Hanna and Ethington

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANNA & ETHINGTON

[2019] FCCA 1331

Catchwords:
FAMILY LAW – Parenting – father seeking time with children aged 8 and 3 – mother seeking an order for no time and no communication – where the father perpetrated family violence during and after the relationship – where the older child has intrusive thoughts about the violence he witnessed – where it is probable that family violence is occurring in the father’s current relationship – where the father and his partner are both using methamphetamine (ice) – where the father would like regular unsupervised time with the children – where the children would be at unacceptable risk of harm if they spent unsupervised time with the father – where the father realised at the end of the trial that the writing was on the wall and instead asked the court to order that the mother permit him to spend time with the children if she considered it safe and appropriate for him to do so – where this would be unfairly burdensome on the mother – orders made as sought by the mother – mother to have sole parental responsibility for the children.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA

Cases cited:

Paddon & Tighe [2019] FCCA 1154

Lindsay & Piper [2019] FCCA 358

Applicant:

MS HANNA

Respondent:

MR ETHINGTON

File Number:

NCC 42 of 2017

Judgment of:

Judge Terry

Hearing dates:

11 & 12 April 2019

Date of Last Submission:

12 April 2019

Delivered at:

Newcastle

Delivered on:

26 April 2019

REPRESENTATION

Counsel for the Applicant:

Ms Conte-Mills

Solicitors for the Applicant:

Craney Family Solicitors

Counsel for the Respondent:

Mr Guyder

Solicitors for the Respondent:

The Family Law Firm

ORDERS

The mother shall have sole parental responsibility for the children [X] born … 2016 and [Y] born … 2010 (“the children”).
The children shall live with the mother.
The father shall spend no time with and have no communication with the children.
The father is restrained from approaching or contacting the mother unless such contact is through a solicitor or for the purpose of attending mediation and restrained from taking any steps to learn of the location or the residence of the mother or children.
The father is restrained from entering onto or approaching within 100 metres of the children’s residence and any school attended by the children.
The father is restrained from entering onto or approaching within 100 metres of the mother’s place of employment.
For all purposes the children [X] born … 2016 and [Y] born … 2010 shall be known henceforth as [X] HANNA born … 2016 and [Y] HANNA born … 2010.
The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the children [X] ETHINGTON born … 2016 and [Y] ETHINGTON born … 2010 to [X] HANNA born … 2016 and [Y] HANNA born … 2010.
The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order 8 above is to do all acts and things to register the change of name of [X] ETHINGTON born … 2016 and [Y] ETHINGTON born … 2010 to [X] HANNA born … 2016 and [Y] HANNA born … 2010 pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.
The mother is permitted to travel internationally with the children and can apply for a passport for the children notwithstanding the consent of the father has not been obtained.

IT IS NOTED that publication of this judgment under the pseudonym Hanna & Ethington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 42 of 2017

MS HANNA

Applicant

And

MR ETHINGTON

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter involves [Y] and [X] who are 8 and 3.
The mother is the applicant and she seeks an order that she have sole parental responsibility for the children and that they live with her and spend no time with and have no communication with the father.
The mother also seeks an order that the children’s surname be changed so that they commence using her surname and an order that she be permitted to travel internationally with the children.
The mother said that the children would be unsafe in the father’s care because he was a methamphetamine user as was his partner. She alleged that he perpetrated family violence during and after their relationship and that it was probable that there was violence in his current relationship. She said that [Y] was resistant to spending time with the father due to his memory of the violence.
The mother said that she sought a surname change because [Y] wanted it and that she sought an order about passports because she wanted to be able to travel overseas on holidays.
The father conceded sole parental responsibility but said that he wanted an order that the mother be obliged to consult with him and consider his input before making a decision.
In the witness box the father said that he wanted to be able to spend alternate weekends and time during the school holidays with the children and that was also what he sought in his response filed nearly two years ago.
During the trial the father recognised that he was not going to get that at the moment and in final submissions he sought an order that he be able to spend time with the children if the mother considered it safe and appropriate for him to so.
The father also sought an order that he be able to send the children letters, cards and gifts and receive copies of school reports. He opposed the change of surname, either totally or by way of the mother’s surname being included as a hyphenated surname and he opposed an order which would allow the mother to travel internationally with the children. He said that he was concerned that the mother might not appropriately supervise the children or might leave the jurisdiction and not return.
The father proposed that a notation be made to the orders to the effect that he could re-litigate the matter if he felt that he could demonstrate that he had overcome his drug problem.
The father conceded in the witness box that he and his partner were using methamphetamine although he maintained in his affidavit that he thought he was using speed. He said that in the last few weeks he had taken steps to get help.
The father denied that he had ever been physically violent to the mother although he said that he sometimes restrained her, and he said that the mother punched him. The father’s counsel submitted that there was mutual verbal violence during the relationship.
The father said that there was no violence in his current relationship, just heated arguments.
In February 2019 the father commenced a perpetrator’s course, a course designed to assist people who are family violence perpetrators. He has done five weeks of it and he said that the court should take that into account even though he made virtually no admissions about family violence.
The father did not accept that [Y] was genuinely resistant to seeing him. He said that the mother had put ideas into [Y]’s head and that if [Y] started seeing him again any resistance he had would quickly be overcome.

The evidence

The mother gave evidence in her case and the father and ultimately his partner gave evidence in the father’s case.
The father did not file any material for trial until a few days before the trial was due to commence. He was allowed to rely on his late filed trial affidavit; the mother’s counsel did not object to that and in circumstances where the mother was seeking a no time order, which is quite a severe outcome, it was preferable to hear the father’s side of the story and make findings before making orders.
It was suggested to the father during the trial that he needed to call his partner Ms A. An affidavit of Ms A was prepared and was filed on the second day and Ms A was cross-examined.
A family report was prepared by Mr B, a Regulation 7 family consultant and he also was cross-examined.
I am very concerned about the way the father’s case was conducted.
It is open to question whether adversarial trials are the best method of determining parenting arrangements when there are allegations of family violence, requiring as they do that each party, including the alleged victim, to be cross-examined and sometimes cross-examined vigorously.
Adversarial trials are all we presently have however and each party in an adversarial trial is entitled to be represented and to question witnesses and make submissions, but for the sake of children, which is what this jurisdiction is all about, it is desirable that the least possible damage be done, either in the form of over-vigorous cross-examination causing distress or in the form of conveying to a perpetrator by vigorous cross-examination that their behaviour is somehow excusable or that the other party is as bad as they are.
In the case before me there was no foundation for the father’s counsel to suggest, as he did in cross-examination of the family report writer, that the mother’s allegations that the father had committed physical violence may have been maliciously made. No such suggestion was put to the mother and there was nothing in the evidence which provided a foundation for that suggestion.
There was also no foundation for the submission by the father’s counsel that the parties had engaged in mutual verbal family violence.
In the family report the report writer said that the mother told him that she was verbally abusive to the father in response to his aggression. That is the only possible foundation for such a suggestion by the father’s counsel, but the mother did not explain to the family report writer what she meant by verbal abuse and there is nothing in any of the evidence which would enable me to find that the mother verbally abused the father.
The father alleged that the parties had arguments but he did not allege that the mother threatened him, subjected him to repeated derogatory taunts or sought to intimidate him or that he felt intimidated or that she did anything during those arguments which meant that her behaviour remotely came within the definition of family violence.
The content of the father’s verbal and written communication with the mother comes within that definition but there is no such evidence in relation to the mother’s behaviour.
There was no foundation for a suggestion that the relationship involved mutual verbal family violence, but I am sure that the father will not reflect on that after the end of the trial. Sadly he may go away from these proceedings holding not onto any findings I make, and that is particularly likely to be the case because he has not bothered to come along to hear the decision, but holding onto the suggestion made by his counsel during submissions that there was mutual verbal family violence and that by implication the mother was as bad as he was.
Cases involving family violence are complex and women do sometimes make false allegations. I handed own a decision only three days ago in which I found that to be the case.[1]
[1] Paddon & Tighe [2019] FCCA 1154
There are also cases where the evidence suggests that there are two sides to the story or even two perpetrators.[2]
[2] Lindsay & Piper [2019] FCCA 358
Those things can occur, but the father in this matter has a conviction for stalk intimidate and there was uncontested evidence of him sending multiple highly abusive, threatening text messages to the mother which included threats to kill and injure her, and there was no evidence of anything of that kind flowing the other way.
These matters should have made the father’s counsel cautious about adopting the approach of attacking the mother and trying to make out that each party was as bad as the other.
The problem with that approach is that if it fails, as it did in this case, and I often try and warn people about that when these matters first come before me, is that it simply ramps up concerns about the perpetrator and about whether there is any prospect of their behaviour or their attitude to the other party changing.

Background

The mother is 38 and the father is 34. They met in … 2009 and had an on/off relationship and they have two children, [Y] born on … 2010 and [X] born on … 2016.
The mother said that there were many arguments during the relationship but she also described three specific occasions when she said there was physical violence.
She said that in 2011 or 2012 she was preparing to leave after an argument when the father tried to stick a pen in her eye and grabbed her by the throat. The mother escaped to the next-door neighbours. Police were called and they attended and helped the mother pack her things, but she said that the father begged and begged for her to resume the relationship and ultimately she returned to him.
The mother said that the father was not physically violent again until August 2015. She said they were having an argument and she threatened to leave. She said that the father pushed her forcefully and pulled her hair and that [Y] saw this. She said that the father took her wallet, phone and keys and she had to walk a kilometre to her friend’s place and from there she phoned her parents who picked her up.
The mother did not report this incident to the police but it was reported and she said that her mother may have done so. The police suggested that she apply for an Apprehended Domestic Violence Order (ADVO) but the mother did not take up that suggestion.
None of those things I might add, are uncommon in family violence relationships: reconciliations and the failure to report incidents to the police are sadly not uncommon.
The mother said that there was another incident on 28 November 2016. She said that the parties were having an argument and the father shoved her, dragged her by the hair, grabbed her by the throat and pushed her into the oven causing the handle to bend. The mother said that [Y] was in the lounge room and saw what happened. She said that [Y] found her keys and gave them to her so she could leave if she needed to.
The parties separated on 28 November 2016.
The father denied that any physical violence occurred at any time and I will have to make findings about that later on.
[X] was only 10 months old when the parties separated and after separation the father saw her by attending at the house; the mother said that he did so every two to three days. She said that the father also collected [Y] from school on two or three occasions and [Y] had an overnight with him on 19 and 20 December 2016. The father also visited the children briefly on Christmas Day 2016 and on [X]’s birthday on … 2017.
The parties agreed that the children would spend one or two nights with the father commencing on 9 January 2017. However very shortly after the father collected the children he rang the mother to say that he would not be returning them.
The mother said that this was followed by some highly abusive and threatening phone calls. She said as follows:
At about 5.11pm on 9 job 2017, I received a phone call from Mr Ethington. During the conversation Mr Ethington said “I warned you about having people around my kids. You’re going to pay for it, you cunt. Get your friend around here and we’ll sort it out, and I’ll shoot both of you cunts in the head. No one goes around my kids.[3]
[3] Paragraph 27 of the mother’s affidavit.
…
At about 6.33pm on 9 January 2017, I received another telephone call from Mr Ethington. During the call he said to me “If you come up or bring any of your friends up I will smash you around the head with a pool cue.[4]
[4] Paragraph 30 of the mother’s affidavit.
The mother reported the threats to the police.
The phone calls were followed by the father sending the mother a stream of threatening and disgusting text messages. Examples of the content are:
U let people near my kids with out [sic] my permission or consent now you have a fuckin problem
Things are going to get very nasty and messy if u let strangers around my kids
I don’t care what u or our friends think try me and see just how far I’ll go to keep them safe
…
You’re a putrid fuckin cunt
Seriously go tie a rope around your neck and fuckin drop cunt[5]
[5] See Exhibit “C”.
One of the threats the father made was that “the boys were going to come around”. The father was friends with Rebel bikies so that caused the mother some concern and she decided to leave home until the matter was resolved.
On 11 January 2017 the mother applied for a recovery order and on 13 January 2017 an order was made for the father to return the children to the mother. The issue of whether the father should spend time with the children was reserved.
The father filed a response and in due course an order was made for the children to spend supervised time with him at Contact Centre and also to spend some time with him supervised by Family Services prior to the time at Contact Centre commencing.
The case the father now promotes is that the mother has set out since separation to make it difficult for him to see the children but what actually happened is that the mother allowed him to see the children immediately after the separation. He lost the right to see them unsupervised as a result of his abusive, threatening and violent behaviour which included retaining the children and threatening to harm the mother and sending her a barrage of offensive, threatening and violent text messages.
The father alleged that he withheld the children because the mother had a strange man at the house but he should disabuse himself of the idea that this sort of behaviour is evidence of him being protective of his children or is excusable on that basis. It is not. It was not. It was family violence pure and simple and it did not protect the children. It subjected them to harm.
As a result of the content of the telephone calls and text messages the father was charged with stalk intimidate and an ADVO was made for the mother’s protection. He was later convicted of that offence.
The father was charged with breaching the ADVO on 16 June 2017 after the mother complained that he followed her car when she left Contact Centre. The mother said that she was frightened. The father provided evidence to the police that he was somewhere else at the time and the charge did not proceed but the mother remains convinced that the father followed her.
The paternal grandmother was in the car. She and the mother have always had a good relationship and she took photos of the father’s car.
On 3 November 2017 the father sent an extremely offensive and threatening email to his parents. It begins:
You stupid know it all pricks. You pieces of shit. And I don’t use that lightly. Sided with a lying, cheating, conniving cunt. You backed the wrong side.
It goes on and on in that vein and the father ends by saying:
You have lost so much family, and I hope one day on your deathbed you regret it when there is no one there, because I would not get out of my chair to say goodbye to either of you. I hope you rot in hell.
Despite the father’s behaviour supervised time continued and the father attended regularly. The time at Contact Centre was the best time because it is the cheaper service. However Contact Centre have to divide their services up between families who need them and usually only give each family six months of supervised time and time at Contact Centre ended on 12 January 2018. There was then no time until 11 March 2018 when time supervised by Family Services began once more.
On 6 May 2018 the Family Services supervisor reported to the mother that [Y] had said that he did not want to be there and that the reason he gave was “because of what daddy had done to mummy”.

The mother said that prior to the next visit on 20 May 2018 [Y] told her that he didn’t want to go. The mother took him anyway but he cried.
The mother said that around this time [Y] was frequently reluctant to attend. The father agreed that he showed some reluctance but did not accept that it was his behaviour which had caused it.
The family report interviews took place on 20 June 2018 and the report was released shortly thereafter. The family report writer recommended that consideration be given to suspending [Y]’s time with the father and engaging him in counselling.
When the matter came before me on 24 July 2018 the father’s time with both children was suspended and he was also ordered to do a drug test within 48 hours.
The mother believed that the father had used drugs during their relationship but she had not seen him do so and she had not made a big deal of his drug use in her filed material to that point. However she told the family report writer that she believed the father and his partner Ms A were using ice.
It is important for the father to note when he starts feeling sorry for himself and alleging the mother has not encouraged the children spending time with him that notwithstanding the mother’s belief that he had used drugs during the relationship and her belief that he and Ms A were using ice, she did not seek to disturb the supervised time until [Y] began showing reluctance to go and the family report writer recommended it.
Anyway the drug use issue became prominent upon the release of the family report and on 24 July 2018 I ordered that the father do a urine drug test within 48 hours.
The father complied with the order. The test was positive for methamphetamine, and methamphetamine, or ice as it is commonly known, is one of the most deleterious drugs currently out there.
After the father tested positive for methamphetamine no attempt was made to resume his time with the children and the matter was listed for trial and it was ultimately heard two weeks ago.

The parties circumstances

The mother is living in suitable accommodation. [Y] attends school and [X] attends day care; [Y] plays sports and [X] does some sports.
The mother has established a business.
The mother has re-partnered with Mr C who has two sons and [Y] and [X] have a good relationship with Mr C and his children.
On the current state of the evidence [Y] and [X] are well placed where they are living.
The father is living with Ms A. She said that they have been in a relationship since about 2016. That causes a little bit of concern given the separation date for the parents but it may be inaccurate.
Ms A has four children aged 12, 10, 6 and 5 and they live with the father and Ms A.
The father is not employed and Ms A also appears not to be employed.
Both the father and Ms A are using methamphetamine and there have been numerous police callouts to their home which I will refer to later in the judgment.
As a result of information about the situation of the Ms A children which emerged during the course of the trial I found this case a particularly distressing one. Sometimes I do not get too upset about cases but I have concerns for the four Ms A children and my heart goes out to them but this case is not about them and the reason for my distress is that there is nothing I can do about their situation.

[Y] & [X]’s best interests

I have to make the orders which are in [Y] and [X]’ best interests and to determine their best interests I must have regard to the primary and additional considerations in s. 60CC(2) and (3) of the Family Law Act.
I am going to start with the additional considerations and I am going to consider them out of order, because to make this judgment flow they need to be considered out of order.
Some of them do not help much anyway. One of the additional considerations is the extent to which each party has taken or failed to take the opportunity to spend time with the children, communicate with the children or to take part in decision-making about the children.
The mother has been a good and reliable carer for the children. The father has not spent much time with them but that is due to the issues of drug use and his behaviour so that consideration does not assist me on its own.
I must consider the financial support of the children.
The mother is pretty much solely supporting the children. The father may be paying a small amount from his Centrelink benefits but it would not go very far if he is. However this case does not turn on whether the father is paying child support.
I must consider the maturity, sex and background and other characteristics relevant to the children.
That does not help me either as a separate consideration other than to comment as I often do that children of this age are completely defenceless against violent behaviour by adults or neglect or abuse due to drug use.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents.
That does not help me either. Things that might come under that heading I will discuss in other parts of the judgment.
I must consider the likely effect of any change in the children’s circumstances.
The father proposed a number of changes. He gave up seeking an order for defined time in the end so they are only small changes but they include consultation in relation to parental responsibility, no passport, no travel; and time as determined by the mother if she thinks it is safe.
The children are not spending time with the father at the moment so the mother’s proposal for a no time order will not result in a change for them. The only changes she proposed were in relation to passport and travel and change of surname.
I am not going to make any comment on the likely effect of any of those changes at the moment. I will weave that into my conclusion.
The first major issue in this case is the issue of the father’s parenting capacity.
I have read the Relationships Australia notes concerning the father’s interaction with the children at Relationships Australia. By and large he has played and interacted appropriately with them there. He has sometimes had a bit of trouble trying to settle [X] but he was able to divide his time between the children and be appropriate with them.
However that does not take me very far because the fact that people can play nicely with children in a supervised setting does not necessarily mean they have the capacity to parent the children in a broader sense, and in this particular case there are two issues which mean that the father lacks parenting capacity and they are his drug use and the family violence.
Dealing first with drug use, the mother said that during the relationship the father told her he was using drugs but she never saw him doing so. Her concern was that he spending huge amounts of time at the pub.
The father admitted to the family report writer that he was using drugs during the relationship. The family report writer said as follows:
Mr Ethington acknowledged that he has used cannabis, amphetamines, ecstasy and cocaine on a recreational basis, whilst stating that it was never with children around. He further indicated that he has never been an IV user, whilst stating that during the parents’ relationship that he would have used amphetamines every two months. It remains unknown as to whether the father had any “ice” use during that period.[6]
[6] Paragraph 33 of the Family Report.
There is a drug test in doctor’s records from early 2016 where the father tested positive to MDMA or ecstasy.
Drug use does not seem to have entered the home although it may have affected the father’s behaviour and the mother did not make a big issue of drugs initially. However she told the family report writer that she thought the father and Ms A were using ice and the father tested positive for methamphetamine in July 2018. Thereafter the father did not respond to requests to do drug tests until March 2019 when he did a hair test. That also was positive for methamphetamine.
The father is using methamphetamine as we speak. He did not actually say that in his affidavit although he didn’t deny it, he just didn’t address it.
The father provided very limited details about his drug use in his affidavit. However he was asked questions about it in the witness box and what he said is not necessarily reliable but it is bad enough.
The father admitted that he was using the drug. I asked him when he used it and he said “around 3, 4, 5 or 6.” The following exchange then occurred:
When the children are getting home from school and needing food, baths and assistance with their homework? ‑‑‑Yes.
Does Ms A use? ‑‑‑Yes.
With you? ‑‑‑Sometimes. Yes. On the weekends.
The father gave very limited evidence about the impact of the drug use on him. In the witness box he said that it caused him to stay awake for 12 or so hours.
In his affidavit he said he was using drugs for self-medication. When I asked him about that he referred to having shoulder and back pain but there was no evidence that use of this drug would have any effect on that and indeed I asked him why, if he was suffering from pain, he would want to stay awake for 12 hours.
The father also said that he was using it due to depression as a result of not seeing his children, although he quickly added that this wasn’t an excuse.
Somewhat ironically one of the father’s repeated refrains was that the arguments he had with Ms A were due to financial issues. He has obviously not reflected on how the fact that they are both unemployed and are both using drugs might be causing monetary problems.
The father was not particularly honest about his drug use. In his affidavit he kept referring to using speed, which is an amphetamine. He was forced because of the test results to admit that he was using methamphetamine, which is a completely different drug, but he still said that he thought he was using speed.
It is simply not credible that if the father is regularly using methamphetamine he doesn’t know what drug he is using.
The father said that just before the trial he had inquired about a course to assist him in relation to his drug use and had done one session of something called a SMART Recovery program.
There is nothing in the father’s evidence to suggest that he is going to stop using drugs. He didn’t say that he was going to. The proceedings have been on foot for over two years. He first tested positive for methamphetamine 10 months ago. He enrolled in some sort of a course just before the proceedings commenced. I can have absolutely no confidence that the father has any intention of giving up drugs or that he will be able to do so.
Ms A admitted in her affidavit that she was using drugs. I am quite concerned about Ms A and if the father had been here I might have blunted some of the things I said in relation to her but he isn’t.
Ms A has four children who are no doubt are clamouring for her attention but she said this in her affidavit:
I confirm that the last time I used speed was in approximately February.
She went on to say:
I understand the effect of and dangers of drug taking and the negative impact it can have on our general behaviours. I have generally taken the drug to feel a high and because I’ve been bored. In this regard I believe I would not be bothered if I did not consume illicit substances again. I don’t consider I have a dependency on drugs.
I do not believe that and there is no evidence before me that there is any prospect of Ms A ceasing to use drugs either.
The fathers’ drug use is an issue of serious concern. The only effect the father admitted in the witness box was that it kept him awake for 12 hours but he said that methamphetamine can make people very aggressive and the family report writer said that there was no point the father doing a family violence perpetrator’s course while he was using methamphetamine because of that very issue.
The father’s methamphetamine use is highly concerning because of the issue of family violence in this case.
In her affidavit the mother mentioned alcohol use as a problem for the father during their relationship but there was no evidence that it was a current issue for him. Methamphetamine use seems to have taken over as the problem.
I will now move to the family violence issue and I have already outlined the mother’s evidence about the physical violence that she said occurred.
Leaving aside the issue of whether there was physical violence, there is no doubt that the father committed some very serious acts of family violence in January 2017. Withholding the children in the context of this case was an act of family violence and he also threatened to physically injure the mother and subjected her to a torrent of vile verbal abuse.
The mother said that the father stalked her in July 2017 by following her car. The father was not convicted of that charge but I am satisfied on the balance of probabilities that he did do that. I am not running a criminal hearing. I have the mother’s evidence about that. The mother said that the paternal grandmother filmed the incident. The father was conspicuously not a witness of credit and I am satisfied that the stalking occurred.
The father’s conduct in sending that email to his parents in late 2017 was also family violence. It contained vile abuse and threats.
The threats and abuse continued into January 2019 according to the mother. She gave evidence of a Facebook post from January 2019 which included the following:
Don’t back an old dog into the corner; you might fucking get bitten this time … some humans are the weakest dogs around … stop messing with the children’s heads and this garbage or I will destroy everything you hold dear. I will be relentless in my pursuit for my children. I won’t stop until I crush any and everything – everyone who stands in the way of seeing my kids. No personal piece of paper will stop me in this pursuit. Make no mistake, I haven’t given up. I’ve tried to do it the right way. You’ve been put on notice. I will tear everything you hold dear to you apart and turn your fucking world upside down.
There are other things in the post such as:
I failed a drug test after two years of that, yet I can promise you this piece of shit [the mother] is no stranger to drugs and deception.
There are pages of this.
During the trial the father said that that the Facebook message had been faked, indeed he said that both messages the mother attached to her affidavit including one posted on 4 January 2019 had been faked.
That was a little undermined by the fact that the father admitted that he posted a Facebook message on [X]’s birthday, which is …. He seemed a little alarmed about having made that admission when the message attached to the mother’s affidavit was shown to him and he read the end of that message but he agreed that he had posted a message on her birthday.
Facebook messages can be faked but in this particular case I have no reason to believe they were. The messages were allegedly posted in … 2019. They were not allegedly posted just before the trial was about to commence, possibly in order to try and shore up somebody’s case. They were posted more than two months earlier. There was no critical incident at the time that would make one concerned that somebody had tried to set the father up. I do not accept that the Facebook messages were faked. I am satisfied the father posted them and that they show a continuation of the abusive behaviour and family violence.
So leaving aside the issue of whether physical violence occurred during the relationship there is ample evidence that the father has committed numerous acts of family violence in terms of threatening the mother with harm (a bullet in the head, a pool cue smashed around her head) and subjecting her to vile verbal abuse and that he has been verbally abusive to his parents. His attitude to the mother shines through the text messages in … 2019. There is also the stalking.
The father insisted however that he had never physically assaulted the mother and his counsel submitted that it would be unsafe for me to find that physical violence had occurred.
I do not accept that for these reasons.
The father was not a witness of credit. His credit was undermined on many occasions during the trial. He was not a witness of truth so his denials don’t mean anything.
The father wrote out platitudes in his affidavit about being sorry for some of the things which had happened in the past but he provided minimal information about past events whereas the mother provided text messages and Facebook messages which amply demonstrated the father’s capacity to threaten serious physical violence.
The father has threatened to perpetrate the most severe family violence. He was not a witness of credit and I do not accept that I should disbelieve the mother’s evidence about the incidents of physical violence because she failed to mention a chair being thrown or smashed at the same time as recounting being dragged by the hair and thrown into the oven.
The mother was a witness of credit. The text messages and the phone calls reveal that the father has a violent and threatening mindset. There is also evidence in doctor’s notes about him having violence issues of longstanding. Notes from August 2012 refer to the father having had:
…anger outbursts for the last few months, yelling, screaming and punching walls and doors.
The notes also mention recreational drug use.
I am satisfied that the father was violent to the mother on many occasions both physically and verbally and that he has engaged in intimidation and in coercive and controlling behaviour.
Interestingly although I followed this on from the drug use section and made the comment about methamphetamine causing aggression, the father denied that his behaviour to the mother had anything to do with him using drugs or alcohol.
I then have a situation where I have grave concern that there may be family violence occurring in the father’s current relationship. There have been numerous calls to the police in relation to the father and his current partner.
On 13 June 2017 police were called because Ms A was wanting (according to the police) to leave with her children and the father wouldn’t let her.
On 21 September 2017 Ms A’s eight year old child called the police saying that he feared the father was going to assault or was assaulting his mother.
On 31 January 2018 police received six separate triple zero calls with concerns about what was happening between Ms A and the father and Ms A and three children were ultimately found walking along the road.
On 23 April 2018, the police were called by neighbours and on that occasion they took out provisional ADVO’s to protect both parties because they couldn’t determine whether it was the father and Ms A who was responsible for what was happening. Ms A and the father did not want those to continue and they didn’t continue.
There is some heartbreaking information in the subpoena material about the Ms A children and what may be happening for them in the father’s household.
In November 2018 police and the Department of Family & Community Services conducted a joint investigation. Teachers expressed concerned that two of the boys were acting out at school and were:
…emotional and aggressive … punching another student in the face and kicking a teacher he cares about … running away when it’s home time.
It was reported that both boys’ anxiety increased around 2 pm when it was home time and that they saw their school as a safe place.
One of the boys was reported as saying that:
…he has stood up for mum in the past and held a knife to Mr Ethington [the father] and told him to stop hurting his mother.
One of the boys complained that:
Mr Ethington slapped him round the head quite forcefully.
That child was taken to the hospital.
Ultimately however the Department did not act on the concerns teachers were expressing about the children.
I cannot make any findings about exactly what is happening in the father’s household but I have two methamphetamine using parents and four children who are currently exposed to considerable risk of harm.

The father is completely switched off to that. He blames the children. He said that at least one of them had ADHD. He also said that at least one of them was copying some behaviour from their own father.
In cross-examination I said this to the father:
The situation I have with you is that you’re living with Ms A, there’s a lot of arguing. The neighbours or one of the children are repeatedly calling the police and the police are coming to the home. Can you understand why I may not want to send these children, [Y] and [X], into that home?
The father said yes and then he added:
…but I think it’s very unfair.
The father denied that there was violence in his relationship with Ms A. However he was not a witness of credit; he denied the serious family violence allegations in relation to the mother. I have considerable concern, although I cannot make precise findings about it, that there is family violence going on in that home.
It does not mean that Ms A is not part of it as well. There is reference in the police records to one of the children saying that Ms A had hit them around the head, but there is reason to be seriously concerned that family violence may be happening in that home.
The father accepts no responsibility for his actions. He denied that certain things had happened with the mother which I have found happened. He accepts little responsibility for the content of his text messages. On 8 April 2017 in a message sent or posted following the father being charged he said:
I’m only in this trouble for trying to protect my children.
The father needs to very quickly disabuse himself of the idea that his behaviour is excusable for that reason.
The father said that his relationship with the mother was dysfunctional and volatile. He said that his relationship with Ms A was hostile and volatile. The father seems to have failed to notice that he is the common denominator in those two relationships. He shows no understanding of how the conduct he engages in, the verbal abuse, the threats of harm and the threats to cause serious injury, impacted on others.
The father seemed to think that because he put a few words of apology in an affidavit and had commenced a perpetrator’s course that it was all over and people should just accept that he was a different person and feel safe and comfortable around him. That is evidenced by the fact that he sought an order that the mother keep him advised of her residential address and telephone number. He doesn’t have any insight into the effect of his behaviour on other people or any insight into the fact that people are not going to get over these things simply because he says that he has changed.
How the father expects anyone to accept that he has changed given the number of police call outs to his home I do not know but he does seem to expect it.
The father proposed that a notation be added to the orders to the effect that he be permitted to bring further proceedings if he overcame his illicit drug use problem. He made no mention of the family violence issue.
Unbelievably the father’s case outline document contained the following submission:
The mother’s unilateral decision to prevent the father from spending time with the children post separation has removed, on a practical level, the capacity of the court to consider an order for equal time.
The father is strongly of the view that the only reason [Y] has any difficulty spending time with him is because the mother has coached or aligned him. He has never reflected on the fact that his behaviour may have something to do with it and one of his answers in cross-examination confirmed that.
The father was asked if he thought there would be any problems for [Y] if an order was made for [Y] to spend time with him. He said that he didn’t think there would be once [Y] started seeing him again and that [Y] should have counselling to help him overcome the coaching or aligning behaviour that he had been subjected to by the mother.
The father’s lack of insight into what has led to the current situation is both amazing and concerning.
The father enrolled in the Facing Up course in February 2019 and he has attended a few sessions. It may do some good, something may rub off, but his dysfunctional relationship with Ms A continues as we speak and he continues to use drugs and if his trial affidavit is anything to go by not much has rubbed off to date.
Unless and until the father does something about the family violence issue, develops some insight into how his behaviour has resulted in people being frightened of him and how his behaviour has been such that people may never able to move past what he has done, the matter is going nowhere for the father.
There is no evidence that the father’s behaviour has had an impact on [X], who was much younger when the parties separated but there is ample evidence that it has had an impact on [Y]. The mother said as follows in her affidavit:
[Y] has seen a counsellor and he has learnt how to deal with his feelings and now he tells me a lot of things that make me sad when I hear them. I recall one day he told me he had a video in his head of dad “hurting you and I can’t get it out”.
[Y] told the family report writer about what he recalled about things that had occurred during the relationship. The family report writer said as follows:
When I asked [Y] as to whether he had any memories of when his parents cohabited, he replied by saying, “dad always used to fight with mum, he hurt her”. When I asked [Y] to elaborate further he indicated that he observed his father drag his mother by the hair as well as throwing a chair on the ground. [Y] wanted to say more and said to the Family Consultant “he pushed her into the microwave, I was frightened”.
[Y] was clear to tell the Family Consultant that given his experience of the parents’ relationship, that he is “scared of dad”. However, he indicated that whilst he has supervised time with his father at the park that he feels safe primarily because the supervisor is there. In an unsolicited manner [Y] told the Family Consultant that he wouldn’t feel safe if the supervisor wasn’t present.[7]
[7] Paragraphs 74 and 75 of the Family Report.
Exposure to family violence has had a severe impact on [Y].
I must consider any family violence orders.
An ADVO was made in January 2017 as a result of the father’s behaviour and it was in place for a year. In April 2018 there were provisional ADVOs between the father and Ms A but that didn’t last.
I have talked at length about the father’s parenting capacity because in this particular case the family violence as well as the drug use are relevant to assessing his parenting capacity.
I also need to talk about the mother’s parenting capacity. She has no criminal convictions and no issues with drugs, alcohol or her mental health. There are no police call outs to her home. Her partner is productively employed. [Y] spoke very well of Mr C to the family report writer.
The father’s counsel suggested in cross-examination of the family report writer that the mother might be maliciously making allegations about family violence and aligning [Y] to reject the father. If that was the case it would mean that the mother was failing to provide for the children’s emotional needs but I have made it abundantly clear that I do not accept that it is the case.
The next s. 60CC (3) matter I want to refer to is the views of the children and the weight to be given to those views.
That is important because of [Y]’s situation. [X] is too young to have a view about future parenting arrangements and she was very young when the parties separated but [Y] wasn’t and the mother said that he consistently told her that he did not want to see the father again.
The family report writer said as follows:
When I spoke to [Y] about his feelings with regards to what happens for him following his time with his father he indicated that sometimes he doesn’t want to communicate with people and that he “feels angry”. [Y] followed this up by saying, “I don’t want to see him, I don’t like him”.
[Y] was adamant that neither his mother nor Mr C denigrate his father to him and that his view of his father is from his own experiences. When I asked [Y] if he had a magic wand and how he could make his life better he replied by saying, “I wanna live with mum and not see dad”. [Y] presented as somewhat of a distressed child and it is reasonable to suggest that he has been impacted by the family violence. Both parents need to note this, and Ms Hanna may need to review the impact of the school counselling for [Y] as she may need to seek an outside referral, with a clinician who has expertise in dealing with children who have been exposed to family violence.[8]
[8] Paragraphs 76 and 77 of the Family Report.
Given [Y]’s experiences some weight needs to be given to his views. The family report writer pointed out that it could be traumatic for [Y] if he was forced to see the father before his issues had been dealt with.
I must consider the nature of the relationship between the children and each of their parents.
The mother is the children’s primary carer and always has been. The children have a very good relationship with her and fortunately for the children, because it is not always the case in situations where parents have separated and there are problems such as there are with this father, they also have a good relationship with their paternal grandparents because the mother does.
At the time of the family report interviews the father was seeing the children and the family report writer observed the children with the father and said as follows:
During my observation of the father spending time with the subject children, Mr Ethington initiated affection with both children upon seeing them and subsequently engaged both children in conversation. Mr Ethington brought presents for both children and initially both children appeared comfortable in the presence of the father. Whilst the observation continued, the father engaged [Y] in conversation, but it appeared that [Y] was a little detached and was focused on his individual play. [X] became a little distressed as she didn’t have her favourite security toy during the observation. Mr Ethington certainly appeared very nurturing with [X] in an attempt to distract her from her distress. When the mother arrived, [X] ran to her mother and whilst [Y] said goodbye to his father he didn’t wish to hug him as the mother entered the observation room.[9]
[9] Paragraph 78 of the Family Report.
The children related reasonably well to the father at those interviews, although it was noted that [Y] did not want to hug the father at the end, and the father played nicely with them at Relationships Australia, but the nature of [Y]’s relationship with the father is unclear given the observations at the family report interviews.
Just because [Y] did not act out at the interviews and has played nicely with the father at Relationships Australia does not mean they have a close and productive relationship, and neither child has any relationship with the father at the moment. They have not seen him for nearly 12 months.
The situation with the father having a relationship with the children has soured because of the father’s behaviour. Whether it is possible to retrieve the situation given the father’s lack of acceptance of responsibility for family violence and his ongoing drug use has to be open to question.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
The order least likely to lead to further proceedings is a no time order and an order which does not include a requirement that the mother consult with the father before making a decision in the exercise of her parental responsibility.
The father seems to be on a downward trajectory in his life at the moment. If a no time order is made that may be the end of it. However the father can come back to this Court seeking orders if he totally cleans up his act. Whether that will happen I do not know, but that is a possibility.
I must consider any other relevant matter.
The only relevant matter that I have not mentioned is that I have a concern for the mother’s safety given some of the evidence which emerged in the case.
This includes the evidence of his wrong and unfounded belief that somehow he has a right to be violent if he perceives a threat to his children, his comment when he was asked about the mother travelling overseas that he did not trust her to properly supervise the children, the content of the April 2017 post or message and the January 2019 Facebook messages and his refusal to accept responsibility for his behaviour.
The father’s belief that he is entitled to threaten violence and perhaps even do it in certain circumstances might mean that the mother could be at risk from him in certain circumstances, and the fact that he is using methamphetamine ramps up that concern. However there is nothing I can do about that particular concern in these proceedings. It is simply a matter of the mother making sure that she takes steps to protect herself and her children, because orders made by this Court are simply pieces of paper, as are ADVOs come to that.
The first primary consideration in s. 60CC (2) is the benefit to the children of having a meaningful relationship with each of their parents and there is no doubt that children benefit if they can have a meaningful relationship with both their parents and not just one.
Parents are different, they look different and they have different interests. Children inherit things from both parents and it is a loss to children not to be able to have a meaningful relationship with both parents. However it is open to question whether the father is capable of forming a meaningful relationship with the children at the moment, in other words a relationship that is significant, important and valuable to them. He is prioritising his drug use over having a relationship with his children.
In addition there is the second primary consideration which takes precedence over the first, and that is that I must have regard to the need to protect the children from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The father is using methamphetamine, as is his partner. He perpetrated a range of family violence against the mother both during and after the relationship. It is more probable than not that family violence is occurring in his present relationship. Whether the father is solely responsible for it I cannot say but the children would be an unacceptable risk of harm if they spent unsupervised time with the father.
There is also an unacceptable risk of psychological harm to [Y] if he spent supervised time with the father because the father has not addressed the family violence issues. He does not accept that [Y] experienced him being violent and [Y] would very likely be re-traumatised if he had to spend time with the father. That was the family report writer’s view and if the father has not changed he cannot help [Y] to feel more comfortable with the situation.
I just want to comment here on something which I should perhaps have referred to in more detail earlier. After he retained the children in January 2017 the father sent pages and pages and pages of abusive, threatening and offensive text messages to the mother. She responded to those and on not one single occasion did she respond in the same vein.
I have seen cases where one party has had a go at the other and then the other one has lashed right back. That did not happen in that case and it is something the father needs to bear in mind although he is probably not capable of doing that at the moment.

Parental Responsibility

The presumption in s. 61DA of the Family Law Act is rebutted by the fact that the father has committed acts of family violence. The father also agreed that the mother should have sole parental responsibility, and it is the only order I could have made.
Parental responsibility is the right to make big decisions about children, for example where they go to school, whether they have elective surgery if they ever need it and whether they travel overseas.
Two good parents normally share that but sharing parental responsibility requires people to be able to discuss matters, listen to the other party’s views and come to a joint decision.
I could not possibly expect the mother to consult with the father about major long-term issues and I am going to make an order for sole parental responsibility.
I frankly cannot understand how the father could expect me to make an order that the mother consult with him before making a decision. That would require communication between the parties and that is simply likely to result in the mother being subjected to abuse.

Conclusion

It is apparent from the orders the father sought at the end of the trial that he recognised his problems to an extent. He certainly recognised that his drug use meant that this Court was not going to make an order that he spend unsupervised time with his children.
He did not make complete concessions about his problems. He did not accept that the conflict in his current home and the police callouts to that home, let alone the previous family violence, were a big problem for him. However he did recognise that the drug use was a problem and the order he ultimately sought about spending time with the children was that he be able to do so if the mother considered it safe and appropriate.
The family report writer did not support that kind of order being made. His comment during cross-examination was:
I do not think that is helpful, the mother being the gatekeeper. With the current level of acrimony, the mother needs to be removed from the situation so she does not have the pressure or the power to make that decision.
I do not consider that the mother would misuse a power but it would put pressure on her if she was made responsible for deciding whether the children spent time with the father. Given the nature of the father’s behaviour to her such an order would be completely and utterly inappropriate. It would also allow the father to go about in the community saying, “I am not seeing my children because the mother will not let me”.
If I make a no time order, and I will explain in a moment why I am going to do so, it will be an order made by the Court, certainly on the mother’s application but an order made by the Court after making the necessary findings. If the father goes about telling people he is being prevented from seeing his children because of the mother he will be wrong. He is being prevented from seeing his children because of an order of this Court.
The children would be unsafe in the father’s care and it would cause serious psychological harm to [Y] to even make an order for supervised time.
There is no sign at the moment that the father is likely to change. He is still using methamphetamine. He accepts no responsibility for his violent behaviour. Whether anything will rub off on him from doing the perpetrators course I do not know but the only appropriate order at the moment is that the children live with the mother, that she has sole parental responsibility for them and that they spend no time with and have no communication with the father.
If the father deals with his propensity to be violence in domestic relationships and completely ceases using drugs and is able to enter into [Y]’s world and accept that [Y] is frightened of him for good reason, then it might be that at some time in the future he could spend time with the children.
To be frank I cannot see that time coming given the father’s lengthy history of drug use and his age, but if that time comes then he can bring another application. However at the moment the children and the mother need peace and certainty and an order for no time and no communication is the right order to make.
I do not ever sit here making such an order with any particular pleasure no matter how poor a view I have of one parent. It is a loss for children, if they cannot know one of their parents. Sometimes a good stepfather can make up to an extent for what the children miss. They can be a good male role model. But the loss of a parent is a significant loss for a child. I do not ever make those orders with a great deal of happiness but they have to be made in a number of cases.

In the father’s case-outline document he rightly recognised that parents do not have rights to see their children, rather children have rights. That is referred to in support of the father’s case that I should make an order that the children keep a connection with him and perhaps spend time with him if the mother considers it safe and appropriate.
However the principle that is referred to is that children have a right to know and be cared for by both their parents. I stress, they have a right to know and be cared for by both of their parents. This father is incapable of caring for his children. He has prioritised drug-use over his responsibility for his children. He cannot care for them and I cannot do anything to change that.
The father needs to understand that he has created this situation. He needs to face up to that or nothing is ever going to change.
The father sought an order about being able to obtain school reports. I am not going to make that order. The mother does not want the father to know where she lives and I have some niggling concerns about her safety. If the father wants to know about his children then he needs to do something about his drug-use and his situation generally. To offer him the sop of being able to get school reports and notices from the school is not something I am prepared to do.
It would be extremely detrimental for the children if he turned up at the school. He is using methamphetamine and could be prone to impulsive verbal, if not physical, violence that could cause problems for the children. There is no benefit to the children in an order that the father receive school reports and information from the school and I am not going to make that order.
I am certainly not going to make another of the orders the father sought, that the mother keeping him informed of her residential address and telephone number.
The father sought that he be able to send the children letters, cards and gifts. The mother said in the witness box that she would not be opposed to that and the family report writer thought that it might not cause harm. I am conflicted about it though because in my view such an order would not be in the children’s best interests.
The giving of gifts has caused problems in this matter already. That is evident in the material and the father’s complaints about what has happened to the gifts. The sending of letters can be invasive for children, particularly [Y], who is saying he does not want anything to do with the father at the moment.
If I make that order the mother will be obliged to at least say to him “[Y], here is a letter from Dad”. That might cause him to be upset and cause him to distrust the mother.
I am not satisfied, despite the fact that the mother said she would agree to it and despite the family report writer’s comment, that making that order is in the children’s best interests. It may make the father feel good but I cannot be satisfied that it is in the children’s best interests.

Passports

Australia is an island. Many Australians like to travel. There are many destinations like Fiji or Bali where Australians like to go, although they often travel farther afield. The mother may want to do those things. It is entirely reasonable.
There is nothing to suggest that she is likely to take the children to live overseas. There is nothing to suggest that she would make inappropriate babysitting arrangements for them. It is quite insulting of the father to suggest that and I am satisfied that I should make the order sought in relation to the passports so that the mother can travel without needing to come back to court.

Surname

The children will not be seeing the father under these orders. They will be living in a household with their mother whose surname is Hanna. The father may bring an application in the future to see the children but at the moment the situation with the father is looking pretty grim.
[Y] would prefer not to have the father’s surname and in my view it would be in the children’s best interests that they have the surname of the parent with whom they live.
I am not going to make it a hyphenated surname. The fact that the surname of “Ethington” is taken away at the moment does not mean their father is expunged from the children’s lives. He is still their father on their birth certificates but the surname the children use will be Hanna, the same as their mother’s. They will also, luckily for them, still be seeing their grandparents so their connection with the Ethington surname will be there for them in that way as well.

I certify that the preceding two hundred and twenty nine (229) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 29 May 2019

[2019] FCCA 1331

26 April 2019

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Family Law

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Jurisdiction

Injunction

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