Marr and Terry
[2011] FMCAfam 702
•17 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARR & TERRY | [2011] FMCAfam 702 |
| FAMILY LAW – Parenting application – family violence of an “enduring, controlling and coercive pattern” – impact on parenting order. |
| Family Law Act 1975, ss.4(1), 4(1AB), 4(1AC), 60B(1)(a) and (b), 60CA, 60CC, 60CC(2)(b), 60CC(2)(c), 60CC(3)(b), 60CC(3)(c), 60CC(3)(e), 60CC(3)(f), 60CC(3)(m), 61DA, 65DAA, 65DAA(1), 67ZN, 69ZN |
| Heidt (1976) FLC 90-077 Altobelli T, ‘Family Violence in Children’s Cases – Implications in Practice’ (1998) 13 (1) Australian Family Lawyer 6 and (1998) 13 (2) Australian Family Lawyer 38) |
| Applicant: | MR MARR |
| Respondent: | MS TERRY |
| File Number: | SYC 243 of 2010 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 30 June – 1 July 2011 |
| Date of Last Submission: | 1 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Dr Waldersee |
| Solicitors for the Applicant: | Bankstown Legal |
| Counsel for the Respondent: | Ms Humphries |
| Solicitors for the Respondent: | Rebecca Bailey & Associates |
ORDERS
That the mother have sole parental responsibility for the child [X] born [in] 2001 and shall keep the father informed of any significant aspects of her long term care, welfare and development.
That the child live with the mother.
That the child spend time with the father as follows:-
(a)Each alternate weekend from 10am to 4pm Saturday.
(b)During school holidays (excluding the Christmas school holiday period) – from 10am on the first Sunday of each school holiday period to the following Friday to 3.30pm provided that the father's time is spent in the paternal grandmother's residence and the paternal grandmother is in residence at that time.
(c)Order 3 a. is suspended during the first two weeks of any school holiday period.
(d)During the Christmas school holiday period in each odd numbered years from 2pm Christmas eve to 2pm 30 December and in each even numbered year from 2pm 27 December to 2pm 2 January provided that the father's time is spent in the paternal grandmother's residence and the paternal grandmother is in residence at that time.
(e)The father's time with the child shall be suspended during the first two weeks of the Christmas school holiday period except as provided for in the order immediately above.
(f)On the Saturday closest to the child's birthday from 10am to 4pm.
(g)That the father's time with the child be suspended on Mother's Day weekend.
(h)On Father's Day from 10am to 4pm.
(i)All change over is to occur at the [W] Contact Centre where it is available. In the event that the Centre is unavailable then changeover is to take place at the [R] MacDonald Restaurant.
That the father be restrained from consuming alcohol in excess of 0.05 during periods of time that the child is in his care.
The father be restrained from consuming any illegal drug during periods of time that the child is in his care and shall provide a urinalysis to the mother once every three months. In the event that the father's drug screen shows a positive result for any illegal drug then the time that he spends with the child shall be suspended until such time as he is able to provide a clean drug screen.
That the mother be permitted to delete any reference to her address for the child's school and any school report and the like that she is required to provide to the father in accordance with Order 1.
IT IS NOTED that publication of this judgment under the pseudonym Marr & Terry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 243 of 2010
| MR MARR |
Applicant
And
| MS TERRY |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This case is about [X] who is 10 years old. [X] currently lives with her mother in the [omitted] area of New South Wales. The mother is the respondent in these proceedings. She is 36 years old and describes herself as a [occupation omitted]. The father is the applicant in these proceedings. Whilst he has previously lived in [T] he currently lives in Sydney. He is 38 years old.
[X]’ parents were in a volatile relationship which appears to have started in 1998 or 1999 and finally ended in about 2008. In between these dates there were numerous separations and reconciliations. It is quite possible that during the course of this period the nature of their relationship may have fluctuated from cohabiting to boyfriend/girlfriend. Nothing really turns on this so it is not necessary for me to make findings in this regard.
During the periods of separation, and after the final separation, the parents had informal arrangements for [X] to have contact with her father. This included overnight contact. However, since at least 2010, and probably earlier, if [X] had contact with her father it was limited to daytime only.
The mother raises very serious allegations about the father’s behaviour towards her, in the form of violence and abuse. She asserts that this behaviour often took place in front of [X]. If the mother’s allegations are established, the father’s violence and abuse casts a long shadow over these proceedings. The father strenuously denies the allegations made by the mother. Whilst he doesn’t use the word volatile, it is reasonable to infer that even he agrees that volatility characterised their relationship. Nonetheless, he sees no reason why he shouldn’t be able to have a more normal relationship with his daughter that includes overnight and holiday time. No one doubts in this case that [X] loves both her parents, and that both parents love her. There is no issue about the capacity of either parent to provide for her physical needs.
The father’s proposal is contained in the practice direction document prepared by his counsel, Dr Richard Waldersee. He proposes equal shared parental responsibility, and that [X] live with her mother. He proposes that [X] spend time with him each alternate weekend from Friday to Sunday, during school holidays and on special occasions. He proposes that changeover continue to take place at [W] Contact Centre or at an alternative venue.
The mother’s proposal is contained in her outline of case document. Her counsel, Ms Humphreys, clarified this written document and explained that the mother proposed sole parental responsibility, and that [X] live with her. She proposed that [X] spend time with her father each alternate weekend from 10 am to 4 pm Saturday as well as periods during school holidays and special occasions including overnight time provided that this time is spent in the paternal grandmother’s residence, and the paternal grandmother was in residence at the time. She also sought orders restraining the father from consumption of drugs and alcohol.
In the father’s case he relied on his two affidavits sworn 15 January 2010 and 20 December 2010. The absence of more recent evidence from the father was a notable omission in his case. He also relied on an affidavit of a family friend, Ms G. I did not find Ms G’s evidence to be at all helpful in this case, mainly because it was so heavily based on the father’s reports to her rather than her own observations. In any event the one matter in respect of which she gives direct evidence lacked any probative weight. I will make no further reference to
Ms G’s evidence. Both the father and Ms G were cross-examined.
In the mother’s case her evidence consisted of her affidavit of 31 January 2011. As it turns out her father gave oral evidence pursuant to leave that was granted. I will refer to this below.
A family report was prepared by a family consultant Ms S who also gave oral evidence.
A substantial quantity of business records were tendered in evidence, and I will refer to this in more detail below.
On 28 April 2010 I made a number of interim orders during the course of a brief interim hearing. The father, and the mother’s solicitor appeared by telephone. Given the seriousness of the matters raised, it was hardly an optimal context within which to conduct interim proceedings. Nonetheless I made orders that [X] live with her mother and spend time with her father for six fortnightly visits at a supervised contact centre in [W] and, thereafter, each alternate Saturday from
10 am to 4 pm with changeover to occur at a supervised contact centre. There were no real issues in this case about compliance with the order for contact.
The applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the 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;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) 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;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Family Violence
From a legal perspective, family violence in relevant for many different reasons. The Family Law Act expressly refers to family violence in several provisions which I refer to below. Thus one of the objects of Part VII is to ensure that the best interests of children are met by:
s.60B(1)(b):
protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
The second of the primary considerations in s.60CC(2)(b) is:
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In terms of the additional considerations set out in s.60CC(2)(c) there are two that expressly refer to family violence:
(j) any family violence involving the child or a member of the child's family;
(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;
Apart from these express references, family violence may also be relevant because it impacts indirectly on some of the other additional considerations, eg:
a)s.60CC(3)(b) the nature of a child’s relationship with a parent; or
b)s.60CC(3)(c) the willingness and ability of a parent to facilitate and encourage a close and continuing relationship between the child and the other parent; or
c)s.60CC(3)(f) the capacity of a parent to provide for the needs of a child including emotional needs; or
d)s.60CC(3)(e) the attitude of a parent towards the responsibilities of parenthood.
The term ‘family violence’ is itself defined in s.4(1) in these terms:
“family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
It is important to note that s.4(1AB) provides a very expanded definition of who is “ a member of the person’s family”, and s.4(1AC) defines who is a ‘relative’. It is also important to note that the definition of family violence refers to conduct that causes a person to fear not just for their safety but “personal wellbeing”. Accordingly this goes beyond the physical and into the psychological. It includes all forms of physical abuse and violence and all forms of psychological abuse such as the making of threats and controlling behaviour whether this control is physical, sexual, psychological or economic.
Family violence is relevant not just from a strict legal perspective, but also from a procedural perspective. Thus Divison 12A of Part VII of the Act, which sets out principles for conducting child related proceedings, expressly acknowledges the impact of family violence on how cases are conducted. The third principle set out in s.67ZN states:
5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Moreover s.69ZN is intended to facilitate the provision of relevant information to the court about child abuse or family violence, particularly from certain State or Territory agencies.
This comprehensive modern statutory scheme for having regard to family violence in parenting cases in fact had its genesis in the decided cases. The common law itself evolved over a period of twenty years in Australia. Thus, eg, early decisions such as Heidt (1976) FLC 90-077 might be viewed as indicating insensitivity to the issue of family violence unless the case is understood in its historical context (see Altobelli T, ‘Family Violence in Children’s Cases – Implications in Practice’ (1998) 13 (1) Australian Family Lawyer 6 and (1998) 13 (2) Australian Family Lawyer 38). By 1994, however, there was a dramatic shift in attitudes eg Jaeger (1994) FLC 92-492, JG and BG (1994) FLC 92-514 and Patsalou (1995) FLC 92-580. The 1995 amendments to the Family Law Act inserted as an express factor for consideration in children’s cases family violence and family violence orders.
Evidence of the Family Consultant
Family consultant Ms S provided a report dated 4 November 2010 which was released to the parents on 5 November. It is important to set out significant extracts of the report, and to discuss her oral evidence in that context, because her recommendations crystallised during the course of her oral evidence.
One of the significant features in this case was the completely different perspectives that the father and mother provided about themselves, and their relationship with each other. This is well recorded in the family report. The family consultant’s observations of the father, and a record of the history provided by him, is found at paragraphs 12 to 16 of the report:-
12. Mr Marr (aged 37 years) presented as solely focussed on restoring his relationship with [X] and building on the time that he currently sees her in order to achieve a more realistic and a fuller father daughter relationship. He said that he leads a healthy lifestyle, is in gainful regular employment and does not misuse alcohol or drugs.
13. Mr Marr expressed a sense of disbelief and concern as to how he could not be permitted to know where [X] lives and attends school and why her time with him should be restricted to the point of a few hours each fortnight. He said he was concerned about the effect that these restrictions are having on his relationship with [X].
14. Mr Marr had difficulty describing the history of his relationship with Ms Terry. He said it was characterised by a mix of ambivalence, numerous household moves, job changes, and physical separations. He said that the relationship appeared more ambivalent than it was due to Ms Terry deciding that they live apart for at least several days per week so that she would qualify for additional Centrelink payments. Mr Marr said there had been mutual “yelling”, and mutual “pushing and shoving” and that arguments occurred about once per week, usually about housework or finances, but were not in the presence of [X]. He said that he had not been physically violent towards or generally abusive of Ms Terry.
15. Mr Marr said that he did not understand why the AVO was in place and particularly why [X] is named as a protected person. He believes that the Court was influenced by Ms Terry’s presentation at the AVO hearing by her “crying all the time” and that he was disadvantaged due to no legal representation. He said that Ms Terry has fabricated incidences of his abusing her and that ultimately, the Court had to make a decision about “my word against hers”. He expressed frustration, agitation and sadness that he knows very little about [X]’s life now and that she is required to keep information about her home and school from him due to inherent restrictions in the AVO. He said that his whole extended family is becoming marginalised from [X] as a result of the AVO.
16. Mr Marr said that, while he would “love” [X] to live with him, he thinks that this would not be “realistic” due to his work commitments. He emphasised that he is not proposing that [X] change residence or live in an equal share arrangement but said that he wishes to see more of her. Mr Marr said that it is unfair that he is paying child support while seeing so little of [X]. He said, with reference to his own childhood when his father and mother separated before he was born, that he wishes to be fully involved in [X]’s life, not simply be a weekend “playmate”.
Of course, I had the benefit of seeing Mr Marr whilst he gave evidence. He clearly demonstrated many of the features described by the family consultant. He clearly could not understand why it was necessary for his contact to be restricted with [X] and for him to have such little information about where she lives and attends school. But he minimised the violent and abusive aspects of their relationship. He could not understand the need for an AVO. Indeed, he was quite scornful of the mother’s allegations and concerns about family violence.
The family consultant’s observations of the mother, and a record of the history that she provided is contained at paragraphs 21-25, and 27-29 of the report.
21. Ms Terry presented as highly labile and repeatedly broke down crying when talking about Mr Marr. She had difficulty talking about what she labelled a “violent relationship” with
Mr Marr being an “abusive partner” whose behaviour was characterised by verbal, emotional, and physical harassment.
Ms Terry was interviewed a second time as material from the first interview had been difficult to illicit due to her confused and distressed state when talking about Mr Marr.
22. Ms Terry said that she and Mr Marr have known each other from the time they were teenagers and commenced “going out when I was 23 years old”. She said that, from early on in the relationship, he had a problem of drug misuse (marijuana) often combined with aggressive behaviour towards her. She said that [X] was the outcome of Mr Marr’s unwanted sexual advances and that he also physically assaulted her (Ms Terry) during pregnancy. Ms Terry said she left Mr Marr prior to [X]’s birth and thereafter commenced a volatile and ambivalent relationship with him, involving cycles of threats and abuse from Mr Marr, followed by his apologies. Ms Terry said that Mr Marr had attempted to control and dominate her with threats and by isolating her from her family and friends, both prior to and post separation. When she has physically separated and lived at a distance from him, she said he followed her and relocated himself, only to replicate the same past abusive behaviour which then required her to again move house. Eventually, in 2006 when [X] was four years old, Ms Terry finally moved to her parents’ home where she remained until earlier this year.
23. Ms Terry said that during the time she and [X] lived at the maternal grandparents’ home, Mr Marr habitually “yelled” and swore at her during changeovers with, she said, no consideration for the effects that his aggressive behaviour has on [X]. Ms Terry said that Mr Marr had also made numerous threats over time to withdraw from seeing [X] in an effort to manipulate Ms Terry to comply to his wishes. Ms Terry said that she has acquiesced to
Mr Marr’s demands over the years in an effort to maintain [X]’s relationship with him.
24. Ms Terry said that [X] was included as a protected person on the AVO against Mr Marr due to his stalking of her and [X] and because of his highly inappropriate, abusive language and destructive behaviour in front of her, such as comments made at changeovers like “Did you have a good f… on the weekend”, or on another occasion when he threw [X]’s belongings out of his car and onto the road during a changeover. She said that he has also been angry with [X] over her bedwetting.
25. Ms Terry was concerned that the Court may not have sufficient information to understand the complexity of the issues in her relationship with Mr Marr and that her version of their relationship as abusive may not be accepted.
27. Ms Terry expressed fears for her and [X]’s safety and that
Mr Marr could treat [X] in the same threatening and manipulative way that he has treated her. Ms Terry said that she is concerned that Mr Marr bribes [X] and breaks promises, such as promising to get her a new laptop computer or a pony. She said she is concerned that Mr Marr will undermine her relationship with [X] to the point of [X] wishing to live with him.
28. Ms Terry said that [X] is “a mess” when she collects her after she has spent time with her father, especially since their time together has been unsupervised. She said that [X] yells and screams and says “I hate you Mum”. She expressed concern that [X] has begun to lie to her father to protect herself from his anger, that is, to tell her father what she thinks he wants to hear, rather than what she really believes, for example, that she wishes to spend more time with him.
29. Ms Terry said that she is concerned about Mr Marr’s emotional stability. She said that he has an employment record of continual job changes, he is characteristically aggressive and agitated, having been previously charged with assault of a former girlfriend, and he uses alcohol and illicit drugs irresponsibly and in combination, having been charged with driving under the influence in 2010. She expressed concern about the long term impact of his mental state on [X]’s development if she is to spend additional time with him.
I also had the benefit of observing the mother whilst she gave evidence. Many of the features described by the family consultant were plainly evident when the mother gave evidence. For example, she remained labile and frequently became emotionally upset when giving evidence. She was consistent in providing a history of violence and abuse, and consistent in her concerns about [X]. As it turns out, the concerns that she expressed in paragraph 25 of the family report were demonstrated to be entirely correct. It was not until all the evidence was heard that the real complexity of the issues of her relationship with the father could properly be understood.
The family consultant also had the benefit of observing [X] in her interactions with both parents, as well as speaking with her. [X] was able to articulate some views, and these are reported at paragraphs 40 and 41 of the report.
40. [X] said that she would like to see more of her father, overnight and on weekends. She said that one of the reasons that she would like to see more of her father is that she would be able to visit her “ninety pets” at his farm in [T]. She described him in strikingly positive terms and associated the time she has with him with having fun at the paternal grandparents’ farm, playing with her cousins and exciting items she is to receive from her father, such as a laptop computer.
41. [X] said that she does not necessarily wish to spend time with her father at the contact centre. While she noted that the centre is a “good place to be”, she prefers that she and her father are now able to “go out” together. [X] said, though, that changeovers should still be conducted at the centre as she knows there that she need not be concerned about her parents’ arguing. [X] said that the main problem she has with her father is that “dad asks about Mum and boyfriends” which makes [X] “feel bad”. She said he stops asking questions only “until next time” they are together and she would like him to never ask these questions again.
In cross-examination, she was asked about what weight should be given to the views expressed by [X]. She explained that the views ought to be taken into account because it says something of her relationship with her father. However, the views of a 10-year old child in the context of a highly conflicted relationship between her parents should not be determinative. As it turns out, I completely agree with the family consultant’s view in this regard. I recognise and accept that [X] has expressed a view to spend more time with her father but the evidence before me suggests that there are some other more important considerations that must receive appropriate weight.
The family consultant observed that [X] gave no indication that she was afraid of her father and was indeed tearful on his departure. She was also acutely aware of the parental conflict, as well as missing her father.
The evaluation is contained at paragraphs 45-58. Again, it is important to set this out in its entirety:-
45. [X] presented as a compliant child who has had the ongoing care and input of her mother as her primary carer with the regular, if somewhat tenuous, involvement of her father and support of the maternal and paternal extended family.
46. The consistency and continuity of Ms Terry’s relationship with [X], in combination with the quality of her parenting and their shared interests and activities, affirm her in the role of the [X]’s primary carer. The fresh start and stability of this year achieved by living on the South Coast with Ms Terry, appears to have been of benefit to [X] on social and emotional levels.
47. Ms Terry’s experience of the relationship with Mr Marr as highly abusive, characterised by an ongoing pattern of threats, emotional manipulation and force, has resulted in fearing him. Her reactions in relation to him resemble post-traumatic stress symptoms. Her account of abuse as instigated by Mr Marr and sustained over time was affirmed by Ms P of the Women’s Court Advocacy Service. The type of abuse described, with features of threats, restrictions and jealousy on the part of Mr Marr indicated an enduring controlling and coercive pattern.
48. Ms Terry’s emotional reactivity to interactions, or potential interactions, with Mr Marr suggests that she has developed a somewhat phobic response to him and will most likely benefit personally, and [X] will therefore benefit indirectly, from her having no further communication with Mr Marr.
49. The continuation of verbal abuse at changeovers after
Mr Marr and Ms Terry separated suggests that the parents are unable to protect [X] from their arguments. The parents should have no direct contact and limited communication with each other, at least at this stage, particularly when [X] is present. Indeed, [X] does not want her parents to come into contact with each other because she is troubled by her parents’ arguments. Changeovers should continue at the contact centre or another suitable supervised venue.
50. As [X] is, by nature, a particularly sensitive and caring child and therefore vulnerable to reflecting her mother’s emotional responses, it is imperative that Ms Terry continues to receive support and treatment to deal with her level of anxiety about
Mr Marr.
51. It is likely that, at this stage, the parents would best function under a regime of no or as little communication as possible and that detailed parenting arrangements provide for review, with professional assistance, within a community agency setting.
Mr Marr’s and Ms Terry’s high degree of conflict and their inability to make joint decisions about [X]’s welfare, suggests that joint parental responsibility is inappropriate in this case.
Ms Terry should maintain sole responsibility for [X].
52. [X] shows several signs of stress. These include her particularly compliant disposition, bedwetting, unsettled behaviour on return from time with her father and past peer relationship problems. [X] may benefit from counselling with regard her anxiety. [X] should be referred to an enuresis clinic and both parents should be involved in her treatment. Any anger expressed or punishment given to [X] over the bedwetting will only exacerbate the condition.
53. [X]'s exposure to the dynamic of family violence is of particular concern. Her fear about her parents being together indicate that any time [X] spends with Mr Marr should be monitored at regular intervals.
54. Ms Terry appears to be gaining an understanding of the impact of family violence on both herself and [X]. She has sought and received psychological assistance for herself and her daughter. Ms Terry seems determined to provide a psychologically safe environment for her and [X] by restricting Mr Marr from spending unsupervised time with [X] until she
(Ms Terry) believes he has changed sufficiently to no longer threaten or attempt to manipulate her or [X].
55. Mr Marr did not demonstrate a full understanding of the impact of violence, verbal conflict or the incident of having thrown [X]’s belongings onto the road. He blamed Ms Terry for causing the separation and their arguments, taking no responsibility himself. He believes that Ms Terry was unfaithful and that this was the reason for the demise of their relationship, as opposed to Ms Terry’s account of ongoing domestic violence.
56.[X]’s welfare in the father's or the paternal grandparent’s households has not been assessed or recently tested. Ms Terry does not have confidence in [X] spending time there because she believes that her relationship with [X] will be actively undermined by Mr Marr’s extended family.
57. The distance between Mr Marr’s and Ms Terry’s homes provides a natural barrier to the conflict between them and therefore reduces [X]’s exposure to their conflict. Each parent’s allegations about the other’s alcohol use or misuse remains unsubstantiated. However, the degree of acrimony in the parenting relationship suggests that her time with Mr Marr should be limited to weekends only each fortnight. [X] does not appear to be fearful of her father and seemed to express an authentic wish to spend time with him. It is difficult to see why her time with him needs to be supervised, provided the Court is satisfied that he would not misuse alcohol while he is looking after [X].
58. Perhaps once per school term [X] could spend time with the paternal extended family at the paternal grandparents’ home in [T].
In her oral evidence, after being referred to other evidence about the father’s past violent relationships with a partner, the family consultant confirmed her impression that the mother may well be suffering from post-traumatic stress symptoms arising out of a violent and abusive relationship.
At paragraph 47 there is reference to a discussion the family consultant had with Ms P of the Women’s Court Advocacy Service. I asked the family consultant to expand on this. The family consultant read out the notes of her conversation with Ms P. The description of violence and abuse was quite chilling. Of course, even a graphic description summarising what was ultimately the mother’s own report to a third party does not establish that the violence and abuse took place, on its own. However, and as will be discussed in more detail below, it corroborates the mother’s allegations generally. The family consultant concluded at paragraph 47 that the type of abuse described was “enduring, controlling and coercive pattern”. Such a conclusion may not have been sustained purely on the mother’s own reports but, as will be seen below, there is ample corroborative material for the Court, after having heard all of the evidence, to accept that the family consultant’s description was entirely correct. Indeed, in oral evidence the family consultant agreed that the further evidence presented to her, in the form of various police records, did confirm the mother’s reports, was indicative of the violence and abuse being at the more severe end of the violence spectrum, and also confirmed her hypothesis that the mother was suffering from post-traumatic stress.
At paragraph 55 of the report the family consultant asserted that, in her opinion, the father had not demonstrated a full understanding of the impact of violence, and verbal conflict on [X] and continued to blame the mother for the separation and the conflict. This was plainly evident in the father’s own evidence before me.
It is at paragraph 57 of the report that the family consultant’s oral evidence indicated she had changed her views about weekend contact. What seems to have led to this is an accumulation of different factors. Firstly, counsel for the mother directed the family consultant’s attention to documents produced on subpoena by the New South Wales police which the family consultant had clearly not had access to before. The evidence in question, police records of events in May and October 1997, and March 1998, portray the father as the perpetrator of violence in a previous relationship. This caused the family consultant concern. She was not previously aware of this. The father had not disclosed it to her. Some of the material suggested that the father was asserting that the victim had herself caused the injury. The evidence tended to provide affirmation of what the mother’s reported history of violence was. Moreover, the family consultant was not aware that the father had previously undertaken an anger management course. The family consultant’s concerns were that this new evidence, together with the mother’s history of violence and abuse did raise concerns in her mind about the father’s ability to provide a conflict-free environment for [X], unless there were other persons present at the time. It raised a concern about the father’s insight into the effects of his behaviour on [X]. She acknowledged that a restriction to contact her in the daytime only was a severe one. However, the father’s volatile and erratic behaviour puts [X] in a vulnerable condition, even though their relationship is a good one.
In cross-examination by the father’s counsel the family consultant expressed a deep scepticism about the potential benefit to the father of another anger management course, given the apparent dynamics of previous relationships. She suggested, in fact, that the father may well need psychotherapy to explore deeper issues within his life. She explained that anger management courses were aimed for people with motivation to change, as well as self-insight, but in this case the father appeared to be well beyond that. When challenged about whether the mother’s liability was attributable to trauma, the family consultant expressed 100 per cent confidence that this was the case. When challenged about the likelihood that the mother would remain traumatised about violence and abuse that allegedly occurred so long ago, the family consultant explained that this was not at all surprising and that contemporary research was providing a deeper understanding of the psychological impact on the victims of violence and the package of symptoms known as post-traumatic stress. The family consultant explained that the mother’s presentation was consistent with this and was akin to an anxiety condition arising out of long-term exposure to family violence.
The family consultant’s recommendations are contained at paragraphs 59 – 65 of the report:-
59. It is recommended that the mother have sole parental responsibility for [X] but provides the father with information about [X]’s health and educational needs, arrangements and progress.
60. It is recommended that [X] remain living with her mother.
61. It is recommended that, if the environment is found to be child focussed and safe, [X] spends alternate weekends with her father at [T] and that this be reviewed (see recommendation no 65) in relation to [X]’s potential stress and fatigue in relation to the travel.
62. It is recommended that the changeovers occur at a mutually suitable supervised contact centre, such as at [W].
63. It is recommended that the parents do not come into contact with each other and only have indirect communication with each other via a communication book.
64. It is recommended that [X] attend an enuresis clinic, such as at The Children’s Hospital [omitted], for assessment, treatment and possible psychological intervention.
65. It is recommended that the parenting arrangements be reviewed at intervals of six months at Unifam, Relationships Australia or CatholicCare.
By the end of her oral evidence, however, it was quite clear to me that the family consultant had come to the conclusion that, for the purposes of paragraph 61, there was real reason to be concerned about whether the environment in which [X] would find herself would be child focused and safe. The family consultant preferred the mother’s proposal.
I accept the family consultant’s evidence. Her recommendations were properly adapted to reflect the further evidence that was provided to her. Whilst acknowledging the views articulated by [X], and the strengths of her relationship with her father, she also explained the risks to [X] in the circumstances of the history of family violence perpetrated by the father.
The Family Violence Allegations
The importance of the mother’s allegations about family violence necessitates a detailed examination of the evidence in this regard. The mother’s concerns in relation to the father’s behaviour extends to a broad range of conduct including physical (as well as sexual) abuse, verbal abuse, emotional manipulation, threats, intimidation and controlling behaviour. It does not matter whether or not the alleged conduct falls within the definition of family violence in s.4(1) because it is conduct that I can take account of under s.60CC(3)(m) in any event.
In her affidavit filed 1 February 2011 the mother deposes that the father’s conduct commenced from about 2004 after their first separation, and during periods when they attempted to resume their relationship. Geographically she asserts the family violence occurred in [T], [H] and in Sydney. She alleges that, e.g. in [H] in September 2004, the father not only threatened the mother, but [X] as well. [X] was 3 years old at the time. At paragraph 9 of her affidavit the mother deposes:
Most nights he would threaten to hit me, holding his fist close to my face. He would come back after smoking marijuana and drinking alcohol and demand things from me of a sexual nature. I would give in most times. When I did refuse, he would throw me around or push me. If I cried or made a noise he got angrier and I did not want [X] to wake up. When he was angry he would push his forearm into my throat. He would push me against the wall, choke me, and then throw me to the floor. Due to this ongoing emotional and physical abuse, [X] and I moved to Sydney at the end of 2005 to live with my parents. Approximately 6 months later Mr Marr also moved to Sydney.
The context of this indicates that these events occurred some time in 2004-2005. The mother herself admits in paragraph 11 that she found it difficult to remember things that occurred during this period and to discuss these events. She describes this period in paragraph 11 as “one of the worst times in my life.”
In December 2006, following an incident at [X]’s school, an interim ADVO was made. The Complaint and Summons described the circumstances as follows:
About 3:00pm on Monday 11 Dec 2006 the Protected person was at [omitted] School picking up their daughter, [X], from school. The Protected person was is [sic] the rear carpark of the location walking towards her car when she saw the defendant walking towards her. The defendant approached the protected person and the child and began to discuss child maintenance with her. The conversation became heated and the defendant became aggressive towards the protected person, raising his voice and swearing. The protected person began to fear for her child, whom she locked in the vehicle and continued to try to talk to the defendant. The defendant became increasingly agitated, yelling insults such as “You’re fucking full of shit”. The protected person cannot remember the exact conversation, however, states the defendant’s conduct made her feel intimidated. The protected person got inside her car and the defendant left. No assault occurred or no threats were made. The protected person states she is fearful of the defendant and would like an AVO.
There is a history of unreported domestic violence between the parties including both physical and emotional abuse.
The Complaint and Summons is significant for several reasons. As will be seen shortly, this is the first of a series of incidents at [X]’s school. Moreover there is a clear record of an assertion by the mother of a “history of unreported violence between the parties including both physical and emotional abuse.” This tends to counter any suggestion of recent invention by the mother.
As it turns out the mother withdrew the AVO. She sets out her reasons why in paragraphs 15-17 of her affidavit. The reasons for withdrawing do not detract in any way from the allegations she made against the father. The mother was not, in any event, challenged in cross-examination about this. It was not put to her, for example, that she withdrew the AVO because the events alleged did not occur.
The mother deposes that in early 2008 she resumed a boyfriend/girlfriend relationship with the father. She describes him as possessive, disrespectful and aggressive in this period. His behaviour deteriorated further when she told him she wanted to end the relationship. He stole her phone. He sent her many abusive text messages which need to be considered in more detail.
The text messages the mother asserts the father sent to her are in Annexure D1 to her affidavit. The document covers the period
23 February 2007 to 25 September 2009. For present purposes I will focus on the 2008 text messages on 19 July 2008 at 5:56pm, 31 July 2008 at 10:13pm, and 2 August 2008 at 9:48am and 10:05pm. The father emphatically denies that he sent the other messages. His evidence was that the messages he sent always ended with either: “[first name and initials omitted]”. It was implicit in the father’s case that none of the text messages he did send were abusive or threatening. The message sent 2 August 2008 at 10:05pm reads:
My personal slut is cumn ova in a little while if u want 2 join in 4 a 3sum like talkd bout or bring a bloke or anoth girl? [Woman’s name omitted] will do? [Initial omitted] x
The mother’s case is that she found this message, in the context of all the others, threatening, intimidating and abusive. I accept that this is a reasonable response to the text message in question.
The father’s assertion that he did not send the remaining messages needs to be closely scrutinised. The mother’s evidence that all the messages came on a phone that was, for all practical purposes, exclusively used by the father, is plausible. The father’s assertion that the mother received these text messages from other boyfriends is not plausible when one has regard to the messages which often refer to [X]. It is indeed strange that the father concedes he send a text message at 5:56pm on 19 July 2008, but not one at 9:08pm, when the context of the two messages are so closely linked. Moreover the father was cross-examined about the events that are referred to in the messages of
4 August 2008 and 16 August 2008 and his evidence leads to a strong inference that he was the author of those text messages.
The plausibility of the mother’s evidence is further enhanced by her diaries which became Exhibit R1. The mother gave evidence that her diaries were contemporaneous or near-contemporaneous records of the events to which they refer. She was not cross-examined as to her diaries. Her diary entries for 18 July-21 July clearly record the text messages for that period, but also provide a clear context of events based on what happened as well as a record of what the father said and did at the time. The diary entries are clearly corroborative of the mother’s assertions.
Counsel for the father submitted that the mother’s evidence about the text messages should not be accepted because the mother could not produce the phones containing the messages and also because there was no police record corroborating the mother’s assertion that he reported the father texting her to [omitted] Police. I do not accept that this detracts from the mother’s evidence in circumstances where there is such strong other corroborative evidence.
I therefore do not accept the father’s evidence that he did not send the other messages. I accept the mother’s evidence that he did. Not all the messages could be described as manipulative, offensive or threatening but many could be so described. For example:
21 July 2008 5.10pm
If you don’t come over & fuck me or got out dancing I’ll make you really fucking sorry
21 July 2008 6.44pm
u r so full of shit! i askd u 3 times 2 cum ova on fri! im not somthn u play with wen u done with ur friends im sorry take ur taitd luv & give it 2 sum othr sucka!
21 July 2008 8.00pm
You better come over & fuck me by the end of the week
21 July 2008 8.01pm
Time 4 phase 2!
21 July 2008 8.07pm
I’ll be nice & give u till sun?
25 July 2008 2.06pm
No use waitn round 4 a half assd attempt of luv from u! thanks 4 going out dancn with me or shown me new u.wear but i guess u keep that 4 strangers? gd luck if it keeps u happy u always do wat u want not wat ur askd wud upset!
31 July 2008 1.35pm
Bet my left nut u’ve been out an dancd with another bloke in those 8 months!0
31 July 2008 8.30pm
Come over Dinner Sat. If you don’t that fine but you’ll be sorry you didn’t.
20 September 2008 4.18pm
ur horse is runnin in the next race in syd! silent but deadly. lol honey
25 September 2009 6.11pm
u can have u & ur fathers wish ill try my best never to talk 2 u ever again! tell [X] i'll try 2 catch up b4 i die?
Certainly, from the mother’s perspective and in the context of the history she gives of the father’s conduct, it is reasonable for her to have experienced fear and apprehension about these messages. Her experiences in 2008 seem to have been exacerbated by the father’s inconsistent behaviour. She deposes at paragraph 23:
His behaviour has been bizarre. He would on one hand say abusive and threatening things to me and then shortly afterward be completely reasonable and has even invited me to dinner with “no strings attached”. He caused me to become extremely anxious. I could never predict his behaviour. I was always on edge. With the commencement of these proceedings I feel that I am going through all of this again.
The mother asserts that she attended counselling with the St George Domestic Violence Service in June 2008, continuing to 2010. This is corroborated by Exhibit R5, a letter from the service dated
12 November 2009.
The mother gives detailed evidence of events on 1 August 2008,
28 December 2008 and 26 January 2009. If I accept the mother’s evidence, [X] was clearly exposed to her father’s abuse of the mother, aggression and volatility. I found the father’s denials about these events to be bland and unconvincing.
The mother deposes at paragraph 46 of her affidavit that the abuse she was suffering was reported to her Centrelink social worker who supported her application for relief from having to seek employment. This assertion is corroborated by business records.
On 2 November 2009 the Police took out an ADVO on behalf of the mother against the father. The grounds of the application, consistent with the earlier ADVO, refers to a history of physical and verbal abuse that had not been reported to police. The most recent event referred to was another incident at [X]’s school on 26 October 2009. The application is supported by a detailed statement of the mother dated
27 October 2009. The mother’s evidence was that this ADVO could not be served on the father, and was then overtaken by later events. Both the mother and father were cross-examined about the events referred to in the mother’s statement. Once again I found the father’s bland denials to be unconvincing.
In any event on 23 November 2009 there was another incident at [X]’s school in which the mother asserts the father was abusive and threatening to her. This resulted in the father being charged and convicted of intimidation and having a four year AVO imposed on him. In evidence before me was the mother’s statement as well as the transcript of the proceedings before the learned Local Court Magistrate. My strong impression of the father’s evidence, both before the Local Court and this court, was that he greatly minimised these events and showed no insight into how his actions might affect both the mother and [X].
The mother has been receiving psychological treatment for the effects of exposure to family violence since March 2011. Exhibit R4, another business record of the [S] Health Service, refers to the mother presenting with symptoms consistent with Complex Post Traumatic Stress Disorder. Interestingly, the Family Consultant opined that the mother might be suffering from post traumatic stress disorder and she did not have access to Exhibit R4.
Documents produced on subpoena by the NSW Police also provides evidence about family violence and abuse. These records clearly document the reports made relating to the two incidents at the school and the previous ADVO which was not pursued. What is notable in these records is the consistent reports by the mother of a history of family violence that was not necessarily reported to the police. The documents also provide some further insight into the father’s character. The father was questioned and searched on 8 December 2010 at the [omitted] Hotel in connection with consumption of cannabis.
On 13 March 2010 he was arrested and charged with a mid-range PCA. On 27 July 2002 he was involved in a fight at the [omitted] Sydney.
Some of the most disturbing evidence in this case relates to a number of incident in [omitted] between the father and Ms E, a previous partner or girlfriend in 1997. The records indicate that on 20 April 1997 the father argued with his girlfriend, pushed her off a chair and slapped her on the face. On the preceding 3 March 1997 he had verbally abused her, hit her across the neck with his fist or forearm and abused her more. On 5 May 1997 he punched her with a closed fist to the mouth. On 21 October 1997 he hit her a number of times about the arms and body causing a fracture to her wrist and red marks around her legs and arms. The father was reported to have been arrested after a brief struggle and then charged. The outcome is not shown in the records.
The father was cross-examined about these incidents. He explained that Ms E had in fact fallen down some stairs and that is why she was injured. He agreed he had been convicted of resist arrest, assault occasioning actual bodily harm and assault and was sentenced to community service. He strenuously maintained his innocence in cross-examination insisting that he had not physically harmed Ms E. He had undertaken an anger-management course in 1997 or 1998 which, the father believes, taught him skills to better manage his anger.
I find of real concern the father’s evidence of these clearly violent events. He is convinced that he was wrongly charged and convicted, not just of the 1997 offences, but the more current 2009 offence. In his cross-examination the father said to the court that “it was not in his nature to be violent”. The facts suggest otherwise. His statement demonstrates significant lack of insight into his own behaviour. Just as he blamed Ms E for the 1997 incidents, likewise he blamed the mother, telling me in cross-examination that she has been abusive to him. He described the extent of the physical violence between the mother and himself as some pushing and shoving.
The totality of the evidence before me leads me to conclude that the mother’s allegations about the father’s violence, abuse, manipulation, threats, intimidation and controlling behaviour are, more likely than not, correct. I do not accept the father’s bland denials about this. I do not accept his evidence about the text messages. He has minimised the nature and impacts on other people of his behaviour. He does not believe there is an issue with his behaviour, let alone the need to do something about it. I do not accept the father’s counsel’s submissions that “with age comes maturity” in a case where the father’s immaturity is so plainly evident as recently as 2009. Indeed there is no evidence of maturity on the father’s part when it comes to the violence and abuse allegations. That maturity starts to manifest itself only when the father acknowledges and confronts his own behaviour, something he clearly has not done as yet.
Just as the shadow cast by family violence is a profound one, the findings I have made have profound implications on the father. It raises issues about protecting [X] from the harm that follows from being subjected to or exposed to family violence. It focuses attention on the impacts of this on the father’s relationship with [X]. It casts significant doubts on the father’s capacity to provide for [X]’s emotional needs. It demonstrates a worrying attitude to [X] and irresponsible parenthood.
Meaningful relationship
I do not believe that this is an issue in this case. Both the mother’s proposal, and the father’s proposal, would in my opinion provide for the meaningful relationship that [X] clearly enjoys with her father to be sustained into the future. Of course the mother’s proposal would result in the father being able to engage in a much narrower range of activities that might be the case on his proposal. That does not, in my opinion, detract from the relationship being a meaningful one, both now and into the future.
Protecting [X] from harm
Having regard to the matters I have set out above in the context of the family consultant’s evidence, and the findings I make about family violence, I accept that in this case there are real issues about protecting [X] from harm. The family consultant believes that there was the risk of physical harm if the father were unable to contain his anger. On the evidence before me his lack of capacity to self-regulate has been a real issue in the past, and indeed continues to be so at present. Having regard to this, it is a reasonable inference that, at least in the absence of the psychotherapy referred to by the family consultant, the father’s behaviour will not change.
My concern about the father’s lack of capacity to self regulate at present is demonstrated by an event which took place at court during the lunch break of the second day of the hearing. The mother alleges that there was an incident involving the father outside of the courtroom, and then outside of the court building. On behalf of the father it was conceded that, on leaving court, the father spoke to the mother’s solicitor, whilst he (the father) was speaking on a mobile telephone, and said words to the effect “Hope you’re happy. Now [X] won’t have a father in her life.” The maternal grandfather gave evidence about what he says took place outside of the court building. He asserts that the father said to both the mother and to himself (the maternal grandfather) words to the effect “If you get your way [X] will be without a dad.” He asserts that the father spoke in a raised voice.
The father gave evidence in reply. He described the maternal grandfather’s evidence as “complete lies … more lies from the mother and her father …” He asserts that he was speaking to his own mother at the time.
I prefer the evidence of the maternal grandfather. For the reasons that I have articulated in the context of discussing the family violence allegations, I do not accept the father’s evidence. It is instructive to focus on the concession made on behalf of the father, and that is that he said words to the effect “Hope you are happy. Now [X] won’t have a father in her life”. The father admits he says this. However, the father asserts that he said this to his mother on the telephone, rather than to the maternal grandfather, the mother, or the mother’s solicitor. I do not accept this. It is simply implausible and illogical that the father would say to his own mother that he hoped she was happy. I find that the comment was directed to the mother, the maternal grandfather and to those representing the mother.
The incident needs to be seen in context. It took place during the second day of the court hearing, in fact in its closing stage. The father was personally present in court for at least a day and a half when it must have been apparent to him that his conduct in the past was being subjected to intense scrutiny because of the insight it could provide about the future arrangements for [X]. Notwithstanding that he made comments that could only be considered as sarcastic, intemperate and immature. More than anything else, however, it demonstrates the father’s inability to self-regulate, even in a context where he was in a public place and supported by both a solicitor and counsel during the course of the hearing. If the father’s comments can be characterised as an angry outburst, how is [X] to be protected from this? If the father’s outburst can only be characterised as frustration, then what else will he say or do if he becomes frustrated with [X] or in the presence of [X]? His capacity to self-regulate his own behaviour is a real concern. There is a real risk in this case that [X] would be subjected, or exposed to, abuse or family violence perpetrated by the father either to her, or in her presence.
And yet the mother frankly recognises that [X] should have a relationship with her father and would benefit from so doing. She submits, quite properly I acknowledge, that the mother would have been entitled to seek supervised contact but has opted instead for daytime only contact on the basis that any risks to [X] are mitigated. The family consultant could see the logic behind this though articulating the concern that [X] could be just as vulnerable in her father’s presence in the daytime, as she would be at night time. Nonetheless, the fact is that, for the most part, [X]’s time with her father has been beneficial to her.
I am satisfied that the evidence before the court does raise issues about protecting [X] from the harm referred to above and that this is best achieved by restricting her time with the father to day times only, except during holidays provided these take place in the presence of the paternal grandmother.
The views expressed by [X]
As discussed above I accept that [X] has expressed views about spending more time with her father. For reasons previously articulated it is not in her best interests to spend more time than that proposed by her mother. This is a case where the concerns I have about her welfare are greater than the statutory recognition of her views that I need to respect.
[X]’s relationships
All of the evidence indicates that [X] has a good relationship with her mother, father, maternal grandparents, and paternal grandmother. I am satisfied that these relationships will be maintained by making the orders proposed by the mother. The qualitative benefit to [X] of spending more time with her father, and thus deepening her relationship with him, needs to be balanced against the concerns that I have expressed above.
Willingness and ability to facilitate continuing relationships
I am truly impressed by the mother’s commitment to facilitate [X]’s ongoing relationship with her father given the findings that I have made about the violence and abuse that she has survived over many years. There can be no criticism of her in this regard. I am satisfied that there is no real risk of the father seeking to undermine [X]’s relationship with her mother.
Likely effect of changes in the circumstances
The mother’s proposal involves little or no change. The father’s proposal would involve [X] spending more time with him, but for the reasons I have articulated above I do not regard this to be in her best interests. Even on the mother’s proposals, she will continue to have relationships with all of the important people in her life.
Issues of practical difficulty and expense
Both parents seem to have managed to maintain the parenting arrangement despite living significant distances apart. There are no relevant issues on the facts of this case.
Parental capacity
I have no doubt about the mother’s capacity to provide for all of [X]’s needs. She has done so admirably to date notwithstanding the abuse and violence she suffered at the hands of the father. By contrast, whilst I’m satisfied the father can amply provide for the physical needs of [X], he demonstrates no understanding or insight about her emotional needs, particularly in the context of his own abusive and violent behaviour. He is a poor role model for her. When the father says that “[X] won’t have a father in her life” it suggests a real deficit in understanding the emotional needs of [X] to have her father in her life, even if it is for day times only. Comments such as these, as well as his past behaviour, demonstrate a real lack of understanding of [X]’s needs, let alone a capacity to provide for them.
Attitudes to [X] and responsibilities of parenthood
Much of what I already referred to suggests that the father’s attitude to [X] seems to be focused more on meeting his own needs, rather than those of his daughter. His violent and abusive behaviour, as well as his past and current attitudes about it suggest irresponsible parenthood.
Parental responsibility
Whilst the father’s application was for equal shared parental responsibility, during closing submissions his counsel conceded that there should be an order for sole parental responsibility in favour of the mother, provided the father was kept informed about decisions relating to [X]. I am satisfied that, for all practical purposes, that in fact is the order proposed by the mother. I will therefore make the order as proposed by the mother.
Equal time or substantial and significant time
Whilst, technically, I am not required to consider equal time or substantial and significant time, I propose to do so in any event. Neither party proposed equal time and in any event it is neither reasonably practicable nor in the best interests of [X], for the reasons I have articulated above. The father’s proposal could be construed as an application for substantial and significant time. However, it is not in the best interests of [X] for the reasons that I have set out above, particularly in connection with the father’s past violence and abuse and current inability to self-regulate his behaviour. In any event, substantial and significant time is not reasonably practicable having regard to the distance that the parents live from each other and their inability to communicate.
Orders in the best interests of [X]
In the circumstances of this case I accept the mother’s proposal for sole parental responsibility, for [X] to live with the mother, and for [X] to spend time with her father each alternate weekend from 10 am to 4 pm Saturday, and during school holidays provided such is spent at the home of the paternal grandmother who is in residence at the time. Changeover will need to continue to occur at [W] Contact Centre, but there is the alternative proposed by the mother.
Orders
That the mother have sole parental responsibility for the child [X] born [in] 2001 and shall keep the father informed of any significant aspects of her long term care, welfare and development.
That the child live with the mother.
That the child spend time with the father as follows:-
a)Each alternate weekend from 10am to 4pm Saturday.
b)During school holidays (excluding the Christmas school holiday period) – from 10am on the first Sunday of each school holiday period to the following Friday to 3.30pm provided that the father's time is spent in the paternal grandmother's residence and the paternal grandmother is in residence at that time.
c)Order 3 (a) is suspended during the first two weeks of any school holiday period.
d)During the Christmas school holiday period in each odd numbered years from 2pm Christmas eve at 2pm 30 December and in each even numbered year from 2pm 27 December to 2pm 2 January provided that the father's time is spent in the paternal grandmother's residence and the paternal grandmother is in residence at that time.
e)The father's time with the child shall be suspended during the first two weeks of the Christmas school holiday period except as provided for in the order immediately above.
f)On the Saturday closest to the child's birthday from 10am to 4pm.
g)That the father's time with the child be suspended on Mother's Day weekend.
h)On Father's Day from 10am to 4pm.
i)All change over is to occur at the [W] Contact Centre where it is available. In the event that the Centre is unavailable then changeover is to take place at the [R] MacDonald Restaurant.
That the father be restrained from consuming alcohol in excess of 0.05 during periods of time that the child is in his care.
The father be restrained from consuming any illegal drug during periods of time that the child is in his care and shall provide a urinalysis to the mother once every three months. In the event that the father's drug screen shows a positive result for any illegal drug then the time that he spends with the child shall be suspended until such time as he is able to provide a clean drug screen.
That the mother be permitted to delete any reference to her address for the child's school and any school report and the like that she is required to provide to the father in accordance with Order 1.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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