Maluka & Maluka
[2009] FamCA 647
•24 July 2009
FAMILY COURT OF AUSTRALIA
| MALUKA & MALUKA | [2009] FamCA 647 |
| FAMILY LAW – CHILDREN – equal shared parental responsibility – with whom a child lives – issues of credit – impact of domestic violence or family violence – unacceptable risk |
Family Law Act 1975 (Cth) ss 68B, 68C, 69ZP(3)
Evidence Act 1995 (Cth) ss 97, 128
| G and C [2006] FamCA 994 Adams v Adams (No 8 – Final Orders) [2007] FamCA 1083 Napier v Hepburn (2006) FLC 93-303 |
| APPLICANT: | Ms Maluka |
| RESPONDENT: | Mr Maluka |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | HBC | 733 | of | 2008 |
| DATE DELIVERED: | 24 July 2009 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Justice Benjamin |
| HEARING DATE: | 30, 31 March, 1, 2, 3 April & 5, 6, 7 & 8 May and 22 June 2009. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Ryan |
| SOLICITOR FOR THE APPLICANT: | Mary Anne Ryan |
| COUNSEL FOR THE RESPONDENT: | Mr R Blissenden |
| SOLICITOR FOR THE RESPONDENT: | Blissenden Lawyers |
| COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER | Mr P Fitzgerald |
| SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER | Butler McIntyre & Butler |
Orders
All previous parenting orders in respect of X (born … June 2001) and Y (born … June 2003) (“the children”) be and are discharged.
Ms Maluka (“the mother”) have sole parental responsibility for the children.
The children live with the mother.
The mother be permitted to do all things and sign all documents to change the surnames of the children, such name changes to be solely determined by the mother and without notice to the father.
At any time the mother be permitted to relocate the residence of the children to any place in the Commonwealth of Australia. The number of such relocations and place of such re-location to be solely determined by the mother and without notice to or permission from Mr Maluka (“the father”).
Pursuant to Section 68B of the Family Law Act, the father is restrained from:-
a.living with, spending time with or communicating with the children or either of them.
b.directly or indirectly approaching and/or communicating with the mother and/or the children (including but not limited) in person, by telephone, email, SMS, facsimile and/or letter;
c.going within 500 metres of any home or place where the mother or the children are or generally living or staying;
d.going within 500 metres of any school where the children attend, visit or are enrolled.
e.going within 500 metres of any place of employment where the mother may be working.
f.going within 500 metres of any other place where the mother and/or the children may be present.
Pursuant to section 68C of the Family Law Act, if the father breaches the restraint contained in paragraph 6 of these orders, the father be arrested without warrant.
In the exceptional circumstances of this case these parenting orders may only be varied by a subsequent order of a court exercising jurisdiction under the Family Law Act and may not be varied by a parenting plan.
Leave be given to the mother to provide to any school staff and/or school authority and/or State Welfare authority a copy of these orders, the reasons upon which these orders are based, the copy report of Dr H and the copy reports of Dr R.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment under the pseudonym Maluka & Maluka approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC733/2008
| MS MALUKA |
Applicant
And
| MR MALUKA |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This case is about violence.
Mr Maluka (“the father”) is alleged to have been violent, abusive and controlling of his wife, Ms Maluka (‘the mother”) and their two children, X aged 7½ and Y aged 5½. I am to determine whether those allegations are factual and if established to consider the impact of such violence and the risk, including future risk, of that determined behaviour upon the mother and the children.
The violent controlling behaviour alleged is not the violence that arises in the course of the high emotion surrounding a relationship break-up (not that any violence is acceptable). This alleged behaviour is claimed by the mother to have been a feature over the whole of her relationship with the father and which continued in various forms after separation. The nature of the allegations are so serious that they raised an issue as to whether the children should have any contact or communication with the father at all and whether the mother and children should be allowed to go into permanent hiding, including leaving Tasmania and changing the identity and herself and the children.
The alleged family violence and abuse of the mother and the children by the father includes serious assaults of the mother, stalking, vandalism to property of the mother and her present partner, intimidation, threats of violence (including a history of death threats), verbal abuse, controlling behaviour, isolation and dominance. The mother claims she and the children live in fear and terror of the father and have lived with that fear and terror for many years.
In Australia the community, the Parliaments and courts do not tolerate behaviour such that as is alleged by the mother. In 2006 the Family Law Act 1975 (Cth) (“the Act”) was amended with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006. The Explanatory Memorandum and the Act made it clear that children should be safe from being subjected to family violence and that this includes the harm caused to a child by witnessing family violence. Section 60K of the Act imposes an obligation on courts to take prompt action in cases of alleged family violence and abuse. In these proceedings the mother’s interim relocation application came to this court in February 2009 and the dispute was fast-tracked to a two week final hearing two to three months later.
The Family Court has always recognized the risk to children and spouses of family violence, abuse and the risk of abuse. In March 2009 the Family Court published Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged. These Best Practice Principles were developed:-
in recognition and understanding of the devastating effects of family violence and abuse on victims; in furtherance of the commitment of the Family Court to protecting children and parents from harm resulting from family violence and abuse[1].
[1] Preamble to the Best Practice Principles.
The Best Practice Principles were developed having regard to the Court’s Family Violence Strategy; the guidelines set out in the Court’s Magellan case management system; and to meet the legislative recognition of the place accorded to family violence under the Act.
Copies of the Best Practice Principles were given to the parties’ legal representatives during the hearing and I informed them that I would have regard to these principles including the matters that may be considered at the final hearing and in making findings of family violence or abuse or unacceptable risk of abuse.
The Best Practice Principles are a very useful checklist for parties, legal practitioners and judicial officers when dealing with allegations of family violence and/or abuse.
These proceedings commenced in July 2008. The mother seeks orders that she have sole and exclusive parental responsibility for the children, that they live with her and that she is permitted to relocate with the children to an unidentified address or addresses somewhere in Australia. She seeks orders that the children spend no time with the father and do not communicate with him in any way and orders to permit her to change the children’s surname and orders to restrain the father from contacting the children and/or her.
In effect she seeks orders for permission to hide herself and the children with the consequence that the father plays no further part in the children’s upbringing.
The father opposes those orders and seeks orders for equal shared parental responsibility, that the children live with the mother and spend time with him. Such time being each alternate weekend and each Wednesday evening during school term, for one half of school holidays and on other special occasions.
The mother asserts that she has been the victim of domestic violence over many years. She says this violence was physical, verbal, emotional and psychological and that it has impacted the children and her. She claims that since separation the father has stalked, intimidated and harassed her, including damaging her property and that of her partner.
The mother claims that the father made death threats against her during the course of their relationship as part of a campaign to force her to remain in that relationship and be subject to his dominance. She says that those death threats have continued since separation. The mother claims that she fears and believes that the father proposes to kill her and given the opportunity, he will do so.
The mother says that she believes an incident occurred in 2008 in which the father exhibited sexualised behaviour in the presence of Y and as a consequence Y has been traumatised.
The father denies any inappropriate conduct by him towards the mother and the children. The father also denies virtually all of the allegations of violence alleged by the mother and says that he is not threat to the mother and/or the children. He claims the mother is making these allegations to exclude him from the lives of the children.
Any statement of fact in these reasons is regarded as a finding unless the contrary is clear from the context of the statement.
BACKGROUND
The mother is aged 37 and the father is aged 33 and is in adequate health. The health of the parties was not in issue in these proceedings, except as to an allegation by the father that the mother was depressed and an allegation by the mother that the father’s personalty changed by an electric shock he suffered many years ago.
The parties married in September 1999. In September 2002 the father suffered an electric shock at work. The mother says that his behaviour to her has deteriorated since that time. There is no evidence of a psychiatric injury arising from that electric shock.
The parties spent the early part of their relationship living in Western Australia. In September 2006 the father moved from Western Australia to Tasmania. The mother and children moved to Tasmania in December 2006. The children commenced school at K in southern Tasmania in February 2007.
In March 2008 the father leased business premises known as the Z Premises in Hobart.
In June 2008 Y went missing in the surrounds of the Z Premises. It was at this time that the mother alleges that something happened with Y and that the father was responsible for that. The details of the alleged incident will be discussed later in these reasons.
The parties separated on 21 June 2008. The mother called the police for assistance in leaving the then family home. The police put in place a Police Family Violence Order against the father to protect the mother and the children. The mother claims she needed the order and the father said that the order was made without foundation.
In July 2008 the children were removed from their school in K and were later enrolled at E Primary School, in the Hobart area. On 17 July 2008 proceedings were commenced by the mother in the Family Court. At that time the mother filed a Notice of Child Abuse or Family Violence.
After separation two friends of the mother, Mrs L and Ms N, sought restraint orders against the father alleging that his behaviour was a concern to them. The father denies that his behaviour to them was such that orders were necessary. Separate restraint orders were made against the father in August 2008 protecting Mrs L and Ms N.
In August 2008 the father was charged with breach of the Family Violence Order protecting the mother. In early September 2008 the father pleaded guilty in the Hobart Magistrates Court to a breach of that order, the offence was established but no conviction was recorded.
Interim orders were made in the Family Court in early August 2008 that the father spend time with the children such time to be supervised by and at the a Children’s Contact Service. Those visits commenced on 17 August 2008.
In December 2008 the father was charged in the Hobart Magistrates Court with a further breach of the Family Violence Order and stalking. In early January 2009 the father was charged in the Hobart Magistrates Court with a further breach of the Family Violence Order and charged with a breach of his previous bail conditions. He was remanded in custody, where he remained until released in April 2009. The criminal proceedings had not been determined prior to the hearing of these parenting proceedings.
On the 16 January 2009 the mother filed a further Notice of Child Abuse or Family Violence in relation to allegations that the father had made death threats to her and possibly the children.
On the 12 March 2009 the mother filed a further Notice of Child Abuse or Family Violence in relation to the concerns she had about the circumstances of Y going missing in June 2008.
THE ISSUES
The issues are:-
(a)Making findings of fact to determine the existence and/or extent of family violence and/or abuse.
(b)to determine whether X and Y are at an unacceptable risk of abuse in the care and/or at the hands of the father.
(c)consequent upon those determinations, to determine parenting orders including parental responsibility, the nature and extent of time and communication, if any, that the children have with the father and whether the mother should be permitted to go into hiding by relocation and change of surnames. This involved a consideration of parenting orders if the violence and abuse and risk are determined to be less than asserted by the mother.
(d)to determine whether the father should be positively enjoined from any contact or communication with the mother and children.
(e)to determine whether there should be any period of time whereby the father is restrained from bringing proceedings to spend time with the children.
THE EVIDENCE
The mother relied upon her affidavits filed 17 July 2008 and 16 January 2009 and she gave additional oral evidence. She was crossed examined by Counsel for the father and the Independent Children’s Lawyer.
The mother gave evidence frankly and clearly. She listened to questions carefully and on my assessment endeavoured to answer them as frankly as is possible. Her evidence must be seen in the light of being subjective and from the point of view of a woman who is coming out of a long term violent relationship. This was a relationship where she was physically assaulted, abused, controlled, dominated, intimidated, subjected to threats (including death threats), isolated and since separation has been stalked and terrorised by the father.
The mother’s evidence is generally supported by that of her present partner Mr U and her friends Mrs L and Ms N. The evidence of these witnesses is reliable. I am generally satisfied that these witnesses were endeavouring to be truthful in giving evidence. The mother’s counsel initially sought to rely upon an affidavit of Ms G. This witness was not available for cross examination and as such the evidence was not relied upon by the mother and I had no regard to it.
The mother claims that she and the children were, and are, at risk of being harmed or killed by the father. She claims the children are at risk of ongoing emotional harm as a consequence of the father’s involvement in their lives. The mother says that the father has been violent, abusive and isolating of her since about the time of X’s birth in 2001. The mother says, and I accept, that the she had no or limited control over the family’s finances.
When the mother moved to Tasmania in December 2006 the family home in Western Australia was sold and the parties received approximately $87,000. I find that the father gambled a significant part of that money over the next eight to nine months. I accept that the mother managed to put aside about $8,000, from these funds, which were used for family purposes including mortgage payments and an eye operation for one of the children.
The mother gave evidence of the father hitting X on the head some years ago, when the child was aged about 2. The mother said that after that time the physical violence from the father was primarily directed at her. The father continued his approach of yelling and being verbally abusive of the mother and the children, particularly X.
The mother gave a history of the father screaming and yelling at her and the children on regular occasions during the marriage and described the father as having an explosive temper, which often preceded his physical assaults on the mother.
During cross examination and in submissions counsel for the father was critical of the mother’s asserting that she had “grossly exaggerated” the incident.[2] I do not accept that submission.
[2] At Paragraph 2 of the father’s written submissions.
The mother said that she has been regularly punched and hit by the father, in the beginning slapping over the head and then punches to the head. The mother said a number of assaults occurred at times when the parties were in a car. Her evidence included descriptions of times she was put out of the car to be left by the father, including once on a hot day when she was pregnant.
In November 2002, whilst the mother was pregnant with X, the father slapped her across the face. The mother says that the father was more physically violent to her when the babies were small. The mother sets out a history of violence in her affidavits. These included an alleged assault on 27 October 2005, an assault on Christmas Day 2003, an assault in August 2005 and occasions where the mother moved out of the home but then subsequently returned. The alleged assault in December 2003 is in part supported by the medical records of the mother’s then doctor. The incident in the car in November 2005 is supported by a complaint that she made at the time to the Police.
The mother claimed, and I accept, that whilst the parties had a car the father had control of that vehicle and limited the mother’s access to it.
The father denied that he has ever punched the mother but says on one occasion he slapped her once on the shoulder but this was in the context of a pushing and shoving between the parties. I do not regard his evidence on this point as reliable.
The father denies the violence and abuse except to a very limited extent. In submissions his Counsel conceded that some of the father’s denials could not stand scrutiny. When faced with overwhelming evidence the father minimises his culpability and/or blames others or events.
The father is an unimpressive witness. He is not frank in his evidence; he is glib and at times evasive. He endeavours to offer explanations which at times are hollow. At other times his evidence is frankly unbelievable. An example of this was his explanation of having his daughter with him in his arms to face a potential home invader who was angry, demanding a fight and who was armed with an axe or tommyhawk. The father said the child was safe!
The father’s evidence is generally unreliable and I do not accept him to be a witness of truth.
I am satisfied that throughout the time the parties lived together the father on regular occasions beat the mother, including at times in the presence of the children, and that the children were significantly affected by this. I accept the mother’s evidence that from time to time the children were screaming as the mother was being beaten by the father. I am also satisfied that the father was aware the children were present and had no insight (and continues to have no insight) into the impact of his violence and abuse upon the mother and consequently upon them.
I am satisfied that the father was verbally abusive to the mother at least from the time of X’s birth. He used foul language towards the mother and to the children and regularly left the mother and the children in an atmosphere of anxiety and fear.
The mother was cross-examined as to the occasions when she stood up to the father. I am satisfied that at the time she did stand up to him during the course of the marriage and suffered physical and verbal abuse as a consequence.
The mother ought to have left the father much earlier but for a variety of reasons, including those set out in Dr H’s report, the mother was unable or unwilling to do so. The Police were regular visitors at the parties’ home in Western Australia because of the father’s violence to the mother.
The mother says that the father had a gambling problem when they were living in Western Australia and he became involved with bikie gang members or associates.
In October 2006 the parties home was ransacked by a number of people associated with a bikie gang. This was a very violent and threatening attack where the father was invited to fight a man, who had an axe in his hand and in circumstances where both the children were at home and one was in the father’s arms. There was significant property damage as a consequence of this home invasion. The father concedes much of this in paragraph 35 of his affidavit and in a statement which is annexure “A” to the mother’s affidavit filed 17 July 2008.
I am satisfied on the evidence of the mother that she was isolated by the father and that he maintained a close watch on her. He checked her telephone and motor vehicle mileage.
The mother said that on a number of occasions she had little money with which to buy food for the children and for herself and I accept her evidence including that the father gambled monies which should have been applied towards the payment of mortgage instalments on their home.
In paragraph 36 of her affidavit filed 17 July 2008 the mother complained that the father used her family tax benefits for his own purposes, including gambling, and not for the benefit of the family. This is in circumstances where the basic needs of the mother and children were not being met. He focuses on his own needs rather than that of the mother and children. He endeavoured to conceal and minimise his waste of money as a gambler.
The father insisted that the mother have the family tax benefits paid into a joint account. Much of this money was then drawn from an ATM at the Wrest Point Casino and I infer that the money was gambled.
The children were invited by a friend of the mothers, Ms N, to be flower girls at her wedding. The father did not like Ms N and refused permission for the children to attend and participate in the wedding. The father said that he discussed this with the mother and that they jointly decided that the children should not go. I do not accept that evidence. The father had formed and implemented a view that the children should not attend the wedding. It was instructive to watch and listen to the father give evidence on this point where he endeavoured to persuade the court that this was a mutual decision but when pressed in cross-examination he became angry and said, as to the wedding “he was never going to go”. The father threatened to disrupt Ms N’s wedding if the children attended. This was a bullying, petty and self obsessed act by the father who put his own needs ahead of the best interests of his children. The children were excited when asked to be flowers girls and it would have been a good and positive experience for them. The father had little reason for them not to go, except in showing and exerting his control over the mother and children. It is also further evidence of the father’s isolation of his family. I accept and prefer the mother’s evidence in respect of this event.
The mother gave evidence of the father becoming angry and abusive toward Ms N at Mrs L’s house during a birthday party. In his submissions, counsel for the father was critical of the inconsistencies in the mother and Mrs L’s evidence as to the identity of the people who left the room. I accept the evidence of the mother and Ms N that the father was abusive to Ms N at a party and I accept the evidence of the mother and Mrs L as to that event, which was, that the father “was getting worked up”[3] with Ms N, “his hands were flying in the air and he was leaning right into her”[4]. The father was using “foul language”.[5] I am satisfied that this is indicative of the type of behaviour the father engages in when he becomes upset. Witnesses’ evidence is sometime different but the inconsistencies do not impeach the evidence of the mother, Ms N and Mrs L.
[3] At paragraph 9 of the affidavit of Ms L filed the 19 March 2009.
[4] Ibid.
[5] Ibid.
The mother’s evidence was that on regular occasions during the marriage the father said he would kill her, and from time to time those threats were sometime used to intimidate her to remain in the relationship. The mother claims that prior to separation, in January 2008, the father said words to the effect “don’t annoy me, I’ve just upped your life insurance”.[6] The father denied making any such threats and said that he had not taken out any insurance at all on the mother. I do not believe his denials as to the threats.
[6] At paragraph 37 of the mother’s affidavit filed the 17 July 2008.
The mother’s evidence was that her life had been threatened by the father many times during the relationship and after separation (including the approach to the mother with the finger across his throat in December 2008 and the threat he conveyed to Mr J in early January 2009). Even absent the evidence of the threat made in early January 2009, the consistent history of death threats by the father to the mother is clear. The death threat about the mother made by the father in early January 2009 is a continuation of his long term behaviour in that way. I accept the mother’s evidence as to the threats and I accept that the mother genuinely believes that the father will one day either kill her or endeavour to kill her.
In cross-examination and in submissions[7] the mother was criticised by counsel for the father for not outlining all of the violent events asserted by her (in particular those asserted to Dr H) in her affidavit. I do not accept the father’s assertions that the mother was disingenuous in that respect. These violent and abusive incidents occurred over long periods of time in circumstance where the mother was a victim of long term domestic violence. The mother’s disclosures were not in the chronological order and as such did not meet the expectations of trained lawyers. However, I accept that they represent her accurate recollections, bearing in mind that she is a victim of coercive, controlling violence who was in the process of escaping from that awful and terrifying existence. It is unsurprising that the mother’s recall improves as she takes control of her own life.
[7] At paragraph 8 of the father’s written submissions.
I accept the accuracy of the violent allegations that she asserted in her discussions with Dr H, including that the father:-
(a)called the children stupid or hit them across the head when they would do normal childhood things such as making a mess or accidentally breaking things.[8]
(b)became angry for no apparent reason.[9]
(c)lashed out and hitting [the mother] when she made an innocent comment.[10]
(d)kicked [the mother] out of the car for minor reasons or no reason at all. For example, [the mother] said that they were about to travel to Mt Field for a visit and suggested that they wear their jackets because it often rained there. [The mother] said [the father] did not want to because it was December so they would not need their jackets. When she suggested that they still might need their jackets, [the mother] said the [father] demanded that she get out of the car and he drove away.[11]
(e)Swore and yelled at [the mother] to get out of the car, and on one occasion left [the mother] and [Y] on the side of the road when the mother refused to drink chocolate milk in the car when the father instructed her to.[12]
(f)made threats to “kill someone one day ….and stopped an elderly lady, ….whom he was having a dispute, in her car and abused her in the street”.[13]
[8] At page 4 of Dr H’s report dated the 23 March 2009.
[9] Ibid at page 5.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid page 7, paragraph 6.
Allegation of sexual abuse
During the interview with Dr H the mother disclosed:-[14]
In June, before she left the marriage, [Y] was upstairs at the [Z Premises] with her father whilst she [the mother] worked downstairs. She said [X] was at school. She said [the father] came downstairs after a nap but did not have [Y] with him. When questioned, she said he had said he did not know where [Y] was. She [the mother] said she could not find [Y]. She then became frantic and panicked. She said she looked everywhere and called out to [Y]. She said [Y] was missing for about 20 to 30 minutes. She said she kept checking the places she had already checked, looking for her daughter. She felt as if she was going crazy. She then found [Y] curled up in a ball behind the chair. She said she was crying uncontrollably. She said she lifted the child into her arms and comforted her. She said [the father] did not seem happy to see her and lectured her and told her she was a naughty girl. She said she then left to go and get [X] from school and took [Y] with her. She continued to comfort [Y] that evening.
[14] Ibid at pages 8 and 9.
I accept the mother’s recollection of this incident. However, Y has made no allegations of abuse arising out of that incident, but suffered from some nightmares.[15] Some months after the incident, and after separation of the parties, Y said that the father had done something “yucky”.[16] The mother now believes that the father may have abused Y. There is no other evidence of inappropriate sexual behaviour. I am not satisfied that the alleged incident is sufficient to meet the level required for an unacceptable risk of sexual abuse. The father says he chastised the child about an indiscretion. Having regard to the father’s history of verbal abuse combined with his yelling, his self obsession and lack of insight, I infer that he verbally abused the child to the extent that she was afraid for her wellbeing and hid for some 20 to 30 minutes and that she was in the state claimed by the mother, when found. Prior to this time X had been the main child victim of the father’s verbal abuse and this time the full force of his anger and vitriol was directed at her and terrified Y.
[15] Ibid at page 9.
[16] At paragraph 12 of Annexure “A” of the Notice of Child Abuse of Family Violence filed the 12 March 2009.
The mother has been criticised for passing some information on to the children. There is some lack of insight on the part of the mother in relation to this issue. Whilst the mother can be mildly criticised in that regard it should be seen in the context of the domestic violence perpetrated upon her by the father and where she endeavoured to shield the children from the parental conflict as much as was possible in the circumstances.
When the mother left the home, in June 2008, she obtained a Police and Family Violence Order.[17] It is not an issue that the father was served with the order on about the 3 July 2008.
[17] Made in the Magistrates Court in Hobart on the 21 June 2008.
The mother did not give the father notice of her intention to separate but arranged for the police to assist her. The mother asked the police to help and she and the children moved to Mrs L’s home.
The mother had hoped that things would calm down and that an arrangement would be entered into whereby the children could spend some time with the father provided it was not overnight and he was responsible for the children.
On 6 August 2008 the mother was told something and saw the father running towards her vehicle. The mother became frightened. The mother’s evidence was that she ran back to her car and the father was banging on the door, calling out loudly and creating a scene. The father gave a much more benign explanation and admitted to breaching the order. On balance I prefer the mother’s explanation of that event.
In early August 2008 interim Orders were made in the Family Court enabling the father to spend supervised time with the children at the Contact Service. The mother complained that the father was often in the vicinity of the Contact Service before and after the visits.
The father denied this allegation and also relied upon photographic evidence as to where he parked. I do not doubt that the photographs were accurate however, I am satisfied that the father made himself visible to the mother at the Contact Service, as part of him stalking the mother. I prefer the evidence of the mother.
In submissions, much was made by the father’s counsel about the children’s apparent enjoyment of the time they had spent with the father at the Contact Service. From the evidence of Dr H it could be that such enjoyment was what it was, children enjoying time with their father or alternatively it could be that the children were conditioned to present that enjoyment as a façade.
As to why the children still displayed affection to the father, the mother believes that the children had been taught to display affection to the father even after he had been abusive to them. She gave a number of examples including one where the father had humiliated X at Christmas 2007 in an appalling way and when the child still went and cuddled and kissed her father goodnight. She said that the father’s emotional abuse of the children and physical and emotional abuse of her was a pattern of conduct and I accept her evidence in that regard.
Having regard to this evidence, the findings about the father’s abusive and violent behaviour to the mother and children and the evidence of the supposed enjoyment by the children of their time with the father at the Contact Centre is more likely to be a façade rather than real.
In submissions counsel for the father was critical of the mother’s inability to accept the happiness of the children at those visits or see anything positive in the father’s relationship with the children. The mother was the victim of violence and was concerned that the father may continue his efforts to conceal and continue such coercive violence. As such the mother’s scepticism and concern about the father’s visits with the children are understandable.
During the hearing the Counsel for the Independent Children’s lawyer was critical of the mother for not having previously disclosed full details of the abuse and violence and Counsel for the father submitted the mother’s evidence was “implausible.” I reject those submissions. As I have said earlier, the mother is a victim of domestic violence who is coming out from the shadow of violence but she remains fearful.
Having regard to the evidence and findings of the violence perpetrated on her, it is unsurprising that the mother was concerned about the bona fides of the relationship between the children and the father.
The mother was cross-examined as to why her attitude in relation to the father having supervised time with the children changed between the time of the Children and Parents Issues Assessment by a Family Consultant in November 2008 and the interview with Dr R in December 2008. Initially the mother sought supervised time between the children and the father, this later changed to no time or communication. As to that change the mother was subjected to threats, intimidation and stalking in December 2008 and this was followed by a threat to her life made by the father in January 2009. That is a sufficient explanation. However, in addition the enormity of what she and the children endured over the years of the relationship became clearer to her.
In terms of the father he is cunning in the way he presents himself to others (such as Mrs L) outside his immediate family and denies and conceals his violent, controlling and abusive behaviour.
In October 2008 the mother began doing work experience, at M Business, with Mr K at P Road, P. Mr K gave evidence that the father was not a regular visitor of his business, albeit it had only been a few weeks before the mother started her work experience with him. However, on up to two occasions the father attended at the business, allegedly to speak to Mr K (who the father knew from gambling and previous associations with businesses). The father knew that he ought not to approach the mother. The father was asked to leave by Mr K on one occasion so the father would not run into the mother, and on another occasion the father drove and walked slowly past the business. The mother says she has seen the father drive past the business and walk slowly past the business twice. She said he “glared”[18] at her. The father’s evidence was he was driving along P Road to H to do “personal business” at a shop.[19] The father said it was “approaching lunch time and he was hungry” and decided to call in to see Mr K.[20]
[18] Annexure “H” of the mother’s affidavit filed 16 January 2009.
[19] At paragraphs 37 and 38 of the father’s affidavit filed the 3 March 2009.
[20] Ibid.
The father endeavours to place an innocent explanation on these visits, I do not believe him. This was part of his concerted campaign to terrify, intimidate and stalk the mother.
The mother gives evidence that on the 12 December 2008 or thereabouts, when she was driving to her work experience the father (then on foot) approached her car when it stopped or slowed at an intersection and she said that the father made a threatening gesture to her with a finger across his throat to clearly indicate that he would “cut her throat or you’re dead”.[21] The father denied this occurred. I prefer the evidence of the mother. The father has been charged with a breach of the restraint order in relation to this behaviour, it has not yet been determined in the criminal jurisdiction.
[21] At paragraph 26 of the mother’s affidavit filed the 16 January 2009.
In early December 2008 the mother found that the paint on her car had been scratched. I understand this is called ‘keying a car’. There had also been an attack on Mr U’s car on either the 14 or 15 December 2008 where a tyre was slashed. On 16 December 2008 the mother was told by Mr U that he observed someone who looked like the father damaging his car tyre. As I have indicated elsewhere in these reasons I accept the evidence of Mr U that the father, in the company of another person, damaged the tyre on or about that date. There is difference between the dates given by the mother and Mr U’s dates however it is of little significance in terms of the regular events occurring at that time.
As a consequence the mother began hiding her car and said she was in a very “anxious and hyper alert condition”[22] and was very “scared”.[23]
[22] Ibid at paragraph 31.
[23] Ibid.
The mother says she reported the December 2009 incidents to the police and the father was eventually arrested on the 19 December 2008 and was charged with a breach of the Family Violence Order.
On Christmas Day the mother and Mr U observed two men lingering outside their home. The mother says the two men drove off when Mr U went outside. Neither the mother nor Mr U recognised the men and did not know whether they were in any way connected with the father. The mother later found that the padlock on her front gate had been interfered with.
On the 5 January 2009 the mother went to collect her car from, where she had hidden it, in a neighbouring block of flats. She says she found that her tyres had been let down and upon having the tyres repaired found the valve had been released and nails had been inserted into the rear passenger tyre. The police were called and the area was searched. The mother believed that her car was the only one in that area at that time which had been vandalised.
Later that day the mother was advised by police to move out of the home as a consequence of threats allegedly made by the father. The father was remanded in prison from that time until April 2009.
The mother says police officers, including a Sergeant B, attended her home on that evening and the Sergeant told her that he had received information which had caused him to be seriously concerned for the safety of herself and the children. As a consequence of that information the mother and the children moved into accommodation provided by a Victims Support Unit with the assistance of the Police.
The mother says she was told by the police that the father had made a threat to kidnap the children and shoot her. The mother says she was subsequently told that the father had also threatened to shoot one of the children in front of her, shoot her and then shoot the remaining child. This turned out not to be a correct version. The mother was criticised for this expanded version of what was said. At this time the mother lived in fear of the father, the information she received was generally verbal and second hand. That process has the capacity to distort or even change the story.
The mother’s evidence was that she was and is scared of the father, including post separation. After separation the mother spent her weekends out of Hobart. She said she keeps the front and back doors locked and will not allow the children to play in the backyard except when she is present. Further when she is working she takes steps to have people around who can protect her. The mother says that when she shops at the local shopping centre she has spoken with the security guards, because of her fear of the father and fears for her safety. I accept this evidence.
From all of the facts I am satisfied that if I make an order that the father spends time with the children it will make the mother’s capacity to parent the children difficult, if not impossible. The mother says, and I accept, that she continues to live in fear of the father.
Evidence of Mrs L
Soon after the mother arrived in Tasmania she and the father met Mrs L. Mrs L provided an affidavit[24] in support of the mother’s case and was cross-examined.
[24] Filed the 19 March 2009.
Mrs L’s evidence was that she initially got on well with the father but as she saw more and more of his behaviour to the mother, her initial positive view of him diminished. Mrs L presented as a forthright witness who had no particular axe to grind, despite assertions to the contrary on behalf of the father. My assessment of Mrs L was that she endeavoured to provide accurate and straight forward evidence. I generally accept her evidence as reliable. Mrs L frankly conceded that she does not now hold a high opinion of the father.
Mrs L says that in June 2007 the father spoke harshly to X and X appeared frightened. Mrs L said that such was X’s obvious fear and concern from the father’s harsh words that she thought the child may have wet herself.[25] I accept that evidence of Mrs L.
[25] At paragraph 8.
In September 2007 Mrs L had a surprise birthday party. At that party the father lost his temper and was abusive and used inappropriate language to the extent that a number of people left the room. The evidence of the mother and Mrs L was that the behaviour of the father was confrontational and effectively dis-inhibited in terms of its impact on others. I accept that evidence.
Mrs L said that the father was often “cold and nasty”[26] to the children and was demanding of the mother.
[26] At Paragraph 11.
The mother and Mrs L gave evidence that the father controlled the time the mother was away from the home and monitored what she was doing. I find that the father endeavour to control the mother in the ways claimed by Mrs L and the mother.
There was an issue between the parties as to whether the father said aggressively to the mother in early 2008 “don’t think about it, and don’t think about leaving me”[27] in response to a discussion which took place between the father, mother and Mrs L, about couples separating. The father denied that this conversation took place. While there may be some issues about the date of the conversation I am satisfied it was as asserted by the mother and Mrs L. This threat needs to be seen in the context of the earlier findings of the threats to the mother should she try to separate.
[27] Ibid at paragraph 18.
According to Mrs L it became difficult for the mother to see her towards the end of the separation in June 2008 because of difficulties between the mother and father. I accept that evidence. The father endeavoured to isolate the mother from her friend, this was particularly the case at the time preceding the end of cohabitation.
The father’s reaction to the mother leaving him was extreme. Mrs L sets out in her affidavit details of the father’s uninvited attendance at her residence on 24 June 2008. She also set out other matters upon which she sought and obtained a restraint order against the father.[28] I have commented upon this elsewhere in these reasons.
[28] Ibid at paragraphs 3,4,5,6 and Annexure “D”.
I accept the evidence of Mrs L as being accurate and reliable. I also accept her evidence that the children seemed “a lot happier and less anxious”[29] particularly since the father has been incarcerated.
[29] Ibid at paragraph 25.
Evidence of Mrs A
Mrs A is a process server who asserted that she served several applications for a restraint order upon the father on 3 August 2008.[30] Mrs A recognised the father and I am satisfied, on balance that she served him with those applications and I prefer her evidence to that of the father.
[30] Exhibit M7.
Evidence of Mr D
The Independent Children’s Lawyer issued a subpoena to Mr D who ran a business alongside that of the father when the father operated the Z Premises business. Mr D’s parents own the building and they had operated the business, which was now being operated by the father. Mr D ran the adjacent shop business.
Mr D worked at the shop business. The set up of the businesses was that they were in the same building space. As such the father, the mother and Mr D worked almost side by side. Mr D said that initially he had a good relationship with the father. This friendly relationship had developed over some months before the father took over the business from Mr D’s parents. The friendly nature of their association diminished over the time the father worked in the business. The father and Mr D now have a poor relationship.
The father worked at the Z Premises business from about February 2008 to July 2008. His business was run in the same building and side by side with Mr D’s shop business. In this environment Mr D was able to observe the father much of the time he was at the business. Mr D said that he had a lot to do with the father, the mother and the children.
Mr D said that the father “yelled a lot … over twenty times”. Mr D said the children often looked worried or wary. His evidence about the impact of the father’s behaviour whether it be yelling, speaking sternly or behaving abruptly with the children was quite chilling in terms of its impact upon the mother and children. His evidence was that the children seemed scared or terrified of the father.
Mr D also said that the mother looked uncomfortable around the father and ninety five per cent of the time Mr D observed that she appeared “edgy and scared”. Mr D gave evidence of the mother coming down stairs in June 2008 when Y went missing. Mr D recalls that Y was missing for about forty five minutes to an hour later and that both parents were relieved when she was found.
The evidence given by Mr D was clear and he was not shaken despite extensive cross-examination. I accept his evidence as being generally reliable and I prefer it to the evidence of the father where there are differences.
Evidence of Dr R
Dr R, a psychiatrist, prepared a report on 24 December 2008 (“the first report”) and an addendum report on 6 March 2009 (“the second report”). There is no issue as to his qualifications.
He provided a report as to the mental heath of both the father and the mother. As to the mother he said:-[31]
She had no formal thought disorder, suicidal ideas or perception disturbance. Her cognition was grossly intact and her insight and rapport were fair.
[31] At page 3 of the first report.
Of the father he said:-[32]
Mental state examination revealed a thin man of slight build. He had a shaven head. His speech was soft and his affect was flat and restricted. He was a little irritable at times. He reported recent low mood in the context of separating from his wife and children.[33] He denied symptoms of psychosis, anxiety or bipolarity of mood. He denied current suicidal ideas although there had been fleeting ideas soon after separation. His cognition was not formally tested but grossly intact and his insight and rapport were fair.
[The father] presented in a suspicious and controlled manner. History taking was not easy as he revealed little content spontaneously. He tended to minimise the reasons for separation from his partner and the potential for any aggression or violence. Despite drawing on accounts to the tune of $50,000 [the father] denied he had a gambling problem.
[The father] appears to have suffered an Adjustment Disorder with depressed mood following the breakdown of his marriage. Treatment under his general practitioner was commenced but not continued and there has been some improvement with the passage of time. Pathological gambling appears to be present despite [the father’s] reassurances that he does not suffer a problem. One could speculate that this amount of gambling has led to considerable tension within his relationship and negative emotions in himself. Anger and aggression may well have been the outcome at the time of problem gambling and a failing business.
[32] Ibid at page 6.
[33] The interview with the father was on 5 November 2008 about 4 months after separation.
Dr R observed that the father presented in a suspicious and controlled manner. In his first report Dr R diagnosed that the father suffered an adjustment disorder together with depressed mood following the breakdown of his marriage. He said that pathological gambling appears to be present and that anger and aggression may well be outcomes at that time.[34]
[34] At page 6.
In his first report, Dr R opined that the father’s depressive symptoms would significantly impact on his parenting.[35] He went on to recommend that the father seek assistance with his problem gambling and noted that the father had sought appropriate help for mood symptoms.
[35] Ibid at page 7.
However, in his second report Dr R said that he had some concerns about the father being vulnerable, at this time, and there would be an increased potential for the father to act on threats.[36] I accept this evidence.
[36] Ibid at page 2.
Dr R did not believe the electric shock suffered by the father in about 2002 could bring about a change of his mental state.
The father, when he spoke with Dr R, denied any violence had occurred during the relationship (except pushing and shoving). Dr R said that the father minimised his problems and said the father has an impulse control disorder which is consistent with the history provided by the mother.[37]
[37] At page 1 of the second report.
The assessments of the father by Dr R were at times somewhat benign. This no doubt arose from the history provided by the father. I am satisfied that the father provided an incomplete and at times inaccurate history to Dr R. As such the assessment is not reliable. This is not in anyway a criticism of Dr R, who applied his unchallenged expertise to the history and then provided his assessment. Without an accurate history expert reports can be impeached.
Evidence of Dr H
Dr H gave evidence in accordance with her report dated 23 March 2009. Dr H is a clinical psychologist and there is no issue as to her qualifications. She prepared a detailed and carefully considered report. Bearing in mind my findings of fact as to the history of violence, abuse and controlling behaviour I am satisfied that with the conclusions of Dr H, which includes:-[38]
In summary, it is possible that there is a risk of future violence against [the mother]. It is also possible that she over exaggerates that risk because of the influence of her personality characteristics and the need to rely on the advice she receives from others. It is possible that her views are influenced by the opinions expressed by others. Therefore, it may be the case that she is scared of [the father] and feels threatened by his presence.
[38] At page 27 of Dr H’s report.
Dr H took an extensive history from both parties; notwithstanding this effort she did not have the whole of the evidence of the violent, controlling behaviour (both before and after separation) as did I. I had the advantage of reading, seeing and hearing each of the parties and other lay witnesses. As such my knowledge of the facts in this case is far more extensive than that of Dr H.
Dr H observed that the mother has some tendency to demonstrate dependent personality characteristics and as such she tolerated the abuse and maltreatment metered out to her by the father. She describes the mother as “presenting with strong dependent personality traits”.[39]
[39] At page 26 of Dr H’s report.
Dr H says that to manage her anxiety the mother needs someone stronger to rely on and as such was tolerant of the abuse. Dr H considers that such a dependent person will avoid a relationship break down, but when the relationship does break down they will re-partner as soon as possible. Dr H noted that this was the behaviour of the mother in remaining so long in the relationship with the father and then moving into a relationship with Mr U.
Dr H’s evidence made it clear that whilst the mother has traits of a dependent personality syndrome the mother does not have the syndrome itself. Dr H reports, as a consequence, the mother is “likely to be easily influenced by the opinions of others”[40] and went on to provide an example of the mother being guided by the advice of friends and “having to reconcile the discrepant advice that she received”.[41] Dr H said:-[42]
[The mother] will take her cues from those around her and on whom she relies. Therefore, it may be the case she has been influenced by others. However, this, in itself, would not negate the risk to her if a threat existed.
In summary, it is possible that there is a risk of future violence against [the mother]. It is also possible that she over exaggerates that risk because of the influence of her personality characteristics and the need to rely on the advice she receives from others. It is possible that her views are influenced by the opinions expressed by others. Therefore it may be the case that she is scared of [the father] and feels threatened in his presence.
[40] Ibid.
[41] Ibid.
[42] Ibid and at page 27.
The mother does not accept the impact of the traits to the extent suggested by Dr H. On balance I prefer the views of Dr H.
What is significant, in terms these finding is that the mother continues to seek orders to hide herself and the children from the father. This means separation from Mr U, when on the evidence of Dr H (and for that matter the mother) such separation will not be easy. This is indicative of the level of fear felt by the mother. On the evidence such fear of the father by the mother is well founded, having regard to the findings of his abusive and controlling actions both before separation and (more worryingly) after separation. The father continued his violence, stalking and intimidation after separation, in the face of a violence order and including an escalation of that behaviour after his conviction for breach of the family violence order.
In submissions counsel for the father was critical of the mother, asserting she had exaggerated or made up the alleged plan of the father to take the mother, and children, to a warehouse in K and shoot them. Counsel submitted it was “either an embellishment by the father or was a result of the incident being talked up’[43]. I do not accept this submission. I am satisfied that there was an exaggeration about the warehouse, by the mother. However, this is an example “Chinese whispers”[44] where the mother may have said things particularly in light of the terror the mother had endured at the hands of the father over many years. This father who forced his mother and children to endure his reign of terror cannot then complain that his continuation of threats to life may be exaggerated from a threat to the mother to a broader threat to her and the children.
[43] At page 29 line 39 of the Transcript of Proceedings dated the 7 May 2009.
[44] Is defined in the Oxford Dictionary (2nd Edition) as a game in which a message is distorted by being passed around in a whisper.
Dr H also interviewed the children. In relation to Y she recalled her father being angry and using the “F” word.[45] Y recalls being scared and hiding from her father and that his behaviour at the Contact Centre was not the same as normal. Y said she “would choose not to see her father, even if someone was present”[46] and looking after her and making sure that the father would not become angry.
[45] Page 17 of Dr H’s report dated the 23 March 2009.
[46] Ibid.
Dr H observed that X was cautious child, “who ……. gulped her breath.”[47] X, like Y, also recalled the father being an angry person and using the “F” word[48] when he was angry. She also said that her father could be “mean and nasty”[49] and she did not feel comfortable seeing her father at the Contact Centre. She said her father’s behaviour at the Contact Centre was not consistent to the way he “usually behaves when not at the Contact Centre”.[50]
[47] Ibid at page 16.
[48] Ibid.
[49] Ibid.
[50] Ibid.
I take it, from this evidence, that the views of the children were that whilst the father behaves himself at the Contact Centre that was not how he normally behaved himself and that the children had no pressing desire to see him bearing in mind the regime of abuse of which they have been forced to suffer for most of their lives to date.
Dr H gave evidence that the children have learnt to show the father affection and act in an apparent loving way as a defence mechanism. Dr H reported that this was not unusual in children who have been victims of verbal intimidation and abuse.
Dr H discussed the clinical factors considered to be dynamic on individuals where there is a risk of violent behaviour.[51] She said the risk in this case was moderate.[52] On my findings of fact, there is unacceptable risk of physical and emotional abuse and violence to the children and the mother by the father.
[51] Ibid at age 24.
[52] Ibid.
There are a number of levels in which to consider the evidence of Dr H, firstly my task is to assess what is the risk of ongoing emotional abuse or violence to the children. I believe the children are at risk of being physically hit by the father when he loses his temper and I am satisfied that the father is insensitive to the needs of the children when he is violent and abusive to the mother. The children are at the risk of seeing, hearing and being exposed to violence in the unsupervised care of the father and perhaps at times in the supervised care of the father. He is a violent individual who has never admitted let alone addressed his predisposition to anger and violence.
In addition the father has made a number of threats to kill the mother. I am satisfied that there is an unacceptable risk that the mother and/or children will be harmed by the father.
Dr H says when she spoke with the father when preparing her report the father attempted to intimidate her and control the interview by:-[53]
…….facing me with a look of challenge on his face. He then walked away and into the interview room. When I arrived there I introduced myself. The table was set with a chair at either end. I went to sit at one end and [the father] brought his chair close to me and on the adjoining side of the table. At times throughout the interview, [the father] places him[sic] hand with the palm flat against my notebook or held my notebook in place with his fingers pressed firmly against it.
At times during the interview, [the father] diverted my attention away from the questions I had put to him, talking about other things. When his attention was brought back to the question, he would again divert attention away from the question. When pressured, he would make a vague attempt at addressing the point. In addition, my attempts at putting a question to [the father] were sometimes met with him speaking over the top of my question about a different issue. My attempts to repeat the question were met with the same strategy. These behaviours are consistent with the attempts to control the flow and content of the conversation.
Finally, there were times during the interview when it was apparent that [the father’s] psychological arousal increased, in the manner of a stress or anger response. The episodes coincided with questions about matters that would cause him to be angry, such as claims by others of his wrongdoings. [The father] acted in a manner that suggested that he was trying to control his natural inclination to respond aggressively to the discussion.
[53] At pages 17 and 18 Dr H’s report dated the 23 March 2009.
I accept Dr H’s evidence with regard to her observations of the father and find that during the interview the father adopted a competitive stance and endeavoured to intimidate or control Dr H in terms of her preparation of her report. Further, I find from the evidence of Dr H and Dr R that the father has impulse control and general control impulsivities. The father does not accept he has a problem. Because of this he will not undertake any counselling to modify his behaviour or have any motivation to deal with that problem. As a consequence I find that there is a high risk of violence to the mother and the children.
Evidence of school principal
Evidence was given by a school principal Mr NY, as to the children’s enrolment in a local primary school.[54] He said that on occasions he was concerned that the mother spoke about what was happening to her in the presence of the children. This is consistent in what was recorded at the Contact Centre. Whilst the mother ought to be criticised for this, her behaviour should be seen in the context of her being subjected to domestic violence over a long period of time.
[54] Document filed pursuant to Rule 24.01 (1)(h) of the Family Law Rules.
The evidence of Mr NY was that the children have managed the change well and have settled into their new school. I infer from this that the change from K to E was managed well by the mother and that another change of school will not have a long term adverse effect upon the children.
Evidence of Mr U
Mr U gave evidence in accordance with his affidavit filed 4 February 2009. He gave his evidence in a straight forward way and was not impeached by cross-examination. There were some differences in dates, and some areas where his evidence was different from the mother’s, but generally the evidence was consistent. His evidence was considered by me in the light of his intimate relationship with the mother.
He said that initially he considered that there had been a positive relationship between the children and the father, but that this relationship deteriorated over time. At the time of the break-up of the relationship of the mother and father in June 2008 he regarded himself as a friend of both. Clearly his relationship with the mother and father changed following separation.
During submissions Mr U was criticised, by counsel for the father, as being ‘unreliable and untruthful’[55] in terms of a telephone conversation which apparently occurred between the mother and himself on the day of the break-up. I am satisfied that Mr U’s evidence was reliable.
[55] Paragraph 1 of the father’s written submissions.
Mr U gave a number of examples of the father’s temper and poor behaviour. These included his abuse of a bank officer set out in paragraphs 8 and 9 of his affidavit. That evidence is challenged by the father and to some extent bank records. In submissions counsel for the father was critical of Mr U for failing to mention this incident to Dr H. Counsel argued that Mr U’s evidence when read in conjunction with Exhibits F 8 and F 9 raised “sufficient objective doubt as to the veracity of his evidence and that the incident didn’t occur”. I do not adopt that submission and I accept Mr U’s evidence in that regard.
Mr U gave Dr H examples of the fathers conduct in terms of :-
(a)the difficulties he observed in the mother and father’s relationship. [Mr U] said he became aware of “coolness”[56] between [the mother] and [the father]. He said [the mother] was friendly but [the father] would become annoyed when she talked to customers.
(b)[the father] having an argument with the “elderly female of the [Z Premises business] about non-payment of rent………..and then pushed the elderly woman down two stairs”.[57]
(c)his observations of [the father] becoming angry. He could “clearly recall three occasions when [the father] had lost his temper. He gave an example of [the father] “freaking out”[58] when a man with a motor bike helmet came into the shop. Mr [U] said he later found out the man was “known”[59] to [the father] but he attributed his angry reaction to [the father’s] fear of “biker gang members he associated with in Western Australia before moving to Tasmania”.[60] Mr [U] claimed [the father] had told him about his associations with these people.
(d)the father becoming angry at three men, who Mr [U] described as “feminine”,[61] came into the shop and laughed while placing an order. Mr [U] thought [the father] had become angry because be believed the men were laughing at him. Mr [U] said that although, the men were apologetic and explained they were not laughing at the father, …, the father did not apologise.
(e)an angry interaction between [the father] and a delivery man. Mr U says [the father] believed the goods were the wrong price and became “verbally abusive towards the delivery man”.[62] The argument escalated until [the father] “threw the products into the street, despite the fact that he needed the products and despite the fact that it was not the delivery man’s fault”.[63]
[56] Ibid at page 11.
[57] Ibid at page 12.
[58] Ibid at page 11.
[59] Ibid.
[60] Ibid.
[61] Ibid at page 11.
[62] Ibid at paragraph 7 page 11.
[63] Ibid.
Mr U was criticised, by the father’s counsel, for not having all the examples of the father’s poor behaviour in his affidavit and having disclosed them to Dr H.
This is a case where the incidents were constant and regular. I do not adopt the father’s criticism of Mr U in this regard. Mr U provides significant corroboration of the explosive and abusive behaviour of the father towards the mother, children and to other people.
Mr U gives evidence of the father taking funds from the business which, on all of the evidence, I find the father then spent significant amounts at the Casino and not for the needs of the mother and children.
I accept Mr U’s evidence set out in paragraph 12 of his affidavit of the father abusing and belittling the mother. I also accept his evidence that the father refers to the mother as “her”[64] and says that he “wants to get rid of her”.[65]
[64] At page 2 of Annexure “E” of the mother’s affidavit filed 16 January 2009.
[65] Ibid.
Mr U gave evidence, which I accept, of an occasion in May or June 2007 when Y dropped her glass and the father screamed at her to the extent that she was terrified. His evidence, which I accept, was that when the girls inadvertently woke the father he screamed, yelled and swore at them. The impact of this was that the girls came downstairs shaking and crying and running. Mr U said X in particular looked scared and was “white as a sheet”.[66]
[66] At paragraph 15 of the affidavit of Mr U filed the 4 February 2009.
Mr U was in an invidious position after separation of having a friendship with both of the parties when clearly there was a developing relationship between he and the mother. The mother and children eventually stayed at Mr U’s flat in the Hobart area, as flatmates.
In late August or early September 2008 Mr U, the mother and the children moved from the flat to a house in E. The evidence of the mother and Mr U was that the father knew where the house was and was driving around the block. Mr U said:-[67]
[the mother’s] reaction to this was to become quite anxious. It really seemed to freak her out. She felt he could be anywhere and she would not know.
[67] Ibid at paragraph 25.
Mr U’s evidence was that after the move to E the frequency of the telephone calls from the father intensified and became “overwhelming”. As a consequence the mother and Mr U moved back to the Hobart area where the mother believed there was better security. I accept the evidence of the mother and Mr U in this respect.
Mr U said that when the father was first arrested in August 2008 for breach of the violence order, he [Mr U] received a telephone call from the father. There is no issue that this telephone call was made. However, there was an issue about what was said. I prefer the evidence of Mr U rather than the father. This is not withstanding the comments made in a report to the Department of Health and Human Services.[68]
[68] Exhibit F 3.
Mr U’s evidence was also that the father said he was not constrained by the family violence order and that the father believed he could “now do whatever he wanted”.[69] The further evidence of Mr U was that his observations of the father, the father’s comments and behaviour at that time were such that Mr U could reasonably conclude that the father was obsessed by the mother, abusive of the mother. I accept such evidence.
[69] Ibid at paragraph 29.
Mr U and the mother developed a personal relationship in mid September 2008 which eventually developed into an intimate relationship which relationship continued to the hearing. I am unsure if it continued to subsist between the hearing days in April/May 2009 and the date of the orders.
In submissions, Mr U was criticised by counsel for the father for stating to Dr H that the father obtained new telephone numbers and telephones and that he and his friends called every number in an attempt to find the mother. Counsel submitted his evidence was “implausible. No one could expect to achieve any form of successful contact in this manner”.[70] I do not accept this submission. Text messages passed between the father and Mr U during this time. I am not satisfied that the father has frankly disclosed all of his telephones, telephone numbers and records to the court. I am concerned that many calls were made from numbers or telephones other than the father’s primary telephone.
[70] At paragraph 2 of the father’s written submissions.
Mr U’s evidence and that of the mother, shows the depth of the mother’s concern about the threat posed by the father. The mother and Mr U are in a close intimate relationship but the mother will move away from that relationship out of need to protect her children and herself. Mr U said he will not relocate for a number of sound reasons.
Mr U does not think highly of the witness, Mr J (whose evidence is discussed later in these reasons), and believes that Mr J is endeavouring to form an intimate relationship with the mother. Mr U denied conversations with Mr J in relation to the alleged death threat made by the father towards the mother, through Mr J.
Mr U has observed the father’s interest in pornography and his demeaning of women and is of the belief that the father is capable of inappropriate action towards children. This is of little weight in the context of this case which is essentially about violence and sexual abuse is not a substantial feature in the issues to be determined.
Counsel for the father submitted that Mr U’s belief that the father has exposed Y to something of a sexual nature is unsubstantiated. The father’s Counsel submits that when cross examined on why this information was not in his affidavit material Mr U’s evidence was that he thought it was being investigated by the police. Counsel for the father submits there is no “evidence that any such investigation is ongoing”.[71] That submission is factually based but the concerns of the mother and Mr U but must be seen in the light of the fear and concern generated in the mother by the father’s violent and controlling behaviour.
[71] At paragraph 5 of the father’s written submissions.
I give Mr U’s evidence no weight in terms of the allegations of unacceptable risk with regard to Y and the children generally in so far as it relates to sexual abuse.
I accept the evidence of Mr U that he received a telephone call from the father describing the mother and what she was wearing in a shop in about August/September 2008. I accept the evidence of Mr U that he has received a significant number of telephone calls and messages, from the father, enquiring about the mother and endeavouring to arrange meetings with the mother with only Mr U or some other third party. I accept his evidence that he has received numerous text messages and many connected calls from the father trying to get Mr U to help him talk to the mother. This is evidence of the father stalking the mother, which stalking continued until at least December 2008.
In submissions counsel for the father argued that Mr U’s denial of being aware that the father would be in breach of the family violence order by responding to text messages was implausible because he ……“must have known by this date that the fact of contact between [the father] and [Mr U] was being used to prosecute the father for breach of the Family Violence Order”.[72] I am satisfied with this part of Mr U’s evidence, in that he was endeavouring to assist the parties through their relationship break up (albeit in an increasingly partisan way). In addition the family violence order imposed an obligation on the father, not Mr U.
[72] Ibid at paragraph 3.
In early December 2008 Mr U says the father was revving his car up outside the home at about 3.30am and as a consequence an email was sent by Mr U to the father. I accept that evidence.
Mr U’s car tyre was slashed in early November 2008 with a six to eight inch slash. On about 14 December 2008 Mr U again found that a tyre of his car had been slashed, and so damaged that it required a replacement tyre. On about 15 December 2008 his tyre was slashed again. Mr U observed:-[73]
…. at 11.30pm I looked out the window and noticed two (2) people walking down the street; I was suspicious and noticed one man stop at my car, which was parked on the street. He bent down at the front left-hand tyre and I ran outside. They ran away. His stature looked like the [father], but I cannot be 100% sure it was him, despite the fact that I can say pretty sure it was. The lighting was very good. The tyre had a large slash through the type six (6) to eight (8) inches long. I called the police.
[73]At paragraph 46 of Mr U’s affidavit.
Mr U reported the incident to the police and was unable to be 100 per cent certain that it was the father and another man, which Mr U believed was Mr T. The police would have needed evidence beyond reasonable doubt that one of the people involved was the father to base any criminal prosecution. In submissions it was put to me by counsel for the father that Mr U’s evidence had been concocted. I reject that submission. Mr U was challenged on his evidence during cross examination and I am satisfied from seeing his demeanour and listening to his evidence, that his evidence made it clear from the gate, the light and his knowledge of the father that the person looked very much like the father and he was sure but not 100 per cent sure. Mr U subsequently withdrew his complaint to the police. I take it he did this because it would not have been sufficient to found a conviction against the father for a breach of the restraint order. I am satisfied on Mr U’s evidence that, on balance, he saw the father and that he did not pursue police action but did not withdraw his identification.
Mr T gave evidence in respect of the alleged events on about 15 December 2008 when the tyre of Mr U’s car was slashed. Mr T said that he was not there at that time. On cross-examination by the Independent Children’s Lawyer Mr T said he endeavoured to distance himself from his relationship with the father. I do not find Mr T’s evidence in relation to the events on that night particularly convincing.
I am satisfied on the evidence before me and after cross examination of Mr U that tyre on Mr U’s car was slashed either by the father or some other person in the company of the father. As a consequence of that finding and the other evidence of the father’s behaviour to the mother up to that time, I infer that the slashing of the tyres and damage to both Mr U’s car and the mother’s car was caused by the father or people acting at his direction.
In doing so I also infer that the damage to the tyre on the mother’s car in January 2009 was caused by the father or people acting at his direction.
These acts of vandalism on the property of the mother and Mr U are abusive, intimidating and stalking behaviour by the father towards the mother since the parties’ separation in June 2008.
I accept Mr U’s evidence that from his observations of them, since separation, the children have become more outgoing. This being particularly from the time the father has not been seeing the children.
Evidence of the father
The father relied upon his three affidavits filed 8 August 2008, 3 March 2009 and 27 March 2009.
In terms of his affidavit of 27 March 2009 the father amended paragraph 30 by deleting the words “I deny dealing in stolen goods or borrowing money at 100 per cent interest”. That part of the affidavit was not read. The father was cross-examined as to why he removed these words after swearing that it was true and correct.
The father’s explanation was that he did not realise he could make disclosures and seek protection under s 128 of the Evidence Act 1995 (Cth). I do not accept that explanation. The father’s notebook[74], which the mother recovered and identified in these proceedings, disclosed the father’s dealings in stolen goods. I am satisfied the father amended paragraph 30 as his assertion in that regard was shown to be untruthful in the light of the notebook. The father was endeavouring to explain himself when caught out.
[74] Exhibit M11.
I had also considered the method of which the parties could engage in the proceedings. The father was in prison (for part of the hearing) and although he was represented I arranged for him to attend court but be connected by telephone in another hearing room during the mother’s case. The mother then left the court during the father’s case and she attended by telephone in another hearing room and the father was in person. This prevented a situation arising where the parties were together in court at the same time but enabled each of them to fully participate in the proceedings.
With regard to the father I put in place a process whereby his counsel could take instructions at appropriate times. The father had a pen and paper so that if issues arose he could properly instruct his counsel. The mother had the same arrangements put in place.
The findings I have made in relation to violence and abuse have been based on the civil standard having regard to the comments of Dixon CJ in Briginshaw v Briginshaw.[163]
[163] (1938) 60 CLR 336.
On the facts before me I am able to find that the father used cohesion and threats, intimidation, emotional abuse, as tactics to isolate the mother, has denied and/or minimised abuse, blamed the mother and others for his abusive behaviour, used the children as tools and has endeavoured to deny the mother access to financial resources. As such his behaviour is consistent with controlling family violence as well as physical and emotional violence.
I am satisfied that the effect of the family violence and abuse by the father is established and it has had a significant detrimental affect on both the children and on the mother.
Part of these proceedings is to protect the mother and children from violence or worse and the mother is endeavouring to promote the best interests of the children by preventing further abuse of them by the father.
The mother was cross-examined by counsel for the Independent Children’s Lawyer as to the impact of the name change and the separation from the father. I do not accept her evidence that there will be no adverse effect to the children in not seeing their father. They have known him all of their lives however that must be weighed against the coercive, controlling violence of the father and the consequential risk to the children.
What is of concern in this case is that the father does not acknowledge that family violence has occurred and does not accept any responsibility for the family violence. The case has been marked by his endeavours to impeach the witnesses of the mother and other witnesses where they are different to his by focusing on inevitable differences in great detail.
The father does not recognise the inappropriateness of his action and has shown no regret. He is angry that he has been incarcerated because of the threats that he has made.
Having regard to the Best Practice Principles I am conscious of the following matters when making an order for no contact that, is:-
-deprivation of the children’s relationship with the father;
-the loss of opportunity to know the father at first hand;
-the loss of opportunity to know the father’s broader family and other relatives on his side;
-the loss of that parent if the children or either of them have a positive and meaningful relationship;
-the loss of the opportunity for the father to provide a positive and supportive contact;
-the absence of the opportunity for the father to repair the relationship or the harm done;
-the lessening of the likelihood of the children or either of them being able to get in touch with or form a relationship with the father at a later stage.
I accept that the children’s views are that they are not unhappy that they are not seeing their father and do not miss him. One of the orders I will consider in terms of these proceedings is an order that the father not approach or in any way contact the mother or the children. This will be a continuing order bearing in mind the history of this matter.
Having further regard to the Best Practice Principles I am satisfied of the following:-
-the allegations are serious;
-the children have been directly and indirectly involved in the violence and there are threats against the children;
-there are indicators of marked possessiveness and stalking.
I am satisfied that much of these proceedings are seen by the father as a way of seeking to control or maintain control of the mother and that his driving motive is related more to his feelings about the mother rather than about the children.
There are no specific indicators of any significant mental illness or suicidal ideation with the mother. There is an issue as to whether she has indicators of a dependent personality type which is the evidence of Dr H and which the mother denies. On balance, I prefer the evidence of Dr H.
Section 60CC(3)(a)
(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;
Dr H’s evidence was that both children expressed concern about spending time with their father. Y recalled her father being angry and recalls hiding from her father. Y said the father’s behaviour at the Contact Service was not the same as normal and that she would choose not to see her father even if someone was present and looking after her to make sure the father did not become angry.
X expressed similar concerns about spending time with her father and said he was mean and nasty. X said the father’s behaviour at the Contact Service was inconsistent with his usual behaviour.
I am therefore satisfied that the children’s expressed views in these particular circumstances, are a relevant matter to which some weight should be given and I have done so.
(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);
There is a happy and loving relationship between the children and their mother as described report of Dr H. The children reported to Dr H laughter and fun in their home. There is no criticism of the relationship between the mother and the children, except in respect of her earlier post natal depression, which is well passed, and her concerns about the children’s involvement with the father. I have determined that many of those concerns are well founded.
There was a report by the Contact Service that the children seemed to enjoy spending time with their father. However, having regard to the evidence of Dr H which was, the children have learnt to show the father affection and act in an apparent loving way as a defence mechanism, I prefer the views that were elicited from Dr H and set out in her report and those of the mother. That is that the children are frightened of their father.
The mother’s evidence was that the children did not have a good relationship with their father and were scared and terrified of him, in particular X. This was supported by the evidence Mr U and Mr D together with other lay witnesses.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The father claims that he is willing to encourage the relationship between the mother and the children. Having regard to the evidence and findings, I do not accept that this assertion. The father’s behaviour to the mother undermines her role as a mother and is not indicative of him encouraging and/or facilitating that relationship. The father’s violence undermines the relationship.
There is evidence that the mother will comply with court orders, however, by the very nature of her application, it is implicit that the mother is not willing to support and encourage a close relationship between the father and the children. In the context of his violence, control, abuse and intimidation that approach by the mother is protective of the children.
(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;
The mother is proposing a significant change in the children’s circumstances; relocation to another state, within the Commonwealth of Australia, a change of name and no contact with the father all of which she says would bring about a positive change for the children. This will have a serious effect on the relationship between the children and the father. In the circumstances of this family that effect is in the best interests of the children as it will provide them with some protection from the father.
The children do not have a close relationship with the paternal family and have not spent any time with them since they moved to Tasmania in December 2006.
(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;
If I make the orders sought by the mother it will prevent any time with or communication between the father and the children and as such in the circumstances of this case this factor is not relevant.
(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;
I am satisfied from the report provided by Dr H that the mother is the primary carer of the children and as such has the capacity to provide for their day-to-day needs and their intellectual and emotional needs. The mother has managed to maintain stability for the children not withstanding the father’s coercive, controlling violence.
The evidence of the E School Principal supports this and also demonstrates that the mother is able to provide a safe and stable environment for the children and make appropriate decisions in respect of their care. The mother has continued to support the children by arranging counselling for them when necessary.
The father, in contrast, does not generally provide for the children. I have regard to all of the findings, including but not limited to his coercive, controlling violence, his use of a child as a shield when confronted by an enraged man with an axe in October 2006, depleting the financial resources on gambling leaving them without proper supplies. As I have said elsewhere in this judgment it reflects poorly on the father’s ability to adequately provide for the emotional needs of the children. It is also a serious reflection on the father’s attitude and responsibilities to parenthood. He is an inappropriate role model for the children.
The factors to be considered in s 60CC(3)(g) and(f) are not relevant to these proceedings.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
In respect of this factor I repeat what I have set out elsewhere in these reasons. The father’s coercive, controlling violence towards the mother during the marriage in the presence of the children, the use of Y as a “human shield”, when he was being threatened by Mr W with an axe, his repeated breaches of the Family Violence Orders, his post separation harassment and stalking of the mother are a serious reflection on his attitude and his responsibilities of parenthood.
(j) any family violence involving the child or a member of the child’s family;
A parent’s capacity for violence is a relevant factor in assessing the character and suitability as a carer. Professor Patrick Parkinson, in his article Custody, Access and Domestic Violence (1995):-[164]
Violence is a window on the soul. It reveals much about the character of the person his or her capacity to control anger, to resolve conflict peacefully, to deal with frustration…….It may be indicative or a tendency to dominate, control and coerce the children rather than to nurture and empower them. It might reveal much to a court about how well the parent can cope with crises in parenting, and other stressors, and about his or her capacity for empathy.
[164] 9 Australian Journal of Family Law 41 at 55.
Violence is a significant factor in this case. It has been the subject of findings throughout these reasons, and I reiterate them in regard to this particular factor. The father is a violent person who has imposed that regime of coercive, controlling violence upon his family. Even when exposed he is unable or unwilling to acknowledge it.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
The mother obtained a Family Violence Order against the father which discussed in these reasons resulted in a conviction for breach of that order and the father’s repeated breaches of the domestic violence order from August 2008 to early January 2009.
(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;
I have reached the conclusion that the best interest of the children are most likely to be served by an order that the father spend no time with the children and leaving it open for the children to resume their relationship with their father, should they wish to do so after they attain the age of 18 years and on their own terms.
(m)any other fact or circumstance that the court thinks is relevant.
I have considered all of the relevant evidence before me.
Section 60CC(4) of the Act
(a)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; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have had regard to the events that have happened and the circumstances that have existed since separation occurred on the 21 June 2008.
In coming to the conclusions in these proceedings I have reflected on all of the evidence to consider the extent to which the children’s parents have fulfilled or have failed to fulfil their responsibilities as parents as set out in s 60CC(4). In having regard to all of the material before me and all of the findings of fact I determine that in my view the best interest of the children are served by the orders set out at the commencement of these reasons.
Nothing new arises out of the considerations of the matters in s 60CC(4) and (4)(A) which have not already been discussed in detail in these reasons. I have dealt with almost all of those issues in these reasons so far.
CONCLUSION
In the absence of agreement determining what time children should spend with parents and how they communicate is never an easy matter. When considering preventing a child knowing a parent and having any relationship with a parent the task is very difficult. In this case the father has been violent, abusive and controlling. He was assessed by Dr H and Dr R as having impulse control and general control impulsivities issues, he is unable to recognise his past conduct and is unaware or unwilling to change. These are all matters to which I must give weighty consideration. This is one of those exceptional cases where spending time with a parent may do more overall harm to the children than good.
The father refuses to accept responsibility for his violent past or acknowledge the ill effects such physical and emotional abuse has had on the mother and the children. He directs blame on others. The father does not see any need to change his behaviour. His lack of insight into his behaviour (at best) and his knowledge as to its impact (at worst) are deeply concerning. He uses dishonesty, fear, aggression and abuse. It is a combination of these factors which have given rise to my determination that he ought not to have any time with his children as a consequence of the damage that he has inflicted upon them and the further damage it will impose upon the children in the years to come.
In my view, the children’s expressions of not wanting to spend time with their father are reflective of their true states of mind and I have reservations about their perceived behaviour observed at the Contact Service.
It is clear from the father’s evidence that he is in deep denial about the harmful impact his past violent behaviour has had on the mother and the children. He has shown no regret. Instead he is angry that he has been incarcerated because of the threats. He sees these proceedings being about him, his rights and his entitlements.
The father has not engaged in any program to address his violence. The question is whether the father’s violence and anger can be resolved if I order the father to undergo some anger management courses or counselling. I doubt that it can. The father does not like psychologists. The father is, as was submitted by the Independent Children’s Lawyer, argumentative, combative, aggressive, self absorbed and revisionist.[165] I have no doubt that as a consequence of this trial the father will not look in the mirror and reflect on himself and his own appalling behaviour, he will however lay blame elsewhere. I see no benefit in making orders that the father attend any courses or programs such as Changing Abusive Behaviours.
[165] Lines 34 and 35 of page 5 of the Transcript of Proceedings dated Thursday 7 May 2009.
Sadly in the circumstances of this case, I have reached the conclusion that the best interests of the children are most likely to be served by an order that the father spend no face to face time with the children and leaving it open for the children to resume their relationship with their father, should they wish to do so after they each attain the age of 18 years and on their own terms.
I am satisfied that I would be acting contrary to the best interests of the children if I made an order allowing the father to initiate any form of correspondence or communication with them. The father has a history of being unable to restrain himself from attempting to make unwanted contact with the mother. Given the threats the father has made there is in my view, a real risk that he would use the correspondence with the children as a way of finding the mother. I am also concerned that the father would try to use any form of correspondence or communication with the children as continuing a process of violence, intimidation, and harassment against the mother.
Vetting the father’s correspondence is not an ongoing responsibility I will impose on the mother, who has already endured years of abuse and violence. To impose such a duty upon her has the capacity to impact on her role as sole parent of these children. Neither is it practical to expect a publicly funded officer, such as the Independent Children’s Lawyer, to do so on an indefinite basis. It is for these reasons I prepose to restrain the father from initiating any communication or correspondence with the children at all.
The mother continues to live in oppression and fear. This continued throughout the relationship and since separation. The extent of it is that she chooses to leave a workable relationship to go into what counsel for the father described as “almost witness protection”. The consequence of her not being allowed to have a life without fear of the father and the oppression which it imposes on her, it must invariably damage the way in which she cares for the children. I will make an order that the mother be entitled to relocate the residence of the children to another place in the Commonwealth of Australia. I will also put in place injunctive orders positively restraining the father from approaching any home, school place of employment or any other place which the mother and children are present.
I will make an order that the mother have the sole parental responsibility for the children, including determining their place of residence and change of surname, for the reasons already discussed elsewhere in these reasons.
I am not satisfied that this is an appropriate case in which to make an order which would restrain the father for a period of time from bringing any further proceedings in respect of spending time with the children. My view is that the principles in Rice v Asplund (1979) FLC 90-725 should apply and the father would need to demonstrate to the court that there has been a substantial change in circumstances. I accept, as the Full Court said in Zabaneh v Zabaneh (1986) FLC 91-766 at page 75587, per Evatt CJ, that there are cases in which, where a court finds initially that contact is not in the interests of a child it is difficult for a party who does not have that contact to demonstrate that there has been a change in circumstances. In some cases the effluxion of time may simply not make any difference at all.
Having regard to the concerns I have expressed elsewhere in these reasons I will make orders restraining the father from approaching or communicating with the children and/or the mother at all.
It is unfortunate that to have safe and secure lives the mother and children need to conceal their whereabouts. In essence this family will go into hiding to prevent further stalking, threats and possible violence from the father. As I have said in these reasons, the father’s approach to his violence and to family violence orders is such that I infer that he is unlikely to comply with these orders. His coercive controlling violence against the mother and children has to date not brought about any significant consequences for him under the criminal justice systems in either Tasmania or Western Australia. The burden of proof in criminal proceedings by its nature has the capacity to leave vulnerable spouses and children exposed to violent people, such as the father. Sadly the interaction between the criminal justice system and domestic violence is often reactive rather than proactive.
I refuse the father’s application to spend time with the children and make the orders set out at the commencement of these reasons.
I certify that the preceding 495 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Legal Associate :
Date : 24 July 2009
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Natural Justice
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Procedural Fairness
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Injunction
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Remedies
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Jurisdiction
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Expert Evidence
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