Janssen & Janssen (No.2)
[2016] FamCA 796
•21 September 2016
FAMILY COURT OF AUSTRALIA
| JANSSEN & JANSSEN (NO. 2) | [2016] FamCA 796 |
| FAMILY LAW – CHILDREN – Where there are allegations of physical, verbal and emotional abuse perpetrated by the father against the mother and the parties’ three children – Where audio recordings made by the mother prior to and after separation are admitted into evidence – Where the Court finds the children have been exposed to family violence – Presumption of equal shared parental responsibility not applied – Whether the children will be exposed to an unacceptable risk of physical and/or psychological harm if they were to spend time with the father – Whether the children spending time with the father would detrimentally impact upon the mother’s psychological health such that it would pose an unacceptable risk of harm to the children – Where the Court finds that the children would be exposed to an unacceptable risk of harm if they were to spend time with the father – Whether any risks identified can be mitigated – Orders made for the mother to have sole parental responsibility – Orders made for the children to spend supervised time with the father on two occasions per year – Orders made that the father not communicate with the children by any means. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 69ZT, 69ZV Evidence Act 1995 (Cth) ss 79, 140 Family Law Rules 2004 (Cth) rr 15.63, 15.64 |
Adamson & Adamson (2014) FLC 93-622
Blinko & Blinko [2015] FamCAFC 146
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Metwally v University of Wollongong (1985) 60 ALR 68
McGregor & McGregor (2012) FLC 93-507
Neat Holdings Pty v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Nikolakis & Nikolakis [2010] FamCAFC 52
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549
| W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Ms Janssen |
| RESPONDENT: | Mr Janssen |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Volk |
| FILE NUMBER: | SYC | 5802 | of | 2013 |
| DATE DELIVERED: | 21 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 1 - 3 February; 16 - 20 May; 15 June; 23 - 24 June 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levy |
| SOLICITOR FOR THE APPLICANT: | Reid Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Sansom SC |
| SOLICITOR FOR THE RESPONDENT: | Verekers Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Anderson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Helen Volk Lawyers |
Orders
All previous parenting orders are discharged.
The mother have sole parental responsibility for the children of the marriage, namely X born … 2008, Y born … 2009, Z born … 2011 (“the children”).
The children live with the mother.
The children are to spend supervised time with the father, in accordance with the provisions of Order (5) below, on two occasions in each year, for one hour duration, and, in lieu of agreement, on 5 July and 20 December each year, commencing on 20 December 2016.
The time the children are to spend with the father, pursuant to Order (4), is to:
(a)be supervised by such professional supervising agency as is mutually agreed, and in lieu of agreement, CatholicCare Supervised Contact and Changeover Centre … (“the Contact Supervising Agency”);
(b) be at the expense of the father;
(c) occur in a contact centre;
(d)be terminated in the event that the father engages in any of the following conduct:
(i)denigrating the mother, or any member of her household or family;
(ii)questioning the children about their mother’s personal life or the personal life of members of the mother’s household or family;
(iii)requesting the children to ask the mother or any other person including the mother’s family, the teacher and priest about spending more time with him;
(iv)requesting the children to ask the mother about communicating with him by telephone;
(v)enquiring with the children where they attend school or live, with whom they live, or where they attend after school activities;
(vi)discussing these proceedings or any other court proceedings between the parties, with the children.
Except as otherwise provided for in these Orders, the father is to spend no time with the children or communicate with the children by any means.
For the purpose of facilitating the time the children spend with the father pursuant to these Orders, each party is to do all things necessary and sign all necessary documents to apply to use the services of the Contact Supervising Agency.
For the purpose of facilitating the time the children spend with the father pursuant to these Orders, each party do all things necessary and sign all necessary documents to apply to use the services of the Contact Supervising Agency.
The father be restrained from:
(a)Providing the children with food during the time the children spend with the father pursuant to Order (4);
(b)Giving the children anything during the supervised time including but not limited to toys gifts or presents;
(c)Sending the children gifts or presents;
(d)Approaching or initiating any direct contact with the children except as provided for in these Orders;
(e)Approaching or initiating any direct contact with the mother except through her legal representative;
(f)Coming within 500 metres of any place at which the mother may live or work;
(g)Coming within 500 metres of any place at which the children attend school or any co-curricular or extracurricular activity;
(h)Assaulting, molesting, harassing, threatening, stalking, intimidating, or otherwise interfering with the mother or children, or any member of the mother’s household or family; and
(i)Publishing any matter on social media which would or could reasonably be inferred to relate to these proceedings and/or the mother or children, or any member of the mother’s household or family.
Order (9) above is an order for the personal protection of the mother, and any member of her household or family, pursuant to section 68B of the Family Law Act 1975 (Cth), to which a power of arrest without warrant attaches, pursuant to section 68C of the Family Law Act 1975 (Cth).
Either party is entitled to request the supervisor supervising the time the children spend with the father to provide a written report to the mother and the father following the conclusion of that time, at the father’s cost.
Pursuant to section 11 of the Australian Passports Act 2005 (Cth), upon the mother’s application to apply for or renew Passports for the children namely X born … 2008, Y born … 2009, Z born … 2011, such passports shall be issued to the mother notwithstanding that the father does not consent.
The father is restrained from placing the name of the child or children on the Family Law Watch List without an Order of the Court and it is requested that the Australian Federal Police give effect to this Order by not placing the children’s names on the Family Law Watch List without an Order of the Court.
The father is to keep the mother’s solicitor advised of his email and residential address and the location of his employer.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Janssen & Janssen (No. 2) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5802 of 2013
| Ms Janssen |
Applicant
And
| Mr Janssen |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Janssen (“the mother”) for sole parental responsibility for the parties’ three children and that the children spend no time with Mr Janssen (“the father”) beyond that required to maintain recognition of the father. The children of the marriage are X born in 2008, Y born in 2009 and Z born in 2011.
The mother’s application is based on allegations of physical, verbal and emotional abuse perpetrated by the father against her and the children during the course of the marriage. The father concedes that he engaged in conduct that constitutes emotional and verbal abuse but denies that he was physically violent towards the mother or the children.
At the commencement of the final hearing, I admitted into evidence audio recordings made by the mother, prior to separation, of interactions between the parties and on occasion, the father and the children.[1] Transcripts of those audio recordings were also admitted into evidence.[2]
[1] Exhibit 3.
[2] Exhibit 2.
That audio evidence is, in its content and tone, compelling in establishing that the father has engaged in family violence as defined in s 4AB of the Family Law Act 1975 (Cth) (“the Act”).
Transcripts of audio recordings made by the mother post-separation during the father’s telephone contact with the children were also admitted into evidence.[3] Those transcripts provided evidence of ongoing inappropriate conduct on the part of the father, including embroiling the children in issues being considered in these proceedings, denigrating the mother, creating false expectations of the children seeing the father and blaming the mother for the children being unable to spend time with the father.
[3] Exhibit 6.
The mother believes that the children would be at risk of physical and psychological harm if they were to spend time with the father, even on a supervised basis. The mother further alleges that as result of the trauma that she and the children have suffered, the children spending face-to-face time with the father would detrimentally impact upon her psychological health to such an extent that it would adversely impact upon her parenting capacity. This in itself, it was argued, would present an unacceptable risk of physical and/or psychological harm to the children.
Issues
Accordingly, the primary issues to be determined in these proceedings are as follows:
a)Are the children exposed to an unacceptable risk of physical harm if they spend time with the father?
b)Are the children exposed to an unacceptable risk of psychological harm if they spend time with the father?
c)Would the children spending time with the father detrimentally impact upon the mother’s psychological health such that it would adversely impact upon the mother’s parenting capacity to the extent that it would present an unacceptable risk of physical and/or psychological harm to the children?
d)If any risk(s) are identified in considering (a) to (c), can any steps be taken to mitigate against those risk(s) identified?
Proposed orders
Proposed orders were not formulated by the Independent Children’s Lawyer (“the ICL”) until the close of evidence, at which point the ICL indicated that the following orders were proposed:[4]
[4] Exhibit 28.
1.That the mother have sole parental responsibility for the children of the marriage, namely [X] born … 2008, [Y] born … 2009, [Z] born … 2011.
2.That the children live with the mother.
3.That the children spend supervised time with the father, in accordance with the provisions of Order 4, on two occasions in each year, for one hour duration, and, in lieu of agreement, on 5 July and 20 December each year commencing on 20 December 2016.
4.That the time the children spend with the father, pursuant to the preceding order:
a. be supervised by such professional supervising agency as is mutually agreed, and in lieu of agreement, CatholicCare Supervised Contact and Changeover Centre … (“the Contact Supervising Agency”);
b.be at the expense of the father;
c.occur in a contact centre;
d.be terminated in the event that the father engages in any of the following conduct:
i.denigrating the mother, or any member of her household or family;
ii.questioning the children about their mother’s personal life;
iii.requesting the children to ask the mother about spending more time with him;
iv.requesting the children to ask the mother about communicating with him by telephone;
v.enquiring with the children where they attend school or live, with whom they live, or where they attend after school activities;
vi.discussing these proceedings or any other court proceedings between the parties, with the children.
5.Except as otherwise provided in these Orders, the father spend no time with the children or communicate with the children by any means.
6.That, for the purpose of facilitating the time the children spend with the father pursuant to these Orders, each party do all things necessary and sign all necessary documents to apply to use the services of the Contact Supervising Agency.
7.That the father be restrained from:
a. Providing the children with food during the time the children spend with the father pursuant to Order 3;
b.Contacting the mother except through her legal representative;
c.Coming within 500m of any place at which the mothr may live or work;
d. Coming within 500m of any place at which the children attend school or any extra curricular activity;
e. Assaulting, molesting, harassing, threatening, stalking, intimidating, or otherwise interfering with the mother or children, or any member of the mother’s household or family;
f. Publishing any matter on social media would could [sic] reasonably be inferred to relate to these proceedings, or the mother or children, or any member of the mother’s household or family.
8.The preceding order is an order for the personal protection of the mother, and any member of her household or family, pursuant to section 68B of the Family Law Act, 1975, to which a power of arrest without warrant attaches, pursuant to section 68C of the Family Law Act 1975.
In closing submissions, counsel for the mother indicated that the mother proposed the following amendments to the ICL’s proposed orders:[5]
[5] Exhibit 30.
1.That the mother have sole parental responsibility for the children of the marriage, namely [X] born … 2008, [Y] born … 2009, [Z] born … 2011 (together “the children”).
2.That the children live with the mother.
3.That the children spend supervised time with the father, in accordance with the provisions of Order 4, on two occasions in each year, for one hour duration, on the last Saturday of the New South Wales gazetted Term 1 school holidays and the last Saturday of the New South Wales gazetted Term 3 school holidays, with the mother’s solicitor to give the father or his solicitor at least fourteen days notice of the time such supervised time shall occur.
4.That the time the children spend with the father, pursuant to the preceding order:
a. be supervised by such professional supervising agency is nominated by the mother and consents to undertake the supervision (“the Contact Supervising Agency”);
b.be at the expense of the father;
c.occur in a contact centre;
d.be terminated in the event that the father engages in any of the following conduct:
i.denigrating the children, mother, or any member of her household or family;
ii.questioning the children about their mother’s personal life and the personal life of members of the mother’s household or family;
iii.requesting the children to ask the mother or any other person including the mother’s family, their teacher and priest about spending more time with him;
iv.requesting the children to ask the mother about communicating with him by telephone;
v.enquiring with the children where they attend school or live, with whom they live, or where they attend co-curricular and extra-curricular after school activities;
vi.discussing these proceedings or any other court proceedings between the parties, including any allegations made in any court proceedings, with the children.
vii.engages in any physical discipline and/or violence towards the children and/or supervisor;
viii.threatens the children and/or supervisor;
ix.makes comments that are, in the supervisor’s opinion, potentially emotionally and/or psychologically damaging for the children;
x.engages in any other conduct which the supervisor finds inappropriate and/or not in the children’s best interests.
5.Except as otherwise provided in these Orders, the father spend no time with the children or communicate with the children by any means.
6.That, for the purpose of facilitating the time the children spend with the father pursuant to these Orders, each party do all things necessary and sign all necessary documents to apply to use the services of the Contact Supervising Agency.
7.That the father be restrained from:
a. Providing the children with food during the time the children spend with the father pursuant to Order 3;
b. Giving the children anything during the supervised time including but not limited to toys, gifts and/or presents;
c.Sending the children gifts or presents;
d.Approaching, initiating or otherwise coming into direct contact with the children, except as provided for in these Orders, and approaching, initiating or otherwise coming into direct contact with mother except through her legal representative;
e.Coming within 500m of any place at which the mother may live or work;
f. Coming within 500 m of any place at which the children attend school or any co-curricular or extra curricular activity;
g. Assaulting, molesting, harassing, threatening, stalking, intimidating, or otherwise interfering with the mother or children, or any member of the mother’s household or family;
g. Publishing any matter on social media which would or could reasonably be inferred to relate to these proceedings, any allegations made in these proceedings and/or the mother or children, or any member of the mother’s household or family.
8.The preceding order is an order for the personal protection of the mother, and any member of her household or family, pursuant to section 68B of the Family Law Act, 1975, to which a power of arrest without warrant attaches, pursuant to section 68C of the Family Law Act 1975.
9.Prior to the supervised time commencing, the supervisor shall provide confirmation to the mother and father that they:
a) have read the reports of Dr [Q] dated June 2014 and
28 January 2016 and the report of Dr [W] dated 23 March 2016;b)have read the transcript of Dr [W] and Dr [Q’s] evidence given on 15 June 2016;
c) will immediately terminate the children’s time with the father in the event the father engages in any of the conduct in order 4.d.
10.The supervisor supervising the time shall provide a written report to the mother and the father following the conclusion of that time, at the father’s cost.
11.Order 3 of these Orders is immediately discharged in the event the mother receives a report from the supervisor that:
a)the father engaged in any behaviour set out in Order 4.d;
b) The supervisor terminated the father’s supervised time because of the father’s behaviour.
12.Order 3 of these Orders is discharged, in the case of each child, upon the child attaining eleven years of age or more and expressing a wish to their mother not to spend any further time with their father.
13.That pursuant to section 11 of the Australian Passports Act 205 [sic] (Cth), upon the mother’s application to apply for or renew Passports for the children namely [X] born … 2008, [Y] born … 2009, [Z] born … 2011, such Passports shall be issued to the mother notwithstanding that the father does not consent.
14.That the father keep the mother’s solicitor advised of his email and residential address and the organisation and location of any paid or voluntary work he undertakes.
15.The father is restrained from placing the name of the child or children on the Family Law Watch list without a Court Order and it is requested that the Australian Federal Police give effect to this Order by not placing the children’s names on the Family Law Watch list without an Order form the Court.
(Underlining as in original)
As part of an outline of closing submissions, the father proposed the following orders:[6]
[6] Exhibit 31.
1.That the mother have sole parental responsibility subject to her obligation to notify the father in writing of major long term decisions made in relation to the children in a timely fashion;
2.That the children live with the mother;
3.That the children spend time with the father:-
1. For six months for 2 hours per fortnight, strictly supervised by an Agency appointed by the ICL and who are to provide the mother with a detailed report, all at the expense of the father;
2. For the following six months for 3 hours per fortnight unsupervised but the same to occur within the [H] Mall;
3. After twelve months on one day per fortnight, a Saturday or Sunday, from 9am to 5pm, unsupervised;
4.That the Undertakings of the [father] to the Court continue.
5. That the [father] be able to send the children presents for the children’s birthdays and for Christmas.
Background facts
The father was born in 1976 and is currently aged 40. The mother was born in 1977 and is currently aged 38. The parties are both professionals.
In January 2005 the parties met whilst completing their professional internships.
In November 2005 the mother says the parties commenced a relationship.
In 2006 the parties were married.
In 2008 the parties’ first child, X, was born. He is currently aged eight.
In 2009 the parties’ second child, Y, was born. He is currently aged six.
In 2011 the parties’ third child, Z, was born. She is currently aged five.
In December 2012 the parties purchased the former matrimonial home at C Street, Suburb O.
On 24 July 2013 the mother commenced attending upon Dr S, a psychologist.
On 11 September 2013 the parties separated and the mother left the former matrimonial home with the children on a final basis. The father has not spent time with the children since that date.
On 11 September 2013 the mother made a statement to the police in relation to events said to have occurred between the parties on 10 September 2013. The police subsequently applied for and obtained an ex parte provisional Apprehended Domestic Violence Order (“ADVO”), listing the mother and children as protected persons. The father was also charged with common assault and stalking or intimidation with intent to cause fear of physical or mental harm.
On 19 September 2013 the ADVO proceedings were listed for mention at the Local Court. An interim ADVO was made in the same terms as the provisional ADVO and the father entered a not guilty plea in relation to the charges against him.
On this date the mother attended the former matrimonial home in the company of police officers to collect some of her and the children’s belongings.
On 3 October 2013 the mother commenced these proceedings in the Federal Circuit Court of Australia by way of an Initiating Application.
On 22 October 2013 the father commenced attending Dr J, a psychologist.
On 7 November 2013 the father filed his Response to Initiating Application, including an interim application to spend time with the children.
On 20 November 2013 the ADVO and criminal proceedings were listed for final hearing, with the mother cross-examined. The final hearing was not completed and the matter was adjourned part-heard.
On 17 December 2013 these proceedings were listed for interim hearing before Judge Scarlett.
On 19 December 2013 Judge Scarlett delivered judgment and made interim orders, inter alia, that:
a)The mother have sole parental responsibility for the children;
b)The children live with the mother;
c)The father have telephone communication with the children for one hour each Monday, Wednesday and Friday with the mother to facilitate such calls; and
d)The father be permitted to send cards and Christmas gifts to the mother’s solicitor for the children.
In early 2014 the father commenced a relationship with Ms D.
On 22 January 2014 the ADVO and criminal proceedings were listed for further hearing at the Local Court. The father was convicted of common assault and directed to enter into a good behaviour bond for twelve months. The father was also convicted of stalking or intimidation with intent to cause fear of physical or mental harm, but no penalty was imposed. A final ADVO was also made for the protection of the mother and children for a period of two years and included orders that the father was not to approach the protected persons by any means whatsoever except through his legal representative or as permitted by an order or direction under the Act.
On 29 January 2014 orders were made by consent which appointed Associate Professor Dr Q as the Single Expert in these proceedings.
On 31 January 2014 the father lodged an appeal against his criminal convictions.
On 9 April 2014 these proceedings were listed for further interim hearing before Judge Scarlett.
On 17 July 2014 these proceedings were listed for mention before Judge Scarlett in light of the release of the Single Expert Report by Dr Q. The parties were directed to file written submissions within twenty-one days. The mother also filed an Application in a Case seeking leave to re-open the interim proceedings to adduce further evidence. Leave was granted.
In August 2014 the father says he discovered Ms D was pregnant.
On 22 August 2014 the father’s appeal against the criminal convictions was heard and the convictions and ADVO were set aside in circumstances where the ADVO had been made on the basis of the convictions.
On 23 October 2014 the father filed an Application in a Case seeking leave to re-open the interim proceedings in order to adduce further evidence.
On 16 December 2014 the father’s application was withdrawn and dismissed.
On 19 January 2015 the father attended Y and Z’s day care centre with Ms D.
On 20 January 2015 the police applied for an ADVO for the protection of the mother and the children.
In January 2015 the father and Ms D’s child was born - R, who is currently aged one year.
On 21 January 2015 the mother filed a further Application in a Case.
On 3 February 2015 the parties entered into undertakings and consent orders while at N Local Court for the ADVO proceedings. The undertakings restrained the father from being within one hundred metres of the mother and children’s home or the mother’s work. The undertakings also restrained the father from attending the children’s school or pre-school or damaging the mother or children’s property.
On 4 February 2015 the undertakings were filed in the Federal Circuit Court and consent orders were proposed, withdrawing the mother’s Application in a Case filed 21 January 2015. The consent orders were subsequently made by Judge Scarlett on 4 March 2015.
On 8 April 2015 these proceedings were transferred by Judge Scarlett to the Family Court of Australia.
On 30 June 2015 orders were made by Judge Scarlett in relation to the father’s Application in a Case filed 14 February 2014. Reasons for Judgment were subsequently delivered on 7 August 2015. The orders provided, inter alia, that:
a)The mother have sole parental responsibility;
b)The children live with the mother;
c)The father have telephone communication for a period of no more than 15 minutes each Tuesday and Thursday night;
d)The father be permitted to send birthday cards and birthday gifts; and
e)The children have supervised contact with father starting with one hour each Saturday and building to two hours each Saturday.
On 27 July 2015 the mother filed a Notice of Appeal in relation to the orders of 30 June 2015.
On 21 August 2015 the mother’s appeal was heard by the Full Court and the appeal allowed. The Full Court’s Reasons for Judgment were subsequently delivered on 4 September 2015.[7]
[7] Janssen & Janssen (2015) FLC 93-665.
On 17 September 2015 I heard the father’s application in respect of interim parenting, which had been remitted by the Full Court.
On 3 November 2015 I delivered my Reasons for Judgment[8] and made orders which, inter alia, provided that:
a)The mother have sole parental responsibility for the children;
b)The children live with the mother;
c)The father have telephone communication with the children for one hour each Tuesday and Thursday night with the calls to conclude at their natural conclusion or the children indicating a wish to end the call; and
d)The father be permitted to send cards and gifts on special occasions to the mother’s solicitor for the children and to limit gifts to occasional and insubstantial.
[8] Janssen & Janssen [2015] FamCA 942.
On 7 December 2015 a Child Responsive Program Memorandum by Family Consultant Louise Salmon was provided to the parties.
On 24 December 2015 the property proceedings were resolved with final orders made by consent.
In January 2016 Ms D and R moved into the father’s home, along with Ms D’s two children from her previous relationships.
On 11 and 12 January 2016 the parties and children, along with a number of family members, met with Dr Q for the purposes of preparing an updated Single Expert report.
On 26 January 2016 the updated Single Expert report of Dr Q was released to the parties.
Evidence
The mother relied upon the following material:
a)The mother’s affidavit filed 15 January 2016;
b)
The affidavit of Ms M (the maternal grandmother) filed
15 January 2016;
c)The affidavits of Dr S (the mother’s treating psychologist) filed:
i)3 April 2014;
ii)19 May 2014;
iii)9 September 2015; and
iv)27 January 2016.
d)The affidavit of Ms L filed 21 January 2016. Ms L is a director at the child care centre attended by the children.
The father initially sought to rely upon the following material:
a)The father’s affidavit filed 15 January 2016;
b)The affidavit of Ms D (the father’s partner) filed 15 January 2016;
c)The affidavit of Ms V (the paternal grandmother) filed 14 January 2016;
d)The affidavit of Dr U (the father’s colleague) filed 14 January 2016;
e)The affidavit of Mr E (the father’s colleague) filed 15 January 2016; and
f)The affidavit of Dr J (the father’s treating psychologist) filed 15 January 2016;
By the conclusion of the final hearing, the father no longer sought to rely upon the affidavits of Dr J, Dr U or Mr E.
There were also two Single Expert Reports before the Court by Associate Professor Dr Q.[9] Dr Q prepared and provided to the Court an initial report dated 25 June 2014 and an updating report dated 26 January 2016.
[9] Exhibit 25.
As previously noted, on the first day of the final hearing, counsel for the mother sought to tender audio recordings made by the mother of exchanges between the parties that had occurred in the period from 1 April 2013 until 24 August 2013, along with transcripts of those audio recordings. After hearing submissions from both parties and the ICL, I admitted the audio recordings and transcripts into evidence. My reasons for doing so are set out in my ex tempore Reasons for Judgment delivered on 1 February 2016.[10]
[10] Janssen & Janssen [2016] FamCA 345.
Senior counsel for the father subsequently made an application under
s 69ZT(3) for the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) to apply to these proceedings. After hearing submissions, I determined that the provisions of the Evidence Act should apply to the evidence in relation to events that were said to have occurred on 10 September 2013 and threats the mother alleged the father made towards the children. My reasons for doing so were also incorporated into my ex tempore Reasons for Judgment.
Dr W’s report
On 3 February 2016 the parties jointly requested an adjournment of the final hearing to enable the father to attend upon Dr W, a psychiatrist. I acceded to the request and the hearing was adjourned part-heard until 16 May 2016. The parties also prepared consent orders which included the list of documents the parties agreed were to be provided to Dr W prior to the father’s attendance upon him. The consent orders read:
BY CONSENT IT IS ORDERED BY THE COURT:
1.That the proceedings be adjourned to enable the father to attend upon Dr [W] or other psychiatrist/psychologist as agreed between the parties for the purpose of dealing with the issues affecting him as identified in the reports of Associated Professor Dr [Q] and for these purposes, the independent children’s lawyer, on behalf of the parties, has leave to supply the following documents to Dr [W]/the psychologist/the psychiatrist agreed:
….
2.The parties will send to the independent children’s lawyer their court documents for provision to Dr [W] by Friday, 5 February 2016.
3.It is noted that the father has an appointment arranged with Dr [W] on Friday, 12 February 2016.
4.It is noted that Dr [W] has advised that he intends to see the father on 4 to 6 occasions over approximately 1 month to assess the father’s suitability to undertake therapy/treatment.
5. Dr [W] shall provide a report to the Family Court of Australia and the parties in relation to the father’s attendance upon him as provided in paragraph 4.
6. That the matter is listed for further mention on a date suitable to the court in approximately 7 weeks.
7. Notwithstanding that the applicant mother is in cross-examination, the parties agree that the mother is permitted to:
a) continue her counselling with Dr [S] (who is a witness in the case);
b) consult with, instruct and take advice from her solicitor and Counsel.
8. These orders operate as authority of the father for the mother to attend and/or communicate with Dr [W].
9.The father shall meet the cost of his attendance upon and any report prepared by Dr [W].
When the final hearing resumed on 16 May 2016, senior counsel for the father objected to the report of Dr W dated 23 March 2016 being admitted into evidence.
After hearing submissions from the parties and the ICL, I decided to admit the report of Dr W into evidence.[11]At the time I gave brief ex tempore Reasons but indicated to the parties that I would expand upon them in my final Reasons for Judgment.
[11] Exhibit 9.
Reasons for admitting into evidence the report of Dr W dated 23 March 2016
Senior counsel for the father submitted that I should not admit the report of Dr W into evidence on the basis that Dr W had failed to explain which part, or parts, of the material provided to him were relevant to a particular issue that he had identified in his report. Further, senior counsel for the father submitted that Dr W had failed to explain which skill, or skill set, he had applied from his specialised knowledge, wholly or substantially, for the purpose of expressing his opinion.
More specifically, citing Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [805], senior counsel for the father argued that:
·The preconditions to the admission of an expert’s report had not been satisfied because:
-it must be agreed or demonstrated there is a field of “specialised knowledge”;
-there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;
-the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge” ;
-so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert;
-and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way;
-it must be established that the facts on which the opinion is based form a proper foundation for it;
-and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached; that is, the expert’s evidence must explain how the field of “specialised knowledge” of which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed, so as to produce the opinion propounded.
·Dr W had expressed an opinion outside his area of specialised knowledge.
·Insofar as Dr W had applied his specialised knowledge, he had not identified what aspect of his specialised knowledge was “brought into play” to come to the conclusion that the father is not suitable to undergo therapy.
·Dr W did not state what he understood to be the position in respect to the proceedings and the reason for him being requested to provide a report concerning the father.
·Dr W did not provide a reasoned methodology as to how he arrived at his conclusions.
·Dr W had started from a proposition that because the father has been referred to him, the Court has already made conclusions about the need for supervision and limited contact and, through paragraph 5, put the onus on the father and blamed the father for refuting almost everything that Dr W put to the father which had come from the material provided.
·It is inappropriate to require the father to attempt to clarify these things through the process of cross-examination. Procedural fairness requires that the father have notice of these matters prior to Dr W being cross-examined.
·The report should not be admitted according to common law principles, s 79 of the Evidence Act and of the Family Law Rules 2004 (Cth) (“the Rules”). However, insofar as there is any inconsistency between the Rules and s 79 of the Evidence Act, the Evidence Act should prevail.
In discussing the operation of section 79 of the Evidence Act, the Full Court said in McGregor & McGregor (2012) FLC 93-507 at 86,475:
80. The following mandatory requirements must be established before evidence of the opinion may be admitted under this provision:
a) The person has specialised knowledge.
b) The specialised knowledge is based upon the person’s training, study or experience.
c) The opinion is “wholly or substantially” based on the person’s specialised knowledge.
81. Furthermore, an expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based and the opinion in question so that it is possible for the court to determine whether the opinion is “wholly or substantially based on specialised knowledge based on training, study or experience” per Gleeson CJ in HG v R (1999) 197 CLR 414, 427.
82. In addition, not only should the facts on which the opinion is based be identified, the reasoning process leading to the formation of the opinion must be exposed so as to demonstrate that the opinion is based on particular specialised knowledge (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”) at [85] per Heydon JA. The Full Court of the Federal Court has held that many of the matters referred to by Heydon JA in Makita “involve questions of degree, requiring the exercise of judgment” and in trials by judge alone they should commonly be regarded as going to matters of weight rather than admissibility (see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [16] and [87]; see also Carpenter & Lunn (2008) FLC 93-377; Noetel & Quealey (2005) FLC 93-230).
In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (“Dasreef”), the High Court stated in respect of s 79(1) at 604[37]:
The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.
Dr W is a specialist medical practitioner and, in the circumstances of this case, has established that he has specialised knowledge as contemplated by s 79 of the Evidence Act. He is effectively in the same position as the theoretical medical practitioner referred to in Dasreef.
Further, in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd, it was confirmed that it is unnecessary for the expert to precisely join all the dots in arriving at their conclusions. It is sufficient for admissibility:
…that the trial judge is satisfied on the balance of probabilities on the evidence and other material then before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge. [12]
[12] (2002) 234 FCR 549 at 554[16].
The principles considered in these cases are substantially reflected in r 15.63 of the Family Law Rules 2004 (Cth) (“the Rules”) which provides:
15.63 Contents of expert's report
An expert's report must:
(a) state the reasons for the expert witness's conclusions;
(b) include a statement about the methodology used in the production of the report; and
(c) include the following in support of the expert witness's conclusions:
(i) the expert witness's qualifications;
(ii) the literature or other material used in making the report;
(iii) the relevant facts, matters and assumptions on which the opinions in the report are based;
(iv) a statement about the facts in the report that are within the expert witness's knowledge;
(v) details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person's qualifications and experience;
(vi) if there is a range of opinion on the matters dealt with in the report--a summary of the range of opinion and the basis for the expert witness's opinion;
(vii) a summary of the conclusions reached;
(viii) if necessary, a disclosure that:
(A) a particular question or issue falls outside the expert witness's expertise;
(B) the report may be incomplete or inaccurate without some qualification and the details of any qualification; or
(C) the expert witness's opinion is not a concluded opinion because further research or data is required or because of any other reason.
The consent orders made on 3 February 2016 relevantly provided that
Dr W was appointed “for the purpose of dealing with the issues affecting [the father] as identified in the reports of Associate Professor Dr [Q]”. The consent orders also gave leave to the ICL to provide the relevant documents to Dr W on behalf of the parties. Those documents relied upon by Dr W are set out on page 2 of his report.
The consent orders also noted that Dr W was to see the father “on four to six occasions over approximately one month, to assess the father’s suitability to undertake therapy/treatment” after which time Dr W would provide his report.
It is, with respect, difficult to fathom the basis upon which Dr W’s expertise can be challenged by senior counsel for the father in circumstances where Dr W is an expert psychiatrist who was specifically chosen for the purposes identified above by the parties themselves, including the father. In Metwally v University of Wollongong (1985) 60 ALR 68 at 71, the High Court stated that “it is elementary that a party is bound by the conduct of his case”.
Further, the consent orders made clear what documents the parties agreed to provide to Dr W and that Dr W would also be informed by the father’s attendances with him.
I respectfully agree with the submission by the ICL that Dr W’s reliance on the material that the parties agreed to provide to him is clear from his report. That information has been supplemented by information Dr W has obtained directly from the father during his appointments. This was also clearly contemplated for by the parties.
It is also clear that, at least from the father’s third session onwards, Dr W was in a position to put to the father, for the father’s response, the factual matters set out in the agreed material provided to him. This was also appropriate and is noted in Dr W’s report.
Insofar as the father is of the belief that Dr W’s opinion is not soundly based on the information that he has been provided with and obtained from the parties, I was of the view that that could be subsequently tested in cross-examination.
In exercising my discretion to admit the report, I note and agree with the submissions from the ICL that:
The question is whether [Dr [W]] has set out sufficiently in his report his reasons for assessing the suitability or otherwise of [the father]. In my submission, he has done that, and he can be cross-examined about that if people take a different position. The material that he has relied upon is set out in great detail; listed the 18 sets of material that he has had, and a phone call that he had with [the mother], making sure that he had listened to the audio. So he has set out why – he has seen [the father] on five occasions. He has got the capacity and the expertise to make this assessment and, in my submission, his opinion is admissible.
In any event, insofar as there may be a technical deficiency in the report of
Dr W, I note that r 15.64(c) specifically provides that if an expert witness does not comply with the Rules (including r 15.63), the Court may:(c) allow the report to be relied on but take the non-compliance into account when considering the weight to be given to the expert witness's evidence.
Treating a technical deficiency in an expert report as a matter going to weight is entirely consistent with the view of the Full Court of the Federal Court as expressed in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549 at [16] and [87].
Accordingly in admitting the report into evidence, I indicated that my reasons for doing so included exercising my discretion to admit the report pursuant to r 15.64. In that context I indicated that, in determining what weight I would give the report of Dr W, I would consider any non-compliance with the Rules and common law principles that may be established on the face of the report or during the course of cross examination.
For completeness I should indicate that at the conclusion of evidence, including the cross examination of Dr W and the submissions of the parties, I am satisfied that the opinions expressed by Dr W in his report dated 23 March 2016 and in his oral evidence are valid and soundly based.
Contentions
As previously noted, the orders sought by the mother are essentially for the children to spend no face-to-face time with the father beyond that necessary to maintain recognition, nor for the children to continue communicating with the father by telephone.
Subject to spending supervised time with the father in order to maintain recognition, the ICL proposed that the Court not permit the children to have face-to-face time or telephone communication with the father.
The father, on the other hand, proposed that the Court should make orders for the children to spend unsupervised face-to-face time with him, although the father acknowledged that at least for a period that time should be supervised.
Consideration
Concepts and principles
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These 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.
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the Convention on the Rights of the Child (“the Convention”).[13] Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:
protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
[13] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)).
Section 61DA(1) provides that 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”. Relevantly for these proceedings, s 61DA(2) provides that the presumption does not apply if:
(2) …there are reasonable grounds to believe that a parent of the child (or a person who lives with the 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.
Abuse is defined in s 4 of the Act in the following terms:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Family violence is defined in s 4AB(1) of the Act as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence and relevantly for these proceedings includes:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property;…
Section 4AB(3) provides that “a child is exposed to family violence if the child see or hears family violence or otherwise experiences the effects of family violence”. Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The presumption of equal shared parental responsibility
None of the parties proposed that the parties have equal shared parental responsibility for the children and it appeared to be accepted that the mother should have sole parental responsibility for the children. As submitted by the ICL, it would in any event be inappropriate for the presumption of equal shared parental responsibility to be applied by the Court in circumstances where the father has engaged in conduct that constitutes family violence as defined in s 4AB of the Act. As noted previously, the father conceded that he had engaged in conduct which would constitute emotional and verbal abuse, but denied that he had engaged in acts of physical violence against the mother or the children. As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA does not apply and the Court is not obliged to consider equal time or substantial and significant time. Accordingly, the Court is “at large” to consider what arrangements will promote the best interests of the children having regard to s 60CC and the considerations contained therein. Those arrangements may include equal time or substantial and significant time (Goode & Goode (2006) FLC 93-286 at 80,899). As will become clear, as a result of the nature of the family violence that has occurred in this matter, I consider that it would be inappropriate to make an order for equal or substantial and significant time.
Extracts of the transcripts of the audio recordings of the interactions between the parties, and at times the children, are set out at the end of these Reasons as Schedule “A”. These extracts clearly establish that the father’s conduct towards the mother included:
·repeated sexually controlling and coercive behaviour such as pressuring the mother to attend “Sexpo”, watch pornography, participate in a “threesome” and do “homework” by looking at pornographic websites;
·repeated use of appalling and derogatory language, including in relation to the mother’s genitals and her contributions to their sexual relationship;
·repeatedly requiring the mother to acknowledge that she was providing the father with “zero” in terms of their sexual relationship; and
·preventing the mother from expressing her point of view or diminishing the mother’s point of view.
The extracts from the transcripts of the audio recordings at Schedule “A” also establish that the father made derogatory comments to the children including asking Z what a “cunt” was and calling X a “moron”. Of great concern is that the audio recordings clearly indicate that the children were present at times when the father would offensively berate the mother and make derogatory comments to her, often in a loud and aggressive tone. The extracts also indicate that the father would often recognise the impact of his conduct on the children and blame the mother for such a consequence. Those parts of the extracts have been emphasised in bold in Schedule “A”.
There is, in my opinion, no doubt that the children have been exposed to family violence as contemplated by s 4AB of the Act.
Paramount consideration in making parenting orders
Section 60CA provides that in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA.
Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all s 60CC factors, the parties acknowledged that the central issue in these proceedings is balancing the primary considerations set out in
s 60CC(2) against one another. Those 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.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
Identifying unacceptable risk of harm
As previously noted, the primary issue for determination is whether the prospect of the children spending face-to-face time with the father presents an unacceptable risk to the children of physical and/or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In his often cited paper entitled ‘Unacceptable risk – A return to basics’[14] the Hon. John Fogarty A.M. summarised the relevant principles to apply in determining risk as follows:
[14] (2006) 20 Australian Journal of Family Law 249.
1. The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2. The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3. Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4. The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5. The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6. The onus of proof in reaching that conclusion is the ordinary civil standard.
7. But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In Johnson & Page (2007) FLC93-344 at 81,891 the Full Court said:
We generally agree with Mr Fogarty’s seven point summary... We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
It is therefore appropriate to consider the requisite standard of proof required to establish whether there is unacceptable risk to the children and what issues that standard should be applied to.
Standard of proof
Section 69ZT(1) of the Act provides that unless otherwise determined by the Court, certain provisions of the Evidence Act do not apply in child related proceedings.
On 1 February 2016 I made orders that s 69ZT(3) would apply to my consideration as to:
a)Whether the mother was assaulted by the father on 10 September 2013; and
b)Whether the father had made threats towards the children as alleged by the mother.
It is important to note that the orders I made pursuant to s 69ZT(3) apply to Chapter 2 of the Evidence Act, which relates to the adducing of evidence.
Section 140 of the Evidence Act deals with the standard of proof and is contained in Part 4.1 of Chapter 4. It is not affected by my order pursuant to s 69ZT(3) of the Act and therefore s 140 applies to the totality of the proceedings. Section 140 relevantly provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In M v M (1988) 166 CLR 69, the High Court said at 76:
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, at p. 362… There Dixon J said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.…”
The Full Court in Johnson & Page (supra) at 81,891 was of the view that it is now more appropriate to refer to s 140 of the Evidence Act, and in particular s 140(2)(c), in considering allegations of abuse.
In W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at 79,910, the Full Court stated that a positive finding of sexual abuse “should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred”.
While W & W (supra) related to allegations of sexual abuse, in Neat Holdings Pty v Karajan Holdings Pty Ltd (1992) 110 ALR 449 the High Court discussed how clear and cogent evidence is nonetheless required to prove a serious allegation against a party. The High Court said in that respect:[15]
The ordinary standard of proof required of a party who bares the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
(Footnotes omitted)
[15] at 449 – 450.
Credit of witnesses
Counsel for the mother submitted that the Court should accept the mother’s evidence wherever it conflicted with the father’s due to the father’s evidence lacking credibility. This submission was based on a detailed analysis of material filed by the father in these proceedings (including during various interim proceedings) as well as the father’s oral evidence.
In Adamson & Adamson (2014) FLC 93-622 at 79,703 the Full Court, agreeing with the decision of Kent J in Carlson & Fluvium [2012] FamCA 32, said:
It follows from [the observations of Kent J] that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to [by Kent J].
In these proceedings it is not necessary to make any adverse findings in respect to the father’s credit, as a witness, in order to determine the issues in dispute between the parties. Instead, in resolving relevant disputed questions of fact, I have focused on the first three factors suggested in the often cited extra-judicial writing of Lord Bingham:[16]
(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness’s evidence; [and]
(3)[the]consistency with what the witness has said or deposed on other occasions.
[16] Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74]. More recently referred to in McGlen-McLeod v Galloway [2012] NSWCA 368 at [87].
The two most serious allegations made by the mother against the father are that:
·he physically assaulted the mother on 10 September 2013; and
·he has threatened to kill the children.
In making findings in respect to those two allegations, I have evaluated the relevant evidence to the requisite standard set out in s 140(2)(c) of the Evidence Act.
Did the father assault the mother on 10 September 2013?
The mother’s evidence of the alleged assault on 10 September 2013 are set out in paragraphs 54 to 65 of the mother’s trial affidavit as follows:
54.The children and I left the former matrimonial home at around 8pm or 9pm on Wednesday, 11 September 2013.
55.The night before, [the father] and I had an argument at our home.
56.During the argument, [the father] repeatedly said to me:
“You are useless” and “you are a useless wife”.
[The father] had said this to me on a number of occasions in the past.
57.At one point I said to [the father]:
“How would you feel if [Z’s] partner treats her like you treat me?”
[The father] replied: “That’s for her and her partner to work out”.
[The father] had been telling me that I was a “useless wife” for a long time. I had moments where I knew that it was not true but at other times, I believed him. On this occasion, I replied with: “Ok I’m useless”.
[The father] then said to me: “So what are you going to do about it?”
I said: “I am going to cut my wrists”.
58.I went to walk away from [the father]. I did not intend to follow through on what I had said, but I wanted to escape [the father] and his denigration of me including that I was “useless”.
[The father] said: “Where are you going? We’re not finished”.
I said: “But I am useless”.
59.At this point I simply broke down.
60.I sat on the floor and repeatedly said: “I am useless”. I was holding a small and lightweight laptop computer in my hand and began hitting myself on the forehead with the laptop computer.
61.[The father] was furious. He came over to me, grabbed me by the hair and started to lift me off the ground by my hair. As this hurt, I assisted in standing up at the same time that [the father] was pulling me up to spare myself the pain.
62.[The father] said:
“Don’t embarrass me and don’t wake my mum. Go to the bedroom now”.
At the time, [the father’s] mother was staying in the house with us as [the father] had planned a dinner with a friend, … [The father’s] mother was in the spare bedroom.
63.I did as I was told and walked to the bedroom which was on another floor above. [The father] followed me. As I entered the room, [the father] slapped me across the left side of my face. I immediately felt the pain on contact. [The father] said to me:
“What have I told you never to do! Don’t embarrass me! I don’t want to explain to mum tomorrow why we were arguing… Don’t ever, ever embarrass me again. If you embarrass me again your daughter is dead”.
I went to lie down on the bed. I was crying. [The father] continued to berate me. He said to me: “Now I am going to feel guilty. Good job”;
“You’re a bad wife”; and
“Why did you make me go and do that”.
64.I was responding with one word answers to [the father], mainly saying “yes” in the hope that [the father] would just stop and leave me alone. After a while, my responses became fewer as I was just so tired of the continual abuse. [The father] then said to me:
“Great now you’re going to sleep. How am I going to sleep now? I have such a long day tomorrow and I’ll get no sleep”.
65.[The father] fell asleep shortly thereafter as I could hear him snoring. I remained awake for a long time.
The father’s evidence of the events of 10 September 2013 are set out at paragraphs 103 to 119 of the father’s trial affidavit as follows:
103.On 10 September 2013 being a Tuesday, I collected the younger children from child care. [The mother] picked up [X] from school. When we came home I gave the children a snack. We all went to swimming lessons together ...
104.After the swimming lessons we came home together. My mother, who was staying with us at the time, cooked dinner for us. Each one of us fed a child each. My mother fed one, [the mother] fed one and I fed one. We had normal interaction as a family that evening.
105.[The mother] and I watched television in one area of the home. [The mother] had given me five DVD’s as a present for Father’s Day on that evening. They were movies of Australian drama.
106.We then started having discussions about our sexual relationship. The children were in bed and were not present when we had these discussions.
107.We then moved to another lounge room to watch a larger television. We sat together on the lounge, our laptops were on our laps as we talked and watched television.
108.We continued the discussion of our sexual relationship. I was upset that these discussions had been continuing for in excess of two years. I decided earlier that [the mother] could be the one to initiate and make any decisions on how we engaged in our personal sexual relations in the future.
109.I was mindful that [the mother], following [Z’s] birth, was breastfeeding and was quite tired following her work and also caring for the children.
110.It was a discussion that had been raised by both of us for a number of months. I recall saying to her words to the effect “you’re a useless wife” I regret saying this comment and realise it was upsetting to [the mother]. It was something that I said whilst I was sitting watching television. My laptop was on my lap.
111.At that stage [the mother] was sitting next to me on the lounge, initially with her laptop on her lap. She then said to me words to the effect “I’m going to bed”. I replied words to the effect “I’ll be up soon. Don’t wake up the kids”.
112.I did not see [the mother] strike her head with her computer. I do not recall that she had commented on any self-harm intentions towards herself.
113.I deny as alleged by [the mother] that I grabbed [the mother]’s hair. I deny as alleged by [the mother] that I slapped [the mother] on her face.
114.I was not paying attention closely to the conversation that [the mother] was saying as I was emailing messages on my computer and also watching ABC television.
115.When [the mother] walked upstairs to bed I followed behind her to go to bed.
116.When [the mother] went into the bedroom she then became upset. I do not recall exactly what she said. I observed that she was upset and crying at the time. I was worried about her and that she may wake the children.
117.I moved towards [the mother] and held her gently on her arms and spoke to her softly so as not to wake the children and I said words to the effect “Calm down. Talk softly. Don’t wake up [Z]”.
118.As a result [the mother] stopped being upset. She calmed down. She went into our ensuite bathroom to brush her teeth and change into her pyjamas.
119.I was already in bed. [The mother] got into bed and fell asleep. I recall that evening [Z] woke three times during the night. I got up to [Z] on each occasion that she was upset and patted her on her back and settled her back to sleep in her bed.
At paragraph 110 the father acknowledges saying to the mother “You’re a useless wife”. The context in which the father acknowledged insulting the mother is expressed as something that he said “whilst [he] was sitting watching television”, as opposed to standing and pulling the mother by her hair.
At paragraph 111 the father states that he was informed by the mother that she was “going to bed” and in response, he said words to the effect: “I’ll be up soon. Don’t wake up the kids.”
No explanation is provided as to why the father asked the mother not to wake up the children if the mother was simply retiring to bed as suggested in paragraph 111.
At paragraph 116 the father asserts that “when [the mother] went into the bedroom she then became upset” (emphasis added). The father’s oral evidence contradicted the version of events recounted in his trial affidavit. During cross-examination by counsel for the mother, the father provided the following answers:[17]
[17] Transcript 20 May 2016 at page 43.
Q: She didn't say that she was tired and wanted to go to bed, did she?
A: She said she wanted to go to bed. She was tired.
Q: She didn't say anything of the sort, [Mr Janssen], did she?
A: She did.
Q: She was deeply upset?
A: Yes.
Q: Almost hysterical?
A: She was upset, yes.
Q: Almost hysterical?
A: No.
Q: Are you sure about that?
A: I didn't see her being hysterical. She was upset, said she was tired and wanted to go to bed.
Q: And - - -?
A: And she left and walked upstairs, and I followed soon after.
Contrary to the father’s assertion in paragraph 116 that the mother “then became upset” when she went into the bedroom, the father’s oral evidence was that the mother was “deeply upset” before she went upstairs.
Under cross-examination, the father was unable to state why it may have been the case that the mother became hysterical because he was not present when that initially occurred. His evidence to that effect was as follows:
Q: So - so your evidence is that you didn't hear anything in the bedroom that you think may have caused her to become hysterical?---
A: You mean when I was downstairs did I hear anything in the bedroom?
Q: No. When you were in the bedroom?---
A: Yes. No, I - I was still downstairs. She walked up first. I was typing a bit more, closed my computer and I went up - up - - -
The father’s oral evidence of “typing a bit more” and then going upstairs is directly contrary to paragraph 115 of the father’s affidavit where he states:
When [the mother] walked upstairs to bed I followed behind her to go to bed.
The father’s contradictory evidence is consistent with the father searching for a reason as to why he denied knowledge of what made the mother hysterical when the proposition was put to him that she became hysterical because he had hit her.
The father’s account of his interaction with the mother in paragraph
117 where he states that “held her gently on her arms and spoke to her softly so as not to wake up the children” is also inconsistent with the direct evidence contained in the transcripts, and audio recordings, of the interactions between the parties where the father’s tone and volume is anything but “soft” and on occasion, the father has shown little concern for the children during the course of an argument with the mother, including whether the children would be woken up.
In addition to finding that the mother’s account of events is more plausible and is consistent with the tone of interactions between the parties, as revealed by the extracts from the transcripts of the audio recordings in Schedule “A” and the recordings themselves in Exhibit 3, the mother’s allegations are supported by objective evidence from her medical practitioner, as contained in Exhibit B to the mother’s affidavit, as to bruising to her face following the events of 10 September 2013.
In that respect, I note that senior counsel for the father cross examined the mother as to how she could account for bruising on her face as well as on her neck. The mother stated that she did not know how the bruising on her neck occurred. The mother’s response to the cross examination was direct and forthright. She did not seek to exaggerate her injury and she did not attempt to suggest that the father was also responsible for the bruising on her neck.
For all of these reasons, I find on the balance of probabilities that the father physically assaulted the mother on 10 September 2013.
Has the father threatened to kill the children?
The mother set out her concerns in relation to the children at paragraphs 112 to 177 of her affidavit. Those concerns include instances where the mother asserts the father has made threats to kill the children. The mother also gave oral evidence that she heard the father make statements to the children to the effect of “do you want to die tonight?” and “I am going stab you with a knife”.[18]
[18] Transcript 2 February 2016 at pages 11 and 12.
Further, the mother gave oral evidence that on an occasion where the father had objected to what former Prime Minister Gillard was saying on television, he said “someone should kill your kids” and “I wish your family would die”.[19]
[19] Ibid at page 12.
However, during cross examination, the mother acknowledged that in saying the words “do you want to die tonight?”, she was not suggesting that she believed that the father was going to kill the children on that occasion, but rather that the father’s comments to the children were inappropriate.[20]
[20] Ibid at page 33.
The mother acknowledged that insofar as she asserted that the father said to the children “I am going to stab you with a knife”, it occurred at the dinner table in circumstances where the children were not eating their dinner. The mother conceded that she did not believe that the father actually intended to stab the children with a knife but rather, once again, she considered the father’s comment to the children were inappropriate.[21]
[21] Ibid.
Further insofar as the mother asserted that the father made comments in response to viewing former Prime Minister Gillard and former Attorney General Nicola Roxon on television, the mother conceded that she did not suggest that she believed that the father intended to kill their families. The mother stated, however, that “it makes me believe that, in his head, a good punishment for someone is to kill their family”.[22]
[22] Transcript 2 February 2016 at page 36.
Accordingly, taking the mother’s evidence at its highest, I do not find on the balance of probabilities that the father threatened to kill the children at any time in the period prior to 10 September 2013.
The more complex allegation is whether the father threatened to kill the child Z on the night of 10 September 2013.
The mother’s evidence in respect to that threat to Z is set out in paragraph 63 of her trial affidavit where she states that following the father’s assault of her, the father said:
What have I told you never to do! Don’t embarrass me! I don’t want to explain to mum tomorrow why we were arguing…Don’t ever, ever embarrass me again. If you embarrass me again your daughter is dead.
The father denied using those words and specifically, the father denied making a threat to harm the child.[23]
[23] Transcript 29 May 2016 at pages 36 and 37.
I have accepted that the mother was a witness of truth and in circumstances where I have accepted the mother’s account of events that she was physically assaulted by the father on 10 September 2013, I find that it is more likely that her version of events in respect to the threat made by the father is also accurate. The mother’s evidence is also consistent with several instances contained in the audio recordings where the father warns the mother that the children would be adversely impacted by his temper if the mother failed to comply with his demands. I have emphasised in bold the relevant passages in Schedule “A”. One such example is during an audio recording dated 1 April 2013 where the father says to the mother: “Okay then I don’t have to do whatever you want. Why can’t I hit the kids when I want?”
Accordingly, to the standard required by s 140(2)(c) of the Evidence Act, I am satisfied that the father physically assaulted the mother on 10 September 2013 and following that assault, said to the mother: “If you embarrass me again your daughter is dead.”
Does the prospect of the children spending face-to-face time with the father presents an unacceptable risk of physical harm to the children?
In these proceedings the Court is faced with the task of balancing the competing primary considerations set out in s 60CC(2) of the Act. As noted, those considerations are, on the one hand, the importance of children having a meaningful relationship with both of the child’s parents and, on the other, being protected from physical or psychological harm or being subject to, or exposed to abuse, neglect or family violence.
During this exchange one of the boys, who the mother identifies as Y at paragraph 169 of her trial affidavit, says to his mother “Can we go now?” then “Mummy I like you. I love you”.
Later, Y says to the mother: “Let’s just go now”.
The father subsequently says: “When I kill myself it will be not just one reason but many reasons. A whole tapestry of reasons you know.”
The mother asserts at paragraph 171 of her trial affidavit that Y was present when the father made this threat to kill himself.
23 August 2013 – 2nd recording (9.33pm)
During the course of this recording the father says to the mother:
·“Geez it’s like talking to a cunt you know”
·“It’s like talking to a retarded cunt monkey fuck shit”
·“You see this is why you are an idiot cunt, you know?”
·“So I don’t get sex, I don’t get niceness, I don’t get a clean house, I don’t get food. What the fuck do I get? I don’t get respect. So I’ve got no friends, I’ve got no wife, I’ve got kids who don’t love me. All I look forward to drinking and wanking. Is that a life I should have?”
·“After all the hard work for all you cunts. This is the life I can have”
Later in the recording, the father criticises the mother for not having dinner on time:
F: If you don’t do your part for me any one or zero of the big things and almost none of the small things you are me what? What number are you giving me?
M: Zero.
F: Yes! [clapping] Good.
M: Don’t shout.
F: The cunt is following!
M: Please don’t wake them up.
F: Shut up cunt! When you give me zero every little thing like going to a stupid party or, you know, anything like dinner not being there at 7 o’clock, it becomes a big thing. Because if I don’t get the big thing, I don’t get the small thing, I don’t get anything, then I’m going to get irritated. Now you look at guys who get great sex from their wives, do you think they get irritated by all these small things?
M: No.
F: No. Whose wives would listen to them and sit with them, and love them and kiss them when they come home from work? Hug them, organise threesomes for them, have sex and play with them, dress sexily for them, dye their hair red for them like they like? Go to Sexpo with them. These guys are not unhappy guys and when things like going to a party when they’re sick, they’re not bothered by it because they’re getting something or a lot of things. I’m not getting a lot. I’m not getting some, I’m not even getting a little bit of something so if you want to bring up that story you better have some real balls to do so. Do you have real balls?
M: No I don’t.
F: Yeah. What are you going to say about that.
After the mother expresses her opinion to the father that the portrayal of sex in porn is unrealistic, he responds:
F: Don’t tell me about this is realist or not, I don’t want your opinion. Your PhD thesis on what porn or real life is – I don’t give a shit about that. I just want it done! If you don’t want to do it that’s fine but you better make sure that everything else is perfect.
At paragraph 245 of her trial affidavit, the mother says she told the father that she “must have a lower libido than [him]”. The father responds:
F: I don’t want you to tell me about your stupid fucking libido. That kills the mood and makes it harder for you. I don’t want to hear you say you’re not interested in sex then what the fuck am I married to? What are you? Asexual? I don’t want to hear you don’t like porn. You look at porn! You enjoy it with me.
Later the father says to the mother:
Once again you’ve fucked me over. I’ve lost track of the number of times. Is the problem you or me, you tell me.
Later:
F: So I need to be rewarded. You’ve got to give me what I want. I don’t want you to give me excuses. I really don’t want excuses. Because if I tell you I want something like this you do it. If I want to shit you’re going to sit down and eat that shit whilst I wank on your face. You say yes. I just want it done. I just want it done. Just do it and then we’re all happy. I’m happy, you’ll be happy cause you won’t see me like this, the kids will be happy cause I’m not swearing at them, they won’t be using the c word all the time. But right now what am I getting?
M: Zero.
F: Zero. So you can’t say you’ve changed, you’ve done this, you’ve done that, I’m getting zero…
….
F: … If I say we’re at your mum’s house and we’re going to have sex now what do you say?
M: Okay.
F: ‘Yes Sir’ you say. That’s what you do. If we’re on a plane and I want to have sex you just do it, whatever I want to do, you just do it. If I said we’re having a threesome. Yes, we’re going to do it. I just want to hear yes, yes, yes, yes. I don’t want to hear excuses and if you do that, that will be really great sex. Do you understand?
M: Yep.
F: All you have to do is just say yes. Yes sir, that’s it. I don’t want to hear anything else from you cunt and give me that fuck-look-face. You do it for me because you’re my wife. If you don’t want to do it that’s fine. You’re going to get a grumpy me, and I’ll go find someone else and do it. You want me to find someone else?
M: No.
…
F: If I organise something a threesome are you going to do it?
M: Yes.
F: Yes. But why do you have to give me that look when you say yes? See. Already you’re not listening and doing what I ask for. Already you’re failing. Didn’t I say not to give me attitude when you answer?
M: I’m trying not to.
F: But you just did. I don’t want you to even try, just do it. Do you know what just do it means?
M: Yes.
F: You can’t even just do it. That’s why you’ve given up on sex with us you’re not making an effort. Do you realise that? You are hopeless at sex. Do you realise that?
M: Yes I realise that.
…
F: … So don’t get mad if I flirt with other women, or if I want to flirt with [workplace employees] or whatever because you’re not interested in me, someone else is interested in me then I’ll go with someone else and have, you know.
…
F: You know, you’re not good at sucking dick cause you don’t want to learn now to do it.
…
F: …So if you give me good sex, if you keep pushing and making more exciting each time, more fun, trying new things, not turning me off, cause you do a really good sex thing then you turn me off with stupid sex and stupid things. Then you’ve got to work harder to get back to that level. So if you do those things for me or at least some of those things, you will see a happier me, we won’t be having this argument every other week for a year. Cause you’ve only got a few basic things to do, you can’t even get my dinner ready for me now.
…
F: So if you give me something big I’m gonna forgive the small things. If I don’t get the big stuff or the small stuff or any stuff at all of course I’m going to be grumpy. I’m not getting alcohol tonight, I’m not getting cigarettes tonight, I’m not getting sex tonight. I’m not getting loving from you tonight, I’m getting sucky DVD’s tonight and then I don’t get the dinner that I wanted. Friday night and I’m getting fucked every way.
…
F: Same thing. If you don’t study and put in the effort you’re never going to be good at it. If you don’t go to Sexpo, look at porn, if you don’t want to be in a threesome where you can see how it works out, you’re never going to learn and you’re always going to be sucky at sex. It’s gotta come from somewhere, you can’t read a book and you can’t assume knowledge of these things. You either have to watch and participate and do stuff but you’re not doing anything so it sounds like you’re not making any effort for me.
…
F: Do you know what zero means? You’re not doing shit for me you’re useless and hopeless as a wife.
At times during this recording the father attempts to limit the mother’s responses:
·“Am I asking for your opinion or am I asking just to give me the result? Remember I don’t like excuses”
·“I don’t want to hear excuses I just want it done. Don‘t you know what I mean?”
·“I hear talking. I hear talking. Talking is not your friend.”
·“Yes or no? I’m not asking. You’re talking. I said yes or no. I’ll give you a clue, when I ask you a yes or no question, you answer yes or no. Do you understand?”
24 August 2013
The father to the mother:
F: I don’t care about the kids, I don’t care about your friends, I don’t care about your family, I don’t care about anybody. I’m getting zero from you. I’m getting zero from you. I’ve got no friends, I’m turning to alcohol for comfort…
M: Yes.
F: Now if you’re giving me really fucking good cunt sex I’m not going to bother you, at least you’re doing something for me. I’m getting terrible sex. Some of the worst sex, fuck this is shit sex. You’re not even being loving and cuddling to me and you know, so I’m not even getting emotional validation. You’re not sitting next to me. So you can’t use the kids as an excuse when you give me nothing. I’m getting Zero. Do you understand English?
M: Yes.
F: So I don’t care about kids, cos I’m getting zero. I don’t care about anything else because I’m getting zero.
The father subsequently says:
F: You’re dumber than a dog. Dogs learn tricks, you don’t. Have you learnt?
Later the father says to the child Z: “[Z] go get the TV control for daddy. Go.” When the child returns with what she understood to be a remote, the father says to her: “Not this control you dumbass. The one I threw on the kitchen floor. Kitchen floor, go look on the kitchen floor.”
When the child X is showing something to the mother in the kitchen:
F to the M: “Can you go get ready for us to go?”
M: “I’ve got to have breakfast”
F: “After you have breakfast I mean, you’re not having breakfast when you’re sitting here with this moron looking at some stupid shit”
M: “He [[X]] wants to show me something. I was going to have breakfast but he …”
F to [the child]: “[X]. Quickly show it.”
[The child]: “But there’s two things”
F: “Good, cos you’re not getting the computer tonight, take your time dumbass”
Later the father says to the mother:
If you put the children first you would try and be good to me so it won’t psychologically damage them to see us argue. So you lied again, you don’t put the kids first, you put yourself first. You’re like my Dad you keep saying oh you put everyone else first but you put yourself first, it’s about what you need. You don’t want to have sex, you make the situation yucky. You know what, you don’t really love the kids. You just want to make it convenient for yourself, they’re a good excuse, you don’t give a fuck about them.
Towards the end of the recording, the father says to the mother:
I want to start being nice from tomorrow. I’m still going to give you another day of hell cause I don’t think you’ve learnt that.
SCHEDULE “B”
extracts from transcripts of the father’s telephone conversations with the children (exhibit 6)
… February 2014
The recording commences:
F: What are you going to do for Christmas?
[Y]: I don’t know
F: I want to see you for Christmas
[Y]: Mummy, can daddy come for Christmas?
F: [Y]?
[Y]: Mummy’s deciding if you can come for Christmas
F: What are we going to do for Christmas?
…
[X]: How many days until my birthday
F: Can I come for your birthday?
[X]: How many days till its my birthday
[Y]: about 200
F: Can daddy come for your birthday?
F: [Y]? [Y]? Where’s [Y]?
[Y]: I’m not talking anymore
F: Can I come for your birthday?
[Y]: No! Daddy can’t come for my birthday
F: You can ask me if you want to, you don’t have to listen to other people
…
F: You can ask me to come for your birthday, you don’t have to listen to other people. It’s your birthday okay?
[Y]: I want you to come
F: I love you. I love you and the whole world.
[Y]: I’m letting daddy come to my birthday. I’m gonna let daddy come to my birthday.
Subsequently:
F: You can’t have a birthday party without mummy and daddy.
[Y]: I need a birthday party with you
F: Love you[Y]
Later:
F: Daddy wants to come and see you and make sure you’re okay. [X]? [Y]?
…
F: Hello? You have to let daddy know if anybody’s scolding you. Everybody’s worried about you.
[Y]: No they’re not! Everybody’s not worried about me.
F: We worry, we have to make sure you’re okay. That’s why daddy wants to come and see you and make sure you’re okay.
When saying goodbye:
[Y]: Bye, I’ll see you in the morning
F: See you in the morning. Do you want me to come over?
[Y]: Yeah, can you come over in the morning
F: If mummy says it’s okay I’ll be there in the morning.
[Y]: Can he?
The father’s last exchange with the children:
F: You’re father will do everything to see you, and I will try my best to be there on your birthday, okay? Miss you sweetly, no-one can replace your father, okay?
[Y]: Okay
F: I love you
14 November 2014
At the commencement of the recording:
F: Is it a hot day? Daddy was in [Suburb N], daddy went swimming today
[Y]: Daddy, I don’t want to talk anymore. May you please go?
…
[Y]: I want you to talk to somebody else. I want you to talk to [Z]. [Z], your turn
In response to Y’s assertions that he does not want to speak to the father:
F: Are you getting tired? Was it a long day at childcare today?
[Y]: I didn’t go to childcare
Subsequently in conversation with X and Y about a game:
[X]: Do you know how to play mousetrap
…
F: Are you going to show me how to play?
[X]: When you come over
F: Okay. Do you want me to come tomorrow?
[Y]: No, next year
F: Next year?
[Y]: Yeah
F: Why next year? Why can’t I come tomorrow? I’m not far from you, I can come tomorrow
[Y]: Cause you’re only at [Suburb N]?
F: Yeah
…
[Y]: Mummy, can daddy come tomorrow?
The mother then intervenes:
M: No. Daddy can’t come tomorrow and daddy knows not to ask if he can come tomorrow. He knows. He’s asked before, the answer is no. He knows not to ask. There’s an agreement in place that he knows about, and he should not be asking anymore.
F: [Y], remember it’s your mother. There’s no agreement. It’s your mother who doesn’t want me to come.
Subsequently the father says:
F: [Y] would not be crying if he wasn’t taken away. It’s okay [Y], daddy loves you okay? You don’t have to wait until daddy’s 100 years old. Are you okay [Y]? I know you miss me [Y] it’s okay. Daddy wants to see you, there’s no other people that daddy doesn’t want to see. Only Nonna okay. I want you to remember that when you grow up. Your father loves you. Daddy never said anything about Mummy or Nonna not coming over. Everybody’s welcome. When you go to church they teach you to love everybody right?
9 March 2015
The father in conversation with Y:
F: Yeah now you go to school, you’re a big boy. Very soon I’ll take you to school okay?
[Y]: You know what my teacher said? I had to listen to her
F: what?
[Y]: She said if you come to school I have to tell her cause she will take you well, somewhere
F: Yeah well look, very soon I’ll be able to take you to school, so don’t worry, okay?
[Y]: I think no, I think you’re tricking me
F: No, I’m not tricking you sweetie
[Y]: Well my teacher said that she doesn’t want you to come to school, its true
F: Well don’t worry about them, pretty soon the judge will let daddy come to school and take you there okay?
30 July 2015
After the telephone call is terminated and reconnected:
[Z]: Daddy you’re bum bum pants
F: Oh – was daddy called a bum bum for telling the truth? I’m going to see all of you on Saturday.
After the telephone call is again terminated and reconnected, the father has a discussion with Y about the game “Minecraft”:
F: You can show me on Saturday when I see you, okay?
[Y]: K
F: We’re gonna have fun!
The telephone call is then terminated for a third time by the mother.
Later, in response to X asking his father whether he can purchase for him a particular toy:
F: Yep I can. And [X] can I get that at [H] Mall Big W?
[X]: I’m not sure. Check
F: Okay I’ll go there this weekend and find out.
[X]: And if it’s not there go to Target and see if it’s not there get it on Ebay.
F: My friend works at Target you know, so
[X]: What
F: My friend works in Target [H] Mall so I’ll find out.
During the course of the father talking to X about a Youtube video:
[X]: Mummy said we can’t listen to it
M to [X]: But you can talk to daddy for that time instead
[X]: Daddy, mummy said we can’t talk
M to [X]: You can talk if you want
[X]: Well mummy said we can’t listen to Evantube
F: Why can’t we listen to Evantube?
[X]: I don’t know
F: [X] can you do me a favour?
[X]: Yes
Father: [X], remember all of this, okay?
[X]: What?
F: When you grow up, remember all of this
The father then commences playing the clip that the mother did not want X to listen to. The child then says “Mummy said we can’t listen to Evantube”
The conversation later returns to discussion of the clip:
F: So I’m going to watch the youtube Metal Beard Sea Cow
[X]: But I don’t want to. Mummy said we can’t
F: Well look, at some point you’re going to grow up and we can do whatever we want.
[X]: Okay
F: You and me are the same
[X]: Yeah
F: Remember that
[X]: Yeah
Later, Y then inquires of his mother:
[Y] to M: Mummy can I tell you something? Can I take my ipad when I meet daddy?
F: Yes you can, sweetie. You can do whatever you want. You can bring whatever you want. [Y], daddy’s the boss. You can bring whatever you want, okay?
[Y]: Okay. That means yay I can bring my ipad!
F: Daddy’s the boss …! Daddy’s the boss …, did you know that?
…
F: [Y], I’m going to ask you a question.
[Y]: What?
F: How many [workplaces] is daddy the boss … of?
[Y]: Three
F: No, two
[X]: I was just about to say two
F: Yep. [Workplace 1] and [Workplace 2] Daddy’s the boss … of.
[X]: I know, cause you only told me about those two
F: You remembered [X]
[X]: Yeah I remember from last year
F: Yep, exactly you’re my boy. Nothing can drive us apart. I love you
[X]: I love you too
F: And [X], [Y? Do you know something interesting?
[Y]: Yeah
F: When you come to … with daddy, you can ask the chef to cook anything you want and he’ll cook it for you.
Y commences to cry. Subsequently, the father enquires:
F: [Y] why are you crying?
[Y]: Mummy said you won’t meet me
F: Well look, you’re supposed to see me on Saturday
The mother then terminates the telephone call.
4 August 2015
At the start of the telephone call:
F to [X]: I’m sorry I didn’t see you on Saturday
[X]: What?
F: I’m sorry I didn’t’ see you on Saturday
[X]: What?
F: I’m sorry I didn’t’ see you on Saturday I did my best, okay sweetie? I love you
[X]: Kay
F: [X], [X], are you okay?
[X]: Yeah
F: If you want to see me, if you want to talk to your child lawyer, tell your teacher you want to talk to your child lawyer and she’ll get it for you, okay?
…
F: If you want to see me, tell your teacher you want to talk to your child lawyer or ask to speak to Father [F], okay?
The father subsequently repeats this advice to X stating:
F: Tell [Y’s] teacher the same thing, okay? You’re allowed to do it. Okay? If you want to talk to the child lawyer, you are allowed to do it. And you can talk to Father [F]. He’ll help you
[X]: Okay
Later:
F: [X], you know you’re my special boy, right? I love you [X]. In two years I’ve never missed calling you, did I? Cause I love you. And I’m fighting to see you okay? I did my best for Saturday. I love you.
…
F: Do you remember I used to make eggs with salmon?
[X]: Yeah
F: I’ll make it for you very soon, don’t worry, okay? We’ll play Minecraft together, we’ll go out
7 September 2015
During the course of this telephone call, X expresses some reluctance to talk to his father and the father enquires “Why?”:
[X]: Because
F: I’ll be seeing you soon and I’ll be talking to you a lot about a lot of things. So don’t worry, okay? One thing you have to remember is daddy’s fighting to see you. I love you.
In response to Y advising his father that he was sick, the father states: “That’s why daddy’s trying to see you soon, to tell me what’s happening”.
In response to the father saying to Y that he can hug him through the phone:
[Z]: You’re not cause you’re not hugging him cause you’re not at our home
F: Yeah it’s your home sweetie, but don’t worry about it
[Z]: And you’re not hugging [Y] because
F: That’s okay, and one day daddy will be staying with you in your home? Okay?
[Z]: You can’t come to our home cos you’re a yuck
Later the father enquires of X:
F: [X] guess what I know? Have you been to the hotdog place in [Suburb N]?
F: [X] and [Y] have you been to the hotdog place in [Suburb N]?
[Y]: No
F: No! I’m going to take you there. There’s a hotdog place in [Suburb N]. It’s daddy’s friend’s place.
Subsequently the father asks: “Where’s [Y]? Mum wants to rush me off to cover up something. Where’s [Y]? “
After the telephone call is terminated by the mother and then resumed, the father and [Y] discuss the game “Minecraft”:
F: If mummy says yes I’ll stay with you, and we can play all night. Okay?
[Y]: Okay
F: Do you want to play Minecraft all night
[Y]: Yeah
F: Yeah! Mummy just has to say yes and I’ll play with you. I’m in [Suburb N]! Do you want to come to my house now? You can come. You can jump in my swimming pool.
[Y]: Kay
The mother terminates the telephone call again.
The telephone call is then resumed:
[Y]: Daddy, mummy turned off the phone
[X]: Because you were talking about going to your home
F: What’s wrong with coming to my home? I’m your father! You’re welcome to come to my house. That was rude. You don’t be rude, you be good.
8 September 2015
At the start of the telephone call:
F: Daddy’s in [Suburb N] at the moment looking at houses. Isn’t that exciting?
The father subsequently says to [X]:
F: [X] you have to tell me if anyone shouts at her [[Z]] or anything okay? Okay? If anyone bullies her [X] you tell me. If mummy, Uncle … or Nonna shouts at you, you tell me okay?
….
F: I really miss you. I’ll see you soon. That’s why I’m in [Suburb N] today looking at places with my friend.
Later the father enquires:
F: Is Nonna there? Is Uncle … there having dinner?
[X]: No
F: [X], who else is there with you?
M to [X]: That’s not important. [X], you don’t have to answer
F: I decide what’s important! Is Uncle … there? Is Uncle … who else is there? Daddy would like to know who’s at the dinner table. I decide what’s important.
Subsequently the father says to X
F: [X], what did you do on Fathers’ Day? [X]? [X]? [X] what did you guys do on Fathers’ Day? Hello
F: Did you go and see your father? Your father missed you
F: [X]? What did you guys do for Father’s Day? [X]?
23 October 2015
The children debate whether or not to have the telephone call with the father upstairs or not. The father says:
F: Just make sure mummy knows she’s not allowed to record daddy, okay?
[X]: Okay
F: It’s illegal. And where’s [Y] and [Z]?
As X speaks to his mother, the father responds: “Mmmm! Well daddy’s got a room full of people listening.”
After the children decide where to have the telephone call, the father says to Y:
We’re going to play Minecraft tonight! In [Suburb N]! Is that exciting?
….
And guess where we’re going tomorrow? [Suburb N] has their carnival tomorrow.
26 January 2016
This telephone call is terminated by the mother after the father says to the children: “I’m going to be seeing all of you very soon! So don’t be sad.”
After the telephone call is resumed, the father says to Y who complains about a sore tooth:
F: Are you all okay? Your tooth’s hurting. [X’s] not happy and [Z’s] not there. When daddy sees you daddy will make everything okay.
The mother terminates the telephone call again.
The telephone call is then resumed but once again terminated by the mother after the father enquires of X whether he is excited about returning to school and states: “Well I’m going to drop you off at school soon, are you excited?”
After the telephone call is resumed for a third time, the father states: “Oh, mummy keeps hanging up. But that’s not going to work in real life, is it [X]?”
SCHEDULE “C”
facebook posts by the father
17 April 2014
The father posts a link to a petition titled “Stop False Allegations of Domestic Violence”.
16 June 2014
The father posts the following:
When a friend of mine notices at 4pm a really old lady (hunched and all) struggle with 3 young kids at a Northern Beaches Mall, it makes her wonder where the mum and dad are? Poor kids suffering for someone else's mess up is her thought. I try not to judge. After all Christ does not judge those without guilt… - feeling amused.
11 November 2014
On 11 November 2014 the father posts a link to a song by the band “Soundgarden”. The link is accompanied by a photograph of a CD cover, which shows a leather jacket with a photo of the Grim Reaper on the back. The father’s accompany message reads: “I hope this weekend’s Northern Beaches fun doesn’t end this way. Ha ha (No criminal record and counting).”
The link is to the song “By Crooked Steps”. The lyrics of the song (Exhibit 19) are:
I’m addicted to feeling, stealing love isn’t stealing
Can’t you see that I understand your mind?
I’m a walking believer, I’m a ghost and a healer
I’m the shape of the hole inside your heart
Not looking for a brighter side
Crooked steps will take me higher
I don’t care if you want to cry
I’m a soldier for hire killing all you admire
And you live in denial but that will change
Not looking for a brighter side
Crooked steps will take me higher
I don’t care if you want to cry
When blood is raining down, it cuts a deep deep river
And we’re diving, yeah, we’re diving
Right behind you, right behind you
Right behind you, right behind you
(Right behind you…)
I’m a walking believer, I’m a ghost and a healer
Can’t you see that I understand your mind?
Can’t you see that I understand your mind?
My crooked steps right behind you
My crooked steps right behind you
My crooked steps right behind you
My crooked steps right behind you
Right behind you, right behind you, right behind you.
25 December 2014
The father posts the following:
My father has a piece of Padre Pio and the majority of the Australian Catholics would agree if he was here now he wouldn't be a fan of Catholics who fake domestic violence to cover up an extra-marital affair with a work colleague which is documented - just saying!!!! – reading Bible.
10 January 2014
In response to a Facebook post opposing the culling of sharks in Western Australia, the father posts the following comment:
Mother shark must know without daddy shark her offspring will grow up screwed up. Her enemies with cc problems must be glad everything is going to plan.
16 January 2015
The father posts a message referring to a young boy who was being treated in hospital and who had asked for his father. The post reads in part:
The father was there for him looking after him after his surgery. The little boy needed his Dad and his Dad was there for him. At 6:15am sometimes all a child wants is his father to be there for him… be there for him.
Ms D subsequently comments on the post:
At least nobody will take away your daughter, unlike those cruel idiots have, I cant believe the stupidity and cruelty! She calls herself a mother, what a JOKE!!!!
The father replies "Well said" with a smiley face emoticon.
20 January 2015
The day after the father attends the children’s day-care centre, the father posts:
He hugged me a secret hug my son all those months ago. They ran and cried when they saw me after a long time and wanted me home times three. He found me when I wasn’t even looking for him that ragamuffin! My children and I have an unbreakable bond and I realise that each and every day. Guess why I’m smiling?
26 January 2015
The father shares a post from White Ribbon Australia congratulating Ms Rosie Batty on being named Australian of Year. The father’s message accompanying the post reads:
Domestic violence is a serious issue my Australia Day wish is that all those that fake domestic violence for their own selfish and sinister motive be accountable by the legal system. Rosie may be sad to see her hard work be for nothing, due to the actions of a few horrible individuals.
September 2015
The father posts an extract from “The Man Page” which reads:
“The truth shall set you free” Unless you’re in court… then you should probably shut the fuck up.
14 October 2015
In explaining an earlier Facebook reference that the father made to “unless you one [sic] of the white racist antagonist [sic]”, the father comments:
They used fake evidence against me in court – the police – and they were caught out – so white police and doctors don’t get charged for perjury?
24 December 2015
The father shares a post from Mr XXX which, against the background of a photo of a woman shouting at a man, reads in part: “Currently, the government & domestic violence services don’t see any reason to support male victims of domestic violence”.
The father makes the following comment on the post:
Dear [XXX] thank you for the comment – I don’t wish domestic violence or abuse on anyone but I have accepted the fact as a male in Australia that my worth as a father and victim is absolutely less than zero – I have accepted this because clearly my life doesn’t matter – the only justice I hope to get is that someday the elephant in the room will be acknowledged – thanks again for this post
29 December 2015
The father posts a photo of a child with his head in his hands with the words “I wish Mum would stop hitting me and Dad” superimposed.
30 December 2015
The father comments on a post by Mr XXX that he had liked:
What happens when the system that is supposed to protect male Australians ends up destroying them? Sadly some of us know the tragic answer…
31 December 2015
The father shares a post from “Black Ribbon – Awareness of Men Suffering Domestic Violence”. The post included a photo of the Prime Minister, another Cabinet Minister and Ms Rosie Batty, with an elephant in the background. The photo is accompanied by the following caption:
IF THESE THREE ACTUALLY CARED ABOUT SOLVING DOMESTIC VIOLENCE
They would stop using it as a political football and fundraiser.
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