HEADLEY and STENERS
[2017] FCWA 169
•30 NOVEMBER 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: HEADLEY and STENERS [2017] FCWA 169
CORAM: MONCRIEFF J
HEARD: 13, 14 DECEMBER 2016, 8, 9 MAY 2017 &
WRITTEN SUBMISSIONS
DELIVERED : 30 NOVEMBER 2017
FILE NO/S: PTW 5500 of 2013
BETWEEN: MR HEADLEY
Applicant
AND
MS STENERS
Respondent
Catchwords:
CHILD-RELATED PROCEEDINGS – Where there is a history of sustained and significant family violence – where the father has an acquired brain injury – where the father has been imprisoned for stalking – where there have been multiple breaches of violence restraining orders – where the mother suffers from post-traumatic stress disorder as a consequence of family violence – where the children were very young at the time of separation – where the father has had no contact with the children since shortly after their third birthday – where it is found that it is not in the children's best interests to order contact between the children and the father – where any presumption of equal shared parental responsibility is rebutted – orders for the mother to have sole parental responsibility
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr R Bannerman
Respondent: Mr M Rynne
Independent Children's Lawyer : Ms J
Solicitors:
Applicant: Bannerman Solicitors
Respondent: JK Legal
Independent Children's Lawyer : Law Firm A
Case(s) referred to in judgment(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1[Mr Headley] (“the father”) and [Ms Steners] (“the mother”) are the parents of twin girls [Child A] and [Child B] (collectively “the children”). The parties are unable to agree as to care arrangements for Child A and Child B.
2The parties met in May 2009 and commenced co-habitation in or around June 2009. The parties married [in] 2010, separated on a final basis on 22 June 2013 and divorced [in] 2015. Their relationship has been characterised by significant family violence perpetrated by the father against the mother.
3The children were born [in] 2012 and at close of trial were five years of age. The children have not had any contact with the father since [mid] 2015, at which time they had just turned three years of age, and remain in the care of the mother.
4It is agreed that the children should remain living with the mother, however, other parenting orders are not agreed, but particularly as to whether the children have any contact with the father.
Procedural history and the parties’ respective positions
5On 2 October 2013, the father commenced proceedings. At that time he sought interim orders that the children spend from 5.00 pm Friday until 5.00 pm Saturday each week with him, with this time being supervised by the paternal grandmother. He also sought that the mother be restrained by injunction from removing the children from metropolitan Perth and from changing their current address without his consent. He sought final orders that the parties have equal shared parental responsibility for the children and that they live with each party “for equal periods of time”.
6The matter first came before the Court on 16 October 2016. At that time it was ordered that the children be independently represented and the mother was restrained by injunction, on a without admission basis, from changing the children’s principal place of residence outside of metropolitan Perth.
7The mother filed her response on 20 November 2013. She sought interim orders that the father be restrained by injunction from removing the children from her care, from attending or removing the children from their day-care facility and from “molesting, harassing or abusing the Respondent Mother and from interfering with her manner of living or attempting to do so”. Further, she sought interim and final orders that she have sole parental responsibility for the children.
8On 16 December 2013, by consent, the father was ordered to enrol in Relationships Australia’s Family Abuse Integrated Response (“FAIR”) program and advise the mother’s solicitors and the Independent Children’s Lawyer as to his enrolment and completion of the program.
9On 21 March 2014, by way of consent order, [Mr D] was appointed as a single expert witness in these proceedings. Mr D filed his report on 19 November 2014 (“the initial report”) and an updating report on 6 July 2016 (“the updating report”).
10On 17 April 2014, the Court ordered that the father spend time with the children supervised by Relationships Australia each fortnight or weekly for a minimum of up to two hours. This time was increased by orders made by consent on 10 December 2014, with the Perth Children’s Contact Service (“PCCS”) facilitating such additional visit.
11On 14 April 2015, the matter came before Magistrate Monaghan. At that time, the parties indicated that they both wished to return to [New South Wales], where they had resided for a period of time and the mother’s adult child from a previous marriage, [Ms D], resided. The following exchange occurred between the parties and his Honour: (Unless otherwise specified, all errors and emphasis in extracts are as in original).
[HEADLEY], MR: So I was hopeful that she’d want to return as well. We’d both be with our daughters then and I mean for this to happen it doesn’t necessarily mean that it’s going to be happy families and we’re going to get back together. She can live in the house and I’ll live in a rental somewhere I mean it’s heaps cheaper over there and obviously I can still see my girls as much as I can. That was my plan.
HIS HONOUR: Right. Is that still your plan?
[STENERS], MS: Well yeah I guess I was hoping to continue what we’re doing here over there.
HIS HONOUR: Yeah.
[STENERS], MS: If possible.
12The parties’ plan was not carried into fruition as on 28 May 2015 the father was arrested for breaching the violence restraining order (“VRO”) in place protecting the mother, as discussed later in these reasons. The father has not seen the children, whether supervised or otherwise, since that time. His only indirect contact with the children has been through the orders of 14 January 2016, wherein the father was permitted to provide the Independent Children’s Lawyer with cards, gifts, photographs and letters which, subject to the Independent Children’s Lawyer’s discretion as to the appropriateness of the said items, were to be given to Child A and Child B.
13The mother filed her amended form 1A on 16 May 2016, seeking the following orders as at trial:
Minute of Final Orders Sought
1.The children [CHILD B] born [in] 2012 and [CHILD A] born [in] 2012 (“the children”) live with the Respondent Mother.
2.The Respondent Mother have sole parental responsibility for the children.
3.The Applicant father be restrained by injunction and an injunction be hereby granted restraining the father from;
a.Approaching the mother within 50 metres;
b.Approaching the children within 50 metres;
c.Approaching any premises where the mother or the children live or work or are educated;
d.Communicating with the mother or the children by any means, including through third parties;
e.Removing the children from the care of the mother or her agents.
4.The mother be at liberty to change the residence of the children to any location within the Commonwealth of Australia.
5.The requirement for the father’s consent to a change of name for [CHILD B] and [CHILD A] be dispensed with and the mother be at liberty to apply to the Registrar of Births, Deaths and Marriages in the State of Western Australia to register a change of name pursuant to s 33 of the Births, Deaths and Marriages Act 1998 (WA)
6.The requirement for the father’s consent to the issue of an Australian passport for [CHILD B] and [CHILD A] be dispensed with and the mother be at liberty to remove the children from the Commonwealth of Australia from time to time.
14On 19 August 2016, the report of the psychiatric assessment of father conducted by [Dr G] dated 6 June 2016 was accepted into evidence by order of O’Brien J.
15On 5 September 2016, the father filed his minute of proposed orders sought at trial thus:
MINUTE OF PROPOSED ORDERS
1.The parties have equal shared parental responsibility in respect of the children [CHILD A] born [in] 2012 and [CHILD B] born [in] 2012 (“the children”).
2.The children live with the Mother.
3.The children spend time with the Father as follows:
a.On the first two weekends immediately following these orders from 10am until 3pm with the day to be nominated by the Mother;
b.For the following five (5) fortnights on each alternate weekend from 10am Saturday until 3pm Sunday;
c.For the following five (5) fortnights on each alternate weekend from 5pm Friday until 5pm Sunday; thereafter
d.With the parties as follows:
i.In week one with the Father from 9am Monday until 9am Wednesday;
ii.With the Mother 9am Wednesday until 9am Friday;
iii.With the Father from 9am Friday until 9am Wednesday in week two;
iv.With the Mother from 9am Wednesday in week two until 9am Monday in the third week; and
continuing thereafter.
4.For the purposes of handover, any day that the children’s regular day-care is open the parties handover the children through day-care, or otherwise agreed between the parties.
5.On the weekend of Father’s Day in the event that it is not a weekend that the children will spend with the Father, from 5pm Friday until 5pm Sunday.
6.In the event the children are due to spend time with the Father on the weekend of Mother’s Day, the Father’s contact be suspended from 5pm Friday until 5pm on Mother’s Day.
7.For the purpose of Christmas in 2016 and each alternate year thereafter the children spend time with the Father from noon on Christmas Eve until 4pm on Christmas Day and with the Mother from 4pm on Christmas Day until 6pm on Boxing Day.
8.For the purpose of Christmas in 2017 and each alternate year thereafter the children spend time with the Mother from noon on Christmas Eve until 4pm on Christmas Day and with the Father from 4pm Christmas Day until 6pm on Boxing Day.
9.The parent who does not have the children in their care on [their birthday] be at liberty to telephone the children and the other parent shall facilitate the telephone call with the call to be initiated between 5pm to 5.30pm.
10.For Easter in 2017 and each alternate year thereafter, the children spend time with the Mother from 5.00pm on Easter Thursday until 5.00pm on Easter Saturday and with the Father from 5.00pm Easter Saturday until 5.00pm on Easter Monday and each alternate year thereafter.
11.For Easter 2018 and each alternate year thereafter, the children spend time with the Father from 5.00pm on Easter Thursday until 5.00pm on Easter Saturday and with the Mother from 5.00pm Easter Saturday until 5.00pm on Easter Monday and each alternate year thereafter
12.Both parties be restrained and an injunction be granted restraining them from:
a.Relocating the children’s principle place of residence out of the Perth Metropolitan region;
b.Denigrating the other party, their partners or their families to or in the presence of the children;
c.Discussing these proceedings or any allegations in these proceedings to or in the presence of the children.
13.Both parties keep each other advised at all times of all matters of importance relating to the children to include matters of importance relating to the children’s health, education and general welfare.
14.Both parties do keep the other party advised at all times of the names of any doctors, medical practices, hospitals, and other medical professionals who attend upon the children and do irrevocably authorise any such health professional to provide information to the other party that may reasonably request in respect of the children.
15.Both parties do irrevocably authorise any school or day-care provider the children attend to provide any information to the other party who may reasonably request.
16.Both parties do keep the other advised at all times of:
a.A mobile telephone number that they can be contacted on in relation to the children;
b.A working email address that can be utilised for exchanging information in relation to the children.
17.These are Orders to which section 175 of the Family Court Act 1997 applies and to the extent any of these Orders are inconsistent with Family Violence Order [XXXXX XXXXX ] of 2016 then these Orders shall prevail to the extent of the inconsistency.
16As seen from the above, the father was seeking to progress the children’s time with him from no time to equal time across the space of 20 weeks within the context of orders that he and the mother have equal shared parental responsibility for them.
17The trial for this matter commenced before me on 13 December 2016 and ran for two days, being adjourned part-heard on 14 December 2016. The father was represented at trial by Mr Richard Bannerman (“Mr Bannerman”) and the mother by Mr Michael Rynne of counsel (“Mr Rynne”). The children were represented by [Ms J], as appointed Independent Children’s Lawyer.
18The trial recommenced on 8 May 2017 and concluded on 9 May 2017, upon which I subsequently reserved my decision and ordered that the parties file written submissions. Some considerable time elapsed before all submissions were filed, hence the delay in the publication of my reasons for, and the making of, final orders.
19At the conclusion of the matter, Ms J supported the mother’s application.
Composition of evidence
20In the father’s case he relied upon:
·his trial affidavit sworn 22 March 2016 and filed 24 March 2016;
· his updating affidavit, filed late, affirmed and filed 2 May 2017; and
·the affidavit of [Mr L], his brother, sworn 22 March 2016 and filed 24 March 2016.
21In the mother’s case she relied upon:
·her trial affidavit sworn 2 May 2016 and filed 3 May 2016; and
·the affidavit of Ms D, her daughter, sworn 19 May 2016 and filed 19 May 2016.
22Both the parties and their witnesses were cross-examined at trial. As such, I had the opportunity to observe each of the parties whilst giving their evidence and throughout their attendance at court.
23The father was a generally unimpressive witness. Whilst I accept that the father has an acquired brain injury, to which I refer further below, his reluctance to accept propositions that were put to him that were manifestly obvious, particularly in the context of family violence, gave him no credit. I accept that at times he genuinely had no memory of events and that where he did have a memory of events he may have struggled with detail. His failure to recognise the impact of his violent behaviour upon the mother and the children was best summarised in the position taken by him at the commencement of the trial in two submissions within his papers for the Judge filed 12 December 2016; firstly, “It is accepted that the Mother’s evidence is that she was subjected to family violence. The Father accepts that there was some unpleasant incidents during the relationship. The Father’s proposal would not lead to the children to the children being exposed to any type of abuse, neglect or family violence” and secondly, “The Mother’s proposal is such that the Court would have no idea what environment she would intend putting the children into”.
24If indeed those two submissions truly represent the extent of the father’s acknowledgment of his violence toward the mother and real concerns about the mother’s parenting capacity, in the face of an agreement that the children live with her, they underscore the father’s lack of insight; firstly, as to the nature and intensity of the violence and its consequences upon the victim and secondly, a failure to recognise that the fundamental core of the mother’s position is her genuine, in my finding, desire to protect the children from any physical or psychological harm or expose them to any unacceptable risk of such harm.
25The father’s brother, Mr L, was also unimpressive. He accepted in cross-examination that in the preparation of his affidavit he had discussed with the father, “what to put in it”. I do not consider his evidence to be independent.
26The mother in contrast was an impressive witness. She impressed me as attempting to be as accurate an historian as she could be and genuine in her motivation. I was left with no doubt that if the father were not a danger to the children that she would fully support them having a relationship with him. My impression of the mother in this regard was formed not only from her evidence at trial, but also in terms of the attempts that she made in the face of the violence she suffered to find a basis for a continuing relationship with the father in furtherance of her aim that the children have a meaningful relationship with him.
27The mother’s adult daughter, Ms D, was also impressive. I accept that she attempted honestly to recount the events that she had witnessed in the household of the mother and the father. I also accept that the fear she has of the father is genuine and well-founded in those experiences.
28The balance of the witnesses required for cross-examination, were professional witnesses, namely:
·[Ms S] from Relationships Australia;
·Dr G, psychiatrist; and
·Mr D.
29They were all of considerable assistance to the Court.
30The Court also had the benefit of Family Consultant Hanavan of the Counselling and Consultancy service’s case assessment conference memorandum dated 29 November 2013.
Brief history
Pre-separation
31The mother was born in [Country A] [in] 1970 and at close of trial was 47 years of age.
32Her parents separated when she was approximately one year of age and the mother was raised by her mother, a [nurse], and her stepfather, who she considers her father. The family immigrated to Australia when the mother was but an infant.
33The mother spent her early childhood in [City A] and came to Perth with her family when she was 11. She completed secondary school up to year 10 and ultimately attended TAFE to study.
34The mother commenced a relationship with [Mr H] and at 21 gave birth to Ms D, her only child of the relationship with Mr H. At trial Ms D was 26 years of age. The mother and Mr H were married for five years and separated when Ms D was about two years old. The mother asserted that this relationship was and continues to be positive. Following her separation from Mr H the mother was in another relationship for approximately eight years.
35The father was born [in] 1981 and at close of trial was 35 years of age.
36The father described his childhood as “Not the greatest”. The father’s parents separated when he was a child and he lived with his mother, spending limited time with his father who he recalled as “not very nice”. The father asserted that his lack of paternal relationship was “unfair” and that the children “shouldn’t suffer the same fate”. His father committed suicide when the father was 12 and the father has no contact with his extended paternal family.
37The father’s mother re-partnered to an abusive partner sometime later and had two further children. The father recalled a specific incident where he confronted his step-father whilst he was abusing his mother and stabbed him.
38The father completed his secondary education in 1998 “as one of the top students” and subsequently in 1999 secured employment with [Company A]. Sadly, a mere five months later, the father was involved in a serious motor vehicle accident whereby he was left with an acquired brain injury due to damage sustained to his frontal brain lobe (“ABI”).
39In or about 2001, the father returned to his previous employer after attending rehabilitation to address his mental and physical recovery, however the father’s ABI has had ongoing ramifications for him, as discussed further in these reasons.
40The parties met in May 2009 through mutual friends and commenced a relationship. The mother described the initial stages of their relationship as being positive and that:
15.… When I met [Mr Headley] it felt different to any other relationship I had previously had. [Mr Headley] had a good sense of humour and we had fun together. I felt like he showered me with affection. [Mr Headley] would pay attention to things I liked and then buy those things for me as gifts. [Mr Headley] was extremely affectionate and open. He would tell me he loved me and seemed to want to be with me all the time. In the first few months he would come over every day.
41In July 2009, the father moved into the mother’s rental property she shared with Ms D, who shortly thereafter turned 18. The parties quickly became engaged and purchased a property together, [Property A].
42The father described this period of time as “Everything was fine; never really any problems”. The mother, however, asserted that she “started to notice changes in his behaviour. He would appear irritated at small things such as if I was late home from work, or had stopped in at the shops, or to call on a friend for coffee. He would, however, shift back to being affectionate”. Thereafter, the mother alleged the father committed escalating acts of family violence, which I detail below.
43The mother became pregnant in late 2009, but shortly thereafter miscarried. Around that time the mother’s daughter, Ms D, who was residing with the parties, became pregnant to her fiancé. In early 2010, Ms D suffered abnormal bleeding and believed she had lost the baby. Although subsequent medical tests revealed this was not the case, she was advised she should reduce anything causing her stress. Ms D supported the mother’s account that the father was controlling and abusive and asserted that she found the situation stressful to live in. The mother recalled feeling “mortified that [Ms D] was being exposed to the problems I was having with [Mr Headley]. I suggested to [Ms D] that her and her fiancé move in together. I felt this was the only way I could keep [Ms D] away from what was happening at home”. As such, Ms D elected to leave Property A and went to live with her paternal grandmother and uncle.
44The mother recalled that “By early 2010, I found that [Mr Headley] was arguing, calling me names and yelling at me on an almost daily basis”.
45[In] 2010, the parties married and honeymooned [overseas]. This vacation, too, was allegedly characterised by the father’s acts of violence towards the mother. Upon their return the mother asserted that:
64.… the sudden angry outbursts continued and [Mr Headley] would just start telling at me for no reason. I could not understand why his mood would change. On some occasions, it occurred if I was late home from work or from grocery shopping or if I had stopped at a friend’s house for a quick visit. Often [Mr Headley] would accuse me of cheating on him.
46On Friday, 2 July 2010 and continuing into the weekend, the mother alleged that the father held her at Property A and threatened to kill her. On the Monday, her friend assisted her in leaving the home and obtaining a VRO against the father.
47The mother subsequently left Perth and flew to stay with her parents in South Australia. The mother asserted that immediately “[Mr Headley] started calling me, texting me and sending emails. This didn’t stop, even after I knew that [Mr Headley] had been served with the VRO”. After a week or so, the father joined the mother in South Australia, which, in his words, was “what [Ms Steners] wanted”. The mother’s parents encouraged her and the father to get back together and suggested the couple move to New South Wales for a fresh start and to work on their marriage.
48In or around September 2010, the parties reconciled and the mother cancelled the VRO. The mother asserted that at this time, the father attended a psychiatrist, who, to the best of her recollection, advised the parties’ that the father’s ABI was not the cause of his violent tendencies. She stated that “To me, knowing that the head injury was not the problem meant that whatever was causing the violence was just behavioural and we would be able to work on that” and further, that “I was still very much in love with [Mr Headley]. I was also embarrassed about his behaviour and desperately wanted to ‘fix’ him”.
49In or around December 2010, the mother became pregnant again, but again miscarried.
50On New Year’s Eve, year ending 2010, the father committed a serious assault against the mother and she was taken to hospital by the police. The police issued a 72 hour notice to the father, however he breached this almost immediately after sending an abusive text message to the mother whilst she was in hospital. The parties reconciled shortly thereafter and by August 2011 had fully resumed their relationship, the relevant VRO having expired by that time.
51In or around September 2011, the mother fell pregnant with the children. The mother was concerned, due to her history, that she would miscarry. As such, she requested that the father properly administer his medication, however, she found his medication had little effect on his violent outbursts and he would “still shout at me and call me names, but there were occasions where he would leave the room while he was shouting at me and then just verbally abuse me from the other room, until he eventually calmed down”. By December 2011, the father advised the mother he did not feel it was necessary that he continue to take his prescribed medication as he “insisted that he was alright and could control himself without medication”. The mother asserted that whilst the father did not physically abuse her during this period, he continued to verbally abuse her.
52The children were born [in] 2012 by emergency caesarean section. The father reported Child A and Child B “were healthy, beautiful and [Ms Steners] and I were so happy”.
53In or around September to October 2012, the family moved to New South Wales after selling Property A and purchasing a property in [City B]. The mother recalled that while the parties were living in New South Wales “[Mr Headley’s] anger and irritation seemed to increase. I was being yelled at on a daily basis. I had no car and was missing my friends and family. … He would check the Telstra account constantly to make sure I was not spending money on phone calls”. The parties were under immense pressure financially at the time, with the father’s low income and a mortgage to pay. While in New South Wales, the mother asserted she reached the conclusion she needed to separate from the husband as:
113.… I had started think that the twins may not be safe with [Mr Headley]. During mine and [Mr Headley’s] relationship I had initially believed that [Mr Headley] would never physically hurt me. I had then realised that [Mr Headley] could, and had, physically hurt me. I had begun to think that if [Mr Headley] could hurt me, he could hurt the girls. I believed by then that [Mr Headley] was capable of killing me, and killing the girls.
54In April 2013, under the guise of returning to work, the mother returned to Perth with the children, accompanied by the father. The father subsequently returned to New South Wales. The father came back to Perth in May 2013. It was the mother’s case that the father continued to be violent towards her and that she continued to perceive him as a risk to the children. The mother recalled telling the father he “needed to go on medication, get a job and that I was going to put the girls back in daycare. I told him that, if he did not agree to this, I was going to leave him”.
55On 22 June 2013, the mother left the father with the assistance of friends, taking the children. The police issued a 72 hour notice and on 1 July 2013 a further VRO was issued, which extended to Child A and Child B.
Post-separation
56From the time the VRO was put in place at separation, the father continued to attempt to contact the mother, again, I set these out in detail later in these reasons.
57In early 2014, the father commenced supervised visits with the children at Relationships Australia. The mother was extremely anxious about the visits and remained fearful of the father.
58By early 2015, the mother’s financial position had become precarious. She was meeting half the mortgage payments for the parties’ New South Wales property, paying rent and all costs associated with the children. The mother felt that the father was “controlling me by making my financial position more and more unstable”.
59Under increasing pressure, on 14 February 2015, when handing the children over for a supervised visitation with the father, the mother approached the father to discuss their financial situation. From that time the parties started communicating directly with one another.
60The mother asserted that initially “[Mr Headley] was on what I would call his ‘best behaviour’. He appeared calm and friendly”. During the time that they were communicating the father positively collaborated with the mother in relation to their financial position. The mother asserted that she had no intention of reconciling with the father and in fact, recalled telling the father about her partner at the time. It is apparent that the father interpreted this as the mother attempting a reunion.
61Unfortunately the situation soon deteriorated. It was the mother’s case that the father’s behaviour became increasingly threatening and controlling, she recalled that:
164.I began to feel uncertain and frightened about the communication with [Mr Headley]. I had told [Mr Headley] that I was only speaking to him about financial matters, but he increased his contact with me and started sending me more and more texts. He was calling me at least once a day. [Mr Headley] also started insisting that I meet him in person, with the girls. When he asked to meet with me I felt too scared to say no.
62During this time, the father became aware of the mother’s place of residence and the mother came to believe the father was stalking her, becoming increasingly anxious and fearful.
63In May 2015, the mother contacted the police and reported the father’s multiple breaches of the existing VRO. On 28 May 2015, the father was arrested and was ultimately sentenced to seven months imprisonment. It was his case that the mother had deliberately set out to induce him into breaching the VRO.
64The father was released from prison on [in] December 2015.
Family violence
65As observed, in his papers for the Judge, the father accepted that it was the mother’s case she was subjected to family violence. He referred to there being some “unpleasant incidents during the relationship” and that there has been “some family violence”. The father admitted to some, but not all, of the incidents alleged by the mother. This is complicated by the fact that the father admitted being unable to recall specific incidents as he blacked out, usually after having consumed alcohol, a reaction he attributes to his ABI.
66Section 4AB of the Family Law Act 1975 (Cth) (“the Act”) provides a broad definition of ‘family violence’, which I replicate here:
4ABDefinition of family violence etc.
(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.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
67In August 2009 (the father says November 2009) the parties attended a friend’s birthday party. The evening started at the friend’s private residence, where the parties consumed some alcohol. Another guest shared some sexually explicit images or video that he had on his phone to the mother and some other guests, apparently in good humour. The father became “extremely annoyed. [Ms Steners] was watching and laughing, even though she’d told me she doesn’t like porn”. The mother recalled the father yelling “you’re a fucking liar, you say you hate porn but you obviously don’t, you’re a fucking liar” at her. Ms D, who was in attendance that evening, deposed the father “erupted and started yelling words to the effect of “You’re a fucking liar”, “You fucking said you hated that shit”, “You fucking lying bitch”.
68The parties proceeded to a restaurant with their friends, where the argument between the two escalated. The father deposed he “was yelling too loud and got kicked out. I was outside punching a telephone pole and my hands were quite bruised and therefore, the police were called”. The mother asserted one of her friends convinced the police to release the father and he appeared, at first, to have calmed down. However, as soon as the police left he recommenced yelling at the mother and she left alone on foot. The father followed her, which he admitted. He contended he was following her to ensure her safety as she was intoxicated and he wanted to apologise. The mother says the father continued yelling at her as she walked and at one point smashed an entire shop window with his fist. The father admitted at trial that he had smashed the window, but he was not sure if he had used his fist or elbow. The parties caught a taxi and returned to the friend’s house. Ms D recalled hearing the parties arguing upon their arrival at the house.
69The next day the father apologised to the parties’ friends for his behaviour. The mother annexed to her trial affidavit a series of emails exchanged between the parties in which the father apologised and the mother forgave him for his behaviour.
70In September 2009 (around the time the mother discovered that she was pregnant) the mother recalled the parties attended a friend’s birthday dinner at a restaurant and later returned to that friend’s house. That evening, on their way home, the father started shouting at the mother in their motor vehicle and she attempted to walk back to her friend’s house. The father apologised and they left together.
71In November 2009, when the mother was approximately eight or nine weeks pregnant, she asserted that the father had an “episode” and started yelling and banging on items around the house. The mother was attempting “to get away” from the father when she fell down a flight of stairs in Property A.
72The father recalled the incident at trial as follows:
[HEADLEY], MR: I do because it was obviously an important incident, but I also remember that we were having an argument upstairs. It was nothing like screaming, yelling, fighting, anything. It was a disagreement and she was trying to walk down the stairs. She wasn’t trying to get away from me. She was just walking away. And she slipped – not fell down the stairs, but slipped onto her backside onto the steps and she – of course I was worried when she fell over, but everything seemed to be okay.
73Ms D was present at Property A at that time and deposed to having heard the father yelling and heard someone fall down the stairs. She “saw that MUM was almost at the bottom of the staircase, head down, all crumpled up and appeared in pain. I became very angry and yelled at [Mr Headley] and accused him of being the cause of MUM falling down the stairs”.
74Two weeks later the mother attended an ultrasound appointment and discovered that her unborn foetus had died two weeks earlier. Ms D asserted the mother told her at the time that she “thought the baby had been ok after the fall, but it was the stress from [Mr Headley’s] yelling that made her lose the baby”. The father argued that the pregnancy had failed due to the foetus having Down Syndrome. I am not in a position to make any finding as to the specific cause of the mother’s miscarriage.
75The father had accompanied the mother to the ultrasound appointment and she asserted he said “things like “You are fucking useless. You think you’re so good but you’re fucked, you can’t even keep a baby” ”. The father admitted he “didn’t handle it well and said some nasty things to [Ms Steners] instead of comforting her”.
76In December 2009 the parties invited their respective families to celebrate Christmas at Property A. The father described the day as “great; lots of food and drink, swimming in our pool, laughter; a typical Australian Christmas”. The father went inside at some stage and began listening to music on his stereo. Later in the day, the maternal grandmother approached the father and asked if he could reduce the volume of his music, it escalated from there. The father deposed:
39. It obviously wasn’t turned down enough and [Ms Steners’] mum came in and started an argument with me. A big argument began, involving almost everyone and that was the end of what started out as a good Christmas.
40. The main bit of this argument wasn’t so much what was said, it was the fact that [Ms Steners] pulled a knife on me. Towards the end of the argument though, everyone had calmed down, [Ms Steners] and I were fine and apart from [Ms D], who lived with us and [Ms Steners’] parents, who were staying with us, everyone went home.
41. The next morning, everything was as good as to be expected between myself and [Ms Steners’] mum. I apologised even though the whole thing was her fault and everything got back to normal.
77The mother’s recollection of the day is different. She agreed an argument occurred that involved the parties and their extended families, but stated that the father was the aggressor. Further, she deposed:
42.[Mr Headley] continued to behave aggressively through the whole of Christmas Day and would have outbursts, yelling at me and other members of the family. At one point, I was in the kitchen cutting up a roll of dog food for my pet dog when [Mr Headley] came in and started saying he was going to kill himself. He grabbed a bread knife that was on the counter and started motioning as though he was stabbing it into his chest. I don’t recall that he hurt himself, just small cuts, mostly scratches. [Ms D] came into the kitchen and started screaming. I told her to get to her room. I recall [Mr Headley’s] cousin came into the kitchen and was trying to get the knife off [Mr Headley].
43.At no time did I hold a knife to [Mr Headley], as referred to in his affidavit at paragraph 40.
78Ms D was present at the time and deposed to the events as follows:
44.… At one point, I came out of my room to get some water and MUM was in the kitchen cutting up a roll of dog meat for [the dog’s] dinner. [Mr Headley] was standing in the kitchen, yelling at MUM words to the effect of “[Ms Steners], don’t fucking ignore me”, fucking listen to me for fuck’s sake. Stop being such a fucking bitch”.
45.I yelled at him and he yelled at me and I recall he then laughed and said “I don’t really fucking give a shit about you and your stupid baby anyway”. MUM then stepped in to tell him to stop. I remember seeing [Mr Headley] grab a knife and force the end of the knife into the centre of his chest. I think that it was the knife in MUM’s hand and [Mr Headley] was gripping her hand so she couldn’t let go. I do not really remember what happened after that as I now know I had a panic attack. …
79The father’s brother, Mr L, also provided evidence regarding this event and deposed “For some reason, [Mr Headley] was seen as the bad guy and when [Ms D] came storming out of her room, yelling at [Mr Headley], [Mr Headley] yelled back so [Ms Steners] held a knife to [Mr Headley’s] chest”.
80I accept the mother and Ms D’s version of these events.
81After Christmas 2009 the mother went on holiday [overseas] for 10 days with her parents and Ms D. This had been organised prior to her having met the father. The mother asserted that the father “rang me constantly and would start shouting at me if I had missed a call from him, or if he thought I wasn’t ringing him enough”. The mother annexed the following email from the father to her dated 2 January 2010 in support of her position:
:(
[Mr Headley]
Reply½
To:
[Ms Steners] <[email address]>; Sat 2/01/2010 9:41 PM
I just rang you to say sorry we didnt win lotto, but to my fucking suprise you have no credit. So what, you decided to use up your last $35 approx, about 45 mins,(i know thats about rite coz we weren’t on the fone long last nite, you mustve had better things to do) coz youd rather talk to someone else than me.
We seriously hav to talk about stuff when you get back coz im not happy at all about some things - im FUCKING PISSED OFF!!
Ive just been talking to [K] on facebook re your birthday and our wedding. She wasnt sure if you were [overseas] coz she said its a long time to be away from you partner. But of course you dont giv a shit about that. Im fucking dying over here, i cant keep it together, i fuckin miss you so much and now I cant even talk to you.
And dont bother using the excuse, i cant ring out on my phone, coz if you really wanted to talk youd use the phone in the hotel, or email me.
I feel like my life is just wasting away right now. All i want is to be with you - this is the worst time of my life. I just dont wanna live without you, i cant handle it. All i do is cry all day.
Do you really even miss me?
I love you baby!!
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
82The father admitted that the above email was “an angry email” but that he had been “just angry, upset, confused”.
83Ms D recalled that the mother appeared “very stressed” during the [overseas] trip and that the father was constantly calling her.
84On 25 January 2010, the parties invited some friends over to Property A. It was the mother’s case that after the friends had departed, with one guest staying over having fallen asleep, the mother put a DVD movie on for the parties to watch and poured them both a glass of wine. She deposed that the father “suddenly started yelling and swearing and then smashed the full glass of wine into his forehead. Wine went everywhere and there was a large piece of glass, almost half of the wine glass, protruding from his forehead. He was bleeding heavily”. The mother attempted to convince the father to go to hospital, but he “started to chase me around the house, saying he was going to get me and shouting at me “You’re a fucking bitch” and “I hate you”. The parties’ friend had woken up during this time and was able to assist the mother in escorting the father to hospital. Once they reached the hospital, however, the father refused to get out of the motor vehicle and he ran away. The mother drove around searching for the father and eventually found him. The mother attempted to convince him to get into the motor vehicle and the father broke the front passenger window of the motor vehicle with his fist. At that stage the mother called the police and they ultimately issued a 24 hour notice to the father and advised him he had to stay at the paternal grandmother’s home.
85The mother woke up later that night and found the father had returned to Property A and was “standing in the doorway at the foot of the bed with dried blood all down his face”.
86The father was largely unable to remember the events of 25 January 2010, but did remember smashing the glass of wine, bleeding and going to hospital.
87[In] 2010, the evening before the parties’ wedding, the mother asserted the father had a physical altercation with a friend of the mother’s in front of the mother and her parents. She recalled the father was “very drunk and behaving aggressively”.
88The father was unable to fully recall the evening [in question] and although he was initially unable to remember what the altercation had been about, eventually asserted that the mother’s friend had apparently been “touchy-feely” with the mother and he had reacted badly.
89As stated, the parties were married [in] 2010. The parties went [overseas] for their honeymoon, the father described this trip as “great”. The mother alleged that:
61.… Everything was beautiful but I felt very on edge in case something happened to make [Mr Headley] angry. I recall we stayed in a lovely B&B in [Country A]. One day, after some lunch, we went for a walk. While walking, [Mr Headley] suddenly demanded that we have sex by the side of the road. I recall I protested because the road was quite open and I felt very exposed but [Mr Headley] insisted. I resisted [Mr Headley] and he became angry that the sex wasn’t working so we went back to our room at the B&B. I tried to pretend everything was okay but once in our room [Mr Headley] grabbed me by my hair and threw me across the room. He twisted my arm and threw me into the wall. He then yelled at me and held me against the wall with his hands around my throat, choking me. I recall at the time I was worried that someone would hear so I continued to try to keep him quiet and to calm him down.
90The father denied that he had demanded sexual intercourse from the mother, asserting he had merely “suggested it”. He was unable to recall assaulting her at their Country A accommodation.
91The mother claimed that she spent the rest of their honeymoon apprehensively attempting to keep the father appeased and in a good mood. On their flight from [Country B] to [Country C], the mother deposed to further violence committed by the father:
63.… On the flight from [Country B] to [Country C], [Mr Headley] was drinking heavily. He was becoming very loud so I moved to a seat in front of us to try and sleep. I recall feeling embarrassed as it was the middle of the night and most of the other passengers were asleep. I had seen that 2 other people had already changed to seats further away from us. While sitting there, [Mr Headley] leaned over the seat, grabbed me around my throat and was whispering in my ear that he was going to kill me. I could not loosen his grip around my neck and I could not breathe. I managed to press the button for the flight attendant and [Mr Headley] stopped when she came and sat back in his seat. I asked for some water and did not say anything to her about what [Mr Headley] had just done to me.
92The father gave evidence at trial that during the flight “we were having a bit of a disagreement – argument – whatever you want to call it, but I didn’t think it was that bad” and did not recall choking the mother or threatening to kill her.
93The mother recalled an incident in June 2010 wherein the father was chasing her throughout Property A yelling at her. She alleged he punched a hole in the ceiling above the stairs and punched and ripped a canvas that the mother had painted. He then grabbed her by the hair and slammed a door, causing the glass leadlight in it to shatter.
94The father gave evidence at trial that:
[HEADLEY], MR: I didn’t actually punch a hole in the ceiling. The – the way the stairs are – they go like that, and there’s a – the roof’s quite low. So I stood on the stairs – on the edge of the stairs, and I was annoyed at what was happening. I don’t exactly know what was happening, and I – it was actually a soft – soft roof. I just tried to headbutt – headbutt the roof backwards because I was annoyed, but it was a soft roof, and it made a indentation in the roof, and they had to get a plaster out and fix it.
95On Friday, 2 July 2010, the parties’ attended a friend’s private residence for dinner. The mother alleged the father started to become aggressive and he was asked to leave. The mother felt obliged to leave with him, despite the friend telling her to stay with them. The father yelled at the mother during the car ride home, saying “You’re such a dumb slut”. The father admitted he had had a few drinks and was thus unable to remember this incident.
96The mother deposed that the father detained her in the house across that weekend, deposing:
66.As soon as we arrived home, [Mr Headley] grabbed me by the back of the head and pushed me into the wall, head first. He then twisted my arm behind my back and threw me into the wall again. He then repeatedly banged my head against the wall. He also grabbed me by my hair and threw me on to the floor. At one point he was pulling my fingers back. I felt like he was trying to break my fingers. I recall he also held me down, put his hands around my neck and started to choke me. He then got up and went to the kitchen. I remained on the floor. During this incident, [Mr Headley] had been shouting at me “You’re a fucking bitch” and “I’m going to kill you”.
67.[Mr Headley] came back into the room, pulled me up by my arm and my hair and twisted my arm behind my back. He had a large kitchen knife in his hand and held it to my throat from behind and said, to the best of my recollection, “I’m going to fucking kill you, you bitch. You are fucking dead, you are so dead”.
68.I kept acting submissive and eventually [Mr Headley] took the knife away and left the room.
69.I recall over the rest of that weekend, I tried to remain quiet and do whatever [Mr Headley] asked me to do. [Mr Headley] was very apologetic the next morning. I was invited to a girlfriend’s house for a get-together on the Sunday. I told [Mr Headley] that I had to go or my friends would get suspicious. It was planned that it was girls only but [Mr Headley] would not let me attend without him. I recall I spoke little to my friends while there. My friends later told me that I looked terrible and ‘wasn’t myself’. At one point my friend [J] made a joke about a knife, pretending to hold it to my throat. I recall I just froze.
70.On the Monday [Mr Headley] would not let me go to work and he would also not let me call work to say where I was. I was too scared to resist him. For that day, he would not let me leave our bedroom and he kept insisting on various sexual acts. I recall during that day he continuously said that we were in love and that he would never mean to hurt me.
97The father asserted that “that’s not the way I talk. And I did have a knife at the time but I don’t know what I did”. He consequently gave evidence that he remembered getting the knife “but I didn’t hold it to her throat. I held it at her”. He denied forcing the mother to have sexual intercourse or denying her freedom of movement.
98One of the mother’s friends attended Property A on Monday, 5 July 2010 and assisted the mother to leave the property and obtain a VRO the next day, 6 July 2010. A copy of the affidavit filed in support of the VRO was annexed to the mother’s affidavit and supported the mother’s version of events. The father described this event in his trial affidavit as merely “a big argument”.
99In late 2010 the mother alleged the father chased her around the house threatening to kill her. She asserted he cornered her in the upstairs bathroom of Property A and started hitting her and pulling her hair. The mother was able to contact the police and they attended upon the parties, but no action was taken.
100On New Year’s Eve, year ending 2010, the parties attended a local restaurant for dinner. The father deposed that that evening “I was arrested and charged with assault of which I have no memory and for that reason, along with a psychiatric report from [Dr L] stating I have a form of OCD (intrusive, unwanted thoughts), my charges were downgraded”.
101The mother recalled the events of New Year’s Eve as follows:
84.… At some point during our main meal, [Mr Headley] suddenly changed his mood and started stabbing his knife into the meat on his plate and saying through his teeth that I was “a fucking slut” and a “bitch”. He was getting progressively louder and people were looking over at us. I felt so humiliated and wanted to get up from my seat but [Mr Headley] would shout at me if I tried to leave the table.
85.The restaurant manager was known to us. She asked [Mr Headley] to leave and organised for one of the waiters to drive him home. She then drove me home herself. During the short drive home I recall she said words to the effect of “is he going to hurt you?”. I told her no, that he wouldn’t do that. I don’t know why I told her that he wouldn’t hurt me. As we were going up the driveway I felt very frightened and I expected that [Mr Headley] was going to hurt me.
86.Once I walked in the door I saw that [Mr Headley] was waiting for me. He started throwing me against the walls. He was head-butting me and punching me repeatedly in my head. At one point he was trying to gouge my eyes with his fingers. I recall I kept trying to hold my arms across my face to stop the blows hitting my face but the punches landed on my head and I must have blacked out.
87.When I came to, [Mr Headley] was jumping on my body, on my back and shoulders. When I tried to get away, he would grab my hair and throw me around. All the time he was shouting insults at me and telling me that he was going to kill me.
88.I recall him saying “why won’t you fucking die bitch, just die”.
89.I also recall feeling that [Mr Headley] was actually going to kill me. I thought I was going to die.
90.I kept trying to fight back and block [Mr Headley’s] punches. At one point he paused to catch his breath and I then made a run for the front door, grabbing my bag on the way out as it was still near the front door. [Mr Headley] reached my head and pulled out a chunk of my hair but I managed to get out the door.
91.I had seen that [Mr Headley] had a knife in his hand when he was chasing me to the front door. I ran out of the house and started running down the street.
92.I flagged down a car and it stopped but they had their doors locked and I couldn’t get in the car. The people in the car called the Police and I called my friend [H].
93.[Mr Headley] had followed me to where the car was stopped, and was circling me around the car. When he was told by the people in the car that the Police had been called, he turned around and headed back to the house. As he was walking away, he called out that he was going to kill my dog.
94.[H] arrived before the Police and we drove back to the house so she could get my dog. I stayed in the car. [Mr Headley] was yelling from the house, continuing to threaten to kill me and my dog. Once [H] got my dog from the yard, she took me to a friend’s house and we arranged for the Police to come to that address. The Police then took me to the hospital.
102Annexed to the mother’s trial affidavit was a police incident report and medical report.
103The police report clearly supports the mother’s version of events and refers to several witnesses, but does note the mother was highly intoxicated and not fit to provide a statement. The police recorded that the mother had “Bruising to left side of face & left eye, back of right ear, front of left shoulder, left upper arm, right upper arm”.
104The medical report lists the mother’s injuries on examination thus and that they were consistent as having been inflicted as alleged:
1.Facial abrasions, 1cm linear abrasion to left lower eyelid and 2cm linear abrasion to the lateral epicanthal fold.
2.One 5 x 2cm bruise to the left posterior upper arm
3.One 4 x 2cm abrasion to the lateral aspect of the left knee.
105The father was issued a 72 hour notice by the police but breached the order almost immediately after texting the mother an abusive message whilst she was in hospital stating, according to the police report, “Fuk u, its ova” and “U didn’t do anythin. Y r u such a bitch?”. The father was ultimately charged with assault, threatening to kill the mother and two breaches of police orders. A further VRO was put in place.
106Again, the parties subsequently reconciled and the father was found to have breached the VRO twice. The father admitted the breaches, but stated “Each breach was, I realise now, my fault entirely and I should have obeyed the law. The breaches took place when [Ms Steners] and I were found together. We both wanted to be together but the police wouldn’t allow it”.
107In July 2011 the mother alleged a further incident occurred, in which the father threatened to kill her. She escaped the house and hid in the bushes of a neighbour’s house, before eventually returning to Property A.
108A week before the mother was due to give birth to Child A and Child B, she alleged the parties were grocery shopping and the mother accidentally slipped and landed on her back. A number of women present at the scene attended to her and she asked that they not tell the father what had happened. The father saw that a crowd had gathered around her and became agitated, yelling “Get your fucking hands off my wife, what are you doing, get away from her”. He “became extremely angry and started swearing, smashing the shopping trolley into the shelf and throwing products around. The store manager approached us and [Mr Headley] was yelling at the top of his voice “You’ve killed our babies” ”. The mother was taken to hospital to check on the unborn children.
109As seen, the parties relocated to New South Wales for a period of time and eventually returned to Perth. A day after the father returned to Perth the mother told him that she and the children would not be staying at the paternal grandmother’s house with him. The mother alleged that she had put Child B into her car seat and the father was holding Child A. Whilst holding Child A, he grabbed the mother around the neck and started choking her with one hand whilst swearing. The paternal grandmother and the father’s brother were present and were able to make the father stop. The mother was able to put Child A into the motor vehicle and left with the children. The father denied yelling at the mother or attempting to choke her.
110The mother later returned to speak with the father. She asserted that he appeared calm at first. After explaining to the father that the children were being minded by the mother’s friend, the father started choking and head butting the mother. Again, the paternal family were alerted and were able to stop the father. The father denied that he had assaulted the mother, but admitted he had been yelling at her.
111The parties had not finally separated at this stage and the father continued to care for the children to some degree whilst the mother worked. The mother was “distraught” at leaving Child A and Child B in the father’s care, particularly as the paternal grandmother’s home was quite volatile and there was, on her case, “a lot of fighting and swearing and yelling in that home and, during this period, I saw this regularly occur in front of [Child B] and [Child A]. On these occasions, I saw the girls freeze, shake, scream and hysterically cry”. The father denied that the children had been exposed to family violence committed by the paternal family as alleged by the mother.
112On 22 June 2013, the mother separated from the father. The police issued the father a 72 hour notice in order to allow the mother time to obtain a VRO against the father. The father was served with this notice but admitted to assuming it was just a 48 hour notice and contacted the mother that evening, breaching the notice.
113On 1 July 2013, the mother was granted a VRO against the father that extended to Child A and Child B. The father breached the VRO “almost immediately”, in particular between 5 September to 11 September 2013 the father sent the mother 31 text messages. The mother reported this to the police (as reflected by the police’s statement of material facts annexed to the mother’s trial affidavit) and the father was ultimately charged with aggravated stalking and multiple counts of breaching the VRO. The father was convicted on 2 August 2013 and a community-based order was imposed.
114The father also sent letter and email correspondence to the mother, she described these emails broadly as “He wrote about us being together and he also wrote about finances, asking why my pay was no longer going to the joint account”. The mother annexed as example an email of the father’s dated 27 June 2013 which I replicate here:
MY LOVES
[Mr Headley]
Reply½
To:
[Ms Steners] <[email address]>;
[Ms Steners] (work) <[email address]> Thu 27/06/2013 2:53 PM
Please [Ms Steners], I miss you and the girls and I love you all so much. I’m not the monster you think I am and you don’t have to be afraid. I’m not angry about what you’re doing, I understand; in a way. I know you want a break and I respect that. Why have you ‘changed’ so many things though?
Your pay hasn’t gone into our account so you must’ve had it redirected to another one ([Ms D’s] or you opened your own - reopened your Commonwealth account?). What about our [NSW] mortgage, our home and all our belongings?...and we’ve got heaps of bills! I can pay the bills by credit card (meaning we’ll owe about $11K on it) so there is enough in our account for the mortgage on Friday. That will leave less than $400 in the account.
It’s not all about $ though…it never is. It’s just that if we can’t pay our mortgage and bills after this week, we’re going to lose everything…including our dream home - and probably our belongings too! Our names will be in the mud. We’ll have the biggest black marks against our names and we’ll never be able to do anything/get anywhere. What kind of life will that allow us to give our girls?
This all tells me that you’re leaving me for good…please don’t do that baby! I know deep down you’re still in love with me, but you want me to be the man you met and fell in love with. I want to be that man too and I finally am. I know I have put you through a lot of shit and at times made you so unhappy and I am so sorry for that. I want/need to make amends. You’re a beautiful, gorgeous and intelligent person who deserves the world…everything you thought you’d have with me - that you will have if you come back to me. I want to show you that I am who/what you want!
My girls darling, I need to see them and they need to see their father! I’m going out of my mind. I miss there cute little faces and smiles and I just want to hold them. I assume you’re going back to live at [A’s] this weekend; and going back to work Monday. I’ve spoken to [A] and asked her to speak to you on my behalf (I don’t know if she has) and she said that if you’re willing to see me, she will come with you to the park across the road from her house (so you feel safe) and I’ll meet you there. There’s absolutely no need though, but I understand if you want to do it that way. Or even if you want the police to be there, that’s fine.
Like I’ve told you in txts (hope you’ve received and read them), this has completely changed me - for the better of course. I am definitely not angry and I have given a lot of thought to the way things have been. Everything is my fault because of what I originally did and I’m sorry. I will be a better husband and a great father. I have changed so much in just a few days because of this realisation. Knowing that I’m to blame 100% and none of our problems are your fault at all, has provided me the opportunity to change my ways.
I think about our good times - our wedding, honeymoon, the birth of our beautiful girls and so on…and prey that you do too and decide not to throw our relationship away. I’ve looked at photos, read poems we’ve written each other and I’m amazed at how, because of me, we’re in this situation. We were in love my dear (I still love you and hope you love me) and I know we still can be.
I’ve been ‘doing things’ to show you that I’m going to stop procrastinating. I’ve looked up and rang about courses to help me get into the [fly in/fly out work]…and I’ve found one. I’ve inquired about ‘tickets’ that will help and I know how to go about getting them. I’ve also been told (by 2 people now) that I probably won’t get a mining job this year but jobs in [this] field will be abundant early next year! I want you to teach me how to cook, I’m going to help more with the girls, etc. Bottom line - I’m going to make things easier for you and let you rest/sleep :)
A happy life with you and our girls is all I want and I know it’s what you want too! Please make contact with me baby, I miss you and the girls so much…I love you all the more than anything in the world and can’t live if what we had/have is lost.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
115The father sent the mother a further email on 29 June 2013, stating, inter alia, “I had to have the mortgage cancelled (we’ll have to make it up later) because your pay didn’t go in and I didn’t pay those bills. What are we going to do about it baby? Can you please have your pay put back into our joint account and come back?”.
116During this period the paternal grandmother sent the mother an undated handwritten letter, which the mother described as “what appeared to be directions from [Mr Headley], such as telling me what bills to pay”. I replicate this letter below:
How is [Child B’s] arm?
Put all money in Joint Account as it reduces mortgage + interest charges
Cancel restraining order, So you don’t have to go to Family Court. [Mr Headley] is still hoping there is a chance, he loves you + babies. Contact will only be made for finances + the girls. Consellor says he is doing well, doubled medication. He will keep his distance when and if you drop girls off.
Sorry he paid [M], he doesn’t know what to pay + what not to pay. You have Rates + power bill which will be coming out soon.$6085.$60.00 (2) coming out on Sep. 6th, Money coming out of your account Sep. 4th Inscurance. Sep 5th Power Bill.
Is it possible for you + babies + maybe [Mr Headley] to see my Mum? She is very sick. Bedridden. Why don’t you let your Mum + Dad pay rent straight to you + [Mr Headley], that way there are no fees or LandFeesTax. Car Rego was due on 24th June it has to be paid end of September, whichitis the latest. Do you want [Mr Headley] to pay rego with with credit card. [Mr Headley] has no fines + his lawyer is free, through Legal Aid. [Mr Headley] lost his Credit Card, he had to cancel it, So yours won’t work. Are you going to pay [B] with tax returns? Is your tax return going into joint account?
Go payment due on Sep 5th $155.00
[Mr Headley] has been to 2 sessions of Marr. Counselling. Thankyou for taking the time to read this, as I said if you cancel Restraining Order at least you can talk about Babies + Finances, because at this stage you don’t know what bills are due, plus it would be better for money to go into joint account. You know [Mr Headley] will spend what has to be paid on bills.Thankyou.
Love to Babies.
P.S. He has a new Credit Card. [Paternal Grandmother].
xxxx
117As the above email and letter suggest, the parties were experiencing financial difficulties at this time and the father had cut off the mother’s access to his credit card account, seemingly in hope that she would be forced to contact him to access his credit card. The mother was wholly responsible for the mortgage over their New South Wales property from separation until February 2014. The father did not pay child support until October 2014. From early 2015 the mother was paying half the mortgage repayments, amongst other expenses. The mother was not eligible for free legal assistance regarding property matters and could not afford private legal representation to finalise financial matters with the father. The mother felt, as stated, that “[Mr Headley] was controlling me by making my financial position more and more unstable”.
118On 14 February 2015, under increasing financial pressure, the mother made the spontaneous decision to approach the father at a supervised visitation handover. She stated “My reason for wanting to go and speak to him was that I was so worried about my financial position and the only solution I could see was to try and approach him myself about it” and further, “I was frightened but I was feeling very desperate about my financial situation”. She had no intention of reconciling with the father.
119The father described this meeting as the beginning of the mother’s “plan to remove me from our daughters’ life for good”. He deposed that at that time the mother “wanted us to all move back to New South Wales as soon as possible and she was struggling financially and needed my help”.
120The parties’ proceeded to commence direct communication and physically have contact with one another. Initially the mother reported these interactions were positive and that the father assisted with her financial situation.
121In March 2015, the mother became aware that her bank had forwarded one of her emails to the father and as a result he knew where she lived. The communication between the parties started to deteriorate and the mother “became very frightened about the situation, believing that if I didn’t go along with everything [Mr Headley] said, and asked for, he would come to my house”.
122On 14 April 2015, as set above, the parties’ came before Magistrate Monaghan and advised that they planned to relocate to New South Wales.
123Around this time, the mother stated that the staff at Relationships Australia advised her that they were becoming increasingly concerned for her safety and that as a result they were going to cancel the supervised visitations. Entered into evidence was a report dated 10 October 2014 by [Ms T] of Relationships Australia’s child contact services. The report sets out concerns that during supervised visits the father had made “unrelenting” questions predominantly about the mother:
[Mr Headley] made queries about [Ms Steners] and her movements at various times … For example he called the office to enquire as to who drove the girls to the previous visit as he had checked the phone bill for the house he and [Ms Steners] owned and saw that the telephone had been used. He stated that therefore [Ms Steners] must have been back in New South Wales and waited for staff to respond.
124Also entered into evidence was a report dated 23 December 2015 by [Mr S] [of] Relationships Australia, which report was directed to the father’s attendance at supervised visitations with the children and at the FAIR program, prior to his incarceration.
125As with the earlier Relationships Australia report, Mr S expressed significant concerns in relation to the father’s behaviour at the supervised visits.
126Regarding the FAIR sessions, the father had attended more than 50 sessions focussed on addressing his abusive behaviour towards the mother, however, despite the number of sessions attended the report was not positive. Mr S recorded that, amongst other things, the father:
… commented that if [Ms Steners] did not allow him to see his daughters he would financially withhold and stop paying their mortgage. He also stated that that he knew where his daughters went to day care (he would not say how he learnt of this when asked) and that he was aware of [Ms Steners’] whereabouts through checking bills (still in joint names due to their co-ownership of a house).
127Mr S also observed that the father advised staff of his ABI and attributed it as the cause of his impulse control issues, although no behaviour was observed by staff over the 12 month engagement period that supported his contention. Further, that the father “demonstrated the ability to control and manage his behaviour well when he chooses to”.
128The father has responded to the Relationships Australia reports and argued that they were “full of untrue statements”. He admitted to having “occasionally” made enquiries regarding the mother, but “that was because I was almost 100% sure of what was happening with my daughters, but I wanted confirmation and was curious as to their whereabouts and was happening in their life. I know it was inappropriate, but I wanted to know everything I could about [Child A] and [Child B], not [Ms Steners]”, but denied the other allegations.
129The mother became concerned that the father was stalking her. She deposed that on 26 May 2015, whilst out for a meal at [Suburb N Pub], the father “walked so close to me we were almost touching. As he walked past, he turned around and smiled at me. He didn’t say anything”. Further, “On one occasion [Mr Headley] made a comment to me about something in [Child A] and [Child B’s] bedroom. I had not invited [Mr Headley] into my house and he had no way of knowing how their bedroom was set up unless he had seen it”. She believed that the father had gone to her home and looked through the children’s bedroom window. The father denied seeing the mother at Suburb N Pub or looking through the mother’s windows into her house.
130The father, when asked by Ms J about the parties’ reinstated communication, responded, “I have reciprocated her approaching me. So I shouldn’t have reciprocated, but in saying that what I’m saying is that I never would have breached it if I didn’t have, like, I guess a – a door ajar, I guess you would call it, so that maybe things would get better between us all so we could work on our children’s lives together”.
131The mother reported the father’s VRO breaches to the police and on 28 May 2015 the father was arrested and charged with aggravated stalking and multiple VRO breaches.
132[In] 2015, the father [was sentenced] to a term of seven months imprisonment. The father’s sentencing remarks were in evidence.
133Despite the lengthy history of family violence I have outlined above and the various experts that the father has had the opportunity to consult with, it appears that he still holds the view that the mother was responsible for inducing him into breaching the VRO, has limited, if any, insight as to the impact of his behaviour and appears to have accepted only very limited responsibility for the same.
134I am left in no doubt that the mother has been subjected to the family violence at a level she has described and that she did not act to induce the father’s behaviour, as he would suggest.
The expert evidence
The father’s health
135As observed, the father has an ABI following a serious motor vehicle accident. It was the father’s case at trial that his subsequent “physical recovery was great and I was only in hospital for a few months and although my mental recovery seemed fine, it wasn’t and I was never quite the same. I guess I was living in denial for years and unfortunately, it took events that I am not proud of for me to change”. As mentioned at the opening of these reasons, the father’s ABI has had continuing repercussions for him and his condition is rather complex as a result. I set out below the various reports and other evidence before the Court in relation to his condition.
136A psychiatric report dated 4 August 2011 by Dr L, consultant psychiatrist, regarding the father was tendered at trial. The report had been requested by the father’s previous lawyer who had represented him in relation to his 2011 criminal charges. Dr L had access to the father’s hospital records, including rehabilitation and psychologist reports, in the preparation of his report.
137The father had been referred to Dr L by his general practitioner, who had opined that father presented:
… “with a complex case including long term problems with anger, head injury as well as probable trauma symptoms. He recently assaulted his wife and says he does not remember anything. He has a history of verbal and physical violence in the past. He also has history of alcohol abuse. The Psychiatrist at [Suburb A Hospital] just started him with Quetiapine 50 mg, two at night”.
138The father had advised Dr L that:
… he had “severe memory loss and blackouts – to the point when I don’t even know what I’m dong or have done”. He stated that it was “as if I had become a different person, as if I have a split personality”. He attributed the blackouts and his inability to remember what he had said or done, to the motor vehicle accident and the frontal lobe damage that he had sustained in 1999, about 12 years ago.
He stated that he had “previously drank a lot, but don’t drink any more for the past month”. He often had 4 drinks each, when he was with his wife. He also stated that he had “weird symptoms”. He had “lost control of himself, can’t calm down. He felt a pressure building up inside him, and he did not remember what he did”. He stated that he sometimes got angry about nothing, and did not know why. Little things had made him very angry. He claimed he loved his wife, and that she was “everything to me”. He stated that he “can’t control it, I just want to be fixed”. He had “tried to get answers as to what is wrong with me, and what can be done to help me”. He stated that he was a ”fairly smart person, that he can usually concentrate fairly well and remember things quite well most of the time”.
139Dr L also interviewed the mother on 7 April 2011 in the preparation of his report. She reported that the father was:
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
and
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
210I consider these two considerations together as they are interconnected and overlap with one another. It is clear that the mother is capable of caring for and meeting the children’s needs and has done so. A question mark remains over her capacity to do so if a relationship with the father and the children is resumed and the inevitability of communication between the father and the mother, particularly if history were to repeat. The evidence leads me to conclude on a balance of probabilities that the father is incapable of recognising genuine communication between the parties that is not intended to lead to a resumption of the parties’ relationship from any other form of communication. It is also concerning that the father lacks the ability to work within acceptable boundaries of communication as observed in the context of supervised contact.
211I accept the mother’s evidence about the circumstances that led her to approach the father regarding the financial position that she was in and in the context that she gave. I reject the father’s evidence that the mother was attempting to resume a relationship or inviting a closer relationship with him or that she had an ulterior motive of ending his relationship with the children. It is the father’s lack of ability to discern that difference that is of concern.
212In considering the impact of any change in the children’s circumstances, I must again necessarily consider the likely risk to them of being exposed to, either directly or indirectly, the consequences of the father’s inability to regulate his behaviour.
213There is a serious risk, rather than a low level or acceptable risk, that the father will, in my finding, expose the children to psychological harm and he is unable to regulate his behaviour such as to mitigate that risk to such a level that the same may be considered to be acceptable.
214I do not ignore the observations made by Dr G, however, and with great respect, the same is based on a more limited interaction with the father and is against the balance of the evidence of all the other professionals involved. Indeed, given the observations made by Dr G regarding the father’s ABI and his behavioural issues, his conclusion is, with great respect, inherently questionable when considered against the balance of his report.
215As I have set out above, in the context of Mr D’s evidence, I raised with him the prospect of commencing a regime of supervised contact between the father and the children. In particular I questioned the potential damage of recreating a relationship between the children and the father which in the likely circumstances of the father’s dysregulation may have to cease and the potential damage to the children from such a future cessation were I to proceed down that path. Mr D agreed that this was a potential risk.
216I am satisfied that unless any contact was strictly supervised, by which I mean within a totally controlled environment, that the children would not be at direct physical risk. However, I cannot ignore the fact that supervised contact cannot continue indefinitely given the demands placed upon the restricted abilities of the service providers and doubt is evident about the father’s capacity to behave appropriately in such an environment.
217The extent of the potential damage of the father’s behaviours are clearly evident in the effect they have had on the mother, in terms of her diagnosed PTSD, a diagnosis with which Mr D agreed, and the evidence of Ms D, which effectively stood without challenge.
Submissions
218As seen, I have received written submissions from the Independent Children’s Lawyer and each of the parties.
219I express my gratitude to the Ms J and each of the parties’ representatives for the succinct and cogent submissions that have been filed.
220The submissions advanced on behalf of the father sadly and inevitably reflect the position taken in the father’s papers for the Judge and his evidence at trial, from which it seems the father does not waver in that he seeks to diminish his responsibility for the position in which the parties now find themselves.
221They also proceed on the basis that the wife’s stated willingness to promote a relationship between the children and their father if she considered it to be safe should be accepted in isolation.
222Further, and whilst there is some factual merit in the submissions of the father that he has effectively “behaved himself” and that it was the mother that “instigated contact”, they ignore the overall context of this matter. As I have observed earlier in these reasons, if indeed the father is capable of behaving himself notwithstanding his ABI and in the face of litigation, then the same adds a greater dimension to the violence that he has perpetrated against the mother and necessitates viewing the dynamics between the parties in the context of that history.
223As the father’s counsel, Mr Bannerman, quite properly submitted, the best predictor of the future is the past, such submission being made with reference to the father’s recent positive behaviour, the same, with respect, ignores the horrific past of family violence and the context of the mother’s attempts to maintain a relationship for the benefit of the children and for the parties’ mutual stability in the face of that past. It also ignores the effect that that past has had on the mother and the possible impact of a reintroduction of a relationship between the father and the children which inevitably involves the mother. As Mr D observed in his cross-examination by Mr Rynne:
RYNNE, MR: Okay. Are you aware of any research which has been able to demonstrate generically some effects upon children where their parents have been particularly domestically violent towards each other?
[D], MR: Yes. Both PTSD and domestic violence have – can have significant effects on the children’s behaviour emotionally, psychologically, physical in their upbringing.
RYNNE, MR: Right?
[D], MR: Now, domestic violence we know for sure. So this domestic violence is not just separation, it is chronic violence. So determinant ACV violence where there’s continuous.
RYNNE, MR: Yes?
[D], MR: And that affects children. And I think may have reported what it can do. But the list is endless, from externalising behaviours to be – you know, the children being aggressive, using drugs, having poor relationship. If there is – if they stay in a domestic violence relationship. We must be mindful that a mum moved away here, so the children are fine now. They’re not in danger. If we bring them back in a domestic violent relationship – so let’s say supervision – the court orders supervision, goes to unsupervised, goes to weekends, the father gets in another relationship, the chances are extremely high he’s going to be violent to that partner. So if the children are with him he may possibly expose them to that. So that research is extremely detrimental; from depression to anxiety to all sorts of psychological – really you can just about quote the whole book of diagnostic adverse effects.
RYNNE, MR: Adverse effects?
[D], MR: But that is if we expose these children these children to domestic – remember, these children are not in a domestic violence relationship now. They haven’t been for a long time. They’ve been protected from the father.
RYNNE, MR: Yes. But the mother’s mind ‑ ‑ ‑?
[D], MR: From 2013 that incident.
RYNNE, MR: But the mother’s mind, a portion of the mother’s cognition will always be the existence of a domestically violent relationship at somewhere in her thought process?
[D], MR: If she can get away from it then she can heal herself and move on with her life. If not, then, of course, yes.
RYNNE, MR: Thank you. Right. Let me turn now to the father’s functioning. You mentioned before that past behaviour is the best predictor of future behaviour. What we’ve seen, and you were given some reports that the father has recently received some counselling in relation to alcohol use. We’ve seen – he has attempted to do a number of things. But tell me, can mature humans, such as the father, repatriate poor behaviour?
[D], MR: I think – so you refer to the recent counselling at [Suburb P Alcohol and Drug Counselling Service].
RYNNE, MR: Yes?
[D], MR: So I need to comment on that.
RYNNE, MR: Yes?
[D], MR: That’s great for the father. Does it change my views or do I think he is rehabilitated? It doesn’t change anything. I’m pleased for the father. I would have congratulated him. That’s good. And that’s good he has got a good relationship and that he wants to address his alcohol issues. Alcohol has been an issue and that’s fine that he wants to remain abstinent. And that’s – but it doesn’t really change anything of his behaviour. If you go back to 2009 and you go through his history, he had many treatments, he was twice at the FAIR program, he had individual counselling by a variety of, not just counsellors, but clinical psychologists. It hadn’t – it did not change his behaviour. This report doesn’t change the behaviour. So with the word “repatriation” I take it’s rehabilitation you’re referring to, or change?
RYNNE, MR: Yes?
[D], MR: Does that change the father’s emotional regulation and his impulsiveness and in situations, no.
RYNNE, MR: No?
[D], MR: We need a far longer time period to see. The father is also not in a relationship with a woman. I’m pleased to see that he has got a job. So that counts in his favour that he is more ‑ ‑ ‑
RYNNE, MR: Well, he doesn’t – no, he has a new relationship; did you say that?
[D], MR: I don’t know.
RYNNE, MR: No. No. He does?
[D], MR: When I saw him he didn’t.
RYNNE, MR: No. He has. He has told us in his latest affidavit that he has recently formed a new relationship?
[D], MR: Which is wonderful. I’m pleased for [Mr Headley]. The difficulty as a clinician is, is he going to repeat this behaviour. So research will tell us he is going to repeat this behaviour. Sadly. And [Mr Headley] really needs to address that. And I don’t see any signs in the history that he has addressed it. So hopefully he has now, but I can’t put hope on it. So it remains to be seen.
RYNNE, MR: Okay. I have no further questions. Thank you.
224There is certainly merit in the father’s submissions that during the currency of the proceedings there is no evidence that the father has sought to attend at the mother’s place of employment or made efforts to find out where the children attend at kindergarten or school and that stands to his credit, however, the Court cannot ignore the response by the father to the mother’s prior attempts to engage in reasonable exchanges with the father outside of the scope of litigation.
225The father’s position should also be viewed in the context of that which he seeks. His orders propose not only a rapid transition from a zero contact regime to equal time with equal shared parental responsibility, but also contemplates open and extensive opportunities for communication between the parents not only in the context of their long-term responsibilities but generally.
226It was submitted on behalf of the father that “allowing the children to have a relationship with their Father would provide any necessary incentive for the Father to demonstrate his ongoing sustained positive attitude towards self-improvement, abstinence from alcohol and involvement in counselling, courses and self-help groups to maintain and improve upon his impressive efforts to turn his life around”. Such a submission is, with respect, to “place the horse before the cart” given the history of this matter and my conclusion that there is an unacceptable risk that the father’s current apparently stable behaviour will not continue. It is not the role of the Court, nor within the contemplation of an assessment of the children’s best interests, to utilise children as a motivational tool.
227In the context of proceedings such as this, it is right for the Court to have concerns as to the perception of whose perceived “rights” are being advanced.
228The mother in effect adopts the submissions of the Independent Children’s Lawyer.
229The Independent Children’s Lawyer in her submissions relies heavily upon the evidence of Mr D.
230I do not ignore the observation made by Dr G that the father should have supervised contact with the children, however, as I have observed earlier, the same, with respect, lacked context.
231I agree with the following submission of the Independent Children’s Lawyer:
It is quite clear from the evidence, particularly from the evidence of the Mother and from the Single Expert, Mr D, that [Ms Steners] has been subjected to horrific and ongoing family violence. The Father, [Mr Headley] has been imprisoned for approximately 7 months for numerous breaches of the Violence Restraining Order.
The violence described by the Mother in her evidence is horrific. Evidence from the Mother’s psychologist and the Single Expert indicate the Mother has suffered from Post-Traumatic Stress Disorder, is genuinely frightened for her safety and welfare and for the safety and welfare of the children. The Mother is concerned that her whereabouts are located, the Father will again attempt to contact her, follow her from work and try and track the children down.
The Mother gave evidence about changing motor vehicles particularly when the contact was not formally supervised by a supervised contact service but by a private agency and agency for profit.
The Father’s police record was admitted into evidence as exhibit 4 and clearly sets out his criminal history.
The Mother’s fear of ongoing violence is a real fear.
The children have witnessed and heard significant family violence both until the parent’s separated.
232Both Mr D and Dr G acknowledge the father has an organic brain injury which has affected his capacity to regulate his behaviour to the extent that it is that injury that causes the father’s dysregulation and the Court has great sympathy for him in the circumstances that he finds himself particularly, vis-à-vis his children. However, as I have observed earlier, there is an overlaying factor of his inability in the past to regulate triggers, particularly through alcohol, to his violent behaviour.
233Mr J quite properly refers to the concerns raised by Relationships Australia and properly identifies the potential damage to the children long-term if I were to make orders that created the re-establishment of a relationship which then failed and the potential damage of that to the children, ignoring any effect that such a resumption may have on the mother and consequentially on the children as a result of her PTSD occasioned by her history with the father.
234I respectfully agree with and adopt the submission of the Independent Children’s Lawyer under the heading “How will it affect the children?”, which I set out below:
Mr D went on to give evidence, you and I have been involved in a case examples where significant violence and threat to kill where children are murdered, so where they tried and murder the other parent. So I need to really listen to this Mum. This Mum has a real reason to feel the way she does. She actually, when I saw her on two occasions actually underplayed a little bit, in my view, what really her difficulties were. I think that is better represented in [Ms H’s] report, that is how she really feels. To put it in her words, she is very clear he will just hunt her down, so that is just to give you an idea of how she feels and what is described in the Post-Traumatic Stress Disorder symptomatology, that is why they are hyper vigilant. She knows, he knows where she lives and works so she is extremely concerned and how is she going to cope with that. She will have great difficulty, I think but I think she has always stuck to the Orders.
Conclusion
235Having regard to the matters I have set out above, I cannot be satisfied that a resumption of contact between the father and the children, with the inevitable contact with the mother, would be in the children’s best interests and I accordingly decline to so order.
Form of orders
236For the reasons I have given, I determine that there should be no order for contact between the children and their father.
237The mother has sought orders that would provide her with sole parental responsibility for the children and eliminate any need for her to consult with the father regarding any long-term issues. Long-term issues are defined in the Act as follows:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
238Although the mother has sought to dispense with the father’s consent for a change of the children’s surname, I decline to make that order at this stage. As I have observed in these reasons, the father has not made attempts to contact the mother or the children during the currency of the proceedings. If, however, following the conclusion of these proceedings he did so attempt to contact the children then I would leave it open for the Court to consider such an application to the extent that the same is necessary beyond the allocation of sole parental responsibility.
239The mother’s minute of orders seeks specific orders prohibiting any form of communication in the future.
240Pursuant to orders made by Magistrate Monaghan on 14 January 2016 and until further order, the father was entitled to provide to the children “through the Independent Children’s Lawyer cards, gifts, photographs and letters, with the Independent Children’s Lawyer retaining the discretion not to forward any items that she considers are inappropriate”. No concern regarding the father’s compliance with his Honour’s orders was raised during the trial.
241Whilst I am satisfied that the balance of the orders sought by the mother are within the contemplation of her having sole parental responsibility and otherwise necessary for the protection of the children, I am concerned that if I were to exclude future communication entirely then should the children in later years express a desire to have contact with the father, at a point where they are of a level of maturity where that decision should be respected, that they should have the ability to be able to do so.
242I am mindful of the ongoing impracticality of the orders made by Magistrate Monaghan continuing indefinitely as the Independent Children’s Lawyer will be discharged following the conclusion of these proceedings and by my order as proposed below.
243I will hear counsel as to any practical means of continuing Magistrate Monaghan’s order that does not disclose the children’s whereabouts, their names or schools as I hold concerns that upon the conclusion of these proceedings if the father became aware of any particulars of the children that facilitated his ability to contact them directly that he may not have the capacity to prevent himself from doing so and bring to the children a potential for harm.
244Subject to hearing from counsel as to the above issue, I propose therefore to order as follows:
1.Any interim parenting orders be and are hereby discharged.
2.The children, [CHILD B] born [in] 2012, and [CHILD A] born [in] 2012, live with the mother.
3.The mother have sole parental responsibility for the said children.
4.The mother be at liberty to change the place of residence of the said children within the Commonwealth of Australia.
5.Any orders with injunction restraining the mother from changing the place of residence of the said children be and are hereby discharged.
6.The mother be at liberty to remove the said children from the Commonwealth of Australia for the purposes of holiday travel and the necessity for the consent of the father for such travel be and is hereby dispensed with.
7.Subject to the requirements of the Department of Foreign Affairs and Trade or any other passport issuing authority from time to time within the Commonwealth of Australia, the consent of the father for the issue of Australian passports to each of the said children be and is hereby dispensed with.
8.The father be restrained and an injunction is hereby granted restraining him from:
(a)approaching the mother within 50 metres;
(b)approaching the said children within 50 metres;
(c)approaching any premises where the mother or the children live or work or are educated; and
(d)removing the children from the care of the mother or her agents.
9.The Independent Children’s Lawyer be and is hereby discharged.
10.The proceedings otherwise be and are hereby dismissed.
I certify that the preceding [244] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
30 November 2017
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