JARDINE & SACKVILLE - [2020] FamCA 346

FAMILY COURT OF AUSTRALIA

JARDINE & SACKVILLE

[2020] FamCA 346

FAMILY LAW – CHILDREN – Best interests – With whom the children shall live and spend time – Where the two subject children are aged eight and six years – Where the applicant father sought orders for the children, posited on three alternate bases, depending upon findings being made about whether either party poses an unacceptable risk of harm to the children – Where the respondent mother’s position has always been for the father’s elimination from the children’s lives – Where the children currently live with the mother and are estranged from the father – Where the Independent Children’s Lawyer generally supported the recommendations made by the Family Consultant and endorsed the mother’s position – Where the Family Consultant supported the proposals made by the mother and the Independent Children’s Lawyer – Where factors under s 60CC of the Family Law Act 1975 (Cth) are considered – Where there is a deterioration of the children’s relationship with the father and they have more meaningful relationships with the mother – Where allegations of family violence, child abuse and neglect are considered – Where the father has a history of violence and criminal convictions – Where there is a current apprehended violence order in place protecting the mother and the children from the father – Where the father poses a material risk of harm to the children – Where orders are made conformably with those proposed by the mother and the Independent Children’s Lawyer – Where supervised contact between the father and the children is not appropriate – Where the children shall live with the mother – Where the orders intentionally make no provision for the children to spend time or communicate with the father – Any and all outstanding applications dismissed.

FAMILY LAW – PARENTING – Parental responsibility – Where the applicant father sought an order for equal shared parental responsibility – Family violence – Where the presumption of equal shared parental responsibility does not apply – Where the children will continue to live with the mother – Where the mother shall have sole parental responsibility for the children.

Evidence Act 1995 (Cth) s 178
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 60DA, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 102NA, 114AB

Jardine & Sackville [2019] FamCA 458
Jardine & Sackville (No. 2) [2019] FamCA 1036
M v M (1988) 166 CLR 69; [1988] HCA 68
U v U (2002) 211 CLR 238; [2002] HCA 36

APPLICANT:

Mr Jardine

RESPONDENT:

Ms Sackville

INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi Lawyer

FILE NUMBER:

NCC

1949

2018

DATE DELIVERED:

20 May 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle (via video)

JUDGMENT OF:

Justice Austin

HEARING DATE:

28, 29 and 30 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B. Taylor

SOLICITOR FOR THE APPLICANT:

Joplin Lawyers

COUNSEL FOR THE RESPONDENT:

Mr A. Givney

SOLICITOR FOR THE RESPONDENT:

McIntosh McPhillamy & Co Legal Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms V. Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi Lawyer

Orders

All former orders in respect of the following children are discharged:
(a)X, born … 2011; and
(b)Y, born … 2013.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The mother shall inform the father of the school at which the children are enrolled and authorise the principal of the school to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
Costs are reserved for 28 days.
Any and all other outstanding applications are dismissed.

Notations

(A)These orders are consistent with the apprehended violence order made against the father for the protection of the mother and the children by the Local Court of New South Wales at C Town on 10 July 2018, which is in force until 9 July 2020.
(B)These orders intentionally make no provision for the children to spend time or communicate with the father. If and when they do so, upon expiration of the apprehended violence order, will be determined by the mother in the exercise of her sole parental responsibility for the children.

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 Jardine & Sackville 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 NEWCASTLE

FILE NUMBER: NCC 1949 of 2018

Mr Jardine

Applicant

And

Ms Sackville

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These proceedings concern parenting orders for two children, now aged eight and six years respectively.
The parties were in dispute about all aspects of the children’s care: who should have parental responsibility for them; with whom they should live; and, if they are to continue living with the mother, whether they should spend any time at all with the father.
For the reasons which follow, orders should be made conformably with those proposed by the mother and the Independent Children’s Lawyer, whose mutual proposal enjoyed the support of the Family Consultant. The children should live with the mother, she should have sole parental responsibility for them, and there should be no enforced change to their current estrangement from the father.

Short history

The parties commenced cohabitation in or about November 2010.
Their two daughters were born in 2011 and 2013.
The parties finally separated in April 2018, following which the mother and both children moved from the Newcastle area to live with the maternal grandparents in central west New South Wales (“NSW”), where they remain. The father stayed in the Newcastle area, where he remains.
The father commenced these proceedings in June 2018, seeking relief under Part VII of the Family Law Act 1975 (Cth) (“the Act”), in the Federal Circuit Court of Australia. The proceedings were later transferred to this Court.
The father initially sought orders for the children to live with him and for him to have sole parental responsibility for them, but he amended his Application in August 2018 to concede the children should continue to live with the mother and to instead propose that they merely spend time and communicate with him. He also sought that the parties share parental responsibility for the children equally.
Interim orders were made by Cleary J, with the parties’ consent, in March 2019. The orders provided for the children to live with the mother and for her to have sole parental responsibility for them. The father withdrew his application for interim orders requiring the children to spend time and communicate with him, so the application was consensually dismissed. He was legally represented at the time, so it may be safely inferred that his withdrawal of the application was intentional and not a mistake.
In June 2019, Cleary J disqualified herself from further involvement in the proceedings upon the father’s application for her Honour to do so. Following Cleary J’s disqualification, the proceedings were listed before me to consider the father’s additional application for the discharge of the Independent Children’s Lawyer. That application was dismissed on 8 July 2019, for which ex tempore reasons were delivered (Jardine & Sackville [2019] FamCA 458).
In March 2019, before Cleary J’s disqualification, her Honour made an order for the preparation of a Family Report and, in fulfilment of that order, the parties and children conferred with the Family Consultant in July 2019. The Family Report was later released to the parties and, suffice to say at this stage, the Family Consultant was critical of the father and made recommendations for orders which were inimical to his interests.
In September 2019, the father filed an Application in a Case seeking some ill-defined orders to enable his interim contact with the children and to compel the mother to submit to psychological assessment, but the application was dismissed on 8 November 2019. Again, ex tempore reasons were delivered for those orders (Jardine & Sackville (No. 2) [2019] FamCA 1036).
The proceedings were listed for trial in January 2020, at which time the father successfully sought an adjournment. Pursuant to the provisions of s 102NA of the Act, the father was prohibited from personally cross-examining the mother and so the withdrawal of his representation by his publicly-funded lawyers just prior to the trial arguably caused him considerable prejudice.
The father also based his adjournment application on the need to obtain either a second Family Report from a different Family Consultant or, alternatively, an expert report from a single expert, but that reason for the adjournment was rejected. The need for another Family Report or a single expert report was no more than an expression of the father’s dissatisfaction with the current Family Consultant and her Family Report. Although the content of the existing Family Report was ostensibly adverse to the father’s interests, his counsel was able to cross-examine the Family Consultant at trial about the contended unreliability of her opinions and recommendations. In relation to any prospective single expert report, the father could not say who should be the appointed expert, how soon the expert could confer with the family, when the report would be ready, how much the report would cost, or who would pay for it.
The trial was vacated and re-listed in April 2020 and the father was then given more time within which to file his affidavit evidence. Because of the Covid-19 pandemic, the attendant biosecurity directions of the government, and the safety measures implemented by the Court, the trial was conducted by audio-visual connection via the internet, though final submissions were taken by telephone. It was the father’s expressed preference to conduct the trial electronically rather than to adjourn the trial again.

Proposals

The father revealed some indecision about the orders he thought best promoted the children’s interests. After abandoning his original application for the children to live with him, he sought orders for them to simply spend time with him, which he told the Family Consultant was his “God-given right”.[1] Eventually, he pressed for the orders set out in his Further Amended Initiating Application filed on 27 March 2020. His application was posited on three alternate bases, depending upon findings made about whether either party poses an unacceptable risk of harm to the children.
[1] Family Report, para 51
First, if he (and presumably also the mother) is found not to pose a risk of harm to the children, he sought orders for the parties to have equal shared parental responsibility for the children, for the children to live with the mother, and for them to spend time with him under an escalating regime which culminates in alternate weekends, half of each school holiday period, and other special occasions.
Secondly, if he (but presumably not the mother) is found to pose a risk of harm to the children, then he conceded the children should live with the mother, she should have sole parental responsibility for the children, and they should only spend time with him under professional supervision at a Sydney contact centre for two hours on six occasions per year.
Thirdly, if the mother (but presumably not him) is found to pose a risk of harm to the children on account of her “drinking and/or alienation of the children”, then he proposed that the children instead live with him, that he have sole parental responsibility for them, but that they still spend unsupervised time with the mother.
The father’s application did not envisage the prospect of both parties being found to constitute a risk of harm to the children.
The mother’s position has always resolutely been for the perpetuation of the father’s elimination from the children’s lives.[2] She pressed for the orders set out in her Amended Response filed on 20 September 2019, which were repeated in the annexure to her Case Outline document filed on 23 January 2020.
[2] Family Report, para 52
The Independent Children’s Lawyer generally supported the recommendations of the Family Consultant, which position was foreshadowed well in advance of the final trial.[3] Once the evidence was closed, but before final submissions were made, the Independent Children’s Lawyer confirmed she endorsed the mother’s application.
[3] Independent Children’s Lawyer’s Case Outline filed 22/01/20

Evidence

The father relied upon:
a)his affidavit filed on 30 March 2020;
b)the paternal uncle’s affidavit filed on 27 March 2020; and
c)the paternal grandmother’s affidavit filed on 27 March 2020.
The mother relied upon affidavits filed by her and the maternal grandfather on 19 December 2019. A culled selection of the documents identified as annexures to the mother’s affidavit were separately tendered.[4]
[4] Exhibit M1
The Independent Children’s Lawyer prepared a tender bundle of documents pursuant to an earlier procedural order and it was tendered in evidence.[5] Despite the tender bundle, some other documents were tendered as exhibits individually.
[5] Exhibit ICL1
The mother and the Independent Children’s Lawyer also relied upon:
a)the Child Dispute Conference Memorandum dated 3 July 2018; and
b)the Family Report dated 8 July 2019.
Although the father was critical of and eschewed reliance upon either the Memorandum or the Family Report, his counsel was afforded the opportunity to cross-examine the Family Consultant who prepared the Family Report.
The father took umbrage with the Family Consultant’s evidence, but he seems to mistake his dissatisfaction with her evidence as proof of her bias against him. Whenever two parties have divergent views about the orders needed to promote the children’s best interests, as these parties do, it is impossible for the Family Consultant to form opinions which coincide with both parties’ views. The Family Consultant may not agree with either, but certainly cannot agree with both. That the Family Consultant happened to conclude, in this instance, the orders of the type favoured by the mother and the Independent Children’s Lawyer were preferable to those proposed by the father does not, of itself, mean the Family Consultant was biased against him. It merely means the Family Consultant’s opinions differ from his. That said, the Family Consultant firmly adhered to her evidence during cross-examination and the father’s challenges to her did not expose any flaw in either her opinions or recommendations.

Legal principles

Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

It was common ground the children have not seen or spoken to the father since the parties’ final separation in April 2018, some two years ago. While the mother certainly took steps to physically isolate the children from the father, there was a deeper dispute about whether she exerted psychological pressure upon the children to impair their filial relationships with him. The mother contends the children’s isolation from the father is only to protect them from the risk of physical and psychological harm to which they are exposed by the father and she has done nothing more to ruin the children’s relationships with him. On the other hand, the father asserts the children are not in any need of protection from him and the mother’s refusal to allow any interaction between them exemplifies her intent to deliberately destroy their relationships.
In July 2019, both children expressed some trepidation about the father to the Family Consultant,[6] though the youngest child still had some positive memories of him.[7] The Family Consultant concluded the children’s presentation during their interviews appeared genuine and she entertained no suspicion that their apprehension about the father was attributable to any alignment by the mother.[8] She confirmed those views in cross-examination.
[6] Family Report, paras 173-179, 184-186, 189
[7] Family Report, para 188
[8] Family Report, para 190
The Family Consultant did not observe the children in the father’s company because she considered it would be unsuitable after such a long absence of contact between them.[9] While the father might disagree with the soundness of the Family Consultant’s judgment, as he at least implied to her at the time,[10] there was another compelling reason. The father was then bound by the terms of an apprehended violence order prohibiting his contact with the children,[11] which prohibition the Family Consultant was not at liberty to breach. There were no interim parenting orders in existence to override the terms of that State order pursuant to the provisions of Division 11 of Part VII of the Act.
[9] Family Report, paras 193, 199
[10] Family Report, para 78
[11] Exhibit ICL1, pages 71-73

Although the father believes the mother is “alienating” the children from him, the validation of his assertion of such parental misconduct faces obstacles.
Though the children are deliberately withheld from the father, he either conflates or fails to distinguish between the mother’s asserted motives. She maintains it is only to protect them from the risk of harm posed by him, whereas he assumes and alleges it is for no good reason but to destroy the children’s relationships with him. There was no evidence to support his theory beyond his bare belief, which is contradicted by the Family Consultant’s evidence. He advanced no rational reason to doubt the efficacy of the Family Consultant’s opinion evidence, which objective evidence carries much more probative weight than his subjective and speculative views.
Even if the father is right and the mother does harbour the desire to ruin the children’s relationships with him, it would not undercut the efficacy of her decision to withhold the children from him if he does indeed pose a credible risk of harm to them. The Act demands that their safety then be prioritised over the preservation of their relationships with him (s 60CC(2A)). It is therefore necessary to examine the evidence about the various alleged risks of harm before deciding the question of whether orders should be made, in one form or another, to rejuvenate the children’s relationships with the father.

Section 60CC(2)(b)

The father’s past perpetration of family violence was the pre-eminent issue in the trial and the findings in relation to it bear upon the statutory considerations which feature prominently in the determination of orders to regulate the children’s future care: those being the need to protect them against the risk of harm through their exposure or subjection to the father’s family violence (s 60CC(2)(b)) and the need for orders which do not expose the mother to an unacceptable risk of family violence (s 60CG(1)).
The mother alleged the father acted violently towards both her and the children, and furthermore, they all still remain exposed to the risk of physical or psychological harm caused by the father from which they need secure protection.
The father conversely alleged the mother’s violence and her neglect of the children meant the children need protection from the risk of harm she poses to them, but no corresponding protective order is found within the suite of orders proposed by the father. At the very least, he inconsistently proposed that the children spend substantial unsupervised time with the mother.
Family violence
The evidence of the father’s violent conduct was overwhelming. To prove that point it is only necessary to advert to evidence which is either conceded by the father or is indisputably established by independent records. The controversial evidence can be left to one side.
The parties’ final separation in April 2018 followed upon the father’s physical assault of the mother.[12] At or about the time of the assault, the father sent text messages to the maternal grandfather referring to the mother as a “fat fuck” and informing him that he had removed the mother’s telephone and keys from her possession.[13] He must have done so in an attempt to thwart her escape and prevent her summoning help. Now, some two years later, the father admits the messages he sent were derogatory and offensive.[14]
[12] Mother’s affidavit, paras 30, 33
[13] Family Report, paras 25, 26
[14] Father’s affidavit, para 50
Shortly after the assault, the mother took the children to live with the maternal grandparents in central west NSW. The father conceded he then posted the following messages via social media,[15] obviously intending that the mother know of them:
… “[Y]ou better keep running you cunt and your fuck with family now you have a real reason to fear me [sic]”…
“[I]f only you knew the war you have started you drunk headcase loose slut of a mutt [sic]”…
“At least I can hold my head up hi knowing I’m not a mutt dog like you [sic]”
“[T]hink this is a game do u even know who your fucking with you have started something u can’t finish [sic]”
“[L]et me talk to my daughters you fucking bitch remember I never forget anything this is why I say your not too bright. I made them too who the hell do you think you are your playing with my emotions [sic]”.
(Emphasis added)
[15] Memorandum, page 3
At least one of those messages was accompanied by a photograph of the father holding a firearm, the intimidation caused by which must have been intentional.
Knowing the content of those messages and having endured years of heated conflict with the father, culminating in her very recent assault, the mother would rightly have been petrified of him.
At some later but indistinct point in time, the father posted more menacing and derogatory messages on his social media page saying, in part:[16]
[16] Exhibit M1, pages 92-93
[Mother and maternal grandparents] I am gonna [sic] fucking destroy you for what you have done to me and my girls…
[T]his is in no way shape or form a threat of violence I will never hurt any of you physically [sic]…
…
[Y]ou self centered pigs just remember [mother] you filthy little cunt there are 12 years worth of court coming your way [sic]…
…
… [I]’m going to sue you for all the trauma and physiological damage to me and our daughters [sic]…
…
…[Y]ou have fucked with my family I’m a fighter [sic]…
…
…[Y]ou on the other hand are a cruel spiteful bitch and I hope your dad [the paternal grandfather] drops dead of a heart attack you filthy thing [sic]…
(Emphasis added)
The father’s admission to the Family Consultant that he had “been a bit silly with text messages and threats” can only properly be considered a facile trivialisation of his behaviour.[17] If he intended the admission as an expression of remorse for such disrespectful and threatening conduct, then it was hollow and unconvincing.
[17] Family Report, para 99
The mother suffered physical injuries in the assault perpetrated upon her by the father in April 2018 and, as a consequence, he was charged with and convicted of several serious criminal offences. He was sentenced to a suspended term of imprisonment.[18] The father’s alleged ignorance of the bruising he inflicted to the mother’s eye on that occasion, to say nothing of her emotional distress, is not to the point.[19] His denials, both to the Family Consultant[20] and in cross-examination at trial, of ever having perpetrated family violence upon the mother was patently false in the face of such criminal convictions.
[18] Father’s affidavit, paras 60, 86; Mother’s affidavit, paras 34, 35; Family Report, paras 30, 32, 33, 224; Exhibit ICL1, page 9
[19] Father’s affidavit, para 59
[20] Family Report, paras 83, 97, 155
In addition to the convictions and sentences imposed upon the father in July 2018, an apprehended violence order was imposed upon him for a period of two years for the protection of both the mother and the children. That order does not expire until 9 July 2020.[21] In the absence of any order under Part VII of the Act requiring the children to spend time or communicate with the father (and there is none), the terms of the apprehended violence order prevent any form of contact by the father with either the mother or the children. The evidence suggests that, while the interim apprehended violence order was in force in those terms, the father posted the social media messages mentioned above threatening and disparaging the mother in breach of it.[22] As can be seen, the father is not easily deterred and he is willing to disobey court orders when unable to contain his emotions.
[21] Father’s affidavit, para 87; Mother’s affidavit, para 35; Family Report, paras 34, 59, 227; Exhibit ICL1, pages 71-73
[22] Family Report, para 225
That episode in 2018 was not the first time the father had an apprehended violence order imposed upon him for the protection of family members. In October 2011, during the mother’s pregnancy with the eldest child, the father was involved in an altercation with her and other members of the maternal family. While no criminal charges resulted from the incident, the father was placed on a temporary apprehended violence order for the protection of the maternal family members.[23]
[23] Mother’s affidavit, para 28; Maternal grandfather’s affidavit, para 8; Family Report, para 14
At least one other apprehended violence order was previously imposed upon the father for the protection of another former domestic partner, who is the mother of one of his older children.[24]
[24] Family Report, paras 61, 221
The mother gave evidence of many other serious episodes of physical violence during the parties’ relationship which often caused her to suffer injuries[25] and, although the father specifically denied that evidence,[26] he did admit to the Family Consultant that he “put holes in the wall” of the house in which the parties were living.[27] It may be fairly inferred he did so by striking the wall in moments of anger with sufficient force to cause such damage so, in reliance upon merely the father’s admission, the parties’ household must have been a violent and frightening environment. The father told the Family Consultant he “wasn’t trying to be aggressive” when damaging the walls of the family home which, if true, must mean he simply could not control himself.
[25] Mother’s affidavit, para 31
[26] Father’s affidavit, paras 68-70
[27] Family Report, para 84
The paternal uncle, who lived with the parties at numerous houses, conceded in cross-examination that he saw the parties engaged in physical confrontations on occasions, which involved them struggling and grappling with one another.
The police were also summoned to an altercation between the father and the paternal uncle in January 2017,[28] so the evidence of the father and the paternal uncle to the effect that they “live well together” is not particularly re-assuring.[29] In cross-examination, each unconvincingly denied any recollection of the incident which resulted in the police being called.
[28] Family Report, para 222; Exhibit ICL1, page 20
[29] Father’s affidavit, para 93; Paternal uncle’s affidavit, paras 6, 39
In aggregation, such evidence persuasively establishes the father is a person who has a long-standing tendency to act violently in domestic relationships towards members of his family.
But quite apart from the commission of “family violence” (defined in s 4AB of the Act), the father has other criminal convictions for offences of violence, which imply that his tendency for violent conduct is much more pervasive and not just confined to domestic situations.
In 2010, the father was charged with and convicted on offences of “assault occasioning actual bodily harm” and “kidnapping”, committed by him in 2009, for which he was imprisoned for a period of time.[30] The father was on parole for those convictions when he first met the mother in late 2010.[31] The father also minimised the circumstances of those offences when discussing them with the Family Consultant, but the convictions followed upon his guilty pleas. Obviously enough, the circumstances of the offences must have been reasonably serious for him to have served full-time custodial sentences.
[30] Father’s affidavit, paras 83, 85; Mother’s affidavit, para 48; Family Report, paras 86, 87, 220; Exhibit ICL1, pages 6-7
[31] Father’s affidavit, para 10; Mother’s affidavit, para 6
In 2014, the father was convicted on a criminal charge described as “stalk/intimidate intend fear” when he wielded a knife in a confrontation with a store-keeper.[32] In 2015, he was convicted on a criminal charge described as “use carriage service to menace/harass/offend” following his threat by a message sent via social media to violently assault another parent and inflict grievous injury – by breaking his legs and smashing his fingers with a steel hammer.[33]
[32] Family Report, para 215; Exhibit ICL1, pages 8-9, 31
[33] Family Report, para 219; Exhibit ICL1, page 9
The father’s recent denial of the 2014 and 2015 convictions,[34] is rejected as false. Even though certificates of criminal conviction were not tendered (s 178 of the Evidence Act 1995 (Cth)), his criminal record was sufficient proof because the accuracy of the entries was not disputed.[35]
[34] Father’s affidavit, para 85
[35] Exhibit ICL1, pages 4-9
Aside from formal criminal convictions, the evidence reasonably established that many other police complaints have been made by different members of the public about the father’s violent conduct during the years he cohabited with the mother. Such complaints include his intimidation of and threats made to business proprietors, their employees, insurance investigators, real estate agents, tenants, and parents of school children.[36] On several of those occasions the father was found to be in possession of a knife,[37] just as he was during the 2014 incident for which he was convicted and just like the mother alleged he was when he assaulted her in 2018.[38] The police once had to subdue the father with the use of capsicum spray.[39]
[36] Family Report, paras 215, 217, 218, 219
[37] Exhibit ICL1, pages 17, 19, 20, 28, 31
[38] Exhibit M1, pages 21-22
[39] Family Report, para 230
The father admitted in evidence he has a “natural reaction” to threaten people by using his large stature and “aggressive words”.[40] He also told his counsellor that he verbally threatens and intimidates others to protect himself.[41]
[40] Father’s affidavit, para 88
[41] Exhibit ICL1, page 41
Against that completely uncontroversial history, it is unnecessary to canvass in these reasons the mother’s many other allegations of violence committed by the father, which allegations involve him killing or treating family pets cruelly,[42] his financial oppression of the mother,[43] his curtailment of her contact with family members,[44] and his threats to kill her.[45]
[42] Mother’s affidavit, paras 37, 38
[43] Mother’s affidavit, para 42
[44] Mother’s affidavit, para 51
[45] Mother’s affidavit, para 53
Because it is unnecessary to go beyond the uncontroversial history and evaluate the conflicting evidence adduced by the parties in order to make definitive findings about the father’s past commission of serious family violence, it is unnecessary to make generalised findings about the parties’ respective reliability as witnesses. Nonetheless, since it remained an issue of importance to the father, something useful may be briefly said about it.
When the parties cohabited, the mother supported the father’s application in other litigation against his former partner related to one of his older children. In these proceedings, the mother said she lied in those former proceedings by saying the father was not perpetrating family violence upon her, when in fact he was.[46] She also said she lied to health professionals when denying her victimisation by the father.[47] Conversely, the father maintained the mother told the truth in the prior proceedings but instead lied about him in these proceedings and, since she admits having lied at one time or another, she should not be accepted as a witness of truth and his version of past events should be preferred.[48] While the submission may be logical, it is one-dimensional and simplistic.
[46] Mother’s affidavit, para 51
[47] Family Report, para 158
[48] Family Report, para 93
The mother explained, both to the Family Consultant[49] and in cross-examination, that she now felt safe enough to be honest about the past events because she was no longer living with and in fear of the father. When she lied in the earlier proceedings, she was scared of the father’s reprisals if he learned she was not completely supportive of his case. The Family Consultant said it was not uncommon for the victims of family violence to deny their abuse when still under the effective control of the perpetrator.[50] I accept that explanation, both generally and in this instance. The Family Consultant said in cross-examination that she thought the mother’s account of events was reliable because it involved detail, the father’s criminal conviction tended to corroborate her version, the children’s presentation was consistent with her story, and the father refused to accept responsibility, which reasons were quite plausible. No aspect of the mother’s demeanour under cross-examination at trial suggested her lack of veracity.
[49] Family Report, para 105
[50] Family Report, para 164
In his haste to criticise the mother for lack of credibility, the father overlooked the unreliability of his own evidence. As already mentioned, his denials to the Family Consultant and in his evidence of ever having perpetrated family violence upon the mother was patently false in the face of his criminal conviction for assaulting and injuring her. His denial of having any propensity for violence is also plainly false in the face of abundant indisputable evidence to the contrary, including his admissions of his natural reaction to threaten and intimidate people.
There can be little doubt the children were exposed to the father’s violent conduct towards the mother. The mother said they were[51] and the children independently confirmed the fact to the Family Consultant, who considered the children might therefore have “anxious and potentially fearful relationship[s]” with him.[52] The father’s evidence that the children were shielded from the violence is rejected as fanciful.[53] The children were disturbed and frightened by the parental conflict, they asserted the father was “mean” to the mother, they saw the father “hurt” her, and they believe she is scared of the father.[54] The children also witnessed the father’s mistreatment of their pets and are concerned about the animals’ welfare in his care.[55]
[51] Mother’s affidavit, para 61
[52] Family Report, para 195
[53] Father’s affidavit, para 16
[54] Family Report, paras 173, 174, 175, 176, 184, 185
[55] Family Report, para 192
The father’s countervailing evidence of the mother’s violent conduct towards him on occasions may well be true,[56] but the allegations were pointlessly made because they did not bear upon the salient issues of residence or parental responsibility. He wanted the children to continue living with the mother and he wanted to share parental responsibility for the children with her, provided they are not at any risk of harm due to her alcohol consumption or alienating behaviours – not by reason of her commission of family violence. Significantly, the father did not contend he was at any continuing risk of assault by the mother and, trite though it may be to say, making reciprocal allegations of her violent conduct did not in any way justify his own violent conduct.
[56] Father’s affidavit, paras 20, 24
Child abuse
The mother alleged that, on several occasions during cohabitation, the father physically assaulted the children. She took photographs of the children’s injuries,[57] which she denied were fabricated for forensic effect. The father denied, both to the Family Consultant[58] and in evidence,[59] that he ever harmed the children deliberately, but he did concede inflicting one injury accidentally. While he criticised the mother’s evidence for lack of corroboration, he had none either. At least she had photographs verifying the children’s injuries and it is inherently unlikely she would have taken and kept the photographs if she genuinely perceived the injuries were sustained by the children accidentally.
[57] Mother’s affidavit, para 32; Family Report, para 110; Exhibit M1, pages 17, 19
[58] Family Report, para 83
[59] Father’s affidavit, paras 71-73
Although the father has never been charged with or convicted of assaulting the children, he must still have occasionally acted brutishly with them. Indeed, that is incontrovertible, since both children reported to the Family Consultant that they were smacked on the bottom with a spatula by the father, as the mother alleged,[60] though the father admitted it was only on the hand.[61] The paternal uncle admitted in cross-examination he had seen the father physically discipline the children, by using his hand to smack their bottom and a spatula to “tap” them on the hand. The only point to the use of an implement rather than one’s hand is the actual or threatened infliction of greater sting. Conceivably, such physical assaults might be explicable by the father as lawful physical chastisement of the children, but the use of an implement to hit such young children, particularly if their skin was thereby bruised or reddened, would be regarded by most adults as indefensible.
[60] Family Report, paras 177, 186
[61] Father’s affidavit, para 72

The father’s evidence of the mother’s abusive treatment of the children[62] was only recently filed and served, and she did not have the opportunity under the operable procedural orders to file an affidavit in reply to admit or deny the allegations. Suffice to say, such evidence is contrary to all other evidence of the mother’s tender affection for the children and, importantly, she was not directly challenged with the abuse allegations in cross-examination, in which event they are not vindicated. The father did not appreciate the incongruity of simultaneously maintaining his allegations of the mother’s physical abuse of the children and his proposal for them to continue living with her (subject to findings about her alcohol consumption, mood and alienation of the children from him).
[62] Father’s affidavit, paras 28, 52
Neglect
The father alleged the mother’s past mood swings and excessive consumption of alcohol compromised her supervision of the children to such an extent that he felt impelled to report her parental neglect to the child welfare authority.[63] He apparently did so more than once; both before and after their separation. Regardless, so far as the evidence goes, the child welfare authority did not act on his complaints and so it may be safely assumed the authority did not consider the children to be at risk of serious harm in the mother’s care.
[63] Father’s affidavit, paras 20-31; Family Report, paras 55, 64, 72, 76
The father has no personal knowledge of the mother’s circumstances from when they separated in April 2018. They have not communicated since then and two years have now passed. He could not possibly know how much, if any, alcohol the mother now consumes. Nor could he know anything about her current mood. The father admitted as much in cross-examination when he said words to the effect:
I have no idea if the mother is a risk to the children. I haven’t seen her for two years.
The mother told the Family Consultant that, since separating from the father, her depression had resolved and she had moderated her alcohol consumption.[64] She produced a CDT test, the results of which apparently corroborated her.[65] The mother and maternal grandfather both gave confirmatory evidence to that effect. Aside from the father’s speculation, there was no evidence to contradict them.
[64] Family Report, paras 64, 70
[65] Family Report, para 65
The father actually recanted his allegations against the mother in the affidavit he filed in August 2018,[66] but later resurrected the allegations, presumably when he perceived the need to fight back against the allegations of parental incapacity levelled at him.
[66] Exhibit ICL2, paras 3, 7, 9
No evidence was adduced to substantiate any current risk of harm to the children by reason of the mother’s neglect, whatever may be the alleged cause.
It must not be overlooked that the father consented to the interim orders, made in March 2019, pursuant to which the children live with the mother. He must have agreed to those orders because he believed they promoted the children’s best interests. No sensible explanation was advanced by the father about why he was satisfied with the mother’s parenting capacity then, but not now.

Conclusions

The Family Consultant quite properly identified that family violence was a “serious issue for consideration” in these proceedings.[67]
[67] Family Report, paras 57, 77
The Family Consultant considered that the father’s harassment and intimidation of the mother was just an extension of his behaviour towards many others across “different areas of [his] life”.[68] So much is obviously true having regard to his criminal convictions, the many police complaints made against him by unrelated members of the public, his overbearing and bombastic presentation to the Family Consultant,[69] and the cantankerous attitude he displayed at trial during his cross-examination. His belligerence even in Court, when supposedly constrained by formality and the expectation of composure, implies he is likely to be even more forceful and dogmatic when able to act naturally in the community. The Family Consultant considered, and I accept, that the father has a propensity for violent responses to minimal provocation.[70]
[68] Family Report, para 62
[69] Family Report, para 78
[70] Family Report, para 233
The Family Consultant considered that the father’s rejection of responsibility for his past misbehaviour and the absence of his expressed remorse is concerning because it tends to suggest his behaviour will not change.[71] The same inference arises from the father’s evidence and submissions in the trial.
[71] Family Report, paras 101, 234
Though the father belatedly admitted the parties’ relationship “deteriorated to the point of physical violence”, he sought to attribute equal blame to the mother.[72] He still minimises his responsibility and alleges her exaggeration.[73]
[72] Father’s affidavit, paras 16, 47, 48
[73] Father’s affidavit, paras 58, 59, 61
In the Case Outline document filed on his behalf in advance of the trial, it was contended:
The Father claims he does not present any risk to the children, and any history of violence exhibited by himself toward the Mother was minimal and was of a mutual nature with the Mother.
(Emphasis added)
During cross-examination, the father: denied he has any propensity for violence; denied he committed any physical violence against the mother; alleged he only engaged in verbal arguments with the mother; and alleged he had only defended himself against physical attacks by the mother and, even then, he did not touch her body in any way which would cause any bruising. Obviously, that evidence cannot be correct in the face of his conviction for assaulting the mother and causing her “actual bodily harm” during the incident in April 2018, which assault precipitated their separation.
Because of the father’s concurrent minimisation of responsibility for his past violent conduct, any modicum of remorse he purported to express is an ill-fit with genuine contrition. When being asked in cross-examination about his hostile attitude towards the mother and his apparent lack of empathy, the father said without any hint of irony:
What’s empathy got to do with anything? I’ve got plenty of empathy.
It seems the personal development and parenting courses the father has completed, which he was keen to impress enhanced his credentials as a parent, have not helped him to acquire too much insight into his conduct and the repercussions of it.[74] When asked about the father’s participation in those courses in cross-examination, the Family Consultant said the certificates may do no more than merely confirm his attendance at the courses and they did not necessarily prove his genuine commitment to changed attitudes, which evidence I accept.
[74] Father’s affidavit, paras 63-67, 91; Family Report, para 90
The Family Consultant said, on the facts known to her, there was no evidence to conclude the father had committed to any lasting change of his destructive behaviour. She saw no evidence that he genuinely accepted responsibility for his past behaviour. Although he has consulted a counsellor, he either denied or failed to fully disclose his history of violent conduct to her and so such counselling could not properly address it and will be of little value to him. In fact, during cross-examination, the father admitted he told his counsellor that the mother’s allegations against him were “all made up”. The evidence suggests the father perceives the psychological predicament for which he consults his counsellor is attributable to various other misfortunes, for which he bears little, if any, responsibility.[75]
[75] Exhibit ICL1, pages 37-43
The father’s vituperative attitude towards the mother has not abated at all, so his disaffection with her must still run deep. Leaving to one side the disgraceful social media messages he posted for the mother to read after their separation, when discussing her with the Family Consultant in July 2019, some 15 months later, the father could still not refrain from disparaging her and referred to her as a “vicious mongrel”.[76] He admitted he called her “evil” and a “spoiled brat” in an affidavit he filed in August 2019.[77] Then, during his cross-examination at trial, besides criticising the mother for an alleged lack of intelligence, he made comments to the following effect about her:
“She has been a pain in my arse for years.”
“I have no respect for her.”
“She’s an alcoholic.”
[76] Family Report, para 82
[77] Exhibit M3
The Family Consultant considered the documentary material she had seen demonstrated how the father’s conduct with the mother amounted to “coercive controlling violence”, which grossly impairs his parenting capacity and revealed risks of both physical and emotional harm to both the mother and the children.[78] I accept that evidence as correct. It is immaterial whether the father has a “personality disorder” or an “Anti-Social Personality Disorder”, as the Family Consultant suspects might be the case.[79] The nature of his conduct and the prospect that it will continue unchanged into the future is much more important than the label offered to describe his anti-social behaviour.
[78] Family Report, para 239
[79] Family Report, paras 236, 240
The Act aspires to ensuring that children derive advantage from both parents’ meaningful involvement in their lives (s 60B(1)(a)) because, apart from cases of abusive relationships, it is readily acknowledged that children benefit from the development of good relationships with each parent. The right to know and be cared for on a regular basis by both parents are principles underlying the objects of Part VII of the Act (see U v U (2002) 211 CLR 238 at 285-286; M v M (1988) 166 CLR 69 at 76). However, the children’s best interests remain the paramount consideration and their safety must always be prioritised over idealised family models (s 60CC(2A)).
While the children remember the father, according to the Family Consultant’s evidence, not all of their recollections of him are fond. Nearly another year of estrangement has passed since the Family Consultant conferred with the children in July 2019. Their relationships with the father must have continued to erode and they must currently have much more meaningful relationships with the mother. The Family Consultant recommended that, subject to the Court’s eventual findings of the father’s perpetration of serious family violence (which findings are now made), the children not spend any time with him.[80] While the maintenance of children’s relationships with both parents is generally desirable, that aspiration must yield to their physical and emotional safety.[81]
[80] Family Report, paras 243, 245, 248
[81] Family Report, para 244
The Family Consultant did not believe the risk posed by the father to the children could be ameliorated in any satisfactory way, short of his elimination from their lives.[82] That opinion evidence was strongly endorsed by both the mother and the Independent Children’s Lawyer and, ultimately, was a compelling consideration. Interestingly, the father admitted to the Family Consultant that the children’s continuing estrangement from him would be justified “if he was a violent person”,[83] which finding is now made, even if he disagrees with it.
[82] Family Report, para 245
[83] Family Report, para 99
On balance, it would be an error to try and revive the children’s relationships with the father by crafting orders which provide for their intermittent meetings under professional supervision. There could be no question of any such supervision being provided by the paternal grandmother or the paternal uncle because they are apologists for the father. Their comments about the father to the Family Consultant were unrealistically favourable[84] and, in cross-examination, both said they believed the father’s denials of assaulting the mother, notwithstanding their knowledge of his conviction in 2018 for doing so. In any event, the father did not seek orders that they be supervisors.
[84] Family Report, paras 132, 136, 138, 140, 143, 148, 167
The Family Consultant explained why she was firmly against the children spending time with the father, even if supervised and even if only on a few occasions each year. While the supervision might protect the children against any harm due to their subjection to physical abuse or their exposure to family violence between the parties, it could not satisfactorily protect them against the risk of emotional harm caused by the father sharing with them his strong adverse views of the mother and the maternal grandparents. Given the depth of the father’s sentiments about them, that risk is real.
The father said in cross-examination that, when the children are older, he will give them all the information they need to correct their mistaken beliefs about him, the mother and the maternal grandparents. He also admitted he still wants to sue the maternal family members for damages for withholding the children from him, and he even prepared a formal Court document containing such a claim.[85] It could hardly be doubted that he could not resist taking the earliest available opportunity to convince the children that they are being unreasonably withheld from him due to the wickedness of the mother and maternal grandparents. As the Family Consultant said, that is liable to distress the children and de-stabilise their residence with the mother and the maternal grandparents. I accept the submission made by the mother’s counsel that it is unlikely the father could behave appropriately in a supervised setting. He would most likely be argumentative and uncontained.
[85] Exhibit M2 (proposed Order 13)

Children’s best interests – additional considerations

The views expressed by the children were against revival of their relationships with the father,[86] but I attribute no weight to those views because of their young age and relative lack of maturity (s 60CC(3)(a)).
[86] Family Report, paras 178, 179, 189, 190
The father meets his child support obligation to help maintain the children, but not willingly (s 60CC(3)(ca)). He receives an unemployment benefit and his assessed child support payment, which is apparently only about $16 per week, is deducted from his benefit before he receives it. If he had his way, he would not pay it. He said in cross-examination:
“I am not going to pay for children I cannot see.”
“I am not going to give her [the mother] drinking money.”
The restoration of some form of personal physical interaction between the children and the father would, after their estrangement for the last two years, probably cause the children to experience some form of anxiety, as the Family Consultant said. Such restoration and emotional disturbance is not necessary to promote the children’s best interests (s 60CC(3)(d)).
It was common ground the parties’ homes are separated by a drive of about five hours’ duration. Any orders requiring the children to spend time with the father would entail some degree of practical difficulty and expense, even if confined to occasional visits in a Sydney contact centre (s 60CC(3)(e)).
The parties’ parenting capacity and attitudes (ss 60CC(3)(f), 60CC(3)(i)) have been satisfactorily covered in the discussion of the evidence under s 60CC(2)(b) of the Act.
The issues of family violence and multiple apprehended violence orders (ss 60CC(3)(j), 60CC(3)(k)) have also been satisfactorily covered in the discussion of the evidence under s 60CC(2)(b) of the Act.
It is highly likely the father will be angered by his enforced absence from the children’s lives and will be motivated to circumvent the result in some way. More litigation related to the children may ensue, which is undesirable (s 60CC(3)(l)), but it is a risk which must be run if orders are to now be made in the children’s best interests.
The evidence did not usefully engage the other considerations prescribed by the Act (ss 60CC(3)(b), 60CC(3)(c), 60CC(3)(g), 60CC(3)(h)).

Conclusion and orders

The abundant evidence of the father’s family violence means the presumption of equal shared parental responsibility does not apply (s 61DA(2)).
The preceding findings as to how and why the father (but not the mother) poses a material risk of harm to the children necessarily means the children must continue to live with the mother. In that event, the father conceded the mother should have sole parental responsibility for the children. The Family Consultant agreed that the parties could not share parental responsibility.[87]
[87] Family Report, para 152
As earlier indicated, the father’s application comprised three options. The first and third options fall away because the factual pre-conditions to their operation were not sustained. Under the second option, which assumes a factual finding is made that the father poses an unacceptable risk of harm to the children, he seeks orders for the children to spend supervised time with him at a Sydney contact centre for two hours on six occasions each year. That proposal is rejected because it conflicts with the Family Consultant’s evidence and is even inconsistent with his admission to the Family Consultant that the children should have no contact with him if he is “violent”.
The mother instead wanted an order positively prohibiting the father from having any form of contact with the children. No such order is made because there is no need for it. The absence of any order requiring the children to spend time or communicate with the father will mean she, in the exercise of her sole parental responsibility for the children, will decide if, when and how the children eventually have any contact with the father.
Because the father will not likely see or correspond with the children for some time, perhaps many years, orders are made enabling him to obtain details about their scholastic achievements and to acquire school photographs of them. Presumably he will still want to know about their progress and there is no reason why he should not. The mother can have no complaint about the father knowing the school the children attend because she voluntarily adduced some of their school records in evidence. It is not necessary to make an order compelling the mother to provide the father with photographs of the children each and every month, as he sought. There was no evidence adduced nor any submission made to vindicate such an order.
The father wanted orders enabling his correspondence with the children, but no such orders are made. Any future contact between him and the children will have to await the mother’s decision as to when and how to allow it, or alternatively, the children’s attainment of sufficient maturity to re-establish contact with him of their own volition. The Family Consultant said, and I accept, there was a real risk the father’s communication with the children might cause them distress. Conceivably, in any such correspondence he could criticise the mother and maternal grandparents or perhaps convey to the children his despair at being kept away from them unfairly.
The mother conversely wanted an order restraining the father from contacting or approaching her, but no such order is made. First, she already has the benefit of an apprehended violence order to do that work, which will have been in place for two years when it expires in July 2020. Secondly, there is no power to make any further injunction of that sort while the existing order applies (s 114AB). Thirdly, there was no evidence to suggest that an extension of such an injunction beyond July 2020 is presently necessary. The father said he wanted nothing more to do with the mother and there was no evidence he has been to central west NSW where she now lives. There is nothing to stop the mother seeking another apprehended violence order after July 2020 if fresh circumstances warrant it.
The mother sought an order restraining the father from posting any comments about her or the maternal grandparents on any form of social media. No such order is made since the mother’s counsel could not identify the source of power to make it.

The same style of injunctions sought by the mother against the paternal grandmother and paternal uncle are incompetent because they were not parties to the proceedings; merely witnesses. The mother’s counsel agreed.
The father sought an injunction restraining the mother from changing the children’s surname and, conversely, the mother and the Independent Children’s Lawyer sought an order compelling the father to assist the mother to change the children’s surname at the NSW Registry of Births, Deaths and Marriages. No such orders are made, either to restrain or compel the change of the children’s surname, because neither party adduced any evidence or made any persuasive submission about why the order they proposed was warranted.
The mother said in cross-examination that the surname change for the children was her “preference” and she perceived it was necessary to ensure her ability to obtain passports for them. It was later accepted the name change is not necessary for the procurement of passports and her mere preference is hardly convincing. The Family Consultant said the mother’s restraint from changing the children’s surname “might” cause her distress which “could” affect her parenting capacity, but there was no positive evidence of it and the mere prospect is too fragile a basis upon which to act. On the other hand, the father gave no evidence at all why the proposed name change should be prohibited. It was an issue barely addressed in the evidence and submissions. The mother has sole parental responsibility for the children so the decision about the children’s surname now rests with her. Time will tell whether she exercises her responsibility wisely.
Similarly, the mother’s application for an order allowing her to procure passports for the children is refused because it is unnecessary. She has sole parental responsibility for the children and is free to exercise it.
The orders set out at the commencement of these reasons are otherwise self-explanatory and are made in the children’s best interests.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 20 May 2020.

Associate:

Date: 20 May 2020.