Keenan & Keenan
[2023] FedCFamC1F 186
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Keenan & Keenan [2023] FedCFamC1F 186
File number(s): BRC 5147 of 2021 Judgment of: CAREW J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – PARENTING – Where the father has an admitted history of perpetrating family violence towards the mother, including use of derogatory language, yelling, screaming, slamming doors, smashing glasses and crockery, and kicking and punching walls – Where the children were exposed to the family violence – Where the father has a history of anxiety, depression, suicidal ideation and self-harm attempts – Where the father has little insight into the impact his behaviour has had on the mother and the children – Where the father poses an unacceptable risk of harm to the children – Where the father concedes there would need to be reintroduction therapy before he could spend any time with the children – Where making an order for supervised time is not practical – Where the children will live with the mother and spend no time with the father – Where the mother will have sole parental responsibility for the children Legislation: Australian Passports Act 2005 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC93–637
Eastley & Eastley [2022] FedCFamC1A 101
Isles and Nelissen [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92–655
Re David (1997) FLC 92-776
Number of paragraphs: 106 Date of hearing: 14, 15, 16 March 2023 Place: Brisbane Counsel for the Applicant: Mr E Coker Solicitor for the Applicant: Ferrall & Co Lawyers Counsel for the Respondent: Mrs R Bassano Solicitor for the Respondent: DV Lawyers Counsel for the Independent Children's Lawyer: Ms C Dart Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 5147 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KEENAN
Applicant
AND: MS KEENAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
31 march 2023
THE COURT ORDERS BY CONSENT THAT:
1.W born 2013, X born 2016, Y born 2018 and Z born 2019 (“the children”) live with the mother, Ms Keenan born 1988 (“the mother”).
IT IS FURTHER ORDERED THAT:
2.The mother have sole parental responsibility for the children.
3.The father, Mr Keenan born 1988 (“the father”), spend no time with the children.
4.Except as provided for in this Order, the father not communicate with the children.
5.The father be at liberty to send letters, cards, photographs, and/or gifts to the children on special occasions such as Christmas, Easter and their birthdays.
6.Upon receipt of the letters, cards, photographs, and/or gifts as referred to in paragraph 5 of this Order, the mother be at liberty to open and view the letters, cards, photographs, and/or gifts before providing them to the children so as to ensure that they are appropriate for the children to receive.
7.Within 14 days of the date of this Order, the mother inform the father of a postal address to which such letters, cards, photographs, and/or gifts can be sent, and notify the father of any change to the postal address within seven days of such change.
8.The mother provide to the father (after redacting, at her election, information as to her residential address and the children’s school) a copy of each child’s school report card each semester or, in the case of the children not yet at school, a summary of their educational progress, and a copy of any medical or allied health reports received by her for any of the children.
9.The mother keep the father informed of any serious medical condition diagnosed for any of the children.
10.The mother have leave to provide a copy of the family report by Mr B dated 10 January 2022 and the Reasons for Judgment dated 31 March 2023 to the children’s treating therapist/psychologist and to her own treating mental health professionals, if requested.
11.Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother be permitted to take the children overseas or to cause the children to travel overseas without being accompanied by the mother for the purposes of a school excursion or if accompanying other family members.
12.Pursuant to and for the purposes of s 11 of the Australian Passports Act 2005 (Cth):
(a)The children, W born 2013, X born 2016, Y born 2018 and Z born 2019 are permitted to leave the Commonwealth of Australia;
(b)The requirement for the father’s signature on any passport application or a renewal of passport for the children, W born 2013, X born 2016, Y born 2018 and Z born 2019, is dispensed with and the mother is entitled to apply for and be granted any and all necessary travel documents without the consent of the father, and, insofar as it is necessary, this Order operates as an authority for the mother to do so.
13.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father must:
(a)Be of good behaviour towards the mother and not commit family violence against the mother;
(b)Be of good behaviour towards the children and not commit family violence towards the children and not expose the children to family violence;
(c)Not approach within 100 metres of the mother or children or remain at any place where the mother or children are present;
(d)Not attempt to locate the mother or children, other than as permitted by court order; and
(e)Not contact the mother or children for any purpose, except as provided for in this Order or through a lawyer.
14.Any outstanding application be otherwise dismissed.
15.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
IT IS NOTED THAT
A.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
B.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keenan & Keenan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
Mr Keenan (“the father”) and Ms Keenan (“the mother”) have four children, ranging in age from three to nine years. The parents separated in 2020, a few months after the father’s discharge from hospital, where he had been a patient. The father has a disorder, which presents with stroke like symptoms e.g. weakness, abnormal movements, blackouts etc. The father also has a history of migraines, depression and anxiety, and suffers from a condition that can affect balance and hearing.
The mother alleges a long history of significant family violence, some of which the father concedes. The children have had no contact with the father since shortly after separation apart from a brief occasion in late 2021 for the family report interviews when the two older children ran from the room screaming.
It is common ground that the children should remain living with the mother and an order in those terms will be made by consent.
The mother opposes the father having any contact with the children. The father is proposing that there be reunification counselling between himself and the children and his parents, and that thereafter he spend initially day time with the children, and then alternate weekends.
For the reasons which follow, and having regard to the admitted history of family violence, I find that there is no practical means by which the father can spend time with the children given the extreme reactions of the older two children to the father and the understandable inability of the mother to support such an order.
BACKGROUND
The parents met when they were both 17 years of age. They commenced a relationship in 2006 and married in 2008. They separated on a final basis on 10 September 2020 after what the mother contends was a serious family violence incident involving the father who had a weapon at the time. The father concedes there was an incident involving him pressing a weapon towards himself but downplays the significance of the incident by describing it as “a self-harm attempt”. The father does not recall what he said at the time but concedes he was “very upset”. The father denies pointing the weapon towards the mother or threatening her with the weapon.
The parents’ four children are W, born 2013, X, born 2016, Y, born 2018 and Z born 2019. W has been diagnosed with autism spectrum disorder (“ASD”). The three younger children have been diagnosed with a developmental condition. All four children are supported with National Disability Insurance Scheme (“NDIS”) packages, which provide support by way of occupational therapy and counselling for W and X and occupational therapy for Y and Z. The package includes services for the mother and assistance from a ‘plan manager’ who receives and pays the invoices. The total package for all four children is in the vicinity of $200,000 per annum.
The father is 35 years of age. Notwithstanding a number of medical issues, the father is employed, although currently he is working for only four hours per day on three days a week. The father was born with a neurological disorder and required surgeries in his early childhood. In 2010, the father was diagnosed with a disease that causes symptoms of vertigo and can lead to a balance disorder, compromised hearing loss, and potentially deafness. The father contends that his symptoms are currently mild. The father was diagnosed with another disorder in early 2020. The father also suffers from anxiety and depression and has a history of self-harming (the father referred to them during the trial as “self-harm attempts”).
Due to the impact of his disorder, the father currently lives with his parents as he requires assistance. In mid-2020, Dr C, neurologist, opined that the father’s disorder was unpredictable and further relapses were probable. During relapses it was noted that the father “experiences weakness and incoordination which impacts his ability to mobilise independently”. During such periods there is an “increased risk of falls” and “upper limb weakness and incoordination also impairs his ability to perform functional tasks such as opening jars and other fine motor movements”. Anxiety was identified as a “significant trigger”.
The father is supported with an NDIS package which includes exercise physiology, counselling, and a support person. The father’s NDIS package is $109,156 for two years.
After an absence of ten months, the father resumed his employment in early 2023, although for limited hours. The father is hopeful of returning to full time employment after a medical review in mid-2023. The father’s income upon a return to full time work will be about $1,800 net per fortnight. The father is currently receiving income protection insurance payments of $660 net per week.
The father has not paid any child support since separation. The father contends that he will only do so if the payments go through the Child Support Agency. The mother obtained an exemption from applying for child support through the Child Support Agency due to the alleged history of family violence. The mother remains concerned about the father locating her address. The mother would accept payments from the father if paid directly into her bank account and this has previously been conveyed to the father by her. Transfers of child support from the father’s bank account to the mother’s bank account would enable the father and mother to have a record of payments made and received. It is difficult to understand why that has not occurred.
The mother is 35 years of age and engaged full time as a mother. The mother has qualifications as an educator. Currently, the mother and children reside in ‘accommodation’ at an undisclosed location. The mother receives social security carers’ payments of $2,300 per fortnight.
A final protection order in favour of the mother and children was made in late 2020 and will expire in late 2023.
The father has incurred private legal fees of $67,000 to date and as a result of the mandatory prohibition on cross-examination pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”), the father’s legal fees for the trial, estimated at about $16,000 will be met under the Commonwealth Family Violence And Cross Examination of Parties Scheme (“the Scheme”).
The mother has incurred private legal fees of $58,974 and her legal fees for trial will also be met under the Scheme and anticipated to be about $18,770.
WHAT PARENTING ORDERS ARE SOUGHT?
The father seeks an order for equal shared parental responsibility, and that the children spend time with him after “reunification therapy”, graduating from every second Sunday between 8.00am and 3.00pm (assisted by his parents) to every second weekend from after school on Friday until 3.00pm on Sunday. The precise terms of the order sought by him are set out his further amended Initiating Application filed 8 March 2023.
The mother seeks an order for sole parental responsibility and for there to be no time or communication between the father and the children, other than cards or gifts on special occasions. The precise terms of the order sought by the mother are set out in her further amended Response filed 13 March 2023 (as further amended during submissions). The mother’s application to change the children’s surnames is not pressed.
The independent children’s lawyer (“ICL”) recommends that the mother have sole parental responsibility and that the father spend no time with the children and not communicate with them other than by way of letters, cards, photographs, and/or gifts on special occasions. The precise terms of the order recommended by the ICL are set out in Exhibit 9.
ISSUES IN DISPUTE
The following issues have been identified as requiring determination:
(1)Does the father pose an unacceptable risk of harm to the children by reason of the alleged history of family violence and/or the impact on the mother and the children of spending time or communicating with him?
(2)If he does, can that risk be ameliorated with supervision?
(3)If the father’s time with the children is to be supervised, are the paternal grandparents appropriate supervisors?
(4)If the risk to the children does not pose an unacceptable risk of harm, to what extent does the father’s time with the children need to be supervised in any event, and for what duration?
(5)Has the mother had inappropriate conversations with the children to alienate them from the father?
APPLICABLE LEGAL PRINCIPLES
In parenting proceedings under the Act, s 43 of the Act requires the Court to have regard to a number of matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, stalking, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 (“M v M”).
[4] Ibid.
[5] M v M (fn 3); N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley [2022] FedCFamC1A 101 (“Eastley”) at [31].
[7] Johnson & Page (2007) FLC 93-344 (“Johnson & Page”) at 81,890, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen [2022] FedCFamC1A 97 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles (fn 7) at [7].
[9] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[12]
[12] Banks & Banks (2015) FLC93–637.
I turn now to consider the issues in this matter.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY REASON OF THE ALLEGED HISTORY OF FAMILY VIOLENCE AND/OR THE IMPACT ON THE MOTHER AND THE CHILDREN OF SPENDING TIME OR COMMUNICATING WITH HIM?
Family violence
The mother’s assertions of family violence perpetrated by the father include the following:
(a)Frequent use of derogatory terms directed to her and to the children;
(b)Repeated threats to harm himself and/or to commit suicide;
(c)Repeated threats to kill the mother and the children;
(d)Two occasions of physical assault;
(e)Sexual assault causing injury; and
(f)Property damage.
It is perhaps trite to observe that the person asserting a fact bears the evidentiary onus of proof and an assertion of fact must be supported by evidence. The evidence relied upon to support an assertion of fact must be capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of the fact.[13]
[13] Evidence Act 1995 (Cth) s 55.
While the assessment of the magnitude of risk does not necessarily require positive findings on each fact alleged, it is obviously a more difficult task to satisfy a court that the possibility of future harm is unacceptable if the facts upon which that assessment depend are not proved.
A realisation by counsel for the mother of the deficiencies in the mother’s evidence no doubt explains the limited nature of specific factual findings sought and the reliance (largely) on admissions made by the father as to derogatory taunts, frequent bouts of anger, property damage, and threats to self-harm. The findings sought by the mother are limited to the following, and while not all the findings sought are relevant to the first issue, it is convenient to set them out in full:
1.That over the course of the parties’ relationship, the applicant embarked upon a pattern of conduct which was coercive and was aimed at controlling the mother;
2.Such conduct by the father (towards the mother) has had an adverse impact on the mother which continues to impact her today. The mother’s concern about the children being exposed to father’s conduct is genuinely held;
3.Children witnessed (either seeing or hearing) the family violence perpetrated by the father towards the mother;
4.The father has limited, if not little, understanding of what constitutes family violence and the impact his behaviours have had, and continues to have, on the mother and the children;
5.The father continues to attempt to exert a level of control over the mother by not accepting an option to pay the Child Support Assessment in a matter (sic) directed by the mother;
6.The risk to the children spending time to the father cannot be ameliorated by family supervision (no evidence of other supervision); and
7.The father’s case lacks the evidence required to assist the court in considering his proposal for family therapy.
The mother no longer seeks a finding that the father sexually assaulted her on the basis that there is “no corroborating evidence to support her allegations”.
To be clear, corroboration of family violence is not a prerequisite for finding allegations proved. Most often, there will not be corroboration of family violence. It often depends upon ‘he said/she said’ but there may be evidence that tends to indirectly corroborate an allegation e.g. police records, medical records, contemporaneous complaint, photographs of injuries etc. Such evidence may rationally affect the assessment of the probability of the existence of the fact alleged. If such evidence contradicts or is inconsistent with the allegation, or if the evidence is not called or produced (without satisfactory explanation), it is perhaps unlikely that the existence of the fact will be found to be proved.
Allegations of sexual assault
In relation to sexual assault generally, the mother makes the following allegations:
43. [The father’s] abuse towards me … included …:
…
(c) severe sexual assaults on me in front of or in hearing of the children, which has resulted in […] surgeries to repair the damage done to me internally;
…
57. …
(a) He forced painful anal sex and sexual penetration using unsanitised objects such as timber rods, cucumbers, and large sex toys – this cause excruciating pain and damage and has resulted in me having […] surgeries.
…
63. I have now had […] failed surgeries, one surgery and a follow up procedure for posterior damaged due to the sexual assaults.
…
65. [In late] 2021, I underwent surgery. For that surgery I was under the care of [Dr D] at [E Hospital]. I underwent a further surgical procedure in [early] 2022. In addition to these surgeries, I have attended numerous outpatient appointments.
Annexed and marked “S4” is a true copy of the letter received by [Dr D], [E Hospital] Surgical Services team outlining the number of surgeries I have undergone and appointments I have attended under his care.
…
248. I see a sexual assault counsellor once a fortnight and I have had […] corrective […] surgeries for the damage inflicted on me during the assaults. The surgeon has been happy with my recovery and healing. …
…
Index of Annexures
…
S4Letter from [Dr D], [E Hospital] Surgical Services – evidence of surgery to correct sexual abuse
If the mother’s allegations that she had suffered internal injuries as a result of the sexual assaults upon her are true then the family violence inflicted upon her falls into the most serious category.
The “letter” from Dr D is contained in what appears to be a hospital record “Progress Notes” and states the following:
[…]/21
To whom it may concern,
[Ms Keenan], DOB […] 1988, has had a number of appointments at [E Hospital] and procedures as follows:
Outpatients: [Five occasions in 2021]
Operations: [Three occasions in 2020-21]
She has an upcoming procedure [in early] 2022.
Yours sincerely
[Dr D]
(signature)
Staff Surgeon
The document makes no mention of the reason for the operations. The evidence certainly does not support the mother’s allegations that she sustained injuries from sexual assault.
During cross-examination, the mother admitted that the surgeries or medical procedures related to a medical condition developed after the birth of the parties’ fourth child that had not resolved. The mother admitted that she had developed this condition during her three previous pregnancies and it had resolved without medical intervention.
Consistent with that admission, the medical referral form dated mid-2020 states the following:
Primary Reason for Referral
32 yo with persistent [medical condition]. G5P4, […] developed in pregnancies but never resolved following last pregnancy […]. No change in bowel habit, no fhx bowel cancer. History of [an autoimmune condition].
Nothing in the medical records for the procedure undertaken on the mother in late 2020 suggests any injury suffered by the mother from sexual assault or otherwise. The mother underwent a successful surgery to address her medical issue.
Nothing in the medical records for the procedure undertaken on the mother in mid-2021 suggests that the procedure related to any injury suffered by the mother from sexual assault or otherwise. The mother underwent a specific procedure to address her medical condition.
Nothing in the medical records for the procedure undertaken on the mother in late 2021 suggests that the procedure related to any injury suffered by the mother from sexual assault or otherwise. The procedure was “aborted due to poor prep, … precluding assessment […]”. The records indicate that a repeat procedure was recommended in three months. During cross-examination, the mother confirmed that this was the “failed surgery” to which she referred in her evidence in chief, although she disputed the procedure failed because of poor preparation but rather, the mother contends it was because of a complication.
Nothing in the medical records for the procedure undertaken on the mother in early 2022 suggests that the procedure related to any injury suffered by the mother from sexual assault or otherwise.
The mother contends that she told Dr D that she had been the victim of sexual assault. Assuming the mother did so, and the surgery was undertaken for the purpose of repairing injury sustained as a result of assaults, it is unlikely that the medical records would not make some reference to this alleged fact. Dr D was not called as a witness.
The mother’s assertion that she has undergone a number of surgeries to repair injuries sustained by sexual assault is unsupported by the evidence and I reject the allegation.
During cross-examination, the mother stated that “some” of the anal sex was “coerced”, from which I infer that “some” was consensual. The impression created by the mother’s evidence in chief was that all anal sex was abhorrent to her. That seems not to have been the case.
The mother contends that the father sexually assaulted her in late 2019. The particulars of this allegation are variously set out in the mother’s evidence in chief as follows: (as per original)
57. …
(g) In [late] 2019, while I was sound asleep, [the father] sexually assaulted […] me while I laid frozen still on the bed. When he was finished, he left me naked on the bed without a blanket and rolled over to the other side of the bed and went to sleep. I showered straight away and cried loudly. He apologised and claimed he would moving forward always seek my consent…
…
87. [In late] 2019, I awoke in the middle of the night to [the father] sexually assault me without consent. …
[Annexure S1 – Police Protection Notice Statement 2020]
[Late] 2019 – [Sexual assault]
I woke up in the middle of the night with [the father] kissing me all over my breast. He then started to kiss my tummy and proceeded lower and lower down my body. While I laid there lifeless and still without moving. [The father] then proceeded me kiss me all over my genitals. My whole body froze still. I did not say anything or move. [The father] kept on saying "I know you like it baby tell me how much you like it. Tell me please tell me how much you like me pleasing you". I kept frozen. He then took off my undies and mounted me before put his penis inside of my vagina and within a 10 seconds he was finished. Once he was finished he rolled over on his side of the bed and processed to go back to sleep. I was still frozen not knowing what to do about what just took place. After about five minutes I got up and had a shower, because I felt dirty. I then fully dressed myself and went to bed. I then wept and cried loudly. [The father] then asked me why I was crying. I told him that that was because he just used me like a piece of meat and didn’t even ask if I was ok with it. He told me that he thought I was ok with it because I didn’t say anything. I said that I was half a sleep and froze. I said that I don’t normally like being kissed on my breasts or on my genitals and I have made that very clear in the past. I questioned him to why he thought it would like to be woken up to such acts I don't normally like. He said that he was very sorry and that he would always ask and check in the future. He said that he knew had done the wrong thing but needed sex. I cried and didn't sleep much most of that night.
The family report refers to this incident as follows:
65. [The father] states, 'I don't recall making her have sex', but he felt insecure about her attraction to him. He said she did speak at one time saying that he had forced her, but he said 'I don't believe that was the case. It was consensual and later that evening she accused me of treating her like a piece of meat. I went back to bed because there was nothing I could do (about it)'.
The father denies sexually assaulting the mother. During cross-examination, the father conceded that after engaging in sexual intercourse on this occasion, he heard the mother crying in the shower and when he asked her why, she told him that he had forced himself on her and treated her like a piece of meat. The father asked the mother what he could do and when the mother said “nothing”, he simply went back to bed.
I do not find it necessary to make a positive finding one way or the other on the allegation of sexual assault. However, the father was, at the very least, indifferent to whether or not the mother consented to sexual intercourse on this occasion, and was indifferent to the distress he had caused the mother.
Admissions by the father
As to other allegations of family violence, the father conceded during cross-examination that during the marriage:
(a)He repeatedly called the mother:
(i)Worthless;
(ii)Useless;
(iii)Lazy;
(iv)Piece of crap (the father conceded calling the mother this on one occasion “that [he] can think of”); and
(v)Worthless piece of shit;
(b)He repeatedly became angry and when he did so he would yell, swear, slam doors, smash glasses and crockery, and kick walls;
(c)When he became emotional or upset or anxious it would seem like he was in a fit of rage and he would yell, his fists would be clenched and he would kick a wall;
(d)Small events would trigger big emotions which would result in him yelling, screaming, and striking out;
(e)The children were in the home when he engaged in such conduct;
(f)The children saw the damage he caused;
(g)He was verbally abusive in general although not directed to anybody;
(h)He repeatedly said his life was not worth living;
(i)He threatened to walk into traffic in early 2017 (the father does not concede that this was a threat but rather self-harm);
(j)He has had multiple thoughts of self-harm throughout his life;
(k)He sent a letter of apology to the mother dated mid-2020 which included the following:
(i)I am sorry for the times I have hurt, upset or abused you;
(ii)Thank you for your support and patience. I can only imagine how hard it would be for you to do that time and time again;
(iii)My behaviour and language last night was inexcusable;
(l)In late 2020, there was a physical altercation between the mother and the father (with each of them claiming the other was the perpetrator) and the father grabbed a weapon and pressed it into his stomach;
(m)When he moved into his parents’ home in late 2020, they removed items from around their home;
(n)The paternal grandmother used to yell and scream just like he did and had problems controlling her emotions; and
(o)He suffers short term memory loss and his memory from about late 2019 is foggy.
The family report notes a number of admissions/concessions made by the father during interview including the following:
58. … ‘I struggled with my anger’, … ‘my whole life I struggled with anger. I explode and yell and scream and storm in and out of the house and if I got really angry I would punch a hole in the wall.’ … ‘anything would set me off.’
…
60. … [The father’s] yelling could be ‘pretty severe’, and he concedes he would be yelling ‘expletives at times and called her names’.
…
120. [The father] does not contest that he was violent to [the mother] during the marriage, conceding to forms of verbal abuse, threats of suicide and suicidal type behaviour, and a neurotic insecurity, all of which left [the mother] on a precipice of uncertainty as to what might be his next outburst.
121. Although he disputes that there was sexual coercion or assaults, there was a context during which his insecurity and possible paranoia had sexual overtones.
122. His behaviour worsened over time concurrent with his physical and mental deterioration. The further compelling feature was that the frequency of incidents increased such that it became a background to their lives,
Father’s history of anxiety and depression
It is common ground that the father has a history of anxiety and depression, pre-dating his disorder diagnosis.
In 2014, the father self-presented to hospital with “suicidal ideation on the background of worsening depression”. During that admission, the father made the following admissions:
(a)That he was “ready to go ride up the mountain and ride off the edge”;
(b)That the mother stopped him as he had told her “goodbye” and she knew something was wrong;
(c)That the marital relationship was stressful due to his mental state and he felt the mother was not very supportive as she “plays down his depression”;
(d)That the father has experienced “impulsive bouts of anger since 2006”, “longstanding impulsive anger” and “longstanding depressed mood with themes of hopelessness, worthlessness and suicidal ideation”.
In early 2017, the father concedes that upon returning home from work, he engaged in an argument with the mother about unwashed dishes and that he “got in a rage so quickly … that [he] swept the plates and glasses onto the floor”. The mother states she left with the children after the father physically assaulted her by grabbing her neck with both hands and screaming in her face. The father denies any physical abuse and asserts that he left the house first. In either case, both parties left the house following the argument. The father then proceeded to call the mother stating that he was going to self-harm. This resulted in the mother calling the police.
The police attended and proceeded to admit the father to hospital under an emergency examination order. The father made the following admissions during that admission:
(a)That he had a bad week and was in a “bad depressive state, being quick to anger which isn’t like him”;
(b)That he had an argument with the mother where he smashed some plates then went for a drive;
(c)He stated to police that the he was going to cause an accident, and the only reason why he did not was not wanting to put the other person through that.
The mother did not tell the police that the father had put his hands around her throat as alleged by her in her evidence in chief. The mother also told police she was not fearful of the father but rather she was concerned for his welfare. The mother contends that she was not forthcoming with police because she did not want to get the father into trouble.
Alleged threats to kill the mother and the children
The mother asserts that the father has threatened to kill her and the children, but provides no particulars of such threats, e.g. when they were made, what was said etc., other than the incident in late 2020.
In relation to this incident, the mother provides the following accounts in her evidence in chief:
9. … [The father] tried to kill himself by pressing a [weapon] into his stomach and when I intervened, he pointed the [weapon] towards me, threatening me.
…
69. …
(a) …
(v) [in late] 2020, [the father] held a [weapon] pressing to his stomach, threatening “That’s it, I’m ending my life right now. I have nothing to live for”, and then pointed the [weapon] directly at me while the children were in the house in earshot;
…
147. [The father] then walked into the kitchen and grabbed [a weapon].
148. [The father] looked directly at me, held the [weapon] with two hands and pressed it to his stomach around his belly button area, and said:
“That’s it, I’m ending my life right now. I have nothing to live for.”
149. I took slow steps towards him and told him to put the [weapon] down and that he had so much to live for.
150. He pressed the [weapon] further into his stomach but never [caused injury].
151. As I approached him, [the father] put the [weapon] in his right hand, took steps towards and pointed the [weapon] directly at me. His hand was shaking. He then told me to go away. I stopped and said to him:
“In the name of Jesus, I command you…to put the [weapon] down now”.
152. He dropped the [weapon]. [The father] then sat in the corner and yelled at me to go away. He again started questioning why I would want to be married to him and referred to himself as a monster.
…
163. [In late] 2020, I attended a GP appointment with [the father] with [Dr F] from the [G Health Service]. [The father] shared how he tried to kill himself […] and asked me to give my version. I told the GP that not only did [the father] press the [weapon] into himself, but he also pointed it towards me and threatened me. I whispered this to him as I did not want the children to hear. After the appointment, the doctor advised me to personally to ensure the children’s safety from [the father] and to look after myself and to make sure I reach out for help.
…
311. It was after this time when [the father] tried to kill me […] that I fled with my life.
The evidence does not support a finding that the father “tried to kill” the mother or threatened to kill her and the children. However, it is not unreasonable for the mother to view the father pointing the weapon at her in late 2020 as threatening, even though he immediately dropped the weapon when commanded to do so by her.
W as a witness to family violence
During family report interviews, W said that “[the father] had been bad to her mother, that there had been lots of yelling and that she had been frightened at times”. W’s treating social worker, Ms J, also comments that “[W] has witnessed the most of the domestic violence and can talk in depth about what has happened”. In particular, W has stated:
(a)When describing the events leading to final separation, W stated “Daddy was punching and hitting mummy and screaming at her, he was rude to us…”;
(b)W went on to explain “… He was always angry at us, he never wanted to play with us”.
X as a witness to family violence
Similarly to her sister, in her sessions with Ms J, X recounted the following:
(a)She described her father as “a snake who makes her feel scared, but also angry and sad, because he hits and screams;
(b)She told the therapist “I don’t have a “daddy”, only a “rude dad” who punched me, hit me and punched mum...”
Conclusion – family violence
The father’s admissions about his behaviour fall within the definition of family violence, in that his behaviour was violent and threatening and, combined with the repeated derogatory taunts, it is reasonable to conclude it had the effect of coercing or controlling the mother and causing her and the children to be fearful. The father was prone to frequent bouts of anger over the smallest of things. In that state, he verbally abused the mother in the foulest of terms and threw whatever was at hand in the expression of his anger. He repeatedly damaged property in the house whether by smashing crockery or glassware, or punching or kicking walls. The children were exposed to the family violence and on occasion the father’s verbal abuse was directed at them.
The impact on the mother of witnessing the father’s fits of rage coupled with his threats of self-harm must have made the mother’s life unbearable at times. Not only was the mother primarily caring for four young children, she was, in the latter years of the marriage, providing significant physical care for the father. The personal abuse endured by the mother cannot be excused by the father’s ailments, serious though they were. Such abuse is likely to have had a significant impact on her self-confidence and self-worth and to have made her fearful of the father. I accept the mother’s evidence that living with the father was like “walking on egg shells”.
Impact on mother and children
The father concedes that at the family report interviews, W froze when he walked into the room and that she hid behind a couch. According to the father, W and X were physically shaking and crying, and ran out of the room. The family report writer describes the encounter as follows:
112. After [the mother] left, I brought [the father] into the room and he sat down. At that time the children were all involved in play, and [W] had her back to him. [X] was playing a noisy game, with some toys.
113. [The father] greeted the children, and [W] turned to see him. She froze for a few seconds and then began screaming loudly. [X] - who had not reacted initially in the same fashion - then also began screaming, which naturally alarmed the other children.
114. [W] and [X] then ran from the room screaming. Their behaviour was on the hysterical end of the spectrum. The younger children were upset, however it happened quickly.
115. [W] and [X] went immediately into the adjoining room with their mother, however [W] almost immediately returned and picked up [Z] and ran from the room with her in her arms.
It seems that it is not unusual for W to scream when she is stressed. The reaction may in part relate to her ASD. However, the family report writer opined, and I accept, that W’s and X’s exposure to family violence would engender fear for the mother and themselves and their younger siblings. From the information provided by both parents to the family report writer, he formed the view that there were “frequent incidents over time, too many for the parents to tell me about” to which the children were exposed and as a consequence “the children had a prolonged insecurity and [W] of course was the one exposed more by her age”. The report writer describes W as a “traumatised child”.
Ms J, the children’s therapist opines that:
… the children have been re-traumatised by the contact with the father [in late] 2021. After the trauma symptoms have decreased since we started therapy in early 2021, most of them have returned after the contact with the father - severe anxiety, significant fear, behavioural changes, regression, night terrors and nightmares, emotional distressing episodes and other concerning behaviours with both children. We had to restart the therapy process and it took around six months of therapeutic intervention […] to settle the girls emotionally and stabilize them enough that they feel safe again. They continue to say that they don’t want to see their father again, as they feel unsafe and anxious at just the thought of him and even a very short encounter in his presence.
In relation to the mother, the family report writer opines that she “presents as traumatised” and “has high levels of anxiety and exhibits heightened symptoms due to these proceedings”. Specifically, the report writer states:
140. Given her presentation in this assessment, it is unlikely that she could support what would be a difficult process for the children in resuming a relationship with their father without considerable personal cost, and a possible compromise to her parental capacity.
The mother’s treating psychologist, Dr H, opines that the mother “presented with heightened anxiety and was hypervigilant” and that “she monitors her environment in a vigilant fashion to avoid contact with the feared object or situation” i.e. the father. In Dr H’s opinion, the mother was “distressed at the possibility of having contact with her ex-partner and is also very concerned about the impact on the children if they were to have contact with him”.
During the mother’s evidence, she accidently spilt a cup of water. Her immediate reaction was really quite extraordinary. It was as if she thought this accident would provoke a response. She could not speak for some minutes and appeared very upset. This was despite the fact that the father was not in the court room as it had been agreed that he would participate via video link during the mother’s evidence and the mother otherwise participated during the balance of the trial via video link. The mother avoided looking at the video screen of the father.
I find that contact between the father and the children would be traumatic for the children and the mother.
IS THE RISK OF FUTURE HARM UNACCEPTABLE?
The mother endured years of verbal abuse coupled with violent reactions over nothing. This much is admitted by the father. The father repeatedly threatened self-harm and the incident in late 2020, in particular, would have been terrifying for the mother and the children on either party’s version.
The father still does not seem to really understand the impact his behaviour has had on the mother and the children. I find that the father’s behaviour caused and continues to cause significant anxiety and stress for the mother and the children, in particular W and X. At times during the trial, the father sought to minimise the degree and frequency of his offending behaviour, e.g. referring to his anger as “frustration”, suggesting that his verbal abuse was just “general” and not directed at anyone, suggesting that property damage caused by him was just “clumsiness”, and disputing that he used expletives when verbally abusing the mother. I reject his evidence on these matters. The father seems to think that because the children were not physically in the same room when he displayed behaviour (that he likened to fits of rage), it would have had little impact on them. However, as explained by the family report writer, whether the children were physically in the same room or hearing the commotion from another room would make little difference to the fear engendered in them. I have no doubt that the children (particularly W and X) would have been terrified for their mother and themselves. In my view, it is quite telling that W returned to the observation room in late 2021 (at the family report interview) to retrieve her baby sister, Z, thereby ‘saving’ her from the father.
The father effectively asks the Court to simply accept that he would not react in such a violent way in future. Curiously, the father did not call as witnesses in his case any medical or psychological practitioner who has provided treatment or therapy to him. The brief letters from some of his practitioners tended to raise more questions than answers.
In a letter from a psychologist, Ms K, dated 27 August 2020, she states that after administering the Depression, Anxiety & Stress Scale (DASS-21), which is a set of three self-report scales designed to measure the negative emotional states of depression, anxiety and stress, over the week prior to administration, the father “reported within the Extremely Severe for anxiety and stress, and within the Severe range for depression”. It was recommended that the father engage in long-term therapy with a psychologist to “assist with developing a ‘new normal’ in regards to his physical capacity”.
In a “letter of support” by Ms K, dated mid- 2021, it was noted that the father had attended multiple telehealth appointments (due to the Covid-19 pandemic) “to improve his functioning and his ability to re-engage with employment”. Ms K referred to the re-administering of DASS‑21 on 6 October 2020, “where the father reported within the Extremely Severe range for depression and anxiety, and within the Severe range for stress”, and again on 6 January 2021, “where he reported within the Severe range for anxiety, within the Mild range for stress, and within the Normal range for depression”. It was suggested by Ms K that the father’s anxiety symptoms would “abate once he has contact with his children, and some clarification moving forward as a parent”. It was noted that the father had engaged in “Cognitive Behaviour Therapy, Acceptance and Commitment Therapy, and Anger Management support”. Other than referring to the father having learnt “positive anger management strategies” and acknowledging that his prior behaviours were “unacceptable”, the letter does not identify what specific behaviours were acknowledged by the father and how those behaviours have been addressed by the “strategies”. At that point, the father indicated that he could not afford to continue with therapy but hoped to continue to develop independence such that he could live independently.
In a letter from Dr M, neurologist, dated 15 November 2021, he notes the father’s report of “poor mental health with severe depression and had [multiple self-harm] attempts”. The letter relates to the father’s application for funding from NDIS.
In an occupational therapy report dated 17 March 2022, Ms L noted the father’s self-report that he “can be verbally aggressive towards others most days” and that he “’yells’ at his parents most days, and usually will need to ‘leave the house’ to cope with significant episodes of frustration at least once a fortnight”.
In a “letter of support” dated 20 April 2022, Ms K notes that the father had attended further appointments since July 2021, the last being 1 December 2021. While expressing opinions that the father had “showed significant progress in being able to manage his emotions”, “has learnt positive anger management strategies”, “has acknowledged that his prior behaviours had been unacceptable” and “has been able to find more helpful ways of communicating his distress and managing his emotions”, Ms K does not identify the factual basis for her opinions. Ms K concludes her report by stating that she is “confident that any safety concerns would not be an issue moving forward”. Not only does Ms K fail to identify the “safety concerns”, she does not identify on what basis any such safety concerns would not be an issue.
In a letter from Ms N, clinical psychologist, dated 26 April 2022, Ms N states that the father attended five therapy sessions via Telehealth since 16 February 2022 and that in their first session, the father disclosed that he had “perpetrated domestic violence towards his wife during their marriage” and a “history of anxiety, depression and [self-harm] attempts” with the most recent being in late 2020. Ms N notes that the father “expressed a desire to work on the issues that led to his use of verbal and physical (property damage) abuse to ensure the safety and wellbeing of himself and his family”. The therapy sessions focussed on the following:
•exploring his patterns of interpersonal relationships
•exploring the role anger and aggression has played in his life
•identifying the factors that contributed to the domestic violence including limited skills to manage stress, frustration and anger appropriately, loss of control, and feelings of shame and worthlessness
•identifying early warning signs to anger and aggression
•strengthening his mindfulness, distress tolerance and emotion regulation skills to effectively self-soothe and de-escalate situations.
Ms N opines that the father “has engaged well in therapy sessions, shows good reflective capacity, and appears to be actively working to change his behaviour”. Ms N fails to identify any factual basis for her opinions.
In a further letter from Ms N dated 13 February 2023, she identifies that the father has attended 11 therapy sessions via Telehealth since 26 April 2022 and that those sessions have focussed on the following:
•providing psychoeducation about anxiety, depression, anger and chronic Illness
•developing stress reduction and affect regulation strategies
•developing skills to defuse from unhelpful thinking patterns
•processing difficult and intense emotions
•developing interpersonal effectiveness and social communication skills
•exploring his patterns of interpersonal relationships
•nurturing positive social connections and meaningful relationships
•encouraging a balanced lifestyle to support physical and emotional health and wellbeing.
While Ms N opines that the father has “engaged well in therapy sessions, shows good reflective capacity, and appears to be actively working to change his behaviour and improve his mental health and wellbeing”, Ms N fails to identify any factual basis for her opinions. In particular, despite repeating that the father “appears to be actively working to change his behaviour”, Ms N does not identify what behaviours he needs to change or what behaviours he has changed since her earlier report.
The paternal grandfather seemed intent on minimising any shortcomings of the father. He nevertheless conceded that during the relationship it was not unusual for him to receive a call from the mother saying simply - “He’s gone” - which would prompt the paternal grandfather to go to the home and “console” the mother and thereafter try to locate the father. It seems more likely that the paternal grandfather has become used to the father’s outbursts.
Despite having undertaken various courses addressing parenting, family violence and behavioural change, the father demonstrated very little insight into the impact of his behaviour on the mother and children, or how, in a practical sense, re-introduction therapy could work.
In the absence of persuasive evidence that the father’s behaviour has sufficiently changed, and accepting, as I do, that contact with the father would cause the children and the mother significant distress and anxiety, I conclude that the risk of emotional and psychological harm to the children from exposure to the father is unacceptable.
IF HE DOES, CAN THAT RISK BE AMELIORATED WITH SUPERVISION?
Even the father concedes that before he could embark on spending time with the children, there would need to be reintroduction therapy. This question really does not arise for consideration in the circumstances. There is no evidence that persuades me that making an order for the father to spend supervised time is practical.
IF THE FATHER’S TIME WITH THE CHILDREN IS TO BE SUPERVISED, ARE THE PATERNAL GRANDPARENTS APPROPRIATE SUPERVISORS?
While this issue really does not arise given my earlier findings, the grandparents would not be appropriate supervisors. Firstly, there was no evidence from the paternal grandmother and no explanation for her absence. Secondly, while the paternal grandfather presented as a caring and well-meaning man, he would not be a suitable supervisor as he cannot see any need for supervision. As he candidly admitted during his evidence, he probably just became used to the outbursts of both the paternal grandmother and the father.
IF THE RISK TO THE CHILDREN DOES NOT POSE AN UNACCEPTABLE RISK OF HARM, TO WHAT EXTENT DOES THE FATHER’S TIME WITH THE CHILDREN NEED TO BE SUPERVISED IN ANY EVENT, AND FOR WHAT DURATION?
I have found that the father does pose an unacceptable risk of harm but, in any event, given the father’s admitted physical challenges, he would need to have others present during any time he spent with the children.
HAS THE MOTHER HAD INAPPROPRIATE CONVERSATIONS WITH THE CHILDREN TO ALIENATE THEM FROM THE FATHER?
One matter that caused me concern during the mother’s evidence was her statement that if W hears certain sounds she covers her ears and the mother says to her, “it’s okay it’s not daddy”. Such a statement seemed to me to be reinforcing a need for the child to be fearful of the father. However, having heard the opinion of W’s therapist, who said that W did associate these sounds with her father, and the family report writer’s view that it was reasonable to say what the mother said if the child had identified the source of her fear, I accept that such a response by the mother was reasonable in the circumstances.
There is no evidence to support a finding that the mother has engaged in conversations with the children to alienate them from the father.
The fact that the father persisted with this as an issue is yet another indication, in my view, of his failure to accept responsibility for the impact of his behaviour on the children.
WHAT PARENTING ORDER IS PROPER?
I have found that the father poses an unacceptable risk of harm to the children of exposure to family violence, in particular, by yelling, swearing, throwing objects and threatening self-harm. I have also found that there is an unacceptable risk to W and X of an adverse reaction to spending time with the father and to all children given the mother’s likely reaction to the father spending time with the children. I have also found that the risk cannot be ameliorated by supervision.
If I am wrong in that conclusion, I would nevertheless refuse to make an order for the children to spend time with the father given the absence of any practical means by which such time could realistically occur, having regard to the extreme reaction of W and X when they last saw the father. The younger children are unlikely to have any memory of the father. The father proposes that he and the children undertake reunification counselling but there is no evidence from any therapist willing to undertake such counselling, or evidence about whether such counselling would be suitable in this case, over what period such counselling would have to be undertaken, the cost of such counselling, or how such counselling could be paid for given the financial position of each party.
The making of such an order, even if I could be satisfied that it was appropriate, which I am not, would be likely to lead to further litigation as the Court cannot abrogate the responsibility for the decision about when and what time the father would spend with the children to a third party.[14]
[14] Re David (1997) FLC 92-776.
The presumption in favour of equal shared parental responsibility does not apply in this case given my findings about family violence. There is no prospect of the parents being able to make joint decisions about major long terms issues concerning the children. An order for equal shared parental responsibility would not be in the best interests of the children. The mother will have sole parental responsibility but, consistent with the mother’s evidence that she would be prepared to do so, I will make an order that the mother post to the father each semester a copy of each child’s report card and for the younger children a summary of their educational progress. The mother will be able to redact any identifying information as to the children’s residential address or school (assuming they return to main stream school in the future as indicated by the mother). The mother will also be required to provide copies of any medical or allied health reports to the father (again after redaction) and keep the father informed of any serious medical condition diagnosed for each child.
I consider it reasonable for the children to be able to travel overseas with the mother or her family should that opportunity arise in the future and to attend school excursions overseas.
The father did not object to a number of the personal injunctions sought against him. I consider it reasonable to issue such injunctions in circumstances where the protection order will expire this year. I will include the injunction specifying a distance to which the father must remain away from the mother and children. While the father does not currently know the mother’s and children’s whereabouts, it is conceivable that he might run into them one day. If that were to occur it is reasonable for their safety that he does not come within one hundred metres of them.
I have had regard to each party’s proposed order and the minute of order recommended by the ICL. Each party had the opportunity to make submissions on the terms of orders and I have fashioned an order which I consider to be in the best interests of the children, largely adopting the minute of order recommended by the ICL.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 31 March 2023
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