Hargraves and Ivory
[2017] FCCA 816
•26 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARGRAVES & IVORY | [2017] FCCA 816 |
| Catchwords: FAMILY LAW – Parenting – child aged 3 – dispute about the child’s time with the father – where the mother alleges that the father engaged in coercive and controlling family violence and seeks a no time order – where the father admits two aggressive actions but says his actions were understandable on each occasion and denies being a perpetrator of family violence – where the father says that the mother has fabricated the allegations to keep him away from the child due to jealousy and separate anxiety and the influence of the maternal grandparents – where the court accepts the mother’s evidence – whether the child would be at unacceptable risk of harm if he spent time with the father – relevance of other factors such as the impact on mother of an order for time and the role model the father will be for the child – no time order made. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CC, 61DA |
| Cases cited: Churchill & Wileman(No.2) [2016] FCCA 107 |
| Applicant: | MR HARGRAVES |
| Respondent: | MS IVORY |
| File Number: | NCC 3279 of 2015 |
| Judgment of: | Judge Terry |
| Hearing dates: | 10, 11 and 12 April 2017 |
| Date of Last Submission: | 11 April 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 26 April 2017 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Jennifer Blundell & Associates |
| Counsel for the Independent Child’s Lawyer: | Mr Davies |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
The mother shall have sole parental responsibility for the child X born (omitted) 2013 (“the child”).
The child shall live with the mother.
The father shall spend no time with and have no communication with the child.
IT IS NOTED that publication of this judgment under the pseudonym Hargraves & Ivory is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE
NCC 3279 of 2015
| MR HARGRAVES |
Applicant
And
| MS IVORY |
Respondent
REASONS FOR JUDGMENT
Introduction
X, 3½, has spent little time with his father since his parents separated when he was 18 months old. He has recently had three two hours visits with him supervised at a Children’s Contact Centre.
The father seeks orders that after a further short period of supervised time X commence spending unsupervised time with him. He is willing to start slowly with a few hours at a time and build up to his desired outcome which is that X spend time with him each alternate weekend from Friday to Monday and for half the school holidays once he commences school.
The issue in the case is family violence.
Although the father did not characterise them as such he made a couple of admissions about committing acts of family violence (punching a hole in a door and throwing his dinner in the bin and speaking angrily to the mother) but he strongly denied that he perpetrated chronic controlling and coercive violence. It was his case that the mother was intent on alienating X from him because she could not bear to be separated from him and was jealous of the father having a relationship with him and also because she was being manipulated by the maternal grandparents who dislike the father.
The mother is implacably imposed to X spending time with the father and seeks a no time order. It was her case that the father subjected her to coercive and controlling family violence during their short relationship, that X would be at risk of harm in his care and that she was frightened of the father and would not cope if an order was made for X to spend time with him.
During closing submissions, Counsel for the Independent Children’s Lawyer said that if the court found that X would be at unacceptable risk of harm in the father’s care then a no time order would be appropriate. However he said that the Independent Children’s Lawyer did not accept that this was the case.
Counsel for the Independent Children’s Lawyer said that the Independent Children’s Lawyer accepted that there was significant truth or “quite a deal of truth” in the mother’s allegations. However he submitted that in the light of the nature of the violence that had occurred (which did not include physical violence and certainly not violence putting anyone in hospital), the fact that the father had not committed any acts of violence or intimidation since separation two years ago and the numerous potential negative outcomes for children who were denied a relationship with a parent the court should make orders permitting the father to spend regular time with the child.
The Independent Children’s Lawyer proposed that supervised time continue for a further three months and that unsupervised time then commence. She proposed that after 9 months of time during the day, overnight time commence, that after a further 6 months the child spend two nights with the father each alternate weekend and that when the child commenced school the time be from Friday to Monday. The Independent Children’s Lawyer proposed that school holiday time commence when the child started Year 1.
Implicit in the Independent Children’s Lawyer’s submission was that if the mother found the orders hard to accept she could access counselling to assist her to adjust to the situation.
The mother at all times sought an order for sole parental responsibility. Until final submissions the father was proposing an order for equal shared parental responsibility but during final submissions the Independent Children’s Lawyer proposed that the mother have sole parental responsibility and the father fell in with this proposal.
The evidence
The mother relied on her affidavit filed on 2 March 2017 and the affidavits of her parents Ms M and Mr P filed on 21 March 2017.
The mother also sought to rely on an affidavit of Ms K, a psychologist, filed on 7 March 2016 and (if permitted) a further affidavit of Ms K. Ms K is a psychologist whom the mother has consulted.
The mother’s Counsel informed the court that Ms K was in (country omitted) and was not available for cross-examination. He asked that the affidavits be received and that the fact that Ms K was not available for cross-examination be treated as a matter of weight.
The report attached to Ms K’s first affidavit contained a number of paragraphs reciting information given to her by the mother and then a forceful negative assessment of the father’s character based on that information. Ms K has never met the father. She then expressed a view about the impact on the mother of being required to make X available to spend time with the father. I declined to receive Ms K’s affidavits in the absence of her being available for cross-examination because in my view the prejudicial nature of the evidence outweighed its probative value in circumstances where no opportunity would be available to test the evidence.
The father relied on his affidavit filed on 28 March 2017. During cross-examination reference was also made to his affidavit filed on 16 December 2015.
A family report dated 19 August 2016 was prepared by Dr R, a Regulation 7 Family Consultant.
The mother, her parents, the father and Dr R were cross-examined.
There were some issues with the mother’s evidence in terms of her drawing conclusions that behaviour x was the result of incident y and not critically considering whether there were other possibilities and some of her assertions, such as that the father got into fights at work, could not be independently substantiated, but by and large she impressed me as an honest witness. She was visibly upset on occasions.
The affidavits of the mother’s parents contained a large amount of unhelpful material. They clearly found the father thoughtless and unsociable on occasions but they had no direct knowledge of any incidents of family violence during the parties relationship. They corroborated the mother’s evidence about her weight loss during the relationship and about her ringing them in distress in September 2012.
There were some credit issues with the father’s evidence for example insisting that the neighbours had never called the police out of concern about his treatment of a dog when a police report confirmed that they had. I will refer to these credit issues later when assessing the mother’s allegations about family violence.
The family consultant is a Clinical Psychologist in private practice. Her interviews with the parties were thorough and she had read the subpoena material and was a pleasant and responsive witness but there was nothing in the Curriculum Vitae at the end of her report to suggest that she had training or experience in regard to family violence. When I asked her about this she said that she did not come across this issue much in her practice but had viewed some information videos on the topic at the court registry although she could not remember exactly when. I will have to take this into account in assessing the weight that I can give to her opinions and recommendations.
Background
The mother and father met at the end of 2010 when they were 21 and 28 respectively. They commenced a relationship in (omitted) 2011, began living together at (omitted) 2012 and separated on 27 March 2015.
They have one child, X (a boy) born on (omitted) 2013. Neither party has any other children.
When the parties commenced a relationship the father was living and working in Sydney and the mother was living with her parents in (omitted) and was employed locally as a (occupation omitted). The parties spent frequent time together either in Sydney or (omitted); they both enjoyed outdoor activities and the beach.
At (omitted) 2012 the parties commenced living together in a house at (omitted) on the (omitted). Thereafter the father commuted to Sydney for work and the mother continued to work at the (employer omitted) in (omitted).
It was the mother’s case that she first saw another side of the father in September 2012 when they attended a family wedding and the father became upset and yelled abuse at her for hours. She said that after this the father’s behaviour toward her became controlling and suffocating and that he would constantly check up on her whereabouts, check her mobile phone and dictate to her about what she could wear. She alleged that he began to beat the dogs with a rubber hose or a thong and hit them with his fist and would become verbally abusive if dinner was not cooked on time or cooked to his liking.
The father denied these allegations save for admitting that he suggested to the mother that she not wear certain clothes because she might attract negative attention from Muslims and could be harmed.
In (omitted) 2013 the mother discovered that she was pregnant. She said that the father continued to be verbally abusive and questioned whether the baby was his and in August 2013 during an argument he punched a hole in the door which frightened her.
The father made some limited admissions about these matters and I will discuss them in further detail later.
X was born on (omitted) 2013 and after his birth the mother (who had ceased work after she found out she was pregnant) was his primary carer. The mother said that the father had no interest in caring for X and when he was about a month old again questioned his paternity. She alleged that the father would yell at X to be quiet and continued to beat the dogs and threaten the mother.
The father made no admissions about these allegations
The mother said that the father was verbally abusive on occasions after X was born and in January 2014 yelled abuse and punched holes in the door during an argument causing the mother to leave and go to her parents’ home for the night.
In March 2014 the parties moved to a different address. The mother alleged that the verbal abuse and denigration continued. She alleged that the father continued to complain about her housekeeping and continued to go through her mobile phone and threaten her over alleged infidelity. The mother began spending more time at her parents’ home. She said that in May 2014 the father forcefully pushed her during an argument and later during the argument threatened to kill her. She said that as a result of what was happening in the home she lost interest in having sex with the father and he began to force her to have sex. She also alleged that in August 2014 he was very aggressive to X and made him cry.
The father denied all of these allegations save that he admitted making X cry. However he said that there was a reasonable explanation for this incident which arose from his inexperience and the mother’s advice.
After an argument between the parties on 27 March 2015 the mother and X went to the maternal grandparents’ home. The mother said that while she was there the father threatened her during phone conversations and she told the maternal grandmother that she thought she needed an AVO. The maternal grandmother took the mother to the police station and a provisional Apprehended Domestic Violence Order (ADVO) was made by the police.
A final ADVO was made on 6 May 2015 for twelve months.
The father was not able to spend any time with X after 27 March 2015. On 16 December 2015 he filed an application seeking orders which would permit him to do so.
On 8 March 2016, the first return date of this application, the parties attended a child dispute conference with Mr C, a family consultant. Mr C encapsulated the problem in the matter as follows:
If the father is correct the mother has inappropriately and maliciously prevented X from having a relationship with the father and extended paternal family. This is a serious form of abuse.
If the mother is correct the father has a very serious problem with domestic abuse and the father’s ongoing denial of the problem means that X would be at risk if he had any communication with the father. There would also be a risk to the mother’s psychological health and functioning. [1]
[1] Exhibit I
Mr C went on to say among other things:
It is recommended that no contact between X and the father occur in any format until the Court has obtained and considered at least some independent information.
As a result an order was made requiring the parties to issue subpoenas and on 10 May 2016 a Family Report was ordered.
The report was released on 24 August 2016 and after the release of the report the matter was listed for a final hearing.
On 21 September 2016 the father applied for an interim order that X commence spending time with him. The application was opposed by the mother but supported by the Independent Children’s Lawyer and on 8 November 2016 I made an order that X commence spending supervised time with the father at the (omitted) Children's Contact Centre.
The parties had to go on a waiting list and the first visit took place on 10 February 2017. There were two further visits prior to the trial.
The mother has continued to live with X at her parents place since 27 March 2015. She is studying with a view to returning to the workforce in the not too distant future and intends to establish a home of her own in due course.
Since the beginning of 2016 X has been attending some sessions at (omitted) Pre-School.
After the mother and father separated the father formed a relationship with a lady called Ms K who has two children aged 8 and 15. They began living together in (omitted) and Ms K accompanied the father to the family report interviews in August 2016 but they have since ended their relationship. The father now lives alone in a studio apartment at (omitted) and is working for (omitted).
The family violence allegations
The family violence allegations the mother made are at the core of this matter.
Without repeating almost every paragraph about family violence in the mother’s affidavit, it is difficult to provide the full flavour of the mother’s evidence but in summary she described:
·A boyfriend/girlfriend relationship from late 2011 until (omitted) 2012 during which the parties had fun and there were no issues with the father’s behaviour. She said that she saw holes in the door of the home the father lived in and that the father told her that his ex was a psycho and he put the holes in the door when they fought but she thought nothing of it at the time. The mother said that this was her first serious relationship and that the father told her that they were soul mates.
·A period of cohabitation from (omitted) 2012 to September 2012 in which there were no incidents of family violence.
·A prolonged incident at a wedding in September 2012 when the father yelled at her and called her a slut after she danced with one of his male family friends at a wedding and threw his engagement ring at her head. The mother said that the father called her a fucking slut and a fucking bitch repeatedly over a lengthy period of time before falling asleep. She said that she was scared and rang the maternal grandmother but when the maternal grandmother said that she would call the police the mother told her not to.
Next morning the father apologised and asked for another chance and said that he could not control his alcohol.
During the hearing the mother described how she blamed herself at the time, thinking that it was her fault because she had danced with the wrong person and spoken to the wrong person.
·From October 2012 the father began checking up on her whereabouts and asking why she was late home. She became anxious and said as follows:
...I started to then send Mr Hargraves text messages or calling him on his mobile phone to let him know if I was leaving the house, going anywhere after work, when I arrived at my destination, when I was leaving that destination, and when I got home.[2]
[2] Paragraph 25 of the mother’s affidavit filed on 2 March 2017.
·By November 2012 the father was checking the mother’s mobile phone every day.
·From December 2012 the father began telling her that she was not allowed to wear certain things and dictating what she could and couldn’t wear and who she could talk to. She said as follows:
…Mr Hargraves would say to me words to the effect of, “you are not allowed to wear……”. Mr Hargraves would also dictate to me what I could and couldn’t wear and to which people I could talk to. Mr Hargraves would be critical if I wore say the colour pink. Mr Hargraves would say to me words to the effect of “You can’t wear that (pink jumpsuit) because you are trying to attract attention and trying to attract attention from Muslims and if you attract attention, they will chop your head off and kill X as well”. Mr Hargraves would also say to me words to the effect of “You’re a typical blonde Aussie chick. They would target you because of that and because you have an Australian tattoo on your neck”.[3]
[3] Paragraph 30 of the mother’s affidavit filed on 2 March 2017.
The mother also said as follows:
I really missed the man I had fallen in love with in 2011. I did think though, that if I just persevered with the relationship and didn’t give Mr Hargraves any reasons not to distrust me that he would love me again and treat me the way he used to treat me back in 2011.[4]
[4] Paragraph 30 of the mother’s affidavit filed on 2 March 2017.
·From about December 2012 the mother noticed the father beginning to hit the dogs with a piece of black rubber or hose or a thong and it became so frequent and several days a week that the neighbours started telling him to stop hitting the dogs to which the father would respond “Fuck off.” She also said that he hit the dogs on the nose with his fist.
·From about December 2012 the father would become abusive if dinner wasn’t cooked on time or cooked properly. She described the father saying words to the effect of:
If you don’t know how to fucking cook, don’t cook at all. I’m at fucking work all day, dinner should be ready. You’re a housewife so sort your shit out.[5]
[5] Paragraph 35 of the mother’s affidavit filed on 2 March 2017.
She also said that later in the relationship:
If the house was slightly dirty Mr Hargraves would say to me words to the effect of “It’s disgusting. You’re the house wife that gets to stay home all day this is your job”. I would try my best to keep the house very clean and have dinner cooked at the same time every day so Mr Hargraves wouldn’t get angry with me.[6]
[6] Paragraph 67 of the mother’s affidavit filed on 2 March 2017.
·In February 2013 the mother found out that she was pregnant and soon after this she gave up work by agreement between the parties. She described the father yelling at her on occasions and saying things such as:
It’s over, you can get an abortion if you want to or I’ll be a single dad and take the baby whenever I want” and “You’re a slutty pants. How do I know the baby is mine and not someone else’s”. Mr Hargraves would say these things to me if for example, he didn’t get to go (hobbies omitted), dinner was not ready in time, if he had had bad day at work, if the dogs were not behaving or if he was paranoid that I was cheating on him.
·In August 2013 the father punched a hole in the bedroom door in anger. The mother went to her parents’ home for the night. The following day the father apologised and said “You made me angry to (sic) that’s why I did it.”
·In September 2013 the mother asked her sister to take one of the dogs hoping that the father would be less angry if there was only one dog.
·X was born in (omitted) 2013.
·In January 2014 the father began screaming at the mother because she had given some (omitted) to a person called (omitted) and accused her of sleeping with him. The mother said that she tried to stay calm and not react but that made the father worse and he began punching holes in the bedroom door. The mother got up with X to move to another room and the father yelled:
all of this and you are all replaceable. How do I know X is mine I want a DNA test. Don’t fucking be here when I get back
The mother went to her parents’ home with X.
·The mother said as follows:
I started hiding the holes in the doors by hanging clothes such as dressing gowns in front of them in case family or friends came to visit. I was ashamed. I believed that it was my fault and that I caused Mr Hargraves to so angry that he would punch holes in the walls. I had no other explanation.
·The father would yell and scream abuse if the mother did not answer her phone. She said that from April 2014:
Mr Hargraves would by now, on a daily basis threaten me by saying words to the effect of “Your gonna make me lose my shit and throw this plate (dinner plate) across the room”.[7]
[7] Paragraph 71 of the mother’s affidavit filed on 2 March 2017.
·On 27 April 2014 the following occurred:
On 27th April 2014, I was standing in the lounge room rocking X to sleep. Mr Hargraves came angrily out of his bedroom into the lounge room holding men’s underwear in his hand. Mr Hargraves threw the underwear at my head and screamed at me words to the effect of “whose underwear are these. You are cheating on me”. Mr Hargraves also said to me words to the effect of, “you know I would cut your head off if you ever cheated on me”. I can recall saying to Mr Hargraves in reply words to the effect of, “I have never cheated on you, and I don’t know where the under wear came from”. Mr Hargraves continued to death stare me and abuse me saying to me, “you’re lucky you are holding X right now or I would throw you off the balcony”. Mr Hargraves continued to be abusive by screaming at me words to the effect of “How do I know X is even mine. You’re a fucking slut. I want a DNA test for X. If you say no then you have something to hide and I will know that X is not mine”.[8]
[8] Paragraph 73 of the mother’s affidavit filed on 2 March 2017.
·The mother also said as follows:
By April 2014 I felt like I was walking around like a Zombie when Mr Hargraves was home. I didn’t speak to Mr Hargraves unless Mr Hargraves spoke to me. I was stopping X from doing things that I knew Mr Hargraves would lose his temper about such as playing with a noisy toy or loudly talking, so that Mr Hargraves wouldn’t yell at X. I had to kiss and greet Mr Hargraves nicely when he got home from work otherwise if I didn’t, Mr Hargraves would death stare me and accuse me of hiding something. Mr Hargraves would say to me “you’re hiding something. How do I know you’re not having other guys up here when I’m not here”. He would even turn to X and say, “what’s your mum hiding” and “if she’s done anything wrong, I’ll kick her arse”.[9]
[9] Paragraph 77 of the mother’s affidavit filed on 2 March 2017.
·In May 2014 the father became angry with the mother while they were out walking with X and called her a fuckwit and told her to piss off. The mother went to her room to pack some clothes for X and her so that she could leave and the father followed her in and pushed her hard out of the way causing her to fall forward 5 metres. The mother said that she tried to stay calm for X’s sake. The father took X onto the roof of the unit block but brought him back after about 5 minutes and eventually gave X back to her. The mother said:
…I calmly spoke to Mr Hargraves and said to Mr Hargraves words to the effect of, “your behaviour is inappropriate and you are never to act like that in front of X”. Mr Hargraves replied, “that wasn’t even bad, I could’ve choked you out and thrown you in the channel and X wouldn’t even know”. He made this threat to kill me as I held X in my arms.[10]
[10] Paragraph 39 of the mother’s affidavit filed on 2 March 2017.
·The father frequently pressured her to have sex and accused her of cheating on him if she did not comply.
·On 8 August 2014 the following occurred:
I can recall on 8th August 2014 when X was 11 months old, an incident whereby Mr Hargraves was holding X and X in play, hit Mr Hargraves on the chest. I will never forget Mr Hargraves death staring X and in an angry voice saying to X words to the effect of, “Don’t do that or I will drop you on your arse”. A few seconds later X hit Mr Hargraves again. Mr Hargraves death stared X and angrily said to X as he held his fist right up to X’s jaw, “do not do that to me”. I then intervened and said, “don’t do that to him” and Mr Hargraves replied, “I can do that to my son if I want”. And I replied, “you never threaten to hit or punch a child that is emotional abuse”. Mr Hargraves angrily said to me, “fine you deal with him then”, and put X on the floor. I raced over to pick X up, X was crying. Mr Hargraves yelled at me, “you are accusing me of abusing my son” as he stormed down the hall to his room. And I yelled after him, “yes that is abuse”. And Mr Hargraves replied, “If you don’t watch out I will knock you out”.[11]
[11] Paragraph 86 of the mother’s affidavit filed on 2 March 2017.
·On about 9 August 2014 the following occurred:
… Mr Hargraves had again been screaming at me words to the effect of: “Fucking bitch. You can fucking leave. I’ll take X whenever I want. If you don’t let me see X, I’ll make your family suffer. It’s over. When do you want me to pick him up. I’ll start him on formula”. I was holding X and X was crying. I said to Mr Hargraves words to the effect of, “what you are saying and doing is emotional and verbal abuse” and Mr Hargraves replied. “you don’t know what real violence is, I will throw you off the balcony and then you will know what violence is”.[12]
[12] Paragraph 87 of the mother’s affidavit filed on 2 March 2017.
·About three days later the mother called a woman’s help line for advice.
·The mother said that she thought it was her fault that the relationship was declining.
·In paragraph 58 of her affidavit the mother said as follows:
From on or about 2013 and onwards, Mr Hargraves’ anger towards myself and X worsened. I observed that Mr Hargraves couldn’t control his anger. Mr Hargraves would repeatedly say to me words to the effect of, “you’re lucky you are breastfeeding X or I would just take him”. It was from 2013 that I never left Mr Hargraves alone with X because of my fears for X’s safety. Mr Hargraves’ behaviour was becoming more and more aggressive. By this I mean, Mr Hargraves would threaten to throw acid in my face if I cheated on him. Mr Hargraves would say to me words to the effect of “If you ever cheated on me, I’ll throw acid on your face just like that guy did to his girlfriend on the news”. Mr Hargraves would start fights with strangers when we were out in public sand (sic) call them names such as “You’re a cunt”. Mr Hargraves would yell at X and I if X woke him up. Mr Hargraves would yell words to the effect of “Shut the fuck up” or “if you don’t shut him up, I will”. Neighbours started calling the Police because Mr Hargraves was beating (omitted) our dog several times a week with a piece of rubber or hose then chaining him up. I know this because the police would arrive at our home. I was home when the police arrived. The police would also attend our home because Mr Hargraves had caused fights with the neighbours or random people on the street. The police attended our home on approximately 5 occasions between 2012 to 2014. I then started looking for a new place to live with X at (omitted).[13]
[13] Paragraph 58 of the mother’s affidavit filed on 2 March 2017.
·In March 2014 the mother and father moved to new accommodation. The mother said that by this time she was walking on eggshells and experiencing anxiety and fear about the father’s behaviour.
·The father insisted on having a room to himself in the new unit and forbade the mother to go into his room without his permission. She said as follows:
… On the day we moved in, Mr Hargraves said to me words to the effect of, “you and X can sleep in the second bedroom and not the bigger one with the ensuite because people will see you and X through the window. You are a slutty pants because you won’t shut the curtains”. Mr Hargraves also said to me words to the effect of, “the bedroom blinds have to be down all the time or I’ll lose my shit”. If the blinds were not down, Mr Hargraves would abuse and yell at me. Mr Hargraves would yell at me words to the effect of “You’re a fucking slut. You want people to see you naked. You’re so disrespectful.” X was always present when Mr Hargraves was yelling at me.[14]
·The mother remained in the relationship and the father made excuses for his behaviour. The mother said as follows:
At this stage I did not know that X and I were victims of domestic violence as I had never been exposed to this violent behaviour before. Mr Hargraves would say to me every time he lost his temper words to the effect of “I get angry because you make me angry: or, Mr Hargraves would say “I’m only angry because I’m hungry”, or Mr Hargraves would say, “I’m angry because I’m stressed”. I believed Mr Hargraves that he was angry towards me because I made him angry or because he was hungry or stressed. I stopped believing that Mr Hargraves’ abusive behaviour towards me was my fault or caused as a result of his hunger or stress when he started to threaten to kill me and hurt X.
I previously though life would be easier for Mr Hargraves if we got rid of our dogs and we moved away from the neighbours Mr Hargraves was fighting with. I thought that by moving house and getting rid of the dogs that Mr Hargraves wouldn’t be as stressed or angry. We moved to the (omitted). This however did not work and Mr Hargraves became more violent as time went on.[15]
·On 27 March 2015 the father threatened the mother saying “if you don’t stop breast feeding and don’t let me see my son so I can take him whenever I want I will gut you” and “tell you what if you show your face, I’ll fuck you up”.
[14] Paragraph 63 of the mother’s affidavit filed on 2 March 2017.
[15] Paragraphs 65 and 66 of the mother’s affidavit filed on 2 March 2017.
The mother said that during the relationship the father told her stories about having been abused as a child including having boiling water poured on his arms by his mother. She said that when the father told her these stories she felt sorry for him and made excuses for his behaviour.
The mother stated on numerous occasions in her affidavit that she was scared or intimidated by the father’s behaviour and some examples have been included above of her trying to placate him and head off angry outbursts by amending her own behaviour. She described stopping eating and losing a significant amount of weight and the father agreed that the mother became very thin.
The mother’s story if true establishes, as Mr C noted in the Child Dispute Memorandum in March 2016, a very serious problem with domestic abuse. Family violence is defined as follows in S4AB of the Family Law Act 1975:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.[17]
[17] Section 4AB of the Family Law Act 1975.
The father denied that the mother’s story was true. He told Mr C that he thought the maternal grandparents were behind the allegations of domestic violence and in his affidavit filed on 28 March 2017 he said as follows:
Ms Ivory’s claims in her affidavit about all sorts of violent behaviour by me to her and also claims I had an abusive background are all fabricated nonsense.
The father made some admissions about his behaviour to the family consultant and during cross-examination but they were very limited and on each occasion he justified his behaviour and certainly did not see it as constituting family violence.
The father admitted checking the mother’s phone twice but alleged that she told him that she had been unfaithful to all her previous boyfriends with her childhood sweetheart and that he received a Facebook message from an undisclosed sender suggesting this was the case and the mother allowed him to go through her phone to prove that she had nothing to hide.
The father admitted punching holes in a door but told the family consultant that it was a one off event prompted by him having concerns about the mother’s fidelity. He admitted throwing his dinner into the bin and saying “angry words” to the mother but said that it was a one off event and occurred because the mother served him up raw food and he was tired, hungry and angry.
The father admitted that he questioned X’s paternity but said that it only happened once and it happened because he was given cause to question the mother’s fidelity.
During cross-examination the father admitted that he asked the mother not to go out dressed in a particular way but said that it was because he genuinely feared her attracting the attention of Muslims and being abused. He said that he was not attempting to control her, he was attempting to keep her safe.
In his trial affidavit the father said that he felt under enormous pressure during the relationship because he was the sole income earner and needed to commute to Sydney to work and he said as follows:
I acknowledge there were times when the pressure of this life made me feel inadequate and I was tired and spoke at times more harshly than I should.
The father made certain admissions to the family consultant about the incident with X in August 2014 although he does not seem to have made clear that X was 11 months and not 18 months old at the time and that the incident occurred eight months before separation. The family consultant reported his description of what occurred during this incident as follows:
The father described the event where he held up a closed fist to the child. He stated that the child was going through a stage of hitting and the mother had directed the father that they would put the child down and ignore him when it occurred. The father stated that the mother and the maternal grandmother devised the strategy and he was happy to follow their lead. The father stated that on this one occasion the child hit the father in the face and the father held up a pointed finger to the child and said “no. we don’t hit in this house”, however he continued to hold the child and the child then hit the father again. The father took hold of the front of the child’s t-shirt and in a playful way said “do you want a knuckle sandwich?” the father stated that at the time there was no threatening sound to his voice, he was half playing half trying to discipline and he did not see any harm in it. He stated that his father used to say it to him.
The father stated that following this, the father was sitting on the floor and the child approached him. The father stated that the child attempted to cuddle the father however the father sat up and continued to give the child a stern look. The father stated that the movement of the father sitting up straight and holding his body rigid knocked the child off balance and he fell over. He stated that the child began to cry and the mother responded with heightened distress that encouraged the child’s distress. The father stated that he greatly regrets this action as it is was one of the last times he saw the child and he would do anything now for a cuddle. The father stated that he realizes now that the cuddle was the child’s way of trying to say sorry for hitting and the father should have been quicker to recognize this and accept the child’s attempt to connect with him. However at the time he thought he was still in the role of disciplining the child and so the stern look and lack of comfort was his way of indicating that hitting is not OK – the father stated it was also in line with the mother’s instructions of ignoring the child if he hits. The father greatly regrets it now however noted that the mother has continued to make the whole incident look far more protracted and aggressive than it was. The father stated he was simply a new dad trying to help his child learn not to hit.
The family consultant said that she considered the father to be “authentic and transparent” but I question why the cumulative admissions and assertions by the father did not create a sense of unease in her and why she did not consider the possibility that the father was minimising his behaviour or consider the implications of the behaviour to which he admitted.
The father admitted questioning the mother’s faithfulness and checking her phone (only twice according to him), admitted that the parties had significant arguments on occasions, admitting punching a door, admitted throwing his dinner in the bin and speaking angrily to the mother, repeatedly expressed shock, disbelief or astonishment at the mother’s numerous allegations given that the parties had a unique, special and loving relationship, described holding a closed fist up to his child and recounted the mother telling him that this action was child abuse and family violence and expressed astonishment at her response, and said that the mother was alienating the child from him because she was jealous and was unable to tolerate being separated from the child but later said that he felt that even now if the maternal grandparents would step back he and the mother would be able to work it out for themselves.
The father was, as Counsel for the Independent Children’s Lawyer pointed out, calm and respectful to the family consultant and presented as calm and respectful when speaking to her about the mother but this does not exclude the possibility that he is a perpetrator of family violence as experience teaches.[18]
[18] Pitman & Bond [2014] FCCA 2126
Unlike the family consultant, I question the veracity of the father’s account, and not just because of the unease created by what he admitted to but because of disparities in the evidence he gave on different occasions.
In his trial affidavit the father said that the mother’s claim that he had an abusive childhood was “fabricated nonsense” but he told the family consultant that he was suffering ongoing and significant neglect and abuse while in the care of his biological mother. He also told the family consultant that his adoptive parents’ arguments were loud and aggressive. He said that he and his siblings used to hide and felt scared when the parents fought but stated that they had never hit one another.
In his affidavit filed on 16 December 2015 however the father said as follows about his upbringing in his adoptive family:
My parents would regularly fight, usually verbal but sometimes physical. This continued for as long as I can remember. I began to believe that verbal and physical arguments were normal.[19]
[19] Paragraphs 5 and 6 of the father’s affidavit filed on 16 December 2015.
During cross-examination, the father admitted that there had been physical violence in the relationship between his parents. He said that it was because his mother was greedy and that on an occasion when his father pushed her it was because he caught her going through his pockets.
The family consultant noted that the father spoke respectfully of the mother at all times during her interview with him and said that she was a good mother. In his affidavit however the father complained that the mother “coveted” X and refused to return to work after X’s birth, placing financial stress on the family and he was critical of her in other parts of the affidavit.
The father gave the family consultant an account of what happened after the parties found out that the mother was pregnant which differed from the account in his trial affidavit. The family consultant reported as follows:
The father stated that he and the mother planned the pregnancy although they did not know it would occur so quickly. He stated that when the mother found out she was pregnant the father was completely overwhelmed. He stated that for the first time in his life he had a blood relative. He stated that the emotion he felt towards the child and the mother for being able to provide this was hard to describe. The father stated that for a short while he became overprotective of the mother. He stated that the maternal grandmother had 8 miscarriages and he was worried that the mother may experience the same. He stated that he and the mother spoke about the best way to move forward and it was decided that the father would continue working and the mother would stop work and relax. The father stated that the mother did some casual work however spent most of her days relaxing at the beach growing a baby.[20]
[20] Paragraph 58 of the Family Report.
In his trial affidavit the father said as follows:
Ms Ivory gave up work the instant she discovered she was pregnant. Ms Ivory claimed her mother had experienced numerous miscarriages and she was fearful of losing X to a miscarriage. To my knowledge she has not worked since and remains reliant on her parents and the government for her emotional and physical wellbeing as well as food warmth and shelter.[21]
[21] Paragraph 22 of the father’s affidavit filed on 28 March 2017.
The father denied that he had abused the parties’ dogs and said that any action he had taken had been a reasonable effort to discipline them and he denied that the neighbours had called the police over his treatment of the dogs. However there is a COPS entry for 25 September 2013 recording that the police attended at the father’s home because of a complaint that the father had tied up a dog with a muzzle on and kicked the dog and hit it with a rubber hose pipe. The father admitted putting a muzzle on the dog and tying him up but denied abusing the dog and said that his neighbour had started ringing the police with false allegations. Police did not observe the dogs to be afraid of the father.
The unreliability of the father’s evidence is also illustrated by the varying evidence he gave about the circumstances of the relationship ending. He told the family consultant that on 27 March 2015 the mother went to her parents’ home and applied for an ADVO but later contacted him and told him that she wanted to return home (which the mother agreed occurred). He told the family consultant that he informed the mother that he needed the night to think about things and that he fully expected the mother and child would return the next day and they would continue to work things out but this did not happen and he had not seen X since.[22]
[22] Paragraph 84 of the Family Report.
In his trial affidavit the father said as follows:
The day I finally ended the relationship was when I identified there was never going to be a compromise from Ms Ivory nor did she ever display a desire to return to work even part time to assist our family’s financial situation.
…The next evening whilst returning from work on the train she text me and told me she was coming home. This was after a day of texting me constantly whilst I was working and me still trying to get my head around the fact she was never going to leave her extended family. I told her she should stay at her parents as I could no longer see any way we were going to find a solution to our problems and I could no longer maintain the harsh regime of working and commuting and her demands to spend the majority of my spare time with her family.[23]
[23] Paragraph 26 of the father’s affidavit filed on 28 March 2017.
Conclusion about the family violence allegations
The father has consistently maintained that the mother is fabricating the allegations of family violence and the family consultant found him plausible, indeed she described him as having insight into adequate parenting capacity, empathy and flexibility.
The family consultant did not reflect as I must, on whether the father’s admissions about punching a hole in the wall (once), and throwing his dinner away in anger while speaking angrily (once) mean that his smooth and plausible denials of any further acts of aggression should be questioned.
Even on the father’s evidence he committed acts of family violence. His actions in punching a wall and throwing his dinner away in anger while speaking angry words to the mother. However I cannot take the easy way out and leave it at that and say that I cannot determine whether the remainder of the mother’s allegations are true. That would be a cop out. I must give serious consideration to whether the mother’s allegations are true and whether the father’s admissions represent the tip of the iceberg. Just as the mother might have invented a plausible story the father might have invented a plausible response.
It is possible that some of the mother’s evidence, when she purports to remember exact sentences which were said and the exact period in which some events occurred, has an element of reconstruction. The mother did not commence keeping any record of what was occurring until sometime in 2014. Some of her evidence was also not born out by the documents. She alleged that the police were called to the parties home three times and the police records which were tendered mention only two callouts, one by the neighbour complaining about the father’s treatment of the dogs and a later one by the father complaining about the neighbour, and the father produced a letter from an employer which he said established that he had not had problems with the employer as the mother suggested.
However I am satisfied for the following reasons that the mother’s evidence about the events during the marriage which I have summarised above should be accepted:
i)Her evidence was consistent and coherent and she was not shaken in cross-examination or shown to have given inconsistent or incredible evidence.
ii)The mother’s distress during the family report interviews and at times during the hearing is consistent with her claims that she fears and is intimidated by the father.
iii)There was nothing to suggest that it was likely that the mother had a pathological need to keep the child to herself and prevent the father having a relationship with him for no good reason. There was nothing to suggest that she had any mental health issues or a pathological attachment to her parents. She left home at 22, four months after forming a relationship with the father, remained in the relationship for three years and separated from him when X was 18 months old.
iv)The fact that the mother did not make any reports to the police or tell her parents or anyone else about what was happening is consistent with the behaviour of a victim of family violence and consistent with the mother’s evidence about not recognising the nature of what was happening, feeling responsible for making the father angry, feeling that she could control the situation by moderating her own behaviour, feeling sorry for the father and feeling ashamed about the situation in which she found herself.
v)The father made some admissions: about punching a hole in a door, throwing a plate of dinner and dictating to the mother about what she could wear. It is more likely that he committed further acts of control and coercion than that the mother has fabricated evidence about other controlling and coercive behaviour.
vi)The father’s evidence was not consistent and coherent. To the family consultant he acted as if he had placed the mother on a pedestal, describing her as his soul mate and the love of his life and a good parent and making no critical comments about her. In his trial affidavit he was very critical of her.
vii)The father denied that neighbours called the police about his treatment of dogs when they had in fact done so and there are other examples in the evidence of the father either giving inaccurate accounts or giving different accounts on different occasions.
I am satisfied on the balance of probabilities that I should accept the mother’s evidence about the father’s actions during the relationship.
I frankly cannot understand why Counsel for the Independent Children’s Lawyer chose to leave the matter at a submission that the Independent Children’s Lawyer believed that there was substantial truth or “quite a deal of truth” in the mother’s allegations. He did not suggest on what basis the court could select some of the allegations and decide that they were true and reject others, and did not indicate which allegations the Independent Children’s Lawyer considered were plausible and which were not. In a case where risk must be assessed and the allegations ranged from complaints about the mother’s cooking and housekeeping to allegations of escalating verbal abuse and threats to kill, it was essential in my view that these issues be considered.
I finally note that it was not in dispute that the father was charged with assault occasioning actual bodily harm arising out of an incident at a hotel on 21 May 2005 and was convicted and ordered to do 250 hours community service. He has not been charged with any further criminal offences and although convictions for offences of violence are sometimes relevant when assessing whether allegations by a domestic partner are true, I do not consider the conviction relevant in this case.
The child’s best interests
Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act 1975 contain the matters to which I must have regard in order to determine the X’s interests.
The primary considerations in s.60CC(2) are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm as a result of being exposed to or subjected to abuse, neglect or family violence.
S.60CC(2A) provides that in applying the considerations in subsection (2) the court must give greater weight to the considerations set out in s. 60CC(2)(b).
I intend to defer consideration of the primary considerations until I have made findings about the additional considerations in s.60CC(3) which include a consideration of family violence in a broader context (not just whether it has occurred but things such as the perpetrators attitude to it, his insights into the effects of it, whether it is likely to reoccur and the likely impact of future exposure to family violence on the child) as well as a consideration of such things as parenting capacity and the likely effect of a change in the child’s circumstances.
The first of the additional considerations is any views expressed by the child and the weight to be given to those views.
X is 3 and is too young to express a view.
I must consider the nature of the child’s relationship with each of his parents and any other person including a grandparent of the child.
The mother has been X’s primary carer since his birth and has been his sole carer since the parties separated. The family consultant observed that the mother and X:
Presented with a loving and well developed mother and child relationship.[24]
[24] Paragraph 89 of the Family Report.
X is also reported to have and was observed by the family consultant to have a good relationship with the maternal grandparents.
X did not see the father at the family report interviews. The contact centre notes show that he did not recognise the father on the first visit on 10 February 2017 but played happily with him and on the second visit he went straight to the father at the start of the visit. It took some time for him to allow the father to join in his play on this visit but he eventually did so and the visit ended happily with a hug.
On the third occasion X went down the hall to meet the father and they played during the session.
These visits establish that X is not afraid of the father although that could be because he simply does not remember him. His relationship with the father at present is extremely limited.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child.
The mother is financially maintaining the child. The payment or otherwise of child support by the father was not raised as an issue during the proceedings.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the child, to spend time with the child and to communicate with the child.
This is not a relevant issue. The father has spent little time with the child since separation and has not participated in decision making but that is not of his choice.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of separation from his parents or any other child or person including any grandparent or other relative of the child with whom he has been living.
Counsel for the Independent Children’s Lawyer elicited evidence from the family report writer about the negative impacts on a child of not having a relationship with a parent. I accept that these outcomes are possible although I also accept the mother’s evidence that at his present age the absence of his father from his life is not impacting on X.
I am required to take into account the impact on the mother of an order that the child spend time with the father.
It was the mother’s case that she would be highly distressed if required to comply with an order that X spend time with the father. There was no independent evidence about her mental state because I did not allow Ms K’s affidavits in but she was visibly distressed at times during the hearing.
The mother’s counsel submitted in effect that given that the mother described being subjected to coercive and controlling family violence over a period of 2 ½ years which included yelling and verbal abuse, attempts to control her life and movements including by demanding to know her whereabouts, checking her phone and dictating to her what she could wear, punching holes in doors and one incident of pushing, forced sexual intercourse and threats to seriously harm or kill her that the court should accept that it would be difficult for the mother to cope if she was required to comply with an order that X spend ongoing or unsupervised time with the father.
The mother was also distressed at the family report interviews but the family consultant questioned whether the mother’s distress was proportional to the situation she found herself in. She said as follows:
Of note is the mother’s highly distressed and vulnerable state prior to and during the family assessment interview. The mother was hypervigilant, shaking and tearful. She presented with an unusually timid demeanor. Her phone call prior to the family assessment interview and her expressed fear during the family assessment interview indicated that the mother was highly fearful of the father, and hypervigilant regarding not having any contact with him. Given that the mother has not had any contact with the father for over 15 months, the family consultant was of the view that the mother’s presentation appeared to be out of proportion to the situation which suggests a vulnerability in her personality, resilience and coping skills.[25](my emphasis)
[25] Paragraph 104 of the Family Report.
The family consultant did not provide any basis for the opinion contained in the last sentence, in other words an opinion that by now the mother should have gotten over what had occurred during the relationship, and in light of my findings about what occurred I do not accept this opinion.
There is no doubt that during the marriage the mother lost weight; the father agreed that this was the case. She presented as vulnerable and distressed during the hearing before me and at the family report interviews and given the age of her son and the incidents she described and the father’s non-acceptance of responsibility for his actions, I consider that it is open to me to find that there is a real risk that the mother would struggle to cope if an order was made for the father to spend unsupervised time with the child and that this may have an impact on her health.
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The mother lives in (omitted) with her parents. She said that she intended to establish a separate home for herself and X in due course. It is reasonable to assume that she will look for something in this area although the issue was not explored.
The father is living on the (omitted) which is within a distance which makes regular time between the father and X practicable.
I must consider the capacity of each parent and any other relevant person to provide for the needs of the child including his intellectual and emotional needs.
The mother is caring well for X on a day to day basis. She has enrolled him at pre-school and clearly has the capacity to provide for his intellectual needs.
Given my findings about the family violence, it does not follow that if I ultimately determine that it is in X’s best interests to spend time with the father, that the mother has emotionally abused him by refusing to agree to time occurring. There is good reason for the mother to fear that the child might be at risk in the father’s care and to question whether the father is an appropriate person to be in the child’s life.
The mother gave evidence that X had difficulty separating from her to attend pre-school and was unsettled after visits with the father. The contact centre notes do not suggest that X has been unsettled at the end of his visits, although that is not to say that he has not been unsettled on returning home. However, I do consider that some of the mother’s statements about X being unsettled or anxious may reflect the mother being unsettled or anxious for him.
Counsel for the Independent Children’s Lawyer appeared to wish me to conclude that because the father had played appropriately with X at the contact centre all would be well on unsupervised visits, but the mother’s evidence was that all went well in her relationship with the father for the first nine months so I cannot draw that conclusion, and the father has not had to cope with any challenging behaviours by X at the contact centre.
I cannot make any findings about the father’s parenting capacity. The mother’s evidence, which I accept, is that prior to separation he did not have much of a hands on role in caring for X. However absent the issue of violence, the father’s lack of experience in caring for X would not necessarily mean that he should not spend unsupervised time with him. He could undertake a Triple P parenting course and short periods of time to start with would allow him to gain some skills without putting X at unacceptable risk of harm.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.
X is three years old and is not capable of protecting himself or speaking out if something goes wrong for him.
X was exposed to family violence during the parties’ relationship but there was no evidence that he had suffered any ill long term effects as a result. The mother alleged that he was anxious about being separated from her and anxious after the contact centre visits but he did not appear to recognise the father nor did he show fear of him and there was no evidence that he had any behavioural issues.
I must consider any family violence involving the child or a member of the child’s family.
I am satisfied that the father subjected the mother to coercive and controlling violence for the majority of their relationship.
The father made no real admissions about his behaviour and one of my concerns about the family report is that the family consultant did not express any concern about the father’s exculpatory comments about the violent incidents he did admit to.
She noted that he admitted punching a wall (although not apparently a hole in door) and that he said that this was not ok, however it was not something he had done previously or since. She did not comment on the fact that he expressed no concern for the impact of such an action on the mother.
She noted that he admitted throwing his dinner in the bin and saying angry words to the mother but said that he had apologised to the mother the next day for being so bad tempered and tired and that they moved on from the incident. She did not query whether his lengthy story justifying his actions might be spurious or comment on the fact that he expressed no insight into the impact of such behaviour on the mother.
She noted that he described holding his infant son by the shirt front and putting a fist up to his face saying “do you want a knuckle sandwich?” but did not question his assertion that he was simply a new dad trying to help his child learn not to hit nor did she question his assertion that he would never have predicted that this one event would result in him not seeing his child for 15 months. The mother’s evidence, which the father did not contradict, was that this incident occurred on 8 August 2014 when X was 11 months old. The parties did not separate until 23 March 2015 when the child was 18 months old.
The father has not had any counselling targeted to the domestic abuse issue because he does not admit having an anger management problem or engaging in domestic abuse. He attended on a psychologist at (omitted) Psychology Practice in October 2015 and attended a number of sessions there. He was assessed to have an adjustment disorder and situational stress. It was recommended around this time that he take an anti-depressant but he did not do so.
The father made it clear during submissions that he would not admit to things which he had not done. I am satisfied that he has done things and has behaved in the ways the mother described and there is therefore no possibility of me being satisfied that the father would not behave this way in future relationships or behave in an aggressive overbearing and threatening way to X in the future if X challenged him.
Counsel for the Independent Children’s Lawyer elicited evidence from the family consultant about the effect on a child of not having one of his parents in his life but it is well recognised that children suffer a range of adverse effects from being exposed to family violence including anxiety and depression, behaving in an aggressive and disrespectful way to their primary carer, copying inappropriate ways of resolving conflict and relating to others which can impact on them socially and educationally and feeling insecure and anxious about their relationships with one or both of their parents.
I must consider if a family violence order applies any inferences which can be drawn from it.
A final ADVO was made for the mother’s protection in May 2015 for twelve months and has long since expired. No inferences can be drawn from the bare fact that the ADVO was applied for or made.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of their parents.
The father displayed a poor attitude to the child and the responsibilities of parenthood in behaving in a controlling and coercive way to the mother and committing acts of family violence.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings.
An order that the child spend time with the father is the order most likely to lead to further proceedings given that the father denies perpetrating family violence and that the mother is highly anxious about the child spending time with the father.
I must consider any other fact or circumstance which the court thinks is relevant.
The father asserted to Mr C and it remained his case at trial as set out in his affidavit that the mother was heavily influenced by the maternal grandparents and that they were behind the allegations against him.
There is no evidence to support this assertion. There was no evidence that the maternal grandparents were frequent visitors to the parents’ home after they commenced cohabitation or excluded the father from their home prior to the final separation. Their affidavits show that they disapproved of some of the father’s actions such as being absent on moving day at (omitted) 2012 and using the mother’s car but there was no evidence that they were even aware of the family violence allegations during the parties’ relationship.
The father’s assertions about the maternal grandparents are just that: assertions not backed up by any evidence.
It was the father’s case that if X did not have a relationship with him he would not have a relationship with the paternal family. This may be true because there was no evidence of the mother forming a bond with any member of the paternal family during the relationship but the father’s relationship with his parents seems problematic.
No member of the paternal family gave evidence and there was conflicting evidence about the father’s relationship with his (adoptive) mother. On the one hand he asserted in his affidavit that she wanted to see X after separation and had been prevented from doing so. On the other hand he gave evidence about his father having been violent to his mother and his mother having deserved it because she was greedy.
The father admitted at trial that he did not see much of his family and the nature and strength of his relationship with his mother, father and other members of his family remains unclear.
I must now return to the primary considerations.
The first primary consideration is the benefit to the child of having a meaningful relationship with each of his parents.
X has a meaningful relationship with the mother at present, in other words, a relationship which provides him with nurture and guidance and is significant, valuable and important to him.[26]
[26] Mazorski & Albright (2007) FamCA 520
He does not have such a relationship with the father and he will not do so unless he commences spending something other than supervised time with him.
However, I must also have regard to the need to protect the child from harm as a result of being subjected to or exposed to abuse neglect or family violence and this must be given greater weight than the first consideration.
Despite asserting earlier in submissions that there was significant truth or quite a deal of truth in the mother’s allegations, Counsel for the Independent Children’s Lawyer’s position was that X would not be at unacceptable risk of harm in the father’s care. His submissions included the following:
The court would be able to find that whatever was going on including findings of poor behaviour during the relationship doesn’t disqualify the father from having a relationship with his child or shouldn’t burden the child with not having a relationship with his father.
I have made a finding that the father subjected the mother to extensive controlling and coercive violence during their relationship. He made few admissions about it and has not done a perpetrators course and does not intend to do so. The mother gave evidence of the father having punched holes in doors during a previous relationship. I am satisfied that X would be at unacceptable risk of being exposed to family violence in the father’s care if the father was in another domestic relationship. He is not at present but given his age and history, it is almost inevitable that this will be the case at some time in the future.
I do not accept that the father simply behaved poorly during the relationship. His anger, criticism, verbal abuse and threats frightened the mother on a daily basis and caused her to amend her own behaviour to try and please the father and prevent him getting angry. It would be unacceptable for X to be exposed to such behaviour in the future. It could easily cause him psychological harm.
The father’s failure to accept responsibility for his actions and the incident with X as an 11 month old means that I also cannot be satisfied that there is no risk of X being abused if he spends unsupervised time with the father even without the father being in another relationship.
There is of course the possibility of the father spending supervised time with X. This would ensure that X was protected from harm but would keep a connection between the father and the child. However this kind of time is usually only indicated if there is a likelihood that at some point in the future the time is likely to be able to move to unsupervised and I will have to assess that as part of my conclusion drawing together all my findings about the s. 60CC(2) & (3) matters.
Parental responsibility
Pursuant to s.61DA of the Family Law Act 1975 I am required to apply a presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for them absent a finding that one of them or a person living with one of them has engaged in family violence or abuse of the child.
There has been family violence and the presumption does not apply.
An order can still be made for equal shared parental responsibility even if the presumption does not apply and that is what the father originally sought. The mother at all times sought an order for sole parental responsibility.
Counsel for the Independent Children’s Lawyer said that the Independent Children’s Lawyer proposed an order for sole parental responsibility but there was an incongruity between that proposal and the orders the Independent Children’s Lawyer proposed about time.
Counsel for the Independent Children’s Lawyer said that the order for sole parental responsibility was proposed out of concern about how the mother would cope if required to discuss matters about X with the father, but at the same time the Independent Children’s Lawyer did not accept that the mother would struggle to cope with orders for X to spend frequent time with the father and proposed that the child spend gradually increasing time with the father until it was alternate weekends and half school holidays from when the child commenced Year 1, that the parents communicate by telephone about urgent matters and otherwise use a communication book, that the parents keep each other advised about medical matters and other matters relevant to the child’s welfare and that both parents be able to travel with the child within Australia and internationally.
Given that I am satisfied of the truth of the mother’s assertions about the nature of her relationship with the father and that I do not accept that her level of distress at the idea of coming into contact with the father is feigned or unreasonable, I could not possibly consider ordering that the mother and father share parental responsibility. I could not expect the mother to contact the father and discuss major long term issues with him.
I intend to make an order that the mother have sole parental responsibility for the child; an order which as it happens was supported in the end by all three parties in the case.
The recommendations in the family report
The family consultant formed a very favourable view of the father and in her report she recommended that he immediately apply to spend supervised time with the child. She expressed the view that he did not need supervision but said that supervision may allow the mother some time to adjust and develop some confidence in the father’s interactions with the child and in the child’s response to this.
She also made long term recommendations that if the court did not find that X was at risk of harm with the father, then the parents should share parental responsibility and the child should live with the mother and spend regular and frequent time with the father unsupervised and building up, reaching an alternative weekend arrangement by school age.
I cannot place weight on these recommendations when I do not share the family consultant’s view of the father and when I have found that X would be an unacceptable risk of harm in the father’s unsupervised care.
During cross-examination I asked the family consultant whether if this was the courts view there might be any merit in considering some short periods of time between the father and the child which might curtail risk and meet the objective of allowing the child to at least have a relationship of some sort with his other parent. The family consultant responded that if the court accepted the mother’s allegations then the order should be for no time.
I must however, as is always the case, make an assessment of the appropriate outcome based on all the evidence in the case including but not limited to the evidence of the family consultant.
Conclusion
As I have said repeatedly in other matters, no two cases involving allegations of family violence are the same.
Some cases involve severe and sometimes quite horrific physical violence or involve damage to property which ranges from burning down a house to setting fire to a car to kicking in a letter box. A court usually has no hesitation in those cases in making a no time order.[27]
[27] See for example Churchill & Wileman (No.2) [2016] FCCA 107
Other cases involve a different kind of violence; little or no physical violence but coercion and control during the relationship and sinister threats and stalking when it ends, sometimes accompanied by actions such as withholding or alienating children. The court usually also has little hesitation in those cases in making a no time order. [28]
[28] See for example Chalmers & Chalmers [2015] FCCA 2103
In other cases, notwithstanding evidence of physical violence causing injury, serious property damage and/or coercive and controlling behaviour, for a whole host of reasons orders are made for time. Reasons range from failure by the other party to seek appropriate orders, alleged remorse and reform by a perpetrator, an acceptance that the violence was isolated and is unlikely to recur, an acceptance that the violence arose out of a mental health issue which is now under control, the strong wishes of children, the fact that notwithstanding the violence a child has a long standing bond with the perpetrator and the resilience of the other party and their acceptance of orders for time.[29]
[29] See for example Weekes & Pitcher (No.2) [2016] FCCA 2486 and Percy & Dickens [2016] FCCA 2244
It would require a lengthy dissertation to explain why there are different outcomes in different cases and sometimes it turns out in hindsight that the court has got it wrong.[30]
[30] See the earlier decision referred to in Pitman & Bond [2014] FCCA 2126
I have to decide what to do with the combination of circumstances in this case and the combination I have is as follows:
a)The father engaged in coercive and controlling behaviour for most of the parties’ relationship; it did not stop until the mother left the relationship.
b)The mother was severely affected by the father’s behaviour, losing weight and adapting her own behaviour to try to placate the father and head off his anger.
c)The father does not admit to any coercive and controlling behaviour. He admits punching a hole in a wall on one occasion but blames it on having been given cause to doubt the mother’s fidelity. He admits to angrily throwing his dinner in the bin and berating the mother on another occasion but blames it on her having given him a poorly cooked meal and him being tired and hungry. He admits to asking the mother not to dress in a particular way but says that he was trying to protect her from unwanted attention by Muslims. He otherwise says that the mother is fabricating her allegations.
d)The father has not had any counselling or done any courses since separation targeted to assist him to manage his anger or develop insight into the impact on a partner of his acting out behaviour, insecurity and need to be in control. There is a considerable risk of the child being exposed to family violence if the father is in another domestic relationship.
e)The father acted out toward X on one occasion by raising his fist to him when the child was 11 months old, something he now says was a combination of a joke and an inept attempt by him to follow the mother’s instructions. Given this incident and the mother’s own experiences of the father becoming angry for a variety of reasons including (if he is to be believed) being tired, hungry or misinterpreting a situation, the mother is quite reasonably very fearful about how the father might treat X if he had unsupervised time with him.
f)I am left with a sense of unease about the father’s attitude to women in general. He blames his mother for family violence which occurred in his parents’ relationship, labelling her as greedy. He was intensely critical of the mother’s cooking, housekeeping and fidelity during the relationship. He spoke respectfully about the mother to the family consultant but he was not respectful of her in his trial affidavit and he is critical of her for not working. If he transmits negative ideas about the mother to X, it would cause the child great psychological distress and if he transmitted negative ideas about women in general it could have life-long implications for X.
g)The mother remains fearful of the father and would struggle to permit X to spend time with him. If the father had showed some insight into his behaviour, expressed remorse and had engaged in a perpetrators program, it might have been appropriate to consider whether the mother should be required to master her fears and give the father a chance and to trial some limited unsupervised time in the interests of X having a relationship with both of his parents but none of those things apply.
h)It will be sad for X not to have his biological father in his life, something the father feels acutely given that he is adopted, and it may have long term implications for X, but the negative impacts of this can be mitigated by openness and honesty about the situation by the people he lives with, X having access to counselling as the need arises and the counsellor being aware of the reasons behind it by being given a copy of the judgment. The father is well aware as a result of his own circumstances that sometimes the loss of a relationship with a biological parent cannot be prevented because of that parents own behaviour.
A parent does not have to perfect to spend time with a child. Many parents (perhaps most?) have their moments when they are impatient, harsh and angry, some more than others. Every parent has some beliefs and ingrained habits and ways of behaving which it would be better for children not to be exposed to. This is not a case however where I am just dealing with poor behaviour. I cannot be satisfied that it would be in X’s best interests to be exposed to the father given the combination of the matters above: his attempts to control the mother by criticism, verbal abuse and threats instilling fear, the impact on the mother of his behaviour, his lack of insight into the reality of the situation, the considerable risk that he may behave in this way again in another domestic relationship and that X may be exposed to it and the risk that he may behave in a critical and threatening way to X to try to deal with X’s behaviour.
Counsel for the Independent Children’s Lawyer asked me to have regard to the fact that the father had not engaged in any stalking or intimidation since separation and I do have regard to it, but it is not sufficient to tip the balance in favour of the father spending time with the child in the light of the matters outlined above.
Supervised time would provide protection for X from exposure to family violence but I was not asked by any party to consider making an order for long term supervised time and there is no benefit in making such an order in a case where there is no present indication that the father is likely to change his position that he is not at fault and reflect on his own behaviour.
For all of these reasons the orders of the court shall be as set out at the beginning of the judgment.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 26 April 2017
[16] Paragraph 104 of the mother’s affidavit filed on 2 March 2017.
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