protections to mean that, when it transitions to unsupervised, it becomes acceptable. The potential benefits of meaningful relationship are not sufficient to justify taking such risk, particularly noting the imperative to give greater weight to the protection against harm within the primary considerations.
It should be concluded that a move to unsupervised time carries with it an unacceptable risk of harm to X, such as to mean that it is not in her best interests.
While it may also be accepted that the mother has undermined the father’s relationship and place with X, such is perhaps understandable given the manner in which his conduct has indicated risk for X. It should also be recognised that such conduct on the part of the mother does not nullify the risks otherwise identified as flowing from time with the father.
Given the manner in which the trial was run, the consequence of this determination is that there should be no time ordered between X and the father.
This also counters the notion that there should be an order for equally shared parental responsibility. Rather, it will be in X’s best interests, given that the father will not be involved in her life, that the mother be solely vested with decision making authority.
Further, the serious risk issues identified support the injunctions in terms similar to those sought by the mother that will prohibit the father from coming into contact with either the mother or X, despite the father not having made an approach since separation. Simplified versions of those orders will be made that permit the father to contact the mother through a legal representative, and an end date to the orders will also be specified. This will assist to give the mother and X the assurance of a safe space within which to live.
It should be noted that during the proceedings the mother agreed that X should still be known by the surname Gillen. All parties agreed that orders be made to correct a mis-spelling of Lindo on her birth certificate.
Conclusion
Orders in respect of X will be made generally in accordance with those sought by the mother. This will include orders in relation to the obtaining of a passport, international travel being a matter for the mother.
While the mother sought costs, and noting that the starting point for such matters is that each party bear their own costs, directions will merely be given for such to be considered should such be pursued further.
I certify that the preceding two hundred and twenty-five (225) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 21 December 2022
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