Lyons & Lyons
[2022] FedCFamC2F 715
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lyons & Lyons [2022] FedCFamC2F 715
File number(s): NCC 1544 of 2019 Judgment of: JUDGE BETTS Date of judgment: 3 June 2022 Catchwords: FAMILY LAW – Parenting – final orders – one child, aged six years – where the mother is seeking a “no time and no communication” order – where the father is seeking supervised time initially, graduating to substantial and significant unsupervised time – where there is a current five year AVO protecting the mother from the father – where the mother raises issues of the father’s alcohol abuse, past family violence and his ongoing emotional abuse and aggressive behaviour – where the father has breached the AVO, Supreme Court bail conditions, a Local Court order and Contact Centre rules – where the father demonstrates an inability to manage his behaviour/emotions and respect boundaries and rules – where the father poses an unacceptable risk of physical and emotional/psychological harm to the child – best interests of the child. Legislation: Family Law Act1975 (Cth) Part VII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Goode & Goode (2006) FLC 93-286
Keane v Keane [2021] FamCAFC 1
M & M (1988) FLC 91-979
Division: Division 2 Family Law Number of paragraphs: 230 Date of last submission/s: 23 March 2022 Date of hearing: 30 June 2021, 1-2 July 2021, 3 December 2021, 23 March 2022. Counsel for the Applicant: Mr Bithrey Solicitors for the Applicant: Barraclough Jones & Associates Solicitors for the Respondent: N/a – Self-represented Solicitor Advocate for the Independent Children’s Lawyer: Ms McMullen Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Port Macquarie ORDERS
NCC 1544 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LYONS
Applicant
AND: MR LYONS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
3 JUNE 2022
THE COURT ORDERS THAT:
1.The Mother has sole parental responsibility for the child, X born in 2015 (“the child”).
2.The child live with the Mother.
3.The child spends no time with the Father.
4.Pursuant to section 11(1)(b) of the Australian Passports Act2005, the Mother is entitled to apply for a passport/travel document for the child, X born in 2015, without the requirement that the Father give his consent or that he sign any requisite documents.
5.Pursuant to section 65Y of the Family Law Act 1975, the child X born in 2015 is permitted to travel internationally with the Mother without the Father’s prior consent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Lyons & Lyons has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
OVERVIEW
These proceedings concern X, a six and a half (6 ½) year old girl who lives with her mother, Ms Lyons (“the Mother”).
Her father, Mr Lyons (“the Father”) seeks orders for X to spend time and communicate with him. He proposes that his time be supervised in the initial period. The Mother seeks a “no time and no communication” order, citing the Father’s alcohol abuse, past family violence and his ongoing emotionally abusive and aggressive behaviour.
The Independent Children’s Lawyer (“ICL”) contended for a “no time” order, but proposed that there be the opportunity for some limited communication in that the Father could send X letters, cards and photographs on her birthday and at Christmas each year provided that the Mother first vetted their contents. [1]
There is a current five (5) year Apprehended Violence Order protecting the Mother from the Father which is in broad terms. Amongst other things, it prohibits the Father from:
·going within fifty (50) metres of the Mother’s and X’s home;
·going within fifty (50) metres of the Mother’s workplace;
·approaching the Mother within twelve (12) hours of taking alcohol;
·contacting the Mother in any way - subject to the usual “family law” exceptions arising from the requirements of a parenting order or where the parties are both required to attend Court, mediation or counselling etc.
For the reasons which follow, I have concluded that it would be in the best interests of X to make the more restrictive “no time and no communication” order proposed by the Mother.
SHORT HISTORY
The parents commenced a relationship in 2014, married in 2016 and finally separated on 5 March 2019.
Post-separation, X lived with the Mother. Initially X spent time with the Father on an “ad hoc” basis, but in May 2019 the Father unilaterally retained X for nine (9) days, prompting the Mother to file proceedings.
The parents promptly consented to interim orders for the Father to spend five (5) nights per fortnight with X. But in late 2019 the Father was briefly incarcerated, following which the Mother applied for a variation as a result of which in November 2019 supervised time was ordered instead.
Unfortunately, as a result of the Father’s behaviours the supervised time arrangements broke down in July 2020. By the time of the final hearing, the Father had not spent any physical time with X since the Family Report interviews of 31 August 2020. His only contact with X was via FaceTime each week.
THE FINAL HEARING:
The matter was originally listed for three (3) days’ hearing as to both parenting and property issues. But it did not finish; ultimately the hearing ended up being conducted in three (3) distinct tranches.
The first tranche of the hearing was 30 June, 1 July and 2 July 2021. Mr Bithrey of counsel appeared for the Mother, Mr Graham of counsel appeared for the Father and Ms O’Rourke (solicitor advocate) appeared for the ICL.
It did not start well for the Father, who immediately had to make a significant correction to his trial affidavit. In particular, he had deposed to complying with a Court-ordered hair strand test for alcohol abuse on 21 May 2021, saying that he was awaiting the results. The correction was that he had failed to attend the testing laboratory at all due to work commitments.
The Father then sought to adjourn the hearing for six (6) months in order to better enable him to prosecute his case. He said he would undertake the hair strand test and provide evidence from a treating psychologist as to the counselling he had undertaken and the progress he had made. In the interim he also wanted his supervised time with X to be reinstated.
The Mother opposed the adjournment. Although critical of the Father, the ICL was neutral on the adjournment application.
After hearing submissions, I refused the adjournment and the hearing commenced. It did not finish and was adjourned part-heard to 22 September 2021.
Regrettably that hearing date then had to be vacated when the Father’s legal representatives withdrew at late notice, citing ethical reasons. Noting that the Father was facing a “no time” application, I considered it would be unjust to require him to represent himself and instead the hearing was adjourned over to 3 December 2021.
On that date, Mr Bithrey of counsel again appeared for the Mother, and this time Mr Duane, of counsel appeared for the Father instructed by a fresh law firm. Ms O’Rourke had become unavailable and accordingly Ms McMullen (solicitor advocate) appeared for the ICL.
On that occasion, the parties were able to successfully negotiate property settlement orders, which were made by consent, leaving only parenting issues remaining. But the Father had still not provided any hair strand test results to the Court in respect of his alcohol consumption. He claimed that he had undertaken the test but had just found out the results would not be available in time.
The Mother and the ICL were sceptical, and in the circumstances the hearing was once again adjourned part-heard to 23 March 2022 for closing submissions, including possible re-opening of the evidence in respect of the hair strand testing and results.
The hearing concluded on 23 March 2022. Mr Bithrey again appeared for the Mother and Ms McMullen again appeared for the ICL. However, this time the Father was self-represented.
In the meantime the records of the hair strand testing laboratory had been subpoenaed. From those records it emerged that, while it was true that the Father had provided the hair sample, he had also instructed the laboratory not to test it. In the circumstances the evidence was briefly re-opened and the Father cross-examined again. The parties then made final submissions.
At the hearing, the parties relied upon the following documents.
Mother:
(a)Further Amended Initiating Application filed 31 May 2021;[2]
(b)Affidavit of the Mother filed 31 May 2021;
(c)Affidavit of the Maternal Grandfather, Mr B, filed 2 June 2021;
(d)Outline of Case Document.
Father:
(a)Amended Response filed 31 May 2021;
(b)Affidavit of the Father filed 31 May 2021;
(c)Outline of Case Document.
ICL:
(a)Family Report by Regulation 7 Consultant Mr C, dated 7 September 2020 (marked as exhibit “1”);
(b)Outline of Case Document.
In the course of the hearing the parties also tendered numerous exhibits which I will refer to as relevant.
The parents as witnesses:
As witnesses, each of the parents presented entirely differently.
The Mother was polite, earnest and very respectful throughout. Even when being cross-examined about acts of family violence she showed genuine deference to the Father’s counsel, referring to him as “sir”. She spoke plainly, and at times was clearly overwhelmed with emotion - particularly when challenged about some of the Father’s behaviours towards her. She made proper concessions, including that the Father had been an involved parent when X was a baby.
Overall, the Mother was an impressive witness.
As for the Father, I have already touched upon his wholly unsatisfactory evidence about alcohol testing. But his evidence on a number of other topics was also unsatisfactory and unreliable. For example, when confronted with multiple abusive texts sent by him to the Maternal Grandfather, he claimed to have sent each of them accidentally – for example by “pocket dial”. Moreover, his demeanour in the witness box did not help him either. He consistently came across as rather arrogant, and at times defiant and argumentative. His lack of respect for cross-examining counsel was evident. His ongoing simmering anger and resentment towards the Mother, and towards the “family law system” generally, were obvious. He displayed no real empathy for the Mother nor remorse for his actions.
The weight of the evidence - including independent subpoenaed records - compel the conclusion that, broadly, the Mother’s evidence should be preferred to that of the Father where they conflict.
CHRONOLOGY OF EVENTS
Relationship dynamics
The parents were in their late twenties when their relationship commenced. Each valued their career. The Father was a self-employed tradesman running his own business. The Mother was a health care worker, having completed her health care qualifications. (She had worked in health care roles ever since leaving school in Year 12, including working for four (4) years as a health care worker in the Employer D).
X was born in 2015.
Unfortunately, each of the parents had very different expectations about their respective careers and parenting roles. The Father saw himself as the primary breadwinner and expected the Mother to stop working shifts and instead adopt a more “traditional” mothering and homemaking role. The Mother demurred; while she was happy to be X’s primary carer she also wanted to continue her health care career.
The Mother took seven (7) months maternity leave. In 2016 the Mother returned to working one (1) day per week, which within a few months had increased to four (4) days per week. By 2017, the Mother had returned to full-time hours and enrolled X in day-care five (5) days a week.
As a shift worker, the Mother’s hours were irregular.
The Father was unhappy about the Mother’s shift work, and told her so. He had a point; the nature of the Mother’s shifts was no doubt less than ideal in terms of establishing routines for a young infant. But equally, the Mother was entitled to pursue her career, very much wanted to do so and was putting in place appropriate care arrangements for X while she was at work. For instance, when daycare was not an option – for example when the Mother worked nightshifts – X would be cared for by the Father (when he was available) or by grandparents.
I accept the Mother’s evidence that the Father placed emotional pressure on her to give up her work and to stay home full-time. On occasions he denigrated her occupation or otherwise insulted her work, saying:
·“You can’t look after X, you are a shift worker”;
·“Your job is not important, the business is the priority”;
·“I make more money, it’s not worth you working”;
·“You’re only a health care worker, not a health professional”.
The Father also made it clear to the Mother that his work hours should not be affected by her work hours, i.e. that his work should have priority over hers where there was a clash.
Although the parents had enjoyed a good relationship to that point, things soon began to fray. Each parent was disappointed (and somewhat resentful) about the other’s attitude. The Father considered that he was being entirely focussed on the best interests of X and of the family unit. The Mother considered he was being overbearing and misogynistic. Increasingly the parents argued about the Mother’s work commitments, often when X was present.
Increasingly the Father sought refuge in alcohol. He had always enjoyed drinking a beer after a day’s work on the job site; it was part of his work culture. However, from about 2017 onwards his alcohol use escalated to hazardous levels. The Father began to drink every night of the week, starting when he finished work and only stopping when he went to bed. On occasions the Mother saw open beer cans in his car when he arrived home. The Father himself admits that he was drinking approximately ten (10) mid-strength beers per night which is likely conservative.
As well as exacerbating their relationship difficulties, the Father’s excess alcohol consumption itself became a source of arguments.
It was in this unhappy environment that the Father perpetrated various acts of family violence, ultimately culminating in the breakdown of the relationship.
Family violence
In around November 2017 the parents were arguing while the Father was intoxicated. He became angry and punched a hole in the back door, frightening the Mother. He clearly punched the door with significant force as it left a neat hole.[3] In the witness box the Father said he had been “provoked”.
On another occasion around that time, the parents were arguing about the Mother’s work hours while the Mother was holding X in her arms. The Mother retreated to the bedroom but the Father followed and told her to get out of the house. The Mother closed the bedroom door and used a cupboard door to try to block the bedroom door from opening. After trying to open the bedroom door, the Father then punched a hole in it.
He later removed the bedroom door from its hinges and it was never replaced.
Although the Father denied that this event occurred, I found the Mother’s evidence compelling. When her version of events was challenged, she was evidently distressed in recounting it. Her distress was genuine and in my view she was being forced to re-live a traumatic experience.
By March 2018, the Mother had had enough of the Father’s pressure and the ongoing conflict around her work hours. She relented, deciding to drop back to four (4) days per week. It did not much help. Their arguments, and the Father’s alcohol abuse, continued unabated.
In around May 2018, the parents were outside the home when they got into another argument about the Mother’s work. The Father yelled at her to quit her job and support him more. The Mother saw him kick something before walking up to her car and ripping off the driver’s side rear vision mirror.
The Father denied this event in the witness box, suggesting that the Mother had accidentally knocked the mirror off the vehicle by bumping into the side of the house while driving. I prefer the Mother’s evidence.
On an evening around June 2018, the Mother’s sister was visiting the parents and the Father was cooking a barbeque outside. X fell off the back steps at some point. Although X only fell a short distance and was uninjured, she was nonetheless distressed.
The Father came inside the home and was very angry, blaming the Mother for not having properly supervised X. He was yelling at her and, as he walked back outside the home, he punched a further hole in the back door. This had the effect of making the existing hole much bigger.[4]
In October 2018 the parties had a particularly unpleasant argument. The Mother had recently discovered that she was six (6) weeks pregnant with their second child. While intoxicated, the Father told the Mother to “get rid of that thing in your gut” before punching two (2) further holes in the back wall.[5]
The Mother was deeply distressed and fearful for her safety. She briefly separated from the Father, moving into the Paternal Grandparents’ home. I accept her evidence that the Paternal Grandparents were aware of the tensions in the parental relationship and had previously offered to house her if she needed somewhere safe to go. (I also accept that at other times during the relationship, the Father would leave the home and stay with them for brief periods to “cool off”.)
While staying with the Paternal Grandparents, the Mother made the difficult decision to terminate the pregnancy. She did so without consulting the Father and I accept his evidence that the news came as a devastating blow.
A few weeks later the parents reconciled and the Mother moved back into the home with X. But her decision to terminate the pregnancy had caused the Father deep angst. It was a new - and emotionally raw - front in the parental conflict. If anything the Father’s drinking increased. In terms of the relationship, the die was cast.
On Sunday 3 March 2019, the Father cared for X while the Mother went to work. While taking X for their usual Sunday walk, she became tired. The Father did not have the pram as the Mother had accidentally taken it to work with her, so the Father put X on his shoulders. She fell off, and although she was not seriously hurt, the Father blamed the Mother for the situation. From his perspective, the Mother’s work commitments had once again compromised X’s care. He was so angry and resentful of her that the Father did not talk to the Mother for the next two (2) days.
Family violence & final separation on 5 March 2019
On the evening of 5 March 2019, the Father’s smouldering anger at the Mother finally erupted.
Once again the Father had been drinking. He began criticising the Mother for having taken the pram and car seat to work two (2) days earlier. They then argued about the Mother’s work commitments generally, and about some renovation work they were doing.
Both parents were angry, but it was the Father whose anger escalated into family violence. He went into the bedroom and started removing the Mother’s clothing and throwing it out onto the front lawn. He also grabbed the Mother’s car keys and threw them onto the roof. When the Mother went into the kitchen and sat on a stool, the Father followed her and kicked the stool out from under her, causing her to slide off.
The Mother became concerned for her safety at some point and started recording the events on her phone. She contacted the Maternal Grandfather who in turn rang Police.
Police attended the home at around 9.45am, finding the Mother’s clothes on the front lawn and her keys on the roof. After listening to her phone recordings, they considered that X sounded “extremely distressed” during the parents’ altercation.
The Father made only partial admissions about his conduct. He accepted that he had thrown the Mother’s clothes onto the lawn and that he had thrown her keys onto the roof, explaining that he was “mad” at the time. But he steadfastly denied kicking the Mother’s stool out from under her. I accept that he did so.
As a result of this event, Police took out an AVO to protect both the Mother and X from the Father. The AVO included a requirement that the Father not approach either of them within twelve (12) hours of consuming alcohol. They also charged the Father with intimidating the Mother, an offence pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The Father promptly entered a plea of not guilty.
Initial parenting arrangements post-separation
At separation the Father moved in with the Paternal Grandparents. The Father told the Mother that he wanted an equal time arrangement; the Mother proposed that she continue as primary carer and that he spend substantial and significant time with X.
There was a power imbalance in that the Mother had X in her primary care and both were protected from the Father by an AVO - but at the same time the Mother was also intimidated and frightened of the Father and his behaviour. A stand-off had arisen.
I accept the Mother’s evidence that she attempted to arrange mediation but was told that the matter was unsuitable. She was provided with a section 60I Certificate.
In late March and again in early April 2019, the Father unilaterally removed X from daycare for a couple of nights each time. She complained to Police who said they could not assist. While the Father had X, he refused to answer the Mother’s calls. In the witness box he accepted that the Mother may have been distressed at the time but said he “had no regrets”.
The Mother began picking X up early from daycare. The Father responded by denigrating her (and her family) during FaceTime communication with X, calling the Mother a “fucktard” and making negative comments about her sisters Ms E and Ms F, calling them overweight and drug addicts.
The Father’s denigrating and controlling behaviour was on display on 4 April 2019 when, as the Mother deposes in her Affidavit:
68.That same night the Respondent Husband allowed me to speak to X on FaceTime. During that call he interrupted the conversation and asked me whether I was working on the weekend and I told him that I wasn’t. He said “that’s the most maternal I’ve seen you, you fucking goose.” X was present. I ended the call.
69.He then sent me a number of emails advising me that he would not return X to my care until I sent him my work schedule. To resolve the situation, I sent him my work schedule for that weekend to confirm that I was not actually working. He then demanded my entire work schedule. I was uncomfortable with providing my whole work schedule to him as it effectively allowed him to be aware of my movements.
On 8 April 2019, the Mother instructed her solicitors to make a parenting proposal to the Father’s solicitors. They did not respond, but when she arrived back at the home she found that:
·the garage door had been disabled and locked;
·the gas to the home had been turned off;
·the sliding doors were locked and keys were missing;
·the phone chargers, knives, and pieces of wood used to secure the windows, were all missing.
At that time the Father was the only other person who had access to the home, and a motive to act in this way. Notwithstanding the AVO, he was trying to intimidate her.
On 8 May 2019 the Father deliberately swerved his vehicle at the Mother while she was crossing the road at the daycare centre. His vehicle came to within two (2) metres of her. Although he denied the event, I accept that it happened. He was trying to intimidate her.
Later that day the Father attended at the home, yelling out at the Mother that she should be moving out. He told her that she wouldn’t get a cent in the property settlement, threatening her that:
“I’ll ruin you, I’ll tell everyone about the abortion. How do you think this is going to look in Court?”
He continued on in that vein for about forty (40) minutes.
Later on, the Mother decided to leave the home for a few hours. However when she returned she found that the Father had committed further acts of intimidation.
It began when the Mother could not open the front door. After unsuccessfully trying to do so, she ended up having to climb in through the bedroom window. Once inside the home, she discovered that screws had been drilled into the door frames so as to prevent them from being opened. After taking some photographs of what the Father had done [6] she then moved out with X the next day.
In the witness box, the Father was unapologetic about his actions. He reasoned that he had given the Mother three (3) weeks’ notice to vacate the home and take her belongings with her. He would not accept that he had acted in a bullying or intimidating manner.
Father unilaterally retains X and tries to pressure the Mother into settling parenting and property issues
On 13 May 2019, the Father again removed X from daycare and signed her out for the day. This time he did not return her.
The Mother only found out about it at 12.01pm. She tried but was unable to speak with X for the next two (2) days. Not only did the Father refuse to allow FaceTime, he also told the Mother that she would not be able to spend time with X until she agreed to a 50/50 parenting arrangement. He also made a property settlement proposal at the same time. The Mother did not give in to this unreasonable pressure and instead she instructed her solicitors to write to the Father’s solicitors to propose a Parenting Plan. Unfortunately in the meantime the Father had changed solicitors and so she received no response.
On 22 May 2019, a full nine (9) days after the Father had retained her, the Mother was finally able to retrieve X from daycare.
When the Father was challenged in the witness box about his decision to withhold X he said in a self-assured manner that, overall, the nine (9) days spent with him “would have been great for the child”. He could not conceive of any adverse impacts to X in not being able to attend daycare or to have any communication with the Mother during this time.
Mother institutes these proceedings / Interim orders made
On 21 May 2019, the day prior to retrieving the child from daycare, the Mother had already filed an urgent application seeking a recovery order, and an order that the Father spend five (5) nights per fortnight with X, being three (3) nights in week 1 and two (2) nights in week 2. On a final basis she also proposed equal shared parental responsibility, which in the circumstances appears to have been an attempt at appeasement.
On 4 June 2019, the parents entered into an interim order by consent whereby the Father was to spend five (5) nights per fortnight with X. There was also to be daily FaceTime communication between X and the other parent. The interim order contained two (2) injunctions:
5.That the parties are not to consume alcohol to excess whilst the child is in their care.
6.That each party is restrained from denigrating the other party or any member of the other party’s family in the presence or hearing of the child or on social media. The parties are to remove the child from the presence of any person denigrating the other parent or members of the other parent’s family.
In a perfect world, this was an opportunity for a much-needed “reset” in parental relations particularly given that both parents consented to the order. Alas it was not to be. The Father resented the fact that it was not an equal time arrangement and was unable to resist making sarcastic and derogatory remarks to the Mother in X’s presence. For instance, during FaceTime calls he would tell X things such as “Mummy’s not a good person”, “Mummy doesn’t pay for anything”, “Mummy doesn’t work hard like Daddy”, and “You can come to Daddy’s whenever you like”. In relation to the property proceedings he threatened the Mother by saying things such as “Good luck getting anything out of me I’m going to take you for everything”.
On 30 July 2019 the Father emailed the Mother asking that she ensure that X was not left in the care of her sister Ms E “due to drug dependency as well as being overweight with a very active young girl.” He also accused the Mother’s other sister of being “an alcoholic who has been drug dependent as well and doesn’t have a driver’s license this is essential when caring for a child.”
Not only was the Father’s email inflammatory and insulting, it was hypocritical. The interim order contained no injunctions in respect of the Mother’s sisters. On the subject of alcohol abuse and driver’s licences, the Father already had a drink driving conviction himself, was continuing to drink heavily, and would soon perpetrate a further high range drink driving offence landing him in custody.
In early August 2019 the Father emailed the Mother a number of times, suggesting that X’s various health ailments were a direct result of the Mother’s work hours. He accused her of prioritising her work over X. His concern about X’s need for more routine was at odds with his own behaviour in May when he retained her for nine (9) days.
In his email the Father also decided to raise the pregnancy termination, asking that the Mother please provide him of “what week you were at at abortion”, reiterating that he had not been contacted beforehand. In the witness box the Father said that his solicitor at the time had wanted to know those details – which seems rather unlikely - but in any event he conceded that he knew the Mother did not want to talk about it.
The Father was also accusing the Mother of interfering with FaceTime communication when she prompted X to talk to him or was otherwise present in the background. During one FaceTime conversation on 5 August 2019 the Father was making derogatory remarks about the Mother when X spoke up, telling him to “Stop yelling at my Mum she’s my best friend”. When the Father responded with “Don’t worry I don’t ever want to see her again”, X decided she didn’t want to talk anymore and hung up. The Father called back to say “I love you” to X who remained silent. When the Mother tried to prompt X to talk to him - in a way that in my view was helpful rather than hindering - the Father responded with “I am going to go to town on you Ms Lyons and I’ll take you for everything.” After saying goodbye to X he then terminated the call.
After this, the Mother made the difficult but commendable decision to forego her own FaceTime communication with X while she was in the Father’s care so as to reduce the risk of X being further immersed in the conflict.
By consent, on 12 August 2019 the interim order was varied by reducing the FaceTime communication to three (3) times per week.
Father is found guilty of intimidation; Magistrate imposes a five (5) year AVO
After a trial, in 2019 a Local Court Magistrate found the Father guilty of intimidating the Mother in 2019. Sentencing was adjourned to 2019 and in the meantime the Magistrate imposed the current five (5) year AVO referred to earlier.
Father continues to behave inappropriately
The next day, the Father took X to his aunt’s birthday party. The Mother later saw a photograph on Instagram posted by his cousin that showed the Father holding a beer. This was clearly contrary to the no-alcohol conditions of the AVO imposed the day before. However, the interim order of 4 June 2019 was more liberal as it only restrained the Father from consuming alcohol “to excess.” In the circumstances, although the Mother complained to Police about it, they did not charge the Father with a breach of the AVO.
On 27 August 2019, the Father spoke to X on FaceTime. The Mother believed that he was intoxicated on this occasion as he was slurring his words, repeating himself, speaking loudly and with poor pronunciation. Given her knowledge of the Father’s presentation when intoxicated, I accept that she was right. During that call the Father again engaged in emotional abuse and denigration of the Mother, observing that “The truth is going to come out, don’t lie under oath again Ms Lyons” and telling X “I hope Mum is looking after you and not Aunty Ms E and Ms F”.
As the Father was continuing to make comments to X that were clearly directed at the Mother, and given the nature of what he was saying, the Mother advised that she was going to terminate the call and did so. He then called back a further sixteen (16) times. Again the Mother contacted Police and again they indicated that they could not act on any potential AVO breaches given the family law orders.
On 29 September 2019, the Father, again intoxicated, called the Maternal Grandfather and left an abusive message towards him, saying “yeah dad is a loser. Can’t even raise four kids. Lost two wives/lives. He can’t keep a wife. He can’t look after your daughters. He is no good to look after his granddaughter”. In the witness box, the Father suggested that this was an accidental “pocket dial”, one of a number of such “pocket dials” where the person he was denigrating happened to be the very person he called.
Father is imprisoned, appeals and is granted Supreme Court bail
The Local Court had ordered a Sentencing Assessment Report, which recommended a community service order. Notwithstanding, the Magistrate sentenced the Father to nine (9) months imprisonment with a non-parole period of two (2) months and fourteen (14) days. Immediately taken into custody, he promptly appealed his sentence to the District Court.
The Father was in custody for a total of sixteen (16) days, including ten (10) days in maximum security. Unfortunately, rather than causing him to re-think his aggressive behaviour, it only fuelled his victim mentality, his aggression towards the Mother and his resentment of the justice system generally.
He applied for bail pending appeal and in 2019 the Supreme Court granted him bail. One of his bail conditions was the requirements that he not consume alcohol.
18 October 2019 – Mother files application for supervised time & Father breaches bail by drink driving
On 18 October 2019, the Mother filed an interim application to suspend the Father’s unsupervised time and seeking that he instead spend supervised time with X. She did so because of the Father’s ongoing behaviours, and what she considered was their impact on X, namely that she was becoming increasingly withdrawn, anxious and quiet following FaceTime calls and in the days following. X had regressed to sleeping in the Mother’s bed and often required comfort during the night. The Mother felt she had no other way of protecting X; her requests that the Father cease denigrating her to X had fallen on deaf ears.
Now on bail, the Father had to face a difficult reality. Due to his imprisonment, he had just lost the contracts he had with all of his major building customers – so that his income was in jeopardy. He was now facing an application for supervised time with X; his life was crumbling.
That afternoon the Father started drinking heavily. As it was a condition of his bail that he report to Police, he then drove to the Police station despite being well over the legal driving limit. Attending with bloodshot eyes and smelling of alcohol, the Father was breathalysed, returning a blood alcohol reading of 0.204%. At that point he became belligerent with Police, falsely claiming he had not been driving. Police CCTV footage showed otherwise.[7]
Fortunately for the Father, Police gave him until October to revoke his bail.
Again back in custody, the Father lashed out at the Mother. He told Police that the Mother was heavily reliant on sedatives and that she left X at home while working shifts. Police notified the Department of Communities and Justice and conducted a welfare check. There were no concerns. The Father’s complaint was entirely vexatious.
Father’s appeal is successful & supervised time is ordered
In 2019 the District Court allowed the Father’s appeal. His prison sentence was set aside and he was instead given a community-based order.
On 1 November 2019, further interim orders were made for the Father to spend supervised time with X for two (2) hours each fortnight, supervised by G Contact Centre. He was also to have one (1) FaceTime call with X per week. Around the same time, the Father began receiving counselling with H Psychology in relation to his alcohol abuse and other personal issues.
Supervised time begins / Father continues to behave inappropriately
On 30 November 2019, the Father started spending supervised time with X between 3.30pm and 5.30pm each alternate Sunday.
As a general statement, that visit and all subsequent visits went very well insofar as the Father and X’s interactions were concerned. X clearly enjoyed being back in the Father’s company; their relationship was observed to be close and affectionate. The Father did however denigrate the Mother to contact centre staff on a number of occasions; he clearly blamed her for the situation.
He also harassed members of the Mother’s family and friendship group. On 22 and 23 December 2019 he contacted the Mother’s friend Ms J and her husband, leaving them a voicemail message threatening to report them to the Police for an undisclosed reason. They informed the Mother and told the Father to stop harassing them.
On 24 December 2019, the Father called the Maternal Grandfather’s phone using a private number. He left this message:
Hey Mr B, you’re probably drunk as normal. Your lies only last so long mate. Yeah, make sure you tell Ms F [the Mother’s sister] to lay off the codeine. Just thinking of you.
On 28 December 2019, the Mother had two (2) missed calls from a private number and the Maternal Grandfather also had a missed call from a private number. I am satisfied that the Father made those calls.
On 29 December 2019, the Father called the Maternal Grandmother’s mobile telephone, telling her to “get off the phone, you fucking slut”. She reported him to Police. The same day, the Father telephoned the Maternal Grandfather, who by chance was with the Mother at the time. The Maternal Grandfather put the call onto speakerphone. After a few seconds of silence, with the Maternal grandfather saying “Hello?” the Father then said “Bye bye super” and hung up. It was a thuggish attempt at intimidation in relation to property settlement issues.
The Father also behaved inappropriately on some FaceTime calls. On 19 January 2020 he continually asked X about her eating McDonalds when with the Mother (which was one of his complaints). He suggested to her that she had “strange people” staying in her house, well knowing that the Mother was the only other occupant. He continually spoke to X about the Mother allegedly having thrown out a bag that he had bought for her some years ago. When X said she no longer wanted to talk, the Mother held the phone up so that X could sing to him. The Father responded with “Please put the phone down and hand it to X. The Court has ordered this. Please exit the room”.
At the end of a very positive supervised visit on 25 January 2020 G Contact Centre recorded that:
When X spontaneously asked [the Father] why he and [the Mother] park separately, [the Father] said it’s how it is, you don’t need to worry about it. After X had left, worker said to [the Father] it’s hard when children ask you questions but you did the right thing by not going into it with X. [The Father] responded along the lines of it’s a crock of shit me being here supervised because her mother’s a fucking lunatic. I want her to go through what I am going through.[8]
The next day, 26 January 2020, the Father was unable to have his FaceTime call with X, as the Mother was at work. The Father called the Mother’s workplace and spoke to one of her colleagues, asking for the Mother by her maiden name. When her colleague enquired who was calling, he said “Don’t you worry about that” at which point she hung up and reported it to their manager. The Father then called Police to request another welfare check. In the witness box the Father maintained that he had legitimate welfare concerns. He didn’t. While the Mother should have made other arrangements to enable the FaceTime call to proceed, the Father’s decision to involve Police was unnecessary and in my view amounted to harassment.
Around this time the Mother moved from Town K to Town L, though she did not reveal her new address to the Father. She also started facilitating some contact between X and the Paternal Grandparents.
The Father’s denigration continued. On 2 February 2020 he told X during a FaceTime call, saying that she “doesn’t work too hard” and during their call on 9 February 2020 he suggested to X that the Mother might be scaring her. When the Mother walked past in the background, he asked X “Who’s that? What’s that thing?” On 6 February 2020 he told G Contact Centre that she was an unfit Mother.
On 3 March 2020 both parties attended Court for a directions hearing. A Family Report was ordered and the Father consented to undertaking a CDT test for alcohol abuse within 48 hours of a request by the ICL, with the Father to pay the costs and provide a copy of the results within 24 hours. The proceedings were otherwise adjourned over to 5 November 2020 for further directions.
After leaving Court, the Father tried to intimidate the Mother by deliberately standing close to the ticket machine at the car park. When she used the machine he was just a few metres away and he made clicking sounds with his mouth while staring at her. In the witness box he then falsely denied doing so.
On 5 March 2020, the Father rang G Contact Centre to complain about an alleged omission from the notes of a recent supervised visit. He said that X had told him that “Mummy said I will never be able to play and go to your house ever again”. He claimed the supervisor had been shocked when X said this, but curiously there was no such record in the notes. The manager said that enquiries would be made with the supervisor.
When the manager later reported back to the Father that the supervisor had not heard X say this, the Father lashed out. According to the subpoenaed notes of G Contact Centre, which I accept as accurate:
Mr Lyons said he does not want the same worker on his visit as he believes she doesn’t like him. I said this was not the case at all and the worker simply did not hear the comment or heard it differently. I then explained to Mr Lyons what the worker had written and heard at the visit. Mr Lyons said that it was a lie and that wasn’t what was said. I explained to him that once again, I had documented his concerns and this can be subpoenaed. I asked Mr Lyons to not approach the workers about this concern and that he needs to speak to myself or worker only. Mr Lyons said he won’t be talking to them at all and will be very rude. I reminded Mr Lyons that if he was rude or inappropriate towards staff then visits may be put on hold. Mr Lyons said when he meant rude, that he just won’t talk to them. I said this was his decision. Mr Lyons said the Centre was unprofessional and if we just did our job properly, none of this would have gone against him. Mr Lyons said he is fucken unhappy and to get our shit together. I told Mr Lyons that I did not appreciate the way he has spoken to me and that it was not necessary or welcome.
In 2020, the Father pleaded guilty to his high range drink driving offence from October. He was fined, placed on a community corrections order, his license was disqualified for a period and he was also required to have an interlock device fitted to his motor vehicle for two (2) years.
On 20 March 2020 the Father telephoned the Maternal Grandfather from a private number. When he answered the Father only made a clicking noise. During the FaceTime call on 22 March 2020 X was reluctant to talk. When the Mother was encouraging her to do so, the Father interjected by asking X if “they are standing over you again?” and telling her that the Court had ordered that he have half an hour with her. He asked X if she was eating “McDonalds again”, and told her that the Mother was “working too much. It’s hard for you.” He also said to X “Don’t look at them” and “It’s all recorded, not smart to control the child on FaceTime.” At one point when X turned the iPad camera towards the Mother’s sister Ms F, the Father asked X “What’s that thing? Was it the dog?”
When the Father heard the Mother laugh at something in the background during the FaceTime call on 29 March 2020, he asked X whether a hyena was there.
To be fair, I can understand the Father wanting to have private FaceTime communication with X. But the Father did say inappropriate things to X on occasions; in the circumstances some loose monitoring of communication was reasonable. Moreover, X was only very young and with a relatively limited attention span. On occasions it was reasonable for the Mother to prompt or otherwise encourage X to keep talking to him. The Father’s problem was that he resented the Mother having any involvement at all – which was unrealistic.
Visits temporarily suspended due to COVID-19
In late March or early April 2020, G Contact Centre temporarily suspended supervised visits. Instead they offered to supervise a thirty (30) minute Zoom call each week.
The Father was understandably disappointed, but also angry. On 8 April 2020 he filed an Application in a Proceeding seeking that X live with him during the pandemic.
Father’s behaviour continues
On 12 April 2020, when the Mother was encouraging X to talk to the Father during a FaceTime call, he told her that it must be hard for her to talk when “Mummy’s over the top of you big girl”.
The Father was also becoming increasingly frustrated with G Contact Centre who he thought were favouring the Mother over him. He telephoned them on 14 April 2020 in an agitated/highly frustrated state, accusing the Mother of not complying with the weekly FaceTime orders. His anger was such that the G Contact Centre staff member had to end the call.
When the G Contact Centre Business Development Manager later returned the Father’s call, the Father immediately said that he only wanted to speak with the “top dog”. He complained about the details of their notes, telling the manager that they were “dealing with kids’ lives” and that they had to “get this shit sorted”. He could not be appeased. When the manager offered to escalate his complaint to the CEO, the Father agreed. But when the manager asked what it was that he actually wanted to discuss with the CEO, the Father said “I’ll tell the CEO, not you”.
These sorts of interactions highlight the Father’s frustration and resentment, but also his arrogant and self-righteous streak when dealing with others - not just the Mother.
On 20 April 2020, the ICL requested that the Father undertake a CDT test within 48 hours as required by the orders of 3 March 2020. Despite the Father’s pending Application in a Case, he failed to take the test in the time required by the order.
In the meantime he was difficult and at times sarcastic in his dealings with G Contact Centre concerning supervised Zoom communication. He complained about having to negotiate times around the Mother’s roster, demanding to see it; he complained that he had problems downloading the Zoom app.
On 27 April 2020 he told G Contact Centre that he was recording every FaceTime communication with X. When asked about arranging a supervised Zoom call for the next week, he said that his telephone had “shit itself” and he couldn’t get it fixed in time as the shop wasn’t open. According to the notes of G Contact Centre:
Mr Lyons kept referring that he is fighting against the whole system, and it’s all a fucking joke and he is over it. I said again the Zoom sessions were up to him, Mr Lyons said again, he doesn’t think they will work. And again said if they were at a set time on Saturdays for face-to-face they should be the same for Zoom. Mr Lyons finished the phone call, saying he will just need to go higher again before ending the call and hanging up mid-sentence.
In the witness box the Father admitted that his solicitor had told him not to worry about starting the Zoom calls, particularly given that the matter was coming back before the Court. In the result, supervised Zoom calls only began in early June 2020.
CDT results
On 15 May 2020 the Father belatedly provided a hair sample pursuant to the request from the ICL some three and half (3 ½) weeks earlier. Despite the lateness of the test, the Father still recorded a result of 4.9%. A normal level would be <1.7%, and a result between 1.7% - 2.0% would be considered “equivocal”. The Father’s result was high indeed, consistent with regular heavy alcohol consumption. On the evidence before me it is highly likely that he had been consistently drinking at a high level ever since being released from custody on 25 October 2019, including at the time he filed his Application in a Case.
Father’s aggressive behaviour escalates
In the face of that CDT result, on 26 May 2020 the Father’s Application in a Case was adjourned for interim hearing to 25 November 2020.
In a supervised Zoom call on 2 June 2020, the Father claimed that X told him that she didn’t think she would be able to come to his house. He thought that the Mother had said this to X, which she denied. I accept her evidence.
The Father was evidently unhappy with his interim application being adjourned, complaining bitterly during a call to G Contact Centre on 4 June 2020. He said that the whole system was “corrupt and a fucking joke” and that everything was used against him. Amongst other things, he said that the CDT test was “obviously wrong” and a “fucking joke”, even going as far as to suggest that the results had been tampered with. He also complained about his legal representatives, saying that his solicitor “is a fuckwit and has not won a single thing for him and is a fucking joke.” He said that his solicitor “went off his head and told him he was a fucking idiot” and was now refusing to represent him. The Father said he had rung a few places to find out his rights and had threatened his own solicitor that he would take things further and go to the press if he didn’t continue to represent him, following which he said he was “confident now the idiot will at least represent him further”. When talking about the Mother, the Father became enraged, calling her “nothing but a cunt” and ultimately the worker ended the call, citing his anger and her own need to attend a meeting.
Some ten (10) minutes into the Father’s supervised Zoom call on 9 June 2020, both he and the supervisor observed that X was turning her head to the left of her and looking over in that direction. The Father asked her what she was looking at and, when X did not respond, he asked her if someone was with her. He then took a deep breath and said that there was someone else in the room controlling what X said and did. In a raised voice he said in X’ presence: “This is fucked.” He accused the Mother and her parents of controlling and trying to brainwash X, telling the supervisor she could “put that in her little notes and send them to that fuckwit judge”. Given X’s exposure to these comments, the supervisor suggested ending the call then and there.
Afterwards the Father spoke alone with the supervisor for around fifteen (15) minutes, continuing to complain bitterly about the Court system, labelling the Mother a “fucktard and an absolute cunt” and suggesting he may seek “complete custody” of X. The supervisor saw him become very red in the face and that he was almost crying.
G Contact Centre warn the Father about his behaviour
On 15 June 2020, G Contact Centre wrote a formal warning letter to the Father about his conduct. Having concluded that there was no third party present during the Zoom call on 9 June, they went on to state:
When you commenced services with G Contact Centre, you signed a Service Agreement which outlined the expected behaviours required of all parties. This includes but is not limited to:
•As the CCS is a shared space, we ask everyone to be polite and courteous;
•In the best interests of children please keep conversation child-focused and refrain from discussing Court orders, future contact arrangements or speaking negatively or inappropriately about others.
The behaviour that you exhibited during the supervised contact on 9th June 2020 with your daughter and subsequent phone calls to G Contact Centre staff was in breach of your agreement.
The abusive language in front of your daughter and towards our staff was unacceptable and G Contact Centre will not tolerate this behaviour.
I have conferred with the CEO, Ms M and if these supervised contact sessions are to continue you need to confirm that you will abide with the following terms:
1. All correspondence to G Contact Centre staff be via email only – the only exception is Zoom contact where the CCS staff need to speak with you.
2. There is to be no offensive or abusive language at any time or derogatory comments to G Contact Centre staff or in front of your daughter.
If you continue with the behaviour that you have been subjecting G Contact Centre staff and your daughter to, we will no longer be able to provide a service to you.
As Ms N is not working today please contact Ms O by email on Ms [email protected] with your acknowledgment of this letter and whether you accept the terms set out. No supervised contact sessions will occur until Ms O has heard from you. [9]
On 16 June 2020, the Father sent two messages in reply. The first message was that he found the letter:
both intimidating and threatening all I’d like to do is have supervised visits with X when my daughter hasn’t got someone else in the room controlling what she says! This is how it’s meant to be.
Shortly after he sent a further message: “I accept rules of letter.” [10]
Father again behaves inappropriately & G Contact Centre withdraw their service
The supervised Zoom sessions which followed were only short-lived. The final straw come on 21 July 2020 when, not long before the session ended, X left the room and the Mother could be heard in the background trying to coax her to go back to the camera and continue the call. The Father was unhappy about the Mother engaging in this way and G Contact Centre consider that he then said some inappropriate things.
G Contact Centre contacted him two (2) days later on 23 July 2020 to make the point that, given X’s age, she would not be expected to have the developmental attention span to stay fixed in the session or in the room for the prescribed thirty (30) minutes. Effectively they were excusing the Mother’s involvement. They raised with the Father that he said some inappropriate things in front of X and they reminded him not to do so. He denied it, asserting that he had recorded the entire conversation and inviting them to listen to it.
Recording calls was itself another breach of the service agreement. On 27 July 2020, G Contact Centre wrote to the Father to formally discontinue their Zoom service. They rejected his complaint about the Mother being present during the call on 21 July 2020 and went on to say that:
As part of your response you divulged that you had recorded the CCS contact...
The CCS Agreement, which you have signed, clearly states “the CSS is a phone and recording device free zone”. Considering your ongoing and persistent breaching of the CCS Agreement, G Contact Centre has decided to discontinue your CCS Service with immediate effect.[11]
In the witness box the Father claimed that he had only been “bluffing” about recording the calls; he said he had never recorded any of them.
The Father’s communication with X was now limited to just one (1) FaceTime per week when she was in the Mother’s care.
The Family Report of 7 September 2020
The interviews and observations for the Family Report were conducted on 31 August 2020.
The Mother complained to the report writer about the Father’s past excessive consumption of alcohol. In his interview, the Father admitted that his CDT test result had been “high”, saying that he drank between two (2) and six (6) mid-strength beers each day, sometimes eight (8) beers and that he was intoxicated on a weekly basis. The report writer went on to observe that:
The Father appeared to rationalise this pattern of consumption, indicating that he, through his employment, is in an entrenched culture of males working physically together and then consuming alcohol on a daily basis.[12]
The Family Report writer considered that the Father’s pattern of alcohol consumption, and the impact upon his behaviours, were an issue in the proceedings. Poignantly, the report writer observed that:
Clearly the father will need to undergo further CDT tests, and possibly a hair follicle test on an ad hoc basis as requested by the Independent Children’s Lawyer. The results of these tests over a period of time could well determine as to whether the father proceeds to resuming unsupervised time with X in the future. If the Father fails to participate in any proposed testing regime or that his results remain high, the father may not be able to resume a relationship with X in the future. Mr Lyons must note this. [13]
The report writer was also concerned about the issues of family violence, the Mother’s distress when recounting various events, and the non-existent parental communication. He suggested that as a gesture of goodwill it might be helpful for the Father to send the Mother a letter of apology acknowledging his alcohol misuse and recognising the Mother’s ongoing concerns about his alcohol use in the context of unsupervised time. [14]
As for X, she was excited to see the Father again, running straight into his arms.
Ultimately the report writer recommended a resumption of professionally supervised time for two (2) hours each fortnight for a period of six (6) months, with the contact notes to then be reviewed thereafter. He recommended that the Father undertake a further CDT test and a hair follicle test as requested by the ICL. The report writer considered that the three (3) sessions of counselling the Father had had through H Psychology was insufficient, suggesting that he needed to re-engage in another therapeutic relationship particularly to address his alcohol use. He suggested that there be a further evaluation in around nine (9) months.
CDT testing order; Father fails to comply
On 14 September 2020 her Honour Judge Terry ordered the Father to undertake CDT testing within 48 hours of a request from the ICL. On 12 October the ICL made such a request. The Father did not comply until 19 October, a full week later. Even so the result was 2.2% which still indicated excess alcohol consumption.
Leadup to the interim hearing
In the meantime, the Father proposed to the Mother that he spend the six (6) months supervised time with X recommended by the report writer; she rejected his proposal.
As the interim hearing date approached, the Father texted the Maternal Grandfather some unusual but clearly aggressive messages:
(a)on 25 October 2020 he sent the Maternal Grandfather a picture of the new local area Police commander, suggesting that both he (and another Police officer) were corrupt;
(b)on 31 October 2020 he sent the Maternal Grandfather an article warning of the dangers of mixing alcohol and codeine;
(c)on 1 November 2020 he sent the Maternal Grandfather a screenshot of a message he had sent to his older daughter Ms P. The Father’s message contained the same article on alcohol and codeine, with the comments “so scary” and “two different dads same issues it comes from (the mother’s) jeans (sic)”.
The Father also copied the Mother into that last message. By way of context, Ms P has two (2) children with autism; they have different fathers. The Father’s message was deliberately calculated to insult and offend the maternal family – and he was stooping very low to do it. Although the Father may well have been affected by alcohol at the time of the texts, I reject his evidence that they had been sent to the recipients “accidentally” or that their contents had been misunderstood.
On 3 November 2020 the Father sent the Maternal Grandfather some further texts referencing the new local area Police commander, referring to him as “good mate” and making sexual remarks although there may have been an “autocorrect” in the message. Put shortly, it is unclear whether he was referring to the commander’s daughter, to the Mother or someone else. In the witness box the Father could not explain the texts; he was likely drinking if not intoxicated when he sent them.
On 7 November 2020 the Father sent these texts to the Maternal Grandfather:
“Jeez his phone records come final hearing can’t wait.”
“Fuck poor X with the mental health”.
I reject the Father’s evidence that these were sent “accidentally”, though he was likely drinking if not intoxicated when he sent them.
As a result of texting the Mother, the Father was charged with breaching the Mother’s AVO (to which he later pleaded guilty).
Trial directions made & hair strand test/s ordered
On 10 November the Father amended his Application in a Case in which he abandoned his interim “lives with” application. He instead sought unsupervised time with X for five (5) nights per fortnight.
On 17 November 2020, her Honour Judge Terry dismissed the Father’s Amended Application in a Case and formally suspended all previous orders for the Father to have supervised time. Her Honour set the matter down for final hearing commencing on 30 June 2021 and, in anticipation of that hearing, ordered the Father to undertake hair strand testing for alcohol use by no later than 31 January 2021, with the Father to provide no less than 3.8cms of hair. In the event the test showed excessive alcohol consumption, the Father was ordered to undergo a further hair strand test on or about 28 May 2021.
Though he did not realise it, there was a measure of benevolence in her Honour’s testing orders in that they gave the Father two (2) chances to show he had curbed his alcohol consumption.
During the Father’s FaceTime call with X on 29 November 2020, she was playing with her toys and not very talkative. The Father became frustrated, telling her that she had to talk as it was “Court-ordered” and then, when X said she was talking, he responded with “No you’re not, you’re ignoring me like your mother. Stop being like your mother.”
Leadup to the final hearing – the Father’s ongoing aggression & his non-compliance with alcohol testing orders and requests
Having apparently “lost faith” in his solicitors, in December 2020 the Father engaged a new law firm to represent him. He also shaved his head. In the result he did not undertake the hair strand test that had been ordered in January 2021.
His affidavit tried to “have it both ways” on this issue. On the one hand he claimed ignorance:
…[A] lot of time was spent by lawyers getting up to date with my file. I knew that the Family Report suggested I should get a hair follicle test but did not really understand that this was ordered by the Court or what the consequences of not doing so would be…
while in the very next sentence admitting that:
I thought it did not matter whether I had a hair follicle test because X was not spending time with me. [15]
The latter is the truth, and betrays his attitude. Far from being ignorant of the hair testing order, the Father shaved his head specifically to defeat it. He even went so far as to shave his armpits.
He also continued denigrating the Mother when speaking to X during FaceTime calls. On 20 December 2020 he said “Mum’s like a koala bear, she’s a protected species”; he suggested that she and her family were “suddenly” being generous with X about Christmas presents; and then when the Mother walked past he asked X “What was that? There was something in your room looking awfully creepy”.
On 3 January 2021 he denigrated Town L, where the Mother and X had moved.
On 17 January, when X was on holidays with the Mother at the Region Q, he made various disparaging references to the Mother, suggesting she was getting X to “tell lies…that’s not going to be very good for the courts”; saying he doubted the Mother could afford the holiday and then laughing while calling it a “health care worker’s holiday”. He said he recorded all of the calls, telling her that no-one was to be in the room when they spoke. He also told X that a breakfast cereal was named after the Mother – “fruity loops”.
On 24 January 2021 he referred to the Mother as “that thing”. When X showed him her new pig toy on 7 February, he told her that it reminded him of someone she lived with. When on 14 February she declined his request to show her areas of the house, he said that it wasn’t going to look good in Court and asked whether X was tied up with a belt and unable to move.
On 19 February 2021 he rang the Maternal Grandfather from a private number to say “You lying cunt, you will get yours.” This time the Maternal Grandfather complained to Police. They charged the Father with intimidation and took out an AVO to protect the Maternal Grandfather from him. The Father denied he was the culprit, entering a plea of not guilty. The charge remained undetermined as at the date of the final hearing. For present purposes I am satisfied that he was the caller given his past behaviours (including calling the Maternal Grandfather from a private number) and given that the Maternal Grandfather recognised his voice.
When X didn’t want to talk on 7 March 2021, the Father suggested to her that the Mother was responsible. On 14 March he asked X if the Mother was at work and when she said no, he said sarcastically “Oh is she at home? That’s nice of her.” He also made various other denigrating remarks on 21 March and 18 April as set out in the Mother’s Affidavit.[16]
On 1 April the Father was apprehended by Police while driving a different work vehicle one morning which did not have an interlock device fitted. Though the Father was sober, he was clearly breaching the restrictive licence conditions imposed on him by the Local Court.
In his FaceTime call with X on 25 April the Father became frustrated. At one point he referred to the Mother as a “wild animal”, said her home was like a “prison”, told X that the Mother would try and get him into trouble and that “Dad is doing everything he can to see you okay, so you just hang in there. Alright. And I will tell you the truth of what happened when you get older alright.”
In 2021 the Father re-partnered with Ms R who lives in City S with her three (3) children. He began spending time at her home in City S, and she at his home in Town T. He described the relationship as “on and off” or casual in nature. His bank statements showed bottle shop purchases around this time, which he put down to buying gin for Ms R and non-alcoholic beer for himself. I do not know whether he was buying gin for Ms R or not but I do not accept that he was buying non-alcoholic beer for himself.
The Father did book a hair strand test for 21 May 2021, but as noted in paragraph 12 of these Reasons, he not only failed to attend that appointment but also deposed in his trial Affidavit that he had attended and was awaiting the results.
On 21 June 2021, just days before the trial was due to commence, the ICL requested that the Father undertake a CDT test. He did not undertake the test, blaming work commitments.
PARENTING PROCEEDINGS – THE LAW
Part VII of the Family Law Act (“the Act”) sets out the Court’s power to make a “parenting order.[17]
Put shortly, the Court must regard the best interests of the child/ren concerned as the paramount consideration: s 60CA, s 65AA. In arriving at a “best interests” determination, s 60CC of the Act prescribes various mandatory considerations for the Court. The relevant extracts of s 60CC are reproduced below.
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)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;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
There is obviously an overlap between many of the mandatory considerations. To the extent that they encompass risks of harm to children, the Court must be mindful not to make an order that places a child at an “unacceptable risk” of harm: see the High Court decision in M & M (1988) FLC 91-979. This involves not just an objective risk assessment, but also an assessment of “whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a relationship with the other parent”: see Keane v Keane [2021] FamCAFC 1 and the cases cited by the Full Court therein.
In the event that appropriate risk-mitigation measures can be put in place so as to reduce the risks to an “acceptable” level, this is not necessarily the end of the Court’s inquiry. In some cases the prospect of the child spending time and/or communicating with the other parent may cause such genuine distress to the primary parent as to have a discernible adverse impact on their parenting capacity. If the adverse impact cannot be reasonably managed through counselling or other supportive measures, then the Court must consider whether the adverse impact in fact outweighs the benefits to the child in making an order for time and/or communication.
In closing, s 61DA(1) of the Act creates a rebuttable statutory presumption that it would be in the best interests of children to make an order for the parents to have equal shared parental responsibility for them. But the presumption does not apply in this case given the Court’s findings about family violence: s 61DA(2). Accordingly the question of parental responsibility is “at large”, to be determined by reference to the best interests considerations in s 60CC.
An order for equal shared parental responsibility engages the specific statutory pathway set out in s 65DAA of the Act; the Court must first consider the making of an equal time order. [18]
BEST INTERESTS FINDINGS
The Mother contends that the Father poses an unacceptable risk of harm to X. She alternatively contends that fear of the Father is such that the making of an order for time or communication would have a discernible adverse impact on her parenting capacity outweighing any benefit of the order.
The fundamental question therefore is whether or not it would be in X’s best interests to have the opportunity for a relationship with the Father, and if so then what form that should take and what safeguards (if any) are appropriate.
Having already made numerous factual findings which engage the mandatory best interests considerations in s 60CC, and noting their overlapping nature, I propose to address them collectively.
I begin by observing that there are obvious benefits for X in maintaining a meaningful relationship with the Father. Historically their relationship has been close. He was the first parent to hold her when she was born. Until separation he was actively involved in her life. Post-separation he has involved himself in her life as much as possible. I have no doubt that they love each other; X’s observed reactions to the Father at G Contact Centre and in the Family Report observations provide cogent corroboration of the Father/Daughter bond.
The Father is also well placed to foster X’s relationships with the Paternal Grandparents and with other paternal family members.
X wants to have a relationship with the Father. Denied that opportunity, she will be one of those unfortunate children who has to grow up with an absent parent. This may pose long-term challenges for her in terms of her sense of identity and her self-esteem. On occasions she will likely have to explain the Father’s absence to well-meaning strangers or perhaps to other children and she may keenly feel his absence. Father’s Day events at school are an obvious example. The Father’s absence will no doubt pose various challenges for X from time to time and she will have to develop resilience to navigate these.
Given the Father’s attitudes and behaviours, there are however real and enduring risks to X in maintaining a relationship with him. The risks he poses are interlinked and multi-faceted. They engage both primary considerations such as family violence [s 60CC(2)(b)], and additional considerations such as his attitude to parenting [s 60CC(3)(i)] and his parenting capacity [s 60CC(3)(f)].
The Father’s ongoing and deep animosity towards the Mother is a striking feature of the case. Having seen him in the witness box and having considered the evidence I am compelled to the conclusion that he practically despises her; certainly he blames her for his current co-parenting predicament.
He has denigrated her as a parent in strident terms, including to Police and to G Contact Centre staff. He has denigrated her to X during FaceTime communications, likely upsetting her and making her more reluctant to engage with him. Then, when that happens, he blames the Mother. He also resents her attempts to keep the calls going, accusing her of interfering. It is a “no-win” situation for X.
The Father has difficulty managing anger in general. He has lashed out at the Mother, at her family, at his own solicitors, and seemingly at the Mother’s solicitor whose correspondence to him of 30 September 2021 notes that he accused her of “dragging it on to get more money”, while suggesting that she should “pull her head out of her arse.” [19] He has been aggressive and inappropriate in his communications with G Contact Centre, prompting them to discontinue their service. He has behaved belligerently towards Police.
When he is angry, the Father seems to be unable to contain himself and adhere to appropriate standards of conduct. It is not a “one-off”; there is a distinct pattern.
The Father has perpetrated acts of family violence against the Mother (or in her presence) over a lengthy period. She (and at times X) have been frightened by his behaviour. Even now, the Mother remains frightened of him; X is exposed to that fear.
The Father remains largely in denial about his past family violence. He is unable or unwilling to accept the gravity of his actions or their impact either on X or the Mother. He displays a distinct lack of remorse for his behaviour and a distinct lack of empathy. He has demonstrated little or no capacity to meaningfully address the root causes of his violence.
All of the above risks are exacerbated by the Father’s chronic, and largely untreated, alcohol abuse. Despite its obvious adverse impacts on his life he remains unable or unwilling to address his alcohol use in a committed way. The ten (10) counselling sessions he had in 2019/2020 falls well short of what is required.
In any event the Father has comprehensively failed – indeed has refused – to comply with alcohol testing orders notwithstanding that his alcohol use has clearly been a relevant issue throughout the proceedings and had been specifically flagged by the Family Report writer. His attitude towards his alcohol use was exemplified by the combative answers he gave in cross-examination. Rather than accepting the simple proposition that his alcohol use was “a very important feature” of the case, he insisted on responding that it was “one important feature, as all features are”. He attempt to control the narrative was obvious and did not augur well for his willingness to change.
Despite deposing in his Affidavit that he had undertaken a parenting course and an anger management course, the Father had only attended the counselling sessions referred to. (Notably, the counsellor recorded the Father’s attitude towards the Mother as “maintains strong dislike/criticism of ex-wife”.)
On the evidence before me, I consider that the making of an order for the Father to spend time and communicate with X would pose her an unacceptable risk of emotional and physical harm.
Emotionally it would likely be disastrous, given the intensity of the Father’s ill-feeling towards the Mother. In all likelihood he would denigrate the Mother to X, he would undermine the Mother as a parent. He would likely try to pry into the Mother’s home life through questioning X, about even simple things such as where she lives. The Mother would want to warn X not to answer such questions but inevitably it is X who would be hopelessly caught in the emotional crossfire; trying to have a relationship with both parents would be a next-to-impossible juggling act.
The Father’s closing address was corroborative of this conclusion. Given the case made against him, he decided to “fight fire with fire”. He attacked the Mother’s credibility, particularly for not revealing in her Affidavit that she had apparently at that time recently fallen pregnant to her partner Mr U. As for Mr U, the Father said he did not know him and he complained that the ICL should have asked more questions about him because “this man could be much worse than me”. If given the chance, he will ask the questions of X himself.
It is true that there is a dearth of evidence about the Mother’s partner, and about her pregnancy. Ordinarily such matters should be addressed in the evidence. But in this case the absence of evidence does not impact the Mother’s credit when looked at in context. The Mother fears the Father; she does not want him to know her home address; and it is clear that she very much wishes to keep the details of her personal life from him. To be fair, at the time of her Affidavit the pregnancy would only have been very early anyway.
More fundamentally, there is simply no evidence of any risks to X arising in the Mother’s home environment or as a result of her relationship.
Returning to the unacceptable risks posed by the father to X, in my view there is an unacceptably high likelihood of the Father perpetrating further family violence in the future whether against the Mother or another intimate partner, with X being exposed to it or otherwise adversely impacted by it. Exposure to family violence poses obvious risks to X’s welfare, physically and emotionally. These include the obvious risks, such as witnessing (or being injured by) the Father’s violent interactions and their aftermath. More insidious risks include negative impacts on X’s psycho-social (and even intellectual) development, or risks associated with poor parental role-modelling, ie. X coming to think that violence is an appropriate or acceptable form of conflict resolution within intimate relationships. Such an attitude could lead to her becoming a perpetrator or a victim herself, thus perpetuating the unhealthy cycle.
The Father’s ongoing alcohol abuse poses a risk of physical and emotional harm to X, primarily the risk of neglect. His alcohol abuse also exacerbates all of the other risks.
Are there appropriate safeguards the Court could impose in order to ameliorate the risk? In closing submissions for example, the Father said he was willing to be breathalysed, offering in fact to “jump through whatever hoops” the Court considered necessary in order for him to have a relationship with X.
Unfortunately those proposals ring hollow given the Father’s inability or unwillingness to comply with orders and boundaries. He has disregarded this Court’s orders (as to both non-denigration and alcohol testing); he has disregarded Supreme Court bail conditions; he has disregarded the conditions of an AVO imposed by the Local Court; he has disregarded a Local Court order that he only drive a vehicle fitted with an Interlock device; he has disregarded the supervised contact service agreement he entered into with G Contact Centre.
The Father shows little respect for authority or for the family law “system”; he has even less respect for the Mother.
Ultimately, I consider that there are no safeguards this Court could impose which would reduce the risks posed by the Father to X to an “acceptable” level. Though not strictly necessary, I would also add here that the making of any order for time would in my view have a discernible adverse impact on the Mother’s parenting capacity. She would be genuinely and reasonably apprehensive of what the Father might say or do next. This is not a healthy or safe environment in which to discharge her role as primary parent. On its own, it would likely outweigh the benefits to X of making a positive order for time and communication.
Any positive order for time or communication between X and the Father would also create a real risk of future litigation given the parents’ non-existent communication, the lack of trust and the sheer unworkability of such an arrangement.
What of the ICL’s proposed order for limited communication simpliciter? In my view such an order would be highly problematic. To begin with, neither parent wants such an order. The Father said he did not trust the Mother to pass on any correspondence; he wanted to give it to the Paternal Grandparents. That is obviously not a safe option for X given the Father’s attitude towards the Mother, the risks of denigration and undermining etc.
Moreover, if I made the ICL’s proposed order there is simply no guarantee the Father would send anything to X at all. Even if he did, I consider that he would not be able to resist including a few “barbs” at the Mother or her family. She would be apprehensive about the content of each and every letter for the foreseeable future and about the responsibility of having to “vet” them which she would find emotionally taxing and stressful.
Assuming that the Father did send regular cards and letters etc and that their contents were always entirely appropriate – a prospect I consider remote - how would this work in X’s best interests in the long term? It would be no more than a shadow of a parent/child relationship, and hardly a substitute for the real thing. Moreover, in circumstances where the Father lives relatively close by, such limited communication would be more likely to confuse, frustrate or upset X than benefit her.
In closing, while I have considered all of the s 60CC factors it is unnecessary for me to say anything more about them given my findings. For instance, the Father has avoided paying child support to the Mother [s 60CC(3)(ca)] but in the end it really does not make a difference to the outcome. The Mother has educated herself by attending a “Building Connections” course and a “Parents not Partners” course and has generally shown a proper and protective attitude to fostering X’s relationship with him. That said, there were no doubt some occasions where her work commitments interfered with Court-ordered FaceTime, inflaming the Father [s 60CC(3)(f) & (i)].
CONCLUSION
It is patently in X’s best interests for the Mother to have sole parental responsibility.
Though a melancholy outcome, I am also satisfied that it is in X’s best interests for me to make the “no time and no communication” orders sought by the Mother. I will also make the passport and overseas travel orders so that X is free to travel overseas with the Mother in the future should the opportunity arise; it would not be in X’s best interests for the Father to be effectively able to “veto” any such travel either by declining to sign the necessary passport applications or withholding his consent. He would be likely to do one or both if only to spite the Mother, thus necessitating her to bring further proceedings. The Father could alternatively use his “veto” power to seek some other concession from the Mother about X. The orders I make will remove those risks and any associated stress for the Mother and for X.
POSTSCRIPT: THE PATERNAL GRANDPARENTS
In his closing submissions the Father contended that even if I make a “no time” order, I should still make a consent order for the Paternal Grandparents to spend time and communicate with X.
By way of background, on 8 July 2020 the Paternal Grandparents had applied to be joined to these proceedings in order to pursue limited time and communication with X in their own right. They were formally joined as parties on 14 September 2020.
On 16 December 2020, her Honour Judge Terry made interim orders for the Paternal Grandparents to spend some time with X, and have FaceTime communication with her on special occasions, including some protective injunctions. Those arrangements worked well and ultimately in May/June 2021 the Mother, the Paternal Grandparents and the ICL were able to successfully negotiate (and sign) a final consent order.
Pursuant to that draft order, the Paternal Grandparents were to spend time with X every third Wednesday of school term from after school until 6pm, for one (1) day during each of the end of term 1, 2 and 3 school holidays and for two (2) days during the end of term 4 school holidays. There was also provision for some FaceTime communication on special occasions. The Paternal Grandparents were restrained from bringing X into contact with the Father, permitting her to spend time or communicate with him, or discussing the proceedings with her.
But that order was never made. Why? Because the Father would not consent to it.
As the trial date approached, the Paternal Grandparents then filed a Notice of Discontinuance on 22 June 2021, observing at that time through their solicitor:
“I note that the [Paternal Grandparents] filed their Application in a Case which resulted in them being joined to the proceedings last year at a time when they were spending no time with X. They now spend regular time with X by agreement with the Mother. Arrangements are also agreed for the Paternal Grandparents to spend further time with X during the holidays. They have also had some FaceTime with X.
In the circumstances, the [Paternal Grandparents] have determined that it is not necessary for them to remain as parties to the proceedings”. [20]
In light of the Father’s closing submissions, the status of the draft consent order, and the Court’s power to make it, suddenly became “live” questions.
On the Mother’s behalf, Mr Bithrey indicated that, without wishing to be seen as “cute”, it could no longer be assumed that the Mother still consented to the order, particularly given that the Notice of Discontinuance since been filed. He said that he would need to obtain detailed instructions from the Mother as to that issue.
The ICL agreed, contending that the Court could no longer make the order by consent.
Having reflected on the matter, I respectfully agree with Mr Bithrey that it would not be a proper exercise of the Court’s jurisdiction to make the draft order by consent in circumstances where the consents in question were given nearly a year ago and where the Paternal Grandparents have since discontinued all extant applications.
In my view the interim orders in favour of the Paternal Grandparents are also automatically discharged upon my making final orders herein. Rule 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provide that on the making of final orders in a proceeding, any interlocutory order made pending further order is “automatically discharged and ceases to have continuing effect”.
As a matter of law, it thus falls to the Mother to promote X’s relationship with the Paternal Grandparents at her discretion.
ORDERS
For these Reasons I make the orders set out at the commencement hereof.
The Court will hear the parties on the question of costs.
I certify that the preceding two hundred and thirty (230) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 3 June 2022
[1] Exhibit 4
[2] Although she later largely adopted the ICL’s draft minute
[3] See the photograph which is annexure “A” to the Mother’s Affidavit
[4] The photograph which is annexure “C” to the Mother’s Affidavit shows where the hole was later patched up (left side of photograph)
[5] These are the two holes on the right of the photograph which is annexure ‘C’ to the Mother’s Affidavit
[6] Annexure “I” to the Mother’s Affidavit
[7] In the witness box the Father denied becoming belligerent with Police. I reject that evidence
[8] Exhibit 21
[9] Exhibit 23
[10] Exhibit 22
[11] Exhibit 19
[12] Exhibit 1, paragraph 40. See also paragraph 36
[13] Exhibit 1, paragraphs 41 & 49. See also paragraphs 75 & 78
[14] Exhibit 1, paragraphs 50 & 51. See also paragraph 70
[15] See paragraphs 70 & 71 of the Father’s Affidavit
[16] Mother’s Affidavit, paragraphs 151(j) & (k)
[17] As that term is defined in s 64B of the Act
[18] See the Full Court decision of Goode & Goode (2006) FLC 93-286
[19] Exhibit 24
[20] Exhibit 26
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