Hill and Hill

[2016] FCCA 1046

FEDERAL CIRCUIT COURT OF AUSTRALIA

HILL & HILL [2016] FCCA 1046

Catchwords:
FAMILY LAW – Children – history of family violence – benefit of a meaningful relationship – separated siblings – no order for time for youngest child with father.

Legislation:

Family Law Act 1975 (Cth) ss.4, 60B, 60CA, 60CC, 61DA, 117

Cases cited:
Goode & Goode [2006] FamCA 1346

Applicant: MS HILL

Respondent: MR HILL

File Number: SYC 573 of 2014

Judgment of: Judge Boyle

Hearing dates: 14 and 15 April 2016

Date of Last Submission: 15 April 2016

Delivered at: Sydney

Delivered on: 4 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Davies

Solicitors for the Applicant: Intercept Law

Counsel for the Respondent: In person

Counsel for the Independent Children’s Lawyer: Mr Holmes

Solicitors for the Independent Children’s Lawyer: Kd Holmes Solicitors

ORDERS

1. That the father have sole parental responsibility for the child X born (omitted) 2001.

2. That X live with his father.

3. That the mother have sole parental responsibility for the child Y born (omitted) 2013.

4. That Y live with his Mother.

5. That there be no order for time between Y and the father.

6. That the parents shall each provide to the other an email address that shall be used by them to communicate the names of any medical practitioner and/or health care provider that may be consulted about the health of the child X, or Y, and the name of any school attended by Y, and the parents shall provide the email addresses to the ICL within 7 days of the making of these orders, who shall then provide each of the parties with the other’s email address.

7. The father is restrained from enrolling X born (omitted) 2001 at any school other than (omitted) High School.

8. The mother by this order is authorised to receive from (omitted) High School all School Reports, and any other information usually provided to parents, with respect to X born (omitted) 2001.

9. The father by this order is authorised to receive from any school Y may attend all School Reports, and any other information usually provided to parents, with respect to Y born (omitted) 2013.

10. That the father shall forward to the mother at the email address provided by her, as referred to in order 6, the name and contact details of any general practitioner, specialist doctor, or allied health professional treating X born (omitted) 2001 from time to time.

11. The mother by this order is authorised to receive from any general practitioner, specialist doctor, or allied health professional treating X born (omitted) 2001 information usually provided to parents, with respect to X.

12. That the mother shall forward to the father at the email address provided by him, as referred to in order 6, the name and contact details of any general practitioner, specialist doctor, or allied health professional treating Y born (omitted) 2013 from time to time.

13. The father by this order is authorised to receive from any general practitioner, specialist doctor, or allied health professional treating Y born (omitted) 2013 information usually provided to parents, with respect to Y.

Notation

1. The Court notes that X will spend time with his mother in accordance with his wishes and as arranged by X and his mother, and encouraged by the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 573 of 2014

MS HILL

Applicant

And

MR HILL

Respondent

REASONS FOR JUDGMENT

1. The matter comes before the Court with respect to parenting orders sought for two of the parties’ three children: X, born (omitted) 2001, who is currently aged 14 and Y, born (omitted) 2013, who is currently aged three years. The parties have an older child, Z, born (omitted) 1996, who is currently aged 19. The two older boys reside with their father, while Y resides with his mother.

2. Final parenting orders were made on an undefended basis, in the absence of the father, on 27 October 2014. It is common ground between the parties that those orders are not applicable to the children’s current circumstances, and should be reconsidered.

The Evidence

1. The mother, Ms Hill, filed an Initiating Application on 31 January 2014. There was a Response filed by the father, Mr Hill, on 25 November 2014. The mother provided to the Court at the commencement of the hearing, a proposed Minute of Orders[1] which sets out the orders she seeks as follows.

   [1] Exhibit 3.

   1. That the parents have equal shared parental responsibility of the child X ('X').

   2. That the mother have sole parental responsibility of the child Y ('Y').

   3. That Y live with the mother.

   4. That X live with the father.

   5. That the father spend no time with Y.

   6. That the mother spend time with X as follows:

   a. Sunday night from 4.30pm until 8.00pm.

   b. Half of each of the school holidays as agreed or failing agreement for the first half of each school holiday period.

   7. That the father be restrained from moving X from outside of the state of NSW without the consent of the mother.

2. The father indicated that he seeks orders in accordance with the orders sought in his Response filed 25 November 2014, save that he also seeks orders for sole parental responsibility of X, and equal shared responsibility of Y.

   1. That the child namely [X] live with the father.

   2. That the child namely [Y] live with the  mother.

   3. Y spent time with the father as follows;

   a. From Wednesday at 7.00 am to the following Friday at lam.

   4. The parties are to keep each other updated with their current residential address and contact telephone number. The parties are to provide the other party in writing within fourteen (14) days of any change to their current contact details.

   5. That each parent notifies the other as soon as possible in the event of any illness, hospitalisation or injury of the child whilst the child is in their respective care.

   6. The parties are directed to authorize the children's treating medical practitioners to speak with the each party about any medical or psychological problem or counselling which affects the children from time to time.

   7. Each party is entitled to attend at the school or preschool where the children are enrolled for any activity which involves the parents including sporting carnivals, Award Events, Assemblies and Parent Teacher Interviews.

   8. Neither party is to denigrate the other party in the hearing or presence of the children and is to remove the children from the presence or hearing of any third party who attempts to do so.

3. Prior to submissions commencing, the Independent Children’s Lawyer provided a Minute of Orders as follows.

   1. That the Father have sole parental responsibility for X.

   2. That X live with his Father.

   3. That the Mother have sole parental responsibility for Y.

   4. That Y live with his Mother.

   5. That X spend time with his Mother in accordance with his wishes and as arranged by X and his Mother.

   6. That there be no Order for time between Y and the Father.

   7. That the Mother be authorised to receive all school reports and medical reports from X's educational and medical providers and that she be at liberty to discuss his educational and medical welfare with those providers.

   8. That the Father be authorised to received Y's school reports when he attends school and that the Mother inform the Father, through Z or X, of all important medical issues affecting Y.

   9. That the Father pay one half of the Independent Children's Lawyer's costs of these proceedings.

4. The applicant mother relied on the following material:

   a)An affidavit sworn by her on 6 April 2016 and filed 12 April 2016. This affidavit was filed in breach of the directions of Judge Scarlett, which required affidavit material to be filed by 1 April 2016. Leave was granted to the mother at the commencement of the hearing to rely on that affidavit unopposed.

   b)Additionally, the mother filed a notice of risk of child abuse on 13 October 2014.

5. The father relied on the following material:

   a)Two affidavits that he had filed previously, being one sworn 9 April 2014 and filed 17 April 2014, and the other sworn 24 April 2014 and filed 25 April 2014. He filed no updating affidavits prior to the hearing.

6. I was not provided with a Case Outline Document from either of the parties, nor the Independent Children’s Lawyer (“ICL”). The ICL did provide a chronology.[2]

   [2] Exhibit 4.

7. The Exhibits tendered were as follows.

   a)Exhibit 1. The father’s NSW Police Criminal History from documents produced under subpoena to NSW Police.

   b)Exhibit 2. X’s 2015 school report.

   c)Exhibit 3. The mother’s minute of orders sought.

   d)Exhibit 4. The ICL’s chronology.

   e)Exhibit 5. CDC Memos dated 2 May 2014; 14 January 2015 and family report released 14 March 2015, all prepared by Ms S, (“the family report writer”).

   f)Exhibit 6. A Police witness statement of Mr A, and Z.

   g)Exhibit 7. Documents produced under subpoena to the Department of Family and Community Services.

   h)Exhibit 8. The ICL’s minute of proposed orders.

8. The father, mother and the family report writer were all cross-examined.

Background Facts

1. The parties were both born in (country omitted). The mother was born on (omitted) 1972 and is 43 years old. The father was born (omitted) 1972 and is also 43 years old.

2. The parties commenced a relationship in 1991 and married on (omitted) 2013. They have three children: Z, born (omitted) 1996, now aged 19, X, born (omitted) 2001, now aged 14, and Y, born (omitted) 2013, now aged three years. Z was born in (country omitted) and X and Y were born after the parties’ arrival in Australia.

History of Family Violence

1. There is a significant history of family violence, which commenced prior to the family’s arrival in Australia in 2000. The mother’s evidence, when cross-examined by the ICL, was that the violence began in their relationship when she was pregnant with Z, nearly 20 years ago. The (country omitted) equivalent of an Apprehended Violence Order (“AVO”) was taken out for the mother’s protection against the father in 1998. To the best of the mother’s recollection, that was the only such order granted in (country omitted).

2. The father agreed that there had been an AVO granted prior to the parties leaving (country omitted). When he was asked if that was as a result of an assault by him, he conceded “I grabbed her arm”. He was “pretty sure” he was convicted of an assault upon her at that time. He could not recall the particulars of any order. He did not disagree with the mother’s recollection that the AVO was for a period of one year.

3. The mother says there was a period of separation following X’s birth, when Z was about five years old and attending (omitted) Primary School. The parties then reconciled, and there was a further incident of violence when X was about three years old where the police were involved and a further AVO taken. The parties continued to reside together.

4. The father agreed in cross-examination that there had been an AVO granted against him in 2003. The AVO was granted for the protection of the mother against the father. The terms of the order permitted them to live together, and the mother obtained the order in the hope that it would deter the father’s conduct.

5. The father pleaded guilty in March 2005 to a breach of that order.

6. The breach resulted from an incident between the parties on 18 March 2005. The father argued with the mother over drugs and money problems. The argument was in part over expensive shampoo and conditioner, which he says the mother bought for $100. He agreed that he smashed the conditioner on the floor: “I was pretty angry”.

7. He agreed that he grabbed her arm, which caused bruising. The police material[3] was put to the father: the mother tried to leave the home with the children in the car, the father got into the back of the car, and threw the contents of the mother’s wallet around looking for her visa card. He said that he could not recall the particulars. He agreed that the children, Z and X were present for the incident, and whilst he could not recall exactly how old they were, he thought Z was between eight to ten years old and X, four to five years old.

   [3] Exhibit 1.

8. The police were next involved with the family during 2007, when they were residing on the (omitted). There is a police report of an occasion when the father threw the mother’s clothes on the lawn. The father said he could not remember the incident. The police attended the home on another occasion later that year, called for an argument between the parents when the boys were not present.

9. The father was asked by counsel for the mother about an incident at the (omitted) Hotel on 5 November 2008. He became irate in the witness box, stating that what was in the Family Report with respect to this incident was “all a lie”. The family report writer had referred to the female victim in the police report as the mother.  The father gave evidence the victim was an employee at the hotel. The father did not deny any other aspect of the Computerised Operational Policing System (“COPS”) entry that was put to him. He argued with the victim, became angry and verbally aggressive, such that the victim and others went into the office to get away from him. He pushed a vase off the counter so that it smashed on the floor. The Police were called. He left before the Police arrived, and they spoke to him the next day.

10. The father did not appear to regard this incident as relevant because the mother was, in this instance, not the victim of his violence. The incident is highly relevant to the father’s preparedness to use violence, verbal aggression and intimidating behaviour against others. He demonstrated no remorse for his conduct.

11. What the mother described as the “final assault” was the incident that caused the parties to separate on 12 August 2013. The mother and Z had a disagreement over Z being too rough in play with X, on the mother’s evidence. Z called his mother names. They started to argue and the father intervened on Z’s behalf. The father says he got in the middle and lost control. The father agreed he held the mother by the neck. When asked if he squeezed her neck hard, he said “I would not say it was hard”. He agreed he could have called her “a slut, fucking bitch, fucking dog, I hope you die, why don’t you kill yourself”, but he did not know exactly what he said.

12. X apparently took Y from his father’s arms when he was abusing the mother, and called Z for help.

13. When asked if he had followed the mother into the sunroom, where she was curled up in the foetal position trying to avoid him, he said to counsel for the mother “that’s one side of it, you can’t think that’s gospel… I lost control. She brought our son to tears and threatened to wrap a pot around his head. Obviously I wasn’t thinking rationally.” The mother says Z stepped in, pushing his father away. She said that was what caused her to finally leave the father.

14. The father was convicted of assault upon the mother, and received 300 hours of Community Service. An AVO was granted for 5 years for the protection of the mother and children.

15. Since that time, the mother has had no communication directly with the father, and instead has communicated with him through the two older children.

16. On 6 August 2014 when the mother was parked at (omitted) Hospital the father removed the battery so that the mother could not use the car. When questioned about this incident, the father was adamant that it was “his car”. He did not deny removing the battery, justifying his conduct by saying the car was unroadworthy and “she shouldn’t have been driving the kids in an unregistered car”.

17. It is common ground that the boys have been present during violent outbursts by the father and he has never been physically abusive towards them.

18. The father vacillated between accepting responsibility for the incidents, and blaming the mother for his violence: “it was a big fight … I was in the wrong”; “I tell you what dawned on me was not liking my kids being hit and screamed at”; “part of it was how badly she treated the kids”; “an argument over her buying $100 bottles of conditioner and shampoo, and I smashed it”; “I wasn’t the only one who was very angry”. The father clearly viewed the mother as being in large part at fault for his conduct.

19. As he put it in oral evidence “We had thousands of fights and arguments … We’d get to a stage when we would row in front of the kids ... I don’t deny my behaviour … it was a tumultuous time for everyone”; “there are two sides to every story. We were both at fault. I take full responsibility”. When asked by the ICL whether, leaving aside his wife, he was a violent man, he thought not.

20. The affidavit of the father sworn 17 April 2014 demonstrates this conflict in the father accepting responsibility for family violence. He says: “During our relationship, [the mother] was violent and aggressive towards me, and verbally attacked me and the children.”[4] The Police Facts Sheet, as amended, dated 19 August 2013 is annexed to the same affidavit. In that document the father is quoted from the electronic interview conducted with the Police: “I just wanted her to shut up, I was not trying to kill her or beat her up, I was just at a loss I can’t handle life with her anymore and I’m truly regretful that’s ridiculous. Sitting here now I feel very sorry for my actions it was very stupid.”

    [4] Father’s Affidavit filed 17 April 2014 at para 20.

21. The father was candid that he had never followed through with assistance with respect to his conduct. He said he spoke to Dads in Distress in about 2007 after the parties moved to the (omitted). He also said he went to a couple of counselling sessions. It was not clear whether that was through Dads in Distress or a different organisation. It was clear from his evidence that he does not intend to seek any counselling or anger management, nor that he views it as necessary.

22. The father agreed he was convicted of three assaults upon the mother in New South Wales, consistent with his affidavit evidence: “I acknowledge that there has been family violence between [the mother] and I. At times I have been the perpetrator and I have been charged with three assaults. I regret my past actions and that at times the children have witnessed my behaviour.” [5]

    [5] Father’s Affidavit filed 25 November 2014 at para 30.

23. The NSW Police records show that in addition to the assault charges the father was convicted of stalk, intimidate intend fear of mental harm, where the mother was also the victim, for which he was sentenced 75 hours of Community Service, cumulative with an assault charge.

24. Interim orders were made on 7 July 2014 for X and Y to live with the mother. The father did not attend court. The orders also provided for Y to live with his father three nights each week.

25. X went to live with his father in August 2014, in breach of the orders. The mother filed an Application for a Recovery Order on 22 August 2014, which was granted on 27 October 2014. X was returned by the Australian Federal Police. Her evidence is he broke the front door as he opened it, said “Fuck you” to her, and threw Y’s high chair across the room. X contacted his father and returned to him the following day on the mother’s scooter. The mother then went to the father’s home where X met her at the doorway and began screaming and swearing at her. The mother slapped him across the face.

26. A Police Statement was tendered by the father from a neighbour, Mr A. The neighbour did not observe the incident. X came to his home and told him his mother had “been hitting me around the head”. X is described by Mr A as being visibly upset and distressed. Mr A went to the father’s home and the mother was still there. The mother argued with him and said “He deserved a good hit.”

27. On 1 December 2014 an AVO was granted for the protection of X against his mother.

1. The mother blames the father for an incident that occurred between herself and Z on 15 May 2015 at her home. She says Z came to her door demanding furniture. She said Z had no particular interest in the furniture and that he was complying with his father’s demands. She said he was shouting and swearing at her.

2. There is evidence of a statement of Z to the Police, which disputes the mother’s version. An AVO was granted for the protection of the mother against Z.

3. The father regards the problems in the elder boys’ relationship with their mother as being the fault of the mother and a consequence of her conduct towards them. This explanation of the boys’ difficulties with their mother is overly simplistic, and not accurate. The father has very little respect for the mother as a parent. The boys have heard the father swear at her, criticise her and demean her for the whole of their lives. They have seen the father hit and push her. This has clearly been problematic for the boys, and influenced their attitude towards their mother. For the time being, they have aligned themselves with the father.

4. The mother was physically distressed while she gave her evidence, and anxious throughout the time in court. She described herself as being hurt and the boys as being hurt by instances of violence. She said it took her a long time to go to the police. She asked her mother-in-law for help and was advised to go to the police.

5. The mother’s real concern is that if the father spends time with Y he will go the same path as his brothers and have a very limited relationship with her. The mother regards the father’s conduct as being part of a campaign by him to alienate her from the boys. The mother regards this as the explanation for the deterioration of her relationship with the boys. Whilst objectively this could not be a complete explanation for the complicated set of circumstances the older boys have found themselves in, she is vehement in her belief that is the case.

6. The mother’s fear with respect to Y being alienated from her was palpable when she gave evidence and she could not concede that even limited periods of time between Y and his father would not give rise to that as an outcome for Y.

7. The parties met with the family report writer for the first time on 2 May 2014. At that time the mother agreed that Y, not yet one year old, spend time with the father from Tuesday until Friday each week. X lived with the mother and was spending weekend time with the father. This was formalised by way of order on 7 July 2014. The mother’s evidence about why she agreed to Y spending such long periods with the father, was that she thought that the father would change his approach towards her following separation. It is her view that he has failed to do so and involved the two older boys in his campaign against her. This has caused her fear about parental alienation.

8. In the overall picture of the dispute between these parents, it is very troubling that the mother was prepared to consent to orders that had Y spending three nights a week in his father’s household.

9. The reasons for the mother’s change of attitude appear to be that in her view the father remained negative and dismissive about her, and did not encourage, nor permit, X to have a relationship with her. The mother then became convinced, consistent with her presentation at the family report interviews, and when giving evidence, that if Y spent any time with his father she would lose her relationship with him.

10. When this issue was raised with the family report writer, she reflected that the mother had become much more coherent over the time she had seen her following the first conference in May 2014, through to the interviews for the family report in November 2015. She described the mother at interviews for the Child Dispute Conference as being “so overwhelmed by anxiety and distress that she found it difficult to think or to present a coherent narrative”.[6] The report writer did not regard the mother’s attitude as being about appeasement of the father.

    [6] Family Report para 11.

11. The mother told the family report writer that she had suffered from anxiety, which escalated to Post Traumatic Stress Disorder (“PTSD”) following the incident with Z in May 2015. She was taking anti-depressants at the time of the interviews for the Family Report. She was described by the Family Consultant as “clearly angry, as well as anxious and somewhat frantic”.[7] Her presentation in court was consistent with this description.

    [7] Ibid.

12. The mother attempted suicide in March 2012, prior to separation. She gave evidence that she has attended counselling through Catholicare for about 12 sessions, then started seeing a psychologist in (omitted), whom she still consults. She was diagnosed with PTSD by the psychologist.

13. The file produced by the Department of Family and Community Services was primarily concerned with risks to the children related to exposure to domestic violence. There was a report of the mother’s attempted suicide in March 2012 by overdosing on Valium prior to Y’s birth. The parties were separated at the time, the mother had been diagnosed as suffering from depression about 4 months before and she was described as suffering “situational stress”. The children were with their father when it occurred and were unaware of the attempted suicide at the time.[8]

    [8] Exhibit 7.

14. The mother participates in an online Parental Alienation support group. She believes the community has given her support and strategies in dealing with the older boys.

15. The father has suggested that the mother has bipolar disorder. The report writer considered that the mother’s emotional functioning would have been compromised and her self-esteem damaged by the father’s abusive behaviour and undermining of her role with the older boys – “she may well have behaved in ways that suggested mental health issues as, for example, her suicide attempt or her expressions of frustration”[9].

    [9] Family Report para 53.

The Law

1. The best interests of the child are paramount. The Family Law Act 1975 (Cth) (“The Act”) provides the legislative pathway to determine parenting proceedings.[10]

   [10] Goode & Goode [2006] FamCA 1346.

Section 60CC (2)

(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.

1. I propose dealing with the two primary considerations together, as these provisions crystallize the dilemma in this matter. For Y, it is clearly in his best interests to have the benefits of a meaningful relationship with his mother. She has been his primary carer since birth, and the report writer observed he is still at the attachment forming stage of development. If there is a disruption to that attachment because the mother is frightened of the father and her parenting capacity is impeded, that would not be in his interests. It would have serious consequences for his long term ability to form relationships and his long term development. The report writer was concerned this may have occurred with the mother’s parenting of and attachment relationship with, Z and X. That is, her parenting capacity was disrupted by her continued relationship with the father and consequent exposure to family violence.

2. The report writer’s evidence is that the father was very good in observation with Y, and potentially has a lot to offer him. Y would benefit from a meaningful relationship with his father, for example, in the development of his own sense of identity.

3. Y needs to be protected from the harm of being exposed to ongoing family violence. The risk for Y is too high for there to be orders that would provide him with a meaningful relationship with his father, given the overwhelming evidence of his father’s engagement in family violence.

4. Given the history of violence in the parties’ relationship, they must be kept separate so they need not have a relationship. It is one of the only matters the parties are in agreement about.  

5. X’s age and maturity is a significant factor. He would benefit from a meaningful relationship with his mother, however, that will need to be on his terms for reasons set out below. The reality is that X has decided to live with his father, notwithstanding being returned to his mother pursuant to a Recovery Order. None of the parties seek orders for X to reside other than with his father.

6. Making orders for time with his mother, against X’s wishes, is likely to lead to further conflict between X and his mother. X is now, on his father’s account, taller than him. It would be impossible for him to be compelled to do something without risk of a physical altercation.

7. X has had from both his parents a model of resolving disputes that involves shouting, swearing, coercive behaviour and physical fights. It is to be hoped that he decides as he matures to do things differently.

Section 60CC(3)(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.

1. X was 14 years and 9 months at the time of interview for the Family Report. The report writer described him as presenting as “a polite, personable teenage boy”. His school report for Year 8, second semester 2015[11] presents a reasonably positive picture. His teachers describe him variously as bright, capable, being gifted in oral expression, making good progress, although at times distracted and needing to focus. Taken together, it is clear that X is at least as mature as his chronological age suggests, and his views should be given considerable weight.

   [11] Exhibit 2.

2. The report writer referred to his views specifically: “He expressed a clear wish to continue to live with his father. He indicated that he would be willing to have dinner with his mother once a week or once a fortnight.”[12] Given the confrontation that occurred between X and his mother as a consequence of the recovery order, I do not propose making orders for time. The father has indicated that he supports X seeing his mother and little brother. There will be a notation to that effect, in the hope that encourages the situation to continue. It is in X’s interests to have a relationship with his mother, and brother Y.

   [12] Family Report para 58.

3. Y is three years old. He is not of an age where his views could be ascertained, nor would they carry any weight.

Section 60CC(3)(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);

1. X has a close relationship with his father. Z also resides in the home, and X has a good relationship with his brother. As the mother put it, referring to all three boys: “They adore each other”.

2. I accept the evidence of the report writer that X has been used by the father as his advocate. This is exemplified by X’s preparedness to deprive himself of seeing his brother Y, so that his father could get what he wanted, being time with Y – “X said that he has told his mother that he will not see her until he sees the baby… It appears that what X was actually saying was that he would not see his mother until she allowed Y to go to his father’s home.”[13]

   [13] Family Report para 43.

3. Following the interviews for the Family Report in late 2015, the mother attended (omitted) with Y in the hope of seeing X. This coincided with a (hobby omitted) competition in which X was competing. X sat with her and Y for about three hours. X told the mother to park the car where the father could not see it down the other end of the beach. Since then X has been seeing his mother for dinner or a movie every couple of weeks or month. At times Z has gone with him.

4. Following this meeting the mother purchased iPhones for both X and Z. There have been texts between X and his mother, and the sharing of funny videos and the like. Tenuous though it might be, this is something of a breakthrough in the mother’s relationship with X (and with Z). None of this occurred by way of any communication with the father as the mother and father do not communicate. The father says he is aware of these arrangements and encourages both Z and X to see their mother.

5. The report writer observed the mother finds it difficult to distinguish between Z and X behaving like ordinary rebelling adolescents and their father’s agents. If they behave disrespectfully, or swear at her she may see it as an extension of the father’s influence. This has had a negative impact on the mother’s relationship with X, because she perceives herself as being undermined and under attack in a way that is disproportionate.

6. The example given by the report writer was that if the mother could manage a situation where X might say “Stuff you, I will do what I want” then there could be an order for time with his mother. However there is too high a risk that the mother would not manage that, and there would be a repeat of a physical altercation between them.

7. I accept that the father has uncritically taken the older boys’ side in disputes with their mother, so that her authority with them is further eroded. Unfortunately, the father does not take any responsibility for the poor relationship between X, Z and the mother. The report writer’s evidence is that the father was adamant that the mother had mistreated them and that she was entirely responsible for the state of their relationship - the father did not appear to be concerned by it. The father in evidence said if he told X not to see his mother, he would not. This was proffered by him as support for X’s relationship with his mother. I do not accept that it is.

8. The father is not supportive of X’s relationship with the mother. X has had a close relationship with the mother in the past, including coming to her assistance when she was assaulted by the father at separation. Making orders for X to spend time with his mother are likely to be antithetical to their maintaining a relationship. Ad hoc arrangements are likely to be easier for X to manage, and are less likely to lead to confrontation with either of his parents.

9. Y has not lived with his father as part of his household since he was about 4 months old. He has not had the exposure to family violence that his brother have. He was observed by the family report writer to be “a well cared for little boy who appears to be developing normally”[14]. He has not spent time with his father for approximately the last 18 months.

   [14] Family Report para 47.

10. The father was observed by the report writer to be affectionate and appropriate with Y. Nothing untoward was observed of his interaction with either of his parents. At his age he cannot develop a relationship with his father without that being supported by his mother. I find that she is not able to do so, and her inability is a result of her experience of family violence.

11. Her fear of the father’s ability to influence Y against her may be disproportionate, but I accept that she sincerely believes it. As with X, it creates the probability that the mother will interpret poor behaviour by Y as being caused by his father.

12. Spending time with the father will expose Y to a parent who has no respect for his mother. The father is a poor role model for Y, given his use of violent and coercive behaviour. This is likely to create difficulties for Y, both now and into the future. Y’s relationship with Z will be limited to the time Z spends with his mother. As with X there has been some tenuous improvement in that relationship of late, which may improve following the conclusion of these proceedings.

13. I do not propose making orders that rely on the older two boys conveying information between their parents’ households. It may have the effect of putting them in the middle of conflict or disagreement between their parents and has the potential to create further disputes between the parties.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) To participate in making decisions about long-term issues in relation to the child;

(ii) to spend time with the child; and

(iii) to communicate with the child.

1. Each of the parents wants to participate in making decisions, spending time with and communicating with the child in the other parents’ care. Their failure to do so can be understood in the context of the dynamics of the parent’s relationship and the significant history of family violence referred to elsewhere in this judgment. This is not a significant factor in this matter.

Section 60CC(3)(ca) the extent to which each of the parents has fulfilled, or failed to fulfil the parent’s obligation to maintain the child

1. The father has had an obligation to pay child support and there is a current child support debt, as I understand the evidence. The mother does not have a current child support obligation with respect to X, however she is meeting the costs of his iPhone and plan. This is not a significant factor in the determination of the matter.

Section 60CC(3)(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 parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he has been living;

1. At Y’s age and stage of development, it is essential he is able to maintain his relationship with his mother. Although his father loves him, and potentially has much to offer him, it comes at too high a risk of disrupting his relationship with his mother and his mother’s capacity to parent him.

2. Y and X have been living in separate households for about 18 months. That separation is inevitable at the present time. It is to be hoped that X will be encouraged by his father to continue to spend time with his mother. The same applies to Z in terms of Y’s relationship with him.

Section 60CC(3)(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.

1. This section is of limited relevance set against the other difficulties in this matter. I note that there was no evidence of a facility that would enable supervised time to occur over the next ten or more years. Significantly, it is not clear that were such facility available the mother would manage any ongoing time arrangements between the father and Y.

Section 60CC(3)(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

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. I will consider these two provisions together, as they are intertwined in this matter.

2. The mother’s capacity to provide for the children’s needs has been damaged by the father’s violence towards her. It has damaged her self esteem, her confidence and has led her to feeling undermined by him at times reasonably and at times unreasonably. She has sought assistance for herself and has been actively engaged in counselling since separation. She is grappling as well as she can with fulfilling the responsibilities and duties of parenthood.

3. Nonetheless she has lost her temper and lashed out at both Z and X. The mother’s capacity to parent Y must be supported by these orders.

4. The father’s capacity to provide for the needs of his children is limited by his recourse to violence, his lack of remorse and unwillingness to consider that he should change his conduct. Although the evidence was mostly directed at violence within the parental relationship, the incident at the (omitted) confirms the father’s difficulty in managing his temper with others. He was not sorry about this incident and showed no insight into the impact of his behaviour on others.

1. The father’s instigation of family violence has occurred in the children’s presence and throughout their lives prior to separation. It is a derogation by him of the responsibilities and duties of parenthood. He has not demonstrated any insight into the impact of his violence on the needs of any of his children.

Section 60CC(3)(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

1. Both X and Y are of (omitted) heritage, as are their parents. Their maturity is discussed above. This is not a significant factor in this matter.

Section 60CC(3)(j) Any family violence involving the child, or a member of the child’s family

1. As is detailed above, family violence has been a feature of the parties’ relationship since at least 1998. This has involved the father being physically abusive to the mother, emotionally abusive to the mother, and engaging in coercive and controlling behaviour. All three children have been present at times and have seen and heard their father physically and verbally abusing their mother. For the older two children this has occurred throughout their lives, only ceasing following separation.

2. The mother has also engaged in family violence, and the two clear examples of that are her loss of control with Z and X after separation. This occurred in circumstances of extremely provocative behaviour by teenage boys and when the mother has been under enormous stress about losing her relationship with each of those children. It is her view that the boys were acting essentially under instruction from their father. These matters are not raised to excuse the mother’s behaviour, but to understand the context of those particular outbursts by the mother.

3. Self evidently, it is not in Y’s interests to be exposed to family violence. The only way to minimise that risk is for there to be no time between Y and his father. Any time spent by Y with his father increases the likelihood of contact between his parents. This poses a real risk of psychological harm for Y, as well as a risk of physical harm. As the report writer said, when there is violence between parents young children get hurt, they can be in the wrong place at the wrong time and they can be not just hurt but killed.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family

1. There is a current Apprehended Violence Order granted at Wyong Local Court for the protection of the mother and children against the father. The order was made for 5 years and is in place until 18 February 2019.

2. A Provisional Apprehended Violence Order was granted for the protection of the mother against Z on 16 May 2015. It does not appear that order is still in place.

3. An Apprehended Violence Order was granted for the protection of X against the mother in November 2014. It does not appear that order is still in place.

4. The history of family violence orders is detailed elsewhere in this judgment.

Section 60CC(3)(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.

1. The parties have been involved in litigation in this Court since proceedings were commenced on 31 January 2014. There has been litigation in local courts for AVOs involving all family members, commencing in 1998.  Concurrent with those proceedings have been at times charges of assault, stalk, intimidation and breach of AVO’s against the father.

2. It is in the interests of Y and X that there is no further litigation concerning them. The orders are intended to preclude the necessity for further litigation, as the parties will not be required to communicate with each other, nor have any ongoing relationship.

Parental Responsibility

1. Section 61DA of the Act requires that when making a parenting order the court must apply a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility. The presumption does not apply in this instance as it is accepted by both parties that there has been violent, threatening behaviour by the father against the mother that has caused her to be fearful.[15]

   [15] Family Law Act 1975 (Cth) s4AB (1).

2. The mother seeks an order for equal shared parental responsibility of X, and sole parental responsibility of Y. The father seeks an order for sole parental responsibility of X and equal shared parental responsibility of Y.

3. The parents agree they have not communicated since separation. Requiring them to reach decisions together with respect to either X or Y is untenable, given the history of violence.

4. The mother was adamant in her evidence that she “did not want to give up parental rights”. She wanted to know if X had any medical problems and was concerned that without an order for parental responsibility she could be told by his school that she has no rights to receive information. At the beginning of the hearing she sought an order that the father not remove X’s residence from NSW.

5. It became apparent during her evidence that her real concern is that X remain at the same school. The father made a unilateral decision to change X’s school in May 2015 from (omitted) High School to (omitted) High School. He remains at (omitted) High School. The father’s evidence is that he has no intention of changing X’s school nor relocating elsewhere.

6. The father said he was worried about Y and him being raised by strangers in day care. He was concerned about how his eczema was being managed. At the same time he said that he did not want the mother ringing his home, nor any contact with the mother – “I can’t negotiate on that”.

7. Orders will be made that each parent receives information about the child in the other parent’s care, so that each parent is authorised to receive information from health care providers and schools. The parents will be required to maintain an email account for communication with the other parent so that they can advise, for example, of the name of any medical specialist treating the child. By requiring them each to have an account to provide and receive information, leaves it to the discretion of the parent when they access that account. The mother could, for example, choose to open any emails from the father when she is with her counsellor, or otherwise supported. Otherwise there will be no orders that require the parents to consult each other, or provide information to the other.

Conclusion

1. Despite the overwhelming evidence of family violence in this matter X’s age, maturity and views make it clear that there must be orders for him to reside with his father, without an order for specific time with his mother. The circumstances surrounding the execution of the recovery order 18 months ago demonstrate the risks for X and his relationship with his mother, in doing otherwise.

2. Y has the opportunity to grow up in a home where the risk of family violence is minimised. His mother’s capacity to parent him and his relationship with her, will not be impacted by fear of family violence from the father. To achieve this he cannot spend time with his father.

Costs Application by the ICL

1. The ICL sought an order for the father to pay one half of the costs of the ICL in the sum of $3,000. S117(3) makes clear that the Court can make an order for costs in favour of an ICL under s117(2) if the circumstances justify so making an order.

2. The father when cross-examined on this issue said he did not have funds to meet any order. His evidence is that he currently works as a labourer on a “casual part time basis”. He said when cross examined, he might work 3 days in one week and not at all in the next. Some weeks he earns about $800, and some $400. Depending on his income, he then receives partial benefits from Centrelink.

3. In November 2013 he says his income was over estimated by the Child Support Agency by the amount of $35,000, and he accrued a debt. He says he owes $18,000 for what he described as “spousal support”, which may be referrable to a previous order made for spouse maintenance, or may be referrable to child support. His evidence was unclear.

4. The father’s evidence is he pays $385 per week for rent. Z and X reside with him. He receives no child support for X and says he assists Z, now aged 20 years, as he is at University completing a (omitted) Degree.

5. In all the circumstances I am not satisfied that Mr Hill could meet the proposed order for payment towards the ICL’s costs and I do not propose making such an order.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Date: 4 May 2016