Jennings & Jennings
[2021] FedCFamC1F 314
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jennings & Jennings [2021] FedCFamC1F 314
File number(s): BRC 3275 of 2019 Judgment of: HOWARD J Date of judgment: 16 December 2021 Catchwords: FAMILY LAW – PARENTING – INTERNATIONAL RELOCATION – where the mother seeks that the child live primarily with her in New Zealand – where the child presently lives with the father in Australia – allegations of family violence – where there is an extensive history of family violence perpetrated by the father against the mother – prolonged pattern of abuse – where the family report writer made recommendations predicated on an assumption the father had gained insight – where the Court concluded that the father had not gained insight into his behaviour and had continued perpetrating family violence – family report but once piece of evidence – where the Court is in the position to make an assessment of all of the evidence and make findings of fact – child to live with the mother – mother permitted to relocate the child’s residence to New Zealand. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 65DAA.
Cases cited: Albert v Plowman [2020] FamCAFC 23
Baghti & Baghti & Ors [2015] FamCAFC 71
Banks v Banks (2015) FLC 93-637
Beckham v Desprez (2015) 55 Fam LR 310
Briginshaw v Briginshaw (1938) 60 CLR 336
Calvert & Madock [2020] FamCA 219
Cox v Pedrana (2013) 48 Fam LR 651
Eagle & Scarlett (No.2) [2020] FamCAFC 291
Hall and Hall (1979) 5 Fam LR 609
Qantas Airways Ltd v Gama (2008) 167 FCR 537
U v U (2002) 211 CLR 238
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 172 Date of last submission/s: 22 September 2021 Date of hearing: 16, 17 & 18 June 2021 Place: Brisbane Counsel for the Applicant: Mr Bunning Solicitor for the Applicant: SJP Law Counsel for the Respondent: Ms Martinovic Solicitor for the Respondent: Keyworth Harris & Lowe Family Lawyers Counsel for the Independent Children's Lawyer: Mr Dodd Solicitor for the Independent Children's Lawyer: Life Law Solutions ORDERS
BRC 3275 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JENNINGS
Applicant
AND: MS JENNINGS
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the Independent Children’s Lawyer shall provide a copy of a proposed final order (reflecting the reasons for judgment) to each other party (and to the Court) within 21 days of date of these Orders.
2.That the parties shall attempt to reach an agreed position in relation to the wording of the final order (reflecting the reasons for judgment) and shall send a copy of same to the Court within a further 14 days of receiving the Independent Children’s Lawyer’s proposal in accordance with the preceding Order.
3.That in the event the parties are unable to reach an agreed position in relation to the wording of the final order (and send a copy of same to the Court) within the time frame stated in paragraph 2 – then the parties are required to send to the Court a copy of their proposed final order (reflecting the reasons for judgment).
IT IS NOTED
A.In the event there is no agreement between parties in relation to the wording of the final order, then the Court shall either make a final order in Chambers reflecting the reasons for judgment or the Court shall consider listing the matter for a further Mention.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Jennings & Jennings has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
Background
In this parenting case, the applicant father is Mr Jennings. He was born in 1972. The father works in the fitness industry. He previously owned and managed his own business but is now employed by another firm. He told the Court that he earns $112,000 gross per annum.
The respondent mother was born in 1978. The mother has training in allied health roles. Whilst giving evidence in the witness box the mother confirmed that she currently doesn't make any money from those roles but works as a volunteer at the women’s centre near her home in New Zealand.
The parties commenced a relationship in about October 2011. They started living together in April 2012. The parties were married in 2015. The parties separated on a final basis on 2 July 2018. There had been other separations prior to that date.
The parties have one child together, X. X was born in 2015.
The mother has another daughter, Y, who was born in 2009. Y’s father is Mr B. Mr B lives in Australia. The mother in this case lives in New Zealand with the child Y.
The father lives in Location C in Queensland. X currently lives with the father.
The father seeks orders on a final basis that would allow X to remain living with him in Australia in Location C.
The mother seeks a final order that would grant her permission to relocate X’s residence to New Zealand so that he can live with the mother and with his sibling – namely, his sister Y. The mother has re-partnered and lives in a stable relationship with her new partner and with her daughter Y.
The father has not re-partnered.
The mother’s evidence is that she fled Australia in July 2018 in order to escape from the father. There is a very long history in this case of allegations of family violence perpetrated by the father against the mother. The father admits to some of this family violence.
Since leaving Australia in July 2018, the mother has seen the child on four occasions. In late 2018, the father took the child to New Zealand to see the mother. In September 2019, the mother was in Australia for a court date in relation to these proceedings. In February 2020, the mother saw the child when she was in Australia for the family report interviews. The COVID-19 pandemic then intervened. The mother saw the child again during the hearing of this matter that took place in June 2021.
Ms D, family report writer, interviewed the family in February 2020 and prepared a report which is annexed to an affidavit filed 24 February 2020. Ms D recommended that the child remain living in the primary care of the father in Australia.
For the reasons that will follow, I do not accept the recommendation of Ms D in this case. In fact, Ms D’s written family report and her evidence generally has been of limited assistance to the Court in the particular circumstances of this case. Ms D’s opinion is premised upon her impression that, “the father has demonstrated an openness to change and seems to have made no attempt to deny his mistakes” (note paragraph 7.34 of the family report). The conclusion that I have reached is that the father, in fact, has gained very little (if any) insight into his conduct and into the impact that his conduct has had (and continues to have) on the mother. As will become apparent in these reasons, this lack of insight on the part of the father, which became increasingly obvious to the Court during the course of the trial, has led the Court to conclude that it is in the child’s best interests to leave Australia and for him to go to live with his mother and his sister in New Zealand.
SECTION 60CA & SECTION 60CC
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) states:-
“Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC then sets out how it is that a Court is to determine what is in a child's best interests. Section 60CC(2) and (2A) state:-
“Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
The second stated primary consideration (section 60CC(2)(b)) is to be given greater weight than the consideration set out in section 60CC(2)(a). This is the importance that the Parliament has mandated that the Courts are to place upon “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” The evidence discloses that over a protracted period of time the father perpetrated family violence against the mother in the presence of the child Y and in the presence of the child X. The children witnessed physical violence perpetrated by the father against the mother. The family (comprising the mother, X and his sister Y) were subjected to, or exposed to, family violence perpetrated by the father for many years.
I note that in the additional considerations set out in section 60CC(3) the Court is required to consider any family violence involving the child or a member of the child's family (section 60CC(3)(j)). The Court is also to consider the nature and the circumstances surrounding/connected to the making of any family violence order (section 60CC(3)(k)). There is in place a family violence order in the current case. The order was obtained by the Police in March 2017. The mother and the children – X (the subject child) and Y are stated as “the aggrieved” (note the Tender Bundle marked as Exhibit 1, page 10). The father is the respondent. The protection order was made by a Magistrate in Queensland on 20 March 2017 and it requires the father to be of good behaviour for 5 years. The order was initially in place until 19 March 2019. The protection order was subsequently varied on 21 August 2017 and again on 18 April 2018 – the latter of which extended the protection order until 18 April 2022 (Exhibit 1, page 12).
I note that the family report writer is of the view that the move to live with the mother in New Zealand would be “hugely disruptive” for X. That may be so, but in weighing the various considerations (which will be referred to here in these reasons for judgment), the Court has come to the conclusion that such a disruption is in the best interests of the child. The Court is far from satisfied that this father has “demonstrated an openness to change” as referred to by the family report writer. In those circumstances the risk to the child remaining in the primary care of the father in Australia outweighs any disruption that may be experienced by the child moving to New Zealand to live with his mother and his sister.
The evidence in relation to family violence
I accept the mother’s evidence in relation to family violence and in relation to the pattern of abuse. When the parents commenced living together in April 2012 the abuse occurred every 3 to 4 months. The mother says that the abuse escalated to “every two – three weeks” shortly after the couple got married in 2015. The protection order obtained by the Police included an ouster order requiring the father to leave the family home. This occurred in March 2017. In June 2017 the mother agreed to take the father back into the family home. The mother then says that the “pattern of abuse”, as she refers to it (note paragraph 9 of her trial affidavit), occurred every 3 to 4 days. In paragraph 9 of the mother’s trial affidavit (filed 26 May 2021) the mother provides the following evidence:-
“9. It was not the only further outbreak of abuse; it was just my last straw of not being able to live this way anymore. The pattern of abuse, when it started after I moved in, was every 3-4 months, it escalated to every 2-3 weeks shortly after we got married then every 3-4 days after I took him back after he was evicted by the domestic violence order. I could identify the cycle from the counselling I received, and I could see the violent outburst coming. Mr Jennings would begin to snap at everything I did, I could do nothing right even when I tried to do things the way he told me to do them he always found fault. Mr Jennings would draw the kids into it, then it would erupt into a massive explosion, I would try to back away, many times I was driven into what Ms Z called "the emotional corner" and I would say it needed to stop , we needed to calm down and talk about it later . Mr Jennings would not stop, would not calm down. I was crying uncontrollably, and I could not think clearly, he was irrational, and he was continually on the attack. That was when the danger would occur. Mr Jennings would not let me leave or be alone. He often followed me to the bedroom from the lounge where I tried to get away and he would continue undermine me, calling me a slut, a whore or anything that could put me down, his verbal abuse continued me even when I was curled- up in the foetal position and a crying mess, having a panic attack on the bed, he continued to berate me while standing over me.”
I accept this evidence from the mother.
There is a large body of evidence in this case concerning family violence (and many other issues). I note what was stated by the Full Court of the Family Court in Baghti & Baghti & Ors [2015] FamCAFC 71 (at [63]) – that the Court, “… is not required to make findings in relation to all of the facts put in issue by the parties. A Court need only determine those facts that are necessary for the determination of the issues between the parties.” The High Court had previously pointed this out in the case of Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (“Whisprun”). At [62], Gleeson CJ, McHugh and Gummow JJ stated, inter-alia:
“62...A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.”
The Full Court recently supported that dicta from Whisprun in a decision of Eagle & Scarlett (No.2) [2020] FamCAFC 291 at [103]. It is also to be noted that such an approach is consistent with other Full Court cases such as Banks v Banks (2015) FLC 93-637 (“Banks”) – where the Full Court (when discussing the requirement to consider s.60CC factors) stated at [49], inter-alia:-
“49…It is also important to stress here that the requirement to ‘consider’ each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion”
I am aware that Banks related to an interim order – but it seems to me that the Court is required on both interim and final orders applications to consider the same statutory provisions. My view as to the applicability of Banks in this regard is consistent with another first instance decision of the Court in Calvert & Madock [2020] FamCA 219 at paragraph 46.
Furthermore, there is no requirement that the sections of Part VII must be considered in any particular order: Cox v Pedrana (2013) 48 Fam LR 651 at [29]–[31] (“Cox & Pedrana”); Beckham v Desprez (2015) 55 Fam LR 310 at [31]. In particular, the Full Court stated in Cox v Pedrana at [31]:-
“31. While reference to a “legislative pathway” is, of course, an accurate descriptor of what individual sections within Pt VII of the Act require when taken together, care must be taken to not permit arguments about form to take precedence over the substance of what Pt VII requires. Equally, care must be taken to ensure that the use of such an expression is not to be a suggestion that a particular order must be followed if error is to be avoided…”
I have referred earlier to the decision in Banks. There is a reference there to situations where the evidence “leads inexorably to a particular conclusion”. Given the extent of the evidence concerning family violence in this case and the central findings that will be made in these reasons for judgment – my view is that the weight of that evidence does lead to a particular conclusion – namely that the child should be living with the mother in New Zealand. I am aware that the family report writer refers to certain reasons why the child ought to remain with the father – but I have considered these aspects in detail later in these reasons for judgment. For present purposes it is important for the Court – in a somewhat chronological way – to refer to the evidence of family violence. I reject the father’s testimony that he did not “frequently threaten Ms Jennings with violence” (father’s trial affidavit, paragraph 100). I begin my consideration of the evidence of family violence in the case by noting that I accept the following evidence from the mother:-
(a)Shortly after the parties moved in together in April 2012 the father held the mother down on the bed to stop her getting up to go to attend to young Y who was crying at the time (at night). Y was aged 3 at the time. The father did eventually let the mother go to attend to the child (mother’s trial affidavit, paragraph 44) (note s 60CC(3)(j)); and
(b)Within the first two months that the parents were living together the father had sat the mother down on two occasions to explain to her all of the things that she was doing wrong (mother’s trial affidavit, paragraph 45).
The July 2014 incident
I note the following evidence from the mother:-
“47. Mr Jennings and I got into an argument over something the night before; I cannot remember what it was. He slept downstairs and, in the morning, when I went down I sat by him on the couch. I had made coffee for both of us. Mr Jennings did not want to talk about it, I said no problem and just sat there drinking my coffee.
48. Mr Jennings sat quiet for about a minute then erupted in anger. I could not understand what was happening. He blamed me for starting the fight when he told me he did not want to talk about it, I explained I did not, this escalated to him throwing coffee cups at my feet breaking them on the tiles and smashing around my legs. He threw a crystal bowl onto the tiles that smashed and tried to throw the water filter off the bench 3 times but could not. I remember asking what was happening right now as I had never seen anything like this behaviour before. He was yelling something about being a cunt and this is what cunt's do and, I cannot remember much except I started to pick up the lemons from the floor that were in the crystal bowl and not understanding any of his response. He went upstairs to wake Y up as he wanted me to tell her something and kept saying "Mummy wants to tell you something Y".
49. I did not know what I was supposed to tell her so I told her to go back to bed and I couldn't understand why he had to get her involved. Then he threw a full sold plastic water bottle at my sternum that winded me and dropped me to the ground. He then stood over me still yelling and then left me there and went to the office. He later claims he tried to hit the glass door behind me, but he knows how to aim well as he throws knives at target boards etc. Y came down the stairs after he left to find me cleaning up all the glass etc and asked me "why are you cleaning that up mummy when Mr Jennings was the one who made the mess?…”
I accept this evidence from the mother.
The father denied throwing the crystal bowl onto the tiled floor, causing it to smash. The father said that he slid the crystal bowl off the table (or bench) onto the tiled floor. The father gave that evidence as though it made an appreciable difference to his culpability. In itself, that answer from the father showed a lack of insight (I note the Transcript 17 June 2021, p.128 line 39). In any event, I accept the mother’s version. The father threw the crystal bowl onto the floor knowing that it would smash and this was obviously done by the father in an attempt to scare and intimidate the mother. It had the desired effect. In fact, the father’s version in the witness box is even contrary to his own evidence in his trial affidavit. I note that paragraph 98 of the father’s trial affidavit confirms that he did in fact throw the crystal bowl onto the floor in order to smash it.
I also accept the mother’s evidence that the father threw coffee cups at her feet, breaking them on the tiles. The coffee cups smashed around the mother’s legs.
I accept that the father went upstairs and woke up Y as stated in paragraph 48 of the mother’s trial affidavit. The father’s decision to walk up the stairs, wake up the child Y and involve Y in a violent domestic dispute that he was then perpetrating indicates a very serious flaw in the father’s character. For reasons that will become apparent, on the evidence before the Court – I am not satisfied that the father has addressed this flaw adequately.
I also accept that the father threw a full plastic water bottle at the mother’s sternum. This winded the mother and caused her to drop to the ground. The mother was pregnant at the time – although apparently she did not know it. I accept that the father then stood over the top of the mother and yelled at her before he left and went to work at the “office” (note paragraph 49 of the mother’s trial affidavit).
The father, in another example of his lack of insight, accepts that he threw the water bottle. However he says that he threw the water bottle at a sliding door and the mother walked into its path and the water bottle collided with the mother. I reject the father’s evidence in this regard. I find that he has lied to the Court in relation to that incident. I find, as a fact, that the father threw the water bottle directly at the mother in an attempt to injure, intimidate and scare the mother. All three desired effects were achieved by the father.
In the witness box during the course of this trial, the father had given evidence concerning his version of events – namely that the mother had walked into the path of the flying water bottle – as though (once again) it made any appreciable difference to the level of his own culpability in respect of the incident. In any event, I find that he has lied to the Court in relation to that issue (note the Transcript 17 June 2021, p.135 line 7).
Incident in the car on the way to City E
I accept the mother’s evidence that the couple were in the car on the way to City E when the father lashed out and hit the mother’s hand, causing her to drop a phone. The mother had a red welt on her wrist and the back of her hand which caused swelling, the raising of the vein and pain in her wrist for some days after.
The father maintained that he was only trying to grab the telephone and that he was not trying to hit the mother. I reject the father’s evidence in this regard. I accept the mother’s version of the events.
The mother’s attendance (with the children, X and Y) at a Women’s Refuge in November 2016
I note the following evidence from the mother contained in paragraph 51 of her trial affidavit:-
“51. Mr Jennings had also threatened me with violence. For example, in 2016 I attended a women's refuge because Mr Jennings threatened to strangle me if I had not left the house with the kids by the time he got home. He said that he did not care if the kids saw or not. He made this threat because I repaid money that was owing to my brother. My brother had given us money for a business that did not go ahead. Mr Jennings said I should have kept the money for a house deposit for us, even though it was not given to us for that purpose, and that by giving it back to my brother I was prioritizing my family over him.”
I accept the evidence from the mother contained in paragraph 51 of her trial affidavit.
I note that the father gave some evidence about this in his trial affidavit. The father stated as follows:-
“101. In 2016 I discovered Ms Jennings had given her family approximately $30,000.00.
102. This was upsetting because I would always talk to Ms Jennings about the plans that I was proposing in respect to our finances. To make the repayment without my input I found upsetting.
103. Ms Jennings advised me about her paying her brother back as we were driving back from F Town. We had not yet reached H Town. I asked her to pull the car over so I could get out and compose myself. She did so. When I got out of the car Ms Jennings then drove off leaving me to walk back to Suburb G which took hours. I didn't have my wallet, I didn't have my phone.
104. When I arrived home I was furious. We had an argument. I told Ms Jennings to, ‘Just get out of the house cause all I feel like doing is holding your throat until you stop breathing ‘. At no stage was Ms Jennings in danger. I would not have carried out the threat. I understand it was the wrong thing to say.”
I accept the mother’s version of events that she had in fact repaid her brother a loan. She had not “given her family approximately $30,000” – as asserted by the father in paragraph 101 of his trial affidavit (emphasis added).
Indeed the father acknowledges that it was not a “gift” in paragraph 103 of his trial affidavit where he talks about the mother “paying her brother back”.
The father maintains that at no stage was the mother in danger. The father maintains he would not have carried out the threat. The mother did not see things the same way. The mother feared for her life. The mother took the children and left the family home and went to stay in a women’s refuge in J Town. I accept the mother’s evidence in relation to this incident.
Further evidence of family violence perpetrated by the father – including the father preventing the mother from maintaining her connection to family and friends
I accept the mother’s evidence that the father would keep tabs on her movements as a way of controlling the mother. I note the evidence of the mother contained in paragraphs 52 and 53 of her trial affidavit:-
“52. If I did have a client in the late afternoon or on a Saturday, he would make sure to come to the office (his U Company business where I ran my business from the mezzanine floor inside the building) and wait for me as a 'surprise' and 'bring X down to see me'. I felt that this was his way of controlling and keeping me in check to make to make sure I wasn't having an 'affair'.
53. In addition to being verbally and physically abusive, Mr Jennings was very controlling, and he tried to isolate me from my family. My parents lived on the outskirts of Brisbane, but we did not see them often when I lived in Location C because Mr Jennings did not like me spending time with my family. When I visited friends or family, he would make me feel guilty and would message me constantly when I was out. He would not let me take X to see my parents. I was able to go visit my friend Ms K, however he would message me always asking when I was to be home, saying he misses me and wanted me to come home earlier, using reasons like ‘I thought we could go for a nice coffee before X had to be picked up’, or ‘I was hoping to have lunch with you, take you some place nice’.”
I accept this evidence from the mother. Specifically, I accept that the father discouraged the mother from visiting friends or family. I accept that he did this by making the mother feel guilty and by messaging her constantly when she was out.
I accept the mother's evidence that the father tried to undermine her own relationship with her parents. I note and accept the mother’s evidence contained in paragraph 55 of her trial affidavit:-
“55. Mr Jennings tried to undermine my relationship with my parents. He would say bad things about my parents and try to convince me they were bad people. My time with them was limited and each time I would go and see them, he would make me feel bad about going to see them. Mr Jennings stated once; "Until your parents step up and be grandparents and babysit X when we want them to they are not allowed to see X". One time when I took X, he called the police on me. He would not allow X to attend Y's 9th birthday party, because she wanted to include everyone. Which included, Mr Jennings, X, me, Y's father her grandparents and her aunty and cousin on her dad's side.”
Further, I accept the mother’s evidence concerning the March 2018 incident when the father telephoned the police because the mother had taken X on a day trip to see her parents in City L. I accept the following evidence from the mother in relation to what occurred:-
“56. The incident involving Mr Jennings calling the police occurred in March 2018. My parents were house-sitting at City L, I told Mr Jennings earlier in the week that I was taking the kids to see my parents for Easter and to take the kids 4-wheel driving on the beach and he was welcome to come. When the day arrived, I asked Mr Jennings what he was doing to which he replied "working". I again told him of my plans and Mr Jennings said I was not taking X. I stood my ground as I believed X was entitled to have his grandparents in his life and it was planned to be a fun day. Again, I said he was welcome to join us. He refused and tried to block my way out, I squeezed passed him in the hall. Mr Jennings contacted the Police. On the drive to City L, I got a call from the Police enquiring what I was doing (Mr Jennings had reported that I had taken his son and claimed to me later that I was conducting emotional abuse towards him as he had said I was not allowed to take X). I informed the police that I was on a day trip and they said something like ‘No worries, have a good day’.”
I also accept the mother’s evidence that on Y’s ninth birthday she wanted to spend the day with the extended family. I accept the mother’s version of events that the father refused to allow X to attend.
It is timely to include here the definition of family violence contained in the Act. Section 4AB of the Act states as follows:-
“4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.”
The evidence of the mother contained in paragraphs 52, 53, 55 and 56 of her trial affidavit (and, indeed, in certain other parts of the evidence) is further evidence of family violence perpetrated by the father in this case. Indeed, the father’s prevention (and his continual attempts to prevent) the mother from keeping her connections with her own family is a specific kind of behaviour included as an example in section 4AB (2)(i) of the Act. This conduct by the father amounted not only to family violence against the mother, but also family violence against the child X. It also constituted family violence against the child Y – to the extent that Y was impacted.
This part of the evidence is crucial in the circumstances of this case. The family report writer has relied upon her impression that the father “has demonstrated an openness to change”. In this part of the evidence it is very clear to the Court that the father has not demonstrated any such openness to change. Even when he was giving evidence in the witness box, the father maintained the view that his conduct in relation to the March 2018 City L incident was reasonable. The father’s view was that he wanted to spend the day with X. Indeed, this was an attempt by the father to stop X seeing the maternal grandparents in City L. I apprehend from the evidence that the father seemed content for the mother to go to visit her parents in City L. On a close analysis of the evidence, this indeed is a direct attempt at control by the father and an attempt by him to prevent the child X from maintaining a relationship with his maternal grandparents. It was only because of the mother’s determination on that day that X got to see his maternal grandparents. It was apparent from his evidence in the witness box at the father completely lacked insight in relation to this issue.
In addition, there is the ongoing issue concerning the maternal grandparents. The maternal grandparents live in Brisbane. The fact that the father himself might not like the maternal grandparents is irrelevant. The father’s view is that the maternal grandparents have not attempted to make contact with him about seeing X and that, so far as the father is concerned, is the end of the matter. I reject that position taken by the father. The father is the child’s primary carer. Noting the findings made in this case concerning the level and the extent of family violence perpetrated by this father against the mother and the children – it is easy to see why it would be the case that the maternal grandparents have no fondness for the father. But the father is the primary carer of their grandchild. The father should have reached out to the grandparents. By ignoring the maternal grandparents the father is causing harm to the child X. The father does not realise this. This aspect has been completely missed by the family report writer – not to mention the Independent Children’s Lawyer.
This is a clear example of the father’s lack of insight and a clear example of the fact that he has not demonstrated any “openness to change” as concluded by the family report writer.
Further evidence of the repeated derogatory taunts by the father
I note the evidence of the mother contained in paragraph 58, part of paragraph 59 and paragraph 60 of her trial affidavit. In those paragraphs the mother has provided the following evidence:-
“58. I would attend development classes and every time I did any […] learning classes, when I came back feeling amazing and good in myself, sharing what I learnt with Mr Jennings. Mr Jennings would start to undermine me, and he would make sure that over the next few days to start an argument with me to ridicule and make me feel stupid and to lose confidence in myself. I got to the point of not bothering to go out much as he would make me feel guilty, I did not see my parents much as I could and not take X without causing trouble or hearing negative things about them over the following days.
59. Mr Jennings had undermined any confidence I had in myself, he wore me down, emotionally, mentally and physically. I learnt early in my relationship with Mr Jennings to not be myself. During arguments he would belittle me and put me down. The argument would last for days with him continuing the ill treatment of me, punishing me by withholding affection, sleeping in another room, remove his affection for Y and treating her indifferently.
…
60. I learnt that it was always either my fault for the things he did or Y's fault. He would make light of any abuse, claiming he would always take responsibility of what he did but I never took responsibility of what I did. When asked what it was I did he could not/would not tell me. He claimed all the things he physically did to me were accident, and not intentional so he didn't mean it.
I accept this evidence from the mother.
The March 2017 incident and the making of the protection order
It is convenient to deal with some aspects of the evidence out of chronological order.
I accept the following evidence from the mother from paragraph 104 of her trial affidavit:-
“104. On 13 March 2017, we were at home and I was getting the children ready for school and day care. Mr Jennings was in one of his moods, saying that he was going to break up with me. I said that was ok, so he started moving all X's things out of X's bedroom into the main bedroom because he was going to move into X's room.
105. I asked him to wait until the children were out of the house. He said he didn't want to do, demanded I help him move Xs cot from his room into the master bedroom. While in there he was saying more horrible things to me so I put my end of the cot back on the floor and told him he can do it himself when we are gone and I preceded to walk back to the master bedroom and that's when he then smashed his end on the floor and broke Xs bed. I had X on the changed table in the master bedroom and Mr Jennings came in continuing the abuse. When I went round to get Xs clothes Mr Jennings pushed me hard that caused me to fall onto the bed , and I fell back onto Y . She fell also and suffered a bruised elbow as it hit the headboard with my fall.
106. I got up and went back to X and Mr Jennings then pushed me into the bookcase and his […] fell on me. When I tried to move past him, between the bed and the wall, he then hit me across the left ear/jaw with a karate move that pushed me onto the bed again. I had ringing in my ears for several days after this. I still have issues today in my jaw on that side since the incident due to the force of the hit.
107. He said to Y "This is all your fault" as he walked out the bedroom door. I got up and changed X, and then Mr Jennings took X from me and ordered me to go to kitchen to fix X's bottle for day care. He came into the kitchen after me, without X, and he picked up the child gate and threw it at me. This bruised my ankles. He also threw a metal screw from the gate at me, and it hit my hand, causing a bruise and tearing the skin, I have a small scar from this.
108. Mr Jennings then went back and grabbed X and said he was taking him to kindy and left the house. I took Y to a friend's house and then to school. My friend arranged for someone from the M Group to come and help and me and they encouraged me to attend my doctor.”
The father was, once again, on 13 March 2017, unable to control his anger.
The father accepts that he did strike the mother on that occasion – but he seeks to downplay this assault by maintaining it was a “slap” rather than a “karate move”. I accept the mother’s version.The child Y was once again caught up in the violence then being perpetrated by the father. Y suffered a bruised elbow. At the time of the incident Y was eight years old. Nonetheless, the father told the eight-year-old Y, “this is all your fault”. This incident would have been terrifying for Y. Y witnessed the entire event. X was also present on a change table. At that stage he was two years old.
The mother took Y to school that day and the mother’s friend arranged for someone from the M Group to help the mother. The mother was encouraged to attend a doctor. The doctor’s contemporaneous notes are consistent with the mother's version of events. I note the following evidence from the mother in her trial affidavit:-
“109. The doctor encouraged me to go to the Police to report the incident so, on 14 March 2017 I attended the N Town Police Station. The Police applied for a protection order naming me and both children. The following Monday the court [made] the DVO with one of the conditions that Mr Jennings cannot come within 50 meters of us. The Court also ordered him to move out of our home that day. Attached and marked with the letters MS JENNINGS 4 (Pages 43 to 52) is a copy of the Application for Protection Order taken out by Senior Constable W of N Town Police Station and the Temporary Protection Order.
110. When the Protection Order was taken out, Mr Jennings had to surrender all his weapons to the police. The order forbids him having any weapons. Mr Jennings had a katana (a small Japanese curved sword) that sat by his bedside , a gun, knives , num-chuks and many other weapons in a duffel bag , many illegal in Australia . He got them out a few times to show me so I was aware he had them. Mr Jennings previously made sure I would not tell the police about his other weapons when they came to take his gun as I had already made things worse for him. The police took his handgun only from him.
111. Mr Jennings moved into a caravan at O Town.”
I accept all this evidence from the mother. To the extent that the father denies any of the facts contained in the mother’s paragraphs above – I reject the father’s denials.
The mother’s more complete version of what occurred on 13 March 2017 can be found in the “grounds” for the protection order which are to be found from page 46 of the mother’s trial affidavit – as part of her annexures. The information provided to the police has been included by the police in the application for the protection order. The information contained there was provided by the mother to the police on 14 March 2017. I accept that the detailed information contained at pages 46, 47 and 48 of the mother’s trial affidavit are accurate and reflect what occurred in the March 2017 incident. The information is quite detailed and I will recount it here in these reasons – because it provides a graphic account of the mother, once again, having to deal with the father in a rage and the father perpetrating family violence upon her and the other members of the family.
“6. Grounds for a protection order
On the 14th day of March 2017 at 10:00am the aggrieved attended N Town Police Station to report a domestic violence incident that occurred on the 13th day of March 2017.
The respondent in this matter is Mr Jennings.
The aggrieved in this matter is Ms Jennings.
Both parties have two children together Y DOB: …2009 (from a previous marriage) and X DOB: …2015.
Both have been together in a relationship for five years and we have been married for 18 months. We lived together in house until yesterday 13th day of March 2017.
The aggrieved stated to police that previously in the relationship she had to go to a women's refuge in November 2016 as Mr Jennings threatened to strangle her if she did not leave the house. The aggrieved I left the house and stayed in a refuge for a period of two weeks. We parties got counselling and she moved back into the house· after about two and a half weeks of living away.
The relationship continued steadily with its ups and downs however the aggrieved found that she had to walk on eggshells whenever she was around Mr Jennings. I would describe Mr Jennings's behaviour like Jeckle and Hyde. He would be great one minute and then he would just snap and he would say some really nasty things and then a couple of days later he would be lovely again.
On the 12th day of March 2017 at around 09:00pm Mr Jennings and I had an argument in relation to personal issues and me not having his back and not defending him enough when it came to my ex-husband and my family.
Mr Jennings was angry over a mix up over child hand over times regarding my ex-partner and my daughter Y who was to be dropped off at home that afternoon. In the morning of the 13th the argument got physical when l was in the X's bedroom when Mr Jennings got angry as I walked out the room and he smashed the bed on the floor.
The aggrieved went back to the bedroom to get dressed and take the kids to school. Whist in the main bedroom Mr Jennings has pushed the aggrieved using his palm onto he chest, she fell backwards onto the bed and during the fall she has accidentally fallen on Y her daughter who was sitting on the bed. Mr Jennings said "Oh what, I pushed you".
The aggrieved then had X on the change table changing his nappy Mr Jennings pushed the aggrieved against the cabinet and all the swords fell from the top of the shelf onto the floor breaking the cabinet. As the aggrieved went to walk past Mr Jennings and he has karate stuck the aggrieved with his right hand, using his palm in a karate move to hit me on the left ear. The aggrieved ear immediately started ring and her jaw hurt and she fe1l back onto the bed. At this time her daughter Y called out "Mr Jennings stop it, stop hurting my mum".
The aggrieved told Y to go to her bedroom to get ready for school and to keep her out of Mr Jennings's way. The aggrieved then went to the kitchen and the aggrieved was getting the bottle ready and he started arguing again. As I the aggrieved tuned at the sink she was hit by a child gate which Mr Jennings had picked up thrown at her. It hit the aggrieved on the ankles and foot. Mr Jennings said “I hope that hurt".
The respondent then picked up a screw from the child gate and threw it at the aggrieved hitting her in the right hand causing it to bleed. He took X to day care and I got Y organised and I took her to school.
As soon as Mr Jennings left the house the aggrieved I took photos of the damage to the property and her own injuries. The aggrieved then went to see her therapist who recommended she tell police. The aggrieved then contacted the M Group came and arranged contacts for crisis accommodation.
The aggrieved then attended her Doctors at P Clinic Q Street, O Town and he documented her injuries.
She then attended N Town Police Station on the 14th day of March 2017 and reported the matter to police and gave Police photos of the damage to the property and photos of her injuries.
Police feel that it is necessary and desirable to protect the aggrieved as they are of the opinion that DV will continue and the Aggrieved and her children will be protected by an order. The respondent has progressed from verbal threat to physical violence of which there is evidence and police believe an application is necessary to protect the aggrieved and her children.”
I accept the evidence of the mother contained in her trial affidavit concerning this incident and I accept the evidence of the mother contained in the protection order application (pages 46, 47, 48 of her affidavit). To the extent that the father does not admit any of this evidence – I reject his denials.
After the making of the protection order the father moved into a caravan at O Town. The mother needed a flatmate in order to continue to pay the rent. The mother was not receiving adequate financial support from the father. The father suggested that his friend, Mr R would be a suitable flatmate. Mr R moved into the premises as a flatmate with the mother.
Mid 2017 – when the parties were separated
During that period between March 2017 and August 2017 – the parties were separated. That is the mother’s evidence. I accept the mother’s evidence. There may well have been some communication between the parties during that time. I accept the mother’s evidence that the father was endeavouring to reconcile and that eventually led to the father sending a photograph of the rope referred to later in these reasons.
During the period when Mr R was living in the house with the mother, the mother had, on one evening, sent the father a message asking if the father wished to come around to the residence. The father messaged back saying that he did not wish to attend.
Later on the father did attend the residence and he says that his intention was to surprise the mother. Once again, the view that I have formed is that the father was checking up on the mother. The father tried to paint this evidence in such a way that it was a playful game for him to show up unannounced and “surprise” the mother. I accept the mother’s version of events in relation to this particular incident. Once again, this incident resulted in a violent outburst perpetrated by the father. I note the following evidence from the mother in her trial affidavit:-
“120 A few months later, Mr Jennings had told me that he had been going to counselling and we were amicable with each other over this time so I sent an invite to Mr Jennings via text earlier that afternoon to come have a meal with the kids and a drink. Mr Jennings declined saying he was in his pj's and watching something on the TV he was interested in. Mr R and I sat in the lounge room and talked until quite late. Mr R had played his guitar for a while. Mr R was very emotional that night because of what was going on in his world with his family.
121. I had gone to my room, got changed and went to bed. I could hear Mr R calling out. I sent Mr R a text to be quiet as I did not want him waking the kids. Mr R continued to call out and I got out of bed to go and see if he was okay. Mr R was in his room and I went in to talk to him to see if he was okay.
122. Mr Jennings busts into Mr R's room. I was at the end of Mr R's bed near the door and Mr Jennings started yelling at me. I think he was calling me a whore. I cannot remember his exacts words. I walked past Mr Jennings and went back to my room.
123. Mr Jennings then came into my room, calling me a whore and a slut. I saw that Mr Jennings had a small pair of binoculars in his hand and knew it was his night vision binoculars. Mr Jennings roughly grabbed my breast asking if I liked it and then grabbed me by my crutch. I pushed his hand away from me and defending myself against him. I kept telling him to get out.
124. Mr Jennings grabbed my phone and threw in on the floor in the lounge room and it smashed, with the glass screen going across the floor.
125. Mr Jennings then left.
126. I heard a knock on the door and when I opened it there were police there. They asked what happened here and came inside. They saw my smashed phone, Mr R’s broken guitar and a smashed bowl on the lounge room floor. I told the police what had happened, even mentioning that I had invited Mr Jennings around earlier to see the kids, but he declined.
The father maintains that he entered the residence and found that the mother and Mr R were engaged in sexual intercourse. The mother denies that she was engaged in sexual intercourse with Mr R. I accept the mother’s evidence. As to precisely what was the situation – I am not certain. I do not need to decide that issue. What I do know is that the father arrived at the premises unannounced at a time and when there was a protection order in place. I note that he had been invited to attend earlier but had declined. I note that his attendance at the mother’s place of residence was only to occur as agreed in writing between the parents. I note there was no agreement in writing which would cover the time when the father showed up at the house. The view that I have formed is that the father was in fact loitering and spying on the mother. I note and accept the following evidence from the mother:-
“132. After Mr Jennings and I reconciled, he told me of what he saw that night.
i. Mr Jennings had cut a key to the house prior to giving me the keys after he was ordered out by the court.
ii. Once it was dark, he came over and watched us outside the house.
iii. He was able to see everything because he had his night vision binoculars.
iv . He informed me later he saw Mr R and I talking in the lounge for ages,
v. He saw Mr R playing his guitar, saw Mr R crying.
vi. He saw me head to my room.
vii. He said he went around to my bedroom window and stood outside against the fence and watched me undress and put my pj's on and sort myself out for bed .
viii . He saw me reach for my phone once in bed.
ix . He saw me get up and head out my bedroom door.
x. He let himself in the house.
xi. He turned off the water Budda feature I had in the hallway and the kid's night light in the hallway so he was in darkness.
xii. He then stood outside Mr R's door,
133. The house has a 7ft fence around it. It is a duplex with another smaller unit at the front. There are blinds on the patio glass doors and in my bedroom. I only kept low lights on in the evening and it is impossible to see outside from inside. I have a low light bedside lamp on in my room. On that night, the blinds on the patio glass door in the lounge room were not drawn and blinds in my bedroom were not drawn.”
I accept this evidence from the mother.
The evidence of the mother contained in paragraph 132 of her trial affidavit is disturbing for a very large number of reasons including:-
(a)The fact that the father had a key cut to the house before returning the house keys to the mother when the ouster order was made by the Magistrates Court. This clearly shows premeditation on the part of the father and an intention on the part of the father to enter the mother’s dwelling unannounced, uninvited and contrary to Court orders.
(b)The fact that the father remained outside the dwelling for a long period of time using night vision binoculars to spy on the mother and the flatmate – in circumstances where the father had declined an invitation to attend the dwelling that evening.
This conduct on the part of the father is an example of behaviour that does constitute family violence in the particular circumstances of this case. Indeed, this kind of conduct by the father is in fact referred to (as an example of family violence) in section 4AB(2)(c) of the Act. There is no definition of the word “stalking” in the Act. In the circumstances of this case – the view that I have formed is that the father’s conduct (as found by the Court) does constitute stalking. It is not necessary for this Court to embark upon a consideration as to whether or not a crime has been committed. By reference to section 140 of the Evidence Act 1995 (Cth) (‘Evidence Act’), I am mindful that a finding that the father engaged in conduct which constitutes “stalking” of the mother is a serious issue. On the civil standard of proof (having regard to section 140(2) of the Evidence Act – I am satisfied that the father engaged in that conduct and that it does constitute stalking. For instance, the father was outside the dwelling for a long period of time. The father was spying on the mother and the mother’s flatmate. My view that the father’s conduct on the evening in question constitutes stalking is supported by the surrounding circumstances in this case – in particular the facts as found by this Court. The father had engaged in family violence against the mother for a long period of time. The father had attempted to exercise power and control over the mother. That much is clear from his conduct throughout the relationship (and, indeed, after the end of the relationship). The father had physically and verbally abused the mother during the course of the relationship. The father had intimidated the mother and frightened the mother through his conduct – over a long period of time. In that context – the father’s actions in mid-2017 remaining outside the mother’s dwelling at night for a significant period of time with night vision binoculars amounts, in my view, to stalking – as that term is commonly understood. It is not necessary for this Court to be satisfied that “stalking” as defined in any criminal legislation has been proven. Matters in this Court need only be proved on the civil standard on the balance of probabilities – having regard to section 140 of the Evidence Act and noting cases such as Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362 and also noting the decision of the Full Court of the Federal Court of Australia in Qantas Airways Ltd v Gama (2008) 167 FCR 537 per Branson J at [128] and [139].
Further evidence of stalking and intimidatory conduct by the father
During that period of time that Mr R lived as a flatmate at the mother’s residence – Mr R’s young daughter found a voice recorder in his room behind the bed head. The mother confronted the father about this and the father admitted to placing the voice recorder in Mr R’s room and admitted placing another voice recorder in the bookshelf in the dining room; placing a voice recorder under the coffee table in the lounge room and a voice recorder under the mother’s bedside table in her bedroom. I note the further evidence from the mother in paragraph 134 of her trial affidavit that:-
“134. Mr R's toddler daughter found the voice recorder in his room behind the bed head so I confronted Mr Jennings on the phone and he admitted that he had placed a voice recorder in the house in Mr R's room. Aside from the one in Mr R's bedroom, he admitted that he had placed a voice recorder in the bookshelf in the dining room, a voice recorder under the coffee table in the lounge and a voice recorder under my bedside table in my bedroom. Mr Jennings said he had recovered them and listened to them and then planted them again without me knowing. I found the voice recorders and deleted the tapes which then caused an argument between Mr Jennings and myself as "they were not mine to delete".
I accept this evidence from the mother. I accept that the father told the mother that he had placed the voice recorders in the house. I accept that the father did in fact do this. I accept that Mr R’s young daughter found one of the voice recorders.
The father said that he had been going to counselling. The father threatened to kill himself. He had taken photos of a rope in his boot and also taken photos of a rope hanging from a tree branch. This was highly manipulative conduct by the father. In his trial affidavit the father states that:-
“112. I do regret, on an occasion, telling Ms Jennings that I was going to kill myself. I recognise that me threatening to do that to myself is an act of domestic violence. I do not have any suicidal intentions and I certainly do not have any suicidal intentions now.”
I accept that the father did not have any suicidal intentions whatsoever. This leads the Court to conclude that the only reason he conducted himself in that manner was in an attempt to manipulate the mother and to get her to agree to allow him to move back into the family home. This conduct by the father was utterly reprehensible.
Through the father’s manipulative conduct – he managed to persuade the mother to agree to permit him to return to the relationship and to the family home. I note paragraph 146 of the mother’s trial affidavit:-
“146. I did reconcile with Mr Jennings in August 2017. This happened when he convinced me that he had changed. “
I accept this evidence from the mother.
Evidence of further family violence perpetrated by the father after the parties reconciled in August 2017
I accept the mother’s evidence that, after the parties reconciled – the violence continued. Indeed, the violence worsened and the father’s angry and violent outbursts occurred every 3 to 4 days. As noted already in these reasons – I accept the mother’s evidence in this regard. The father was still physically violent towards the mother, including pushing her into a shower screen door, “… and having it fall back off the hinges and against the shower back wall with me still on it”. I note that this evidence is contained in paragraph 153 of the mother’s trial affidavit. I accept the mother's evidence. I also accept that it was that incident that led the mother to remove the child Y from the residence – sending Y to live with her father, Mr B.
As noted in these reasons – from the time that the mother agreed to allow the father to return to live at the residence in August 2017 – the family violence started occurring every 3 to 4 days. That is when the mother realised that she was in real danger. I note paragraph 147 of the mother’s trial affidavit:-
“147. From that date, the domestic violence then started occurring every 3 to 4 days. That was when I felt I was in real danger, Mr Jennings would not let me be alone, often following me to the bedroom from the lounge where I tried to get away and he would continue the fight, verbally abusing me even when I was curled up in the foetal position and a crying mess, having a panic attack on the bed, he continued to berate me. If I stayed, defending myself, my actions, my parents, my daughter, and I didn't break down in tears, things would be thrown, dining chairs smashed and in the end, I was always the crying mess, he had his outburst, his abusive words lay ringing in my ears and he would carry on like nothing happened, even whistling to his own tunes, while I tried to pick myself up, remain there for the kids, cooking the meals. Most of these fights occurred during the day when the kids were at Daycare and school, but unfortunately not all fights. Quite a few were had in the car where we couldn't escape from him.
148. Mr Jennings would bring up the night when he broke into my place and claimed that I breached him because he found me in bed with Mr R and that I had been unfaithful to him. This is untrue, Mr R and I never had any sort of relationship.”
I accept this evidence from the mother and I accept the mother's evidence generally in relation to all these matters.
October 2017 incident
There was a further incident of domestic violence which occurred on 10 October 2017 at about 3:30 pm in the afternoon. I note pages 4 and 5 of Exhibit 1 (the Tender Bundle). From page 4 of Exhibit 1, the following facts are noted:-
“The Respondent and the Aggrieved are subject to a current Domestic violence order that was issued in the N Town Magistrates Court on 21 August 2017. The respondent was present in Court when the order was made.
The male currently before the court is named as the Respondent on the Protection Order and is the defendant now before the Court.
On Tuesday the 10th October 2017 at about 3:30pm the Respondent and Aggrieved have become involved in a heated argument over a personal issue.
Police were called by the aggrieved to attend her home residence after an altercation with the defendant. Here she informed Police of what had happened. She stated they had been arguing in their home in the garage/office area. The aggrieved has asked the respondent to leave as he was yelling at her. As she was asking him to leave he has grabbed hold of her right index finger and bent it back the wrong way. The aggrieved has again asked the respondent to leave the house.
The respondent has then in anger knocked over a fold out Sushi Screen and smashed it into several pieces which at this point he has thrown it in the direction of aggrieved. The aggrieved has again asked him to leave where he has refused and sat down in a chair. The aggrieved has then left the residence and called Police.
On the 18th October 2017 the defendant has attended N Town Police station voluntarily. He denied pulling the aggrieved by the finger but made full admissions to breaking the screen. He apologised for his actions and stated he was under a lot of stress with work and was also receiving nuisance txt messages from an ex employee.
The defendant stated he knew the conditions on the order and that he had breached the order by damaging the screen.
The defendant was given at NTA for 8th November 2017 in the N Town Magistrates Court.”
The father denied to the Police “pulling the aggrieved by the finger”. The father made full admissions in relation to breaking the screen. In his evidence to this Court, the father admitted to pulling the mother’s finger – but denied bending the finger back. I accept the mother’s version of events. I note the inconsistency between what the father had told the Police and what the father has told this Court. Having regard to page 4 of Exhibit 1 – it appears to be the case that the father lied to the Police. The father denied pulling the mother’s finger. Under oath to this Court – the father accepted that he pulled the mother’s finger. This is another instance which confirms in my own mind the correctness of the conclusion that I have drawn – to the effect that the mother is a more reliable witness than the father.
Notwithstanding this pattern of violence – the relationship continued.
Further evidence describing the abuse and the pattern of abuse
In the witness box the mother was able to describe in graphic detail the pattern of her life with the father – especially during that period after August 2017. The mother had described the situation – generally during the course of the relationship with the father – as having to “walk on eggshells”. This evidence is contained in what the mother told the police in early 2017. The mother described the father’s angry eruptions and outbursts. The mother said a discussion would be taking place and if the mother said the wrong thing then – there would be consequences. The mother gave the following evidence on Friday, 18 June 2021. At the Transcript from page 333 line 18, the mother provided a detailed account of her life as a victim of family violence at the hands of the father. This particular piece of evidence related to the incident which precipitated the mother’s departure from Australia in July 2018. I accept that the mother made a very difficult choice – leaving her children behind – and fleeing to New Zealand. I note the mother was cross-examined by Mr Dodd (counsel for the Independent Children’s Lawyer) and at the point in the Transcript just referred to the following evidence is contained:-
“MR DODD: Well, what was the incident that led directly to you going overseas?
MS JENNINGS: It was a discussion in the morning that we had had. The company that we were part of […] had received the vitamins and everything else like that to actually help reduce weight in obese people. And so we had got the machines and everything for my business, and all that sort of stuff, and we had previously before been in discussions about what Mr Jennings wanted to do with it and everything else. They come in. I was really super excited. I went into the bedroom to talk about the plan. And I wanted to have him join, if he wanted to – to do the exercise-and-everything side of the things while I do the other side of the things – to do that. He then wanted to then proceed again to tell me what he wanted to do with the business, and I said, “I know what you want to do, but I’m just really excited about this. Can you” – and I saw the look. I cut him off. It was that simple. I cut him off. I interrupted him.
MR DODD: Right?
MS JENNINGS: ‑‑‑And I apologised for interrupting him, said, “Go. You go. Speak,” and he goes, “No,” blah, blah, blah, blah, blah, blah. I said, “No – no.” I said, “I’m sorry. You go. Speak,” and that was it and it was there. That lasted all day right through until the evening. I’m an emotional mess. He’s still yelling at me.
MR DODD: So can I just stop you there. So just to break it down so it might be easier for you, Ms Jennings, there was discussion in the morning about the business you had together?
MS JENNINGS: Yes.
MR DODD: That led to an argument?
MS JENNINGS: Yes.
MR DODD: You then talking about “the look”; what do you mean by “the look”?
MS JENNINGS: He just looks. It is – it just – just it’s the look that he has that I know I’ve gone too far – that I’ve done something wrong.
MR DODD: And what do you say that look leads to?
MS JENNINGS: Yelling, punishment, throwing things.
MR DODD: Okay. But on that particular day there was then – he was yelling at you or there were arguments throughout the day; is that correct?
MS JENNINGS: Continual, yes.
MR DODD: Right. And do I take it that, just to be clear – did he assault you during the day?
MS JENNINGS: Physical, I cannot recall, no.
MR DODD: No. Because it’s not mentioned anywhere in the material, that’s all?
MS JENNINGS: No.
HIS HONOUR: Were the children there?
MS JENNINGS: They were at – Y was at her dad’s, and X was at kindy.
HIS HONOUR: Thank you. Yes, Mr Dodd.
MR DODD: And it’s at the end of that day that there was an incident you describe as self-harm?
MS JENNINGS: Correct.
MR DODD: Right. And that happened at what time?
MS JENNINGS: It was on dark, close to – I don’t know, maybe 5/5.30. It was before I had to get X from kindy at 6.
MR DODD: Right. Okay. So it was before the children were around?
MS JENNINGS: Correct.
MR DODD: Yes. And his response to you was that he laughed; is that your evidence?
MS JENNINGS: Yes. I was in the kitchen. He had gone to the – no, first of all I was on the couch, and I was crying and I was emotional. He had been down in the bedroom. And I just didn’t know what to do anymore. I said I can’t do this, because we get along, and then it just hits, and then it goes for ages, and then we get along and it hits, and I couldn’t live like that way anymore. And it’s like I just had this calm wash over me, and I thought the only way out, because I had tried other things before and he still dragged me back in again – .....just in my life, because I just didn’t want to live that way anymore. So I got up, and I went into the kitchen, and I got a knife out the knife block, and I was sharpening the knife, and I wanted to get it sharp to the point where you can just slice so easily, you know, when you’re – you’re cutting things up and you accidentally cut yourself and it just, you now – so easy that it doesn’t hurt or anything. And I was just making it blunter and blunter each time I was trying to sharpen it, and it was getting blunter and blunter. And that’s when he came and sat back on the couch, and I went into him and I said I can’t do this – I can’t do this anymore, “This is what you’re doing to me.” And I still had the knife, and I was talking to him, and I was just stabbing myself in the chest with it. And that’s when he laughed at me and he told me to stop being so stupid.”
I accept this evidence from the mother. At this stage in the witness box, the mother had utterly broken down and was sobbing and crying uncontrollably.
After a short break the mother resumed her testimony.
From the Transcript of 18 June 2021, page 335 line 25:-
“MR DODD: Yes. Just before we stood down, Ms Jennings, I think you were giving evidence about what you would say is the cycle of the relationship. So things would be okay, then they would – there would be build-up to something else. Then it would break down and be okay again. So do I understand the chronology to be this: the last --
HIS HONOUR: Sorry. For the record, you were nodding “yes” there, weren’t you?
MS JENNINGS: Sorry. Yes, sir.
HIS HONOUR: Go ahead, Mr Dodd.
MR DODD: So in October 2017, for instance – that’s about nine months prior to you leaving to go to New Zealand – there was the incident that led to the second contravention of the domestic violence order. And that’s the incident where certainly on the police records, the father refused to leave home after an argument, grabbed your right index finger, bending it back the wrong way and smashing a fold out Sushi Screen. That was that particular incident. And your Honour, that’s at pages 4 and 5 of the tender bundle.
HIS HONOUR: Thank you.
MR DODD: And then after that, there was a period where you then reconciled. That’s correct, isn’t it?
MS JENNINGS: Yes.
MR DODD: And then the next incident in the chronology that, as I understand it, is what happened in March 2018 when you left with X to go to see, I think, your parents at City L. And there was that complaint or there was an attempt by the father on your case to stop him from going and rang the police. That’s that particular incident, isn’t it?
MS JENNINGS: What date was that one?
MR DODD: In March 2018?
MS JENNINGS: No, the next one after that was when I was pushed into the shower screen door ‑ ‑ ‑
MR DODD: Right?
MS JENNINGS: and it came off its hinges.
MR DODD: And when was that?
MS JENNINGS: That was in ’17, in 2017. So that’s after I took him back again and that’s before – well, that was the cause of the incident that got me to get Y to live with her Dad.
MR DODD: Right. And that was the end of 2017?
MS JENNINGS: The last term. The last school term.
MR DODD: Right, okay. And then as I understand it from your – from the affidavit material, that was the last incident of him pushing you or being physically aggressive to you?
MS JENNINGS: That I recall.
MR DODD: Yes. And then the next incident that’s reported in the material is the one I just talked about, which was in March 2018. Do you agree with that?
MS JENNINGS: Yes.
MR DODD: And then after that incident, you again reconciled?
MS JENNINGS: Yes, sir.
MR DODD: Yes. And then by the time of the incident we just talked about, the incident of that argument on or about 1 July 2018 which then led to you attempting to self-harm, you were living together at that stage?
MS JENNINGS: Yes, we were, sir.
MR DODD: Yes. And just going to that particular evening. You didn’t – am I right to say that you didn’t seek medical assistance that night?
MR JENNINGS: No, I did not, sir.
MR DODD: No. So you hadn’t actually harmed yourself as such or ‑ ‑ ‑?
MS JENNINGS: I just had slight lacerations ‑ ‑ ‑
MR DODD: Right?
MS JENNINGS: on my wrist, yes.
I accept this evidence from the mother.
The mother was then asked about when it was that she had made the decision to leave Australia and go to New Zealand. The following evidence is contained in the Transcript of 18 June 2021, page 336 line 39:-
“MR DODD: And it was that particular evening, is it, or beforehand – you can answer – when did you form the intention of going to New Zealand?
MS JENNINGS: Sunday morning, I think it was, sir.
MR DODD: So just to put this in context, what date was this – that whole day argument? Was that the Saturday?
MS JENNINGS: No, the day argument was the Friday.
MR DODD: Right?
MS JENNINGS: It continues through to the Saturday. Sunday is when I came to the decision to flee as far away as I could.”
It is apparent to the Court that from the argument in July 2018 (that occurred on the Friday, all through the Saturday and then through to the Sunday) the mother decided to leave. All through that weekend the mother was obviously in significant distress. The mother was obviously agonising about what to do. She decided that she needed to leave the country because she was afraid for her life. In this regard I note the mother’s evidence in the Transcript of 18 June 2021, page 337 line 9. I accept the mother’s evidence in that regard. That was the mother’s state of mind at that date – noting the long history of family violence to which the mother had been subjected by the father.
The Court has, from [26] to [88] of these reasons, detailed and found that there has been an extensive history of family violence perpetrated by the father against the mother. This all (largely) forms part of the Court’s consideration under section 60CC(3)(j) and (k) and section 60CC(2)(b) when determining what is in X’s best interests.
The evidence and findings of the Court to this point is already overwhelming. However there is further parts of the evidence that must be considered.
Other aspects of the evidence
I note that the father told the family report writer (Ms D) his version of what occurred during the May 2017 incident. I note the following:-
“3.22. He reports that the terms of the DVO had been amended to allow for him to visit the family home, provided that the mother had invited him, in writing. She had done that, by text. When he attended, he found the mother and her flatmate in bed together. He had let himself into the house with the key he still possessed, expecting to be welcomed. The children were asleep in one bedroom and it was about 10.30 pm when he arrived.”
It will be apparent from the reasons already provided that I do not accept the father’s version. The mother had invited him by text message. The father had declined. The father then decided to come to the residence and spy on the mother (with the assistance of night vision binoculars) and then “surprise” the mother by letting himself into the house with a key – in circumstances where he had retained a key (by having one cut for himself) after the making of the ouster order.
The family report writer goes on to note:-
“3.26. Because of the breach he described, the father says the DVO is now for five years. Police had never wanted to deal with the mother's verbal and emotional violence toward him, he found. He did a course with vulnerable persons unit of QPS and that led him to understand what domestic violence is and that he had been a victim throughout the relationship. He can recall only once when she had pushed him physically, the rest of her offending being non-physical.”
One of the sentences contained in the family report can only be described as “extraordinary” in the light of the evidence in this case. The family report writer has highlighted that when the father did the course with the “Vulnerable Persons Unit” of the Queensland Police Service that this had led the father “to understand what domestic violence is and that he had been a victim throughout the relationship.” Given the large body of evidence detailing the extent of the family violence perpetrated by the father against the mother over a long period of time – it is quite incredible to see that the father highlighted to the family report writer – and, I add, to the Court during the course of his evidence (more than once) – that he realised from attending the Vulnerable Persons Unit course conducted by the police that he (the father) had been a victim of domestic violence.
The father says that the mother’s abuse of him was “verbal”. He recalled one occasion being pushed by the mother. To the extent that the mother argued with the father or raised her voice to the father this was clearly in the context of domestic disputes between the couple. Having read the evidence and having seen both parties in the witness box (being cross-examined by counsel) – I have come to the conclusion that it was the father who was the perpetrator of the family violence within the relationship. There was very little (if any) cross examination of the mother in relation to allegations that she had been domestically violent towards the father. This is not surprising. The overwhelming weight of the evidence confirms that it was the father who was responsible for the domestic violence in the relationship (note again s 60CC(3)(j)).
The completion by the father of the course with the Vulnerable Persons Unit of the Queensland Police is a crucial item of evidence in this case. I note paragraphs 78, 79 and 80 of the father’s trial affidavit. In those paragraphs the father states:-
“78. There has been domestic violence by both Ms Jennings and me during our relationship. I sincerely regret my actions.
79. Noting my regret, I took notice of the suggestions by the Vulnerable Persons Unit (VPU) of the Queensland Police and undertook the suggestions to undertake Anger Management. I completed this course with that unit. The VPU engaged the services of a psychologist. The course was enlightening and very useful.
80. Notwithstanding my error in being domestically violent Ms Jennings and I reconciled and lived together for a period of approximately 15 months before we finally separated. There were no other incidences of domestic violence during this period.”
It seems to me that the child’s best interests are better served in going to New Zealand to live with his mother and his sister. I note, importantly, that the father of Y sent her to live with the mother in New Zealand. Y now communicates regularly with her own father (Mr B). Y travels to Australia regularly (pandemic permitting) in order to spend time with her father Mr B. The Court concludes that the mother is coping very well with the task of raising Y as the primary carer of that child. The Court concludes that the mother is in a well-settled relationship with her current partner. The mother understands the importance of her children maintaining contact with their respective fathers. The mother has demonstrated this in respect of the child, Y (note s 60CC(3)(f) and (i)). The mother has, so to speak, runs on the board. I find that the mother will also facilitate X’s relationship with the father – including by having the child travel to Australia for school holiday periods and communicate with the father regularly by telephone and/or Skype.
The father’s failure to adequately facilitate telephone time between the mother and the child
On the other hand, I note the mother’s evidence that the father has not in fact facilitated the telephone time in a way, or in a manner that he should have since the making of the interim order on 4 September 2019.
I note the mother’s evidence in her trial affidavit where she sets out the number of occasions when it has not been possible to make telephone contact with the child, X. The father’s evidence seems to be that this was because X was distracted or did not want to communicate with the mother – or some other reason relating to X’s wishes. I agree with the submission made on behalf of the mother that the father has not facilitated the telephone time between X and the mother. This would not augur well for the future in respect of the father facilitating and promoting the child’s relationship with the mother (note s 60CC(3)(f)). Telephone time and video time (whether via FaceTime or WhatsApp or Skype, et cetera) is so crucially important when a child lives in one country and the non-resident parent lives in another country. The father has not been able to adequately attend to this issue. I accept the mother’s evidence and the submissions made on her behalf in respect of this aspect of the case.
Notwithstanding the father’s lack of co-operation – the mother has kept in touch with X by telephone and FaceTime (note s 60CC(3)(c)(iii)). The child definitely knows his mother. I accept the mother’s evidence that the child has secretly messaged the mother when communicating with her (without the knowledge of the father). The father has not provided the child with the private time to communicate with the mother. This is contrary to the orders and, once again, is evidence that the father has not facilitated the child’s relationship with the mother (note s 60CC(3)(f)).
I do not accept the father’s evidence in relation to the maternal grandparents. The maternal grandparents live in Brisbane. The father has made absolutely no effort whatsoever to promote X’s relationship with his maternal grandparents. The father takes the view that the maternal grandparents have not contacted him – that is the end of the story. He is the child’s primary carer. It is not good enough for the father to take that attitude. Again, this is evidence (so far as this Court is concerned) that the father is not willing to promote the child’s connection and relationship with the mother and the maternal family (note s 60CC(3)(f)).
This is another reason why the Court has concluded that the best interests of the child are met by the child moving to New Zealand to live with the mother.
The benefit to the child in growing up in New Zealand with his sister, Y
One of the other obvious and very great benefits to the child X in moving to live in New Zealand with the mother will be the fact that X will be able to live with and grow up with his sister Y. This is an important sibling relationship identified by the family report writer. The brother and sister have a close and loving relationship (note s 60CC(3)(b)(ii) and s 60CC(3)(g)).
The evidence of Dr T
I note the medical report of Dr T. Dr T was asked questions in cross-examination – based upon the premise that the Court might find that the mother had fled Australia because of a history of many years of serious controlling family violence. That of course is what the Court has now concluded. Dr T gave the following evidence from Transcript 17 June 2021, p.174 line 1–43:-
“MS MARTINOVIC: In that context, if the court was to make those findings, what would be – or how would you describe a decision of that nature being made so spontaneously, by the mother?
DR T: Well, I might say that – and I think it’s important, with respect to the question, to state that that history which was quoted, and I put it in the diagnostic section of the report, followed my inquiries of the mother about specific psychiatric issues. And the context was I had asked her if she had ever be taken, by ambulance, in an emergency, to a psychiatric hospital. And she said, “No, no.” Have you ever done anything to hurt yourself, on purpose, or self-harm. And it was quite intriguing and, I think, from a psychiatric point of view, that was her answer to the question. Have you ever done anything to try and hurt yourself on purpose? Well, it’s almost like she – she’s saying to me that she was so desperate that to try and stop herself from hurting herself – as she said, “He had driven me to my lowest point” – that she got on a plane. Like, she went to an airport. Now, this sort of complex travelling behaviour, I might call it, there’s no doubt, in my clinical experience of some 28 years as a psychiatrist in private practice that, what I call geographic therapy, many people will get in the car and flee. Or travel. Move, or something. But this particular example of travelling to another country – well, a close neighbour of this country, where, of course, she was born, in V Town – in some ways, has a rationality. But it has also, in a sense, created a whole series of other complexities, and
HIS HONOUR: I’m sorry to interrupt you. It’s Justice Howard. Did you say, “rationality” or “irrationality”?
DR T: I said rationality.
HIS HONOUR: Thank you. Keep going?
DR T: In that, “He had driven me to the point where I had to” – and as she said, elsewhere in the report and to me, she said, “It’s my safe place.” When I’ve asked her about plans for her future, she has – even though her family, her parents, live south of Brisbane, she undertook, at that point, not to go to their place, for example. Or not to seek domestic violence refuge, or undertake a number of other sort of behaviours that people – women – might choose. And so I see it, though, as well, as having an irrationality, because of the fact that, well, now I’m in New Zealand. What am I going to do? How am I going to sort out a parenting plan, how am I going to see my son? And so the consequences of the behaviour are, at that stage, have this other conundrum associated with them. That makes my answer to your question one that I did not examine in enormous detail when I was doing my assessment, because I don’t believe that was my brief. But I formed the view that, overall, the mother, in her mental state, was in a better mindset, in terms of this depressive and psychiatric illness, because of the safety value that she was attributing to the fact that she was living in an undisclosed location. It was specific that she didn’t allow me to reveal exactly where she’s living. And that she had this issue, where she knew if the father was to attend New Zealand. And so, from those points of view, her decision – should the court find that she fled – has had a rational and positive benefit, despite these other negative consequences. That’s the long answer. End of answer.”
Of particular note to the Court was the evidence of Dr T that the mother’s actions in leaving Australia – as a result of being subjected to family violence at the hands of the father over a long period of time – had a “rationality”. He said that there were “rational and positive” benefits – despite other negative consequences. The obvious negative consequence was the distance between the mother and the child X. Dr T, a psychiatrist who has been in private practice for 28 years, used the expression “geographic therapy”. This certainly appears to be what has occurred in this instance. The mother, as a victim of family violence, needed to remove herself physically to a safe location.
Having regard to the extensive findings made by this Court in relation to the family violence perpetrated by the father against the mother – the evidence of Dr T in relation to the “geographic therapy” makes a good deal of sense. The finding that I have made is that it was a very difficult decision for the mother to leave X and Y in Australia and travel to New Zealand, but, the mother needed to do this for her own sake. As is known – Y subsequently was sent by her own father to New Zealand to live with the mother.
Dr T accepted the mother’s concerns (in the light of a protracted history of family violence) were genuine. I note the evidence of Dr T from Transcript 17 June 2021, p.174 line 45 to p.175 line 6. In that part of the Transcript, there is contained the following evidence:-
“MS MARTINOVIC: Yes. Thank you, Doctor. Now, would you accept that her concerns were – if the court made findings that there was protract history of family violence – that her concerns, and the way in which she articulated her concerns to you, were genuine, and were not fanciful?
DR T: Very strongly of the view that I don’t believe that the history that I obtained was, in any way, distorted or altered as a result of the symptoms of any form of mental illness, that could be so severe as to alter her perception of the way she experienced the sorts of relationship issues that she articulated, which I have typed out from my interview with her. So the answer would be no, I have no concerns about that.”
I accept this evidence from Dr T. The fact that the mother may suffer from a depressive illness (exacerbated by certain events) did not distort her perception of the way that she was treated by the father.
Dr T was also impressed with the interaction that he witnessed between the mother and the child Y. This occurred on the day of the interview – which took place via video link in December 2020. I note the following evidence in this regard relating to parental capacity:-
“MS MARTINOVIC: Yes. Thank you, Doctor. Now, with respect to the mother’s parental capacity, you are aware that she has her daughter in her care, full-time?
DR T: Yes.
MS MARTINOVIC: Her daughter, Y?
DR T: Yes. Yes.
MS MARTINOVIC: who I understand is now 12 years of age?
DR T: Yes.
MS MARTINOVIC: Did you ask her any questions with respect her parental capacity to parent Y, and what arrangements she has on a day-to-day basis, with Y?
DR T: I noted that – well, the issues of parenting and relationship her daughter first appear in the report on page – if I might just go to the appendix 1, saying page 13. I asked her about, “how has your daughter’s health been?” “Yes, she’s good.” And then she did say, “my daughter, obviously, still suffers a little bit from stuff like that”, she talked about anxiety and trauma. “But we work through that together.” I also asked her about current arrangements for her daughter to have contact with her father. And she outlined that she would be able to parent and make arrangements where contact was, she said, “any time she wants.” And the use of Facebook, and then the COVID factors, indicated to me that she had made arrangements which seem to be stable and effective. Which were positive, in terms of parenting. So I might just move to the next section, where issues concerning her daughter and parenting arose in the analysis. If we move down to – sorry, just seek time just to find another important section.”
That positive and more recent observation made by Dr T of the mother’s interaction with the child Y is important and confirms the view that I have formed – that there are no concerns in relation to the mother’s parental capacity (note s 60CC(3)(f)). My view in that regard is, of course, strengthened by the findings that I have made to the effect that the mother has been promoting Y’s relationship with Y’s father, Mr B.
It is apparent from the report of Dr T that the mother had suffered from post-natal depression after the birth of Y. Dr T considered that that the mother’s history indicated “a biological vulnerability for the development of a depressive illness” (note page 4 of Dr T’s report annexed to his affidavit filed 7 January 2021). The mother took antidepressant medication when she was being treated for post-natal depression after the birth of her daughter in 2009. I also note that the mother was again treated for depression during her relationship with the father (Dr T’s report, page 5). The risk issues relating to the mother’s underlying biological vulnerability for the development of a depressive illness would increase if the mother returned to Australia and, it seems to me, would increase if the mother is required to interact with the father. The depressive illness suffered by the mother has to be seen in the light of the findings of this Court – namely that the mother was a victim of family violence perpetrated by the father over the course of a seven-year period.
Dr T thought it would be wise for the mother to discuss the psychiatric report with her treating GP and the mother should do so. I intend making an order to that effect. It would also be, it seems to me, prudent for this Court to make an order that the mother attend upon a specialist consultant psychiatrist in New Zealand – as recommended by Dr T. These recommendations of Dr T will be the subject of orders of the Court – requiring the mother to engage with the specialist consultant psychiatrist in New Zealand.
Conclusion and Orders
The mother has sought an order that the child live with her in New Zealand. The child Y will also be living with the mother. It will be apparent from these reasons that I agree that the child X should live with the mother in New Zealand. The mother proposes that X would then spend time with his father in Australia. X would travel on the aircraft with Y when Y comes back to Australia during school holiday periods. The mother does not want the father spending time with X in New Zealand. The question as to whether or not this position by the mother is reasonable must, of course, be looked at in the light of the best interests determination, so far as X is concerned. It is very apparent to the Court that any interaction between the parents is not going to be in the best interests of X. These parents cannot communicate. Over a long period of time, the father perpetrated serious family violence against the mother and other members of the family. The mother has an underlying biological vulnerability – as identified by Dr T. The mother indicated that she would become very anxious in the event that the father travelled to New Zealand to spend time with X. The Court will be making orders (as indicated) to the effect that the mother will be required to attend upon a consultant psychiatrist in New Zealand and remain under the care of a consultant psychiatrist. I do not consider it necessary or prudent for this Court to make any order requiring the mother to take any particular medication. Such matters will be determined as part of the consultative process between the mother and her chosen psychiatrist in New Zealand. I note the mother’s evidence that antidepressant medication had, in the past, impaired her functioning. I note once again the evidence of Dr T that from his observations from December 2020, the mother interacted very well and appropriately with the child Y – that of course was with the mother and Y living with the mother’s family household in New Zealand.
Whilst I would, in many cases, be persuaded to the view that a parent (in this case the father) who wanted to visit New Zealand (from Australia) in order to see a child – would ordinarily be permitted to do so. The findings made by the Court in this case in relation to the nature and the extent of the family violence perpetrated by the father have led me to conclude that X’s best interests will be served by spending time with the father during school holiday periods in Australia. This will, it seems to me, give the mother the best chance to parent X (and for that matter, Y) to optimal capacity. I accept that the mother has the support of a loving partner. That much was obvious from the evidence. The father will be ordered to undertake an anger management program and a parenting program to help him deal with the issues identified in these reasons.
Section 61DA and Section 65DAA
Given that I have come to the conclusion that the child should live primarily with the mother in New Zealand – there will have to be in order for sole parental responsibility. I do not consider it that it will be possible for the parents in this case, to communicate and make well-reasoned joint decisions on behalf X in a co-parenting environment. The evidence discloses that the father made several decisions concerning X – notwithstanding contrary views proffered by the mother. These related to X’s school as well as medical treatment in respect of the child. Noting the findings I have made concerning the family violence and the impact upon the mother of the family violence perpetrated by the father – I have come to the conclusion that it will be in the best interests of X for the mother to exercise sole parental responsibility (note s 61DA(2) and (4)). Upon the making of any long-term decision in relation to X, the mother will inform the father of the decision. The parents will have to communicate to some extent – for instance, in relation to organising travel arrangements for X to visit Australia. The parents should share the cost of the travel and, an arrangement which I consider will be in X's best interests will be an order requiring the father to pay X’s airfare from New Zealand to Australia and for the mother to pay for the return flight from Australia back to New Zealand at the end of the holiday periods. There should be a further order to the effect that if Y is also travelling to Australia during the same school holiday periods then X should travel with Y. There will need to be a further order requiring that the father and the mother co-ordinate X's travel arrangements with Mr B – so that X’s travel arrangements align (to the extent that it is at all possible) with the travel arrangements for Y.
Y’s well-settled situation in New Zealand with her mother and the manner in which the mother promotes and facilitates Y’s relationship with her father is one of the significant factors which has led this Court to conclude that X’s best interests will be served by living with the mother in New Zealand – along with his sister (note s 60CC(3)(b)(ii)) and s 60CC(3)(i)).
Because the Court will not be making an Order under section 61DA – there is no need to consider section 65DAA. Noting that the parties live in different countries – equal time or substantial and significant time is simply not in the picture.
I will give the Independent Children’s Lawyer time to prepare and provide to the parties a draft order to reflect these reasons for judgment. The parties will have a short time thereafter to try and agree on the wording of the order to reflect the reasons. If there is no agreement on the wording, the parties shall send their respective drafts to the Court and the Court shall either make a final order in Chambers which best reflects the reasons or the Court will consider re-listing the matter for a further Mention.
I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 16 December 2021
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