L and K
[2002] FMCAfam 121
•17 April 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & K | [2002] FMCAfam 121 |
| FAMILY LAW – Children – family violence – findings made that father violent to mother and child – application for supervised contact refused – contact by letter ordered. |
| Applicant: | N C L |
| Respondent: | P T K |
| File No: | PAM1883 of 2000 |
| Delivered on: | 17 April 2002 |
| Delivered at: | Parramatta |
| Hearing Dates: | 15 & 16 April 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: Solicitors for the Applicant: | Mr J. Henness R.J. Russell |
| Counsel for the Children’s Representative: Solicitors for the Children’s Representative | Mr S. Stewart Dignan & Hanrahan |
| Solicitor Advocate for the Respondent: | Mr P. Speirs |
| Solicitors for the Respondent: | Sydney Regional Aboriginal Legal Service PO Box 83 Blacktown NSW 2418 |
ORDERS
That all existing parenting orders are discharged.
That (“the children”) T K born 17 June 1997 and V J K born
30 October 1998 reside with the applicant.That the respondent have contact with the said children by forwarding letters, cards and any other form of written communication, photographs and gifts to the said children care of 2 B Avenue C, New South Wales or any other postal address provided by the applicant. The communications are not to exceed one per calender month and the first shall be sent in four weeks time.
That the applicant and respondent are restrained from denigrating the other whether orally, in writing or otherwise, to or in the presence or hearing of the children or either of them.
That subject to the respondent’s compliance with order 4 herein, the applicant shall deliver to the children any letters, cards and any other form of written communication, photographs and gifts received from the respondent directed to the children or either of them.
In the event that the children or either of them wishes to send a letter or card in reply to the father, the mother shall ensure that they have such assistance as needed to prepare and post the correspondence.
That the applicant and respondent keep the other advised (through a third person) of any postal address at which they can be contacted.
That other than provided in these orders the respondent shall not approach or make any contact with the applicant and children. This is an order for the personal protection of the applicant and children AND in relation to which section 68C applies.
That the child representative’s application for costs is refused.
That all-outstanding applications are dismissed.
THAT pursuant to section 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 are set out in Annexure A and these particulars are included in these orders.
The party who caused any subpoena to issue shall return the subpoenaed documents within 7 days.
All exhibits to be collected at the expiration of one calendar month unless an appeal is lodged.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM1883 of 2000
| N C L |
Applicant
And
| P T K |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings concern the parties’ two children T K born 17 June 1997 and V J K born 30 October 1998. These reasons were delivered orally.
The application
N C L (“the mother”) filed an application at Campbelltown Local Court on 2 May 2000. In essence she sought orders that earlier orders made at that same court on 8 June 1999 be discharged. The effect of her application would be that P T K (“the father”) would not have any orders in his favour for contact.
The father filed his response in the Family Court on 20 October 2000. The orders sought by him were as follows
1.That the two children of the relationship, T, born 17/6/1997 and V J, born 30/10/1998 live with the mother.
2.That the mother be responsible for the children’s day to day care, welfare and development.
3.That the father have contact with the children each alternative weekend, commencing 5pm Friday to 5pm Sunday.
4.Father shall deliver and return the children to the mother.
5.That both parents have telephone contact with their children during contact periods.
6.That the father be kept informed of the children’s health, sporting and school functions and be given a copy of school photos and school reports.
In essence he agreed that the children should live with their mother and she should be responsible for their day to day care. He proposed that he have contact each alternate weekend and sought information concerning their extracurricular and schooling activities. It was an ambitious application considering that at that time he was in jail and the history of his prior care of the children.
Ultimately he recognised that he needed to approach his relationship with the children from the children's perspective and at the conclusion of this hearing proposed a graduated program for contact. He proposed, in essence, firstly that letters, cards and gifts be sent to the children over a period of about three months. The next step would be supervised contact. This would be undertaken at the Central West Contact Service for a period of about six to 12 months. Thereafter that he have day time contact with children supervised by his partner, T C.
Credit
Counsel for the children's representative made submissions in relation to credit. I adopt those submissions. He emphasised, and I agree with him, that this is a most unusual case. That is because of the very difficult interpersonal history between the parties. Both parties tried, as did all the witnesses in this case, to tell the truth. All presented to me as honest and sincere people, who because of the careful and considered approach that they gave to their obligation as witnesses, have made the court's task less onerous than it might have been. Of course, because they all tried so hard to adhere to the oath, their task of giving evidence was less onerous than is often the case for witnesses who choose to give exaggerated or misleading evidence.
Ultimately, I was satisfied there were no relevant conflicts on the evidence or points of difference that I must adjudicate. Where there were differences they were matters of perspective not factual disputes.
The evidence
The applicant mother’s evidence in the proceedings comprised:
·Her affidavit sworn on 21 February 2000 and her oral testimony.
·An affidavit of the maternal grandmother, V L, sworn 12 March 2002 and her oral testimony.
·Her partner, B D, gave oral testimony.
The respondent father’s evidence in the proceedings comprised:
·His affidavit sworn 27 March 2002 and his oral testimony;
·An affidavit of his partner, T C, sworn 27 March 2002 and her oral testimony.
Pursuant to Order 30A of the Family Law Rules two expert reports were prepared by Dr Brian Potter, psychiatrist. His reports are dated 20 June 2001[1] and 10 April 2002.[2] I accept Dr Potter's evidence in its entirety.
[1] Exhibit A.
[2] Exhibit B.
The child's representative and respondent father both tendered documents that became exhibits in the proceedings.
Relevant issues
The issues in these proceedings are these.
·The nature of the children's relationship with their parents and significant other people.
·The effect on the children of introducing contact in any form to their father.
·Whether the father is capable of meeting the children's needs during periods of contact.
·The nature and extent of family violence.
·The effect on the children of not ordering contact.
Relevant facts
The chronology of events is quite limited because the relevant factual matters in this matter are few.
The father was born on 5 May 1973. He is 28 years old.
The mother was born on 19 December 1978. She is 23½ years old.
They commenced cohabitation in about the middle of 1996 at which time the mother was 17 years old and the father was about 23 years old.
When they lived together they lived at N, L and C.
They have two daughters, T and V.
They finally separated on 9 May 1999. At separation the children continued to live with their mother and have contact with their father.
Contact was ordered pursuant to orders made at Campbell Local Court on 8 June 1999. Those orders are:
1.That the two children of the relationship, T born 17/6/97 and V J born 30/10/98, reside with the mother.
2.That the mother be responsible for the children’s day to day care, welfare and development.
3.That the father have contact with the children as follows:
(a)Each Wednesday afternoon;
(b)Each Sunday;
(c)Such other contact as is agreed between the parties;
(d)All contact to be supervised by the applicant mother, N C L.
The orders have been registered in this court and thus the court has jurisdiction to discharge them if that be appropriate.
On 23 August 1999, the father was charged with a series of offences all of which related to an attack on the mother and children. That day he was remanded in custody and that is the last time that he has seen the children.
On 7 April 2000, the father was sentenced in the District Court at Campbelltown for offences relating to the events on 23 August 1999. He was released on parole on 22 August 2000. On 5 April 2002, the Department of Probation and Parole relieved him of the requirement to report or to have visits from the service to his home. His parole order expires on 27 August 2002.
I consider separately the father's criminal antecedents and the history of apprehended violence orders. Violence indeed is at the nub of this matter. The father was first convicted of offences on 14 April 1992 at Fairfield Local Court. He was convicted in relation to supply and possession of prohibited drugs. He was next convicted of an offence on 22 November 1992. This time at Nowra Local Court. The convictions related to offensive conduct and offensive language. On
6 April 1997 at Campbelltown Local Court he was convicted of having custody of an article with intent to destroy property and offensive behaviour. On this occasion he was placed on a Section 558 recognisance for three years. By this time he and the mother were living together.
On 31 May 1998 at Nowra Local Court, he was convicted of using offensive language in or near a public place namely a school; of assaulting an officer in the execution of their duty; and two counts of common assault. He was sentenced to 200 hours community service. At least one of the counts of common assault related to an assault on the mother that had occurred on 9 May 1998. The next charge relates to the incidents on 23 August 1999. I will deal with that later under the heading of “Family Violence” under section 68F(2) of the Family Law Act.
Apprehended violence orders have been taken out either by the mother or on her behalf. The first occasion was on 5 June 1998 at Nowra Local Court. It was extended on 25 May 1999 at Campbelltown Local Court and again extended for two years on 14 June 2000. That order is the current order.
The mother’s proposals and current circumstances
The mother lives with her partner, B R, and their two year old daughter, B. T and V (who is known as “T”) live with them. The mother has known Mr R for many years and established her relationship with him not long after the parties separated. Theirs is a traditional household in that he is in full time paid employment while she works at home caring for the children.
T attends school where she is in kindergarten. T is too young for school. The mother and her children have close contact with her family, particularly her parents and younger brother. She proposes that her and the children's lives continue without change.
The father’s proposals and current circumstances
Just as the mother has, so too has the father re-partnered. He has re-partnered with T C. They met in October 2000. At present they do not live together although they plan to marry in the future. The father has three children, his daughters the subject of these proceedings and an elder daughter who lives with her mother in Western Australia. He has not seen this child since she was a baby. He is currently on parole which will expire in August 2002. He is no longer required to report pursuant to his parole obligation. I am satisfied that he was relieved of this requirement because his probation officer perceives that he is doing well.
Between 29 January 2001 and 19 March 2001, the father completed an anger management course at Liverpool. He has acquired some important life skills that he is able to apply when situations that are difficult for him arise. He gave some practical examples, as did Ms C, of how he has put into practice the lessons he has learned during anger management. They were probably also learned from his probation officer whilst he was in jail.
Dr Westmoreland's report summarises his family relationships. He is the youngest of four children. His ancestry is Aboriginal. His parents separated when he was young. Interestingly, he reports a family history which was unremarkable in the sense that there was no exposure to family violence or other traumatic incidents which might explain in part the events that subsequently overtook him.
The material attached to the father's affidavit makes it clear that he has abused alcohol and drugs since he was about 17 years old. He described himself during evidence as a binge drinker. This is consistent with the description he has previously given to those who investigated his prior drug and alcohol history. In essence, it is clear that when he was binge drinking he did everything he possibly could to get his hands on money and to use any money he had to support his addiction to alcohol.
He has used marijuana daily for a very extended period of time and at different times has experimented with amphetamines and LSD. I accept his evidence that since his release from jail he has not used any drugs. He still uses alcohol but to a much less degree than he did prior to his term of imprisonment. I am satisfied that he does not abuse it.
Relevant law
Contact and specific issues orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to section 65E in that in determining the outcome, the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact on a regular basis with both of their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means that are considered to be in the child's best interests.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in section 68F(2). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children's circumstances can be addressed. B and B Family Law Reform Act 1997 FLC 92-755.
An important issue in these proceedings is whether contact or supervised contact by the father will pose an unacceptable risk to the children of physical, psychological and/or emotional harm. The legal principles to be applied in a case involving allegations of sexual abuse are laid down by the High Court in M and M (1988) 166 CLR 69. These principles are applicable to all allegations of risk of harm. See A and A (1998) FLC 92-800. It is not the role of the court to determine the truth of allegations in the way that a criminal court must do. The High Court discouraged such findings saying that there are “strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so” M v M, supra, CLR at 77.
Before it can make a positive finding that a parent has abused a child the court needs to be satisfied according to the civil standard of proof: see section 140 of the Evidence Act 1994 (Cth). The finding is made by reference to the test identified in Briginshaw v Briginshaw (1938) 60 CLR 36. In this case, Dixon J said at p.362:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
If the court determines that it cannot or should not make a positive finding that there has been abuse, the court must determine whether in all the circumstances there is an unacceptable risk. The manner in which the court conducts an assessment of the risk of future harm is set out in A and A ibid. In those proceedings, the Full Court of the Family Court was assessing the risk of future physical harm to children. The approach there described is applicable to all allegations of future harm. The Full Court said:
“The task which His Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband … In reaching a conclusion on that issue, it is necessary for the court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact. In cases of this sort, often it is not possible for the court to form a positive view at one end or the other end of this scale of dissuasion and it is not necessary for it to do so.”
The findings made in the assessment of risk address part of the court's responsibility. Whilst the resolution of the risk issue may be the central issue in the proceedings, the court's role is broader in that it must determine the best interests of the child having regard to the relevant Section 68F(2) factors in the context of matters contained in section 65B.In M and M, supra, CLR at p.76 the High Court said:
“The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.”
If the court reaches the conclusion that there is no unacceptable risk, the court must consider the separate issue of the parent's belief in the occurrence of the event. This is another part of the court's obligation. The nature of supervision and the responsibility of supervisors when the court has found there is an unacceptable risk of future harm is dealt with by the Full Court of the Family Court in B and B (1993) FLC 92-357:
“Family and friends are not neutral, but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense, they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children’s behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period. … For the above reasons, it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.”
Family violence is a significant issue in these proceedings. In addition to its inclusion as a relevant factor in section 68F(2)(g), (h) and (j), section 68K emphasises that consistently with the child's best interests being the paramount consideration, a parenting order should be consistent with a family violence order. The parenting order must not expose a person to an unacceptable risk of family violence and can include protective safeguards. A contact order that is inconsistent with a family violence order will prevail over the family violence order.
The manner in which the court must examine family violence in proceedings of a parenting order is identified in JG and BG (1994) FLC 92-515 and also in Patsalou and Patsalou 1995 FLC 92-580. Evidence of family violence is relevant insofar as it assists the court to determine what orders will best promote the interests of the children. The court will have regard to the fact that family violence may be directly or indirectly relevant to the child's welfare in a variety of ways and may be relevant even where it is not directed at- or witnessed by- the children. So far as the evidence allows, the court will attempt to understand the nature of any violence that has occurred and its potential effects on children.
Exposure by a child to violent family relationships can be harmful to a child's emotional development. Even if the issue is not addressed in submissions the court has a responsibility to consider the effect of a child of a violent, parental role model: Blanch v Blanch & Crawford (1999) FLC 92-837; (1999) 24 FamLR 325.
Section 68F(2) — determining the children’s best interests
The children’s wishes
The first factor is the children's wishes. Dr Potter's report addresses the children's wishes. T, when asked by Dr Potter about contact with her father, said she did not want it. She made it clear, in age-appropriate language given the context of the questioning, that she does not want to see the father. V has no recollection of him. That this is so is apparent from the evidence given by the mother and Mr R. Neither child makes any real mention of the father in their day to day lives. It has been a long time in these children's short lives since either of them have raised him directly or indirectly with their mother or stepfather.
The children's representative submitted that because of the children's ages the court would give no weight to their wishes. I accept that submission in relation to V. I do not in relation to T. That is because T, to a much greater degree than V, was exposed to significant family violence by her father towards her mother. Her wishes, whilst they may have been influenced as time has passed by her mother's fear of her father, are I am satisfied a reflection of T's own life experiences with her father. Her wishes should be given some material weight particularly because, as Dr Potter says, she is a child who is quite mature for her age.
The next factor is the nature of the children's relationship with each of their parents and significant others. There is no doubt that the mother is both children's prime caregiver. They have lived with her all of their lives. Since separation, she has been exclusively responsible for their care. The children were small when the parties separated and the mother is now the person from whom the children obtain their sense of security and stability. Their relationship with her is a healthy one and it is integral to their sense of happiness and well being. Both children have developed a sound and increasingly secure relationship with B R. Because of T's experiences with her father, particularly on 23 August 1999, she recoiled from men. Relationships that had been healthy relationships from the child's perspective as at 23 August 1999 received a serious setback. When Mr R became part of T's life he had to slowly and carefully work to establish this little girl's trust, overcoming what was apparently a very great fear of any men. I am satisfied that he has been largely successful. He is an important role model in both children's lives. The children have close and loving relationships now with their maternal grandparents and their mother's family.
T has no relationship with her father. He is her biological parent but beyond that she has no knowledge of or connection to him. T has a negative relationship with her father. She suffers post-traumatic stress syndrome or disorder as a result of his treatment of her and her mother. That is, events that she associates with him make her anxious and fearful. She knows who her father is. She is frightened of him and everything that she associates with him. Her fears are based in her own life experience with him. To the extent that the father’s advocate submitted that her fears have a nexus to the mother's continuing anxiety about the father, I reject that submission.
Changing the children’s circumstances
The application made by the mother will maintain the structure of the children's lives. There is no doubt that they are happy in their current circumstances. They live as part of a contented nuclear family that meets their physical, emotional and intellectual needs. T has moved beyond the point where she required counselling. She has been able to start school and is able to separate from her mother so that she can attend school happily. In Mr R, the children have an appropriate male role model readily available to them. They live in a family that is content and successful.
The father's proposals involve change. At first blush, the graduated program of contact that he presses the court to make suggest that the changes he desires are few indeed. Dr Potter emphasised that any step that involves the father establishing a connection with the children should be taken cautiously. The father has accepted this advice although not to the degree that is necessary to protect the children's emotional well being.
The need for caution is necessary for a number of reasons. Firstly, as I have already found, T suffers a post-traumatic stress disorder. Any change that involves her father's inclusion in her life must be monitored carefully. That is because any dealings with him, or that she associates with him, are likely to cause her distress and anxiety. This may cause her to regress to the point that she will need counselling and careful assistance from those around her to cope with the anxiety associated with dealing with and reminders of her father.
The mother also suffers from post-traumatic stress disorder. This is important because she is the children's prime caregiver. It is a matter of logic and a common experience of this court that if steps are taken that significantly undermine a prime caregiver's capacity to cope then that in turn will impact upon the children. Children's wellbeing is enhanced if those who are responsible for them on a day-by-day basis are themselves in a settled and happy frame of mind. Disrupting a well adjusted parent will almost certainly impact negatively on the children. It is a step that should be taken only if there are overriding reasons in the interests of the children that make it necessary.
Next, there is a risk of exacerbating the father's emotional adjustment to the mother. I have accepted Dr Potter's evidence in this regard. I also accept the father's evidence that he desires with every ounce of his being to put his relationship with the mother behind him. He has made very significant gains in this regard. However, I am satisfied that at this point of time his recovery is not yet complete. More time needs to pass before the court could be satisfied that his emotional adjustment to the mother is such that this relationship is truly behind him. Intellectually it is behind him. Deep within him, as Dr Potter concluded, it is not. For both his sake and the mother’s safety, no steps should be taken that may exacerbate the father’s deep feelings for the mother.
Not changing the children's arrangements, as a mother would have the court do, will mean that in all likelihood in the future, just as children who have been adopted do, these children may themselves want to seek out their father. It is an issue of identity. Dr Potter anticipated that that is likely to be so and I agree with him. Not making the orders proposed by the father and maintaining the existing arrangements will mean that the children themselves are deprived of the opportunity to form a more mature view of him than they currently have. It will deprive T of the opportunity to let go of the fear that she currently has of him.
Changing the children's arrangements as the father proposes may significantly disrupt the children and the order of their lives. This is because it would at present disrupt T's adjustment, disrupt the mother's adjustment and may well disrupt the father's adjustment.
I turn now to family violence. This is the pivotal issue in these proceedings. The hidden nature of family violence means that there is often little objective evidence available to corroborate allegations and denials. This is not one of those cases. I am satisfied that I should depart from the cautious approach emphasised in some of the decided cases and that I should make findings about the nature and extent of family violence. That is not as controversial as it may seem because it was clear from the manner in which these proceedings were conducted, there is no meaningful factual dispute between the parties about what occurred between them.
Theirs was a relationship that was fundamentally a violent one. It was exacerbated by the father's abuse of alcohol. Both he and the mother agree it was a trigger for his violent outbursts. These outbursts were reasonably regular. They involved not only threats of physical harm but also reasonably regular assaults on the mother, often in the presence of T and for the short period that the parties lived together after her birth, also in V's presence.
Prior to their final separation the mother tried to modify the father's behaviour by obtaining apprehended violence orders. This was unsuccessful and the assaults continued. The assaults were serious and on one occasion life-threatening. As is apparent, I accept the mother’s evidence of violence by the father in its entirety. To his credit he did not deny it.
Two incidents need to be understood to fully appreciate the context of the decision that must now be taken concerning the children. The first incident occurred on 9 May 1999. At that time the parties were still living together. It is the day upon which they separated.
The parties had been out and the mother had returned to a friend’s home. She was asleep, as were the rest of the household. All were awoken by a loud banging on the door. It was the father. After demanding money from the mother he demanded that she give T to him. T was not quite two years old. She refused. Then father followed the mother and child into a bedroom. T was sitting on her mother’s lap when the father entered. He then hit the mother a number of times to the left side of the head with his fist. As a result of this assault she was left with swelling and bruising to the left side of her face. Whilst he was hitting her, her friend’s mother tried to push the father out of the room. Eventually she managed to stop the assault and force him from the home. The police were called and he was charged and convicted of an assault on the mother.
After the assault the mother realised it was necessary for her and the children’s safety that she not live with the father any more. The parties agreed that the children would live with her and that the children would have twice-weekly contact with their father which contact would be supervised by the mother. The latter decision that she supervise the contact had catastrophic consequences.
The father exercised his contact to the children twice a week supervised by the mother. He sought more contact than that and believes he was entitled to do so because there was provision in the orders that he could have such other contact as the parties agreed.
Events came to a head when the father sought to have contact on Sunday 22 August 1999. The mother had made it clear that contact would not be made available that day because T was to have a fitting for a bridesmaid’s frock. She reminded the father that contact would not occur. He was angry and agitated about that. On 22 August 1999 he telephoned the mother’s home and spoke to members of her family. I infer that he threatened them because, after he completed that call, members of the mother’s family locked the house up, called the police and waited for them to arrive. As it transpired, nothing in fact happened.
The probation and parole report prepared in 1998 makes it is clear that the father was deeply suspicious of the mother’s fidelity. This was a major source of agitation on his behalf. There is no evidence to suggest that he had any basis for his accusations or fears.
On 23 August 1999 the mother and children were at her parent’s home. She received a telephone call from him at about 1.00 pm. He accused her of not being at her friend’s home for the dress fitting. The call became heated. It must have frightened her because as soon as the father hung up the mother went around the house to check that everything was locked up. She was wise to do so. Not long after, he arrived at the house. He cut the telephone wires in a predetermined effort to ensure that the mother could not call the police or anyone else to assist her knowing as he did what he intended to do.
He then broke into the house armed with a knife. The mother heard a noise and came upon him in the laundry. He said to her “You’re going to die motherfucker. You’re going to die.” T was standing between her parents. She was screaming. No doubt she and her mother were terrified. The mother reasonably believed that he was, as he said he was going to, kill her. What then unfolded was a terrifying ordeal that lasted the next 12 hours. At knife-point the father forced the mother to pack belongings, toys, clothing and food for herself and the children. When V awoke she also started to scream. Then the respondent grabbed the mother by the hair and pulled her to her feet. He then pushed her head through the dining room window.
He continued to hold a knife to her and behaved at different points in a frightening way. He stabbed a photograph of her brother on the wall and pushed and shoved her throughout the house. At different points he pushed her up against the wall with his arm, holding the knife against her throat. He then brought the knife up between them and with the blade turned it side on towards her neck. He kept repeating his accusations of infidelity while bringing the knife closer to her head. It got so close that when she turned her head the knife cut her across the chin. It started to bleed straightaway. It bled for a long time. The cut must have been quite a deep one. The father did not drop his knife.
Eventually she managed to stem the flow of blood. The father pressed her with increasing urgency to finish what she was doing, that is stop the bleeding and finish packing, so that they could leave the house. He threatened that if her mother arrived home, which he was clearly concerned about, that he would also kill her mother and younger brother. He forced the mother and children at knife-point to walk to the railway station at C. They caught a train, making their way ultimately to K. The father made arrangements for people to meet them at Dapto. His plan was that they would spend the night there.
Ultimately the police were alerted to what was unfolding and a detective from C located them by phone at the home at Dapto. The mother was able to speak to the police without the father being aware that she had done so. Eventually at about 11.45pm the police arrived and took the father. The mother and children were returned to her parents. That is the last time that the children saw their father.
The father has said to the mother on several occasions, “If I can’t have you, then no one else can”.
After he was imprisoned, the father wrote to the mother from jail. He could give no explanation for the contents of the letter. He wrote telling her that he forgave her for what happened on 23 August 1999. He has had a long time to think about why it is that he wrote that letter and his answers in cross-examination were extremely unsatisfactory. The only apology that should be forthcoming for 23 August 1999 is one from the father to the mother and children. It has not been proffered to the mother.
There was no real acknowledgment in the manner in which the father gave his evidence or discussed the issues with Dr Potter of the reality of what he put the mother through during the time that they lived together, or 9 May 1999 and 23 August 1999. His discussions with Dr Potter and his evidence focused on the consequences for himself and the children. I am satisfied that he does deeply regret what took place. He was given the opportunity to express his regret. When he took it, he expressed in angry terms a deep regret for the time he spent in jail. He regrets the price that he has paid and the harm done to his relationship with his children.
His evidence that the mother is not fearful of him displays a lack of empathy or understanding of what he put her through. I agree with Dr Potter's conclusions in relation to his lack of empathy and understanding concerning the violence directed at the mother and its impact on her.
The next issue the court must consider is the assessment of risk. The father, as I have already found, has completed an anger management course. That is to his credit as he acknowledged his need to do so. He has acquired skills that he actively implements on a day by day basis. He has taken greater control of his use and abuse of alcohol. He readily acknowledged, indeed it is unarguable, that alcohol has diabolic consequences for him. It is clearly a trigger for him of disinhibited behaviour. It enables a man who still has great difficulty coping with his anger to give vent to that anger. For so long as he uses alcohol there is an increased risk that when provoked he will react violently.
The father still drinks to excess. Those occasions are few and the context is quite different to that prior to August 1999. Then he was binge drinking and was utterly out of control. Now he drinks in a social context that is apparently appropriate and unremarkable.
Any assessment of risk must include the father's fear of jail. He is deeply traumatised by his experiences in jail. I am satisfied he is motivated to live his life so as to ensure that he never again endures the hardships involved in jail. It is nearly two years since he was released from prison. I am satisfied that he has not been involved in any violent behaviour whereby other people have been harmed. The evidence of Ms C corroborated in a very significant way the father's evidence that this is so. These are important factors that I take into account.
Any risk must be assessed in a particular sense. That is the risk to these children and their mother from the father. There are two particular pieces of evidence that are most instructive in understanding the nature of the assessment of that risk. Firstly, during his assessment with Dr Potter the father was, as one would have expected, pressed about his relationship with the mother. When the discussion turned to the mother, the father was utterly unable to deal with his emotion. Using the techniques he has learned, because he could not cope with what was happening with Dr Potter, he walked out. I am not critical of him for doing so. It was a sensible strategy. It is also telling. It highlights, as Dr Potter concluded, that even in a protected environment the father is still unable to deal emotionally when pressed with matters that concern the mother. He needs to understand that whilst his intellectual connection has gone the emotional one is probably still deep. That does not mean that the father is still in love with the mother. It means that theirs is a complicated relationship that requires considerable work before he can recover from it. It is apparent from what took place with Dr Potter that their relationship is dangerous for both parties.
Dr Potter's experience was replicated during part of the proceedings. At the start of his cross-examination again as one would have expected, the mother’s counsel raised questions about the 1999 assaults as well as the father's relationship with the mother. The father was demonstrably angry and agitated when dealing with these questions. The questions were reasonably framed and well spaced. They were moderate and it was not a cross-examination that proceeded at a pace designed to provoke an otherwise settled person.
What occurred corroborated Dr Potter's concerns that the father's recovery and rehabilitation vis a vis his relationship with the mother is not yet complete. The severity of the prior violence heightens the importance of the assessment of risk. I am satisfied that at this point of time the father still presents an unacceptable risk to the mother of family violence. I am mindful in making this finding that the father has seen the mother on a couple of occasions since his release and he has not approached her.
The severity of the prior history of violence means that there must be a longer period of time before I would be satisfied that the father no longer presented an unacceptable risk of violence to the mother and the children.
I was not directed to the role model issue raised in Blanch v Blanch & Crawford, supra. The father's evidence is that he is “a changed man”. I accept that that is so. The change however is not complete. He is not yet an appropriate role model for the children. Ultimately he may become so. Relevant to this finding is my acceptance of Dr Potter's evidence:[3] “His history and behaviour are consistent with a person with immature and narcissistic personality traits.” That is demonstrably so.
[3] Exhibit B, p.4.
No submissions were addressed to section 68F(2)(f). The court must consider that the father's and the children's heritage is Aboriginal. I infer because there was no issue raised about it, the father accepts that the mother respects Aboriginal culture and that she will ensure that the children have an appreciation of the culture they share with their father. She has the responsibility to ensure that this is so. Just as they enjoy her Anglo-Saxon culture so she must ensure that in her care they understand and appreciate their Aboriginal ancestry.
I turn now to the issue of finality. Mr Speirs on behalf of the father, pressed the court to make final orders, orders which are least likely to lead to further litigation. This is an ideal outcome that is achieved in most parenting matters. Implicit in Mr Speirs' submission is that I would be satisfied that the introduction of letter-style communication for the children and their father would be successful and would logically lead to successful supervised contact at a contact service. This would then logically lead to successful supervised contact under the aegis of Ms C.
I am satisfied that Ms C would be a good contact supervisor. Ordinary friends and family may not be sufficiently dispassionate to vigilantly protect children. I was impressed with Ms C. I am satisfied although she is closely emotionally connected to the father she would be able to diligently carry out her role as a contact supervisor. However, that is not to the point. The proposals ultimately made by Mr Speirs on behalf of the father are inconsistent with the cautious approach emphasised by Dr Potter. I am not satisfied that letter correspondence will necessarily be successful from the children's perspective. For T, it may provoke deep feelings which will result in her needing counselling and continued support. Perhaps contact will never move beyond letter contact.
Before I would be prepared to make an order for any face to face contact, even in the supervised environment of the Central West Contact Service, I would need to be satisfied that T has coped with the involvement of her father in her life even only to the extent of letter correspondence. That, of necessity, will involve further proceedings between the parties. It is unlikely that the mother would agree that the children should have contact with their father even in a supervised setting. Her resistance is understandable and it is consistent with the children's best interests at this point in time. There are no other facts or circumstances that I take into account.
Conclusion
The orders will, as the children's representative proposed, establish contact between the children and their father in the most cautious and secure environment. It will extend no further than monthly correspondence or gifts, whatever mechanism the father chooses to use. Given their ages someone is going to need to read the letters or cards to the children. Ideally that person will not be the mother. That is because she has her own issues to deal with. Doing the best as she could, I think it unlikely that she would be able to dispassionately read the letters to the children without injecting some of her own fears and anxiety about the fact of their father is communicating with them.
Mrs V L impressed me. She readily agreed that her home could be used as the contact point for the passage of letters. I am satisfied that if she is willing to, that she is more suited to read the father's letters to the children. That is a matter though that will be left to the mother and her family to organise. The obligation will be on the mother to ensure that correspondence is provided to the children.
If the children decide they want to write to the father then her obligation is to help them. She has no obligation to force them to do so.
I anticipate that this outcome may require that T needs further assistance from a counsellor. Ideally that person would be Dr Potter. If that is not possible, and there may well be financial reasons why, there are local area health services that the mother can consult. She will need to ensure that she does so.
Before this matter returns to court in the future, if it does, the father will need to show that he has been reliable and consistent with his communications to the children. That is not something that can be demonstrated over a period only of months. It will need a longer period of time than that. He will need to show that he is settled. It is pleasing that he has been able to obtain full time employment. I assume as a consequence of this he will be able to make a meaningful financial contribution to the support of his children in the nature of child support. That will give important insight into his understanding of his responsibilities as a parent.
If the introduction of the father to the children via letters is unsuccessful, it is unlikely that any court would contemplate the next step – vis supervised contact. If supervised contact is never achieved, it is unlikely that the father could expect to have face-to-face contact to his children until they themselves, in their late teens or young adulthood, decide to seek him out.
The orders that I make are orders that I am satisfied are in the best interests of the children.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Ryan FM
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