Judds & Gatwood
[2021] FCCA 1911
•18 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Judds & Gatwood [2021] FCCA 1911
File number(s): MLC 7991 of 2016 Judgment of: JUDGE HARLAND Date of judgment: 18 August 2021 Catchwords: FAMILY LAW – family violence – unacceptable risk – whether or not the father should have supervised time – whether or not there should be family therapy between father and daughter and if so the purpose of such therapy Legislation: Family Law Act 1975 (Cth), pt VII, ss 4, 60B(1), 60B(2), 60CA, 60CC(2)(a)(b), 60CC(2A), 60CC(3), 62B, 64, 65DA(2), 68B, 68Q, 69ZW Cases cited: Johnson & Page (2007) FLC 93-344
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
N & S and the Separate Representative (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Potter & Potter (2007) FLC 93-326
Sigley & Evor [2011] FamCAFC 22
Stott & Holgar [2017] FamCAFC 152
Waterford & Waterford [2013] FamCA 33
Other: Family Court of Australia, Family Violence Best Practice Principles, 4th edition, December 2016
School of Law, The University of Queensland, National Domestic and Family Violence Bench Book (2018) <
Number of paragraphs: 281 Date of last submission/s: by way of written submissions on 11 June 2021 Date of hearing: 5-7 and 19 May 2021 Place: Melbourne Counsel for the Applicant: Ms Johnson Solicitor for the Applicant: Elsum Family Law Counsel for the Respondent: Mr Glezakos Solicitor for the Respondent: MMH Lawyers Counsel for the Independent Children's Lawyer: Ms Mallett Solicitor for the Independent Children's Lawyer: Leslie Family Law ORDERS
MLC 7991 of 2016 BETWEEN: MR JUDDS
Applicant
AND: MS GATWOOD
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
18 AUGUST 2021
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The Mother have sole parental responsibility for the child X born in 2010 (“X”).
3.X live with the Mother.
4.The Father be permitted to send letters, cards and brief video messages and photographs to X via a designated PO Box and email address established for this purpose and at a frequency of no more than once per month and on special occasions (when he may also include an appropriate gift).
5.The Mother is to continue X’s engagement with B Counselling (or such other similar service as is available in the event of a need to change provider) and to facilitate X receiving the material described in Order 4 herein within this setting.
6.In the event that X wishes to send any reply or return information to the Father, the Mother is to facilitate this via the same designated PO Box and email address as appropriate.
7.Time between X and the Father otherwise occur on four occasions per year (one to occur during each school holiday period) under the therapeutic supervision of C Psychology Service, Ms D or such other equivalent provider as agreed between the parties or in default of agreement recommended by the Independent Children’s Lawyer, with the costs of such supervised time to be met by the Father.
8.The Father has liberty to provide a copy of:
(a)Dr E’s Report;
(b)Mr F’s Report;
(c)The Family Report of Ms G; and
(d)The Reasons for Judgment of Her Honour Judge Harland dated 18 August 2021.
to any treating psychologist or family therapist that he may attend or that may supervise his time with X, save and except that he may NOT provide the same or any other Court document to Mr H.
9.Pursuant to s 68B of the Family Law Act 1975 (Cth) other than as provided for in these orders, the Father be and is restrained from:
(a)Attending or approaching any place where the Mother and or X, lives, works or attends school save with the prior written consent of the Mother;
(b)Using aggressive, threatening or abusive words or behaviour towards or in the presence of X or her mother;
(c)Contacting X otherwise than in accordance with these orders or, as otherwise agreed in writing between himself and the Mother, including via SMS;
(d)Contacting the Mother, save via email or SMS for the purposes of negotiating, requesting or altering arrangements for time or communication with X, or in the case of emergency.
10.The appointment of the Independent Children’s Lawyer be discharged 12 months from the date of these Orders.
11.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
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 under the pseudonym Judds & Gatwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
1This matter involves X who is 11 years old. She lives with her mother and older brothers J, aged 19 and Mr K aged 22. The issue I must determine is whether or not X would be exposed to an unacceptable risk of harm if she was to re-establish a relationship with her father.
2The hearing originally took place over three days and was adjourned part heard for a fourth day on 19 May 2021. Following the final hearing date, the parties provided written submissions.
3At the end of the trial, the Independent Children’s Lawyer (“ICL”) submitted that orders should be made providing for X to have supervised identity time with her father in a therapeutic setting. The mother supports the orders proposed by the ICL
4At the end of the trial, the father submitted that X is not at an unacceptable risk and interim orders should be made for family therapy. He further submitted that depending on the outcome of that therapy, there should be a further hearing. The father submitted that if the Court finds X is exposed to an unacceptable risk of harm from the father, then the orders proposed by the ICL for family therapy are appropriate.
5The ICL and the mother sought orders that the father be required to seek leave before filing any further application. They conceded that the father is not a vexatious litigant. The father opposed the other orders proposed by the ICL requiring the father to seek leave before bringing further proceedings and satisfying various conditions. In the event the father brings a further application, he will need to establish that there has been a significant change of circumstances. There is not sufficient basis to place a further requirement on the father. I will not make an order requiring the father to seek leave before bringing a further application.
6For the reasons I shall explain I reach the conclusion that there is an unacceptable risk of harm if X were to resume spending supervised time with the father on a regular basis. I am of the view that it is in X’s best interests to engage in family therapy with the father in order for X to have her own experiences of the father in a safe environment. That view also carries with it some risk however so does preventing X from having any form of contact or communication with the father.
BACKGROUND
7The father is aged 47 and works in the trades industry. The mother is 47 and works as a health care worker.
8The parties started living together in late 1994. They married in 1999. They separated on 13 February 2016. Their divorce became final on 1 December 2017.
9There are 3 children of the relationship: Mr K born in 1999 aged 21, J born in 2002, aged 19 and X born in 2010 aged 11.
10In 2012 when Mr K was 12, he was in a serious motor vehicle accident which left him with traumatic brain injury. As a result of that injury, Mr K has at times, engaged in challenging, impulsive and oppositional behaviour.
THE PREVIOUS PROCEEDINGS
11The parties were involved in previous proceedings in 2016 and obtained a family report from Dr E. The report is dated 17 June 2017. The report was never tested as the father withdrew from the proceedings on the first day of the final hearing. Her Honour Judge Bender made orders and notations on an undefended basis which included the following:
1.All previous parenting orders be discharged.
2.The Mother have sole parental responsibility for the children J born in 2002 (“J”) and X born in 2010 (“X”).
3.J and X live with the Mother.
4.The Father spend supervised time with X as agreed between the parents.
5.The Mother enrol and attend a parenting skills program.
6.The Mother provide the Department of Health and Human Services with a copy of these orders.
AND THE COURT NOTES THAT:
A.Pursuant to section 68Q of the Family Law Act 1975 (Cth) (“the Act”) in the event of any inconsistency between a family violence order and an order made under the Act, the latter will prevail.
B.Given J’s age the Father has not pursued orders for time between himself and J during these proceedings.
C.The Father this day has withdrawn from proceedings.
12The father commenced the current proceedings on 5 August 2019. The father has not spent any time with X since the final orders made on 10 July 2017. Prior to that and during the previous proceedings, the father’s time with X was being professionally supervised at L children’s contact centre in Suburb M. The father’s case is that he has complied with every requirement made of him, which have been significant, but that despite this the mother will not facilitate a relationship between himself and X.
DR E’s 2017 FAMILY REPORT
13It is necessary to refer to Dr E’s family report in some detail. Whilst the report was prepared for the previous proceedings commenced in 2016 and Dr E was not called to give evidence in those proceedings or the current proceedings, the report and its recommendations were of significance in these proceedings and referred to by all parties and the family consultant Ms G, who provided a further family report for the current proceedings.
14Dr E recommended that the mother have sole parental responsibility and the father spend supervised time with X, noting that if the father met certain criteria then the need for supervision or substantial attendance would be reduced. He recommended that the father complete tailored psychological intervention addressing the behavioural concerns outlined in the report and that he not continue seeing Mr H but see an AHPRA endorsed forensic psychologist. He also recommended that the father complete a neuropsychological assessment. Dr E noted the parties’ disparate accounts of their relationship. The father described himself as a loving and supportive father, actively involved in community organisations supporting disabled and at risk children.
15The mother described the father as violent and controlling to Dr E. She described incidents of family violence which increased as the children became older and included physical as well as coercive and controlling violence. The mother says the children were exposed to this and at times the boys were subjected to the father’s violence directly. Since the parties separated there have been several incidents, including physical altercations between Mr K and the father and multiple breaches of intervention orders.
16The father was required to leave the former matrimonial home in 2016 pursuant to an interim accommodation order made in the Children’s Court. Dr E refers to the information provided in the report by the Department of Health and Human Services’ (“the Department”)[1].
[1] Now known as the Department of Families, Fairness and Housing
17Dr E referred to the father’s language and expression as being hard to understand at times. The father told him he had long struggled with his speech and said this was not due to boxing. Dr E noted that at times his narrative was rambling and lacked substance. The father consistently blames others, including the mother, the Department, contact supervisors and the victims of his assaults for various situations he finds himself in.
18The father claimed that the mother’s allegations of family violence were baseless. He acknowledged that his relationship with Mr K was damaged, however blamed Mr K and the mother for Mr K’s behaviour.
19Dr E found the mother to be composed, considered and child focused. Her narrative was internally consistent. She told Dr E she was scared of the father. They disagreed about the appropriate parenting style of Mr K. She says she used behaviour management, counselling and reasoning with the children, whereas the father used a rigid, direct and aggressive approach with Mr K and J.
20The mother described a long history of family violence. She stated that during the early years of their relationship, there were one or two incidents a year. The father’s behaviour escalated significantly in the later years. The father also got into physical altercations outside the home, including with neighbours and people at the pub.
21The mother was adamant that the father has some sort of psychiatric or neurological issue. She acknowledged that X loved and wanted to see her father but was concerned about X’s exposure to his abuse and frustration with other people.
22Dr E interviewed Mr K who gave detailed and internally consistent accounts of past events. He referred to the father being “awesome” when they were younger but that he could be “extremely good or extremely bad”. He also referred to the father’s aggressive behaviour which included verbal and physical abuse and control. Mr K said X wants to see her father and said that, whilst the father is good with X, he also exposes X to his temper and frustration with other people. Mr K described J as confused about his relationship with his father.
23Dr E found J difficult to engage. He was extremely positive about his mother and described her stoicism in light of her recent cancer diagnosis. He described his father as aggressive and volatile. Although the more extreme episodes of violence were directed at Mr K, J said that he also witnessed physical violence against the mother. He wanted to make his own decision about seeing his father. He thought it would be good for X to continue to see her father and did not believe that she was at risk from him.
24X was six years old when Dr E interviewed her. She understood that her parents did not get along because of her father’s swearing and yelling and said that sometimes he yelled in front of her and she would cry. She described the father as good with little kids and not big kids as they talk back. She wanted to see him more.
25X witnessed the June 2016 incident, which involved a physical altercation between the father, Mr K and the mother. She told Dr E that the father:
“grabbed mum around the throat once and punched Mr K in the eye… He pushed mum into the bushes.”
She said it made her feel sad.
26The observations between X and each parent were positive.
27Dr E conducted a risk assessment and referred to research indicating that prior violent behaviour is the best indicator for ongoing aggression, with the risk increasing as the number of episodes escalate. He noted that even if the father’s denials were accepted, there were recurring documented episodes of violent behaviour throughout his adult life. He applied the HCR – 20 (version 3) to assess the father’s risk. He described it as a structured clinical judgement tool.
28Dr E identified various instances of antisocial behaviour by the father. He made reference to repeated conflicts he has with those around him, including an assault on an elderly neighbour, as well as the father showing “disregard for laws he deems unimportant or trivial”.
29Dr E also referred to possible difficulties with the father’s employment. The father has at most, been consistently employed throughout his adult life but there have been instances where he has been unemployed and struggled to find work. Problems with employment are often linked to criminal recidivism. Dr E said he was less concerned about this factor in this case.
30Dr E identified that the father has not been diagnosed with a personality disorder and was not assessed by him with respect to his personality function but noted that there was some aspects of the father’s behaviour which were consistent with a degree of egocentrism, entitlement, impulse sensitivity and narcissism which suggests that there may be personality issues present in the case.
31With respect to violent attitudes, Dr E noted that the father mainly engaged in a prosocial lifestyle contributing to the community, but given the frequency with which he has been involved in conflicts in the community and his disregard for family violence orders, it suggests he holds attitudes and beliefs which enable that conduct.
32The father showed little insight with respect to the array of triggers linked to his aggressive conduct, as well as the impact of his conduct on others and the way others perceive him. Dr E noted this raises serious questions about his capacity to change.
33Dr E referred to evidence of instability of the father’s mood, thinking and behaviour since the time the parties separated and likely beforehand as well. There have also been considerable changes in his lifestyle and personal circumstances of the past 12 to 18 months. Instability is linked with violent recidivism.
34Dr E noted that the father has undertaken a prolonged period of counselling with Mr H and that Mr H’s report was extremely favourable for the father. However, he expressed concerns about Mr H’s formulation and recommendations, noting that the father continued to exhibit violent behaviour during his period of treatment, including the altercation with his son and assault on the mother, multiple breaches of the intervention order and aggression towards child protection staff. This escalation occurring during the period the father was being treated by Mr H suggests that the impact of the treatment has been modest.
35Dr E noted that whilst the treatment by Mr H had been reported as very positive, he had concerns as to whether the father would continue to engage with professional services after the conclusion of the proceedings. He was concerned the father would not continue due to the father’s lack of insight into his behaviour, as well as the cessation of external pressures upon him to engage with such support services.
36Dr E thought that the descriptions of the father’s behaviour, thinking and emotional functioning by a range of people, as well as his involvement with combat sports for many years warranted there being a neuropsychological assessment of the father.
37Finally, Dr E referred to the material suggesting that the father has greater interpersonal difficulties when stressed and there are various foreseeable instances in the future which could be triggers for him. Given the various risk factors he assessed the father as being a moderate/elevated risk for future violent behaviour, with the risk being somewhat higher in the home setting.
38Dr E assessed that there was no way to salvage any co-parenting relationship, noting the parents’ communication is non-existent. All three children were comfortable and attached to the mother. He suspected at times the mother has struggled to manage the older two boys’ behaviour but that is a distinct issue separate from the parent-child bond that exists between them, and he recommended that the mother could benefit from a parenting skills class dealing with challenging teenage behaviour. The relationship between Mr K and his father had completely broken down. J presented as quite confused and in some respects sought a connection with his father but was also resentful of him, and stressed about his father’s behaviour. X loved and missed her father and wanted to spend more time with him that was more meaningful than restricted supervised contact. He noted that the father was very good with X and was affectionate, attentive and thoughtful towards her but the reality was that there had multiple occasions where he had not protected her from his own aggressive behaviour.
39It is worthwhile setting out the concluding paragraphs and recommendations of Dr E in full as they inform the position taken by the mother and the ICL in the proceedings. They are as follows:
[61] Overwhelmingly, the most pressing consideration in this case is that of risk. Mrs Judds has alleged a long-standing and severe history of domestic abuse. She is detailed an array of instances in which she has been physically assaulted, though more commonly, controlled and verbally abused, She has described this as intensifying progressively in the latter stages of the union. She maintains that as Mr K became more independent, and as his behaviour/mental health declined, Mr Judds’ reactivity and aggressive tendencies became targeted towards their son. Mr Judds has refuted the allegations levelled against him, claiming simply that they are an attempt by the applicant mother to cause him emotional hurt. It is obviously the province of the Court to make determinations around disputed matters of fact, as exists in this case. Notwithstanding, from a clinical perspective, the preponderance of information available to me suggests that there was indeed aggressive behaviour exhibited by the respondent father within the family. For example, Mrs Judds was highly persuasive. She was clear, descriptive, and cogent in her account of marriage. Further, all of the children uniformly described their father as a violent and reactive. In addition, Mr Judds has been charged on repeated occasions with violence in the broader community. There is a known assault on the eldest child, necessitating treatment at the emergency department. Mr Judds has pleaded guilty on several occasions to breaching the intervention order. While there must necessarily be multiple hypotheses entertained in cases of this nature, collectively the fact pattern of the case strongly suggests that Mr Judds has problems with aggressive behaviour. In turn, I believe that the post-separation behaviour by the applicant mother has been entirely reasonable under the circumstances. I do not view her as a parent intent on excluding the involvement of the other party in the upbringing of the children. It is my assessment that she is a parent who has been exposed to domestic abuse and has made subsequent decisions from a position of concern about the safety of herself and the children.
[62] Unfortunately, is evident to me that Mr Judds has little insight into the impact of his behaviour on his former partner and 3 children. His total and utter denials of wrongdoing, in themselves, exclude this possibility. Whether he is merely maintaining this position overtly, or whether he believes he has done nothing wrong, I am unable to conclude with any confidence (although I suspect the latter). In my consultation with him, he has shown no evidence of introspection or understanding of his own triggers, cognitive/emotional processes, or belief systems that potentiate his difficult behaviour. The reality is that Mr Judds’ behaviour toward and around his children has caused considerable emotional unrest, particularly to the older two boys.
[63] I have serious reservations regarding the assessment by Mr Judds’ treating psychologist, Mr H, that the respondent father is an “extremely low” risk to his family. This appraisal, in my view, is fundamentally flawed. Without undertaking a thorough dissection of Mr H’s report, the basic reality that he would ascribe this risk appraisal to a man who has repeatedly breached a binding intervention order, who has seriously assaulted his son and former wife in the incident of mid-2016, and who has berated DHHS staff in the presence of his daughter, illustrates the glaring omissions in this appraisal. Moreover, for Mr H to suggest that the concerns of Child Protection are founded on “the personal feelings that the DHS workers may have towards Mr Judds, rather than a genuine concern for X’s welfare” is simplistic and wholly unsound in my view (and also overlooks the fact that a Children's Court judicial officer saw fit to make a protection order in this case). In short, I do not share the positive opinions proffered by Mr Judds’ psychologist, and do not concur that the respondent father is a man at “extremely low” risk of future violence towards members of his family.
[64] Having undertaken a formal risk assessment of this man, using a widely employed violence assessment tool, it is my view that Mr Judds is a moderate risk for further (general) violence. I suspect his risk for aggressive or abusive behaviour toward towards members of his family is rather higher. Specifically, there is a very real possibility that he could again breach the intervention order (particularly with J), that there could be an altercation with Mr K (perhaps around his son's involvement in the trades industry, or during a changeover with X), or that there could be verbal abuse of the applicant mother. All of these scenarios are entirely within the realm of possibility in my view. I do believe that there are various things that could mitigate these risk scenarios somewhat, albeit not entirely.
[65] Mrs Judds is concerned that there is risk for X being exposed to aggressive, agitated, or hostile behaviour by her father, while in his care. 1 understand why she has these concerns. The respondent has a demonstrated history of exposing his daughter to difficult exchanges with others. However, this child clearly seeks her relationship with her father. In the main, | believe he treats her well. It is my view that he should continue to spend time with her. Pending certain criteria, the requirement for him to be supervised around his daughter is modest. There is a very real possibility that X can benefit from having a relationship with her father, and in turn, she should be afforded the opportunity to do so, It is not my view that he will target her in a violent way. There are issues about him managing himself while in her presence, though some of the contributing factors that have existed in the past (i.e, DHHS involvement, changeover directly with Mrs Judds) could well be nullified under more suitable future care arrangements.
[66] Ultimately, this case relates to the amount of time that X and J spend with their father. It is my view that J should be permitted to exercise his own discretion regarding the amount and nature of the contact he has with Mr Judds. How his self-determining of arrangements would intersect with the provisions of the intervention order, is ultimately a matter for this Honourable Court and the Independent Children's Lawyer. From a clinical perspective, however, it is important that J feels he has some control over the relationship he pursues with his father. For X, it is my view that it is in her best interests to have some provision of time with Mr Judds. In absolute terms, she is of a development stage where she could quite capably negotiate a day a week (i.e, a weekend day, perhaps Saturday one week, and Sunday the next, from 10:00am - 5:00pm) in his care. In the immediate future, it would be best to work towards this target in a gradual/stepwise way. Mr Judds may not immediately be able to fulfil this provision of time, while he is interstate, though I do believe it is important for it to be available irrespective.
[67] In order for the above arrangements to proceed safely, it is my view that Mr Judds should undertake a tailored forensic intervention in relation to some of the behavioural concerns alluded to in this report. I do not believe that it is appropriate to continue with the current clinician, Mr H, during whose tenure the respondent father has continued to offend. I would recommend an AHPRA endorsed forensic psychologist. Further, there is a case for neuropsychological examination of Mr Judds. The fact that he was a professional boxer for 10 years, in itself, would be a clinical indicator for an assessment of this type. Let alone, the observations by those around him regarding his memory, affect, and behaviour. Should Mr Judds seek treatment, and complete an appropriate neuropsychological examination (and accompanying recommendations), there may not be the need for supervision on an ongoing basis. I would strongly recommend that all changeover involving X be facilitated by a third person, perhaps the paternal grandparents. This would minimise the potential for conflict between the parties involved in this case.
[68] In line with the opinions submitted above, there are several recommendations
(a) That, Mrs Judds assume sole parental responsibility for the two younger children of the marriage, J and X;
(b) That, Mrs Judds may be aided by completing a parenting skills program focussing on approaches for managing challenging behaviour by teenaged children;
(c) That, the middle child of the marriage, J, be permitted to self-determine the amount and configuration of time he spends with his father;
(d) That, the youngest child of the marriage, X, have provision for time with her father on a weekly basis (excluding overnight time);
(e) That, X could well accommodate spending time with her father for a period of several hours (e.g., from 10:00am until 5:00pm);
(f) That, should Mr Judds meet certain criteria, there would be a reduced need for supervision or an in substantive attendance condition;
(g) That, Mr Judds should complete a tailored psychological intervention with a suitably qualified forensic clinician, designed to address behavioural concerns outlined in this report;
(h) That, Mr Judds should complete a neuropsychological examination.
40As the father withdrew from the previous proceedings on the first day of trial there was little point in the Court making detailed orders with respect to the father’s spend time with arrangements and conditions for those arrangements. The mother was not obliged to consent to the father having supervised time on the father’s term. Nor was the father obliged to agree to the mother’s terms. The ICL was involved in the previous proceedings and says the orders were made in the context of Dr E’s report and the various recommendations he made.
THE CURRENT PROCEEDINGS
41When the father commenced the current proceedings he had continued to see Mr H, despite Dr E’s recommendations against this. The father had not seen another psychologist and had not undergone a neuropsychological examination.
42After hearing interim arguments, I gave reasons dated 6 May 2020 explaining that due to the nature of the risk issues and the material before me, it was not appropriate to order any interim time as the evidence needed to be tested. Given the nature of the risk issues raised in this case, the issue is firstly whether or not the father should spend time with X, and then if so on what conditions. As such, it was a matter that needed to be determined at trial and not an interim hearing.
43At the trial the father did not rely on the affidavit of his mother. He relied on the affidavit of his wife who was cross-examined.
44The father also relied on the affidavit of Ms N who conducted a neuropsychological assessment of the father and was not required for cross-examination. Ms N refers to the various cognitive tests she employed over a four hour period. The tests she conducted did not reveal any cognitive deficits. It was clear during cross-examination of the mother that she still claims the father has some sort of cognitive deficit as a result of his boxing, but she did not challenge Ms N’s report. I accept Ms N’s unchallenged evidence.
45The father also relied on the affidavit of Mr F, a clinical psychologist who provided a psychological assessment report of the father.
46The parties were extensively cross-examined. Mr F and the family consultant, Ms G, were also cross-examined.
THE FATHER’S HISTORY OF VIOLENCE
The father’s violence in the community
47The father’s history of violence was a concern in this case, with the father being subject to getting into fights with people unknown to him at pubs and clubs, as well as episodes of violence when the father was at secondary school.
48The father was cross-examined about his criminal record. In 1992 he was charged with assault of police and was fined $500. The father said that incident never occurred and that he failed to turn up to court. He says he barely remembers the incident and that he was at a party with several other people and he was one of the people who were charged that night. Despite saying he barely remembers the incident, he categorically denied assaulting police.
49The father does not recall being charged with being drunk in a public place and put on a 12 month community-based order in 1992.
50In 1994, the father was convicted and fined $1,000 for assaulting police, and resisting police or person assisting police. The father says he recalls that it occurred at the Suburb O Hotel. He cannot recall how it happened, but stated the security guard to the hotel threw him out. He says he was somehow charged with assaulting police although denies assaulting police. The father says he was with a group of people, and they were collected as a group and that they did scuffle however that was the extent of the incident. Again, although the father said he could not remember how it started, he was adamant that he did not instigate it. The father said he does not remember the charges arising out of the same incident relating to being drunk in a public place and resisting police or persons assisting police, however takes full responsibility.
51The father accepted that in 2006, he was convicted of recklessly causing injury. During proceedings at Suburb M Magistrate’s Court, the father said he injured the people who attacked his house, being his neighbours who cut the power to their property and tried to attack his children. He says he ran around the front of the house and there were six men and two girls with star pickets who attacked him. He said he defended himself and was charged because he hurt a couple of them. He could not recall if his neighbours were charged with anything. The father said that they hit him with the star pickets and he was injured, and that boulders were thrown into the house.
52In 2012, the father was convicted of intentionally causing injury and was sentenced to 2 months imprisonment wholly suspended, with the father required to complete an approved anger management course and provide proof of compliance. The father said that was another instance of him being a protective parent. He said that a person grabbed his boys, manhandled them, took their school bags, poisoned their dog and assaulted him and his son out the front of the house. They were also filming his children. He does not recall if they were charged as well.
Family violence
53In addition to violence in the community, there have been altercations with neighbours and with Mr K, and repeated breaches of intervention orders which the father pled guilty to. There are matters which the father has admitted and of which there are records. There are also the allegations of the mother with respect to family violence by the father throughout their relationship.
54Counsel for the ICL cross-examined the father about the incidents of violence that he described in his affidavit filed on 21 October 2019, whilst he was self-represented. The father outlined eight incidents he says occurred between 2012 and 2016. He describes Mr K as the perpetrator each time.
55The father said there was so much going on during that period and that he documented the incidents on his phone. As counsel for the ICL attempted to ask the father about specific incidents, the father spoke about that period of time being a “perfect storm of chaos in his life” and that he was “very stressed”, which is the reason as to why he is in Court now.
56At times throughout his cross-examination, the father became distressed and defensive. When answering questions he complained that he was being asked about events that occurred seven years ago. He said that he wrote what happened at the time and so therefore what he wrote was accurate. It was necessary to warn the father to listen to the questions and answers those questions.
57Counsel for the ICL asked the father to confirm that he was saying that he has done a lot of work with Mr H, Mr Q in Sydney and Mr F, and that through that work he has learnt that the way people say things can constitute verbal violence. The father agreed and added “and how we deliver the words: the tone, the tempo, the delivery, the facial expression, the body language”.
58He confirmed that apart from his work with Mr F, he had done all the work required of him with his other counsellors by the time he wrote that affidavit. Counsel for the ICL asked the father if he views himself as having committed any verbal violence when he considered what he had outlined in his affidavit. The father repeated his earlier refrain that he could have done things better and that it was a difficult period. She then suggested to the father that he was being very careful in his answers. It was only when pressed again that he said:
“in the past I must have committed - one hundred percent I did. 100% I did on occasions. 100% I did. 100% I used the wrong words at the wrong time, raise my voice when I shouldn’t have one hundred percent, yes.”
59When asked if he included any of those incidents in his affidavit, he said that what he put in his affidavit were snippets of notes and he did not add to those notes from the time he wrote them seven years ago – the notes had “just been picked up and put into” the affidavit. The father then became very defensive and went off track, stating that he found the questions offensive and that she was “so far wrong it’s not funny.” He also referred to his years of attempting to see X and the funds he has spent. It was necessary for me to intervene to explain that she was entitled to cross-examine him about what he put in his affidavit and explore what his perception and understanding of those incidents were. The father then said “there was no physical violence. There might have been a little bit of verbal violence and again that was over seven years ago so yes okay.” When the father said he may have raised his voice the ICL’s counsel asked the father to explain what his understanding of verbal violence was, whether it was any time anyone raised their voice. The father said that it is when you are being aggressive, threatening and intimidating and that raising your voice is another thing. The father then said he did not think he had committed verbal violence.
60The father went on to say that there would have been some moments where he was verbally violent, but he then tried to qualify this and accused counsel of “playing with words”. The significance of this line of questioning and the answers that he gave to both counsel is the father’s great care to avoid taking responsibility for perpetrating any type of violence in any real way. He was unable to give a specific example and whenever he made a small concession he then sought to qualify it. This is also consistent with the narrative in his affidavit prepared when he was representing himself, and in the extensive notes of his counselling sessions with Mr H.
61When he was asked directly to give one example of where he could reflect and say that on that occasion he had been verbally violent, he avoided answering and then referred to it being seven to eight years ago, and to having blocked a lot of that period from his mind because of the trauma. When asked if he could give a more recent example he said he been happily married and in a relationship the last six years.
62When counsel for the ICL raised the interactions between him and the mother taking place in the last seven years he referred to those interactions being in the form of text messages about presents he was unable to give his daughter directly. He also said that there was no substance to either of the accidental meetings at the supermarket or the park. When pressed again he said he could not remember a specific example of him being verbally violent. This is telling. The father has not taken any responsibility for his actions. He continues to portray himself as acting in self-defence and that what he did wrong was not to be there for the family.
63He was asked if he ever committed physical violence and his reply was that he had never punched his children. When pressed again he said that he has restrained someone if you can call that violence, and referred to protecting his children.
64I will set out the exchange between counsel for the ICL and the father with respect to physical violence.
Ms Mallett: What about any physical violence? Do you accept any occasion where you have committed physical violence?
Mr Judds: I have never, ever, ever, ever punched my children, never, ever.
Ms Mallett: That’s not the question I asked you, Mr Judds. I said, “Have you committed any physical violence”?
Mr Judds: I would say I’ve restrained ..... me phone unintentionally ..... you can call that violent. I’m not lying, because that
Ms Mallett: it wasn’t. What else?
Mr Judds: Yes, I ..... neighbour to protect my children.
Ms Mallett: Sorry?
Mr Judds: I said I ..... my neighbour to protect my children.
Ms Mallett: So nothing towards your children, any of them?
Mr Judds: Can you give me an example, please?
Ms Mallett: Look, Mr Judds, this is what I’m asking you: you state
Mr Judds: Well, you’ve
Ms Mallett: you’ve
Mr Judds: you’ve got something there. Tell me and then I will be able to respond to it.
Ms Mallett: I think you’re misunderstanding me, Mr Judds. As I said to you, I’m not trying to trick you. I’m saying – you’re telling this Court
Mr Judds: I’ve admitted that to you that there – that there was moments. 100 per cent there was. Otherwise, we wouldn’t be here now. We wouldn’t be here now
Ms Mallett: But that’s why it’s really important. Because do you see, Mr Judds, what you’ve said to her Honour is, “I’ve got to accept 100 per cent responsibility. There are things I could have done differently, and I accept that I didn’t handle things well.” So I’m actually asking you?
Mr Judds: Do you know the thing called being human?
Ms Mallett: So I’m asking you ?
Mr Judds: There’s a thing called being human, and a father, where he takes on too many things in life. Okay?
Incident at changeover in June 2016
65There was an incident that occurred at changeover in June 2016 and the mother annexed her police statement with respect to this incident to her affidavit. The mother gave her statement a few days after the incident on 21 June 2017. According to the mother the handover location was a short distance away from the house. The reason being was she did not want the father to come to her house. Mr K was with her as she found the father was less likely to speak to her if Mr K was there. In her statement she says that she walked over to the car and opened the passenger door and took out X’s suitcase. X got out of the car kissed her father on the cheek and went and stood on the footpath. Mr K walked over to the car and began a conversation with the father through the open rear passenger door. The mother says that although she could not hear what was being said it had become heated and she tried to take Mr K away. She saw the father pull Mr K into the car by his hair, Mr K then grabbed the father around his neck to try and stop him. She left X on the footpath and went to the driver’s side of the car to try and drag the father out of the car, so he would let go of Mr K. When that did not work, she grabbed the car keys from the ignition and threw them across the road. The father got out of the car and there was a scuffle between the mother and father, and Mr K came around to help his mother. The mother says that the father grabbed Mr K again by the hair and held him down. After screaming at him to let Mr K go, when he continued to hold him down the mother says she punched the father to try and get him to let go of Mr K. The mother says the father let go of Mr K and then punched her on her left shoulder and pushed her to the ground. Mr K grabbed and smashed the father’s mobile phone. The father then walked up to Mr K and punched him in the face with his left fist and then his right fist causing Mr K to fall to the ground. The father could not find his keys and was screaming at them. The mother says the father walked right up to her, grabbed her around the throat with both hands and pushed her against a fence. I note that this is consistent with what X told Dr E.
66After the incident, the mother took Mr K to R Hospital in Suburb M for treatment, but as the father was there they left and attended S Hospital. The mother says Mr K had a split on his left eye and she was concerned that he might have been concussed.
67The mother’s counsel took the father through the mother’s statement. The father denied the mother’s version of events. He says Mr K was abusing him and that he kept saying to the mother “are you going to allow this to happen? Are you going to stop this?” He says while he was saying this to the mother, Mr K was attacking him. He says that the mother then ran around the car and that whilst he was still seated in the driver’s seat with his seatbelt on, she started attacking him and took his keys. He denies getting into a scuffle with the mother.
68The father’s version of events is very different. The father’s description of this incident is consistent with the other incidents where he portrays himself as the passive bystander, forced to respond to protect himself and/or others. He says he had to go to hospital after the injuries the mother caused by attacking him whilst he was still in the car with his seat belt on.
69The father vehemently denied punching Mr K with both fists and referred to the fact that he is a boxer. The father says he was shocked by what happened and was so upset he went to a friend’s place and then the police station. He said he was too upset to make a statement and says the police told him to go to the hospital. The father claims that he was advised that because he had a couple of breaches of intervention orders, there was a possibility that he would be sentenced to jail time and if he made a mistake it was pleading guilty to that offence. He said he could not have done anything differently, except not stop the car, but then said that the mother knew that Mr K was not supposed to be there and he had to get X home. They are the only mistakes he admits to. The father denied that Mr K was injured. The father’s version of events is nonsensical, and is inconsistent with the evidence in the documents from the mother, Mr K and X.
70In cross-examination with the ICL’s counsel, the father said this about the incident which occurred on Sunday 19 June 2016:
Okay. Well, if that’s the situation I think it is, X was with me. We had been out for her birthday. She had been with me all weekend, and I was dropping her back at – with Ms Gatwood at home. And Mr K came out the front, and he’s not supposed to be there on drop-off or over handover, which had been explained before which – based on previous things. And so he walked out the front with Ms Gatwood. So she brought him out with her, and I’ve seen that and so I drove around the block again and waited for him to go. And I came back ..... the block and he hadn’t left, so I’ve still got to drop X off but it’s getting late. And so I – I dropped – I stopped the car and Mr K opened the back door and he got in the back door. And then he took it and X got out. We kissed goodbye and blah, blah, blah. And then – and so, yes, that’s true. And – and, yes, I should – yes. That’s true. Mr K – whatever. That’s true.
71The exchange continued:
Ms Mallett: All right. Now, what I understand you to say is that you do recall and describe both the mother and Mr K as having used physical violence on you. That’s right, isn’t it? You say both the mother
Mr Judds: Yes. I got king – I got king – I got king-hit by Ms Gatwood a couple of times
Ms Mallett: So you say you don’t recall any incident where you used violence on them, but you do say both Ms Gatwood and Mr K used violence on you?
Mr Judds: Are you talking about in the – in the car when I dropped off X?
Ms Mallett: I’m talking about multiple occasions?
Mr Judds: Well, there – there’s nothing ..... Ms Gatwood, so the one you’re – whatever you’re highlighting there was when we dropped off – when I dropped off X at the late-night drop-off, where Mr K was not supposed to be there.
Ms Mallett: All right. Page 130, please.
Mr Judds: So we will go to exactly what you say about it.
Her Honour: Is that paragraph 46?
Ms Mallett: Yes. Thank you, your Honour.
Her Honour: So just read that paragraph to yourself, Mr Judds.
Ms Mallett: So do you see there specifically the last line:
The respondent would physically abuse me, and whilst I would often need to cop the abuse, and at times I would need to restrain her to stop her physically abusing me
Ms Mallett: So you make a clear allegation that the perpetrator of family violence was the mother towards you in your relationship. Is that right?
Mr Judds: I never – what’s written is 100 per cent accurate
Ms Mallett: So are you accepting you say to her Honour the person who used family violence in that household was the mother?
Mr Judds: She ..... violence with me dozens of times.
Ms Mallett: Right. No incidents of you against her, but dozens of incidents of her against you?
Mr Judds: Okay. So
Ms Mallett: Is that right, Mr Judds?
Mr Judds: I’m casting my mind back and trying to remember all of these things that were going on, and I’m thankful – or I would have well appreciated some documentation on the homework I was going to need to do, and I haven’t done this – this part of it. I did most of it, but not this part.
Ms Mallett: Well, sorry, Mr Judds, but you had all the time in the world to prepare your court documents, didn’t you?
Mr Judds: No, no. I read all this. 100 per cent.
Ms Mallett: Yes. And in none of them, I’m suggesting to you – in none of them do you accept – this is why I’m asking you. So I’m giving you an opportunity – because, as I say, you don’t do it in any of your documents. I can’t just say you don’t do it. I have to take you to each of them?
Mr Judds: We’ve highlighted – you know, we’ve actually said here that – that there was violence in the family.
Ms Mallett: Yes?
Mr Judds: Okay. There was a period of – we’ve said that. So did I – did I identify individual situations, and now I’ve got to go back at the final hour to somehow bring them up to your attention? I’m not sure, and I’m – I’m sorry that I can’t do that immediately .....
Ms Mallett: No. I’m going to be much more specific than that. I’m going to say to you, Mr Judds, good and proper, that you have had all this time to think about it and prepare documents, and if there was any occasion where you accepted that you used towards her, you would have put it in there, wouldn’t you? And you haven’t put a single one. But you do put in a number of specific occasions where you say she used towards you?
Mr Judds: She was under a lot of stress, a lot of pressure.
Ms Mallett: No, I’m not asking for why. But that is what you say to the court, isn’t it? And you also say the other perpetrator of family violence in the house was Mr K. You specifically say Mr K perpetrated family violence on you, don’t you?
Mr Judds: I don’t like what you’re saying and how you’re doing it. You are so far from the truth it’s not funny. Now, Mr K was injured and damaged, and this is a kid I love to bits
Ms Mallett: Can you be shown paragraph 47, please, the next page down.
Ms Mallett: Your words, Mr Judds:
This was a terrible incident which involved verbal and physical abuse on myself and Mr K and the respondent.
Ms Mallett: Not my words; yours. You say to her Honour your son is the perpetrator
Mr Judds: My affidavit I stand true to, so whatever is written there – instead of me going through
Her Honour: Mr Judds, now you keep interrupting Ms Mallett?
Mr Judds: I’m sorry. Okay. Yes. Okay. I’m sorry.
Her Honour: Do you need a break?
Ms Mallett: No. I’m sorry. I will wait till you finish, and I won’t jump in the middle. I’m sorry
Ms Mallett: You say clearly to her Honour in that affidavit that Mr K perpetrated family violence against you, don’t you – physical violence and verbal violence on you?
Mr Judds: I don’t like saying that, but, yes, he did.
72The father insisted that X was “puppeting” what other people have said in the mother’s household when she told Dr E that she saw the father assault her mother and Mr K at changeover in June 2016. As I noted earlier, Dr E recorded X telling him that the father “grabbed mum around the throat once and punched Mr K in the eye…. He pushed mum into the bushes.” The father said that he would not call X a liar but said he has explained before that given his experience and expertise as a boxer, if he had punched a teenager he would not have gotten up. The father became extremely argumentative with counsel for the ICL when she began to explore the notion that given his experience and expertise, he would also be able to refrain from throwing a punch with his full strength. The father confirmed that boxing requires discipline and control and further confirmed that he has fantastic discipline and control, but somewhat inexplicably found that suggestion offensive.
73He went on to claim that X was nowhere nearby when the altercation took place, which he referred to as a scuffle, and then changed his wording and said it was a bump that maybe took a fraction of a second. Both Mr K and the father attended hospital with physical injuries after the incident. I reject the father’s contention that X did not witness the incident.
74Counsel for the ICL then explored with the father the notion of what he could have done differently with respect to the incident on 19 June 2016. She suggested to the father that the actual exchange of X took place without difficulty, with X getting out of the car, and kissing him goodbye. He disputed this and was then taken to paragraph 45 of his trial affidavit, where the father refers to Mr K opening the back door and unbuckling X, X getting her bag and kissing the father goodbye and then Mr K getting in the back. The father said that this was a mistake and challenged the suggestion that Mr K could have unbuckled X’s seat belt without getting into the car and as he was taken through his description of the incident in his affidavit, he complained that this was a play on words.
75The father rejected the suggestion that he could have left after X got out of the car because the door was open and Mr K was in the back seat. He then said the mother was also standing at the back door of the car. When asked how he would manage that handover differently he said:
“I would… allow it to happen, and I would allow myself to be attacked. I would just sit there like a dumbo and be attacked because there was nothing else I could have done…. The best choice would have been not to stop.”
76The father’s version of this incident lacked credibility, particularly with respect to his descriptions of how he claims Mr K got in the car and attacked him while he was sitting in the driver’s seat with his seatbelt still on.
77The father was cross-examined about the injuries that Mr K sustained. These were described in a letter addressed to Dr T by the Emergency Department at S Hospital. The letter noted on examination that Mr K had a grazed left kneecap and right ankle, bruised left lower eyelid with abrasions and slight blurriness in his left eye. He had a CT of his brain and face and x-ray of his right thumb and was observed with no acute concerns.
78The report of the father’s attendance also noted the scans were clean, that he had a laceration and was given three sutures and given a prescription for his pain. His chest x-ray was clear. I am satisfied on the balance of probabilities that there was a violent altercation between the father and Mr K and that the father was not a passive victim.
79When the father was asked to explain Mr K’s injuries he denied again ever hitting Mr K. He said Mr K must have gotten those injuries when they collided and that maybe Mr K hit the road. I do not accept the father’s evidence on this point.
The father’s supervised time with X
80When the Department was involved with the family and Children’s Court proceedings, the Department supervised the father’s time with X. The Department ended that arrangement after an incident with a worker. The father includes in his 2019 affidavit an email that he sent to Department workers and various other people, complaining about his how he was treated. His complaints include the Department workers were regularly late, meaning he had less time with X and complained that on the last occasion the Department worker was aggressive towards him, and had a preconceived negative opinion of boxing when she walked into his gym. The 69ZW report prepared by the Department and dated 6 November 2019 refers to the six occasions that the Department supervised the father’s contact with X. The report explained that the last contact visit was terminated and the police called because the father became angry and stood over the supervisor attempting to intimidate her. The worker ceased the visit with X crying, and arranged for the mother to collect X. The father said that his email was 100 percent accurate and that the Department’s version was defensive. The father claims that the police told him it was a joke when they arrived.
81When cross-examined about the incident with the Department’s final supervised visit, the father said he was not verbally abusive as the supervisor reported, however he confirmed his voice became raised. He said it was X who was most upset –not because she had witnessed the father raising his voice, but because she was missing out on seeing her dad, who she needed and wanted. Again the father said he could have handled the incident better. He said he could have been more tolerant of the Department worker and X being late, as well as “dictating the terms” of the visit, and that he should have stopped working with his client at the gym straight away. Counsel for the ICL attempted to encourage the father to view the incident from X’s perspective, noting at that time when she had very limited opportunities to see her father and that when she was there to see him he continued to work with a client rather than paying attention to her. The father said again the Department worker and X were 40 minutes late and he only spent three or four minutes with the client before turning to X. He also denied taking out his frustrations on the worker.
82The fact that the father could not accept responsibility for his part in the conflicts is concerning.
Breaches of Intervention Orders
83The father records in his trial affidavit that the mother has had a series of intervention orders against him continuously since 26 October 2015 and the children have also been named in those orders. Currently, Mr K has a separate intervention order against the father.
84The father acknowledges that he has breached the intervention orders on several occasions and has incurred several fines. He explains his actions at paragraph 27 as follows:
a number of the breaches have related to me sending messages or asking people to contact Ms Gatwood in relation to X or the children. I acknowledge that these actions were breaches of intervention order. I should not have asked my family/friends to breach the order on my behalf. I wanted the children to know that I still loved and cared about them. I did not appreciate the impact of my behaviour and any distress it may have caused Ms Gatwood or the children.
85Immediately following this the father refers to his working with children’s check, which is current. He says in 2018 he successfully avoided it being revoked after explaining the circumstances of the breaches of the interventions orders. The father seeks to excuse and justify his behaviour.
86On 16 March 2016, the father was fined without conviction for contravening a family violence order and contravening a condition of bail at the Suburb M Magistrate’s Court. The father said he did not fully understand the order and had attempted to arrange paying the mortgage with the mother. He talked to the mother at the school and asked her to follow him to the police station so that they could talk about the mortgage and other arrangements. He said the mother had obviously called ahead to the police station because when he arrived, he was arrested.
87As the mother’s counsel was taking him through other charges with respect to contravening family violence orders, the father said that if they are recorded there they are true and that they were all to do with text messages or with people passing on presents to the children for him.
88On 20 September 2016, the father was convicted of unlawful assault, contravening the family violence final order twice and was fined $3,000 with conviction. This was with respect to the June 2016 incident.
89When the mother’s counsel suggested to the father that his behaviour was considered to be very serious and reflected in the fact that he was fined such a significant sum. The father said
I’ve made two – two clear mistakes in all this, and that was – that was one. I should never have pleaded guilty to that. That was the legal advice that happened that day, and – and I accept all responsibility and it’s all my fault. But I never – I ever assaulted my son that day. What happened is Mr K attacked me from inside the car. He got my phone and he ran out of the car, and then Ms Gatwood attacked me. And for whatever reason I ended up at the hospital, and – and I – and I – yes. So that’s what happened and – and I’ve got to accept it. I could have done things better.[2]
[2] Transcript of proceedings [26]-[27]
90This is another example of the father asserting that he takes responsibility and yet seeks to justify his actions and blame the other person.
91The father admitted that he was convicted of persistently breaching the family violence order on 15 December 2017 and fined $1,500. He says this was as a result of his parents dropping presents around for the children for Christmas. He said that the presents were from the paternal grandparents, though he was charged. He said there were other occasions where he has asked others to drop presents off to the children for him and said “I shouldn’t have asked people, or people shouldn’t have offered me and I accepted that they do it.” Even here his admission is qualified and couched in terms of him being the bystander caught up in events. These types of breaches of intervention orders are not benign simply because they are not threatening. Any contact at all can cause harm. Involving family members and friends can worsen it as it places increased pressure on the victim of family violence. The mere act of contact, regardless of its intent can cause fear and further trauma. This is compounded by the fact that the father breached the intervention order on multiple occasions. That cannot be excused on the basis of not understanding the terms of the order. The size of the fines imposed reflect the seriousness of the father’s multiple breaches.
92He agreed that he was convicted for the persistent contravention of family violence orders on 12 July 2018 and fined $4,000. The LEAP records also refer to the father being required to comply with the lawful requirements of his treating psychologist Mr H, to enrol and participate in a men’s behavioural change course, and to provide evidence that he did so. The LEAP records further demonstrates that on 15 October 2020, the Court was satisfied that the father had complied with the terms of the bond and no conviction was recorded. This suggests that the Magistrate’s Court was satisfied that the father had engaged in a men’s behavioural change course.
93Again when describing the circumstances surrounding that conviction the father minimises his responsibility for his actions. He referred to there being many occasions and says once he had permission from the police to come to the house to collect his things but that the mother would not let him in. He said another time the mother was yelling but he got charged for breaching the intervention order, then said she was not supposed to be there. The consistent refrain of the father is to minimise his own behaviour and blame others.
94I set out the following exchange from the transcript between the mother’s counsel and the father:
Ms Johnson: Mr Judds, you would agree that there has been a lengthy number of years over which time you have been found guilty by Magistrates Courts of offences in relation to physical conduct, whether it’s assault or resisting arrest, of that ilk. You would agree with that, wouldn’t you?
Mr Judds: Well, on – on the paper, I have had seven years of – of breaching intervention orders, I – yes, six years.
Ms Johnson: Well, it’s not just that though, is it? There’s assaults as well?
Mr Judds: Well, there’s – there’s technically two, and yet both times I’m protecting my family and protecting my children. There’s technically two. Only two, and both times I was protecting my children and my family.
Ms Johnson: Well, there’s also reckless –
Mr Judds: And there’s only two, and
Ms Johnson: Recklessly causing injury as well. There’s –
Mr Judds: No, there – there – I explained that one. I should never have – I think – so I have explained that one. There’s two that I was protecting my family.
Ms Johnson: Well, I suggest to you that you are someone who just simply cannot take personal responsibility for your own violent behaviour. Do you agree with that?
Mr Judds: No, I totally don’t agree with that at all.
Ms Johnson: And you always try and point the finger at someone else, despite
Mr Judds: No, I have accepted everything. This is entirely my doing. These are mistakes that I have made and – and – and I
Ms Johnson: Well, can I say that, Mr Judds. I asked you before about the assault on Mr K, which you had a – well, it was a $3000 fine for that one, and you said, “I should never have pleaded guilty”. Well, that doesn’t sound like someone taking responsibility, does it? And you also go on to say, “I didn’t assault him”?
Mr Judds: So – but if I hadn’t done it – no, no, listen. Clearly, if I hadn’t done it, I should – I should plead guilty because – because that’s what I’m meant to do? I’m sorry, but no, I should not have pleaded guilty because I never did it, and what it also did, it put me in a situation that – that – locking me out of my daughter. So the decisions I made, I should never have accept – I should never have accepted the intervention order as I walked out of court, and I should never have pleaded guilty to – to the assault, and I otherwise should never have walked out from the first Family Court proceedings with Mr U back in 2017, because of financial extremes. I should never have walked out then. So they’re my mistakes, and I have got to accept them, and I’m sorry for X and my children that I haven’t been around to make it better.
Ms Johnson: Yes. Well, it seems to me that what you’re saying, your mistakes are that should have batted on at court. You shouldn’t have pled guilty?
Mr Judds: Yes. Yes.
Ms Johnson: Or alternatively, it was someone else’s fault?
Mr Judds: No, no, no, no. It’s ..... fault. I should have been on court – should have stayed in court.
Ms Johnson: Well, you have given evidence earlier that there was neighbours whose fault it really was and that’s why you did the things you did?
Mr Judds: I’m sorry. I’m sorry. But – I’m sorry, but that’s not true
95The consistent theme of the father’s evidence is to minimise his own behaviour and blame others.
96The Suburb M Magistrates’ Court discharged the father’s bond on 12 July 2018. Given this the Magistrates’ Court was presumably satisfied that the father complied with the bond conditions, one of which was that he undertake a men’s behavioural change course or equivalent. The father said he completed such a course and provided evidence to the Magistrates’ Court. It is clear from Mr H’s notes that his work with the father included elements of what is covered at a men’s behavioural change course.
THE FATHER’S RELATIONSHIP WITH MR K AND J
97In his trial affidavit, the father addresses his relationship with the mother and children. He refers to Mr K’s traumatic brain injury. The father attributes the problems regarding the family to have taken place after Mr K’s injury.
98Despite the father’s protests to the contrary, it is clear that the father blames others for the situations he finds himself in, including the mother, Mr K and J. He said he has to believe the mother is frightened of him because she says she is, but he rejected any suggestion that Mr K and J were scared of him. He referred to the fact that both boys have contacted him at different times.
99Counsel for the ICL put to the father that the boys could feel love and affection towards him and be scared of him at the same time. He rejected the proposition that the boys could love him even though they had been emotionally and physically abused by him. The father denied ever physically abusing them.
100It was telling that when asked about his earlier reference to J puppeting, the following exchange took place
Ms Mallett: you’ve described J as puppeting. Okay. You say the things that J says is puppeting. In saying that, are you saying that J doesn’t have his own view and his own beliefs about you?
Mr Judds: There’s obviously something with me. So you’ve asked me a question here. My son, J, has been intoxicating – self-indulging since I left the house. That is a fact. Never before; only since I left. And his state of mind is not sound – or his feelings or emotions are confused and conflicted because of that situation and everything associated with it. Now, I – so, I’m not sure how else to answer that. So if being ..... on drugs and all that, makes me sound in mind, then okay, then that may be the case
Ms Mallett: So you’re saying, and correct me if I’m wrong, but as I understand what you have just said to her Honour, effectively J – what J says isn’t a true reflection of what he thinks. It’s a reflection of an unsound mind because of intoxication. Is that right?
Mr Judds: He’s confused. This is
Ms Mallett: He’s just confused ‑ ‑ ‑?
Mr Judds: No, let’s be clear. This is a teenager. A young, juvenile teenager who has had family troubles because of breakdown in the family – let’s be basic on it – and then have been intoxicating on alcohol and drugs. That is not a sound mind. That is not – he needs support. He needs love and support. He needs direction. He needs guidance. He needs discipline. He needs boundaries. He needs to – he needs leadership. He needs guidance.
Ms Mallett: So you say?‑
Mr Judds: He needs his Dad.
Ms Mallett: Right. So you say that we shouldn’t listen to what J says about his experiences because ‑ ‑ ‑?
Mr Judds: No. I never said that. I never said that never. Okay?‑‑‑I never said that.
Ms Mallett: Well, what do we do with his information? What do we do with – when J says, “I’ve been assaulted by my father. I’ve watched my father assault my older brother and my mother.” What do we do with that information? What does her Honour make of that information that J has provided us?
Mr Judds: Well, some of his stories are conflicting. They’re not all one way and they are conflicting. So what do you do with it? That’s entirely up to your Honour to make – that’s entirely up to your Honour to make that decision.
Ms Mallett: Well, I’m asking you what you say her Honour should make of that?
Mr Judds: I don’t make decisions of your Honour.
Ms Mallett: No. But you’re saying to her Honour, this is what I’ve got – you know this information is in the case. You’re saying to her Honour, “This is what I tell you, you ought to do with this information.”?
Mr Judds: No. I’ve been very clear, I’m the person I am. And the small pocket of information you’re using is not the big picture.
101The father continued to be defensive and was clearly offended at some of the questions he was asked. Counsel for the ICL then asked the father about his work with Mr F. Mr F’s notes referred to working on the father’s understanding of other people’s perspectives and having empathy. Again it was clear that the father has learnt some things from his work with Mr F. The father gave the example that when he sends a message he needs to consider how the person receiving it may interpret it. However when he was asked specifically about the mother and J, he denied that J was frightened of him and disputed the version of events involving J and his breaching the IVO again. This is despite the fact he pled guilty to it. He said the paperwork is wrong.
102He also referred to J contacting him on several occasions, sometimes late at night. He was cross-examined about the breach of intervention order on 21 November 2017 when he sent a text to Mr K and J in which he wrote;
Your mother and I are now legally divorced. Life is short. Work hard, dream big. I hope you both have strength and courage to build yourself an amazing life. Stay focused. Use desire and ambition. Make your own path. Be good. I’m sorry and I forgive you.
103It was very clear that whilst the father acknowledges he needs to appreciate that what others feel may be different to him. In the context of work he did with Mr F, it is clear that the father cannot conceive that J may be frightened of him. The father said J pushed him away and stood his ground. The two notions are not inconsistent.
104J’s conflicted feelings reflect the impact that being exposed to family violence as a younger child has had on his well-being. In a letter about J dated 2 November 2017, Dr V refers to J at times feeling sad and worthless. J worries about his mother, brother and sister’s welfare and experiences and internal conflict where he resents his father but also misses him and has memories of various experiences with him. J is worried about the father contacting his sister in various ways and placing pressure on the family.
105The notes of J’s psychiatrist, Dr W in 2020 referred to J having issues with self-harm and refers to his experiences of childhood abuse by the father towards his mother and older brother. J craves his father’s love and approval but also spoke of the physical and emotional abuse his father imposed on family and the anxiety that J would feel when the father entered a room. He has mixed feelings about the father and also has nightmares. One of J’s coping mechanisms has been to use drugs. It is clear that J’s traumatic childhood experiences continue to have significant impact on him as an adult. It is significant to note that these are his medical records not documents that were created for the purposes of these proceedings.
THE FATHER’S CROSS-EXAMINATION AND INSIGHT
106During the final hearing, the father was in the witness box for over a day. It was clearly difficult for him. The stakes are very high for the father, as the case to determine is whether or not he can resume a relationship with his daughter. This reality explains some of the father’s distress and defensiveness. However it was also apparent that the father’s tolerance for concepts being expressed in a different perspective are low. He had several common refrains including complaining that it was a play on words and that he could have done things better, although is unable to provide specific examples to support such refrains.
107There is no doubt in the strength of the father’s love for X. Nor is there any doubt that his achievements in the community are significant. Nevertheless, this Court is considering the family and whether or not there is an unacceptable risk to X if she spends time with the father.
108I have real concerns about both parent’s capacity, and the father and the boys’ capacity to interact in the future without conflict and there potentially being further incidents of family violence.
109It is clear, the father is happy and more settled in his life. He has remarried and has a baby daughter with his wife. He is her primary carer as his wife returned to work. The father was made redundant due to COVID-19. He holds various volunteer positions. However this does not negate the potential risk concerns.
110I accept that the father is genuine when he says he has jumped through all of the hoops required of him and that he would do whatever the Court orders him to do in order for him to be able to resume spending time with X. Unfortunately that is not the complete solution. The father could undergo therapy for years however, unless he acquires some insight and truly takes responsibility for his actions, nothing will change and the mother will not feel that she, Mr K, J or X are safe.
111It was apparent through many of the father’s answers during cross-examination that through the therapy he has done he has been able to identify some of the concepts and use the right language. However, an analysis of his evidence shows that the father continues to avoid taking responsibility and makes no effort to minimise his own actions.
112For example, the mother’s counsel asked the father about Dr E’s comments with respect to the allegations of abuse and family violence and the father’s comments to Dr E that those allegations were baseless, and that the mother wanted to make him suffer. When asked if he still agreed with those comments he said “now, I’m human, we all make mistakes. Things could have been done differently.” When pressed about this he said he partly agreed with that, then said that what he could have done better was to be more present and involved as the father for his sons, and not be working away as much. Further pressed by the mother’s counsel saying that her questions were focusing on domestic abuse and violence, the father interrupted and said:
“they’re harsh words. Can you please be more specific because to me, like - they’re – it’s a very broad question.”
113The father readily identified that violence can be emotional, psychological and physical and again complained that the question was too broad. He then said that he was not going to make admissions, because he does not believe it to be true and that on occasions there were difficult situations.
114The father said he partly believes that the mother made up stories about his violent and verbally aggressive conduct. He said that he may be verbally violent on occasions and said there were times when he could have been clearer and chosen his words better. The father referred to him and the mother having disagreements about parenting structure and boundaries, and said that they could have done a better job as a collective and as a couple. His words are very telling. At no stage does the father admit to any violent conduct in the relationship. The mother would not have any confidence in the father’s evidence that he has changed at all.
224Mr K was interviewed by the Department and participated in a VARE interview. When police interviewed Mr K and his parents on 13 February 2012, Mr K said he was happy and there were no further issues, and the mother confirmed that and said the family was dealing with things better. The Department had ceased its involvement with the family. Ms G conceded that this information places a different perspective on things to the narrative of a family to try to cope with traumatic injuries to their son that caused his behaviour to change.
225Ms G agreed with the characterisation of J being conflicted, and loving and wanting his father’s approval but also being frightened of him. She further agreed that this does not negate his experiences of violence and abuse by the father.
226Ms G also agreed with the counsel for the ICL’s proposition that regardless of whether it has been handled well or not, the reality for X is that if she is to spend time with her father that is going to raise issues for her in her relationship with her brothers and her mother.
227Ms G said the focus of her report was on X and as such she did not talk to the father about Mr K and J. She said she did however record the father stating that he blames the mother for alienating the children from him, which is in effect the father denying what Mr K and J have said about their experiences of the father.
228Ms G did not think that the mother’s medical condition was a relevant current factor but she discussed it as the father raised it as an issue of concern.
229Ms G said that if the risk of family violence is assessed as being low, X will need therapy to assist her in preparing to spend time with her father and that she needs an opportunity to talk to her father about her feelings and what she needs to forgive him for. The therapy would really be directed at reparations. Another quite separate type of therapy would be with respect to preparing X to spend time with her father. One difficulty for X is that she is somewhat younger than her brothers and she does not have the same memories that they do, but she is very aware of their experiences. It struck me that Ms G’s sense of X was that she wants to have her own experiences of her father. As I listened to the evidence I expressed this view to Ms G, that X may need the opportunity to explore her relationship with her father in a therapeutic setting, and it might not be with the goal of resuming time with her father but exploring her own experiences and feelings about her father separately from her brothers and mother.
230The mother’s counsel suggested to Ms G that in order for restorative justice to work the other person may need to take responsibility for their actions. As the father does not appear able to take responsibility, it may worsen the situation for X just as the father’s refusal to acknowledge his behaviour and its impact on Mr K and J has negatively affected them.
231She then took Ms G through the father’s criminal record. Ms G said that some of that is quite historical, and that she is not suggesting that it did not happen and that it is not a risk factor. Ms G also agreed that violence can be a slow burn in a relationship and that it does not always erupt in the beginning. She also agreed that women do not tend report family violence and certainly the police records of 2011 indicated that at the time, the mother was minimising the family violence she was experiencing.
232Ms G also agreed with the proposition that if someone does not accept that they have been violent, it can be difficult to give them the appropriate therapy and counselling. Ms G said that men who use violence tend to have a poor memory for it, which is probably due to shame. With respect to the father, she noted it could be because of that or because he does not want to change narrative and is aware that he is in the family law system. Ms G also said that research suggests that many who use violence often do not remember what they did because they were in such a distressed state and this can be a biological factor.
233Ms G accepted the father’s counsel’s characterisation of Mr K’s thinking about his parents as being quite rigid, with the mother being all good and father all bad. She further accepted that J had similar views of his parents but was somewhat torn with respect to wanting a relationship with the father. X’s views are more nuanced; the father’s counsel asked Ms G if the impact of J and Mr K’s beliefs on X was troubling. She said it was troubling but understandable given their anger and hurt of what happened. It would be unrealistic to expect them to shield X completely from their experiences of the father. This is particularly as the father’s refusal to acknowledge their experiences would make them all the more protective of X. It is also significant that both have said they do not believe the father would hurt X, but would expose her to his anger.
234She agreed that the mother’s presentation of the family coping well in her 2019 affidavit did not reflect the reality, particularly given the struggles that J was having with suicidal ideation.
SUBMISSIONS
235After the close of evidence the counsel for the ICL helpfully outlined the ICL’s position. She acknowledged that the relationship X has with her father based on her experience with him is complex. Counsel further submits there would be some risk to X emotionally if the father was excised entirely, though that any time spent would need to be very carefully planned and therapeutically supported and quarantined. By quarantining she meant that the focus was on giving a framework for X to have a realistic and safe experience of her father which would not necessarily give either side expectations as to what would happen afterwards.
236The ICL had made enquiries and proposed that the parties could use the services of Ms JJ who conducts therapeutic work and also supervises contact between parents and children in a therapeutic setting.
237The ICL’s strong preference is for final orders to be made and that there be an order made under s.68B of the Act preventing any other contact other than as provided for in the orders, to make it very clear to the father that he is not to arrange for other people to drop off cards and letters and gifts.
238I flagged my concerns about the proposal that the father had to seek leave to bring a further application as whilst he brought this application in 2019 and had not followed the recommendations of Dr E at that time, the father was self-represented and the final orders which had been made on an undefended basis did not require him to do those things. The ICL was involved in the 2017 proceedings and the orders being made on an undefended basis. Counsel for the ICL says the understanding of the parties and herself was that the father would engage in those recommendations and not simply spend supervised time with X.
239The ICL submits that the Court should make a finding that the father has perpetrated significant family violence including physical, verbal and emotional violence on the mother, J and Mr K and that X has been exposed to it. She outlined the aspects of the evidence that supports those findings in her written submissions.
240Dr E conducted a risk assessment of the father committing further family violence in 2017 and found the risk was significant. He further noted that whilst he did not find the father will target X, he did find that X would be exposed to his violence and anger. She notes that the father did not seek to call Dr E to challenge his findings and has relied on other aspects of Dr E’s report. Neither Ms G nor Mr F conducted a risk assessment, so it is then necessary to look at the passage of time since 2017 and the work the father has done.
241There can be little weight placed on the work the father has done with Mr H for a number of reasons, including the criticisms that Dr E made of his approach, noting that Dr E went so far as to recommend that the father ceases working with him and engage with another counsellor.
242The father also relied on his attendance upon Mr Q. However, the subpoenaed material shows that he only saw Mr Q twice and asked for a letter on the first occasion and did not undergo any substantive work with Mr Q. The ICL submits that this is significant particularly in light of the father’s reliance on the mother unreasonably withholding X following the 2017 orders despite him providing a letter from Mr Q. I have commented on my concerns about the content of that letter elsewhere. The ICL further submits that it was clear in 2017 that the mother would not agree to the father spending time with X without him following the recommendations of Dr E and it was also clear the father refused to follow those recommendations. The actions of the father with respect to Mr Q was to try and deceive the mother in this regard. The ICL further submits that the father did not take action with respect to Dr E’s recommendations until after he commenced these proceedings in 2019. The only work the father has done since then to mitigate the risk is the work with Mr F, and there were significant limitations to that work. The father did not tell Mr F that he continued to see Mr H and the role of Mr F was limited to providing cognitive behavioural therapy to assist the father in changes to his thinking, and was not addressed to his interactions with the mother, Mr K, J or X. Mr F identified the father having concrete thinking and a strong sense of injustice. Other matters that are relevant to the Court’s assessment of the risk to X if she resumes a relationship with her father include:
(1)the father’s total rejection of the experiences of the mother, Mr K, J and X represents continuing risk of emotional harm and the potential source future conflict;
(2)the father’s lack of insight. The father’s evidence showed that the father has learnt the terminology but not the lessons from the counselling. That accords with my impression of the father’s evidence.
(3)X is reaching an age and stage of development where she may present with the types of challenges that the father did not historically cope well with, with respect to Mr K and J.
(4)The father’s persistent breaches of the IVOs represent a further risk and the mother’s concerns about this are legitimate. The suggestion that the father could have misunderstood the interaction of intervention orders in family law orders could only apply to his first breach. I accept that submission and the further submission that the father was completely dismissive of the intervention orders. The number, extent and persistence of some of the breaches causes the ICL concerns as it demonstrates the father’s disregard for the orders. It also underscores the father’s complete refusal to acknowledge his behaviour and impact on the mother and children. The evidence of the father and his wife with respect to the incidents in August 2020 did not demonstrate any insight as to the impact of those interactions on the mother and how they could have been handled better.
243The ICL accepts that X loves and misses her father and that the father dearly loves X and wishes to be part of her life. J, and to a lesser extent Mr K, have also sought out the father at times with some of those interactions leading to conflict and negative outcomes.
244The father was unwilling to accept responsibility for any instances of aggressive behaviour and physical violence on his part including with respect to criminal convictions when he was much younger. The ICL was troubled by the fact that the father was unable to demonstrate any understanding or empathy or acknowledge the impact of his behaviours on the mother or on any of the children and was further troubled by the strongly negative view the father had of the mother and at times J and particularly Mr K.
245The ICL was also concerned about aspects of Ms CC’s evidence. She has known the father since 2016 which includes the period of the physical altercation with Mr K and the breaches of IVO but said that she did not know the father to be a violent man and had not seen any change in his behaviour. It is concerning given what occurred in 2016 and 2017 that she presents this picture of the father and not of someone who has changed his behaviour and shown insight. I share the ICL’s concern about her evidence with respect to the interactions in August 2020.
246The ICL submitted that in contrast to the father, the mother made concessions when she was cross-examined about gaps and inconsistencies in her material. The evidence does not support a finding that the mother has deliberately alienated X from her father. Rather the reasons for X’s change in views is much more complex and would have been contributed to by a number of factors, including the father not pursuing the proceedings in 2017, the passage of time, the father’s breaches of the intervention orders and X’s observations of the mother’s, Mr K’s and J’s fear and anger towards the father.
247I also accept the submissions of the ICL that the criticisms made by the father’s counsel of the mother during cross-examination for not allowing supervised time following the 2017 orders should be rejected as it ignores the reality of the situation at that time
248Finally, the ICL submitted that the Court should make final orders having had the benefit of hearing the contested evidence and the needs for everyone in the family to have the proceedings come to an end, noting that the ICL has volunteered to remain appointed in the matter for a further 12 months to assist with the implementation of the orders and the recommended therapy.
249The ICL continues to seek an order that the father be required to seek leave to bring a further application to the Court. As I have explained earlier, I am not satisfied that such a restraint on the father is justified.
250The mother submits that the evidence establishes that there would be an unacceptable risk of psychological and emotional harm to X if the father’s proposal was accepted. The mother provided detailed evidence of the violence she and the children experienced throughout the marriage. With respect to the altercation between Mr K and the father at the changeover of X in June 2016, the medical reports referring to injuries Mr K suffered are consistent with the mother’s allegations.
251The mother’s counsel also submitted that the mother’s allegations are further corroborated by J and his clinical records and refers to, for example, the treatment J received in 2017 after the proceedings were concluded, where J attributed depression to his father’s behaviour and expressed desire to self-harm. The mother’s counsel says as these are confidential records and proceedings have concluded at that time, they should be given full weight. She also referred to J’s psychiatrist, Dr W and the notes he took in August 2020, where J said he was having chronic suicidal thoughts and panic attacks thinking about his father in fear and also craves his father’s love and approval. Dr W admitted J into detox in September 2020 diagnosing him with anxiety, depression and PTSD due to his experiences with his father. I accept those submissions.
252She also referred to the police records which substantiate the mother’s allegations of the father’s violence where a number of occasions the father was either found guilty of criminally violent behaviour either on the evidence all the father’s admissions of guilt. The father was cross-examined about his criminal record and in almost every instance denied or minimised culpability did not show rewards or insight into his behaviours.
253The mother’s counsel further submitted that it was improbable that the father would run into the mother on two occasions by accident a week apart, and is suggestive of the father stalking the mother. Given the fact that the parties live in reasonable proximity to each other, I do not think I can make such a finding about stalking, but note that the father’s and his wife’s response to those interactions are concerning.
254The mother agrees with the ICL’s proposed orders but continues to have some concerns that if the father is unable to show remorse and continues to deny his past behaviour that could have a detrimental impact on X. She further supports supervised time occurring four times a year with Ms JJ or a similar person and submits that the father should be responsible for all of the costs, noting that he is in arrears for child support, and the mother is on a low income and is paying X’s school fees of approximately $6,000 a year.
255There should not be any possibility for that time to be extended and rather X should be able to cease going if she wishes to. The orders for that supervised time should also be conditional upon the father not breaching the intervention orders. The mother’s counsel also submits the father’s application was more about control rather than him genuinely caring for his daughter. I do not think the evidence goes so far to establish that the father is only concerned with controlling the mother. The orders I shall make do not provide for the father’s time to be extended after a period of time or upon conditions being met as I am not satisfied that is possible to identify appropriate conditions. Rather the orders provide X with the opportunity to have her own experience of the father and explore her own issues with the father in a safe, therapeutic environment.
256With respect to the subpoenaed notes from L Contact Centre, whilst they show positive interactions between X and her father they also show the father cancelling two out of the five sessions and the father having a verbal altercation with staff.
257The mother’s counsel’s submissions go too far when she says “it is a matter of judicial notice that narcissists are not capable of love or empathy”. Firstly that is not a matter of judicial notice at all, judicial notice is limited to matters that are not controversial. This type of emotive submission is unhelpful.
258Mr K’s and J’s comments to Dr E about it being important for X to spend supervised time with her father, reflect the fact that the mother has not engaged in alienating behaviour and reflects the complexities of their experiences and feelings.
259The father’s Counsel submits that if there is a finding that X is at an unacceptable risk then the proceedings should conclude but further submits that the Court should find that the father does not pose an unacceptable risk to X and interim orders should be made allowing for the therapeutic intervention to take place and for the matter to further return to Court if need be.
260I reject the father’s counsel’s submissions that the mother did not provide details of the violence she experienced. I also reject the submission that appears to assume that the father was correct to say that the family dynamic deteriorated after Mr K suffered a traumatic head injury, as it is clear there was significant episodes of family violence prior to 2012. I prefer the mother’s evidence to the father’s about this. I also reject the characterisation of the father’s conduct of largely being reactive particularly with respect to Mr K rather than a pattern of family violence. In support of this submission he footnotes reference to the 69ZW report and refers to the lack of independent cooperation of what occurred and refers to the early reports of the Department as being not consistent with what the mother now alleges took place in the home. The difficulty with this submission is that that is precisely the common experience and behaviour of families experiencing family violence. This adds to the credibility of the mother’s evidence, not detracts from it. In this regard, I draw attention to the Family Court of Australia, Family Violence Best Practice Principles, 4th edition, December 2016 and the School of Law, The University of Queensland, National Domestic and Family Violence Bench Book (2018) < conceded that it could be said that the father lacks insight into how his actions have impacted on mother and children. That is an understatement as the father does not acknowledge engaging in such conduct at all. He went on to submit that his lack of insight and recall could be at least partially explained by the state of his mental health at the time. I accept that submission.
262The father’s counsel acknowledges that the father should not have attended the home of the mother’s parents upon returning from Western Australia. He further acknowledges that the father should not breach intervention orders by indirectly or directly approaching the mother’s parents to ask after X and her welfare and to give gifts. He submitted that these are all perhaps understandable in the circumstances, and also given his assertions he did not properly understand the limitations of the intervention orders. I do not accept the submissions that the father’s conduct was understandable in circumstances that he did not understand the intervention orders. This is a man well familiar with proceedings in Magistrates’ Courts and as such, it is neither an excuse nor does it explain his repeated breaches.
LEGAL PRINCIPLES
263The principles governing the Court’s determination in this matter are set out in Part VII of the Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions. The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Act gives the Court the power to make a parenting order which is defined by s.64.
264In deciding whether to make a particular parenting order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, they are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
265Pursuant to s.60CC(2)(a) I must consider the benefit to the children of having a meaningful relationship with both their parents. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405. A meaningful relationship is significant. It is important. In McCall & Clark the Full Court discusses three possible interpretations of a meaningful relationship at paragraph 118:
118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
266In Sigley & Evor [2011] FamCAFC 22 a differently constituted Full Court considered these interpretations. They made the following observations at paragraphs 133-4:
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
267While I must make orders which allow for meaningful relationships between X her father to flourish, I must consider s.60CC(2)(b) which requires the court to ensure that she is protected from any harm caused by being subjected to or exposed to abuse, neglect or family violence. Pursuant to s.60CC(2A), in applying the primary considerations, the court must give greater weight to the need to protect a child than to the benefit to the child of having a meaningful relationship with both parents.
268The expansive definition of family violence in section 4 of the FLA reflects the fact that family violence takes many forms. Some of the most insidious and devastating acts of violence do not involve physical violence but coercive and controlling conduct over a period of time.
269I find that the father committed serious family violence against the mother, Mr K and J and exposed X to this over a number of years. I accept the mother’s evidence that this started early in their relationship and worsened over the years. I accept that the family was under various pressures in the later years of their relationship with the father dealing with problems at work and the family dealing with Mr K injuries. However, the father’s violence started well before Mr K’s injury. There is never an excuse for violence. The evidence establishes that the family continues to suffer trauma from their experiences. The boys’ attitude towards the father is coloured by their traumatic experiences of him. Even so significantly and after interviews, they have both referred to there being benefits to X spending supervised time with their father, whilst also being concerned for her welfare. This is consistent with their own complex feelings and experiences of father rather than the mother engaging in alienating behaviours.
270This case must primarily be decided on whether or not either parent poses an unacceptable risk to the children because of the considerations in s.60CC(2)(b). I must determine whether either parent is an unacceptable risk to the children, and if so, how that risk can be ameliorated.
271With respect to the assessment of unacceptable risk in Stott & Holgar [2017] FamCAFC 152 the Full Family Court conveniently summarised the issues at paragraphs 34 to 38 as follows:
34. The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
35. The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A & A (1998) FLC 92-800 at 3.15 and 3.25; Amador & Amador (2009) 43 Fam LR 268 at [89].
36. In B & B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
37. As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
38. We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N & S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier & Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter & Potter (2007) FLC 93-326 at [124] and [125]; Johnson & Page (2007) FLC 93-344 at [66] and [67]).I find that X would be at an unacceptable risk of emotional and psychological harm if she were to resume spending time with the father. The father’s evidence was stark and whilst when questioned, he was careful to not directly criticise the mother and his sons at various points he made it clear that he blames them. It is also clear that he blames the mother for J’s drug use and issues post-separation and is also critical of the mother’s handling of X’s education. He does not acknowledge at all the damaging impact of his behaviour and violence. I am satisfied that the behaviour has had a long lasting impact on the family which is likely to continue and contributes to difficulties they continue to face. Certainly, X’s attendance at school and the mother’s lack of engagement at times and delay in arranging counselling for X is of concern, however this needs to be seen in the context of the family’s trauma as well as particularly in 2017 when dealing with the mother’s cancer diagnosis. The father concedes that the mother should continue to exercise sole parental responsibility.
Section 60CC(3) additional considerations
Section 60CC(3) sets out 13 additional considerations I must consider when determining the children’s best interests. Not all of them are relevant to this case. I will discuss the relevant additional considerations in turn.
X’s views with respect to her father have changed over time and no doubt due to a number of complex factors. She is significantly older and has a greater understanding of the dynamics in her family. It is also unrealistic to expect that X would not be influenced by the experiences and views of her mother and brothers. This is not because of any direct attempts to influence her and involve her in disputes, but rather it cannot be presumed that X would not be aware of her brother’s views and experiences living in the same household as them for a number of years. The stress and pressure the mother and the boys feel would be compounded by court proceedings being on foot. X would pick up on this. It is also clear that X seeks to have her own experiences with her father and is curious about him.
For these reasons I am satisfied that it is in X’s best interests for X and the father to engage in the form of family therapy proposed by the ICL, which will enable X to experience her father in a safe environment. It would also provide for the opportunity for X to see the father in such therapeutic context a few times each year.
I accept that there is a risk associated with such proposal, particularly X suffering from emotional harm. She has seen the boys experience the father’s refusal to acknowledge their own experiences and to accept responsibility for his behaviour. Nonetheless I think it is counter-balanced by the risk of emotional harm to X if she does not have a forum where she can discuss her feelings about her father and processing and speak to her father in a safe environment.
I am not satisfied that the father has the parental capacity to protect X from emotional and psychological harm. There are some concerns about the mother’s parenting capacity which to some extent has been impaired by the traumatic experiences that she and her children have experienced. It is not surprising in that context, as the trauma of being subjected to ongoing significant family violence in various forms can last for years. One of the concerns about X having regular time with her father. Even if it was supervised is the impact that that might have on the mother due to her fear of the father and concerns for X’s safety.
These orders will mean that X will not have the opportunity to develop a relationship with her half sibling. However, in the circumstances of this case it simply would not be safe in either child’s interest to allow such development of a relationship and neither party nor the ICL raised this as an issue.
The fact that the father has re-partnered and his wife does not have concerns about the father’s parenting capacity was with respect to their baby daughter does not mean that there are not still risks with respect to X for the reasons I have identified.
I am satisfied that these orders are the least likely to lead to further proceedings.
CONCLUSION
The father will be disappointed and distressed by this decision. Cases that involve no time or extremely limited time are difficult cases to determine and are distressing for those involved. It would be entirely too simplistic and unfair to cast the father in a villain role. It is clear that the father has dedicated himself to community service and assisting young people through his boxing club and other activities. I also accept that the father has undergone significant counselling and treatment and shown a willingness to do what is required of him in order for him to potentially resume a relationship with X. Unfortunately it is quite clear that the father does not accept responsibility for any violent behaviour, and continues to engage in victim blaming. His ongoing attendance upon Mr H is most unfortunate. His notes suggest that Mr H has encouraged the father to maintain those views and I do not think that the further therapy will change that.
I certify that the preceding two hundred and eighty-one (281) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 18 August 2021
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Natural Justice
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Procedural Fairness
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Remedies
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Duty of Care
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Negligence
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