Jinks & Gamba
[2023] FedCFamC2F 959
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jinks & Gamba [2023] FedCFamC2F 959
File number(s): NCC 989 of 2021 Judgment of: JUDGE BETTS Date of judgment: 21 July 2023 Catchwords: FAMILY LAW – Parenting – one child, aged three – where the proceedings are essentially a “competing residence application” – where the Court must determine whether it is in the best interests of the child to live with the mother at Town B Queensland or with the father at Town C, New South Wales – where both households have risk factors – where both parties have perpetrated family violence – where there are concerns with both parties as to mental health issues, alcohol abuse and the capacity to promote a relationship with the other parent – where the Court considers the mother would not be able or willing to promote a meaningful relationship between the child and the father – where the Court considers that the father is the only parent who has the capacity to promote a relationship with the child and the other parent – best interests outcome. Legislation: Family Law Act 1975 (Cth), Pt VII
Crimes (Domestic and Personal Violence) Act2007 (NSW)
Cases cited: M & M (1988) FLC 91-979 Division: Division 2 Family Law Number of paragraphs: 270 Date of last submission/s: 20 July 2023 Date of hearing: 17, 18, 19 and 20 July 2023 Place: Newcastle Counsel for the Applicant: Mr Katsinas Solicitors for the Applicant: Hillcrest Family Lawyers Pty Ltd Counsel for the Respondent: Ms Dalrymble Solicitors for the Respondent: Joplin Lawyers Counsel for the Independent Children’s Lawyer: Ms Hamilton Solicitors for the Independent Children’s Lawyer: Koulouris & Associates Pty Ltd ORDERS
NCC 989 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JINKS
Applicant
AND: MS GAMBA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
21 JULY 2023
THE COURT ORDERS THAT:
1.All previous Orders be discharged.
2.The Father have sole parental responsibility for the child, X born in 2020 ("the child").
3.Prior to the Father making any decisions while exercising sole parental responsibility he shall:
(a)Notify the Mother in writing of the decision to be made and the options available and allow seven (7) days for a reply from the Mother in writing;
(b)Consider the Mother's views when making the decision and notify the Mother of the decision made within seven (7) days of making the decision.
4.The child live with the Father.
5.The child spend time with the Mother as agreed and failing agreement as follows:
(a)In term 1, 2 and 3 NSW school holidays in odd numbered years from 9.00am on the first Saturday to 5.00pm on the second Saturday;
(b)In term 1, 2 and 3 NSW school holidays in even numbered years from 9.00am on the second Saturday to 5.00pm on the third Saturday;
(c)For Christmas holidays in odd numbered years from 9.00am on the first Saturday to 5.00pm on the fourth Saturday; and
(d)For Christmas holidays in even numbered years from 9.00am the fourth Saturday to 5.00pm on the last Saturday.
6.Notwithstanding Order 5:
(a)The Mother is to not spend time with the child in the term 1 school holidays in 2024.
(b)In lieu, the child is to spend time with the Mother from 12.00pm on 21 February 2024 to 2.00pm on 6 March 2024.
7.Upon fourteen (14) days' notice to the Father that the Mother intends to travel to the Town C area, the Mother is at liberty to spend time with the child from after school or 3.00pm Friday until the commencement of school Monday or 9.00am on no more than one occasion in any school term. This is not to occur in the present term being term 3 in 2023.
8.For the purpose of the Orders, handovers are to occur in the following way:
(a)In terms 1, 2 and 3 school holidays, the child is to be collected by the Mother inside the Town D Airport, or in a public place with CCTV cameras as agreed between the parents and failing agreement inside the Town D Police Station. The Father is to collect the child at Brisbane Airport or an agreed public place with CCTV cameras as agreed between the parents, and failing agreement inside the Brisbane Police station.
(b)In Christmas holidays, the child is to be collected by the Mother inside the Town D Airport or in a public place with CCTV cameras as agreed between the parents, and failing agreement inside the Town D Police Station. The Father is to collect the child at City E Airport or in a public place with CCTV cameras as agreed between the parents, and failing agreement inside the City E Police Station.
9.The child have video or telephone communication with the Mother and Q each Tuesday and Thursday at 6.30pm to 7.00pm with the Mother to place the call to the number/device nominated by the Father and the Father to ensure the child is ready and able to participate in the call.
10.Within forty-eight (48) hours of the making of these Orders, the Father shall notify the Mother of the number or device method upon which she should contact the child.
11.Within seven (7) days, the Father contact Mr R and request an arrangement for meaningful and ongoing video or in-person communication between the child and Mr R.
12.Within seven (7) days, the Father enrol the child in childcare and ensure that she attends not less than two (2) days per week.
13.Each party be restrained by injunction from:
(a)Denigrating the other party, their family or friends in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of any third party doing so;
(b)Exposing the child to any form of family violence as defined by s4AB of the Family Law Act 1975;
(c)Posting derogatory or denigrating material on social media about these proceedings, any other party to these proceedings or their partners, and causing any third party to make any such post;
(d)Discussing details of any Court proceedings or showing the child any documents related to any proceedings that involve any of the parties, their family or friends;
(e)Interrogating the child regarding the other parent, the other parent's home, the other parent's relationship.
14.The Mother be restrained by injunction from:
(a)Consuming alcohol above the NSW legal driving limit while in contact with the child, or for twenty-four (24) hours prior to the child coming into her care;
(b)Referring to the Father as anything other than "dad" or "daddy" when speaking to the child or referring to him in the child's presence;
(c)That the Father be restrained by injunction from referring to the Mother as anything other than "mum" or "mummy" when speaking to the child or referring to her in the child's presence.
15.Except in an emergency, the parties shall communicate by use of a parenting app as agreed in writing and failing agreement through the parenting app "App Close" and in the case of an emergency the parties shall communicate by text message.
16.The parties must ensure that the other is kept informed as soon as reasonably practicable should the child suffer a serious illness, accident or injury whilst in their care, including the nature of the illness, accident or injury, the treating practitioner and condition of the child.
17.That should the child be prescribed medication required to be taken whilst she is spending time with the Mother, the Father shall provide sufficient medication to the Mother for the time that the child will be with her along with information as to how the medication is to be taken.
18.The Mother shall ensure any medication prescribed to the child is taken as prescribed during the time the child is in her care and shall return any remaining medication to the Father at the conclusion of her time with the child.
19.The parties shall keep each other informed of their contact telephone numbers and residential addresses and advise within twenty-four (24) hours of any change to those details.
20.These Orders shall constitute sufficient authority for the parties to:
(a)Communicate with the child's day care or school and obtain all information usually provided to parents at their own cost, including but not limited to school reports, behavioural reports, circulars, newsletters, parent/teacher interviews and the like.
(b)Obtain records from, and speak with and obtain information from, any of the child's treating medical practitioners.
21.That the Father shall ensure the Mother is notified of sufficient details to facilitate contact with the child's treating medical practitioners and educational providers within twenty-eight (28) days of the date of these Orders and within twenty-four (24) hours of any change to those details.
22.It is a condition of the Father's primary care of the child pursuant to these Orders that he completes the "Men's Behavioural Change" program in which he is currently enrolled, and that he provide a certificate of completion to the Mother upon completion.
23.The Independent Children's Lawyer is requested to provide a copy of these Orders to the Officer-in-charge of the Town D Police Station, City E Police Station and the Brisbane Police Station.
24.A copy of today's reasons be taken out in writing and provided to the parties.
25.A copy of today's reasons and Orders be provided by the Court to the Department of Communities and Justice New South Wales and the Department of Children, Youth Justice and Multicultural Affairs Queensland.
NOTATION:
A.The Court strongly recommends the Mother undertake a family violence perpetrator's course.
B.The Court strongly recommends Ms F undertake the "G Program" for victims of family violence as identified by the Family Report writer in the course of her evidence.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
OVERVIEW
These are parenting proceedings in relation to a young and vulnerable child, X. X was born in 2020. She is presently three (3) years of age.
X is the daughter of the applicant father in these proceedings, Mr Jinks, and the respondent mother, Ms Gamba. The parents were in a relationship in the Town C area from around 2017 until either November of 2019 (mother’s version) or December 2020 (father’s version). For present purposes it does not matter much when their relationship strictly ended, as it is common ground in any event that the mother remained living in the father’s home at Town C until 27 December 2020, and it was after this time that she then relocated to the Region H area of New South Wales, where she presently remains.
There are a number of other relevant parties and children which I should mention at the outset.
The father has re-partnered with Ms F. She lives with the father in his Town C property together with Ms F’s daughter, J. J was born in 2010 and is presently twelve (12) years of age. J lives half the time with Ms F and the father and the other half of the time she lives with her own biological father, who also lives in the local Town D/Town C area. Ms F has two other children, being two older boys K born in 2006 and L born in 2009. These older boys have remained in the care of their biological father since Ms F and he separated, although Ms F spends time with them regularly. I do not understand the older boys to have any real relationship with X, the subject of these proceedings, because the two older boys do not stay overnight at the father’s house, nor do they spend time there. Their mother, Ms F, sees the boys after school during the school week.
The mother has re-partnered as well and, indeed, she is engaged to her partner, Mr M. He and the mother became engaged in 2023 and they plan to marry in 2024. Mr M lives at Town B, which is near Town N in Queensland, quite some significant distance away from both the Region H area where the mother lives and even further away from where the father lives at Town C. Mr M has a son, O, who is nine (9) years of age, who spends time with him as well as spending time with his biological mother.
X also has two (2) siblings, being the mother’s two older children to previous relationships. Those children are P, born in 2010, who is presently thirteen (13) years of age; and his younger brother Q born in 2014, who is presently nine (9) years of age.
P is the child of the mother and Mr R, the latter having given evidence in these proceedings adverse to the mother. P does not live in the mother’s care. He lives with his paternal grandmother in the Sydney region and, rather sadly, it seems that his relationship with the mother has largely broken down, which I will address in more detail later. P has had rather a disjointed upbringing as a result of the violent actions of both the mother and the father in these proceedings.
Q remains living with the mother. He is the child of the mother’s relationship with Mr S, whom Q still has a relationship with.
Put shortly, the child X has a day-to-day living arrangement with her older half-brother, Q, and she is missing her older half-brother, P, who she does not have much of an opportunity to spend time with at this stage due to circumstances beyond X’s control.
The father is employed as a tradesman. In practical terms, he works a nine (9) day fortnight in Region T, being based at Town U, which is a few hours’ drive from Town C. He usually works Monday to Thursday one week and Monday to Friday of the other week. He has some flexibility in his employment and has the opportunity to work shifts on weekends and, thereby, to be able to effectively work for roughly half the hours that he presently does while making a similar income. It is a matter that he raised in the course of his evidence and I accept his evidence about that, and it is something that he is looking to do in the event that X comes to live with him at the conclusion of these proceedings.
Ms F works fairly standard hours from Monday to Friday at an employer in the Town C/Town D region.
The mother is presently unemployed but has qualifications as a hospitality worker and has some significant expertise. She has set up a business at different points, although that business is to some extent dormant at the moment. She certainly plans to be able to work in the future, as she is wanting to relocate to live with Mr M in the Town B region to live in the home that he owns there, and Mr M says that there is employment available for the mother at a local business.
Mr M himself also works. He is, generally speaking, based in the Town B region but does do shutdown work, which takes him away from home for probably a couple of weeks each year, although that work and those requirements are somewhat unpredictable by their nature.
The real debate in this case is rather simple but, at the same time, rather stark. The mother is seeking to be able to relocate to Town N with X to live there with Mr M. The father opposes the mother moving away to Town N with X and he seeks that X instead live with him in the Town C region.
Although I refer to the word “relocation”, in some ways this case is not a classic relocation type of case. That is, it is not a case in which a parent is proposing to relocate to another location but that, if they are unable to do so, then they will remain living in the same location with the child. Rather, in this particular case, the mother's evidence, although somewhat confusing, is that she simply has no more accommodation options in the Region H in that her current housing has, effectively, come to an end. Her lease has ended, it cannot be renewed, and it is a situation where the landlord, effectively, has agreed that she can keep some property at the premises but she cannot continue to live there. I accept the mother's evidence about that, although, as I indicate, I found it all somewhat confusing. But certainly I take the view - as I indicated to the parties at the outset of the hearing - that it would be unreasonable to expect the mother, who does not have accommodation in the Region H, to be required to remain living there merely for the sake of facilitating some sort of weekend time or other arrangement with the father, who already lives some three (3) to four (4) hours away in Town C. Frankly, such an outcome struck me as quite absurd and unrealistic and so this case has, from the outset, been run very much as a competing residence application. The fact that it involves a relocation by the mother does not strike me as a particularly significant factor as a matter of law, except insofar as it raises general questions concerning the application of the section 60CC considerations. I do not propose to traverse the relocation case law in this matter. It is really a competing residence case, although I am certainly aware that the mother wishes to relocate.
The fundamental issue in the case, then, is whether it would be in X’s best interests to live with the mother and Mr M at Town B or whether it would be in her best interests to live with the father and Ms F at Town C.
I should also say that the case is a troubling one in many respects. Put simply, there are risk factors in each parent’s household which cannot be overlooked or minimised. Theirs has been a violent relationship. Family violence is a relevant consideration in this case, but not only in respect of the father; it is also relevant in respect of the mother. Both are perpetrators of family violence in different ways and in different circumstances. Both have spent time in custody as a direct result of family violence-related conduct, the father spending a much more significant period in custody than the mother, who merely was in custody overnight, whereas the father spent approximately a few months in custody.
There are also issues concerning the mental health of both parents, alleged alcohol abuse by both parents, and also of significance the capacity of each of the parents to foster X’s relationship with the other parent. The mother, in particular, has been roundly criticised in the course of this hearing, and for good reason, on account of the significant hostility and resentment that she has displayed towards the father over a lengthy period of time and, ultimately, the Independent Children’s Lawyer (“ICL”) and the Family Report writer both contended that the mother did not really have the capacity, or the adequate capacity, to in fact foster the father’s relationship with X. It was the recommendation of the Family Report writer and of the ICL that X should, in fact, live with the father, and that this would be in her best interests.
THE HEARING
The matter is fresh in my mind in that the proceedings went to trial for four (4) days this week, being from Monday 17 July to Thursday 20 July. At the conclusion of the hearing I reserved my decision.
I should indicate that the overwhelming bulk of the evidence and cross-examination related to parenting issues, although there are also property issues that need to be determined as well. I do not intend today to hand down reasons or orders in relation to the property settlement aspect of the matter. I am purely addressing parenting issues and making parenting orders today.
For the purposes of the hearing, Mr Katsinas of counsel appeared on behalf of the father, Ms Dalrymple of counsel appeared on behalf of the mother and Ms Hamilton of counsel appeared on behalf of the ICL.
The father relied upon a Case Outline Document filed 15 July 2023; an Amended Initiating Application filed 21 June 2023; the father's affidavit filed 23 June 2023; his further updating affidavit filed 17 July 2023 (for which leave was given); the affidavit of Mr R (P's father) filed 21 June 2023; the affidavit of Ms V filed 21 June 2023. Ms V was briefly in a relationship with the mother, and ultimately a witness to some significant concerning matters in relation to the mother’s care of the children, particularly P; and the affidavit of Ms F filed 26 June 2023. The father also relied upon a Financial Statement of 26 June 2023, although this has no real relevance to the parenting proceedings.
For the mother’s part, she relied upon a Case Outline Document filed 14 July 2023; an Amended Response filed 22 June 2023; the mother's affidavit filed 22 June 2023; and the affidavit of her fiancé Mr M filed with leave on 6 July 2023. She also relied upon a Financial Statement, although again, as I have indicated, that has very limited relevance for present purposes.
The ICL relied upon a Case Outline Document filed 13 July 2023.
I had the advantage of seeing all of the witnesses under cross-examination, and I will refer to some of their evidence in the course of these proceedings. It would be fair to say that, as a general statement, I was particularly impressed with two (2) witnesses, namely Ms V and Mr R, both of whom gave rather damning evidence about the mother in a number of respects. I consider them to be reliable witnesses of truth.
In relation to Ms F, I consider that she was generally a reliable witness, but I do not accept her evidence in relation to the specific act of family violence that occurred between her and the father on 5 November 2021, to which I will turn a little later.
In relation to Mr M, I was troubled by his evidence in relation to the mother’s alcohol consumption, in the sense that he was clearly very defensive about it, being quick to say in response to questions that the mother “does not drink excessively”. He also seemingly equated having “a couple” of alcoholic drinks with having about half a dozen. In my view, he is minimising, or at least covering for the mother in terms of her alcohol use. I also have some concerns in relation to Mr M's evidence concerning a violent altercation that he himself apparently got into, and I will deal with that matter a little later.
Far and away the most important witnesses, however, were the two parents. Neither of them was entirely reliable. Both of them had a penchant for minimising their own behaviour.
The father failed to admit to or acknowledge the severity of some of the family violence he inflicted upon the mother in a way that did him no credit. Frankly, he was less than candid about it. Likewise, the mother was far less than candid about her own perpetration of family violence. Worse, the mother seemed to have absolutely zero insight into the fact that she had herself been a perpetrator of family violence and, in that sense, although the father’s insight was limited, the mother’s was even less.
I was also troubled by the mother’s affidavit in the sense that it was quick to tell me all about the father’s failings under various specific headings - without herself mentioning any of her own similar failings. To use the old expression, it was an example of “the pot calling the kettle black” in some respects. For instance, under the heading ‘Family Violence’ in her affidavit, the mother told me all about the father’s alleged violence but did not even mention that she had a family violence order (or “AVO”) taken out against herself for the protection of Ms V as a result of the violent altercation they had had in early 2022. In fact, ironically, the mother is the only one of the two parents who has a current AVO against them to protect somebody. The circumstances of that particular event are harrowing, to say the least, and it was quite telling that the mother simply did not mention it in her affidavit at all but instead chose to tell me all about the father’s wrongdoing. That is not to say that there was no wrongdoing by the father. Indeed, there was and the mother has much to complain about; but it is regrettable that she did not in any way acknowledge any of her own actions.
In terms of the Family Report writer, as I have indicated, her report recommended that there be a change of residence to the father’s care. Her evidence remained unshaken at the end of cross-examination, although I am, of course, not in any way bound by the report writer’s recommendations. It should also be said that the report writer, like the ICL, expressed concerns about both parents.
I should also add that there were numerous exhibits tendered at the hearing - some fifty-seven (57) in total. The parties amended their proposed orders; by the end of the hearing the ICL’s draft proposed order was tendered as exhibit 54, the father’s was tendered as exhibit 55, the mother’s primary position was tendered as exhibit 56A and the mother’s fallback order was tendered as exhibit 56B. In that sense, the parties’ Applications and Responses, effectively, fell away.
CHRONOLOGY OF EVENTS
I turn then to a chronology of events, which will take a little bit of time given some of the complexity in this case.
As I have indicated, the parties formed a relationship in 2017. The father had, not long before, ended a previous relationship, as had the mother. The mother came into the relationship, effectively, with young P and Q in her care.
Even before they had met each other, it seems to me that both parties had a history of behaving impulsively, aggressively and violently as well as consuming alcohol to excess.
In the father’s case, he had not long prior to the relationship gotten into trouble as a result of a misguided act of vigilantism involving parents of another student who attended the same school as his then stepson to his previous relationship. The father confronted the mother of the child and aggressively told her that she had a major problem with her child, who had been allegedly bashing his stepson, and the father told the boy’s mother that it had to “fucking stop right now”. This lady was somewhat anxious and she sent her children away so that they were away from the scene, although it is not entirely clear that all of the children left. Her husband was also present and he also at one point came over and intervened.
It is clear that the mother of the child was telling the father to calm down and that he was unable or unwilling to do so. She asked the father whether he was threatening to bash her child and he said, “No, but his parents might cop it.” She asked if he was threatening to hit her and he said, “I won’t hit you, but he has a father, doesn’t he?” And she then said, “Yes, and he’s right fucking there” and pointed towards her husband. The father then confronted her husband, and effectively threatened him that, if it happened again - that is, if his son or stepson bashed the father's stepson again - then, “You just watch it happen.” The father said that if that happened then they were “all going to get it”.
The end result is that this lady was rather distressed and made a complaint to Police. The father was charged with a criminal offence. The offence occurred in 2016. In 2017 it was finally dealt with by way of a plea of guilty and the father was admitted to a section 10 bond. It was to be the first of a number of offences perpetrated by the father of a violent nature or involving breaches of AVOs.
For the mother’s part, she had been in a relationship with P’s father, Mr R, to whom she was briefly married. I have already indicated that I accept him as a witness of truth. Mr R paints rather a grim picture of the mother’s behaviour during their relationship. They had been together between about 2009 and 2019. His evidence, which I accept, is that the wife was a heavy user of alcohol, drinking on a daily basis, and that when she became intoxicated she could become both physically and verbally abusive towards himself, such that he regularly had to leave the residence and sleep elsewhere.
I accept Mr R’s evidence that the mother often used to punch and kick him and scratch him when she was intoxicated. I have before me a record under subpoena whereby Police were called after one altercation between the mother and Mr R, in which Police decided that each of them were effectively equally to blame; that no criminal charges were appropriate; that to use a colloquialism, it was effectively a “push and shove” situation: see exhibit 16.
I also have before me in evidence a complaint made to the Department of Communities and Justice New South Wales (“DCJ”): exhibit 42. This complaint was made by an unknown notifier to DCJ and it records that the mother and Q’s father, that is Mr S, had apparently split up two (2) weeks earlier. According to the note there was:
...lot of violence in the relationship. Mother threw father through a wardrobe. Mother [redacted] death threat to the father of child [redacted]. Mother appears very unstable and there are concerns for the children.
The note goes on to record that the caller said the mother was an:
... an “okay mother” but caller is concerned about her mental state [redacted]. Caller states she’s being very nasty. She’s threatened to kill the father [redacted]-
(That was a reference to Q’s father).
The note goes on to say that the caller considered that the mother was:
...[redacted] very nasty [redacted]. She is vacillating between wanting him back and being abusive. Caller has no reason to think the mother has a diagnosed mental health condition or that she’s unable to care for the kids, although [redacted] she is not coping with the kids.
Without knowing who the author of this complaint was, it is impossible for me to make a positive finding on the balance of probabilities that the mother engaged in these things. She certainly denied doing so, although given she denied practically everything in this case, her denials carry no particular weight with me. That said, I do not make a positive finding beyond observing that on the weight of the evidence in his case it is certainly likely, in my view, that there was alcohol abuse by the mother in that relationship. It is likely there was some violence between herself and Mr S. I can put it no higher than that.
Returning then to the parties’ relationship, the mother gives evidence that, effectively from the outset, she found that their relationship was characterised by verbal abuse from the father. She said that he was verbally abusive to her, particularly during arguments, telling her that no-one liked her, no-one would believe anything she said, called her a “fat cunt”, “mole”, “stupid slut”, “cunt of a thing”, “shit mother” and various other things. He also allegedly told her to “get fucked” nearly every week and sometimes several times a day. She accuses the father of grabbing her on her private parts during her pregnancy with the child X and making disparaging references to the colour of her skin.
I am satisfied that the father engaged in some of this behaviour but I cannot put it higher than that. This is because I have grave concerns about the mother’s reliability when it comes to complaints about the father and, in particular, as will be seen, she made complaints to Police at a later time which Police considered to be vexatious. Nonetheless, I accept that the father did some of these things and that they constituted “family violence”.
I also accept that there were occasions when both parties were drinking excessively and that the mother, like the father, engaged in various derogatory taunts of the father as well, such as calling him a “fat cunt” or words to that effect. The mother has a capacity to “give as good as she gets” in terms of verbal abuse, as will become apparent in the course of these reasons. There was mutual verbal violence between these parents. I should add that the mother’s children witnessed these things.
A particularly disturbing incident between the parents occurred in 2018, although the facts are disputed. It seems that, on this day, the father and the mother were arguing. The father was working on the roof and I accept the mother’s evidence that he was drinking heavily on this occasion. It seems that the father became upset at some point in the course of the day, probably while intoxicated, and I accept that the father said to P, “Choose a colour of rope out of a box in the garage.” P then chose the rope and the mother says she saw the father start tying a noose in front of P using the rope that P had chosen.
The mother says that she said to the father, “I guess we aren't going out for dinner?” which is a somewhat extraordinary thing to say. The father denies that the mother said this but, in any event, his evidence is that the mother had taunted him during the day by, effectively telling him to just go ahead and do it (ie. hang himself). I consider it more likely than not that she would have taunted him in this manner, though not necessarily expecting that he would actually do it. But even on the mother’s evidence her question, “I guess we aren't going out for dinner?” is dismissive of the situation and probably rather callous.
That said, it is clear that the father was highly distressed and upset. Almost certainly over the alcohol limit for driving, he then left and went out in his vehicle for a period before returning to the property a little later.
I accept the mother’s evidence that the father grabbed a knife out of the kitchen and was walking outside the house, yelling and screaming, and that, at one point, he put himself on a stool from the kitchen out in the backyard near the noose. He was daring the mother, effectively, to kick the chair out from under him. She did not do so. She rang the Police and an Ambulance was also called. The father denied that there was a chair outside (under the noose). I prefer the mother’s evidence on this point.
The father was taken to hospital and was briefly treated at the mental health ward of the Town D Hospital. This was an example of an acute mental health breakdown by the father, one which tragically involved the child P and it was a matter of serious concern.
In mid-2018, there was another incident of family violence perpetrated by the father. On this occasion, the mother and the father were arguing. It was night time and Q was asleep. P woke up in the course of the argument. I accept the mother’s evidence that, on this occasion, the father pushed her to the floor (hurting her hand) and that he also punched the microwave oven, smashing the front glass door. The father did not admit to pushing the mother, but Police records reveal that the mother had an injured hand when they arrived and I accept that the father pushed her. Moreover, the father subsequently pleaded guilty to two (2) offences, namely destroy or damage property (being the microwave in question), as well as assault occasioning bodily harm to the mother. He cannot plead guilty to an offence of assault occasioning bodily harm and then deny that he assaulted the mother. The law does not permit him this luxury. I accept the mother’s evidence.
I should record here that, as a result of his violent behaviour, the father was given a Community Corrections Order, including a requirement that he attend anger management counselling. His earlier charge was dealt with by way of a re-sentence. Effectively, the section 10 bond was called up and he was fined $500. The father also admitted that he had an AVO taken out against him as a result of this event.
In case I did not say so earlier, I should also record that the father had had an AVO taken out against him in relation to his earlier offence concerning the mother of this other child who had attended the same school as his stepson (the vigilante event).
It is clear that the parents had a toxic relationship and, to that extent they are both in furious agreement. I am satisfied that there was mutual alcohol abuse and that the environment was anything but ideal for a child, particularly P who was effectively a witness to this event.
P came to the attention of the DCJ as a result of this event and some more matters were then disclosed by him.
As set out in exhibit 9, P was interviewed in relation to various goings-on in the home and what he disclosed was rather chilling. He was shaking and trembling and said that he was scared because his stepdad, that is the father, was coming home. He was scared he would be in a lot of trouble when he got home and that he would be sent to his room by his stepdad and only allowed out when he had to go to the toilet, eat dinner and go to school. He said when his stepdad is home he is always in trouble and has to stay in his room. He also said he does not feel safe when his stepdad comes home and he is worried he will be hurt by his stepdad. He was asked if his stepdad had hurt him before and he said, “Yes.” He said a couple of months ago that he was having a bath and some water got onto the bathroom floor, and that his stepdad got very angry and threw him into the bath and he hit his head hard against the wall.
I should record here that the father denied either locking the child in his room in this manner or ever raising a hand to him and, specifically denied throwing him against the wall. However the note records that P was sobbing and shaking as he told this story, and, on balance and having regard to the father’s other behavioural issues and his lack of impulse control when he got angry, I am satisfied these events occurred.
P also complained that the father had whacked him hard in the head after P made a mess by walking into the house with sand on his shoes. The father denied this event and I am satisfied that P was telling the truth.
P was clearly upset and worried. He told a story from a few weeks ago when he said the father had been drinking and gone out only to come home very angry and throw things around the house.
In short, I am satisfied that P was relaying actual events that were occurring within this turbulent and totally inappropriate home environment.
Following the events of August 2018 in particular, P was interviewed by DCJ and again he said that he had been witness to that event. He said that the father had gotten very angry at his mum and hurt her, that he had grabbed the microwave and smashed it on the ground. He said he was in his room when this was happening and he was very scared.
The father should hang his head in shame for this behaviour. It was family violence. The child was hurt.
Notably, the record goes on to say that P said that his mum was going to try and find a new house for them to live in, but apparently she had said this before.
This leads me to P's first removal from the care of the mother. The practical effect of this event is that, by agreement with DCJ, P was then placed with Mr R for a period of time before Mr R in turn placed P with his paternal grandmother.
Mr R said, and I accept, that the mother denied that the father had been violent to P. It was not a topic that the mother was in any way forthright about. She covered for the father and, in that sense, she failed to protect her son as well. The mother said that P had not told her about these alleged violent events that the father had perpetrated against him. I do not believe her in the same way that I do not believe the father when he says that these events did not occur. Both of these parents failed P dismally. At any rate, P went to live with his father, Mr R, and/or the paternal grandmother for a period of time.
The next significant event of family violence between the parents occurred in late 2018. On this occasion, the parents again got into an argument, a not uncommon situation. There is dispute about exactly what happened, but it is common ground, and I certainly accept, that the father physically attempted to remove the mother from the home immediately, including physically grabbing her and, effectively, dragging her across the floor to the front door of the home. He had her in such a position that his forearm was pressed against her upper chest and throat. She briefly struggled to breathe for a few seconds. He then grabbed her in the groin area and said to her, “What do I have to do, rape you to get you to leave? Is that what you want?”
The father denies saying these things. I do not accept the father’s evidence. The mother also says that he spat in her face, and I accept that he did so. The father threw the mother’s mobile phone outside the house. The mother went outside and called the Police. The father locked her out. I should record here that Q was still in the house in the bedroom at the time.
The father left the property but was later charged with a common assault of the mother as well as an assault with act of indecency and contravening the AVO. He did not even have time to undertake the anger management that he had previously been ordered to undertake; he had simply gotten into trouble too quickly for that to even be able to be implemented.
The father was sentenced to an Intensive Corrections Order, a serious sentence which is effectively equivalent to imprisonment within the community. He was required to undertake mental health plans and required to be supervised by Community Corrections.
I should record as well that the father in the witness box denies and minimises the physical actions that he undertook that day. He does not accept that he sexually assaulted the mother in any way on this occasion, notwithstanding his plea of guilty. I do not accept the father’s evidence in this respect. I cannot look behind his criminal conviction and I will not do so.
As I indicated, the parties’ relationship was a difficult and fractious one, and I am satisfied that there was family violence in the relationship, as I have indicated. I should also say that the nature of the father’s work at that stage was such that he was in Town C for about one (1) week out of every four (4) and was otherwise working in Region T. In practical terms, this meant that he was away from home far more often than he was at home. After 2019 the parties’ relationship may or may not have continued, but the practical reality is that the mother was still staying in the father’s Town C home and the father was largely absent.
In this period of seeming ambiguity in their relationship, there was one further breach of the AVO. In particular, the father was not supposed to be at the Town C property with the mother, but it seems to be common ground that he, in fact, was staying there and the mother took no particular issue with that. In late 2020, by which time young X had been born and was about eight (8) months old, Police undertook a random compliance check in terms of the AVO – driving past the home only to find the father there caring for the child, apparently at the request of the maternal grandmother. The father was charged with an offence of breaching the AVO, although, in the grand scheme of things, this is a relatively minor matter and certainly did not involve any particular violence. The father was simply given a section 10A conviction under the relevant New South Wales legislation but not given any other penalty, which reflects the nature of the conduct on this occasion.
There are some other concerning aspects in relation to the father’s behaviour and perhaps his lack of impulse control. Following the father's charge from 2016 (the vigilante event), he came to the attention of the relevant New South Wales authorities in relation to gun licences and, subsequently, his gun licence was revoked. I have before me as exhibit 8 a record of various matters relied upon by the regulatory authorities in denying the father a gun licence, and these record a number of additional matters to which I will briefly turn.
The first is that, on 4 September 2017, the father made a young person - unrelated to him - use his hat to pick up dog poo. This was, apparently, witnessed by another person. And, in response, the father commented that the young person (who was walking a dog) should have had a plastic bag with him. It was also suggested that the father was intoxicated at the time. The father denies telling this teenage boy that the boy had to pick up the dog poo, but I am satisfied that, whatever the father did say, the boy was sufficiently intimidated as to go and pick it up with his hat. It was an example of the father intimidating a young person.
The father, I indicate, is rather a heavily-built man and I have little doubt that his physical presence in combination with a raised voice could potentially intimidate people. To be fair, the father himself said in the witness box that he could see how people might find him intimidating, given his general body heaviness and appearance.
Exhibit 8 also records that, in February of 2018, the father had attended the W Shop in a shopping centre seeking assistance with his phone and that, when staff could not assist, he became irate and started abusing them before smashing a wooden chair within the store and being escorted out by security. The father says that he did become angry on this occasion but that the chair was right behind him and, effectively, he knocked it over and broke it by accident. Whatever happened - and the detail perhaps does not matter so much in relation to the chair - the fact of the matter is that the father was again behaving aggressively and was required to be removed.
The other matter which is referred to in exhibit 8, which is not otherwise addressed in the course of these reasons, concerns the Police retrieving a registered firearm apparently belonging to the father’s ex-de facto partner in 2018. It is alleged that, when Police attended the father’s Town C home on 13 April 2018, no-one was home, and that, when Police later attended, he was home and became aggressive and hostile towards them, telling them to come back during business hours. He was generally obstructive and aggressive and would not give them the firearm.
Having said that, the father later attended the Town D Police Station and surrendered the entire locked gun safe containing the firearm, with plasterboard attached to the safe, and it seems on his evidence that he, in fact, pulled or jimmied the firearm safe off the wall. He said that he was not able to have access to the code to open the gun safe at the time, given that his gun licence had already been suspended. His behaviour was somewhat erratic on this occasion as well, and somewhat aggressive, but at least he handed over the gun safe, albeit in perhaps a somewhat innovative way.
In December of 2020, the mother and the father finally got to the stage where continuing to, effectively, share a house, at least for one (1) week out of four (4), had become problematic, if not impossible. The father had formed a friendship with Ms F of some description and it is clear that the mother felt as though Ms F was getting between she and the father, even though the parents’ relationship was apparently ended, or perhaps more accurately was somewhat ambiguous.
Against the backdrop of some fairly significant angst expressed by the mother towards the father, it appears that in December of 2020 things came to a head and the mother ultimately decided to move out.
The mother says that on 22 December 2020, the father had told her that, when visiting the paternal grandmother, his own brother had attended at the home and that the father had chased his brother down the driveway with an axe before punching a hole in the window of his car as he drove off. There is no Police record about this event. The father was not asked about this event. I am unable to make a positive finding about what, if anything, happened on that occasion.
The mother says that there was a further argument between the parties just a few days later, when she says that the father went out to get some things for Christmas. She had asked him to get a case of beer, amongst the various other things that she had asked for, and she says that when he came home he did not bring her any alcohol. She asked him why and says that he started screaming at her that she was an alcoholic. She says she sent Q to his room, that she called her parents to tell them that the father was going “absolutely crazy” and that she was scared. She said that the father had told her to “just leave and fuck off”.
I accept that there was an argument which occurred on that day. I am not persuaded that I should accept the mother’s version of events in its totality, but I certainly accept that there was an argument. The mother left the home within a few days of that event, on 27 December 2020.
The mother immediately went to move in with a “friend” - and I put that word in inverted commas - one Mr Y, who lived in City Z. The mother said she did not want to stay living in the Town D region because she was afraid of the father and she wanted to get as far away from him as possible. The father did not initially know where the mother was staying but he soon found out.
I have already observed that the mother was herself quite abusive towards the father on occasions, and I have before me numerous texts from around this period in the lead-up to the mother leaving and subsequently which demonstrate on her part a capacity to lash out at the father very, very strongly.
In relation to Ms F in particular, the mother had texted the father in June of 2020 telling him:
...making sure you have all your shit. I don’t live and sleep with sluts. And by the way, [X] is off the cards. You’re right. We are done. That was your last slut chance. No more porn, oh no, I’m done. Oh, apparently not. Missus says count me in. No, still. Likes to hide his dirty filth behind her back. S. L. U. T. -
as well as saying:
Fuck off to mama -
being a reference to the paternal grandmother, who by then the mother had fallen out with -
or [Ms F].
being a reference to Ms F.
The mother sent another message which reads:
And you’re right. I’m not carrying on. I’m out because you’re a liar and a cheating slut. My children deserve a man, not a fucking coward pathetic excuse for a man. Sluts are grubs. You just fucked with the wrong girl. I’m not as dumb as [Ms AA]-
being a reference to the father's ex-partner:
See you in court.
And then, when the father apparently blocked the mother’s access to bank accounts, she said:
The day you blocked me from accounts is the day you said goodbye to me and your daughter, so go and get yourself well and truly fucked. I will lodge her child support today. If they ask me in regards to when you see her, I will tell them this information, also get sent to protective children’s services and of course then the Police.
Call me a cunt for your stupid mental shit? You go to a solicitor. I have Legal Aid. It’s going to cost you 1800 straight up so put that on your list too, lol. You want to stay with [Ms F] stay with the cunt slut. You deserve each other. The first question will be “Are there any current AVOs?” “Yes.” “Has he been in contact with you?” “Yes.” Game over.
So have a good think today about what you plan on doing. If you're smart, you will apologise, because the next thing I will strip you of is all rights to your daughter, especially when you're abusive in front of her all the time. [Q] is old enough to give evidence -
and I pause here to record that, at the time that that particular message was sent, Q was all of six (6) years old, this message being sent in 2020.
And also in the same exhibit 27, the mother sends the father messages which read:
For all those people that know [Mr Jinks], his slut missus name is [Ms F] -
I pause here to say that is the same person as Ms F -
and he walked out on his own daughter on camera to say she was more important than his daughter. Dog. Cunt. Make sure you know I’m not changing the AVO. I’ll only be extending it magically. That’s why it has not been changed, because you're still psychotic, and your family. Your mother is dead to myself and [X], dead.
Also start calculating what you owe me because I’m leaving. I’ll give you a tip. I’m going to …., but you won't see me again. You will not even be able to hunt me. That was your last walkout on your daughter, nut job. Make sure you kissed her goodbye. Oh, you didn’t? No, you just dumped her again like the cunt you are. I’m actually glad and relieved because you knew it was you last. Oh, and you better turn your pool heater off. It's going to get expensive.
The father responds by saying:
I would expect no different from you. Pool heater is off, but you don’t have a problem with drinking -
to which the mother says:
I’ll drink whatever the fuck I want in my own home. At least I don’t drink a whole bottle of rum and try and hang myself. Note that I walked away when you kicked the chair out from under you -
followed by a wink emoji. And the next message:
Actually, count yourself as dead to [X] also. Dead.
And also, as part of exhibit 27, the mother, referring to the paternal grandmother, says:
That cunt should not have her licence if she can't drive into a fucking mechanic. What a tard -
which I take to be an insulting reference to a “retard”:
I don’t give a fuck. Go drop dead, like I give a fuck what you do or where you’re going, LOL. You and your mother can fuck off.
So, although the father was convicted of a breach of AVO in late 2020, it would be telling but a fraction of the story to omit the mother's own highly abusive text messages to him.
Now, to be fair to the mother, I indicated that I can understand her position in being hurt or upset if she thought the father was carrying on some form of clandestine relationship with Ms F at that time. He may well have been, noting that she moved in with him not long after the mother had moved out of the home, apparently to give him “support” as a friend, even though Ms F was herself a married woman at the time with three (3) children. I do not judge Ms F for this; I merely make the observation that I can understand the mother feeling “jealous”. But by the same token, the mother herself says the parents’ relationship had ended in 2019, so it is all a bit mysterious to me. In any event, the mother was not entirely an innocent victim in this situation.
The mother moved up to the Region H, where she was living with Mr Y, who she tells me she was not in a relationship with. This is despite the fact that I have in evidence before me a photograph where they look very comfortable in each other’s company and he has got his arm around her waist. In any event, like many of the matters in this case, it is hard to separate fact from fiction.
What is clear is that, not long after the mother left, that the situation was quite extreme, tense and difficult for all concerned. The father was struggling with his mental health. He was not sure what was going to happen about being able to see his daughter. He attended upon mental health practitioners for treatment. He was clearly feeling anxious and depressed. He was prescribed an anti-depressant which he took for a relatively short period because it made him groggy, and he ultimately ended up stopping its use. He did at least seek some help for his mental health; however, it is clear on any view that he was struggling. His concern at that time is that he may not be able to have a relationship with his daughter, particularly in circumstances where the mother clearly had significant angst towards him.
The father wanted to be able to make some arrangement to see X and he contacted the mother on a number of occasions at the beginning of January 2021. He was, effectively, texting her despite there being at that time a “no contact” AVO. He was charged with breaching the AVO by contacting her in January, and pleaded guilty and was fined a sum of $500.
It appears that, at this stage, the mother was motivated to a very large degree by her anger and perhaps her sense of hurt about the father and his relationship with Ms F rather than by any particular fear of him. I accept that the father had behaved in a violent manner towards her, but it is quite apparent that the mother had a significant animus against Ms F from the beginning and that this animus has continued unabated.
At that time, the mother appears to have decided to “up the ante” to some extent with Police. In my view, she was doing so to punish the father, particularly for his relationship with Ms F, whom she despised.
I have before me various exhibits which cause me concern in relation to what the mother was willing to say to Police about the father. In particular, exhibit 40 records that she complained to the Police about some calls she claimed to have received from the father of a threatening or harassing nature. The Police looked at her call log and considered that she was misleading them, as the father’s phone number only appeared once in that log following his arrest in January 2021. A check on the call record showed that the mother had actually rung him at 7.24 pm, speaking to him for four (4) minutes fifty-seven (57) seconds. This was to let him know she was travelling down from City Z to collect her property from his house.
Police pointed out to the mother that she had rung the father, and she pointed out that he had attempted to call her at 8.49 pm, which she did not answer. Police considered that no action was appropriate in the circumstances because, in their view:
Police do not think she is being truthful and she has demonstrated that in her version of events in which she was mostly evasive.
Police records also note that on 9 January 2021 they were shown various ‘Messenger’ screenshots by the mother. These were undated but did show the contact between the parents. According to Police:
Reading the messages, the victim is the main aggressor and antagoniser in the messages, calling the father names and the like and flaunting the non-contact AVO as a way to stop the father seeing their daughter. Nevertheless, the father has been continually contacting the victim in breach of the order.
Police also noted that, on 8 January 2021, some screenshots and Messenger messages showed a back-and-forth exchange between the parents. Upon reading the messages, Police considered that the mother appeared:
...as the antagoniser of the two, verbally bashing the accused, calling him offensive names and using the “fuck” word regularly. The father appeared to have measured and controlled responses. The victim does flaunt the non-contact AVO as a way to stop the accused seeing their daughter and talks about his fake solicitor and the car she alleges is hers but registered to him.
In short, Police had concerns in relation to the mother's motivations. Those concerns were well and truly justified.
The above reference to “the car” is a reference to Motor Vehicle 1. This vehicle is registered in the father’s name, and in relation to the property settlement proceedings the parties are in some dispute about their respective contributions to it. It is common ground that the vehicle was registered in the father’s name and that Ms F had collected it from the residence of the maternal grandparents without their consent but with the father’s authority to do so. It was something which the mother took umbrage about, understandably in the sense that she says there was property in it that belonged to her, most particularly of relevance a car seat, which Ms F accepted was the case.
The mother had some reasons to be annoyed but she was clearly, in my view, using the AVO as a “sword” rather than a “shield” and her messages to the father do not sit with the evidence she would otherwise have me believe, namely, that she is “terrified” of him. I do not believe she is terrified of him at all.
On 27 March 2021, the father filed his Initiating Application in these proceedings. The matter came before the Court on 23 April 2021, at which time an interim order was made by consent before me. Relevantly, the interim order provided that X live with the mother and that the father spend supervised time with X as agreed between the parents in writing and, failing agreement, through the BB Contact Centre at the dates and times nominated by the Centre and as can be accommodated by them, being not less than two (2) hours per fortnight.
I should say that, at or about the time this order was made, the child P ended up back in the mother’s care again although the mother had not had much to do with P during the time that he had been living with both Mr R and then the paternal grandmother. Indeed, the mother had not even told P about X being born, P only discovering it later, when he saw her.
The mother got P back in her care because she simply refused to return him to the paternal grandmother after a visit. The position the mother took was that the 2018 arrangements were not a formal order or requirement of DCJ and, on that basis, she simply was not returning P to the paternal grandmother. The mother had had very limited involvement with P while he had been living with the paternal grandmother and, in my view, it was a serious error of judgment on her part in deciding to keep P in her care. Nonetheless, that is what she did. As will be seen, her decision to retain P put him squarely in harm's way much later, in early 2022. She was not putting P's best interests first. She was more focused on her own interests.
The first occasion that the father was able to spend time with X pursuant to the interim order was on 2 July 2021. On that day, the mother effectively accuses Ms F of stalking her in her car. The mother certainly complained to the centre that she was being followed around by Ms F and the case worker observed that Ms F’s car was following the mother at the time the mother was leaving the building. It was also observed in the contact centre notes - these are exhibit 14 - that the mother had entered the centre very quickly on that day and that the older boys who were with her appeared to be shaken. According to the notes, the mother told the centre that the father’s girlfriend (Ms F), was in the car, was following them and recording them.
Ms F denied that there was any deliberate act on her part to stalk or intimidate the mother. Effectively, her evidence is that it was a misunderstanding or a mistake and that she initially did not realise that it was the mother.
I do not accept that Ms F was behaving in a deliberately stalking manner on this occasion and I prefer the evidence of Ms F in this respect. That said, I can understand why the mother may have thought the worst of the situation.
The father's last breach of AVO had in fact occurred on 12 February 2021 in the lead-up to him bringing proceedings against the mother. According to the mother, she had been standing outside her home in City Z when she saw the father driving up the cul-de-sac; the person sitting in the passenger seat was Ms F, and the mother heard words to the effect of, “I'm going to fucking kill you, you cunt,” coming from the direction of the car. The mother said she did not give the father her address and that she was anxious and nervous as a result of his behaviour.
The father admits in his evidence that he had the mother’s address and sets out how he obtained it. He denies that he said anything aggressive to the mother in terms of a threat of this nature, and I do not accept that he, in fact, uttered that threat. I do, however, accept that he was with Ms F; that they drove past the home; that the mother saw them; that it was a breach of the AVO. As a result of this breach, the father was ordered to undertake a Community Corrections Order for nine (9) months. Against that backdrop, I can, as I say, understand why the mother had concerns about the event on 2 July 2021.
Following an interim hearing before a Senior Judicial Registrar, orders were made on 15 October 2021 the effect of which was that the father’s supervised time was to continue in accordance with the earlier consent order that I had made.
It would be fair to say that there were many cancellations of visits which followed the making of interim orders. The mother cancelled numerous visits, certainly more than the father did. His reasons for cancelling related to his inability to change work rosters at short notice, and particularly in relation to make-up time.
In my view, the mother was less than enthusiastic about the father spending time with the child and put in what might fairly be called the minimum effort on her part.
Nonetheless, the visits between the father and X progressed in a generally positive manner. Certainly the child had not spent time with the father in a while and it took some getting used to him again, but their relationship was able to progress. The father was attending visits with X through 2021 and into 2022.
The last event of family violence in relation to the father occurred on 5 November 2021. This was an occasion where the mother had cancelled a supervised visit for the father and he was, understandably, upset about that. It seems that he and Ms F got into some sort of argument about what was happening with visits and about the father being, to put it simply, very upset about not being able to spend time with X. The father appears to have been feeling somewhat hopeless. He had, in fairness, already missed a number of visits by this stage.
The father and Ms F got into an argument and, when he pulled over in the car, she did not want to get out. He repeatedly told her to get out of the car but she refused. Her reasoning was that she wanted to sort things out with the father then and there rather than go to work for the day with things unresolved between them.
There is a dispute about exactly what happened in this regard, but it is certainly clear that the father and Ms F got into a rather loud and disturbing argument. The father wanted her to get out of the car and she was refusing to do so. The father, I am satisfied, became very frustrated with Ms F and he ended up getting out, opening the passenger door, grabbing Ms F’s bag and throwing it onto the footpath. The father said in the witness box that he had “put the bag” or “placed the bag” onto the footpath, which was broadly corroborated by Ms F. I do not believe the father and I do not believe Ms F. I am satisfied that the father threw her handbag.
The father was also yelling at Ms F. I do not accept that the father physically punched Ms F, nor do I accept that the father threatened to kill Ms F. I do, however, accept that the father punched and smashed a vehicle window adjacent to Ms F and that he picked Ms F up and grabbed her and, effectively, threw her out of the vehicle.
Neither the father nor Ms F want to admit the full extent of what the father did that day, which unfortunately reflects rather poorly on the credibility both of the father but also of Ms F. The father suggested that he had been leaning against an “already broken car window” which had been held together with tape and that, upon leaning against the window, it had simply “broken”. I do not accept that evidence for a minute. He punched the window.
I also consider that Ms F witnessed him punch the window. She was sitting right next to the window at the time. She may have been upset, but I am satisfied there is a very big difference between the sound of:
(a)leaning on a window and it cracking; and
(b)physically punching the window.
I am satisfied that the father punched that window and that he dragged Ms F out of the car.
Ms F was very upset that day. She had never previously experienced anything like that from the father and I accept her evidence that she has not experienced anything like that from him since. She found herself in a circumstance where Police attended and where they brought a charge of “intimidation” against the father, which he defended but which was ultimately the subject of a finding of guilt from the Local Court. That is to say, both Ms F and the father gave evidence (in the father’s defence) and the Magistrate, nonetheless, found the father guilty of intimidating Ms F.
In the course of these proceedings, I had specifically asked - and indeed directed - that I be given a copy of the learned Magistrate’s reasons for the finding of guilt. But despite being given some 1,300 pages or so of tender bundles, this useful evidence was not part of that material.
I have been provided with a copy of the relevant section of the Crimes (Domestic and Personal Violence) Act2007 (NSW) which demonstrates that the father was convicted beyond reasonable doubt of stalking or intimidating another person (Ms F) with the intention of causing her to fear physical or mental harm. By reference to the section, a copy of which I will annexe to these reasons when they are taken out in writing, it seems to be that a person can relevantly “intend to cause fear” of physical or mental harm if they know that the conduct is likely to cause fear in the other person, ie. it is an objective test. Indeed, a prosecutor is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
It may be that Ms F did not genuinely feel afraid of the father that day. She certainly continued a relationship with him. I accept that both she and the father were under fairly significant distress at the time given these ongoing proceedings and the sense, at least from Ms F’s perspective, that she felt that both herself and the father were being victimised by the mother. But in any event, the father was convicted of an act of family violence against Ms F. She then had an AVO taken out to protect her from the father.
In terms of the related charges, namely, a “common assault” and a “destroy or damage property”, these appear to have been either discontinued or perhaps withdrawn by Police.
Ms F was very upset about the AVO being taken out. She was adamant that an AVO was not necessary. And it seems to me that, in relation to this particular event, she gave evidence consistent with a classic family violence victim mentality. That is to say, she “covered for the father” and she was simply not reliable in terms of her version of events.
That said, I do accept Ms F’s evidence that this event was a one-off. It is, nonetheless, a matter of some seriousness that the father engaged in such behaviour, notwithstanding the pressure that he may have been under.
But, in terms of the mother's own circumstances, these too were unravelling to some extent.
The mother had formed some type of relationship with Ms V in 2021. Ms V is a fly-in, fly-out worker, and she and the mother had met on a dating platform, Ms V says around the end of 2021.
By agreement with the mother Ms V travelled to New South Wales, where she then immediately moved in with the mother, P, Q and X. It was only intended that Ms V would stay in the home for a matter of weeks, however State border closures then meant that Ms V ended up being stuck there until early 2022.
The evidence that Ms V gives about the mother - and which I accept - is nothing short of disturbing. I quote:
It wasn’t long before I started to observe [Ms Gamba] to misrepresent things. For example, I was never allowed to meet her “friend”, [Mr Y], as she told me his wife had left him for another female and she “didn’t know how to tell him”. I later learned [Mr Y] was, in fact, [Ms Gamba]’s other partner after I saw pictures of [Ms Gamba] and [Mr Y] on Facebook together. Another example was that she made up a story about how [Ms Gamba] and I met, as she didn’t want her parents to know we’d met online so she told them we’d met “through a mutual friend”.
In relation to the mother's attitude to the father, Ms V says that, in December of 2021, they had received a Christmas card for X, which the father had apparently sent to Mr Y’s address where the mother had previously been living in City Z. By this stage, I should say the mother was living in Town CC or Town DD.
The mother, apparently, was concerned about the card because it had no stamp on it and only a yellow strip on the bottom of the envelope, and she said to Ms V that it must have been hand-delivered. She was going to go to Police about it because the father was not allowed any contact with her or to be near Mr Y's house. Ms V told her that it was not uncommon for cards sent around Christmas not to have a stamp but instead to have the yellow strip on the bottom of the envelope which shows it has been processed through an Australia Post sorting facility.
The mother did, in fact, go to Police about this matter but she did not offer up the information that Ms V had given to her in relation to it potentially being entirely innocent. I accept Ms V's evidence that the mother was not, in fact, interested in anything Ms V had to say to the extent it might have exculpated the father.
The mother’s animus against the father had been obvious to Ms V from the very beginning. Early on, when the parties were still communicating over the internet, the mother had in three (3) separate messages to Ms V threatened to “kill” the father. I have seen the messages and it might be said that they were ‘jokes’, but there is nothing particularly funny about any of the messages and, frankly, I find them disturbing. They demonstrate the degree of hatred that the mother felt towards the father and her willingness to talk with Ms V, who she barely knew at that time, about the desire to kill the father, or at least expressing that she might do so, is telling.
Ms V also says that, in January of 2022, that the mother used Ms V’s phone without her consent to message both the father and Ms F through Ms V’s Messenger account on Facebook. Ms V says that the mother’s messages were menacing. The relevant messages are set out in exhibit 48 and it suffices to say that, effectively, the message was being sent in such a way as to suggest to Ms F that the father had been attempting to contact Ms V interstate, attempting to “friend” her in some way. It was clearly, on any view, an attempt to interfere in the relationship between the father and Ms F. There is no other way to reasonably view that message. It was the mother being malicious.
To be fair, Ms F apparently had a “tip-off” from the father of some kind and was able to ascertain that it was a fake message. Ms F responded, perhaps tit-for-tat, by suggesting she was pregnant. It is all rather a sad affair.
But, in the meantime, Ms V was disturbed by what she was seeing in the mother’s home. On her own admission, she accepts that she and the mother drank a carton of beer at least every second day and that they would have a couple (and up to four (4)) beers each prior to drinking a carton. Ms V said in the witness box that she was “not able to keep up with the mother” when it came to drinking. I accept Ms V’s evidence the mother drank at least half the contents of those cartons (and in all likelihood more than half), together with some beer at the Town DD Hotel.
Ms V said that the mother, when affected by alcohol, would ramble and argue for hours, go around in circles aimlessly, trying to make a point where there was no point at all. I accept her evidence about that.
In terms of routine in the home, Ms V said the following:
[X], who was the youngest of all the children, had no routine at all. She ate what and when she wanted and slept whenever she wanted. [Q], the middle child, was her little king -
(that is, Q was the mother’s “little king”):
[Q] never did anything wrong. Even if everything he did was wrong, he was perfect in [Ms Gamba]’s eyes. Then there was [P], [Ms Gamba]’s oldest boy. [P] was 11 at the time I met him. He seemed to be the one who [Ms Gamba] would yell at, bully and put down. I witnessed many days where [P] was absolute mistreated and taunted by [Ms Gamba]. [Ms Gamba] would approach him and yell at him as loud as she could and continued to do so on and off for hours each day. It upset me to see the way she spoke to [P]. I never said anything to [Ms Gamba], as these were her children and how she parented was her way. From an outsider's perspective, it was clear to me that the resentment [Ms Gamba] had for [P] was probably going to send him in a direction in life you wouldn’t want to see any child go.
I accept all of that evidence. The mother was, with Ms V, abusing alcohol and grossly neglecting the needs of her children as well as mistreating P.
Worse was to follow on 16 January 2022, this being the event that ultimately led to P again leaving the mother's care, though this time it was not the father's fault but, rather, the mother's fault.
The mother and Ms V had been arguing that day following yet another drinking session and the mother wanted Ms V to leave. While the mother had baby X on her hips, she kicked Ms V at least seven (7) times. When Ms V reminded her that she had “a baby in her arms”, the mother then head-butted her.
P was watching and was begging his mother to stop, and at one stage recording the events. Yet again he found himself in the middle of a family violence situation. He ultimately was so distressed he ended up throwing his phone (or dropping his phone) onto the ground, which caused it to break.
Police were called. The mother went into custody overnight. Ms V went to a house in Town EE before returning interstate within a short time.
Notably, the child P was afraid to stay in his mother’s home after she returned home. He was worried that he would be in trouble. He was scared of his mother. When Mr Y collected the mother from the Police Station and brought her back to the home, P soon decamped and went to the neighbour's house. The mother says that she had to take out a “missing persons” report.
P was afraid to stay in the home with his own mother, who had so abused him over the previous weeks - at least - being the period of time that Ms V witnessed. I say “at least” because it is certainly likely that she was mistreating P before Ms V was there, although I cannot make a positive finding about that.
P soon found himself back with Ms V, a woman he had only known for a matter of weeks but who he felt safer with than with his mother. From there, under the auspices of the DCJ, P was again reunited with his father Mr R and, more significantly with his paternal grandmother in Sydney.
In discussions with DCJ workers, P said that:
“I don’t feel safe with Mum. She verbally abuses me every day. She drinks every second or third day. I want to go back to Nan’s.”
P said he was afraid that the mother would “lose it if she found out” and what follows is then redacted and, presumably, it was a reference to her finding out that P had spoken to them and/or to the Police.
P told DCJ workers that he had not felt safe with the mother:
“She verbally abuses me every day. She drinks every second or third day.”
And he said that:
“I want to go back to Nan's.”
The DCJ workers considered that P was profoundly fearful and worried about the mother’s aggressive behaviours towards him.
Ms V returned interstate and, clearly, she decided to approach the father about giving evidence about the matters that concerned her. Her affidavit is chilling, to say the least.
P still makes contact with Ms V. He calls her to tell her that he is doing well and that he is now “happy and safe”. It is noteworthy that the mother, in the witness box, said that she chooses not to speak to P because of things he asks her about that she considers inappropriate, and also because of his ongoing contact with Ms V. I find the mother's attitude towards P disturbing to say the least - particularly given that on this occasion she was the one who was responsible for him being removed from her care.
I have concerns about the reliability of the evidence given by Mr M in a number of respects, but on this particular point I accept his evidence. I am satisfied that the father has denigrated Mr M to or in the presence of X and so I have concerns about his capacity to promote the relationship with the mother as well.
But overwhelmingly I am of the view that the father has a capacity - with difficulty - to promote the parent/child relationship whereas I have no such confidence, unfortunately, in the mother. On the primary consideration in section 60CC(2)(a), I am of the view that the only parent who has the capacity and willingness to promote a relationship with the other parent is the father.
In terms of section 60CC(2)(b), there are risks in both households which are multi-faceted.
I have already addressed the father's family violence. I will say, in relation to the father, that he has at least shown some insight and undertaken some attempts to improve himself. He did the LL Course, for perpetrators of family violence, attending nine (9) sessions between 14 October 2019 and 3 February 2020, as set out in exhibit 39. Unfortunately for him, he then went on to perpetrate more family violence, most notably the event of 5 November 2021 with Ms F, although I accept that was a “one-off “event.
The father has since enrolled in a ‘Men’s Behavioural Change’ program, which is enormously to his credit. He needs to do this program. In my view, the father is a man who goes through life akin to a “volcano”. He rumbles along and then, every so often, there is an explosion. He needs to control his temper and manage his emotions much better. But at least he is enrolled in the course and I accept that he has started it and that he is motivated to complete it, and I accept also that there have been some delays in him being able to get into the course.
I look at the mother and I see somebody who has had a history of relationships with violence, from Mr R, perhaps Mr S, and certainly in her relationship with the father. She was at the very least a verbal aggressor and has actively taunted him on many occasions, as well as making statements akin to threats that she actually wanted to have him killed - or wanted to kill him - as set out in the Ms V affidavit.
In some ways, the mother’s family violence is demonstrative of a more malevolent attitude than the father’s. The mother has a visceral dislike of him, but she has a problem managing anger and emotions as well, the same as the father does. Alcohol is a complication in this respect, and I will come to that in a minute. But what I want to say about the mother is I see zero evidence, and I underscore zero evidence, that she has any insight whatsoever as to the gravity of what she has herself done.
She struck me as remarkably ignorant, and I suspect she is unwilling to look in the mirror and see the problems that she has. The father might have some demons, but so too does the mother. The difference is the father at least glances in the mirror now and again, whereas the mother looks away. She prefers to call herself a victim of family violence, which she is, but she cannot cloak herself in victimhood forever and fail to take responsibility for her own family violence. She herself caused enormous damage to P, yet she will not admit to it, nor will she even speak to her own son if he raises issues that she finds disturbing.
The mother has absolute zero insight into her own perpetration of family violence, in my view. She is not even near the crossroads of change.
I said these issues were complicated by alcohol, and they are. The father has clearly consumed alcohol to excess in the past but there is no evidence that he has done so recently. He has provided CDT tests which are satisfactory and not indicative of abuse. The mother, on the other hand, in my view has had a continuing alcohol abuse issue, which was witnessed by Ms V as set out in her affidavit.
The mother claimed that she had greatly reduced her drinking and, in fact, no longer even drank when the children were in her care, according to paragraph 72 of her affidavit. She said this was, apparently, due to a “wake-up call” she received after what happened with Ms V.
I do not believe her. At paragraph 105 of the Family Report, Q told the report writer that Ms Gamba will consume alcohol when annoyed but was unsure as to how much Ms Gamba consumed. Given the mother’s longstanding issues with alcohol, as exemplified in all of the evidence before me, I do not accept that she has been able to simply “move on” from that in the way that she says she has. I just do not accept it to be true.
The mother has provided some CDT tests in the course of the proceedings. To be fair to her, the first test on 29 August 2022 was in the normal range, but her tests on 10 February 2023 and 7 June 2023 were inconclusive.
I consider that the mother has longstanding alcohol abuse issues which are not going to go away overnight and which, on all of the evidence before me, greatly contribute to her volatility and her own willingness to engage in family violence, thereby increasing the risk of her acting as a perpetrator in the future.
It is true that the father’s criminal history, at first glance, is much more extensive than the mother’s, but the history that the mother has is nonetheless serious and, given some of the messaging and the malevolence demonstrated thereby, is in some ways more chilling. But, in any event, the mother has no insight and no willingness to address the problems and, in those circumstances, my own view is that the risks of violence are about equal in each household.
In terms of mental health, yes, the father has had issues with his mental health. I accept that. I accept that he has displayed suicidality in terms of the event concerning the noose. I do accept, however, that Ms F assists him and that he has some insight in terms of going to seek help when he thinks that he needs it. He has been to see a psychologist, Ms MM, and I accept that the father has some recognition of what his triggers are and about issues of anxiety and depression. The father had posted a Facebook message in 2021 which contained a reference to the child not coming for her first birthday to his house. The father’s messaging that day could be consistent with a suicidal intent. There is no suggestion that the father acted on that, but it is a matter which the father needs to be aware of and which I am satisfied he does take reasonable steps to address, but the father needs to maintain his mental health to the optimum standard.
I accept that the father has had a longstanding issue with anger management in particular, and with depression at different times.
In my view, the mother also has mental health issues but I am unable to put a label on them. She was a very unusual witness in the sense that she betrayed not a glimpse of emotion at any point during four (4) days of hearing, a subject that was commented on in the course of closing submissions. In some ways, it is quite extraordinary. Some of the most painful and difficult topics imaginable were traversed in this hearing and yet the mother appeared throughout as a stone. Perhaps it is her way of coping or some form of mask. I do not know. The mother says that she has post-traumatic stress disorder but has no specific evidence about it. She has had some counselling, as set out in exhibit 3 to her affidavit, where it is clear that she was counselled extensively as a victim of family violence. It seems that she has moved on from that to a large extent. She says that she can function perfectly adequately at home but just does not like being in the father’s presence, as it makes her anxious. This may be true to an extent, but it also makes her angry to be in the father’s presence, and I consider her anger and resentment of him are more prominent than her anxiety.
The mother said she is on a mental health plan, which is probably a good thing, but I really do not know much about the mother’s mental health at all. I get rather the sense from the mother that there is a lot that I don’t know. Her mental health is like an iceberg: I can only see the surface, which is sufficiently disturbing that it frankly makes me wonder what lurks beneath. This is the mother who while pregnant with X, threatened the father that she would put the “little slag” up for adoption when she was born: exhibit 27. Though obviously she did not carry out that threat, such was the mother's visceral hatred of the father, at least at that time or in that moment.
I have concerns about the mother's mental health. I would be very surprised if she does not have some pretty significant mental health issues. But, in any event, I do accept that she has received at least some trauma counselling.
Overall, I consider that the risks to X are approximately equal in both households. I draw no distinction between the parents in terms of risk.
I should say in this regard that I do have some reservations about Mr M, given the messaging between he and the father which I touched upon earlier. It is clear that Mr M got into some sort of physical scuffle at work back at a time when he was friends with the father and his messaging to the father was along these lines.
Father: “Hope it wasn’t your wanking arm.”
[Mr M]: “My left hand, bro, and it's numb, lol. Old Rocky struck again last night.”
Father: “Get fucked. Who this time?”
[Mr M]: “Don't tell anyone, please, bro, but I had to stop […] from punching him out, […] didn't start on him. Give me a call when you can and I’ll fill you in. It’s funny.”
Mr M suffered quite a significant injury to his arm in this event. I don’t know what is particularly “funny” about that. He required corrective surgery. But what concerns me more is the reference to “old Rocky”, which implies a reference to the movie character Rocky, the fighter.
Also, Mr M saying (old Rocky) “strikes again” and the father's response “Who was it this time?” both indicate to me that Mr M had been in at least one earlier fist fight of some description before that one, and possibly several more. Who knows? What I do know is that that messaging is not at all consistent with Mr M’s evidence to me, wherein he suggested that he was attacked by a man with a bottle while walking someone else home and that it was, effectively, self-defence. Mr M, frankly, couldn’t even explain the content of his own messages, and yet he was the only one who could have done so. His inability to explain them, in combination with the content of the messages, causes me not to believe his evidence in that respect, and none of that is helpful when I consider the issue of risk in the mother’s home.
In terms of the “additional considerations”, s 60CC(3)(a), X is too young to express a view.
In terms of s 60CC(3)(b), the mother has always been X’s primary carer. I accept that. I have grave reservations about the quality of care that this mother gave to the child, particularly in the period when Ms V was a witness, but in likelihood probably for a period before then as well. The quality of care was grossly inadequate. It was neglectful. It was abusive. Having said that, I accept that the mother has been the primary carer to this child throughout her life.
I accept also that X has a bond with her brother Q and also her brother P, who she apparently misses.
I accept that X has an attachment to the father as well as a bond with Ms F and, no doubt, a developing bond with Mr M, with his son O, and with other relevant adults in the case. But no doubt the mother is the primary carer and the primary attachment.
In terms of s 60CC(3)(c), I accept that the mother has always been able, or been prepared to, make the decisions about X and to take all steps necessary as best she could to look after her. I also consider that the father has made every effort to spend time with X and to have a relationship with her, save for a period of a few months after the events of 5 November 2021, when the father was disillusioned and considering walking away from the proceedings.
In terms of s 60CC(3)(ca), no real submissions or evidence arise in this case and, in my view, it makes no difference.
In terms of s 60CC(3)(d), whatever order I make will be a big change in circumstances for the child.
I accept the evidence given by the Family Report writer that this is a case in which the Court is asked to choose the “lesser of two evils”. There is no ideal outcome in this case, just two less-than-ideal outcomes, as a direct result of the parenting and the parents that are before me.
When I turn to section 60CC(3)(e), there are practical difficulties and expenses in facilitating parent/child relationships once the mother moves to Town B, but these are, in my view, manageable. I do not suggest they will be easy but they are manageable. There are practical issues that do arise.
In terms of capacity and attitude [s 60CC(3)(f) and s 60CC(3)(i)], I have already expressed my concerns about both parents. My concerns about the mother’s attitude to parenting are much more significant than my concerns about the father’s attitude to parenting. I say that even notwithstanding exhibit 52, the letter from NN Childcare Centre, which indicates that in their observation the mother was providing quality of care to the child.
I accept that the mother does have a basic capacity to care for the child but it is also clear that she has almost no capacity to co-parent with the father, and in a context of separated couples the parenting of a child is one thing but the co-parenting is often the more significant point. I also consider that the father has the basic capacity to care for the child, even though he is untested in that role on a final basis.
I have addressed family violence [s 60CC(3)(j) & s 60CC(3)(k)] ad nauseam and I will say nothing more about it.
Whatever order I make involves risks of future litigation: s 60CC(3)(l). It would be most unhelpful if this child was to be the subject of further litigation. It is a risk on whatever order that I make.
WEIGHING UP THE COMPETING PROPOSALS
Ultimately then, the question comes down to this: which parent should X live with? In X's best interests, who is the parent better able to provide for her? The ICL and the Family Report writer both tell me that the father is in a stronger position to do so, notwithstanding some of his obvious poor behaviour and difficulties and notwithstanding his lack of insight in some respects.
Having weighed up all of these matters, I also consider a relevant matter the issue of stability. This child needs stability and would thrive from routine (s 60CC(3)(g)). The father, in my view, is in a position to provide stability to the child in spades, in the sense that I accept that he has lived in the Town C area for a very long time, has no intention to move, is in a committed relationship with Ms F, and that he will tailor his work around the child’s care needs. He accepts that it would be a massive change for the child, but I accept that he would be willing to put up photographs of the mother in the child’s room and to make efforts to promote the relationship between the child and the mother. I have no confidence in the mother’s capacity to foster a relationship between the father and the child whatsoever.
In those circumstances, weighing all of these matters up, I intend to order that this child live with the father immediately.
CONCLUSION & ORDERS
I propose to make orders which are essentially based on exhibit 54, being the ICL’s proposed orders.
I have however made a number of significant amendments.
I propose to order that the mother not have the time with X in the term 1 holiday in 2024 but I am going to order that she spend time with the child in early 2024 so that the child can attend the mother’s wedding to Mr M. That is to say, the mother will spend that period in lieu of the term 1 holidays next year. So I am not stopping the child going to the mother’s wedding; she should go to that wedding.
I am going to order, as order 7, that upon 14 days’ notice to the father that the mother will travel to the Town C area where she is at liberty to spend time with the child from after school or 3 pm Friday until commencement of school Monday. This is to occur no more than once in any school term, and not to occur in the present term. That is to say I am creating an effective ‘moratorium’ for time between the mother and X between now and the term 3 holidays.
For what it is worth, the reason for my putting in place the moratorium in relation to the weekend visit this term is because I accept the submission that the child needs a break from the mother’s hostility, negativity and denigration of the father and that the child needs time to settle into these arrangements.
So this time for one weekend per term is not going to happen this term. This child needs time to settle in with her dad.
In relation to handovers, if the child is going on a plane these can occur in an airport. I am sure that even these parties can manage not to get into a silly fight in front of people in an airport. But if it is not to occur at an airport then they should agree on a public place with CCTV. If they cannot do that, handover can be at a Police Station. I make that order very reluctantly. This child will not benefit from long-term Police Station handovers, and so I expect the parents to work towards some sensible agreed public places down the track, with CCTV.
I am ordering, effectively, some sharing of the travel costs. The father earns more money than the mother does. I expect the mother will be working. She indicated in her evidence that she was willing to pay the flight costs. I am satisfied both parties can afford it and, in my view, the handover arrangements are sensible and appropriate.
I am going to order video or phone communication in accordance with order 13 of the ICL’s draft, together with order 14 of the ICL’s draft.
I will order that within seven (7) days the father contact Mr R and request an arrangement for meaningful and ongoing video or in-person communication between the child and P. The father says that he can promote a relationship between X and P, given that he obviously has some form of communication with P’s father, and that should be able to occur.
Within seven days, the father is to enrol the child in child care and ensure she attends not less than two (2) days a week.
I am not going to restrain the father from using Ms F’s day care centre and thus require that X attend day care at a place other than where Ms F is. Such an injunction is unreasonable and inappropriate. I am not going to foist that burden on the father and Ms F for no good reason. X knows Ms F, she has a relationship with Ms F, and I see no problem in the child attending where Ms F goes. In my view, the mother’s suggestion that the child go to a day care centre other than the one Ms F attends at speaks for itself in terms of the mother’s lack of charity.
I make injunctions in accordance with order 17 of the ICL’s draft, which relates to non‑denigration, not exposing X to family violence, etc. They are all injunctions that I am satisfied are “appropriate”. Nothing more needs be said about those injunctions on the evidence in this case.
The ICL’s order 18 will become order 14. This is the restraints on the mother consuming alcohol above the legal limit as set out in that order; referring to the father as anything other than “Dad” or “Daddy”; but also the father be restrained by injunction from referring to the mother as anything other than “Mum” or “Mummy”.
I am going to order that, except in an emergency, the parties communicate by a parenting app as agreed and, failing agreement, through the app called AppClose, and communicate by text in the case of emergency. I want the parents to communicate by an app because apps like this are designed to help these parents. They are going to need some help, and the apps do not permit messages to be deleted or removed. They keep them as a record, and they also warn parents and prompt them if they are sending something inappropriate. These parents need this help. Text messages only in emergency.
I am going to additionally order that it is a condition of the father’s primary care of the child pursuant to these orders that he completes the ‘Men’s Behavioural Change’ program in which he is currently enrolled and provide a certificate of completion to the mother upon it being completed, so I am holding the father to his word on that. He offered through his counsel to agree to such an order and I consider it appropriate, as it ameliorates risk.
The ICL is to provide, or be requested to provide, a copy of this order to the Officer in Charge of the Town D Police Station, the City E Police Station and the Brisbane Police Station.
I am going to order that a copy of these reasons be taken out in writing and provided to the parties. That will take a few weeks.
I am going to order that a copy of these reasons and orders be provided by the Court to the DCJ (NSW) and to the Queensland child welfare authority so that both of these departments have before them the Court’s reasons and a raft of factual findings so that they know who these parties are in the event of any future complaint.
I am going to add the notations.
CONCLUSION
This is not a case where either party should see themselves as having “won” or “lost” anything, though I have no doubt the father is ecstatic and the mother is gutted. I have no doubt about that.
The most important thing for this child is that the parents, through gritted teeth if necessary, work together and implement the orders, ie. make the orders happen. I do not want to see this matter back in Court at any future time.
I do not consider the child to be at “unacceptable risk” of harm if the parties abide by these orders.
I note with melancholy that Q’s relationship with X is something of a sad casualty of the orders I make, but I am nonetheless led to conclusion on the weight of the evidence that the orders I make are in X’s best interests.
Judgment in the property proceedings otherwise remains reserved. If the ICL pursues costs against either parent, then I will direct that the ICL file and serve an Application in a Proceeding within 28 days with appropriate submissions as to costs, noting that I express great reluctance to make a costs order in this case.
I certify that the preceding two hundred and seventy (270) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 21 July 2023
CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 13
Stalking or intimidation with intent to cause fear of physical or mental harm
13 Stalking or intimidation with intent to cause fear of physical or mental harm
(1)A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
Maximum penalty--Imprisonment for 5 years or 50 penalty units, or both.
(2)For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.
(3)For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
(4)For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
(5)A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
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