Heilig and Cabiness
[2011] FMCAfam 97
•2 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEILIG & CABINESS | [2011] FMCAfam 97 |
| FAMILY LAW – Parenting – family violence – coercive controlling violence – no contact or communication. |
| Bail Act 1998, ss.9A Crimes Act 1900, ss.35, 59, 61, 562AB, 562AC, 562BE, 562G Crimes (Sentencing Procedure) Act 1999, ss.3A, 10 Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA |
| Attorney-General for Tasmania v O [2004] TASSC 53 People, Julie, “Trends and Patterns in Domestic Violence Assaults”, NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No 89, October 2005 |
| Applicant: | MR HEILIG |
| Respondent: | MS CABINESS |
| File Number: | WOC 61 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 7 – 8 December 2010 |
| Date of Last Submission: | 8 December 2010 |
| Delivered at: | Wollongong |
| Delivered on: | 2 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Healey |
| Solicitors for the Applicant: | Hennikers Solicitors |
| Counsel for the Respondent: | Ms Doosey |
| Solicitors for the Respondent: | Rossi Simicic Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Barry |
| Independent Children’s Lawyer: | Lukes Law |
ORDERS
The Father’s Contravention Application filed 22 January 2009 is withdrawn and dismissed.
That all previous parenting orders be discharged.
That the children of the marriage, namely [X] born [in] 1996, [Y] born [in] 1998 and [Z] born [in] 1999, live with the Mother.
That the Mother have sole parental responsibility for the day to day and long term decisions for the care, welfare and development for the said children including decisions regarding the issue of Passports, overseas travel arrangements, applications to change the name of the children.
That the Mother be at liberty to approach the Registrar of Births, Deaths and Marriages in the State of New South Wales to change the name of the said children.
That the Father be restrained from approaching the children or the children’s schools or communicating with the children by any means including through a third party.
IT IS NOTED that publication of this judgment under the pseudonym Heilig & Cabiness is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 61 of 2009
| MR HEILIG |
Applicant
And
| MS CABINESS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about three children and whether they should spend any time with their father, who is the applicant in these proceedings. The oldest child is [X], who is 14 years old. The middle child is [Y], who is 12 years old, and the youngest child [Z], 11 years old. The children currently live with their mother and it is common ground that they have had no contact with their father since early 2004, nearly seven years ago. The applicant father and respondent mother commenced a de facto relationship in about 1994, married in 1997, and separated in 1999. The father is 38 years old, and the mother 34 years old. The father is not currently in a relationship, but the mother married her current husband, Mr G, [in] 2008. They have one child, [name omitted], who is three years old. The mother’s new husband provided an affidavit in support of the orders she sought, and was not required for cross-examination. I therefore accept that he has a close relationship with all three children.
Background
These proceedings were commenced by way of the father filing a contravention application on 22 January 2009 which first came before the Court on 4 February 2009. Pursuant to directions made by Brewster FM which were, no doubt, designed to identify and deal with the real issues in this case, the father was directed to file an application, which he did so on 9 March 2009. The contravention application was not pressed at the final hearing, quite properly so in my opinion. I therefore dismiss the contravention application filed 22 January 2009. In his application, the father sought orders that the children live with the mother but spend time with him each alternate weekend and half the school holidays. As the proceedings progressed, his position changed. At the commencement of the hearing the orders sought were, in effect, for the father to spend time with the children on a gradually increasing basis starting from four hours each Saturday at the home of, and supervised by, the paternal grandparents and then, after six weeks, each alternate weekend from Friday to Sunday, increasing to Monday and so forth. The requirement for supervision would cease after a period of 12 weeks.
The father’s proposal further seemed to evolve during the course of the hearing when the obstacles confronting his proposal became more apparent to him, and to his advisers. During his cross-examination, for example, he adopted the pragmatic position that he would take whatever time was ordered by the Court, or which the mother was prepared to accede to. By the time of final submissions, his proposal had further evolved such that his Counsel submitted that it was appropriate to make interim orders which involved supervision at a supervised contact centre, at least for a period of time.
The father’s final proposal, contained in a document entitled “Revised Orders Sought by Applicant Father” sets out interim and final orders in these terms:
INTERIM ORDERS
1.The mother to provide recent photographs and school reports of the children [X] (born [in] 1998), [Y] (born [in] 1998) and [Z] (born [in] 1999) to the father within twenty eight (28) days of the making of these orders.
2.The father to send any letters to the children from the father to a counsellor within the Federal Magistrates Court to be vetted and deemed suitable before being onsent to the mother’s address.
3.The matter be adjourned for twelve (12) months with an order for an updated report from Dr W.
FINAL ORDERS
1. That the children live with the mother.
2. That the children spend time with the father as follows:-
(a) For a period of one (1) hour each month at Centacare Wollongong for a period of nine (9) months from the date of these orders.
3.After the expiration of the initial nine (9) month period, the father will spend time with the children whilst being supervised by either the paternal grandparent or paternal uncles and aunts, at the paternal grandparents’ residence as follows:-
(a) On the second Saturday of each month from 2.00pm until 4.00pm
(b) On the father’s birthday from 5.00pm until 7.00pm.
(c) On Christmas Eve from 2.00pm until 5.00pm
(d) On the children’s birthdays for a period of one (1) hour.
4.For the purposes of implementation of the contact referred to in Orders 2 and 3, the mother is to deliver the children to Centacare or to the residence of the paternal grandparents at the commencement of each contact period and she is to collect the children from Centacare or the paternal grandparents’ residence at the conclusion of each contact period.
5.The mother is to be responsible for the day to day care, welfare and development of each child.
6.The mother to have sole responsibility for making decisions as to the school which each child attends.
7.The father be restrained from saying anything to or in the presence of the children which is in any way derogatory of the mother or allowing any other person to say anything to or in the presence of the children which is in any way derogatory of the mother.
8.The mother be restrained from saying anything to or in the presence of the children which is in any way derogatory of the father or allowing any other person to say anything to or in the presence of the children which is in any way derogatory of the father.
The revised orders were not received until after the close of evidence and submissions. This is less than optimal but, under the circumstances I am satisfied that there was more than adequate evidence before the court to determine the matter, on a final basis as it turns out.
The mother’s proposal, supported by the Independent Children’s Lawyer, is that all previous orders be discharged, that the children live with the mother who has sole parental responsibility, that the father be restrained from approaching or contacting the children, and that the mother be of liberty to change the children’s surname so that they are known as [G]. For all practical purposes, that has been the position of the mother since her response was first filed in April 2009.
The father was at all times been represented by his solicitor, and at the hearing was represented by Ms Healey of Counsel who, it should be noted, also represented the father in the criminal proceedings to which I will refer to shortly. The mother was represented by Ms Doosey of Counsel. Ms Luke was appointed as Independent Children’s Lawyer, and Mr Barry appeared as Counsel at the hearing.
The current orders were those made by O’Ryan J (Cabiness v Heilig [2003] FamCA 1690) on 21 November 2003, after a three-day hearing in the Family Court at Sydney. Those orders provide for the children to live with their mother but to have contact with their father each alternate weekend from Friday to Sunday, as well as half the school holidays. On 9 December 2009 I made an order that such orders as enable the father to spend time with the children be suspended. The undisputed facts were that there had been no contact between the father and the children since early 2004.
A number of important concessions were made on behalf of the father, by his Counsel, during final submissions. It was conceded that there was, at the current time, no meaningful relationship in existence between the children and the father. It was also conceded, on the basis of evidence given by the father in cross-examination, that at the very least the children were present in the same building in which quite serious family violence occurred up until 2004, though it was not conceded that the family violence was necessarily perpetrated against the mother. The mother alleges that the father perpetrated family violence against the children, which he strenuously denies. Counsel for the father also commenced her submissions by conceding the inescapable fact of various convictions for violence by the father perpetrated against the mother and other women with whom he had intimate relationships. It will be necessary for me to go into this in more detail below.
Issues
Having regard to the broad introduction and statement of background above, the main issues in this case appear to be as follows:
a)Is there benefit to the children in having a meaningful relationship with their father in circumstances where it is conceded that no such meaningful relationship currently exists (s.60CC(2)(a))?
b)Is there a need to protect the children from psychological harm, from being subjected to or exposed to abuse, neglect or family violence (s.60CC(2)(b)) in circumstances where the mother conceded that, having regard to the father’s various proposals, there was no risk of physical harm to the children whilst in the father’s care?
c)Have the children expressed views about spending time with their father, and if so what weight ought to be given to those views?
d)Subject to the resolution of the issues identified above, it may be appropriate to undertake a broader consideration of any relevant additional considerations under s.60CC(3). This may well be a case, however, where determinations made in relation to the first three issues mean that the additional considerations are not necessarily determinative.
Applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(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;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Family violence
In the recent Full Court decision in Sigley v Evor [2011] FamCAFC 22, the Full Court discusses what will be one of the main issues in this case – the meaning of “meaningful” in the context of “meaningful relationship” in s.60B(1)(a) and s60CC(2)(a). The Full court states at paragraphs 131-133 and 136:
Definition of ‘meaningful’
131. As to the definition of “meaningful”, which appears in s 60B(1)(a) of the Act, being the first object of Pt VII, and s 60CC(2)(a), being the first primary consideration, in McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court (Bryant CJ, Faulks DCJ & Boland J) observed at 83,475: “The Act does not contain a definition of ‘meaningful’, nor does it provide any specific criteria to assess how parents either have, or should have, a ‘meaningful involvement’ in a child’s life. It does not give guidance to the interpretation of the phrase ‘meaningful relationship’ ”.
132. In Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
133. In McCall & Clark the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”. The Full Court observed at 83,476:
117. Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.
118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
…
136. We also observe that in Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at 83,502:
103. The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at 83,513: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
Allegations of family violence occur frequently in courts exercising jurisdiction under the Family Law Act. It is expressly referred to in the legislation. Family violence is defined in s.4(1) in the following terms:
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
It is important to note that s.60CC(3)(m) permits the court to take into account any other fact or circumstance that the court thinks is relevant. Thus, any other form of abusive or controlling conduct that does not necessarily fall within the statutory definition may nonetheless be considered in determining what is in a child’s best interests.
Experience in this jurisdiction teaches that family violence can often cast a long shadow. Thus the impact of violence can endure for many years after it has ceased. Victims, witnesses and others exposed to violence including children may thus experience physical and/or psychological harm long after violent relationships have ended. Nonetheless every case must be determined on its merits and by reference to the evidence.
The relevance of family violence permeates all of the primary and additional considerations referred to in ss.60CC(2) and (3). Family violence may have an impact on meaningful relationships (s.60CC(2)(a)) and create the need to protect children from physical or psychological harm (s.60CC(2)(b)). Family violence might influence the views expressed by a child (s.60CC(3)(a)), and set a context in which to examine and understand the nature of a child’s relationship with a parent or another person (s.60CC(3)(b)). Family violence might explain a parent’s willingness, or lack thereof, to facilitate and encourage a close and continuing relationship between a child and a parent (s.60CC)(3)(c)). When a finding of family violence is made, a child might be more vulnerable to suffer the adverse effects of changes in their circumstances including separation from a parent (s.60CC(3)(d)). Issues of practical difficulty and expense might be accentuated if there is violence (s.60CC)(3)(e)). Sometimes family violence has an impact on the capacity of the victim to provide for the needs of a child, and raises similar issues about the perpetrating parent (s.60CC(3)(f)). In some cases the maturity, sex, lifestyle and cultural background of a parent provides some context in which to examine and understand violence, though experience indicates that its impacts are often the same (s.60CC(3)(g), (h)). Family violence may well reflect poorly on the perpetrating parents’ attitude to the child, and to the responsibilities of parenthood. Thus, for example, a violent parent may be considered a poor role model for a child (s.60CC(3)(i)).
The previous Family Court proceedings
In this case, it is necessary to consider previous proceedings involving the parents in the Family Court as well as the criminal proceedings involving the father. O’Ryan J heard the mother’s application against the father over three days on 18-20 November 2003, and provided written reasons for judgment on 21 November 2003. Each parent proposed that the children live with them and have contact with the other on weekends. There was an issue in the case about the periods in which the children had lived with each parent and as to who had been the primary carer. There was also an issue about the father’s use of illicit drugs in the presence of the children, and family violence. After hearing the evidence, his Honour in fact made findings about family violence against the father, and also in relation to his consumption of illicit drugs. It is clear from his Honour’s reasons that the children had, in fact, been in the exclusive care of the father for several years, though not to the extent asserted by him. Apart from a few periods of months, the mother was still actively involved in the children’s lives. I formed the impression from his Honour’s reasons that both parents led relatively unstable lives between the date of separation and the date of the final hearing. Their relationship was a tumultuous one and there were live issues about each parent consuming illicit drugs, as well as clear concerns about the father’s mental health, and clear findings about his violence towards the mother. After separation the father entered into a number of subsequent tumultuous, violent relationships which were also characterised by the consumption of illicit drugs. There is no doubt in my mind that this was a period of great stress and uncertainty for the children, and that this was ultimately resolved by the making of his Honour’s final orders. His Honour also made findings about the father’s involvement in criminal activities and conviction for various offences, to which reference will be made below. What is clearly apparent to me, however, is that the full extent of these criminal activities was not apparent to his Honour. Indeed, whilst one can only surmise, it is in my opinion highly unlikely that his Honour would have allowed the father to have any contact with the children if he had known about the 2006 criminal proceedings involving the father which covered numerous offences predating his Honour’s reasons.
O’Ryan J clearly had concerns about the current state of the father’s psychological health, but there was insufficient medical evidence to enable him to make any findings about this. The issue of the father’s psychological/psychiatric health assumes a great significance in the context of the criminal proceedings, to which I will make reference below.
O’Ryan J found the father an unimpressive witness and for reasons clearly stated preferred the evidence of the mother. I must say that, based on my knowledge of this case now, and a reading of his Honour’s judgment, the outcome was clearly unsurprising and, quite frankly, to be expected. The father, however, was clearly unhappy with the outcome, and continues to be unhappy even today. The only matter of interest that is worth noting in these reasons is that the mother herself proposed that the father have contact each alternate weekend and for half the school holidays. At one level, this is surprising given the seriousness of the allegation that she makes about the father’s violence not only to her, but to the children, and certainly in the presence of the children. Clearly, however, the mother was not aware of the nature and extent of the father’s violence towards his other intimate partners, after the date of her separation from him. In any event, the mother’s proposal before O’Ryan J is hardly consistent with a parent not wishing to facilitate an ongoing relationship between the children and their father.
Subsequent criminal proceedings
In evidence before me was the sentencing decision of District Court Judge Charteris, dated 5 May 2006, and the decision of the Supreme Court of New South Wales Court of Criminal Appeal of 20 September 2006, being the Crown appeal against the sentence imposed on the father by Charteris J. What transpired is that on 22 November 2005 the father pleaded guilty to an indictment which contained nine counts. I will set out the details of those counts shortly, by reference to the Court of Criminal Appeal judgment, but in the meanwhile it is important to note that Charteris J sentenced the father on 5 May 2006 and made various domestic violence orders protecting the mother for a period of 10 years.
The decision of the Court of Criminal Appeal is cited as R v Heilig [2006] NSWCCA 302 (20 September 2006). The leading judgment was delivered by Johnson J, with whom Hunt and Latham JJ agreed. As indicated, it was an appeal by the Director of Public Prosecutions alleging manifest inadequacy of sentences imposed on the father for what the Court of Criminal Appeal described as “a number of serious domestic violence offences”. At paragraph 4 Johnson J notes that the total effective sentence imposed upon the father for the offences comprised a non-parole period of two years and six months, expiring 24 December 2006, with a balance term of two years expiring
24 December 2008. His Honour noted that the father had been in custody with respect to these matters since 25 June 2004.
In the circumstances of this case, it is unavoidable for me to set out the facts of the offences perpetrated by the father, and as stated by the Court of Criminal Appeal. These are set out at paragraphs 7-35:
7. A Statement of Agreed Facts was tendered in the sentencing proceedings together with a skeletal Outline of Facts for the Form 1 offences. They reveal the following criminal conduct.
8. The Respondent met the victim, Ms Cabiness, at Wollongong during 1994. The Respondent was 22 years old at that time. About three months after they met, the Respondent and Ms Cabiness moved into a house together. They married in 1997. There are three children of the relationship. A daughter, [X], was born [in] 1996. A second daughter, [Y], was born [in] 1998 and a son, [Z], was born [in] 1999.
Offences Against Ms Cabiness
9. On [date omitted] 1996, three days before the birth of [X], Ms Cabiness was talking with a friend of hers in their home at [C]. The Respondent came into the room in a rage and said “You fucking bitch, Social Security wouldn’t pay me”. He then grabbed the victim around the throat, lifted her against the wardrobe and punched her in the right eye. When the Respondent went to leave the house, he was confronted by police who had been called by staff from Centrelink following an earlier incident at that office. Ms Cabiness was taken to hospital by her friend and, upon arrival, she told the treating doctor she had been hit by a friend (Count 1).
10. On or about 18 February 1997, at [C], the Respondent held Ms Cabiness’ left arm over the sink and poured boiling coffee over her forearm, causing it to blister (Offence 1 (s.59(1) Crimes Act 1900), Form 1).
11. On a windy evening, between 1 March and 7 June 1997,
Ms Cabiness went outside to check on some pups as their kennel had blown over. At this time, the Respondent was asleep. After fixing the kennel, the victim walked back into the house through the rear door and was confronted by the Respondent. He said “Where have you been?”. She replied “Fixing the kennel”. He said “Come here”. When the victim approached the Respondent, he punched her in the mouth causing a bottom-row tooth to break (Count 2).
12. Between 1 March and 7 June 1997, the Respondent made
Ms Cabiness sit in a chair in their [business omitted] and poured lighter fluid over her head and body. The Respondent sat opposite Ms Cabiness with a lighter and threatened to kill her if she moved (Offence 2 (s.61 Crimes Act 1900), Form 1).
13. Between 1 March and 7 June 1997, at [C], the Respondent struck Ms Cabiness with a metal part of a vacuum cleaner across the back of her shoulders and down to the back of her legs (Offence 3 (s.61 Crimes Act 1900), Form 1).
14. On or about 7 June 1997, Ms Cabiness was preparing to leave the house at [C] to open the [business] operated by the Respondent and her when she was confronted by the Respondent in their home. Without warning, the Respondent grabbed her and started punching her in the face. She struggled to get away, but the Respondent had hold of her top. He continued punching her in the hallway and the two ended up in the bedroom. There, he straddled the victim on the bed and repeatedly punched her to the face, causing blood to spatter onto the walls. He then stopped and left to go to the [business]. Ms Cabiness was treated at the [omitted] Hospital by Dr L, who diagnosed her as suffering from an undisplaced fracture of the nasal bones (Count 3).
15. On or about [date omitted] 1998, about a day after Ms Cabiness had given birth to their daughter, [Y], the Respondent hit Ms Cabiness across the head and punched her in the stomach (Offence 4 (s.61 Crimes Act 1900), Form 1).
Offences Against Ms V
16. In December 1999, the Respondent separated from
Ms Cabiness. In about September 2000, Ms V met the Respondent. They commenced a relationship which continued until about December 2002.
17. Between 1 October 2000 and 31 December 2001, at [R], the Respondent slapped Ms V across the face (Offence 5 (s.61 Crimes Act 1900), Form 1).
18. In early 2002, the Respondent and Ms V were living in a house at [R]. They had purchased a [business omitted] in Property C, [R] in which they both worked. One evening during 2002, the Respondent and Ms V argued, culminating in the Respondent punching her and thereby causing a black left eye and a lump above her right eye. The next morning, the Respondent took Ms V to the [business omitted] and put her in the safe. He told her to stay there all day because he did not want the customers to see her. Ms V sat in the safe all morning. Later in the morning, around 11.30 am, the victim’s mother and daughter came into the [business] and the Respondent ran to the safe and told Ms V “Don’t come up, your Mum and [name omitted] just walked in the [business]”. Ms V was allowed out later in the day to clean the [business]. The safe door was closed, but not locked, throughout the period during which she was left in the safe (Count 4).
19. Between 1 January 2001 and 30 June 2002, at [R], the Respondent threw a pair of haircutting scissors at Ms V. The scissors hit her forehead on the right-hand side, stabbing her and causing her head to bleed (Offence 6 (s.35(1)(a) Crimes Act 1900), Form 1).
20. Between 1 January 2001 and 30 June 2002, at [R], the Respondent hit Ms V on the right ankle with a broom handle causing the ankle to swell. The victim was unable to walk on her right foot (Offence 7 (s.59(1) Crimes Act 1900), Form 1).
21. Between 1 and 28 February 2002, at [R], the Respondent hit Ms V twice in the mouth with his left fist closed (Offence 8 (s.59(1) Crimes Act 1900), Form 1).
22. Between 1 January 2002 and 1 January 2003, at [R], the Respondent punched Ms V with closed fists in the left eye and then in the right eyebrow, causing her to sustain two black eyes (Offence 9 (s.59(1) Crimes Act 1900), Form 1).
23. Between 3 January and 17 February 2003, at [C], the Respondent hit Ms V with closed fists on both of her ears, causing her ears to throb and the victim to suffer headaches (Offence 10 (s.59(1) Crimes Act 1900), Form 1).
24. In late 2003, the relationship between the Respondent and
Ms V came to an end. In October 2003, the Respondent commenced a defacto relationship with Ms M.
25. On 15 March 2004, Ms V contacted the Respondent to arrange to pick up some of her belongings from his house. The Respondent and his new girlfriend (Ms M) picked up Ms V and took her back to his house where she stayed for four days. Whilst staying at the house, Ms V indicated to the Respondent that she wanted to go home. An argument developed and both ended up standing in the kitchen. The Respondent grabbed a large knife and said to Ms V “Put your hand on the bench”. She asked “Why?”. The Respondent said “Just do it”. She did as she was told and the Respondent said “Do you want me to chop your finger off or just cut you?”. Ms V said “Just cut me”. The Respondent took hold of the victim’s wrist and she fell to the floor. He then cut the back of her hand. As a result, her hand bled. When she saw that her hand was bleeding, she called the Respondent a “mother fucker” and crawled out of the kitchen into the hallway (Count 5).
26. When Ms V had crawled into the hallway, the Respondent approached her with a wooden meat tenderiser and yelled “You fucking slut”. Ms V covered her head with her hands and the Respondent struck her left hand causing it to split open and bleed. Later hospital examination revealed a fracture to the middle phalanx of the left-index finger requiring a “Zimmer” splint (Count 6).
27. On or about 18 March 2004, at [C], the Respondent hit Ms V with a pool cue on her right knee and left thigh, causing a large bruise on her left thigh (Offence 11 (s.59(1) Crimes Act 1900), Form 1).
Offences Against Ms M
28. Ms M met the Respondent in about August 2003 and commenced a defacto relationship with him in October 2003. The Respondent and Ms M attended a Christmas 2003 function at the house of Ms M’s grandmother. Upon returning to their own house, the Respondent was expecting his children to arrive for a pre-arranged contact visit. When the children didn’t arrive, the Respondent became upset and angry and asked Ms M to make him a cup of coffee. He then grabbed Ms M, pushed her on the chest, punched her to the head with his fist and punched her to the arms (Count 7).
29. On or about 23 December 2003, at [C], the Respondent punched Ms M in the face and around the head, causing her left ear to pop and numbness to the left side of her face. The victim had a stabbing ache in her ear for about two weeks after this incident (Offence 12 (s.59(1) Crimes Act 1900), Form 1).
30. Between 1 February and 19 June 2004, Ms M and the Respondent had an argument in their bathroom during which a glass hallstand was knocked over and broken. The Respondent grabbed Ms M by the hair and dragged her across the floor which had broken glass on it. The victim’s pants had slipped down during the fight and as a result of this, she suffered cuts and scratches to her right buttock as she was pulled across the glass (Count 8).
31. Between 1 and 30 April 2004, at [C], the Respondent punched Ms M in the face causing her mouth to bleed (Offence 13 (s.59(1) Crimes Act 1900), Form 1).
32. Between 1 January and 19 June 2004, the Respondent kept a stick in the bedroom of their house. Ms M was using the stick in an endeavour to break a window. The Respondent entered the bedroom and asked for the stick. When the victim gave him the stick, the Respondent pushed her onto the bed and commenced to hit her around the body and head with the stick until she lost consciousness. When she regained consciousness, the victim noticed bruising and swelling to her face and she suffered severe headaches (Count 9).
33. On 19 June 2004, at [C], the Respondent hit Ms M around the head with a cue ball, causing pain and numbness (Offence 14 (s.59(1) Crimes Act 1900), Form 1).
34. The Respondent was arrested on 25 June 2004 and has remained in custody since that time.
35. The Respondent was committed for trial in the District Court following committal proceedings. A trial date was fixed but, following negotiations, he pleaded guilty on 22 November 2005 to the offences contained in the present indictment, and requested that the further 14 offences be taken into account on a Form 1 document. The sentencing proceedings continued, from time to time, between 22 November 2005 and 28 April2006, with his Honour passing sentence on 5 May2006.
By way of further background it is relevant in these proceedings to further note the father’s record of previous conviction, which are conveniently set out in paragraphs 36-40 of the reasons of Johnson J:
36. The Respondent was born at [P], of Lebanese parentage, [in] 1972 and was 33 years of age at the time of sentence. He is the eldest child in a family of eight.
37. The learned sentencing Judge summarised the Respondent’s education and employment history in the following way (ROS, pages 13-14):
“The offender was educated until the middle of Year 11 or thereabouts. He commenced a [omitted] apprenticeship but was retrenched after six months. He then commenced operating small businesses - he would seek to make those businesses profitable with a view to selling them. The businesses that he has operated in that way have included [omitted]. The offender appears to be a person who has capacity in that he is able to either commence businesses or restore them to profitability for his financial advantage.”
38. The Respondent has a record of previous convictions, including offences of violence. On 17 July 1991, he was placed on a two-year recognisance in the [P]Local Court for offences of assault and stealing. On 1 April 1992, he was sentenced in the same Court to three months’ imprisonment for stealing, a sentenced confirmed on appeal to the District Court. On 11 June 1992, he was fined in the [W] Local Court on two counts of assault. On 13 January 1994, a breach of an apprehended violence order was found proved in the [W] Local Court, but the information was dismissed under s.556A Crimes Act 1900. On 23 September 1994, the Respondent was fined and disqualified in the [S] Local Court for driving whilst licence cancelled.
39. On 24 June 1997, the Respondent was fined and placed on a two-year recognisance in the [W] Local Court for assault (two counts) and resist arrest (two counts). On 17 July 2000, the Respondent was placed on an 18-month bond under s.9 Crimes (Sentencing Procedure) Act 1999 in the [W] Local Court for contravening an apprehended domestic violence order. On 4 June 2002, he was placed on a 12-month s.9 bond in the [W] Local Court for resisting an officer in the execution of his duty. On
4 December 2002, the Respondent was placed on a two-year bond under s.9 for offences of assault police, resist arrest, malicious damage to property and intimidating a police officer.40. It will be apparent from this criminal history that a number of offences for which the Respondent was sentenced on 5 May2006 were committed whilst he was subject to conditional liberty (Offences 4, 5, 6, 7, 10, 11, 12, 13, 14, Form 1; Counts 5, 6, 7 and 8). The learned sentencing Judge stated that he took into account, as an aggravating factor on sentence, the fact that a number of offences were committed whilst the Respondent was subject to conditional liberty (ROS, pages 11-12).
The Court of Criminal Appeal noted that the sentencing judge, Charteris J, observed with respect to the father’s criminal history that:
It is clear from the offender’s record that he has a problem in relation to controlling his temper and has a tendency to resort to violence.
Some would say that this understates the position.
It was also clear before both the District Court and the Court of Criminal Appeal that the father had a history of illegal drug use including cannabis and amphetamines, as well as a history of mental illness. The latter issue was a matter that clearly influenced Charteris J in terms of sentencing.
It is trite to say that the Court of Criminal Appeal makes some very strong statements about sentencing for domestic violence offences at paragraphs 63-88. Whilst the context of these statements is sentencing in the criminal law, these comments nonetheless have much relevance in a family law context and deserve to have much greater prominence in family law circles. Accordingly, I intend to reproduce this section below:
65. In approaching the resolution of the present appeal, it is appropriate to refer to statements of this Court with respect to sentencing for domestic violence offences. At the outset, it must be observed that these statements have been made in the context of cases involving a single victim and, usually, a single serious offence. The present case involves three separate victims against whom the Respondent committed serious offences of violence in the course of relationships over an eight-year period between 1996 and 2004. Before and during this period, the Respondent was appearing before Courts and being dealt with for a range of offences of violence, including breaches of apprehended violence orders.
66. This case brings into sharp focus the challenges facing a sentencing court where an offender has committed repeated serious offences of violence against different domestic partners over an extended period of time.
67. In R v Glen (Court of Criminal Appeal, 19 December 1994, BC9403423), Simpson J stressed the importance of general deterrence in cases of domestic violence. Her Honour stated that victims of domestic violence will “receive the full protection of the law, insofar as the courts are able to afford it to them”.
68. Since Glen, this Court has emphasised repeatedly the importance of general deterrence in domestic violence cases, given the prevalence of violence by men against women in domestic relationships: R v Rowe (1996) 89 A Crim R 467 at 472-3; R v Berry [2000] NSWCCA 451 at paragraph 32; R v Greene [2001] NSWCCA 258 at paragraph 16.
69. In R v Ross (Court of Criminal Appeal, 20 November 1996, unreported), Adams AJ (Newman J agreeing) observed, in the context of a sentence appeal concerning an offence of assault occasioning actual bodily harm committed upon a domestic partner:
“This was an act of frightening violence meted out to a woman [who] was entitled to the protection of the law. Until men such as the applicant understand that the law will treat with real seriousness cases which hitherto have been dismissed as having ‘domestic’ significance, this appalling series of violent acts meted out continuously to women in this community by men who suppose they have the right to do so will not stop.”
70. In R v Fahda [1999] NSWCCA 267, Simpson J (Studdert J agreeing) said at paragraph 26:
“Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished.”
71. In R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (Studdert and Bell JJ agreeing) said at 558 [41]:
“As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.”
72. In R v Dunn (2004) 144 A Crim R 180, Adams J (Ipp JA and Sully J agreeing) said at 195 [47]:
“Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind.”
73. Unsurprisingly, similar views have been expressed in other jurisdictions with respect to sentencing of domestic violence offenders.
74. In R v Devine (Tasmanian Supreme Court, 5 July 1993, unreported), Underwood J (as Underwood CJ then was) said, in the course of sentencing an offender who had assaulted his estranged wife, in the presence of small children, causing multiple bruising to her face and body and threatened her with a knife:
“Domestic violence is a profound problem and it is the duty of the courts to denounce offences such as these and attempt to deter its recurrence by you and other men. The relationship of husband and wife, albeit estranged, is an aggravating factor for violence of this kind constitutes a breach of trust. It is also an abuse of power and control on one who, in the circumstances, was in a position of vulnerability.”
75. In Parker v The Queen (Tasmanian Court of Criminal Appeal, 21 July 1994, BC9400423), Underwood J at page 11 said:
“In my opinion sentencing for crimes of domestic violence should proceed in accordance with the following principles expressed by the Alberta Court of Criminal Appeal in R v Brown (1992) 73 CCC (3d) 242 at 249:
‘When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape’."
See also Gallegos v R [1999] WASCA 191 at paragraphs 11, 28; Ugle v R [2001] WASCA 268 at paragraph 37; Attorney-General for Tasmania v O [2004] TASSC 53 at paragraph 18; Warner, “Sentencing in Tasmania”, 2002, 2nd edn, paragraph 11.325.
76. In the context of cases concerning “battered woman syndrome”, reference has been made to the notions of dominance, control and justification surrounding acts of domestic violence: Osland v The Queen (1998) 197 CLR 316 at 372, 407.
77. These judicial statements are complemented by criminological research concerning domestic violence. An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pages 6-7.
78. Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime: J People, “Trends and Patterns in Domestic Violence Assaults”, NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No. 89, October 2005, page 2. Domestic assaults accounted for 35%-40% of the assaults recorded by police each year from 1997 to 2004: J People, above, at page 11.
79. Statutory responses in New South Wales to the problem of domestic violence have taken a number of forms. An exception to the presumption in favour of bail exists with respect to certain domestic violence offences and offences of contravening apprehended domestic violence orders: s.9A Bail Act 1998.
80. The manner in which the New South Wales Parliament has sought to confront the problem of domestic violence is not confined to traditional criminal law remedies. Although contained in the Crimes Act 1900, the provisions of Part 15A relating to apprehended violence serve a different purpose which complement the criminal law. In John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512, Spigelman CJ (Mason P and Beazley JA agreeing) said at 519 [20]:
“The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking, intimidation and harassment. Apprehended violence orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.”
81. The Chief Justice, in John Fairfax Publications at 519 [22], referred to the objects of Division 1A of Part 15A concerning apprehended domestic violence orders. Section 562AC, enacted in 1999, provides as follows:
“Objects of Division
(1) The objects of this Division are:
(a) to ensure the safety and protection of all persons who experience domestic violence, and
(b) to reduce and prevent violence between persons who are in a domestic relationship with each other, and
(c) to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women.
(2) This Division aims to achieve its objects by:
(a) empowering courts to make apprehended domestic violence orders to protect people from domestic violence, and
(b) ensuring that access to courts is as speedy, inexpensive, safe and simple as is consistent with justice.
(3) In enacting this Division, Parliament:
(a) recognises that domestic violence, in all its forms, is unacceptable behaviour, and
(b) recognises that domestic violence is predominantly perpetrated by men against women and children, and
(c) recognises that domestic violence occurs in all sectors of the community.
(4) A court that, or person who, exercises any power conferred by or under this Part in relation to domestic violence must be guided in the exercise of that power by the objects of this Division.”
82. In Vukic v Edgerton [2001] NSWCCA 2, Dowd J (Mason P and Austin J agreeing) observed at paragraph 47 that the legislative structure of Part 15A is designed to deter people from carrying out certain inappropriate conduct or harming persons and to protect people from future harm.
83. There is an overlap between ordinary criminal proceedings and the protective and preventative provisions in Part 15A, in s.562BE Crimes Act 1900 which provides:
“Order must be made on guilty plea or guilt finding for certain offences
(1) If a person pleads guilty to, or is found guilty of, an offence against section 562AB or a domestic violence offence, the court must make an order under this Part for the protection of the person against whom the offence was committed, as if a complaint for an apprehended violence order had been made under this Part.
(1A) If a person pleads guilty to, or is found guilty of, an offence against section 562AB or a domestic violence offence, the court may vary an order under this Part for the purpose of providing greater protection for the person against whom the offence was committed, as if an application to vary an apprehended violence order had been made under this Part.
(2) However, the court need not make an order under this section if it is satisfied that it is not required (for example, because an order has already been made against the person or the person for whose protection the order would be made opposes the making of the order).
(3) A reference in this section to a court extends to the District Court when exercising jurisdiction apart from under section 562G.
(4) Without limiting the interpretation of the expression, a reference in this section to a finding of guilt includes a reference to the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999.”
84. This provision was applied in the present case. As the Respondent’s offences fell within the definition of “domestic violence offence”, the sentencing court was required to make orders under s.562BE for the protection of the persons against whom the offences were committed. Such an order was made for a 10-year period.
85. The objects contained in s.562AC emphasise the serious approach taken by Parliament and the community to the issue of domestic violence. Although contained in a Part of the Crimes Act 1900 which does not relate directly to sentencing, these objects illuminate the purposes of sentencing with respect to domestic violence offences. Those general purposes are contained in s.3A Crimes (Sentencing Procedure) Act 1999:
“Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.”
86. In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. These principles flow from statements of this Court and are fortified by the enactment of Division 1A of Part 15A of the Crimes Act 1900 including the statutory objects recited in s.562AC.
87. As some of the provisions in Part 15A of the Crimes Act 1900 have been touched upon in this part of the judgment, it is appropriate to note a further development concerning those provisions. TheCrimes Amendment (Apprehended Violence) Bill 2006 was read a second time in the Legislative Assembly on 6 September 2006 . The object of the Bill is to repeal and re-enact Part 15A with changes flowing from the New South Wales Law Reform Commission Report 103 (2003), Apprehended Violence Orders. If enacted, the Bill will renumber s.562AC as s.562E and expand the provision in a number of respects. Section 562BE will be renumbered as s.562ZU. In determining to leave this statutory scheme in Part 15A of the Crimes Act 1900, the Government appears to have accepted the Law Reform Commission’s view that “the decision to leave AVOs to be governed by Part 15A of the Crimes Act is a policy one, based on the view that the underlying rationale of the AVO scheme is to stop or prevent criminal behaviour, and to send a clear message that any form of violence, intimidation or harassment is a crime” (paragraph 2.1, Report 103). If the2006 Bill is enacted, the continuing presence of Part 15A (including new ss.562E and 562ZU) in the Crimes Act 1900 will emphasise the significance of these provisions for a number of purposes, including sentencing domestic violence offenders.
88. This is not to say that promotion of rehabilitation of the offender is not an important factor. It remains necessary to provide individualised justice in the circumstances of the particular sentencing decision. Nevertheless, the factors to which reference has been made above assume particular significance in the case of a domestic violence offender who has committed a series of offences over an extended period of time against different victims.
The final issue to which I make reference in the Court of Criminal Appeal’s judgment is the issue of the father’s mental health. The Court of Criminal Appeal felt that the evidence only justified a finding of mental illness in 2004, but the context of the father’s violent course of conduct extended back to 1996. In any event, the Court of Criminal Appeal was not prepared to accept that there was a causal nexus between any psychotic condition or paranoid ideation suffered by the father, and the offences committed by him. At paragraph 108 Johnson J stated that he was not satisfied that an evidentiary foundation was established to warrant a finding of reduced moral culpability flowing from the father’s psychiatric difficulties. In short, the father was found to be a violent father and his consumption of drugs and mental health issues do not satisfactorily explain or justify his violent acts over a period of eight years.
The Court of Criminal Appeal allowed the appeal with respect to sentences, quashed those imposed by the District Court, and imposed longer terms of imprisonment.
With the background to this case now having been comprehensively set out, I turn to consider the substance of the cases advanced by the mother and father.
The father’s case
The father’s case was, in effect, that he was well and truly rehabilitated from his previous life, which had involved criminal activity, violence, and consumption of drugs. He had been out of gaol for over two years. He was undertaking [course omitted], with a view to becoming qualified as a [omitted]. He was at least three-quarters through his course. He asserted that he was drug free and had been so for nearly seven years. In his affidavit he asserted, and subsequently reasserted many times in cross-examination, that his recollection of many of the events referred to in the mother’s evidence was vague, was probably clouded by his mental health issues and drug consumption but that, in any event, he accepted full responsibility for his actions which he now considered to be quite wrong. At paragraph 10 of his affidavit, sworn 26 November 2010, he states:
I believe that my children have a right to know that their father is no longer a drug-crazed criminal but is now a hard-working honest man who does not take any drugs and as a result is calm and non-violent.
Despite the terms of the father’s initial application to the Court, his affidavit does seem to demonstrate a greater sensitivity to some of the issues that the children would confront in re-establishing contact with him. This was also clearly apparent in his oral evidence. Thus, for example, at paragraphs 11-13 he refers to and acknowledges the fact that the children have bad memories about him, and he expresses the belief that they will get past this. He expressly adverts to the challenges of the children spending large blocks of unsupervised time with him and the need for them to have a period of adjustment.
The father was extensively cross-examined by Counsel for the mother, and to a lesser extent by Counsel for the Independent Children’s Lawyer. I find that he did the best he could in quite difficult circumstances. I had a real sense that every minute that he spent in the witness box gradually led to an increasing awareness on his part about the difficulties inherent in his application, particularly insofar as how the children would cope. Yes, there were times when he was unresponsive and perhaps even uncooperative in cross-examination, but I was left with no doubt in my mind that his application was genuinely motivated. There was no hint of the man who had, in the past, so obviously sought to dominate and control the mother’s action. If he seemed evasive at times in not being able to recall events, I find this is more likely to be the result of past mental health issues that probably related to the consumption of narcotic drugs over an extensive period of his life.
The father’s perception of the case was expressed at a number of points in his cross-examination but perhaps the most helpful is found at page 7 of the transcript commencing from line 31:
… since I’ve, like, come out of gaol, like I’ve been trying to better myself and do everything right and just – the kids have just been on my mind – on my mind – every single day, you know? Like I did raise them for about four years when the mother wasn’t there. And it’s just causing me, like – not anger; I mean no harm to the mother; I accept what I’ve done was wrong, do you know what I mean? Like, look, I know where the kids live, I know where she – I know everything, but I’ve not gone nowhere near her or the children.
…But it’s causing me stress. It’s just like I was there for the children and, all of a sudden, it’s been taken away from me - - -
--- - - - because I made mistakes, do you know? But I never made mistakes with the children. So, like, it’s just wherever I turn or whatever I do, when I’m eating, everything I do, it’s just the kids on my mind.
There are other points in the father’s evidence where he clearly places great emphasis in his own mind to the period when he considers that he was in sole care of the children, with little or no assistance from the mother. Clearly, the father does not understand why, in those circumstances, he now cannot have a role in the children’s lives. The difficulty with the father’s perception in this regard is that it is not based on fact. O’Ryan J clearly found that, during periods that the father asserts he was solely responsible for the care of the children, the mother was actively involved in their lives, and spending substantial time with them. The father’s perception of the children being happy with him whilst in his care is clearly a skewed perception. Some of the most serious violence perpetrated by the father against intimate partners clearly took place during periods when the children were in his care. Even his own Counsel concedes that the evidence demonstrates this. The father asserts that the children were not present when violence took place but, ultimately, even he conceded in cross-examination that they were exposed to the violence in the sense that they were present in the same home where it took place.
It is highly likely that the father’s recollection of events since separation, and up until the date of the orders of O’Ryan J, are clouded not just by misfounded subjective beliefs, but also by the mental illness he was suffering in 2004, and a very extensive period of drug consumption.
Mr Barry put it to the father in cross-examination that from the children’s point of view, ie, from their lawyer’s point of view, it was accepted that he had made strenuous attempts to rehabilitate himself. That is clearly the case. In fact, the father’s efforts are quite admirable in this regard. Regrettably, what the father lacked was an appreciation of the difficulties confronting the children and their mother if contact were to be resumed. His application was certainly genuinely brought, but fails to appreciate the impact on the children. Whilst he accepts that the children have expressed certain views against having contact with him, he is firmly of the view that they have been coached by their mother. Curiously, O’Ryan J found that he had coached the children in expressing views to the Family Consultant in the Family Court proceedings about wanting to stay with their father.
There was almost a sad element of despair in the father’s evidence. He did seem truly remorseful and penitent for his previous actions against the mother and his other intimate partners. He even seemed to appreciate that the children might be adversely affected by exposure to his behaviour, even though he strenuously denied being violent to them.
The mother’s case
The mother filed two affidavits, sworn 9 April 2009 and 26 November 2010. It is important to record that there was hardly any cross-examination of the mother by the father’s Counsel, and hardly any challenge to the factual matters asserted by the mother. As Counsel for the father explained in closing submissions, this was pursuant to express instructions not to seek to distress the mother.
The mother deposes at length to the father’s violent behaviour from 1996 through to the date of separation. She also deposes to the father’s violence against [Y], a matter which the father strenuously denies. She deposes to the somewhat chaotic parenting arrangements that existed between the date of separation, and the final orders.
Significantly, the mother’s evidence about the children’s disclosures to her about exposure to violence are not challenged other than in the general denial by the father. These allegations relate not just to exposure to violence, but the children being subjected to violence.
The mother gives quite detailed and extensive evidence about the impact on the children of the father’s behaviour and incidents of it including, for example, the media exposure of some of the father’s criminal proceedings involving his other intimate partners after his separation from the mother. For example, the mother deposes to [Y] regularly wetting the bed, [X] suffering bullying at school and getting into trouble at school. She deposes to all of the children having anger issues, and making negative statements about the father. All of the children experience nightmares from time to time, as well as over extended periods of time. [Y] and [X] would sleepwalk. The children would be very clingy towards her at times. The mother also deposes to the emotional and physical upset she suffered, particularly when she discovered that the father had been released from gaol.
In the mother’s updating affidavit of 26 November 2010, she deposes to the fact that [X] continues to suffer from nightmares, though [Z] suffers them less frequently. Likewise, the frequency of [Y]’s nightmares appears to have abated. Each of these incidents for the children are linked by them to their father. [Y] is reported to be obsessed about security at home, and is fearful of going outside of an evening. Her mother deposes to [Y] being reluctant to make friends, but also reports that she is becoming more confident in herself. [Z] suffered a panic attack in October 2010, which the mother relates to the proceedings. She deposes to not discussing the case with the children, but acknowledges that the children are aware of the same.
The mother otherwise presents a positive picture of the children settling into a post-separation life in a new family with her new husband. The children have expressed the desire to be called by the surname of their mother’s husband, [G]. The children seem to otherwise be in good health and progressing well at school.
The mother is genuinely concerned about the emotional impact on the children of having any contact with their father.
The evidence of the Part 15 expert, Dr W
Dr W is a consultant child and family psychiatrist whose report is dated 30 November 2009. His report follows a familiar format. He met with the mother, the children, and the father. After interviewing the children, Dr W decided not to see the children in the presence of the father.
It is necessary to reproduce Dr W’s report of the interview with the children, commencing at page 4:
INTERVIEW WITH [X]
[X] is 13 and in Year 7 at [omitted] High School. She said life is good, but she would still get a couple of nightmares a month. She said that if she has done something wrong she dreams that her father is coming to get her. She also still sometimes dreams of him killing them. However, she said by day her only worry is about having to see him. She said nothing else worries her, that everything else is good.
She said, “I don’t want to see any of his family, it is hard to explain, but they are his family, and he might be there”.
She said she remembers the separation, Dad coming home, yelling and hurting Mum, and their leaving and going to Grandpa’s. She said she doesn’t really remember much before that.
When I asked her about Contact visits, she said “he used to take drugs, I used to see him”. She told me of a bottle with a pipe, saying “he did that a lot”. She also said he would bash them up a lot, punches in the face, pushing and hitting them, and he would do this for no reason. She remembers him punching both her and [Y] in the face, because she had forgotten [Y]’s lunch order, and they had to turn around and go back to get it.
She said he also used to have a gun (she indicated a revolver). She thinks she remembers him once threatening the next door neighbour with it.
She also complained he used to go out a lot at night, and make her look after [Y] and [Z] [sic]. That was before his girlfriends. She said the girlfriends were ok, but she doesn’t think Ms V like [sic] them very much, but she wasn’t hitting them.
She said “he used to take tablets in front of us”, friends would come over and they would do drugs in the kitchen. He would make her stay out.
She then complained that he would made [sic] them eat Take-Away every night, and that both he and a girlfriend had force-fed [Z]. She also claimed that she saw him bash his girlfriends. This was almost daily.
She also referred to “crazy stuff”, and when I asked her what sort of things, she said “thinking Mum was going to come and steal us”, and once he was saying he was going to kill Mum and take them away somewhere.
When I had mentioned that he was probably claiming to have had treatment and to have changed, she responded “even if he really changed, I can’t forget what he did to us, I wouldn’t forgive him even if the doctors said he had been sick when he did it, I never want to see him again or anyone in his family”.
She then said he used to have cameras hooked up to TV’s. I assumed she was referring to closed circuit surveillance. She was referring to a period following the separation, and she said once they could see their mother on the monitor, knocking on the door, but he wouldn’t answer, or let them go to the door.
INTERVIEW WITH [Y]
[Y] is 11 and in Year 5 at [omitted] Public School. She is doing well at school. She said she is good at times tables, Maths and a little bit of Grammar and English. She has lots of friends, and she doesn’t get into trouble at school.
When I asked her whether she remembers weekends at her father’s, she said “yes”. She said he would have Ms M or Ms V there, and he would hurt them. “Before they were there he would hurt us- hit us or throw us against walls – sometimes lock us in the bathroom – I don’t know why he did it, we hadn’t done anything wrong”. She remembered him bashing Ms M and chasing her around the house. She said when Ms V was there she didn’t see him hurt her, he would take her outside, and she would come back with blood and bruises.
She said “when we lived there we rarely went to school because he wouldn’t take us, sometimes he would put us in a taxi or get his sister to take us”. One Easter they were staying there for five days, she said “Mum was coming to pick us up, he had cameras, and he wouldn’t answer the door, telling us to keep quiet, but [Z] [sic] ran and answered the door”.
When I asked her about weapons she said he did have a gun, and also a sword. She said she did like Ms M and Ms V.
She volunteered that she doesn’t want to see him ever again. When I asked “his sisters?” she said “no, one would yell at us a lot”. When I asked if she would like to see her grandparents, she said they hardly ever saw them, so she doesn’t really remember them. Then after some delay she replied “not really”.
She then finished off by telling me that when he used the pipe it made him angrier. She also referred to the cameras again, saying that every now and again he would go and check them.
INTERVIEW WITH [Z]
[Z] [sic] is 10 and in Year 4. He said he doesn’t like school because he is not goof [sic] at the work, but he likes seeing his friends. He likes HSIE and Maths, and he likes the teachers, and he volunteered that he has had four detentions this year for fights. When I asked him about sport, he said he said he is a slow runner.
I then asked him what he remembers of his father. He said he remembers him taking some medicine, a drug. He added “I don’t remember much”. When I asked him if he remembered him hurting anybody, he answered “once seeing him strangling someone against the wall”. He thought it was a man, a neighbour, and he said his father went to Court because of this.
His comments in general were vague, “I don’t know him that much – he was mean to people – I just don’t want to see him – he’s not a very nice person – I don’t want to see him – I don’t really remember much”. He then said he remembers visiting someone, and he thinks some cousins were there, and they watched a movie, he thinks it might have been “Lord of the Rings”.
It must be remembered that this is a case where the father is asserting that any views expressed by the children are the result of coaching by the mother. [X]’s views appear to be quite articulately stated, and there are aspects of what she told Dr W which resonates with other evidence. For example, she has a clear recollection of the CCTV system installed by the father, a matter which is not denied by him. This does suggest independent recollection by [X], rather than coaching by the mother.
[Y]’s statements are likewise articulate. Her recollection of the father’s violence towards Ms M and Ms V seems independent, and her observation that the father became angrier after using “the pipe” also has an authentic ring to it. [Z]’s observations are perhaps less reliable, given his age, but cannot necessarily be dismissed.
It is important to note that what the children said to Dr W is broadly consistent with the mother’s own evidence.
Dr W also had available to him a significant quantity of documentation, including the judgment of the Court of Criminal Appeal, a probation and parole service pre-sentence report, the reasons for judgment of O’Ryan J, a report from psychologist Mr C, a file from the New South Wales Department of Corrective Services, documents produced by the New South Wales Police and the New South Wales Department of Community Services, and the Centacare counselling file.
Dr W expresses his final opinion at pages 17 and 18 of his report, in the following terms:
OPINION
1.The issue in contention is whether the children should be forced to have Contact with their father, there having been no Contact since his arrest on 25 June 2004.
2.The children are clearly terrified at the thought of Contact. The father’s contention is that any fear is the result of brainwashing. I am aware of no evidence that the mother has done anything with the intent of convincing the children that their father is a dangerous man. However, given the abuse she suffered from him as established in his Trial and the Appeal, it is inevitable that something of her attitude would be communicated, even if it were inadvertent. I have also seen the somewhat sensationalist newspaper articles from the “[newspaper omitted]”, so it can be assumed that the children would have been subject to comment from children at school.
3.It is also highly probable that at least [X] has memories of witnessing her father’s abusive behaviour towards the three women.
4.There is also convincing evidence of the children having been abused as shown by the episode of [Y] being hung upside down, and the resulting finger marks having been witnessed. The girls also made statements to me about their father physically abusing them.
5.When I pointed out to the father that the children were terrified of him, asking him how he would deal with this if he did have Contact, he discounted my opinion, saying that he knows the children love him. Therefore, I conclude that if he was having Contact, it is very unlikely that he would take appropriate steps to reassure them over a period of time. Furthermore, in my opinion there is a risk he would become angrily controlling, while being dismissive of their concerns.
6.From my interview, and the conflicting statements as to why he wasn’t bringing his father to see me, and my reading of documents, I have formed the view that the father is an inveterate liar who routinely denies what he has done, while depicting himself as the victim of conspiracies. He has even tried to blame his partners for his drug use, claiming to have “succumbed” in response to their use.
7.When confronted with facts, his response is claims of how he has changed, pointing to the course he has done, courses in drugs and domestic violence and anger management. However, it is clear that he has made almost the same claims to the Family Law Court in 2002, to not long after to escalate his drug abuse and his violent controlling behaviour towards his young partners, an escalation that led to drug induced psychosis and his incarceration.
8.The Trial Judge considered that based on medical evidence there were special circumstances, particularly his mental state at the time of offending, circumstances that both reduced his culpability and increased the prospects of successful rehabilitation. However, the Court of Appeal rejected this opinion, pointing out both the degree of irresponsible choice in his drug taking, and the long history of violence and anti-social behaviour long before there was any clear evidence of psychosis.
9.I have previously expressed the opinion that there is no clear evidence of his having displayed paranoid schizophrenia as opposed to drug induced paranoid psychosis. He also denies a history of this condition.
10.Furthermore, I am satisfied that he displays features of Anti-Social Personality Disorder. He has a long history of law breaking, and there is very little evidence of conscience in his functioning. His controlling abusive behaviour towards young partners I find flabbergasting. The description of his severely burning Ms Cabiness’ arm when he considered the coffee she had made for him was “crap” is appalling. The description of his behaviour is almost of treating them as slaves, while enjoying humiliating them.
11.Throughout the Trial and the Appeal there was little evidence of remorse, as reported by the Counsellor in the Pre-Sentence Report.
12.It appears to me that the main change from the Courses he has done has been to learn the right thing to say, as displayed in his Affidavit of 16.12.08. Nevertheless, he then shoots himself in the foot by making intemperate statements, as in his interview with me, revealing that he still fails to take responsibility for the things he has done, and he still depicts himself as the victim.
13.I also consider it likely that he has learnt to be quite manipulative, as shown by his apparent success in getting Dr D to support his claims, including for Victim’s Compensation.
14.His lying strikes me as being at a pathological level. He does give the impression of believing what he is saying, even on matters where Courts have determined otherwise. This makes his lying at times quite dysfunctional. Logically he should realise that that once I read the Court judgments, I could be concluding that he was still lying, and failing to accept responsibility for his behaviour. He should be aware that this would be held against him.
15.Justice O’Ryan in his finding accepted the Counsellor’s view that there was a loving relationships between the father and the children, and accordingly made Orders for Contact.
16.I am satisfied that the passage of time, and the reasons for the father’s incarceration have destroyed any relationship that there may have been.
17.Furthermore, I am satisfied that the children are genuinely alarmed at the prospect of having to see their father. I consider this to be at a level that to force Contact would be a serious threat to their emotional and mental health.
18.Finally, I am satisfied that the father is not a man of good character and I am extremely skeptical [sic] of his claims to have seen the errors of his ways and to have changed. Therefore, I do not believe it would be in the childrens’ [sic] interests to force them to have any Contact with their father.
19.In regard to the father’s family, I am concerned that he may be as controlling and manipulative of his family as he is of others. I could only conclude that [Mr Heilig] did not want me to interview his father and stepmother. Furthermore, I note that in Pre-Release Planning there is a record of a call to local Police, who indicated that the family are not of goof [sic] reputation, including a claim that one of [Mr Heilig]’s brothers was a drug dealer. There are also other reports of two of his brothers having been incarcerated.
20.As a result I do not see how the children could have useful Contact with their father’s family, and I am also concerned that the family may pressure them to have Contact with their father.
Of course, I had the benefit of seeing the father and mother over a much more extended period of time than Dr W, as well as seeing them in the context of cross-examination. It is necessary for me to comment about some of the paragraphs in Dr W’s opinion.
Dr W expresses his opinion in strident terms. At paragraph 5 of his opinion he doubts whether the father would be able to take appropriate steps to reassure the children “over a period of time”. Whilst in cross-examination, the father did appear to me to start demonstrating a growing appreciation of the difficulties confronting the children, and whilst this is to a certain extent reflected in the final orders sought by him, I agree with Dr W that to the extent that the issue is the father’s capacity to sustain his reassurance over a period of time, there is a real doubt about this on the evidence before me. Further, at paragraph 5 of the opinion, he raises the risk of the father becoming “angrily controlling”. There is no doubt that there is a history of this up to 2004, but no evidence of this since then. Still, I cannot rule out the possibility in the circumstances of this case. It is therefore hard not to place weight on Dr W’s expert opinion about this risk.
At paragraph 6, Dr W describes the father as “an inveterate liar who routinely denies what he has done, while depicting himself as the victim of conspiracies”. That is not the impression I formed of the father in cross-examination. Whilst an expert is entitled to be strident in his or her views, perhaps this language was unnecessarily forceful. I did not form the view that the father was an inveterate liar, though where his evidence conflicts with that of the mother, in the circumstances of this case, and given the limited challenge of the mother’s evidence, I prefer the mother’s evidence. In his cross-examination he was far more accepting of responsibility for previous actions and the consequences of the same.
At paragraph 10 of the opinion, Dr W describes the father’s behaviour towards his intimate partners as “controlling, abusive behaviour”. On the evidence before me, I agree that this is an apt description. The finding of antisocial personality disorder is open to the expert in the circumstances. It was clearly put to Dr W in cross-examination that the father had led an uneventful, indeed normal life since his release from gaol over two years ago. That did not detract from his diagnosis.
It is interesting to note at paragraph 16 of the opinion that Dr W believes that it is the passage of time, and the reasons for the father’s incarceration, that have destroyed any relationship between the children and himself. This is consistent with the evidence before the Court.
In relation to paragraph 19, Dr W’s expression of concerns about the father’s family are, in my opinion, not supported by the evidence.
Notwithstanding some of the concerns I have expressed above, the opinion and conclusions drawn by Dr W are consistent with the evidence before the Court, including the oral evidence of the mother and the father.
Dr W was, of course, cross-examined by each of the Counsel. He was clearly sceptical about the father’s capacity to change the personality traits that he observed in him. He was alarmed about the possible impacts on the children of exposure to these traits. He explained that the central feature of antisocial personality disorder is a callous disregard for others. In the context of caring for children, the real risk to them would arise if they challenged his authority. If this happened, Dr W’s opinion was that the father’s response was likely to be an antisocial one. In short, he felt that the father did not handle criticism very well.
To Counsel for the Independent Children’s Lawyer he described the impact on the children of being forced to spend time with their father as high levels of anxiety and fear almost to the level of clinical disorder with the risk of depression. Dr W could see no circumstances in which contact with the father would be beneficial to the children.
In cross-examination by the mother’s counsel, Dr W was sceptical as to whether the father’s drug use over an extended period of time would account for problems with his memory. He seemed to think that the father’s inability to recall was a convenient one, and based on a desire to put the past behind him, rather than to confront the same.
Dr W was extensively cross-examined by both Counsel for the mother and father about the mental health evidence led in the father’s criminal proceedings. Dr W held firmly to the view that the father was not necessarily suffering a psychiatric disorder, as no psychosis was evident, though he probably was suffering from a personality disorder. Dr W was clearly cautious about Dr D’s report, which, ultimately, was not admitted in evidence before me. Indeed, I would have been assisted by evidence from Dr D, who the father advances as his treating psychiatrist, but this was not forthcoming in admissible form.
Dr W seemed firm in his views about the absence of evidence to support a conclusion that the father was suffering some form of psychosis.
Counsel for the father challenged Dr W about the reliability of the histories given by the children, their exposure to the mother’s negative attitudes about the father, and he agreed that the father had probably become a “boogieman” so far as the children were concerned. Nonetheless, he seemed to maintain that there was some objectivity to their reports, and that it could not be discounted.
Dr W agreed that supervised contact, for example at a supervised contact centre, would provide a safe and secure environment in a physical sense, but not in an emotional sense. He remained concerned that, given the children’s beliefs about their father, they would be in a highly anxious state. He emphasised that he was so concerned about the children’s response that he wouldn’t allow the children to be seen with their father, in his rooms. He expressed a pessimism about the father’s capacity to properly understand the nature of the concerns in relation to the children. He thought there was a risk of emotional harm and was not prepared to exclude the risk of physical violence.
Finally, in response to a question by me, Dr W emphasised that there was no current relationship between the children and their father, and that their feelings towards him was marked by an overwhelming fear about coming into contact with him. He acknowledged that they have fixed ideas about their father as a bad person.
Having regard to all of the evidence, and not just that of Dr W, I accept his evidence that the children are terrified at the thought of contact with their father. I agree that the children have probably been influenced in some ways about their views in relation to the father, but it certainly goes nowhere near the level of brainwashing. In the broad spectrum this is more a case about realistic estrangement than it is alienation. It is the father’s actions in the past which, in my opinion, provide the greater causal explanation of the children’s rejection of him, than any actions by the mother. The best evidence about the children’s views is contained in Dr W’s report, and I place significant weight on the views expressed by [X] and [Y], and to a lesser extent, the views expressed by [Z]. Based on the evidence before me, especially that of Dr W, the risk of emotional harm to these children arising out of contact with their father is a real one, and an unacceptable one in the circumstances.
I have some reluctance in unequivocally accepting Dr W’s strident descriptions of the father as being an inveterate liar and as being manipulative. The father clearly failed to impress Dr W, and his past criminal behaviour would hardly endear him to Dr W in these circumstances. Nonetheless, a more nuanced, objective and professional approach is called for. It is not necessary for me to find the father to be an inveterate liar or a manipulator in order to decide this case. Even though I do not accept some of Dr W’s descriptions of the father, I nonetheless accept his opinion and recommendations. I find that none of the cross-examination of Dr W had the effect of reducing the weight that I would place on his evidence.
Meaningful relationship
As a general proposition, it cannot be disputed that there is a benefit to children in having a meaningful relationship with their father. However, that general proposition must be applied in specific cases. Here, the starting point is that there is no meaningful relationship at the moment. Is there, nonetheless, a benefit to the children in making orders for contact so that a meaningful relationship might be established at some time in the future? It should be noted, of course, that the mere making of an order does not create a meaningful relationship. All an order does is to create the framework, or context in which a meaningful relationship between a parent and children might be re-established. There is thus no assurance that even if I were to make orders in terms of that sought by the father, that a meaningful relationship would evolve. Nonetheless, the most significant obstacle for the father in this regard is the fact that there is a clear risk of emotional or psychological harm to the children if I were to make the orders sought by him. The evidence clearly indicates that the children are distressed by the thought of having any contact with him, or indeed the members of his family. I am satisfied that the concern in this regard extends to any contact or communication with the father, whether that be in person, at a contact centre, or any alternative form of communication. Section 60CC(2)(a) refers to “the benefit to the child” of having a meaningful relationship. On the evidence before me, there is no benefit, only potential psychological and emotional harm. Thus, there is no benefit. This situation has arisen because of the father’s own actions. His violence towards his intimate partners over an extended period led to his incarceration which, in turn, led to extended periods of no contact with his children. The Court cannot undo this. The father’s own actions had certain consequences. As much as the father has sought to demonstrate his remorse for past action, and even an attempt to accept responsibility, the fact is that he has no meaningful relationship with the children, and that there is no benefit, only harm to them, in seeking to re-establish it. Family violence casts a long shadow, extending for many years after the events. Some of the impacts of family violence are irreversible.
Protecting the children from harm
It is apparent from the evidence that the risk of harm to the children is psychological and emotional. The evidence clearly indicates that they bear the scars of exposure to past family violence. The trauma to them of re-establishing contact with the perpetrator, their father, clearly exceeds any benefit to them of having contact with him. The evidence indicates a reason to have continuing concerns about his insights into the extent to which his actions have had an effect on the children. As Counsel for the Independent Children’s Lawyer suggested in the cross-examination of the husband, to order contact would be to experiment with the children. On the facts of this case, I am not prepared to undertake this experiment.
Whilst I find that the children clearly were exposed to violence, the issue of whether the children were subjected to family violence by their father is less clear. In view of the father’s decision not to challenge many of the assertions of fact made by the mother in her affidavit, and also in view of some of the clear statements that the children made to Dr W, a finding is open to me, and I so find, that the father did perpetrate family violence against the children at various times. Even if this were not the case, however, the fact that they have been exposed to family violence means that they have suffered and, indeed, continue to suffer from psychological and emotional effects and they thus need to be protected against this. The best protection in the circumstances of this case is to preclude any contact or communication between them and the father.
The children’s views
I am satisfied that the evidence indicates that the two older children, [X] and [Y], have expressed clear views that contraindicate any contact or communication with their father, or indeed members of his family. Whilst the younger child, [Z], has also expressed the view, I have some reservations in relation to the basis of his views. The views expressed by the older children need to be given significant weight, particularly in the context of a case where there are such serious concerns about the psychological and emotional impact on them of having contact. I acknowledge that the children’s views may, to some extent, have been influenced by their mother’s own history and concerns as regards to the father, but the facts of this case do not suggest to me that the two older children do not have an independent recollection of events, and are thus able to form an independent view. Moreover, I think there is a real risk in this case that if I were to make an order that is contrary to the views expressed by the older children, that they would not comply with the orders, or certainly that compliance with the orders by them would be fraught with additional psychological and emotional risk. Also, I think that this is a case where it would not be possible to separate the children in terms of having contact with their father – either they all go and draw mutual support from one another, or none of them go.
Other relevant additional considerations
On the facts of this case, the two primary considerations referred to in section 60CC(2), and the views of the children, strongly point towards no order for contact or communication. In these circumstances, my exploration of other additional considerations will be cursory. Clearly, the nature of the children’s relationship with their father is problematic and dysfunctional, for reasons that have already been adverted to. In his case, the father certainly raises the issue of the mother’s lack of willingness to support the children’s relationship with him. Nonetheless, the facts of this case demonstrate that her reluctance is justifiable, and is based on legitimate concerns about how the children would cope with resuming a relationship with their father, particularly given the history of violence. Because of these factors, the effect of change in the children’s circumstances which would involve contact or communication with the father is not in their best interests. I fully recognise and acknowledge that the father’s final position put to the Court is a moderate, conservative one. Nonetheless, the facts clearly contraindicate any contact or communication. There are no issues of practical difficulty and expense in this case. I have no concerns about the mother’s capacity to provide for the needs of the children and, indeed, her efforts in this regard have been admirable. One must also recognise that the mother has rehabilitated herself out of a past highly abusive and controlling relationship with the father, as well as from past drug issues. I have no concerns about her into the future. Despite a strong effort and possible progress in rehabilitation on behalf of the father, there are still lingering concerns about his capacity to provide for the children’s emotional needs. Whilst Dr W has articulated his concerns in a more forceful manner than I would accept, nonetheless the fact remains that the father is a perpetrator of family violence of the most serious kind, in the presence of the children, and most likely directed to the children. The fact of any remorse and contrition on his part does not change the fact that he is an extremely poor role model for these children, and that in itself detracts from the concerns I have about his capacity to meet the children’s needs.
It is apparent from the father’s evidence that he values quite highly a connection with his Lebanese background and culture and for the children to have an opportunity to get to know and interact with his extended family. True it is they may be deprived of this as a result of the orders I will make, but the other considerations in this case clearly prevail. Finally, the fact of family violence clearly casts a shadow over the father’s attitudes towards the children and to the responsibilities of parenthood. It took many hours of cross-examination before the father conceded that the children might be adversely affected by violence even if it was not perpetrated in their presence. He failed to understand the impacts on the children of violence suffered by their mother. Whilst he says that the attitudes manifest by his previous behaviour have changed, as he has changed, there must remain lingering doubts.
I am satisfied that on the facts of this case, an order for no contact or communication is, in fact, the order that is least likely to lead to the institution of further proceedings in relation to the children. Even if I made orders in terms of that sought by the father, it is not difficult to imagine his seeking to enforce the same through contravention proceedings, in which it will be argued that there is a reasonable excuse based on past events. It is time to finish this chapter in the children’s lives. I recognise that at some future time they may well seek out their father in order to resume a relationship with him, but that is a matter entirely for them.
The father asked me to make interim orders, but for the reasons I have already articulated these proceedings need to be brought to an end.
The orders in the children’s best interests
The father seeks an order that the mother provide photographs and school reports of the children. I am sure that from the father’s perspective he would regard this as a very modest, non-threatening proposal, and in other cases that may well be true. But on the facts of this case, the violence has been so extreme, and the mother and children’s concerns so well-founded, that the Court can understand her concern about even sharing this information with him. In any event, the father’s proposal in this regard was formulated after the conclusion of the evidence and submissions and the Court was not able to have the benefit of the expert’s views about the appropriateness of the provision of this information. I infer from the evidence of the mother, and the expert, that the children would be stressed about knowing that their father was receiving this information.
The father asked to communicate with the children by way of a letter which is, in effect, vetted by a court counsellor. Again, this is a proposal formulated after the conclusion of the evidence and the Court is thus denied the opportunity of hearing from the expert in this regard. Again, whilst this is a reasonable proposal in many other cases, on the facts of this case, and for the reasons I have previously articulated, the potential impact on the children of receiving such a letter is such as to contraindicate the making of this order.
The father seeks an adjournment for 12 months, and the provision of a further updated family report after a period of supervised contact for one hour each month. Again, for the reasons I have articulated, this is neither in the children’s best interest, nor does it promote the finality of proceedings which is so necessary on the facts of this case.
The mother seeks sole parental responsibility. This was not really challenged by the father. Certainly there is enough evidence before the Court to rebut any presumption of equal shared parental responsibility. I find this is not in the children’s best interests. In any event, I make findings about family violence with contraindicate equal shared parental responsibility.
The mother seeks an order for change of name. She supports this with evidence about the children’s views. The Independent Children’s Lawyer supports this. The father’s case was not really directed towards this issue. In circumstances where the mother will have sole parental responsibility and there will be no contact or communication with the father, it is appropriate to make this order.
Finally, the mother seeks an order restraining the father from approaching the children or the children’s school or communicating with them by any means, including through a third party. On the evidence of this case, I agree that this is an order that is appropriate. There is clear evidence of the potential harm to the children of any such contact or communication and, on that basis, the father should be so restrained.
This is a tragic case. It is a rare case where the Court orders no contact or communication between a parent and a child. The circumstances almost have to be in the exceptional category for this to occur, not because of any legislative mandate in this regard, but because it is generally accepted that some contact and communication is in the children’s best interests. Regrettably, that is not the outcome on the facts of this case. An order for no contact or communication is not lightly made. The circumstances of this case are such to justify it. Family violence casts a long shadow which has an impact many years after perpetration has ceased.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 2 March 2011
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