Halliday & Maison
[2023] FedCFamC2F 1149
•8 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Halliday & Maison [2023] FedCFamC2F 1149
File number: SYC 5573 of 2021 Judgment of: JUDGE LIOUMIS Date of judgment: 8 September 2023 Catchwords: FAMILY LAW – CHILDREN – Parental responsibility – Allegations of coercive and controlling family violence – Whether the child should spend time with the father – Impact on the child of family violence – Unacceptable risk of exposure to family violence – Where the child’s views are entrenched – Where the mother and Independent Children’s Lawyer oppose the child spending time with the father Legislation: Australian Passports Act 2005 (Cth) s 11(1)(b)(i)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB(1), 4AB(2), 4AB(3), 4AB(4), 60B, 60CA, 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CG, 65D, 65DAA, 68B, 68C
Mental Health Act 2007 (NSW) s 22
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Line v Line (1997) FLC 92-729; [1996] FamCA 145
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 365 Date of hearing: 13–15, 24 March, 9–10 May 2023 Place: Sydney Counsel for the Applicant: Mr Cohen of Counsel Solicitor for the Applicant: Inner West Solicitors Pty Ltd Solicitor Advocate for the Respondent: Mr Squires Solicitor for the Respondent: Legal Aid NSW Sydney Central Family Law Counsel for the Independent Children’s Lawyer: Ms Stolier of Counsel Solicitor for the Independent Children’s Lawyer: Brian Samuels and Associates ORDERS
SYC 5573 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HALLIDAY
Applicant
AND: MS MAISON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE LIOUMIS
DATE OF ORDER:
8 SEPTEMBER 2023
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The Mother Ms Maison born in 1988 have sole parental responsibility for the child X born in 2014 (hereinafter “the child”).
2.The child live with the Mother.
3.The child spend no time with the Father.
4.The child be permitted to travel internationally with the Mother or with the Mother’s consent and for that purpose, the Mother is permitted to apply for the issue and renewal of an Australian Passport for the child under the provisions of section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), without the Father’s consent.
5.The Mother retain the child’s passport at all times.
6.The Father shall be at liberty to send gifts and cards for the child on two occasions per calendar year, for the child’s birthday and for Christmas on 25 December, to a PO Box and for the purposes of this Order, the Mother shall provide the Father with the PO Box details and provide the gifts and cards to the child at her discretion.
7.Each party shall be and is hereby restrained by injunction from:
(a)Discussing these proceedings or any issue or allegation raised therein with the child;
(b)Allowing, causing or permitting the child to view any documents filed or to be filed in these proceedings;
(c)Denigrating the other parent or allowing, causing or permitting any other person to do so in the presence or hearing of the child; and
(d)Denigrating any member of the other parent’s family or household or allowing, causing or permitting any other person to do so in the presence or hearing of the child.
8.Pursuant to section 68B of the Family Law Act 1975 (Cth), the Father be, and hereby is, restrained by injunction whether by himself, his servants or agents from:
(a)Removing, taking possession or attempting to remove or take possession, custody or control of the child and/or from causing the child to be removed from the Mother’s care;
(b)Attending upon or coming within 50 metres of the Mother’s home at any time;
(c)Attending upon or coming within 50 metres of the child’s school or any location at which the child is attending any extra-curricular activity;
(d)Contacting the child through any means (including via any social media platform);
(e)Coming within 50 metres of the child or the Mother; and
(f)Attempting to discover where the Mother and child reside.
9.The above Orders are made for the personal protection of the Mother and the child.
10.The Order with respect to section 68B of the Family Law Act 1975 (Cth) brings in to action the terms of section 68C of the Family Law Act 1975 (Cth) which grant the police a power of arrest for the personal protection of the person(s) if a police officer believes on reasonable grounds that the person against whom the injunction is directed has breached the injunction by causing or threatening to cause bodily harm to the protected person(s), or harassing, molesting or stalking that person(s) and in those circumstances the police officer may arrest the Father without warrant.
11.The Mother is at liberty to provide a sealed copy of these Orders to the school(s) in which the child is currently enrolled, all places of extra-curricular activities he attends from time to time, and the NSW Police.
12.The Mother shall send one photo of the child to the Father by email during December each year.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LIOUMIS:
INTRODUCTION
This matter relates to the parenting arrangements for X born in 2014 (“X”) who was approximately nine years of age at the date of hearing.
The mother is the uncontested resident parent. The Court must determine whether X should spend time with his father and if so, how this will occur.
The mother alleges that during the course of the relationship the father perpetrated coercive and controlling family violence, and was often affected by alcohol and illegal substances.
The father admits that his behaviour was at times regrettable but falls well short of accepting responsibility for the impact of his conduct upon X and the mother.
The parties separated on a final basis in December 2020. Initially, X spent time with the father as agreed between the parties.
X has spent no time with the father since 18 March 2021.
ISSUES
The issues requiring determination are:
(a)Should the mother, in holding sole parental responsibility for X, be obliged to advise the father of all long-term parental decisions to be made and reasonably consider his input prior to making the decision?
(b)Is there an unacceptable risk of harm to X, and if so, can that risk of harm be mitigated?
(c)Should X spend time with the father?
(d)Should X have electronic communication with the father?
(e)Should X be permitted to travel internationally, and the mother be permitted to apply for the issue and renewal of an Australian passport for X, without providing notice to the father and receiving consent by the father?
(f)Should the father be restrained by injunctions pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) for the personal protection of the mother and X?
EVIDENCE
The father relied on his Case Outline document filed 9 March 2023 and the following documents:
(a)Amended Initiating Application filed 6 February 2023;
(b)Affidavit of Ms K filed 8 May 2023; and
(c)Affidavit of Mr Halliday filed 30 January 2023.
The mother relied on her updating Case Outline document filed 9 March 2023 and the following documents:
(a)Response to Application for Final Orders filed 6 October 2021;
(b)Affidavit of Ms Maison filed 1 February 2023; and
(c)Affidavit of Ms Maison sworn 9 March 2023.
The Independent Children’s Lawyer (“ICL”) relied on their Case Outline document filed 27 February 2023 and the Child Inclusive Assessment by Mr C dated 15 December 2021 (“Child Inclusive Assessment”).
All parties relied on the Single Expert Report of Ms D dated 28 September 2022 (“Single Expert Report”).
I have read and considered all of the material relied upon by the parties and the ICL in these proceedings and have also read each of the documents marked and tendered as exhibits.
I do not propose to traverse all of the evidence in these reasons and instead will address the evidence that grounds the reasons for my decision.[1]
[1] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.
BACKGROUND
The parties met in 2012 and commenced their relationship in 2013.
In mid-2013, the mother contends that the father told her, “I will put something in your drink” and “I will throw you down the stairs.” The father denies this.
The parties commenced living together in early 2014. X was born in 2014.
In 2014, the mother contends that the father attended the hospital shortly after X was born and said “I want to throw him out of the window.” The mother also contends that the father forced her to perform a sexual act on him in 2014 while she was in hospital after X’s birth. The father denies both of these allegations.
It is agreed that during the relationship the father smoked marijuana and drank alcohol to excess.
In 2013 to 2014, the parties agree that the father’s car was searched for drugs by Police on a number of occasions.
In mid-2014, Police records show that the paternal grandfather telephoned the Police and reported that the father had threatened self-harm. The father was located and was transported to E Hospital by Police.
In mid-2014, the mother contends that the father tried to pull X from her arms while yelling at her. The father denies this.
In late 2014, the mother contends that she was trying to feed X while in bed when the father flicked his elbow towards X, hitting him. The mother contends the father punched her in the arm when she asked him to leave the bed. The father says that he was asleep at the time and does not recall this event.
The mother alleges that in late 2014, she reported this incident to NSW Police who applied for a Provisional Apprehended Domestic Violence Order (“ADVO”) against the father for her protection.
In late 2014, a Final ADVO was made naming the mother as the protected person and the father as the defendant.
In 2015, the mother contends that the father forced a dish cloth that he had used to clean dog vomit into her mouth in the presence of X who was crying. The father denies this.
In 2015, the mother contends that the father became intoxicated at X’s first birthday party and argued with the paternal grandfather. The father agrees there was an argument with the paternal grandfather.
In early 2015, the mother contends the father accessed her email without her consent. The father denies this.
In early 2015, the mother contends that the father whipped her repeatedly with a tea towel in the presence of X. The father denies this.
In early 2015, the mother contends the father pulled the handbrake whilst she was driving and X was in the car. The father denies this.
On or around mid-2015, the mother contends the father spoke about committing self-harm and drew a picture on X’s sketch board. The father denied that this is what the picture depicts.
In October 2015, the parties separated for a short period.
In late 2015, the parties travelled to Queensland with X to visit the father’s family. The mother contends the father became angry because she removed his marijuana from the car and tried to dispose of it. The mother says during the argument that followed, the father chased her around the hotel room and pushed her head into a wall. The mother says this occurred in front of X who was crying. The father contends the parties argued after the mother removed his marijuana and that they yelled at one another in the presence of X. He does not concede that he pushed the mother’s head into the wall.
In July 2016, the parties re-commenced living together.
In late 2016, the mother contends that she found the father unconscious and affected by alcohol outside the home. After assisting the father to return home, the mother contends that the father urinated in the kitchen sink. The mother contends that the father became verbally abusive, spat at her, forced her phone out of her hands, and pushed X when X tried to intervene to remove the mother’s phone from the father.
The mother contends that she left the home with X and the father followed them, trying to enter the mother’s car and verbally abusing the mother. The mother contends that on returning home, Police were present and there was damage to the inside of the house, including damage to the Christmas tree and to her and X’s belongings.
The father agrees that there was an argument on this day. He does not agree that he urinated in the sink, spat, chased the mother and child, tried to impede the mother and child from leaving or that he grabbed her phone. The father agrees that his conduct was unacceptable during this event and that X was present.
In late 2016, the mother contends the father threw a box at her head in front of X. The father denies this occurred.
The parties again separated in 2017, although the date of separation is disputed between the parties. The parties agree that they did not reside together from April 2017 to January 2020.
In late 2018, the father was treated at E Hospital for a fall and a laceration. The father is said to have consumed 10 standard drinks of alcohol. The father agrees this occurred.
In 2019, the mother contends that the father told her to abort her possible pregnancy. The father says that the decision for the mother to take post-sex contraception was made by consent.
In 2019, the mother was treated for an ectopic pregnancy.
In 2019, the mother contends the father telephoned her and said “I am going to drive my car into the ocean.” The father denies this.
X underwent surgery in late 2019. The parties agree that there was a disagreement as to whether X should undergo surgery and the father contends the mother made the decision without discussion between the parties. Despite this, the father says he paid the surgery fees.
In late 2019, the mother contends that the father was unable to attend work because he was affected by illicit drugs and alcohol. The father denies that he consumed illicit drugs on this occasion.
The father alleges that the parties reconciled their relationship in around November/December 2019. The mother disagrees. The parties agree that they re-commenced living together in January 2020.
On multiple occasions in 2020, the mother contends that the father refused to allow X to pick up his cat when the father’s dog was jumping on the cat. The mother contends that this frightened X. The father describes the interaction as a normal animal interaction and that he did not want X to interfere and get hurt.
In January 2020, the mother contends that the father unzipped his pants in the presence of X and demanded she perform a sexual act on him. The mother contends that she removed X and herself and they remained in a bathroom until the father fell asleep. In January 2020, the mother contends that the father called X “cunt”. The father denies that this occurred.
In mid-2020, the mother contends that after X playfully flicked sand and threw seaweed at the father, the father became angry and kicked sand into X’s eyes. The father says that he and X were playing and that this was accidental. He says his actions were playful, not malicious.
In mid-2020, notes from E Hospital record that the father attended and disclosed issues with sleeping and “irrational thinking”.[2] The hospital records say that the father previously used illicit drugs and the father reported daily use of marijuana for the last 10–15 years.[3] The father largely agrees with this record but says that the daily use of marijuana should refer to periods of daily use in the past but not for a period of 10–15 years.
[2] Exhibit M25.
[3] Exhibit M25.
On or around mid-2020, the mother contends that the parties, together with X, were on a boat and the father said to the mother “I will kill you and throw you overboard.” The father denies he said this and says there was a difficulty with the anchor cable on the boat that he was trying to fix.
In mid-2020, the parties agree that the father arrived home with friends at 5.00am and that the mother and X witnessed the father’s friend break X’s plastic chair while intoxicated.
On or around late 2020, the mother contends that X found a small plastic bag containing a crushed white substance. The mother contends the father told her it was an illicit drug.
When cross-examined, the father said, that he was not sure where the white powder came from and that he said it was an illicit drug because the mother was very persistent in telling him what it was and he “couldn’t listen to it anymore”.[4] The father’s evidence is that he did not see X with the bag.
[4] Transcript 14 March 2023, p.180.
In November 2020, the mother contends that the father and a friend were at the home and she observed the father use an illicit drug in the presence of X. The father disagrees that this occurred.
In December 2020, the mother contends that during an argument the father pushed her keys into her chest. The mother says that the father grabbed the mother’s handbag and pulled it tight around her neck. The mother says X was present and scratched the father. The mother says the father pushed X from the chair. The mother says she and X then left the home.
The father says that the mother removed his phone and put it in her bag and that while he tried to retrieve the phone from the handbag, the mother moved away. The father denied that he deliberately pulled the bag around the mother’s neck.
In December 2020, the mother contends that the father took her keys, chased and pushed her. The mother contends that she fell to the ground and then ran to the bathroom with X. The mother contends that the father said to X “[y]ou better not stay in there too long; I’m leaving the doors open and your kitten will get outside.” The mother contends that later in the evening, the father said to her on the phone “I am going to jump off the bridge” and then hung up on her. The mother contends that she found the father at McDonald’s. The father disagrees that this occurred.
In December 2020, the mother contends that she entered an outbuilding and saw drug paraphernalia. The mother contends the father came into the building and pushed her and yelled at her. The mother says she noticed X was there and he said to her “[d]on’t go where I can’t see you.”
In December 2020, the mother contends the father ripped door handles off the door in front of her and X, and that she and X left the home to see Christmas lights. The father disagrees and says that the doorhandles were in poor condition and fell off on their own accord.
In December 2020, the mother contends that during an argument the father said “[y]ou’re an absolute dumb fuck.” The father contends both parties were involved in the argument and that he moved out of the home on this date.
The parties agree that they separated on a final basis in December 2020.
In January 2021, the mother contends the father put X in his car and said to him “[y]ou will never see mummy again.” The father disagrees that this occurred.
In around January 2021, the mother contends the father spoke to her about his plan to harm himself and said to her “[y]ou will be the one to get the phone call and you will be the only who knows and by then it will be too late”.” The father disagrees that he said this.
On or around January 2021, the mother contends that the father entered the bathroom and was verbally abusive to her in front of X. The mother contends X said “Mummy, mummy is he gone? Mummy, I am really stressed” and was shaking. The father disagrees that this occurred.
The parties agree that in January 2021, the father entered the mother’s home and left a pair of her underwear on her pillow. The father says the underwear may have fallen out when he was collecting his clothing from the bedroom.
The parties agree that in early 2021 the mother underwent surgery. It is agreed that the father stayed at the mother’s home for a period and cared for X and the mother. The parties disagree as to how long this occurred and the circumstances surrounding the father leaving.
The father says that on 1 March 2021, the parties engaged in third-party Family Dispute Resolution (“FDR”) and around 9 – 10 March 2021, the parties engaged in individual FDR sessions.
In March 2021, the father returned a negative urinalysis report for drugs and alcohol.[5]
[5] Exhibit F5, page 58.
In early 2021, the mother contends the father attended at her home and became angry when a condom broke during sexual intercourse. The mother contends the father left the home and then returned, was loud and aggressive, and broke a window. The mother contends X was present for this incident.
The father agrees there was an incident on this date but does not agree with all of the mother’s account. The father concedes that he was charged with malicious damage to property. The father agrees that a provisional ADVO was made for the protection of the mother and child.
X has not seen or spent time with the father since early 2021.
In early 2021, notes from E Hospital say that the father attended as per section 22 of the Mental Health Act 2007 (NSW) due to the father expressing self-harm.[6] The father was assessed and discharged.
[6] Exhibit M31.
In April 2021, the mother took X to see a counsellor at B Services in Suburb F.
In April 2021, a Final ADVO was made for the protection of the mother and child with the father listed as the defendant.[7] The order was in place for two years and was made by consent and without admissions.
[7] Exhibit M38, Annexure N.
On 20 April 2021, the parties attended a joint FDR session.
On 21 April 2021, the father received a report from Dr G from H Medical Clinic stating that the father’s mental state was stable.
From May 2021, the mother received assistance and support from Q Service and a Domestic and Family Violence Caseworker.
In mid-2021, the father received no conviction and was placed on a good behaviour bond as a result of the incident in March 2021.
On 4 June 2021, a section 60I certificate was issued as the mother did not complete the FDR process.[8]
[8] Exhibit F5, Annexure 2.
In mid-2021, the father completed the R Parenting Program.[9]
[9] Exhibit F5, Annexure 13.
On 3 August 2021, the father filed an Initiating Application.
In late 2021, the Department of Communities and Justice (“DCJ”) recorded an assessment of X as being at risk of significant physical and psychological harm from the father.
On 22 October 2021, the father received a report from Dr G from H Medical Clinic stating the father’s mental state was stable.
In November 2021, the mother and child were referred for counselling to Ms J by Victims Services.
On 1 November 2021, an ICL was appointed and a Single Expert Report was ordered.
On 22 December 2021, the Child Inclusive Assessment by Mr C dated 15 December 2021 was released. On the same day, interim Orders were made by consent, inter alia, for:
(a)The mother to have sole parental responsibility for X;
(b)X to live with the mother;
(c)Injunctions pursuant to section 68B of the Act;
(d)The father to complete a Men’s Behaviour Change program;
(e)The father to engage with a psychologist or psychiatrist and obtain a mental health assessment;
(f)Both parents to complete the “Tuning into Kids” programme and “Circle of Security” programme;
(g)The father to undertake a hair follicle test every three months for the next 12 months for illicit drugs and alcohol; and
(h)The mother to engage with a counsellor/therapist or psychologist with a focus on trauma recovery and maintaining boundaries.
In early 2022, the father was placed on a wait list for a Men’s Behaviour Change program. The father also completed the “Tuning into Kids” programme.
On 25 February 2022, the father received a report from psychologist Ms K who says that the father has attended upon her twice and that she did not find that he had a mental illness.
In March 2022, X ceases counselling on the recommendation of Ms J.
On 14 March 2022, interim Orders were made by consent permitting the father to contact and receive information from X’s school, including via the online school portal, as long as the father did not communicate with X or mother through these platforms.
On 21 March 2022, the father submitted a hair follicle test result which was negative for illicit drugs and positive for low to moderate alcohol consumption.[10]
[10] Exhibit F5, Annexure 4.
On 3 May 2022, Ms D was appointed as the Single Expert (“the Family Consultant”).
On 11 July 2022, the father submitted a hair follicle test result which was negative for illicit substances and positive for excessive alcohol consumption.[11]
[11] Exhibit F5, Annexure 4.
On 13 October 2022, the Single Expert Report was released.
On 17 October 2022, trial directions were made and the matter listed for final hearing.
On 31 October 2022, the father submitted a hair follicle test result which was negative for illicit substances and positive for excessive alcohol consumption.[12]
[12] Exhibit F5, Annexure 4.
On 23 November 2022, the father obtained a toxicologist report in relation to his hair follicle results.[13]
[13] Exhibit F5, Annexure 5.
The father says that on 1 January 2023, he received a hair follicle test which was negative for illicit substances and positive for low to moderate consumption of another substance.
This matter was listed for final hearing before me on 13–15 March 2023 and proceeded part-heard to 24 March 2023, and 9–10 May 2023.
The matter proceeded in person and each of the parties were represented.
THE PARENTS
Following separation, it is the father’s evidence that he has undertaken therapy and parenting courses. His therapist Ms K gave evidence and I am satisfied that the father has engaged in a form of treatment which is of assistance to him and which, if he continues, will be the equivalent of undertaking a Men’s Behaviour Change course. This therapy was endorsed by the Family Consultant who said that she was satisfied that the father was undertaking appropriate therapy as had been recommended in the Single Expert Report.
The father’s evidence is that his employment involves random urine chain of custody drug testing. He also deposes that he undertook approximately 24 voluntary drug tests from March to April 2021 and from August to December 2021. The father says the tests during these periods did not return positive results for any illicit substances. Pursuant to Orders dated 22 December 2021, the father deposes that he completed hair follicle testing in March 2022, July 2022, October 2022 and January–February 2023 and that all tests contained negative results for illicit drugs (noting the results from January–February 2023 were not tendered).[14]
[14] Exhibit F5, Annexure 4.
As already mentioned, the father’s hair follicle test results from March 2022 were positive for low to moderate alcohol consumption, and the test results from July and October 2022 were positive for excessive alcohol consumption.[15] The father deposes that he does not consume alcohol at these levels and that he only drinks socially approximately once a fortnight. The father says he donated an organ in 2012, and refers to a toxicologist report dated 23 November 2022 which says “while it is plausible that the classification of excessive consumption in this care are falsely elevated due to the [organ] donation, it is difficult to say to what extent this effect would be”.[16]
[15] Exhibit F5, Annexure 4.
[16] Exhibit F5, Annexure 5.
Since 18 March 2021, the father has not spent face to face time with X. The father remained throughout his evidence sceptical of whether X’s views are his own or whether they have been influenced by the mother.
Giving evidence in respect of the mother’s allegations of violence, the father agreed to parts of the mother’s accounts while vigorously denying others. The father agrees that during the relationship there were occasions where he was so affected by drugs and alcohol that he has no memory of the events the mother complains about. This necessarily makes his denials unpersuasive.
The father works interstate on a rotating roster which sees him absent from New South Wales for multiple weeks at a time.
The mother was forthright in her account and I found her to be a truthful witness. The mother tried hard to understand the questions she was asked and sought clarification when she was confused. The mother became visibly distressed when giving evidence. I accept that the distress was genuine and appropriate. The Family Consultant found that there was strength to the mother’s account of events. I agree with this assessment.
Both parties urged me to find that where there was conflict, their evidence was to be preferred. As discussed below, in many instances, I have found that where the mother’s evidence conflicts with the father’s, I prefer her version of events.
CHILD INCLUSIVE ASSESSMENT
A Child Inclusive Assessment was prepared by Mr C, a Child and Family Consultant and Accredited Mental Health Social Worker, on 15 December 2021.
During the course of the interviews, the father told Mr C “I don’t believe I was physically violent toward her at any time” and argued that the mother’s conduct in inviting him to her home in March 2021 was “not behaviour of someone who is scared”.[17] This continued to be the father’s position at trial and was forcefully argued on his behalf. For reasons that will become apparent in this judgment, I do not agree.
[17] Child Inclusive Assessment paragraph 18.
The mother was also interviewed by Mr C. The mother told Mr C that she felt that her self-esteem and confidence had suffered as a result of the family violence. The mother said that she felt stupid and annoyed at herself for not leaving the father sooner. The mother told Mr C that she believed the father when he said that X would be removed from her care. Mr C found the mother presented as extremely vulnerable and that it was apparent in her interview that she had experienced trauma.[18]
[18] Child Inclusive Assessment paragraph 76.
X was also interviewed by Mr C. Mr C reports that:[19]
[X] said that his mother also protected him from his father when his father was yelling at him (‘Mum tried to protect me. She’s the best Mum. She told him to stop [yelling at him] but he [the father] doesn’t stop.’ He said that he felt ‘angry, frightened and scared’ when his father yelled at him.
[19] Child Inclusive Assessment paragraph 59.
Mr C also reported that:[20]
During the interview, [X] asked the writer to stop referring to [the father] as ‘Dad’ and asked if [the father] could be referred to as ‘you know who’ instead. When asked why, [X] explained that he feels ‘angry, scared and sad’ when he hears ‘Dad’.
[X] described his father in wholly negative terms (‘bad and always mean’). He said that his father ‘yells a lot’ and added ‘I hate him, I don’t like him at all’.
[X] spoke about being frightened of [the father] and scared for his and [the mother’s] safety when his father was also present. He said that his father behaved in an aggressive way towards him and his mother. For example, [X] said that his father said ‘bad’ things to his mother including the ‘F-word, B-word and M-word’. When asked to explain the meaning of each letter, [X] whispered ‘fuck, bitch and motherfucker’.
[20] Child Inclusive Assessment paragraphs 60–62.
X was recorded as saying that he wanted his father to be in gaol and “expressed concern about [the father] hurting him, [his mother], and his cats. X said that his father ‘hurt my cats’, by picking them up by the neck, which made him feel sad”.[21]
[21] Child Inclusive Assessment paragraphs 64–65.
X expressed to Mr C that he did not want to have any contact with his father and said “I’ve got a lot of bad emotions, angry”.[22] When asked what he would say to his father if he saw him, X said “I want you to be dead”.[23]
[22] Child Inclusive Assessment paragraph 67.
[23] Child Inclusive Assessment paragraph 67.
Mr C found X’s presentation at the interview to be “extremely concerning”.[24] Mr C opined that the statements made by X suggests that:[25]
… he has been exposed to family violence and has been in situations and/or exposed to incidents which have made him feel unsafe and frightened. This has resulted in [X] worrying (and possibly being preoccupied with worry) about his and his mother’s safety.
[X] appears to have cut/split off from feeling anything positive towards [the father]. It is possible that, due to his young age and stage of development, this is the only way he can manage and tolerate the intense negative feelings he has towards his father. It is also very likely that [X] has taken on a protective role towards [the mother] that is beyond his young age and capability, and this has emotionally burdened him.
(Bold emphasis added)
[24] Child Inclusive Assessment paragraph 73.
[25] Child Inclusive Assessment paragraphs 73–74.
Mr C concluded that:[26]
… the most immediate and pressing need for [X] is for him to be protected from harm - physical, emotional, and psychological - whether direct or indirect, and be given some reprieve from the immense pressure of feeling caught in the middle of his parents and worrying about his and his mother’s safety. [X] also needs for his mother to regain control over her emotional and psychological health and wellbeing (through counselling) so that she can continue to give priority to his needs and protection. Expecting [X] to have any contact with [the father] would likely place him ([X]) under considerable pressure, which could have a deleterious impact on his emotional and psychological wellbeing, and this is not in his best interests.
[26] Child Inclusive Assessment paragraph 81.
X’s best interests must be the paramount consideration in this judgment. X faces many challenges and I agree that his presentation to Mr C is of significant concern.
SINGLE EXPERT REPORT
A Single Expert Report was prepared for the final hearing by the Family Consultant dated 28 September 2022.
At the time of the Single Expert Report, X was attending school. X described himself as “caring, lovely hearted, nice, sporty, kind and kind to animals”.[27] He spoke fondly of his mother describing her as “pretty good, amazing”.[28]
[27] Single Expert Report paragraph 116.
[28] Single Expert Report paragraph 117.
In relation to X speaking about the father, the Family Consultant said:[29]
[X] offered that he does not like calling him Dad. He said he calls him you-know-who. [X] said he does not like his father’s real name or the d. a. d (as he spelt) word and said he thinks the best word for him is you-know-who. When asked how he came to arrive at you-know-who being the best word for Dad, [X] said it was him. [X] said he does not want to be reminded of him by the word because he has done really bad things and made him upset. When asked if he remembered any of these things, [X] said he remembered some of them but not all of them because he is not trying to remember because he is trying to live his life.
[29] Single Expert Report paragraph 118.
The Family Consultant found that:[30]
[X] impressed as possibly irrevocably impacted by his experiences of family life pre-separation. He is closely engaged with his mother in their new life, attending a new school and living in a home whose address he is pleased that is unknown to [the father]. He seems to have adopted the psychological strategies of expunging [the father]; the strategies being never referring to [the father] as Dad but rather as you-know-who, not wishing to think or talk about his father, doing his best to forget [the father], rejecting him as part of the family, and wishing him to be incarcerated or dead. [X] has become split in his relationships with his parents, fully aligned with [the mother] who he experiences as caring, fun and protective, and [the father] who he rejects as a bad, troublesome person who he hates.
[30] Single Expert Report paragraph 153.
The Family Consultant opined that:[31]
[X] presently does not have a connection with his father. The crux of the family law dispute is whether or not it is safe for [X] to spend time with [the father] and, if so, how their relationship should proceed, and in what shape and form.
[31] Single Expert Report paragraph 149.
I agree with this assessment. X is a vulnerable child and for reasons discussed below, I find that he is a child who has been exposed to family violence. The issue of “safety” is not one confined to physical safety but rather includes X’s physical and psychological health. I accept the evidence of the Family Consultant that at the core of this matter is the impact any order for reintroduction will have on X and whether he has the capacity to participate in reintroduction to his father.
The Family Consultant considered the benefit of X having a relationship with his father and the detriment to X of continuing to have no relationship with the father. The Family Consultant concluded that “[a]t present, X does not have the emotional reserve or will to see his father”.[32]
[32] Single Expert Report paragraph 171.
THE LAW
Section 65D of the Act compels the Court to make such parenting orders as it considers proper. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. This is confirmed in section 65DAA of the Act.
The child’s best interests are ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC of the Act. Section 60CG imposes a statutory imperative on the Court to ensure that a parenting order does not expose a person to an unacceptable risk of family violence, and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In reaching my decision, I have considered all relevant sections of the Act. I am not required as a matter of law to specifically address each consideration.
Primary considerations
The primary considerations as set out in section 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the Court is to give greater weight to the need to protect the child from harm from being subjected to, or exposed to, abuse, neglect or family violence.[33]
[33] Family Law Act 1975 (Cth) s 60CC(2A).
Meaningful relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them.
The meaning of “a meaningful relationship” has been discussed in many authorities, most significantly the decision of Brown J in Mazorski & Albright.[34] These authorities establish that “a meaningful relationship” is a “qualitative” concept.[35]
[34] (2007) 37 Fam LR 518.
[35] (2007) 37 Fam LR 518 at [26].
The Full Court in McCall & Clark has adopted what is described as “the prospective approach” with respect to considerations pursuant to section 60CC(2)(a) so that the Court:[36]
… should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents …
[36] (2009) FLC 93-405 at [118]–[119].
The Full Court also said at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
I am therefore not to assume that there is a benefit to X in having a meaningful relationship with the father, but rather I am required to ascertain whether there is a positive benefit to him in the circumstances of such a relationship.
At this time, X does not have a relationship with his father. He has not spent time with his father since March 2021. It is clear from the Child Inclusive Assessment in 2021 and the Single Expert Report in 2022 that X holds extremely negative and concerning views in relation to his father.
In assessing whether time with his father should recommence, I have been tasked with assessing whether, taking into account each of the factors I am required to under the Act, this would prioritise X’s best interests.
Family violence
Family violence is defined in section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful.”
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence. This non-exhaustive list of examples includes assault, sexually abusive behaviour, repeated derogatory taunts, intentionally damaging or destroying property, intentionally causing death or injury to an animal, preventing the family member from making or maintaining connections, and unlawfully depriving the family member of their liberty.
A child is exposed to family violence if they see or hear family violence or otherwise experience its effects.[37] This may include seeing or hearing an assault of a family member by another family member, comforting or providing assistance to a family member following an assault, being present when police attend an incident involving the assault of a family member, or overhearing threats of death or personal injury by a family member to another family member.[38]
[37] Family Law Act 1975 (Cth) s 4AB(3).
[38] Family Law Act 1975 (Cth) s 4AB(4).
A party does not require their evidence as to family violence to be corroborated before it can be accepted by the Court.[39] The standard of proof with respect to making such findings is the balance of probabilities.[40] Findings should be made in relation to family violence if “they are available and necessary to determine what is in the best interests of the child”.[41]
[39] Keating & Keating (2019) FLC 93-894.
[40] Evidence Act 1995 (Cth) s 140.
[41] Amador & Amador (2009) 43 Fam LR 268 at [88].
Where it is not possible to positively reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[42]
[42] M v M (1988) 166 CLR 69.
Each aspect that directs towards a finding of unacceptable risk need not be proved on the balance of probabilities. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or only some of which are proved to that standard.
The Full Court in Isles & Nelissen (2022) FLC 94-092 (“Isles”) summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69.
The five judges of the Isles Court also said the following at [12], referring to the decision of N and S and the Separate Representative (1996) FLC 92-655:
Fogarty J stated it is necessary for a trial judge 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 (at 82,713-82,714) and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm (at 82,714).
The Full Court in Isles adopted the decision of Tree J in Bant v Clayton (2015) 53 Fam LR 621:
171.Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations - even accepting they may be imprecisely expressed within parameters - will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
And agreed with and adopted the dissenting judgment of Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. His Honour’s judgment includes the following:
138. The assessment 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. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
FAMILY VIOLENCE DISCUSSION
The mother has made significant allegations of family violence against the father, including allegations of physical, sexual and emotional abuse. The father alleges that the mother was controlling of him and that the Court should consider this to be coercive conduct by the mother.
The father denies he has ever been physically or sexually violent to the mother or X. He did make some admissions in respect of his conduct but largely the concessions were in relation to being angry, yelling, and swearing. In making these admissions, it was concerning that the father sought to excuse the worst of his behaviour by mutualising the conduct, asserting that the mother had also been angry, yelling and swearing.
The parties made submissions in relation to specific incidents of alleged family violence.
The father’s affidavit did not contain details in relation to family violence. Much of the father’s evidence in relation to these events arose from his oral evidence.
Below I will consider specific incidents of family violence as alleged by the mother.
Sexual violence
The mother alleged that the father forced her to have sexual intercourse with her in her car. The mother’s evidence is that this occurred between early 2014 and mid-2014 and she felt powerless and unable to stand up to the father. The father’s counsel submitted in closing submissions that the mother failed to raise this incident in her affidavit. He was in error about this and his argument that the mother’s failure to give evidence on this issue would undermine her credibility is also without basis.
The mother alleges that in 2014 while in hospital, the father forced her to perform a “hand job” on the father. The father agrees that the act occurred but maintains it was consensual.
The mother was cross examined in relation to this incident. She was not shaken on her evidence. The father was also cross examined in relation to this incident and he also maintained his position.
The mother alleged that the father attempted to force her to perform oral sex on him in early 2020 while the parties were on holidays. In her evidence, the mother said that the father asked her to have sex, she said no, and in response the father unzipped his pants and yelled “suck it, you slut, or fuck off”. The mother’s evidence is that the father did this in front of X who was upset and crying, and that she removed X to the bathroom. The mother was consistent in her evidence in relation to this event.
The father argued that the mother’s evidence as to sexual violence should be viewed with scepticism because the mother failed to include details of these allegations, especially the “hand job” incident, in her initial affidavit. The mother’s evidence was that she was conscious of space in her interim affidavit.
I accept that there are many reasons why people do not include each and every instance of abuse in their material, particularly in terms of truncated interim hearings. The mother did raise her concerns about being forced to have sex with the father in the report of Mr C.[43] The father denied the allegations in that report.[44]
[43] Child Inclusive Assessment paragraph 12.
[44] Child Inclusive Assessment paragraph 18.
I accept the mother’s evidence regarding both the incident in early 2014 and the incident in City L in early 2020. I find that on these two occasions the father’s evidence was not credible.
Late 2014: hitting X and the mother in bed
The mother’s evidence is that in late 2014, the father went out for drinks with friends and arrived home smelling strongly of marijuana. The father had a shower and got into bed. The mother’s evidence is that she asked the father to move to the lounge room so that she could feed X. The father did not move and flicked his elbow towards X, hitting X. The mother’s evidence is that she screamed at the father to get out of the bed. The mother says she used her arm to shield X and the father punched her hard on that arm.
The father’s oral evidence in relation to this event is that he could not recall the events late 2014. He further went on to say that he could recall that he had consumed alcohol but could not confirm the use of cannabis, though he conceded it was possible. The father’s oral evidence in relation to this incident is that he has vague memories about the incident.
In cross examination of the Family Consultant and in submissions, the father’s counsel put that the mother had acted in an abusive way in yelling at the father. I do not accept this. The father has only vague memories of the incident. He conceded that he was affected by alcohol, and by his own evidence and the tenor of the cross examination, conceded he was very possibly affected by marijuana.
I accept the mother’s evidence in relation to this evening and I find that in late 2014, the father returned home affected by alcohol and marijuana and while so affected, hit out at X when the mother was trying to feed X.
I do not accept that the mother’s behaviour in yelling at the father to wake up and get out of the bed to stop him from hitting X (even inadvertently) was violent or controlling. There is no basis for this finding even on the father’s version of events.
Early 2015: tea towel
In early 2015, the mother’s evidence is that the father was angry with her and “whipped” her with a tea towel. The mother’s evidence is that X witnessed the incident and that she felt pain in her arms and chest. The mother’s evidence is that she took photos[45] of the father and that this caused the father to cease hitting her, but he continued to swing the tea towel in her face.
[45] Exhibit M7.
The mother was cross examined on this incident and remained consistent in her evidence.
The father disagrees that there was a “whipping” of the mother.[46] He says that he was swinging his arm with the towel. His evidence was that he was not aware if the towel came into contact with the mother, although he conceded the towel came close to hitting the mother. The father did not concede that this incident occurred during an argument but gave no explanation for when or how it occurred.
[46] Transcript 13 March 2023, p.56.
It was submitted on behalf of the father that the mother acted inappropriately by not removing X from the argument. I do not accept that submission.
I accept the evidence of the mother that the father held a tea towel and whipped it at her as truthful. I find that X was present during this incident. I find that the father’s conduct was violent and that the mother’s actions in taking photos were in an attempt to have the father cease his behaviour. I find that both the mother and X were victims of family violence during this event.
2015: dog vomit
The mother gives evidence that the father forced a dirty cloth, which had been used to clean up dog vomit, into the mother’s mouth. The mother’s evidence is that X was present when this occurred.
While being cross examined on this evidence, I found that the mother was truthful and that her evidence is to be accepted. Her evidence was consistent throughout.
I accept that this incident was humiliating and distressing to the mother. I also accept that X witnessed this incident and found it distressing.
Late 2015: Queensland trip
The mother’s evidence is that in late 2015, the parties travelled to Queensland by car. The purpose of the trip was to introduce X to the father’s grandparents. The mother’s evidence is that during the trip the father was smoking marijuana and she was worried about him smoking and driving. As a result her evidence is that she drove almost the whole distance. The mother’s evidence is that the parties stopped at a hotel on their way to Region M. The mother’s evidence is that she took the father’s marijuana and tried to dispose of it in the toilet. She says this led to an argument between herself and the father. The mother’s evidence is that the father chased her around the hotel room and that when he caught her, he grabbed her head and pushed it into the wall causing her a lot of pain. It is the mother’s evidence that this incident occurred in front of X who cried.
In his oral evidence, the father conceded he had taken marijuana when travelling to Queensland and that the parties had stopped on their way to Region M. The father recalled the mother taking the marijuana and that he “wasn’t thrilled,” and was “angry” and “irritated” at the mother.[47] The father conceded that the mother may have been scared at the argument which was taking place between the parties. The father also conceded that X was present during the incident.
[47] Transcript 14 March 2023, p.79.
The father did not concede that he pushed the mother’s head into the wall or that he caused her physical pain.
I find that the father in giving his oral evidence firstly failed to concede that the incident was violent and secondly sought to mutualise the violence and apportion blame to the mother. While the father tells the Court that he has developed insight into the impact of his behaviour on the mother and X, the oral evidence the father gave at the hearing did not support this assertion:[48]
[48] Transcript 14 March 2023 pp.80–82.
HER HONOUR: Well, it was more than that. You said, ‘It was quite a scene”?---It was quite a scene, yes, so yes.
So, what do you mean by that?---I mean yelling, screaming. I mean she definitely took it and ran in the hotel room. I never grabbed her or threw her into a wall, but yes, it wasn’t - it wasn’t - it wasn’t pleasant. I didn’t think there was any need for - for the - the marijuana to be taken and as - that to happen in the first place. Granted, shouldn’t be smoking marijuana, all the rest of it, but I don’t feel like that was necessarily required at the time, but nor was my reaction. So, I think between the two of us, it was, as I say, it was a scene, yes.
MR SQUIRES: Okay. When you say your reaction, what do you mean by that, that you say, nor was your reaction?---Well, I just wasn’t happy that it was taken.
All right?---Yes. So, yes.
HER HONOUR: So, you had been smoking an illegal substance on your trip up from Sydney to [Region M]; is that right?---At times, yes, of an - once we finished driving, not when I was driving.
Had you - - -
MR COHEN: Your Honour, just to clarify that, it’s not actually an illegal substance. It’s an illegal substance without a script, but I mean, that’s - I don’t know whether it takes things much further.
HER HONOUR: Did you have a script?---No, not at the time.
Thank you. And on the evening, or when you were in the hotel, had you smoked marijuana that - - -?---Before this?
Yes?---No.
Had you smoked marijuana that day?---No.
When you - when the mother took the marijuana from you, you said that you were yelling and screaming. Was [X] in the room when that happened?---Yes, [X] would have been around, yes.
Was [X] in the room when the mother ran away, using your words, with the marijuana?---Yes, he would have been. He’s only one so he was with us at pretty well the whole time, you know.
Where did the mother run to?---Just around the bed.
All right. And did you follow her?---Yes.
Did [X] see that?---I’m not sure. I mean, he was only one, he - he was - he may well have been in the - - -
That was in his presence though?---Yes, correct.
And did you continue to yell and scream while you were following the mother around the bed?---Wasn’t yelling and screaming the whole time, no. I mean, there was two people yelling at each other, but no.
Did you yell and scream as you followed the mother around the bed?---Quite possibly, yes, yes.
Did the mother yell and scream as she was leaving you around the bed?---Yes. There was screaming both ways, yes. Yelling rather than screaming, yelling.
When you say then that it was quite a scene, you say that you took the marijuana, ‘I just took it back,’ is what you said, did you take it from the mother’s hand?---I can’t recall. It’s possible, yes.
Because you did say you took it from her hand, and then you said you were not sure?---Yes.
So, I want you to think about that. Did you take it from her hand?---I can’t be exactly sure, but yes, it’s certainly possible, yes. I mean, it’s - it was quite a while - - -
Well, was the mother willing to give it to you at that point?---I’m not sure.
Well, think about it?---Like I say, it - it sort of - it got to the point where the argument was going nowhere and I think it was a combination of giving it back or - - -
No, that’s not my question. My question was, when you took it from her hand, was the mother willing to give it to you?---Probably not, no. Yes.
So, it’s likely, isn’t it, that the mother - from the mother’s perspective at the very least, you snatched something from her hand?---Yes.
And that thing that you’ve snatched was your marijuana?---Yes.
Did you then leave the room immediately?---I believe so, yes.
Did you slam the door or anything like that?---No.
Okay. What - did you smoke marijuana when you left the room?---No, I don’t believe so, no.
All right. Are you sure about that?---Yes.
Even on the father’s evidence, it is clear that X was exposed to family violence, that the father was angry, that the mother had removed his marijuana, that both were yelling, that he pursued the mother around the room to regain his marijuana and snatched the marijuana from the mother’s hand.
The father’s oral evidence is an example of the father mutualising responsibility and seeking to deflect his behaviour by apportioning blame upon the mother. It is also an example of the father’s lack of insight into the impact of his behaviour upon X.
I prefer the mother’s evidence in relation to this incident and find that the father instigated the argument and that he pursued the mother through the hotel room to regain his marijuana. I find that while doing so, he was angry and abusive. I accept her evidence that the father pushed her head into the wall during the argument. I find that the mother was subjected to family violence, that X was exposed to said family violence, and that the father was the perpetrator of this family violence.
In late 2016: verbal abuse, physical abuse and property damage by the father while intoxicated
In late 2016, the mother’s evidence is that she saw the father passed out on the side of the road in front of the parties’ home. The mother was assisted by a third party to bring the father into the home. Once in the home, the mother says that the father urinated in the kitchen sink and when finished, grabbed the mother and forced her phone out of her hand. The mother’s evidence is that X was present at the time and started crying, and that the father said to him “[g]et the fuck out of my house!” The mother’s evidence is that she said she would leave with X and asked for her phone back. The mother says X tried to get the phone out of the father’s hand and was pushed to the side by the father. The mother says that she tried to leave with X and the father spat at her and yelled “[g]et the fuck out of my house!” again.
The mother’s evidence is that a neighbour came to the house and said to the father “look who you’re hurting, [Mr Halliday],” and gestured towards X. The mother says that in response the father walked towards the neighbour clapping in her face and yelled “[f]uck off”.
The mother’s evidence is that she panicked and closed the door, and took X and went into a bedroom. The mother’s evidence is that the father threw the phone at the wall and it bounced into a mirror. The mother says that X was crying and shaking, and that he picked up her phone. The mother’s evidence is that she and X then ran to the door and left.
The mother’s evidence is that the father followed them and approached them at a roundabout while they were stopped in traffic and tried to open the car door. The door was locked and the mother’s evidence is that the father banged on the window and yelled “[y]ou’re a cunt” and “[y]ou’re a fucking slut.” The mother says she drove past the home and saw that Police were in attendance and stopped to speak with them.
On entering the house, the mother saw that the father had damaged the Christmas tree, had thrown her and X’s belongings in a pile, had pulled out drawers and had ripped a mirrored wardrobe door off its tracks. The mother says that X burst into tears when he entered the home and saw the damage and said “my tree!” when he saw the Christmas tree. The mother says it took a long time for X to calm down, and that she declined an ADVO because she was concerned about the impact of such an order on the father’s behaviour towards her and X.
The father argued that the mother has given inconsistent evidence on her allegations of family violence, largely centring on whether the father turned to X and said “get the fuck out of my house” or whether the father turned to the mother and X. While the father’s counsel placed great significance on this difference, I find it to be minor and that nothing significant turns on this as both the mother and X were present.
In his oral evidence, the father agreed that the Police statement he read in Court was correct.[49] This statement included that:
(a)The father appeared to be intoxicated or affected by party drugs and passed out on the road;
(b)The mother raised concerns about the father’s drug and alcohol usage and that this had started an argument;
(c)The father complained that the mother was not working and not contributing to house payments and demanded she leave;
(d)The father entered the house and began emptying drawers of the mother’s belongings;
(e)A neighbour overheard the argument and called the Police, before calling again a short time later because she thought property was being destroyed; and
(f)The mother declined Police assistance.
[49] Exhibit M12.
In cross examination, the father admitted that:
(a)His asking the mother to leave had occurred more than once;
(b)A neighbour attended the property;
(c)He emptied drawers of the mother’s belongings;
(d)His behaviour was aggressive;
(e)He has patchy memory of the event;
(f)He was in “an awfully poor state”;[50]
(g)It was possible that he urinated in the kitchen sink;
(h)It was possible that he grabbed the mother’s phone and it was possible that X had seen him do so;
(i)It was more than likely that the words to the effect described by the mother were used by him;
(j)It was likely that he told the neighbour to “fuck off”;
(k)The mother’s evidence that he continued to yell at her after the door was closed on the neighbour “makes logical sense”;[51]
(l)X and the mother left the property and he was “pulling things out of drawers” and “throwing piles of clothes … in a heap”[52] in the lounge room and that he caused the Christmas tree to be damaged;
(m)It was possible that he also pulled out X’s clothes and belongings;
(n)He agreed that when X came back into the house, he would have seen a mess of clothes and belongings in the lounge room; and
(o)He has no recollection of going to the roundabout but that it was possible he did so and banged on the window and yelled at the mother as she says.
[50] Transcript 14 March 2023, p.86.
[51] Transcript 14 March 2023, p.91.
[52] Transcript 14 March 2023, p.92.
The father was able to acknowledge that his level of intoxication at the time has contributed to his recollection of the event being poor.
I accept the evidence given by the mother. Her evidence is largely consistent with the Police reports and consistent with photos that were tendered, which indicate the amount of damage that occurred to the house.[53]
[53] Exhibit M35.
I do not accept the submission put by the father’s counsel that the mother’s version is to be rejected because the mother did not leave the unit sooner, nor do I accept his submission that the mother bore any onus to remove X from the proximity of the father during this incident or that she is in any way responsible for the impact of this incident on X. Those submissions are misplaced and are not supported by the evidence, nor by the concessions made by the father.
I find that in December 2016, the mother and X were victims of family violence perpetrated by the father. I find that X was a victim of violence in that he witnessed the event and the aftermath of the event, which included seeing damage to the Christmas tree and disruption to the mother’s, and potentially his, belongings.
I further find that the father threatened the mother in threatening to remove her from the home. I am satisfied that the mother believed that this was a threat that the father was capable of putting into action and that this would have undermined her sense of security, and caused her to fear being homeless and the consequences of this for X. I find that such a threat was coercive and was designed to ensure the mother complied with the father’s demands.
December 2016: throwing a box at the mother’s head
The mother’s evidence is that the father threw a box at her face in December 2016. The mother’s evidence is that it hit her hard on the nose and that she felt immediate pain and started to cry. The mother’s evidence is that X saw this and also started to cry.
The mother was not challenged on this event and I accept her evidence.
January 2020: recommencing living together
In January 2020, the parties re-commenced living together. The mother’s evidence is that she felt pressured to do so despite her concerns about the father’s violence and drug and alcohol use, because she believed the father when he said that he would go to court and get full custody of X and if not full custody, half custody. The mother also says that on multiple occasions across the relationship, the father told her “I am going to kick you both out and you will be homeless” and that these comments, as well as the comments the father made about obtaining full custody of X, often prevented her from leaving the father.
The father conceded in oral evidence that he threatened court proceedings. The father also conceded that he made comments to the mother about kicking her and X out of the home during an argument in around 2014 or 2015.
I find that the father used his superior earning capacity to threaten the mother with homelessness. The mother believed the father’s threats that this would mean that she would lose “custody” of X. I accept that the mother was fearful of the consequences of not living with the father. I find that the father deliberately caused the mother to fear the consequences for her and X of leaving the relationship.
Mid-2020: boat trip
The mother’s evidence is that she, the father, and X went on a boat trip on or around mid-2020. The mother’s evidence is that the father said he was going to stab her and that he held a knife and moved it in a stabbing motion. The mother says this happened in front of X. The mother deposes that the father said “I will kill you and throw you overboard” and “[n]obody will find you out here”.
The father’s evidence is that on this occasion, the propeller had a rope wrapped around it and that the parties were in a precarious position and that he was trying to fix the situation. The father acknowledged that he may have been frustrated with the mother but that he was requiring her assistance and she did not understand what was required.
X spoke of this event to Mr C. In the Child Inclusive Assessment, Mr C reports:[54]
[X] said that, on one occasion when he and his parents were on his father’s boat, he heard his father threaten to throw his mother overboard. He said that, on this occasion, he was prepared to ‘cut’ his father with his ([the father’s]) knife to ‘protect her [the mother]’.
[54] Child Inclusive Assessment paragraph 62.
The mother was cross examined on this event and her evidence remained consistent. Indeed I formed the view that the cross examination of the mother on this issue supported both the mother’s version of events and the mother’s statement that the event caused her significant fear. It was clear when she gave evidence that this event continues to be a significant source of fear and apprehension for her.
I accept the mother’s evidence on this matter and I find that the event occurred as outlined by the mother. I find the father threatened to physically harm the mother with a threat of lethality and I find that this occurred in X’s presence. I find that this event caused significant fear to the mother and X. X has spoken about this event and his statements to Mr C confirm that X sees his father as capable of harming his mother and feels responsibility to protect her.
December 2020
Allegations of strangulation
The mother’s evidence is that in late 2020, there was an argument between the parties, which resulted in the father pulling a handbag strap around her neck. The mother told DCJ that she could not comprehend that the father meant to “choke” and that the incident left “a red/rash like mark on her neck”.[55] The mother’s evidence was that her breathing was restricted and that X, who was present, scratched at his father to try to get him off the mother. The DCJ records state that the mother said X told her that the father pushed him to the ground. The mother’s evidence is that she managed to get free and ran from the home with X.
[55] Exhibit M4.
The father’s oral evidence is that the mother had taken his mobile phone and put it in her bag and he was trying to retrieve it when the mother stood up. His evidence was that at this point the handbag was pulled on her shoulder and neck and that there was no intention of strangulation. The father conceded in oral evidence that X was present in the room when this happened but denied that X scratched the father or that he pushed X to the floor.
The father conceded in oral evidence that he had, on occasion, approached the mother with his hands clawed and shaking. His evidence is that he did so in frustration. The mother says he mimed strangulation to threaten and frighten her. The father conceded that it was possible that this occurred when the parties were living in Suburb N and Suburb O.
Late 2020
The mother’s evidence is in late 2020, the father became angry and took her keys. The mother’s evidence is that X saw this and started to cry. The mother’s evidence is that when she got the keys back, the father chased her and pushed her over. The mother’s evidence is that she took X into the bedroom and that they sat against the door to keep the father out.
The mother’s evidence is that the father said to her and X “[y]ou better not stay in there too long; I’m leaving the doors open and your kitten will get outside.” The mother says this led to X crying hysterically.
The mother’s evidence is later that evening, the father told her on the phone “I am going to jump off the Bridge” and then hung up on her. The mother says that she followed the father and found him at McDonald’s and he told her to “piss off.”
The father could not recall that specific event and denied the incident occurred but did concede that there were many arguments in late 2020. The father agreed that it was common that during arguments the mother would take X to another room. The father used the word “barricaded” and explained that this meant that they would sit behind the door.[56]
[56] Transcript 14 March 2023, pp.119–120.
The father denied that he told the mother that he was considering self-harm. However, there was no evidence from the father in relation to this event nor any explanation as to why the mother met him at McDonald’s in the early hours of the morning.
The father recalled that there he made a comment of a “similar nature” in relation to X’s kitten.[57] He said that it was possible that he said this to encourage the mother and X to leave the bathroom. The father’s evidence at trial was initially that he was not sure if X was distressed by the incident before then saying he would “assume so”.[58]
[57] Transcript 14 March 2023, p.119.
[58] Transcript 14 March 2023, p.120.
As already mentioned, X reported to Mr C that he was concerned about the father hurting “him, [the mother] and his cats”.[59] Mr C reports that “X said that his father ‘hurt my cats’, by picking them up by the neck, which made him feel sad”.[60]
[59] Child Inclusive Assessment paragraph 65.
[60] Child Inclusive Assessment paragraph 65.
The father would be aware from reading the Single Expert Report that X continues to hold cats in deep affection. In the Single Expert Report, X reported that one of his three wishes was to have a million cats.
To only go so far as to say that he “assumes” that X would have been upset by what he said is symptomatic of the father minimising the impact of what was said on X and the ongoing fear that X has in relation to this incident. It demonstrates a lack of insight and an unwillingness to accept responsibility, at the date of the hearing, of the impact on X of the father’s behaviour.
Christmas 2020
The mother’s evidence is that in 2020, the parties celebrated Christmas Day separately. The mother reports that on returning home with X, the father was yelling and ripped the door handles off in front of her and X. The mother says that she and X left the home, and that she drove around looking at Christmas lights to try to calm X. The mother’s evidence is that she messaged the father and said “[c]an we go to sleep now! Is that okay. He’s very tired … Can he go to sleep … All good?”
The father’s oral evidence is that the lead up to Christmas had been particularly stressful and there had been arguments between the parties. The father’s evidence is that he was not expecting the mother to return home, and that when the mother advised him that she was on the way home, he felt deflated. The father agrees that when the mother returned home and woke him up, he was angry. The father denied that he ripped door handles off and said that the door handles were in a state of disrepair and were falling off on their own accord, and that if the door handle fell off, it would have been because the mother slammed the door.
The father agrees that he left a message with the maternal grandmother which said something along the lines of “you’re not welcome back here, don’t come and stay at my place”.[61] The father agreed that he left that message knowing that the maternal grandmother would convey it to the mother. The father agreed that the mother had texted him asking to come home.[62]
[61] Transcript 14 March 2023, p.122.
[62] Exhibit M13.
X reported on this incident in the Child Inclusive Assessment as follows:[63]
… on one occasion, ‘he [the father] wrecked the Christmas tree and broke the door handles’. He explained that [the father] ‘kicked us [him and the mother] out of home’ so they drove around looking at the Christmas lights and that, when they returned home later that evening, [the father] was asleep.
[63] Child Inclusive Assessment paragraph 69.
I accept the mother’s evidence in relation to this event. I accept that the father was violent on this day and that X was exposed to the father’s behaviour. X was aware that he had to leave the home with his mother because the father was damaging the Christmas tree and door handles. On returning to the home X was exposed to the impact of the father’s violence in that he saw the damaged Christmas tree and doors.
Boxing Day 2020
The mother’s evidence is that the argument continued on 26 December 2020. The father concedes that on that day there were probably names thrown around. He agrees that it is possible that he said to the mother the following:
(a)“You’re going to be as fat as a house”;
(b)“You’re going to pay, I swear to God. You think you’re great, you’re not”;
(c)“You’re an absolute dumb fuck”; and
(d)“You’re going to be on Centrelink”.[64]
[64] Transcript 14 March 2023, p.125.
The father conceded in oral evidence that it was possible that X was present and he agreed that it would have distressed X to hear those things being said about his mother.
The father’s evidence is that the argument was a two-way argument, though there is no evidence of that from the father. I do not accept the father’s evidence that there was a mutualised argument on the day as there is simply no evidence for me to reach that conclusion.
The father conceded to the Family Consultant that he may have called X a “stupid idiot”.[65] The father in his interview with the Family Consultant:[66]
… did not seem to recognise that his approach to parenting, particularly his notion that referring to [X] as a stupid idiot, may be harmful to [X], until questioned by the writer … It is possible that [Mr Halliday] using the phrase stupid idiot is representative of a broader parenting style, along the lines of an unresponsive, authoritarian parenting style. Such an approach to parenting is commonly employed by perpetrators of family violence.
[65] Single Expert Report paragraph 53.
[66] Single Expert Report paragraph 162.
As noted above, X has spoken about the arguments that were occurring between his parents, and in his’s view, attributes name-calling and the use of bad words only to his father.
It is clear, even on the concessions made by the father, that X was present through the arguments that the parents had, that he recalls being taken away by his mother and removed from the house when his father was angry, and that he recalls his father being angry and mean to his mother. These incidents have, for reasons which will be discussed shortly, had an overwhelming impact on X and have elicited in X a trauma response in relation to the father.
Having observed the mother give evidence, I accept that she and X have been exposed to family violence and that there has been a traumatic impact caused by the father’s behaviour on both.
ORAL EVIDENCE OF THE FAMILY CONSULTANT
The Family Consultant gave oral evidence on the second last day of the hearing. With the consent of all the parties, she heard the evidence given by Ms K.
In assessing all of the material, the Family Consultant acknowledged the steps the father had taken to address the issues that were apparent during the relationship. The Family Consultant said that the father’s work with Ms K was useful and appropriate, and agreed that it was at the early stages of allowing the father to acknowledge the impact of his behaviour and take full responsibility for it.
The Family Consultant said that she was concerned that the assistance X had received from Ms J had been in the presence of the mother.
The Family Consultant stressed that she had seriously considered how X and the father could be reunited and how orders could facilitate this. Having considered the evidence, her opinion at the final hearing was for X to spend no time with the father.
In response to a question about her assessment of X’s response in her interview when speaking of the father, she said:[89]
Firstly, I would like to say that interview almost took my breath away in terms of the strength and the negativity of [X]’s comments about his father. They are very troubling. They would reflect probably a range of things. I don’t think it’s simply one directional here. I don’t think it’s simply a matter of [X] observed or witnessed something [sic] and therefore has arrived at this point. I don’t actually think that’s the case. I think [X] has been exposed to dynamics which are probably incorporating a range of negative interactions between his parents, overlaid with then what I’ve described in my report as - as quite potent and a pattern of family violence. So I think we’ve got both of those things - cycles going. And then we’ve got mum’s reaction and responses, which typically are going to be emotional. There’s not going to be a rational, generally, response. They will be from a place of - you know, if mum’s account is correct and what I have assessed is most likely correct then her responses are going to be of a place of trauma. And then you have that cycle impacting on [X] and his view of dad. And you would then, beyond that, have feedback loops going on between the two of them around probably anxiety to the point of phobia. And we know that anxiety transmits. It’s one of the few mental health conditions that actually literally transmits. And particularly between parents who have experienced family violence and their children. So trying to break those cycles is probably number one, I would think, for [X] at the moment. And that’s why I suggested the no-time.
[89] Transcript 9 May 2023, p.451.
And later:[90]
… [X]’s interview speaks of trauma. So it’s not [X] saying I would like to not see dad. It’s so his message is coming from, I think, a place of trauma. And the words are almost secondary. It’s the tone, it’s the negativity, it’s the strength of his position that I think are - are his sort of global views as opposed to his distinct wishes. And, I agree, I don’t think a child of his age’s distinct wishes should drive but we certainly have to take into account the place that a child has arrived emotionally at age nine. And if that’s a place which they’re yelling out loud that they don’t wish to be, then we’ve got to take that into account.
[90] Transcript 9 May 2023, p.453.
For reasons identified in this judgment, I have found that X has been exposed to family violence. He has been exposed to threats being made by the father towards the mother and has intervened to protect his mother from the father. He has witnessed the father make threats to physically harm the mother and to kill her. I accept that X’s response to his father is based on trauma that he experienced during the course of the parents’ relationship.
I am struck by the change in presentation of X when speaking of his father. In the Child Inclusive Assessment, the Single Expert Report and in presenting to Ms J, X was said to withdraw into himself and to express himself in a way which was consistent with being fearful and unsafe.
I find that the events that X recalled, including the father breaking a window, threatening the mother on a boat, being mean, yelling bad words, as well as X wanting to protect his mother on the boat, and scratching his father to get him away from his mother in the incident with the handbag, are consistent with events where I have made positive findings that the father committed acts of family violence.
X has also expressed his fears that his father would harm his cats. It is notable that the father recalled making comments about the cat that would distress X, as already discussed.
I find that X has been exposed to incidents of family violence which continue to make him feel unsafe and frightened.
I asked the Family Consultant what the impact would be on X if orders were made as sought by the father. Her response was:[91]
It’s just reinforcing, it’s just another - another layer for [X] to deal with, another emotional challenge, more reminders of, you know, the - the past, incidents of the past, even, let’s be frank, conversations that, you know, Mum might have had that he has overheard. So more reminders. So taking him backwards rather than forwards.
[91] Transcript 9 May 2023, p.493.
Any reintroduction of the father to X requires me to consider the impact that this would have on X. In order to spend time with the father, X would require therapeutic assistance. I accept that on the evidence, X’s thoughts, words and feelings have been informed by traumatic events that he observed, heard or saw the aftermath of. I accept the opinion of the Family Consultant that X’s capacity to attend and participate in such therapy is contraindicated in this matter.[92] I also accept the Family Consultant’s opinion that any reintroduction between X and the father would need to have the mother’s support to be successful. I accept the opinion of the Family Consultant that at this time:[93]
[X] does not have the emotional reserve or will to see his father and that [the mother] does not have the confidence in [the father] or belief that she could, or it would be of benefit to [X] for her to support [X] to see [the father]. It is suggested that [X] and [the mother] should now be free to build their life absent of any need to consider contact with [the father].
[92] Single Expert Report paragraph 166.
[93] Single Expert Report paragraph 171.
The Family Consultant was asked about her observation and opinion that X does not have the emotional reserve or will to see his father, to which she responded:[94]
… the psychological risk to [X] of not seeing his father is something haven’t we [sic] been talking about. And that is very relevant. I would like to have been able to write a report to be able to enable [X] to be able to [sic] spend time with his father. But - and I think [Mr Halliday] has, you know, very many attributes which would enable him to be a good father to [X]. But the point that everyone has arrived at here is that [X] now is estranged from his father. He can’t even contemplate his father. His therapist thinks that [X]’s going to benefit very much from pretty well getting on with life and being a child of his age, rather than any more years being consumed by the question of whether to re-engage with dad. I think that’s how I would put it. And I think that’s why [sic] my assessment tells me too. Even though I don’t like that idea very much at all for [X], I would much prefer [X] had an opportunity to resolve this - you know, we could say hatred for his father. I would like that but I don’t think it’s realistic. And I think weighing up the risks to him, he needs to have some years before adolescence of getting on with childhood, being relieved of being at the centre of what are some really serious troubling dynamics in the family. Being protected from that. And that might give [X] the best chance of a reconnection later on. And, you know, maybe not too later on but some connection later on.
[94] Transcript 9 May 2023, p.453.
The Family Consultant was clear that there is a risk to X of loss if there is no reconciliation with his father. In particular, there is a risk if X cannot reconcile his extremely negative view of his father. The Family Consultant opined that this loss would be more difficult for X because he knows his father is alive. It is for this reason that the Family Consultant opined that no time now would leave some hope that in the future X would seek out his father and reconnect to him.
The Family Consultant said in oral evidence:[95]
… we need to get back to [X]. [X] is the child - is a - is - is the person in this situation who has this great psychological risk of not having a father in his life. That is - that is a risk. That is - that is a very important aspect of this report, that this loss, this potential abandonment, this - ‘My father is actually still alive. He hasn’t died. We haven’t had a funeral. We haven’t had all the gestures around that kind of loss’. This is very complicated for [X]. [X]’s trauma right now - response is probably as much, or at least in part, due to that fact as well as his experiences with his parents. So to preserve the potential from [sic] him reconnecting with his father, I would say, is… very high on my priorities of writing this report.
[95] Transcript 9 May 2023, p.483.
The Family Consultant opined that for now, her recommendation is that X spend no time with the father and that he be given the opportunity to stabilise in his mother’s sole care. It is the Family Consultant’s view that a reprieve from litigation would provide stability and opportunity for X to focus on child related activities. It is her hope that from this point, X may in the future be able to reach out to the father.
Her recommendation, which I accept, is that cards and presents be forwarded to X so that a connection between X and the father, accepting that this will be tenuous at best, is maintained.
ADDITIONAL CONSIDERATIONS
Any views expressed by the child
I find that X has expressed wholly negative views in relation to his father and wholly positive views in relation to his mother.
As already discussed, I accept the opinion of the Family Consultant that X’s views are grounded in his exposure to family conflict and trauma.
I place significant weight on X’s views and do so because I accept that X’s views are a result of repeated exposure to potentially traumatic events during the course of the parties’ relationship.
The nature of the child’s relationship with the parents and other persons
It was conceded by the father that X does not have a relationship with him, nor any other member of the paternal family.
X has a strong and loving relationship with his mother and members of the maternal family.
The extent to which the parents have taken the opportunity to participate in making decisions about major long-term issues or spend time or communicate with the child
There has been minimal communication between the parties since March 2021. The mother forwards to the father by email photos and progress notes in relation to X.[96] There has been no face to face contact and I note that the parties were at no stage in the same room during the course of the hearing.
[96] Exhibit F8.
Prior to separation, the parties could not reach agreement in relation to whether X would be circumcised. The mother’s evidence is that she finds communicating with the father stressful and she is not willing to do more than send emails to him.
The mother has made decisions in relation to X’s school, medical, counselling, and living arrangements. I accept that X is well settled at his school and home, and importantly that X has a positive view of himself. I find that the mother has made appropriate decisions in relation to X’s wellbeing.
The father has not participated in decisions since early 2021. I am not critical of the father for this as orders have precluded his engagement in decision making.
The capacity of each parent to provide for X’s needs, including emotional and intellectual needs
I find that the mother has demonstrated a capacity to provide for X’s needs. The mother has engaged in therapeutic assistance for X and has met X’s educational needs.
X has a strong, positive sense of himself and I find that this is a consequence of the mother meeting his emotional and intellectual needs, and providing him with a stable and loving home.
The father has not participated in providing for X’s needs since early 2021. As I have previously noted, I am not critical of the father for this as orders have precluded his engagement in decision making.
However, I do find that the father was harmful to X’s emotional needs prior to proceedings being initiated and that X was exposed to trauma as a consequence of the father’s conduct.
The parents’ attitudes to the child and responsibilities of parenthood
The father’s conduct, which I have already found at times to be physically violent, verbally abusive, and affected by excessive alcohol usage and drug use, exposed X to trauma. I accept that the father has since engaged with Ms K and has commenced making progress on understanding and accepting the consequences of his actions. I accept that such work is at an embryonic stage and that the father does not yet take full responsibility for his conduct.
I find that the mother has acted protectively of X. She has shielded him from the father’s violent behaviour as much as possible. I reject the suggestion by the father’s counsel that the mother should be held in any way accountable for not removing X from the father’s presence when the father was being abusive or from acting to placate the father by acceding to his demands during incidents which I have found to be violent.
Subsequent to separation, I am satisfied that the mother has acted in a responsible way prioritising X’s needs. I am satisfied that she will continue to do so in the future.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, their obligations to maintain the child
I accept that the father pays child support as he is required to and that he does so in a timely manner.
I am satisfied that the mother meets the expenses of X from her income.
The likely effect of any change in the child’s circumstances
The father concedes that the mother has been X’s primary carer since birth and that he has spent no time or had any communication with X since March 2021. The orders sought by the father would result in X spending time with him firstly on a supervised basis and then on a graduating unsupervised basis. The mother and the ICL oppose these orders.
X has very clearly said that he does not want to spend time with his father. I accept that he is young and that taken on their own, his views are not determinative. However, I find that X’s views are informed by trauma and that he has been exposed to family violence with the father being the perpetrator.
I accept the evidence of the Family Consultant that X does not have the emotional reserve or capacity at this time to commence the process to be reintroduced to his father. I accept that orders requiring X to do so would result in X being at an unacceptable risk of emotional and psychological harm.
To order X to spend time with the father could not occur without further therapeutic intervention. I accept the evidence of the Family Consultant that X would find such sessions difficult. I accept the report of Mr C, which was not subject to cross examination, that X had cut-off/split from any positive statements about the father, and that due to his young age and development, this was the only way he could manage his feelings about his father.[97] I find that X’s presentation for the Single Expert Report remained consistent and that X remains at an unacceptable risk of psychological harm if he is ordered to spend time with the father or to undertake therapy with the father.
[97] Child Inclusive Assessment paragraph 74.
The orders sought by the father require X to engage in therapy and that time between the father and X commence initially supervised and progress relatively quickly to unsupervised.
The father’s attendance upon Ms K and engagement in a form of treatment similar to undertaking a Men’s Behaviour Change course was accepted by the Family Consultant as being positive. Noting the time when the father commenced this stage of the therapy and the father’s denial of responsibility for perpetrating family violence on occasions for which I have made findings of family violence, I accept that the father’s participation in such a course of therapy is in its infancy.
X was assessed as not being able to emotionally manage attending further counselling and I accept the Family Consultant’s evidence that X could not manage this attendance without the support of his mother.
There is no support by the mother for X spending time with the father. The combination of the father having not completed the Men’s Behaviour Change course at this stage, not accepting full responsibility for his conduct, the mother’s fear of the father, the impact of trauma on her as a result of the father’s conduct, and X’s own fixed views of the father, means that the orders sought by the father would inevitably cause stress and fear in X as well as the mother.
FAMILY VIOLENCE CONCLUSION
For the reasons outlined above, I find that X and the mother were exposed to family violence and that the father was the perpetrator of the violence. I find that the father made limited concessions in his evidence in relation to the violence. This was in circumstances where the father would concede that he had poor memory of some of the incidents due to his consumption of drugs and alcohol. I find that the father’s concessions were opportunistic in that he conceded that he used bad language but would then say the mother did the same. I find that the father’s denials of physical violence and sexual violence were unpersuasive and I accept the mother’s evidence.
I reject the submission by the father’s counsel that the mother was unemotional when giving evidence and therefore should not be believed. I find that the mother was consistent and careful as she gave evidence and that there were clearly times when she was overwhelmed by the subject matter she was being asked about.
I refer to the findings I have already made above regarding specific incidents of family violence.
Assessment of risk
I was urged by the mother and ICL to find that X was at an unacceptable risk of physical harm as a result of the conduct of the father. I have found that the father was a perpetrator of family violence. I have accepted the evidence of Ms K that as at the date of the hearing, the father continued to deny perpetrating physical, verbal, sexual or emotional abuse on the mother. As I have already noted, the father continues to deny some parts of the mother’s account of family violence, especially as it relates to X. As a consequence of the father’s continued denials and my above findings, I further find that the father poses an unacceptable risk of physical harm to X.
I find that there is an unacceptable risk that the father in not accepting his previous behaviour, will not be able to fully engage with the therapeutic assistance provided by Ms K to change his behaviour.
I have accepted that X’s view of his father is based on a response to the trauma that he experienced. I accept that at this present time, X does not have the emotional capacity to undertake further therapeutic intervention to be reintroduced to his father and that such treatment is likely to have negative consequences for X. This is particularly the case given that the mother does not support reunification at this time.
As discussed earlier in the judgment, the Family Consultant opined that the mother’s anxiety and responses to trauma in relation to the father would have created a “feedback loop” with X’s anxiety and responses to trauma, and that breaking that loop is of paramount importance.[98] What this means is that the mother’s anxiety at X spending time with the father would likely affect X and would cause X to be anxious. It was the Family Consultant’s view that even during these proceedings, the mother’s anxiety has continued and that this is causing X anxiety, and that once the proceedings were over, an order for no time would provide a respite for the mother and therefore for X. The respite would, in the opinion of the Family Consultant, provide an eventual opportunity for X to reconnect with his father. The Family Consultant did not resile from her position that it was not in X’s best interests to spend time with his father at the conclusion of this hearing. I accept this evidence.
[98] Transcript 9 May 2023, p.451.
Having regard to this evidence, as well as my findings above, I find that X is also at an unacceptable risk of psychological harm if he was to spend time with the father.
I accept the evidence that at this stage, X does not have the capacity to spend time with the father. I find that ordering X to do so would place him at an unacceptable risk of psychological and emotional harm as a consequence of his anxiety.
I find that the mother does not have the capacity to allay X’s anxiety, and rather her own fears of the father would create a “feedback loop”, which would undermine her parenting of X and create a heightened fear in him.
CONCLUSION
Parental responsibility
The parties agree for the mother to have sole parental responsibility. The area of dispute is whether the mother should consult and notify the father prior to decisions being made.
Given the orders I will be making, I do not consider it is appropriate for the mother to be required to consult with the father prior to making any decision. Indeed I find it likely that such a requirement will result in significant trauma to the mother, which is likely to impact on her parenting capacity. I am therefore not satisfied that the parties will have any capacity to effectively consult or communicate with one another in relation to X.
As a consequence, I do not make the orders sought by the father in relation to the discharge of the mother’s responsibility for parental responsibility and prefer the orders of the mother and the ICL.
In circumstances where the mother has sole parental responsibility, I will permit her to provide these orders to X’s school, his places where he attends for extra-curricular activities, and to Police as well.
Spend time orders
I will make an order that X spend no time with the father. I accept that at this time, X does not have the emotional reserve to spend time with his father. Such orders would require X to engage in therapy to assist him with his extremely negative views of the father. I find that he does not have the emotional capacity to engage in such therapy at present.
I find that orders requiring X to spend time with his father are likely to cause X emotional and psychological harm. I find that such harm would be unacceptable in its impact on X and that he does not have the emotional capacity to manage such time.
I do not accept that the father’s proposed orders mitigate the unacceptable physical and psychological harm that I have found he poses to X. The father’s own engagement with his therapist in therapy similar to Men’s Behaviour Change therapy is at an embryonic phase, and as yet the father does not fully acknowledge his perpetration of violence on the mother and X.
The father’s orders include a progression from supervised to unsupervised time. I am not satisfied that any such progression can occur given that the father has not yet completed his therapy akin to the Men’s Behaviour Change course and X does not have the capacity at this stage to commence therapy which would be necessary to reintroduce him to the father.
Overseas travel
The mother and ICL support orders for the mother to be able to obtain a passport for X and to be able to travel overseas with him without the consent of the father. The father opposes these orders.
The issue of overseas travel requires me to assess the degree of risk, if any, of X not being returned to Australia by the mother and a consideration of the appropriateness of requiring any security for X’s return.[99] I am required to consider:
(a)The existence or otherwise of continuing ties between the departing parent and Australia;
(b)The existence and strength of possible motives not to return;
(c)The existence and strength of possible motives to remain in the other country;
(d)Whether the country of travel is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction signed on 25 October 1980; and
(e)Other considerations in section 60CC of the Act as are relevant.[100]
[99] Line v Line (1997) FLC 92-729.
[100] Line v Line (1997) FLC 92-729.
There was limited evidence on this issue. I accept, however, that from time to time a parent may wish to travel overseas with a child. In this matter, the mother’s family lives in Australia and the mother’s evidence is that she has significant support from her family.
Given the orders I am making in relation to time and parental responsibility, and the lack of evidence of any motive of the mother to remove X from the Commonwealth of Australia, I am satisfied that any travel proposed by the mother will result in X being returned.
I also find that not making these orders is likely to result in further proceedings which would not be in X’s best interests as they would likely result in his engagement in the family dispute.
Given the orders I am making in these proceedings, I do not propose to require the mother to notify the father of any proposal to travel.
Gifts and presents
The evidence of the Family Consultant is that in the future, it may be that X seeks out his father when he has the emotional capacity to do so. She gave evidence of the importance of providing X with a link to his father via cards and presents.
The mother did not oppose such an order but raised concern about the sending of what she considered the inappropriate gift of a weapon. It is the mother’s evidence that X rejects the cards the father sends, though I note he accepts the presents.
In relation to the weapon, I accept the father’s evidence that it was a small weapon with attachments and that he had received a similar gift as a child and so did not think it to be inappropriate. I do not find the weapon to have been intentionally forwarded with a view of causing harm to the mother or X. I do, however, also accept that the present of a weapon frightened the mother.
I will make orders which will ensure that the father has an address to forward gifts and cards to X. I am confident that the mother will be able to manage, as she has to date, to ensure that the gifts are given to X and that she can supervise the removal of any unacceptable item.
It is important that there remains a link between X and the father so that in time, if X wants, he can make contact with the father. I find that the appropriate way to do this is cards and gifts.
I will also order the mother to provide the father one photo of X per year in December for this link to remain.
Injunctions
Given the findings in this matter, it is appropriate that I make injunctive orders as sought by the ICL and mother. It is appropriate that I do so for the welfare of X because part of his recovery is his sense of safety and ensuring that he is given space to heal from his experiences of the father.
I have accepted the evidence of the Family Consultant that X needs to feel secure and safe. His mother is a key factor to assisting X feel safe. The orders sought by the ICL will ensure that the mother also has the security of protective orders.
Given the very serious acts of violence that were perpetrated by the father towards the mother and X, I find that it is just and convenient to make the orders sought by the ICL and the mother.
I make Orders accordingly.
I certify that the preceding three hundred and sixty-five (365) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lioumis. Associate:
Dated: 8 September 2023
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