Kex and Harper

FAMILY COURT OF AUSTRALIA

KEX & HARPER

[2011] FamCA 623

FAMILY LAW - CHILDREN - Best interests - With whom a child lives – Family violence – Supervised time

Family Law Act 1975 (Cth) Part VII, s 60B, s 60CA, s 60CC, s 60CC(2), s 60CC(3), s 61B, s 61C, s 61DA(1), s 61DA(2), s 62DA(4), s 65AA, s 65DAA(1), s 65DAA(2)

Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531

APPLICANT:

Ms Kex

RESPONDENT:

Mr Harper

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

CAC

1667

2007

DATE DELIVERED:

1 August 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

9, 10 & 11 February 2011

REPRESENTATION

FOR THE APPLICANT:

Ms Kex, in person

FOR THE RESPONDENT:

Mr Harper, in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

Orders

The following parenting orders are made in relation to the children J born … April 2000 and E born … December 2003 (“the children”).

Parental Responsibility

That Ms Kex (“the mother) shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975) in respect of the children except that Ms Kex shall, prior to making the sole ultimate decision about any such issue:
2.1.Advise Mr Harper (“the father”) in writing of the decision intended to be made;
2.2.Seek the written response of the father in relation thereto;
2.3.Consider, by reference to the best interests of the child, any such responses prior to making any such decision; and
2.4.Advise the father in writing as soon as reasonably practicable of her ultimate decision.

Live with

The children shall live with the mother.

Direct Time Spent

That until mid-December 2014 the children shall spend time with their father on the following basis:

4.1.On one weekend occasion in each two-month period at the Contact Centre in Town A.
4.2.The duration of each period of time spent shall be two hours unless the Centre is unable to offer such period in which case it shall be for the period which the Centre is able to offer.
4.3.That both parties are to make contact with the Centre as soon as possible, to do all things and sign all documents necessary to make the arrangements required by these Orders and to accept the earliest weekend appointment available at the Centre.
4.4.That Ms SM and her daughter HM shall be able to accompany the father on each visit with the children if the Manager at the Centre agrees.
4.5.That both parties are to comply with all directions of the Manager at the Centre and the father is to ensure so far as is reasonably possible that Ms SM and HM also comply with such directions.
4.6.That any fees payable to the Centre are to be paid by the father and mother in equal shares.

Telephone Communication

That the children shall have telephone communication with their father on one occasion each week at a time to be agreed between the parties and the Independent Children’s Lawyer as well as 7.30 pm on each of the children’s birthdays and 10 am on Christmas Day on the following basis:

5.1.The mother is to keep the father informed at all times of a telephone number at which the children can be contacted.
5.2.The father is to make the telephone calls to that number.
5.3.The father is not to telephone that number except at the agreed times.
5.4.The mother is permitted to place the calls on speaker phone but she is to make it clear that she is doing so, maintain a positive and facilitative tone and she is to facilitate and allow the children to speak with their father about their interests and events in their lives.

Gifts and Letters

That the father may send letters, cards, emails and gifts to the children and the mother is to ensure that such are received by the children.

Injunction

That each parent is restrained from making any derogatory remarks about the other or their partners, relatives or friends in the presence or hearing of either child and to use their best endeavours to ensure that no other person does so.
That each parent is restrained from discussing these proceedings with either of the children or in their presence or hearing and from showing any documents relating to these proceedings to either of the children.

Counselling

That each of the parents is to attend as soon as possible a counselling or parenting program recommended by the Independent Children’s Lawyer after consultation with the Manager, Child Dispute Services, Parramatta. The purpose of this counselling would be to endeavour to achieve the matters contained in the recommendations of Dr K.

Re-listing

10. That the Independent Children’s Lawyer have liberty to re-list these proceedings in relation to the form of the Orders and implementation by arrangement with … , Associate to Johnston J.

Specific issues

That each party shall keep the other informed of their residential address and that of the children during any time that the children are in their care.
That each party shall notify the other with full details of any illness or medical emergency affecting the children when in the care of that party.
That the mother authorise any school the children are attending to forward a copy of all school reports to the father.
That the appointment of the Independent Children's Lawyer continue for a period of nine months from the date of these orders.
That pursuant to s.62B and s.65DA(2) 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 the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Kex & Harper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: CAC 1667 of 2007

Ms Kex

Applicant

And

Mr Harper

Respondent

REASONS FOR JUDGMENT

Introduction and applications

J (born in April 2000) and E (born in December 2003) are 10 years of age and 7 years of age respectively. The girls have a sibling namely KA (born in December 2005) who is 5 years of age. KA’s father is Mr DA, the mother’s fiancé, with whom she has cohabited since early 2005.
The girls’ parents separated in approximately mid-2004. Since that time the children have not spent very much time with their father notwithstanding numerous court orders to facilitate this.
Following the separation, although there was not a set program of visits, the children saw their father regularly until approximately June 2005 when their mother stopped the children spending any time with their father.
At approximately this time the father commenced a relationship with his current partner Ms SM. Ms SM has a daughter HM who is 14 or 15 years of age. HM lives with her mother and the father.
The father commenced proceedings in the Local Court at Town V in mid-2005.
Following final orders which were made by this Court (Waddy J) in May 2007 the girls were to have four visits with their father at a contact centre and then they were to spend time with him each alternate weekend unsupervised, plus half of the school holidays. After the girls had gone on the supervised visits they commenced the unsupervised weekend times with their father. But by August 2007, that is within approximately three months of this Court’s final orders, their mother stopped the children spending time with their father.
Suffice it to say that there had been serious difficulties between the parents as will be seen below. The mother and Mr DA moved with the children from Town V to Town U to live.
On three occasions in January 2008 E spent unsupervised time with her father for single days. In late January 2008 the mother suspended the children’s time with their father.
Then E spent time on alternate weekends with her father in accordance with orders made by me on 18 February 2008, the last two hours of which were to be spent at the Contact Centre in Town A with J also to attend. Within a short time the mother again suspended the time between the girls and their father.
Following a mediated agreement between the parties in July 2008 the children spent unsupervised time with their father in Town A on alternate Sundays. But on 13 August 2008 the mother suspended E’s time with her father and this continued until May 2009. In the meantime, J continued to spend time with her father on the Sundays.
E spent supervised time with her father at the Contact Centre in Town A for two hours on two occasions in May 2009. In June 2009 the mother again suspended the children’s time with their father.
Again the proceedings came before this Court for a further full hearing commencing on 17 August 2009. Justice Stevenson decided not to make final orders but interim orders were made on 30 September 2009. These were to the effect that the children were to spend time with their father each alternate weekend from Friday to Sunday as well as half school holidays.
The children commenced spending alternate weekends unsupervised with their father on 23 October 2009 in accordance with the orders. After the children spent the weekend of 20 November 2009 with their father, the mother again decided to stop the children spending time with their father. The children have not spent any time with their father since that time.
The mother said that on each of the occasions on which she suspended the children’s time with their father she did so because she decided that it was not safe for the children to continue to spend time with their father. This was because of things which the mother said the children informed her had happened at the father’s home during their time there.
The mother also complained about a long history of acts of domestic violence perpetrated on her, during the marriage and its aftermath, including on occasions, in the presence of the children. She said that the father had “dished out a wave of terror” against her. During the hearing before Stevenson J the mother described the father as “the most evil man [she’d] ever laid eyes on”. During the present hearing the mother said that her present view of him would not be very different from that. The mother made it perfectly clear that whatever orders this Court made, if she thought it was in the children’s interests to contravene the orders then she would not hesitate to do so. She even went so far as to say that if the consequences were for her to have to spend some time in prison for such behaviour then she would still do it. On the other hand, the mother also said that if this Court made orders for the children to live primarily with their father then she would have nothing further to do with the children.
It is hardly surprising, against this background, that the mother seeks orders to the effect that the children spend no time with their father, although she would not oppose him receiving information from the children’s schools and medical information in relation to them.
On the other hand the father is seeking orders on the basis of three options as follows:
·That the children live with him and spend alternate weekends with their mother, delivery to be at Community Group 1, Canberra on Friday afternoons and return to the same place on Sunday afternoons plus half school holidays OR
·That the parties adhere to this Court’s orders dated 30 September 2009 OR
·A graduated program commencing with the children having supervised visits with their father at Community Group 1 for 6 months, then unsupervised day visits for 6 months each alternate Saturday followed by unsupervised alternate weekend time spent from Friday afternoons to Sunday afternoons and half school holidays.
The father also seeks an order to the effect that the mother be required to undertake treatment for an alleged undiagnosed mental health condition to assist her to implement court orders.
On the other hand the mother seeks orders to the effect that the children live with her, that she have sole parental responsibility for them and that they have no contact with their father.

Violence

A most unfortunate characteristic of this case, and a tragedy for the children, is the fact that there has been serious violence in both the household of the mother and the father, and the household of the mother and Mr DA.

Mother and Father’s household

The mother said that within the first week of meeting the father he asked her to hem some pants for him. She said that as a joke she said she would not do this and it turned into a big issue. She said that he punched her in the face. The mother tried to leave the home but the father stopped her and said that he would never do that again. The father told her that he had problems because he was sexually abused by his brothers during primary school.
The father’s account was different. This was that he agreed that he had asked the mother to hem his pants and that during the process she asked him to keep still and he could not. The father said that the mother stuck a pin into his leg and he slapped her across her face. It was common ground that the father promised never to do this again.
I must say I prefer the father’s version of this. But in any event, the incident reflects poorly on the father because, on his admission, he has perpetrated an act of violence on the mother.
The mother said that over the next couple of years, although the father did not hit her, he punched holes in the walls and doors, punched a dent in a refrigerator, punched the windscreen of the car dislodging it and threw a television set across the room. The father conceded that he had punched the walls and doors, and punched the windscreen so hard that it smashed. He also said that he had kicked in a door. But he denied the other allegations.
The mother said that when she was 5 months pregnant with J the father punched her in the face and punched the wall so hard that he broke his knuckle. The father denied this but said that there was a later occasion when he punched the wall so hard that he broke his knuckle.
In mid-2001, when J was approximately 18 months old, the parties had an argument. The father had been drinking a can of soft drink. He was outside. He threw the half full can up the driveway in the direction of the mother. It did not land anywhere near the mother. But J was strapped into her car seat at the time in the driveway.
At this point the parties separated and apparently remained separated for between 12 and 18 months. The mother remained living at Sydney Suburb 1 and the father moved to Town B (in regional NSW).
Then the parties had some counselling and reconciled. This was in early 2003. The mother continued living in Sydney to complete her University course and the father commenced living at the home they had purchased at Town V. During the period when they were having counselling there was an argument and the father slammed the T bar on the transmission into “Park” with such force that the T bar bent.
The mother said that after she moved to Town V in late 2003 the violence became worse.
In May 2004 the parties had an argument. The father said that he walked away and went to the bedroom. He said that the mother followed him into the bedroom and “cornered” him. He said he pushed her under the bed and tried to choke her. The mother called the police and they attended at the home. The police applied for an Interim Apprehended Violence Order which was granted. Subsequently, in circumstances which are not clear to me, the police arrested the father apparently for breach of the Apprehended Violence Order and for assault causing grievous bodily harm. The father was remanded in prison for approximately 5-6 weeks, ultimately sentenced to 125 hours community service and placed on a good behaviour bond for 6 months.
On 31 December 2004 the father came home early from work with flowers and a bottle of champagne. As he arrived home he saw Mr DA leaving the home. The parents have given different accounts of what subsequently transpired.
The father’s version is as follows. The parties had an argument. Then the mother went to bed. The following day the parties had another argument. The father was preparing to take the girls swimming. The father said that the mother changed her mind about going swimming. The mother had been cutting up some fruit in the kitchen and had a knife in her hand. She stood at the front door holding the knife in front of her and informed the father that he was not taking the children. He said that he became very upset and that he grabbed the knife and said “If you really want to kill me just do it”. The father grabbed the mother and started pushing her against the wall. J began to cry. The father secured the knife and put it away. The mother ran out of the home. The father said that he said “Come back, we can work this out, we had a nice day planned”. He also said that he told J to go and comfort her mother.
The mother’s account is different. She said that the same morning the father started hitting her. He grabbed a knife and started cutting her hair with it. She told him to stop and that he was hurting her. J came into the room and asked her father what he was doing with the knife. He said “nothing”. The mother said “Put the knife away you’re really scaring her”. The father grabbed the mother and started pulling her hair and pushing her against the wall. The mother ran from the home and rang the police. She asked J to come to her. The father told the mother to get into the house and she refused. The father then said “Say goodbye to [E] and [J] then”. J screamed words to the effect “Mummy, go and get [E] he is going to kill her”. Then the father asked her whether she had called the police. She said that they were on their way. The father drove away in the car.
I must say I think it is more likely than not that the mother’s version is closer to what happened than that of the father. This is for the following reasons. The first is that the father conceded that at the time he was not thinking straight. Secondly, he said that the reference to saying goodbye was in the context of him being about to pack his clothes and go to Sydney. In my view, this explanation did not rest comfortably with circumstances that he conceded would have been terrifying for the mother and the children. But most of all, there can be little doubt that J was terrified that her father was going to kill E. This is because she has informed Dr K psychiatrist, the Court expert several times that her father tried to murder E when she was a baby.
The mother said that in August 2007, after the children had spent time at the home of their father and Ms SM, J said that their father had been fighting with Ms SM. J had said that their father had taken the keys to Ms SM’s new car, twisted and broken them and thrown them outside in the yard. She said that she, Ms SM and Ms SM’s daughter HM had been up until midnight looking for the keys.
The father’s partner Ms SM presented a different account about this matter to the Court. Ms SM said that there was a disagreement between the father and her about her car keys. The father asked to borrow her car to return the children to their mother. But Ms SM needed the car. Ms SM denied that the father twisted, broke or threw the keys. She said that he went for a walk out the front with the keys and that she did not see him after he walked out the front door. Ms SM said that the keys were on the driveway about 10 feet away from her car. She said that J, E and her daughter HM were all in bed at the time. She also said that there was no searching for the keys until midnight. She said that the father had been annoyed but they were not using loud voices.

The father’s account is different again. He said that he and Ms SM had an argument. He was angry and frustrated because Ms SM did not want him to use her car. He took the keys and threw them into the front yard. After he threw the keys he had a cigarette, picked up the keys and returned inside the house. He denied that J, HM and Ms SM were up to midnight looking for the keys.
The father gave a slightly different account to Dr K. He said that he and Ms SM had an argument because he wanted to drive her car and she said “no”. He thought “well if I can’t, you can’t” and threw the keys outside. He instantly regretted the action and he, Ms SM and HM went looking for the keys and found them in maximum 5 minutes.
J told Dr K that on the occasion she was not asleep in bed, as her father had stated when he threw Ms SM’s keys outside. She was watching a show with her father in the lounge room. She did offer to help to find the keys. Ms SM and HM were out there looking in the grass for ages. She had fallen asleep.
In my view, it is likely that J has exaggerated the facts about this matter to her mother. It is difficult to believe that some hours would have been spent by three persons in locating a set of keys thrown into the front yard.
Having said this, I also have the view that Ms SM has probably tended to minimise the degree of argument involved. I would be surprised if there had not been considerably more upset and tension involved than has been suggested by Ms SM’s account. I prefer the father’s account as being likely to be more accurate than that of Ms SM.
On the weekend of 20 November 2009 the children were staying with their father and Ms SM. The mother said that J gave her the following account of an incident that weekend. J awoke to screaming and arose from bed. Her father and Ms SM sent her back to bed and turned the volume of the television set up “really loud”. J informed her father and Ms SM that she was unable to sleep because the television was so loud. They turned it down and their fighting continued. The fighting became worse and J became scared. She went to the door of their bedroom and saw her father naked on top of Ms SM “humping her”- inserting his penis into her. Ms SM was screaming at him to get off. The father said “This is part of sex get used to it”. The father then punched Ms SM in the side of her head. J knocked on the door and asked for a cup to try and stop the fighting because she felt sorry for Ms SM. Then Ms SM started screaming that J was at the door. The father approached J and said “You’d better not tell anyone what you saw”.
The father and Ms SM both gave different accounts of this incident.
The father said that he and Ms SM had a disagreement after J had gone to bed. She knocked on the door and asked them what they were talking about. She said that the television was loud. He said that they had not turned the volume up because they were arguing. The father denied that he was naked, humping, that he said “This is part of sex” or that he punched Ms SM. He said that he was sitting on the side of the bed, that Ms SM was in the bed and that he was on top of the bedcovers. The father also denied that he told J that she had better not say anything.
Ms SM said that J got up from bed, came to their bedroom and asked for a drink of water. She knocked on the door. Ms SM was in bed with a sheet over her and the father was sitting on the bed. Ms SM said J was not woken by screaming. Nor was the television loud. Nor did J say anything like “turn the television down”. Ms SM denied that she and the father had been arguing. Ms SM said that there was no sexual activity between them. She denied a suggestion that the father had punched her and that he had said “This is part of sex get used to it”.
I am troubled by the father having said that he and Ms SM had been having an argument and Ms SM denying this. Because it seems more likely than not that they were having an argument. If I am correct, once again Ms SM would appear to have been minimising the events. Apart from this difference, their accounts were very similar.
J gave a slightly different account of this matter to Dr K. She said that her father and Ms SM were yelling and the fight had to do with her and E. She saw her father on top of Ms SM but with clothes on. Ms SM had a T shirt on and the sheet pulled up. She was trying to get away. She said to the father that she would call the police if he did not let go. He let go. Her father said to her “Don’t tell anyone, or you won’t be able to see me again”. J said to Dr K that this was not rape but it was sexual abuse. She said that she knew what these words meant because she had learnt about them at school.
In my view there is another piece of evidence relevant to this matter. This is that on the afternoon of the same day of the above alleged events, J had wanted to accompany Ms SM’s daughter HM and HM’s friend to the friend’s home. But she was told either by her father or Ms SM that she was not to do so. She took off in any event after the girls and was brought back home by her father. This might have provided a motive for J to have exaggerated the events of the evening. Or, of course, her account might have been accurate.
I am unable to satisfy myself that one or other version is more likely to be correct on a balance of probabilities.
There were numerous other instances in which the mother alleged that the father had perpetrated acts of violence upon her. These were denied by the father. But in my view, it matters little because there is no doubt that the father has been violent to the mother. To his credit the father has conceded this and also the fact that the violence has had a serious effect not only on the mother’s capacity to properly parent the children but also on the children’s emotional and psychological well-being.

Mother and Mr DA’s household

As indicated above, there has also been violence perpetrated by Mr DA.
On 10 February 2008 Mr DA had been drinking while having the children in his care. When the mother returned home she found him to be drunk and they had an argument. Mr DA grabbed the mother’s face, twisted it and pushed it hard onto a brick wall. The mother suffered lacerations to her cheek. Mr DA was convicted of assault occasioning actual bodily harm. He was placed on a good behaviour bond of twelve months and an Apprehended Violence Order also issued.
On 14 February 2009 there was an argument between the mother and Mr DA about him having disciplined the children. Apparently they had made a mess in the bathroom. Mr DA became frustrated to the point where he threw his small transistor radio on the floor and it bounced up and broke a glass panel in a door. The children told Dr K that their mother started yelling and that Mr DA hit her. The mother asked the children to fetch their neighbours “[…] and […]”. Another neighbour also attended. The police came. Mr DA asked the police to reinstate his Apprehended Violence Order. He said his reason for asking the police to do this was that the Apprehended Violence Order would force him to stay away from the mother because he “thought (he’d) had enough at the time”. Mr DA moved into the shed for a night.

Credit

The mother

The mother was an unimpressive witness. She had considerable difficulty giving responsive answers to questions. During cross-examination by the father, she often challenged the appropriateness of the question and on many occasions asked the father to in effect redefine his question. At one point I had the impression that she appeared to be engaging in a competition of one-upmanship with him. She was aggressive, defensive and quite thought disordered at times. From time to time she was incapable of answering even quite simple questions. I observed the same behaviours during her cross-examination by Ms Shea.
The mother treated some of my questions to her with a similar lack of respect. She was defiant and disrespectful. She made it very clear that she held the strong view that the father had nothing to offer the girls and that she could see no benefit whatsoever in their having a relationship with him.
I have reservations about the reliability of much of the mother’s evidence.

The father

The father answered questions in a responsive manner. His demeanour was one of calmness and cooperation. He made many concessions, a lot of which must have been quite demeaning for him. In particular, these included his admissions that he had perpetrated acts of verbal, emotional and physical violence on the mother.
I thought that he was truthful in much of his evidence. But I regard him to have minimised some of the evidence about the alleged violence.
There were also two areas where his evidence diverged from that of his partner Ms SM. The first was in relation to the incident during time spent by the girls with their father and Ms SM when J knocked on their bedroom door. The father said that the TV was loud. Ms SM said that the TV was not loud. It is hard not to suspect that there was some playing down in terms of the seriousness of this incident by the father and Ms SM, particularly Ms SM.
The second incident raising divergence in the evidence between the father and Ms SM was in relation to the keys to Ms SM’s motor vehicle. The father conceded that he threw the keys out the front, outside the home. Ms SM appeared to me to be saying that he placed the keys down by the side of the motor vehicle which seemed inherently unlikely in all the circumstances. When pressed about the difference between their accounts she said that he might have thrown them. This left a suspicion that there had been some understating of the level of emotion and upset which was involved in that incident. But in respect of each of these matters in my view the father’s version was more likely to be closer to the truth than that of Ms SM.
There is no doubt in my mind that the father has derived considerable benefit from anger management and other counselling which he has availed himself of since separation. He does impress me as a person who has made significant improvements in terms of managing his earlier impulsive behaviour. There was nothing in his demeanour in the courtroom to suggest otherwise. In fact his demeanour in the courtroom was relaxed and cooperative. The mother asserted that there were some bad behaviours between them outside the courtroom. I am not in a position to know one way or the other whether such was correct.
Where there is conflict between the evidence of the father and that of the mother generally I would prefer the evidence of the father.

Mr DA

Mr DA appeared to have some difficulty and discomfort in managing the process of being questioned. Perhaps he was nervous. At times he smiled but when he did this I had the impression it was probably as a consequence of tension. He was impatient with the process and indicated that it was important for him to return as soon as possible to his work. He gave me the impression that coming to Court was something which he had to endure. I had no confidence that there would be any independence of mind brought by Mr DA in relation to any of the matters about which decisions had to be made in the mother’s household.
I regard Mr DA as a poor witness.

Ms SM

Ms SM also appeared initially to have some difficulty with the questioning process. Even bearing in mind the difficulties that must inevitably be involved for her when being cross-examined directly by the children’s mother, challenging as everybody including myself found that, Ms SM had some difficulty. She challenged the relevance of questions by the mother about her receiving compensation payments. I had to assure her twice that these were relevant questions and that she could leave it to me to determine matters of relevance.
Having said that, Ms SM impressed me as a sensible person who appears to have done very well in raising her own daughter HM. She had given considerable thought to the very challenging implications involved if she and the father were to become the primary carers, perhaps the sole carers, of the girls.
I did have some sense that, as indicated above, Ms SM tended to minimise the seriousness of the arguments with the father to which I have referred above and was being somewhat protective towards the father in respect of these matters. But having said that, generally, I regard her as being a witness of the truth.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
The Independent Children's Lawyer has submitted that because of the appalling relationship between the parents it simply would not be in the children’s best interests for them to have shared parental responsibility. I accept this submission and in these circumstances, in my view, it is appropriate to consider what would be in the children’s best interests before determining the issue of parental responsibility. So I shall consider the relevant matters as required under the legislation concerning best interests before returning to consideration of parental responsibility.

Section 60CC Considerations

How the Court is to go about determining what is in the children’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s 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.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. They include the following.

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

J has expressed a very clear view that not only does she not want to live with her father but she does not want to see him. Dr K said about this view (that J did not want to see her father) as follows:
I feel that this view whilst partly projected by the mother, is also an independent view based on [J’s] own early trauma and experiences of her father over recent years.
When asked what type of contact she would want if she had to have contact, [J] elected a contact centre, because “dad acts like he isn’t violent when around people” and because she’s had practice at the contact centre, and knows what to do.
I feel that [J’s] overall reticence about contact with her father, caution about contact without other adults around, and desire for contact with which she has “practice” should be taken into account.
In relation to E’s views Dr K said as follows:
[E] clearly told me when alone that she misses her dad and wants to see him again. When asked whether she would want to live with her father, she said no, she wanted to live with mum, but to see dad. This is a significant statement, given the views expressed by her mother and [J], and reflects a desire to maintain what has been positive in [E’s] relationship with her dad, which should be given weight.
In relation to J’s level of maturity Dr K thought that she was slightly below average maturity for her age. But having said this Dr K thought her views should be given weight.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

As Dr K has said, the girls have a close relationship with each other. E has some capacity to act separately from her sister. They also have a close and caring relationship with their young brother KA.
They have a close relationship with their mother which Dr K said appears to be secure and positive. But their relationship with their mother also involves a degree of enmeshment with her in relation to issues concerning their father.
But Dr K was also careful to say that much of J’s views about her father appeared to be based on her own experience and opinion. For example she repeated on a number of occasions “you know, he tried to kill [E] when she was a baby”.
Dr K appears to regard E as being less enmeshed with her mother than in J’s case.
He also regards the children to have a secure and positive relationship with the mother’s fiancé Mr DA.
On the other hand Dr K described J’s relationship with her father as vigilant and cautious. Dr K said as follows at page 21 of his Report:
She held a fixed and prominent view that he was dangerous. While [J’s] fear has likely been perpetuated and amplified by her mother’s transmitted perspectives and fears, it derives from her own early traumatic memories which have then been powerfully reinforced by more recent experience of conflict between her father and his current partner. [J] appeared anxious and biologically aroused during the family interview with her father. She later described that several times during the interview, she had experienced a sudden image of her father coming up close to her and being about to do something. She described this experience with a clarity, simplicity and intensity which suggested to me that it was not coached or manufactured. This experience is consistent with her vivid traumatic memories and the dreams which she described of her father coming to murder her family, all of which are features of a chronic post-traumatic stress response in [J], which is disrupting her relationship with her father.
[J] told me then in terms of logical thinking, she was not afraid of seeing her father with me, because he “acts like he isn’t violent” when other people are around. In the same way, she would not be afraid of seeing him in a contact centre. This perspective that her father is intrinsically dangerous, but safe in the company of other adults, has been put forward by J in the past.

At page 22 Dr K says:
It is my impression that the observed positive engagements between [J] and her father represent a mix of:
1.an adaptation to a situation perceived as dangerous. [J] fears and asks not to see her father, but when she is required to do so, she acts in the way which is least likely to provoke his aggression, that is to follow his two rules: to do what he says, and to have fun.
2.an ambivalent hope that maybe dad might change and become safe and non-violent. In my experience, most children maintain at least some degree of this hope, expressed in [J’s] words quoted in the family report of 23^rd April 2007 that she wished “my father was nice”.
In the case of E, her relationship with her father appears to be less complicated. Dr K said E is able to engage positively with her father and enjoys seeing him. She did not describe to Dr K any fears or traumatic symptoms related to her father. While there was some inhibition and anxiety Dr K thought this was due to E’s background shyness and her need to be loyal to her mother and to her sister.
E approached her father for a cuddle and wanted to see more of him.
Dr K said the girls did “warm up” during the interview and shared some banter with their father and his partner.
Dr K said the girls appear to have a positive relationship with the father’s partner and her daughter HM who they appear to regard as a big sister. They chatted happily to the father’s partner when she took them to the toilet and “returned calmly”.
Dr K also said that the children appeared to have a good relationship with their sibling KA with whom they played sensitively.
The father conceded that his behaviour during the relationship with the mother became disgraceful over time and that he tended to minimise the seriousness of his behaviour. He accepts that his behaviour has had a negative impact on the children, particularly J, as indicated above. But as also indicated above, the father considers himself to have changed for the better. He said that he has apologised to the mother for his appalling behaviour.

Section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

Dr K says at page 22 of his Report:
The mother has demonstrated the capacity to facilitate and encourage a relationship between the girls and their father, but only within tight constraints which meet her need to keep the children safe from what she perceives as his controlling, intrusive and intimidating behaviour. Because she perceives him as dishonest, these constraints include the need to monitor the father and his behaviour towards the girls because he can’t be trusted. The mother grew up without a father, and genuinely wants the girls to know and see their father.
I must say I have a different view having heard the mother’s oral evidence. The mother does not want the children to have a relationship with their father. At an intellectual level, perhaps, she can see that children should be permitted to have a relationship with each of their parents because this would be good for their development. Her own case is a good case in point. The mother said that this would be really good for her girls if their father was a different person and presumably someone acceptable to the mother.
To be fair to Dr K, he did qualify his above view during his cross-examination. This was rather that he thought that at a philosophical level the mother wanted the children to know and see their father. But Dr K agreed that the mother could see no benefit in the children seeing their father and that she thinks their father has nothing positive to offer them because she does not see him as a father who has changed, or who can change.
I do not regard the mother to have capacity to facilitate and encourage a close and continuing relationship between the children and their father. In my view she desperately wants to shut out the father completely from the children’s lives and from her own life. She wants peace, not the inconvenience, stress and worry which, for her, would accompany any contact at all between the children and their father. She regards the father as a real danger to the girls because of the physical and emotional abuse perpetrated on her and the children by him during the marriage and after separation. She can see nothing positive about him at all. She was unable to concede during her cross-examination that the father loves the girls or even that he cares about them. Nor was she able to demonstrate any understanding of what the current court orders required.
The only glimmer of hope, in my view, was that at one point during her cross-examination the mother agreed that she would comply with orders for supervised time between the girls and their father if this took place at the Contact Centre at Town A at a Canberra contact centre.
On the other hand the father regards it as being in the girls’ interests to have a stable relationship with both of their parents.
Dr K said that the father has capacity to facilitate and encourage a relationship between the girls and their mother. He was observed to show respect for the girls’ love of, and need for, their mother, and an awareness that the girls have positive life experiences in the mother’s care such as their horse riding.
I am not aware of any difficulties in the father ensuring the children pass comfortably back into the care of their mother after they spent time with him.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

This consideration was described by learned solicitor for the independent children's lawyer as probably the most relevant consideration in the case. This was because the father’s proposal for the children to live with him would have catastrophic consequences for the children. Dr K said that this would create distress in the children and be detrimental to them for the following reasons:
·their primary attachment figure is their mother and this has been the case continually from birth. They have a warm and trusting relationship with their mother, and come to her for sharing and nurturing … Whilst the mother has her vulnerabilities, she has been able to provide a “good enough” parenting environment for the girls, and they would experience distress, grief and loss at being removed from her care;
·the requirement to hand over her girls into what (their mother) perceives as a dangerous and unmonitorable environment would be likely to disorganise and distress the mother such that she would be less able to calmly and thoughtfully care for the girls when they had contact with her. Thus the girls would experience the additional distress associated with their mother’s decompensation and vigilant distress about their circumstances;
·the girls have found a broader security and stability in [Town U] with the mother’s partner, the horses, school, friends and (for [E]) treating professionals. This would be disrupted by a move.
·For [J], as discussed above, she would experience fear and distress associated with her experience of her father as dangerous, which might be exacerbated by any adult conflict in the home, particularly if she felt unable to escape or to seek help from a decompensated mother.
Dr K said at page 25 as follows:
While such a move would “on paper” ensure that the girls had a close and continuing relationship with their father and their mother, because the father would facilitate contact with the mother, I am concerned that the detrimental effects described above are too great to warrant such a move and that the resultant decompensation and associated distress in the girls might pull the girls into a “black and white” loyalty conflict which again place the relationship with their father at risk.
In particular Dr K said that wresting J from her mother’s household would be devastating for her. He said that she would keep trying to find her mother which I infer would expose her to real risk of running away with all the negative consequences for her of such behaviour.
The mother said that if the children were required to live primarily with their father then she would not see them or have anything to do with them.
Dr K said that this would be a very serious concern and very bad for the girls. He said that in such circumstances the mother would be very distressed, very inconsistent and very erratic, he said that neither she nor we could predict what she might do. He explained that the mother might behave in this way because she knows that she would not be able to cope with seeing the children then having to hand them back so that her only way of surviving would be not to see them at all. This would obviously be extremely distressing for the girls. Dr K said that J witnessing her mother not coping would slow down J’s development.
On the other hand Dr K said that if the girls were separated from seeing their father in the long term they are likely to grow up adequately in their mother’s care. Dr K said as follows at page 25 of his Report:
The potential detrimental effects of such a long-term separation would be:
·the loss of what has been for both girls a relationship with the father which has had significant positive elements, contributing to a risk of long-term alienation from their biological father.
·the loss of an alternative sounding board and future respite or residential option if either girl has struggles in the mother’s home in the future.
·the risk of a paradoxical idealising of the absent father, such that if either girl has a period of conflict or alienation in their relationship with the mother (for example during teenage years), they might seek out the father as a sounding board for residential solution without the benefit of actually knowing him.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

The geographic distance between the parties presents as a real difficulty in this case. On the one hand the mother and Mr DA live with the children at Town U. On the other hand the father, Ms SM and HM live at Town B. The amount of travelling involved must be a serious consideration in terms of what amount of travelling the children would be able to reasonably withstand.
I must say that in the event that the children were to remain resident with their mother and spend time with their father then in my view the closer this could be achieved to the area of their residence the better.

Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

At page 27 of his Report Dr K said as follows:
… the mother has experienced depression in the past, which has likely been a dysthymia (chronic, medium-severity depression) which has at times become more severe and become a major depressive episode. This occurs on the background of an emotionally reactive temperament, and post-traumatic reactivity to cues from the father based on past abuse by him (without her having the full syndrome of post-traumatic stress disorder).
As discussed above, when depressed or reactive to perceived intrusion / control by the father, the mother’s capacity to provide for the girls’ needs has been eroded, but has persisted at a “good enough” level. The mother is currently not depressed, she feels secure from intrusion by the father, and her mental state overall has been moving in a stronger and healthier direction in recent years.
Dr K also says (at pages 25 and 26) as follows:
The mother appears able to adequately provide for the needs of the girls, including their emotional and intellectual needs. This is particularly the case in the last 2½ years, since the move to [Town U], when the mother’s living circumstances, relationship with her partner, and mental health have stabilised and improved.
The mother’s partner appears to augment the mother’s capacity to meet the children’s needs by improving her well-being, and specifically by providing firm behavioural boundaries for the girls, and enriching family experiences of the animals in particular the horses. My reading and observations did not support any concern about him being sexually inappropriate towards the girls.
My interviews with the girls with their mother and her partner and alone, and my telephone interview with the school principal suggest to me that both girls are on a positive developmental trajectory in the intellectual, social, emotional and behavioural domains. This observation suggests that the mother has provided them with “good enough” care over the years.
The mother’s capacity to provide for the girls’ emotional needs was reduced when she was living with the father and experiencing abuse from him, in the period of conflict post-separation, and in early years of her relationship with her current partner when he was abusing alcohol and there were incidents of him being aggressive. The mother was distressed, depressed, preoccupied, more emotionally reactive, and less able to attune to the girls or to set boundaries on their behaviour. These periods of deficit likely contributed to [E’s] language, anxiety and behavioural difficulties from which she is now recovering.
…
I note that during these periods the mother maintained the physical care of the children, and a vigilance to danger such that she would act to protect them, including calling the police if necessary.
I note that when the mother felt intruded upon or invaded by the father’s influence, such as when she perceived him as ganging up with her partner’s sister and her partner’s ex-partner to meddle in her life, or making untrue accusations and intrusive demands through the courts this eroded her mental health and capacity to meet the girls’ emotional needs. When she experienced a separation from her partner and the meddling others, and a sense of security and separateness in [Town U], her mental health improved and she was more able to meet the girls’ needs.
Thus any court finding which gives the mother some certainty, perceived safety from her partner’s intrusions and control over her daughters’ exposure to perceived danger would contribute to the mother’s well-being and capacity to meet her girls’ needs.
On the other hand Dr K considered the father to be able to adequately provide for the girls’ needs when they are in his care on contact visits, and that his partner, Ms SM appears to augment his capacity in this regard. Dr K said that the father’s capacity to do so if he were primary residential parent is untested but thought that he and Ms SM would be able to provide a “good enough” home environment for the girls.
Dr K said the one area of deficit in the case of the father was that after an episode of conflict J did not feel able to talk this through with her father and come to a resolution with him or within herself. Dr K expressed some concern that the father’s style might be to minimise and defend himself rather than to apologise for any aggressive or immature behaviour. He said that he was concerned that the father might not be sensitive or responsive to J’s post-traumatic sensitivity to his aggression.
In relation to the father’s capacity Dr K also said as follows at page 23 of his Report:
·He has a coercive element to his personality, for example his two rules for the children to obey him and to have fun include a requirement for not only obedience but cheerful obedience, constraining them from other emotional responses. His logic in throwing his partner’s car keys sought control and retribution: “if I can’t drive it, you can’t drive it”.
·He has a capacity for disrespectful partial compliance which makes him appear reasonable on the surface but diminishes and leaves the onus on the other. His admission of guilt for past wrongs had an earnest tone, but was followed by a narrative of which placed the blame squarely at the mother’s feet and minimised the severity of his violence. The documents from [Community Group 1] Contact Centre record that when the worker asked him for [J’s] jeans to be returned to the mother in August 2007, he “simply replied that jeans are jeans, and made no commitment to return the jeans in question”.
·He has a capacity for careful, dishonest evidence-supported disavowel of information which does not correspond with the self which he wishes to project. For example, in his affidavit filed 11^th December 2007, at para 37n, regarding the argument involving car keys, the father states, “There was a discussion regarding car keys that lasted a few minutes. There was no fight or searching for keys in the backyard. There were neither arguments, nor raised voices …”. He attaches letters from a restaurant staff and a next door neighbour to support his case. In his interview with me and the children, he conceded that he had thrown the keys outside, but retreated to the next opportunity to minimise, stating that [J] had been in bed and that they only had to search outside for a moment. When seen alone after our family interview, the first thing that [J] did was to set me straight about these further minimisings. Reviewing the father’s affidavit in light of his admission during my interview, I note that the statement “there was no fight or searching for keys in the backyard” is careful in not denying that he threw the keys whilst inferring that he had not.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

At page 26 of his Report Dr K says as follows:
The mother shows an attitude of love, care and responsibility towards her children. Even when depressed, she has prioritised her girls’ safety and wellbeing. She has consistently sought to protect them and to meet their needs.
I must say I accept this, at least to some point. But in my view consideration must be given also to the very poor regard which the mother has for the father. This, in my view, blinds her to the possibility that the children might gain something from being able to have a relationship with their father. And, as indicated above, there are no signs that the mother would be able to change in this attitude.
An example of this was the mother’s behaviour following J informing her about the bedroom incident involving her father and Ms SM. The mother did not seem to consider the possibility that J might have been exaggerating at least some aspects of this. The mother could not resist the temptation to take the child to the police to inform the police about this incident. It is difficult to avoid the impression that the mother placed her own interests in hoping that the police would deal with the father above the interests of J. The risk to J in this is that she could have been involved in criminal proceedings against her father. In my view this reflected poorly on the mother’s attitude to the responsibilities of parenthood.
And it would hardly be a responsible act for the mother to disobey court orders and risk being imprisoned as she has threatened to do. This would probably have the consequence for the children of considerable dispute in the arrangements for their care.
Having said this, unfortunately the father has fallen down considerably over the years in not at all times having been able to maintain an appropriate attitude to the children and to the responsibilities of parenthood. Dr K comments on this at page 26 of his Report as follows:
When the parents cohabited and early after their separation, the father appears to have failed in his responsibilities as a parent by not tempering his aggression in front of the children, and not adequately considering the childrens’ need for their mother to feel safe and strong, or the negative impact of his intrusive or abusive behaviour on his parenting capacity.

Having made this criticism Dr K goes on to say at the following paragraph as follows:
In recent years, the father has shown a persistent desire to maintain a relationship with his children. He has persisted despite being “stuffed around” by the mother. He has driven long distances to attend supervised contact and has endured the mother being late or missing contact sessions. He has persisted through the courts.
It is my impression that the father’s persistence has been motivated by his sense of responsibility as a father to have an ongoing relationship with his daughters, not by a need to intrude on or control the life of the mother.
To be fair to the father it is the case that he has undertaken a course with counsellor Mr Z in an endeavour to better manage his tendency towards anger. The father has also undertaken other counselling and courses.
On the other hand despite the court order that the mother attend an appropriate parenting course the mother has not done so. In my view this reflects poorly on her in terms of her attitude to the responsibilities of parenthood.
In addition the mother has not been able to protect the children from her appalling view of their father. This must have had some effect of undermining their relationship with him.

Section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

This is a highly relevant matter in these proceedings. As indicated above, sadly for these children each of the homes in which they have resided, that is their father and mother’s home prior to separation and in more recent years that of their mother and Mr DA, have been households where violence has been a serious and recurring phenomenon.
The incidents of violence have been too numerous to detail in this Judgment. However, I have endeavoured above to set out the most serious of them.
Sadly for these children there is some risk of exposure to harm in both of the available households as a consequence of the past violent behaviour of both their father and their mother’s partner Mr DA.
Dr K says at page 18 of his Report that there is minimal risk of direct physical harm to the children in either household. This is on the basis that none of the adults have a history of violence towards children. There was an allegation by the father that J had complained that Mr DA had touched her inappropriately. Dr K expressed the view that this was likely to have resulted from J’s expression of discomfort at tickling and “rough and tumble” play initiated by Mr DA rather than representing some sexual or physical abuse. I accept this view.
Dr K said as follows at page 18 of his Report:
There is a risk of psychological harm to the children in the mother’s household from their being exposed to family violence, couple conflict and the mother’s temper. … The (mother and [Mr DA]) reported that they have experienced recurrent conflict over discipline of the girls, during which both can yell and sometimes throw something. Such an incident occurred on 14^th February 2009 (the transistor radio and broken glass door panel incident referred to above).
The girls are exposed to their mother’s temper, expressed towards them and to her partner. The mother reported that she can get fed up with her partner and/or the girls and yell. The mother’s propensity to anger and verbal aggression is reflected in a number of documented interactions in the subpoenaed material, for example her interaction with the [Contact Centre] staff at [Town A] on 3^rd October 2009 when she was recorded as having “started yelling at [me] saying that I should not be accusing her of “f***ing up” and that she didn’t have time for that “bullsh**”, before becoming sarcastic then hanging up the telephone.”.
The above risks are mitigated by a number of factors. Firstly, the mother and her partner reported that both their mental states had improved significantly as they have settled into a new life in [Town U] since 2008, and that subsequently the household is calmer and happier. My observations support this report. Secondly, the mother’s partner appears to have curbed his alcohol consumption. Thirdly, the mother is vigilant and strong in her response to domestic violence and (rather than secrecy, which amplifies risk) has called on community resources to protect herself and the children. For example, when her partner struck her in February 2008 she sent the children next door to get help and rang the police. In the context of ongoing legal conflict with the father, this action showed a willingness to prioritise her own and the children’s safety over any desire to “look good for the courts”. Fourthly, both parents took clear responsibility for their yelling and aggressive acts in front of the children.
In summary, it was my impression that the childrens’ past exposure to domestic violence and adult aggression in the mother’s home had not disrupted what were overall positive and trusting relationships with the mother and her partner, and that the risk of repeat exposure has been reducing as adult wellbeing has improved over the past two years. The children do not carry an ongoing vigilance and fear about repeat domestic violence as they do not view the mother’s partner as someone who would hurt mum unless “mum starts it”, and they feel confident that they could run to the neighbour for help if it recurred.
I note that [J’s] view that the mother’s partner’s violence to the mother was excusable on the basis that “mum started it” is concerning in terms of her own developing model of relating to men. This view is likely in part to result from the mother minimising and compartmentalising her current partner’s violence.
In relation to psychological harm and violence in the father’s household, Dr K said as follows at page 19 of his report:
There is a risk of psychological harm to the children in the father’s household from their being exposed to family violence, and couple conflict. The mother reports that the father was coercive and violent to her during their relationship, up until their separation in early 2005.
I note that there is no question that the father has perpetrated regular serious acts of violence against the mother and that he has conceded this. Dr K goes on to say at page 19:
The father is at risk of repeating the above pattern of coercion and aggression/violence in his current relationship. He and his partner claim that this has not occurred. They may be accurate, in that the father is now older and perhaps more mature, and his current partner appears much calmer and less emotionally labile/provocative than was the mother.
It is my impression that at a minimum the children have been exposed to incidents of coercive verbal aggression and intimidation from the father to his partner.
Then Dr K refers to the key-throwing incident. I have referred above to Dr K’s report about this matter. Dr K goes on to say as follows:
… I note from these observations that the father admits to a coercive/retributive element to his behaviour towards his partner and that the father’s admissions in front of his daughters at my interview shows that he had previously been dishonest in minimising the incident and denying his daughter’s report about the keys. [J] described a second incident of verbal (and … physical) aggression from the father to his partner in November 2009, which the father described as no more than a verbal argument.
These observed incidents of coercive verbal aggression and intimidation from the father to his partner appear to have been enough to amplify and perpetuate [J’s] underlying vigilance about and fear of her father’s dangerousness and potential for violence. The father’s subsequent denial of what [J] had seen would have further amplified her views of his dangerousness. The denial and “in house” management of these situations in the father’s household can be contrasted with the honesty about and recourse to police/neighbours in the mother’s household. …
It is my impression that considering [J’s] underlying vigilance about and fear of her father, observed verbal aggression and intimidation would have been enough to amplify and perpetuate her fear. The fact that [E] did not appear to show a prominent fear of her father, and showed individuation in clearly stating her desire to see him more often when interviewed alone suggests to me that it is unlikely that she has observed overt physical or sexual violence from the father towards his partner. Rather, it is likely that both girls have observed verbal aggression and intimidation, which [E] (without prominent past traumatic memories) has “let go”, but which in [J] (with past traumatic memories, and a more complexed shared perspective with her mother) has created significant fear and apprehension.
I accept the father’s assurance that he has “moved on” with his life and is happily settled with his new partner. As indicated above he has endeavoured to seek counselling for his anger management and other counselling. As also indicated above I noted no tendency to aggression or excitability in his demeanour in the courtroom.
In this regard some confidence might also be drawn from the following observation by Dr K at page 20 of his Report:
… he appears to have “moved on” to his new life with his partner and not to be tense or preoccupied with the mother’s activities. The descriptions of supervised contact in late 2009 from the [Contact Centre at Town A] suggest that information regarding their home life was raised by the girls spontaneously, and that the father dealt with this with appropriate “light” interest rather than interrogation.
On the other hand Dr K also said that in terms of emotional abuse if it was established that the mother was deliberately exaggerating the father’s past violence, pumping the girls for negative behaviours of the father after contact or exaggerating / fabricating their reports of such then this would amount to emotional abuse. Dr K said that it was his impression that the mother does not do these things.
I must say I have a similar view of her although, as indicated above, she could be more careful to take a more considered approach than simply accepting everything the children report after spending time with their father.
But Dr K does go on to say that rather, the mother’s own vigilance and fear about the father and her fixed belief that he is dangerous is transmitted to the girls non-verbally and verbally, and leads her to react with distress and an amplified protective maternal instinct when she hears of any paternal negative behaviour.

Section 60CC(3)(l) – 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

These parties have been litigating for many years. As indicated above there have been numerous court orders made. Yet the parties, particularly the mother, have been unable to comply with the orders. One would like to think that final orders would be able to bring peace and settlement to the lives of these children. But the history to date does not inspire great confidence in this regard.
If the Court was to order the children to reside primarily with their father, the mother has said that she would have nothing to do with the children. If this was the case, that would bring the litigation to closure. But it is hard to accept that, before arriving at that point, there would not be further trouble in terms of litigation.
On the other hand if the Court was to order a continuation of the current situation, that is that the children remain primarily resident with their mother and have some time with their father one could only hope that this would finalise the litigation and bring peace to the lives of these children.

Section 60CC(2) Primary Considerations

I return to consideration of the primary considerations. The first of these is the benefit to the children of having a meaningful relationship with both of their parents.
I have referred to the nature of the children’s relationships with their father. There is no question that E has a good relationship with her father and wishes to see him. Unfortunately J’s relationship with her father has become extremely complicated as indicated above.
Dr K said in his recommendations at page 28 of his Report that a relationship between the children and their father over the long term is in the girls’ interest. Dr K indicated during his cross-examination that in the event that the children are unable to sustain a relationship with their father then that could pose some long term serious risks for them. Amongst such risks would be that the children could grow up in the belief that the vast majority of their problems have been caused by their father. This could cause them not to develop an appropriate level of maturity. So that when they encounter difficulty, rather than contemplating causes of the difficulty, they might simply externalise that, that is they might look for something external to blame rather than accepting any personal responsibility for the difficulty.
The second of the primary considerations is the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
As indicated above the lives of these children have been infected by long standing, ongoing recurrence of incidents of serious violence in both households. To his credit, as I have said, the father has endeavoured to undertake counselling with a view to significant improvement in his propensity to perpetrate violence. As indicated above he says that he is “in a better place now” and that he has learned not to react impulsively and in the manner which has caused so much upset in the family as referred to above. He appears to be better settled now and with respect, his partner Ms SM appears to be a calming influence for him. The father said that he has not had an argument for more than a year. I accept his assurances in this regard but with some caution.
I must say it is encouraging that during the course of the hearing the father has conceded that J has been badly traumatised by his behaviour and that he accepts responsibility for this. He said that he has changed because he now knows how to control his impulsive behaviour and how to behave within acceptable boundaries. He said that he does not have conflict now, but he has some disagreements. He said that if he has a disagreement he takes a deep breath, counts to three, walks away, perhaps has a cigarette, returns and discusses the disagreement.
In the case of violence in the mother’s household there remains still some cause for concern. The mother said that Mr DA still drinks, although much less than previously, and that he still suffers from some depression. But Mr DA informed the Court that he had been having counselling for his depression and that this had helped. He is not on any medication for depression. Neither has his counsellor recommended any medication for him nor has his doctor prescribed any medication.

Submissions

Ms Shea, solicitor for the Independent Children's Lawyer submitted that the best interests of these children require that they continue to live with their mother and spend time with their father. She described this as the “least worst option”.
Ms Shea submitted that the spending time arrangement between the girls and their father should be once every two months supervised at the Contact Centre at Town 1. Ms Shea described this as an unsatisfactory situation but the only realistic way for the girls to be able to maintain some connection with their father. Ms Shea also made this submission mindful of the evidence of Dr K to the effect that when the girls are older they will be able to make up their own minds about relationships with their parents.
Ms Shea meticulously addressed the evidence in the context of the primary and additional considerations. It is unnecessary to repeat these detailed submissions.
The mother adopted Ms Shea’s submissions. The mother also submitted that the father and Ms SM had been untruthful in some of their evidence. The mother remained very critical of the father.
The father submitted that the children should reside primarily with himself and Ms SM particularly in relation to the contempt shown to him and to the orders of this Court by the children’s mother. The father expressed continuing concern that the mother would not comply with Court orders.

Conclusion about best interests

In my view, consideration of the relevant statutory considerations leads to the conclusion that the best interests of the children require that they continue to reside with their mother. The difficulty with this outcome is, of course, the extent to which the children will be able to continue to have a relationship with their father. As indicated above Dr K has said that this would be very important for them. But this matter also needs to be balanced and considered against all the other relevant considerations. As Dr K indicated it would be catastrophic to remove the girls from the current living arrangements with their mother for the reasons indicated above. In these circumstances it would be important to carefully craft arrangements which will enable the children to maintain some level of relationship with their father.
In relation to the violence, as indicated above, there remains reason for some level of concern about this in each of the households. But I do not regard either household as presenting an unacceptable risk to the children.
In relation to opportunity for the children to develop their relationship with their father, Dr K recommended that:
The court stipulate a minimum level of contact which is infrequent enough that it does not disrupt the mother’s need for safety from the father’s intrusion, that it allows for time for [J] and the mother to recover from any distress associated with the contact, and is supervised whilst the girls are young and remains in public places whilst they are older, such that the mother feels secure about the contact. The mother should engage in counselling to assist her to assist the girls with this contact, rather than to disrupt it. The mother should be warned that compliance with this minimum level of contact is expected by the court.
Above this minimum level, the court outline an expected gradual releasing of the constraints around contact as the girls get older. That the mother be given control over these changes, in that she can, with appropriate notice, wind these back to the above minimum level at her discretion. In a paradoxical way, the mother is most likely to cooperate with a relaxing of the boundaries around contact if she knows that she can step in to reinstate these boundaries if she is concerned about her daughters’ wellbeing. This arrangement protects the children from the mother reactively withdrawing all contact and having to enter further court proceedings, because she cannot retreat further than the minimum arrangements. This arrangement is preferable to changes being contingent on the girls’ wishes, as such an arrangement would set up a tug-of-war between the parents for the girls’ wishes, and insecurity in the mother about the father’s influence which would lead her to disrupt contact and the girls’ attitude to contact.
The girls have a close, mutually sharing and protective relationship, and I feel that it is best for contact arrangements to be the same for both girls, rather than separate.
With respect to Dr K, I do not have confidence in the mother’s commitment to the children having any relationship with their father. Accordingly, I would not consider it appropriate to place in her any discretion about the arrangements for the children to spend time with, and communicate with, their father. In my view, she would be almost certain to exercise her discretion against supporting the sort of opportunity envisaged by Dr K.

Bearing in mind all of the complications and difficulties which confront the girls, but not losing sight of the importance in them having opportunity to endeavour to have some relationship with the father, I propose to put in place orders to provide for the sort of arrangements recommended by the solicitor for the Independent Children's Lawyer.
I also propose to adopt Dr K’s recommendations that each of the parents attend appointments with a counsellor as arranged by the solicitor for the Independent Children's Lawyer.

Parental Responsibility

I now return to consider parental responsibility.
As indicated above, the presumption under s 61DA(1) of the Act for the parents to have equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. Clearly that is the position in the current case. In any event, the presumption may be rebutted if a court is satisfied that it would not be in the best interests of a child for its parents to have equal shared parental responsibility for the child (s 61DA(4) of the Act).
This is my view in this case. Clearly the presumption does not apply.
As indicated above the parties have an appalling relationship. It would be impossible for them to communicate about decisions in relation to the children. If they tried to do this it would almost certainly deteriorate into conflict. Such would hardly be in the best interests of the children.
In all these circumstances the only practical and realistic course is for the children’s mother to have sole parental responsibility for them.

I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 1 August 2011.

Associate:

Date: 1 August 2011

[2011] FamCA 623

1 August 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies