MARROW & PERIWINKLE

FAMILY COURT OF AUSTRALIA

MARROW & PERIWINKLE

[2018] FamCA 637

FAMILY LAW – CHILDREN – Parental Responsibility – Where both parents seek that they have sole parental responsibility for the children – Where it is an agreed fact that the father has engaged in family violence and therefore the presumption of equal shared parental responsibility does not apply – Where the parents have shown no ability to work together cooperatively – Where the mother will have the primary care of the children – Where the mother is to have sole parental responsibility for the children.

FAMILY LAW – CHILDREN – Where there are two children aged 12 and 10 – Where both parents seek that the children live with them and spend no time with the other parent for a period of at least 12 months – Where the father alleges that the mother has engaged in parental alienation of the children – Where the father has perpetrated family violence against the mother in the past and has been convicted of assault of his current partner – Where the expert states that the father has no insight into his previous violent behaviour – Where it is not safe for the children to be exposed to the behaviour and attitudes of the father – Where the children will live with the mother and spend no time with the father.

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Family Law Act 1975 (Cth) s 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65Y, 68B

Champness & Hanson (2009) FLC 93-407
McCall & Clark (2009) FLC 93-405
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Ms Marrow

RESPONDENT:

Mr Periwinkle

INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

FILE NUMBER:

SYC

6544

2015

DATE DELIVERED:

23 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

9, 10 & 11 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Carter O’Neill Legal Pty Ltd

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Conte-Mills

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

Orders

All existing parenting orders concerning X born … 2006 and Y born … 2007 (“the children”) are discharged.
Ms Marrow (“the mother”) be granted sole parental responsibility for the children.
The children shall live with the mother.
The children shall spend no time with Mr Periwinkle (“the father”).
The father will have no communication with either of the children except at the request of a child and, in that event, the mother shall facilitate that communication.
For the purposes of s 65Y of the Family Law Act1975 (Cth) (“the Act”) the mother (and if he is permitted by a later Court order to spend time with the children, the father, during that time) is permitted to temporarily take the children outside Australia without the consent, in writing or otherwise, of the other parent.
For the purposes of such travel outside Australia, the names of the children shall be removed from the Family Law Watchlist and the Court requests that the Australian Federal Police give effect to this order by removing the names of the said children from the Family Law Watchlist in force at all points of arrival and departure at and from the Commonwealth of Australia.
The parents are at liberty to provide a copy of the Family Report dated 16 September 2017 to a medical practitioner or therapist who is providing treatment and therapy to either of the children or to that parent.
Pursuant to s 62B and s 65DA(2) of the Act, 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.
Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other, in relation to the wording of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marrow & Periwinkle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC6544 of 2015

Ms Marrow

Applicant

And

Mr Periwinkle

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings about X who is 12 years of age and Y who is 10 years of age.
Each of the parents seek sole parental responsibility, that the children live with that parent and that, at least for 12 months, they spend no time with the other parent.
The children have lived with the mother since separation in 2009. Until the release of a Family Report dated 16 September 2017 the children had been spending alternate weekends with the father. The report identified a number of possible risks associated with the father’s time and upon its release the mother refused to send the children to spend time with the father. That remained the situation until the final hearing.
The Independent Children’s Lawyer (“ICL”) sought orders in similar terms to those proposed by the mother and recommended by the single expert. The final orders will include provision for the children to live with the mother and for her to have sole parental responsibility for them. The children will spend no time with the father. What follows is the reasons for those orders.

Applications

The mother seeks the following orders in accordance with a minute submitted on 11 July 2018[1]:
[1] Exhibit 26.
1.All existing parenting orders concerning the children [X] born … 2006 and [Y] born … 2007 are discharged.
2.That the Mother, [Ms Marrow], be granted sole parental responsibility for the children.
3.The children live with the mother.
4.The children shall spend no time with the father.
5.The children have no communication with the father, unless the children request such contact.
6.The Court order the removal of the childrens [sic] names from the Family Law Watchlist and the Australian Federal Police give effect to an [sic] order by removing the names of the said children on [sic] the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
7.An order that the childrens’ [sic] practitioner who is providing treatment and therapy to the children be provided with a copy of the Family Report dated 16 September 2017.
8.An injunction be granted for the protection of the mother and children from the father, and he hereby be restrained from the following:
a.Assaulting, molesting, harassing, threatening or otherwise interfering with the protected person or a person with whom the protected person has a domestic relationship,
b.Engaging in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship,
c.Stalking the protected person or a person with whom the protected person has a domestic relationship.
d.The father must not enter the premises at which the protected person(s) may from time to time reside or work and from the childrens’ [sic] school.
e.The father must not approach or contact the protected person(s) at any place they may be, including specifically [Suburb B], by any means whatsoever, except through the defendant’s [sic] legal representative or as agreed in writing or permitted by an order or directions under the Family Law Act 1975, for the purpose of counselling, conciliation or mediation.
During final submissions the mother’s solicitor indicated that the mother would also seek orders permitting her to temporarily remove the children from the Commonwealth of Australia together with an order enabling her to have passports issued for the children without requiring the father’s signature. I ordered that a minute of those orders be provided to my chambers and to the other parties within seven days. On 24 July 2018 an email was sent to all parties containing the following orders sought:
1.The Mother have liberty to remove the children from Australia for the purpose of holiday periods and to that end, the necessity for the consent of the father to the issue of a passport to the children and for such travel be dispensed with.
2.The Minister must issue to the Mother an Australian travel document for each of the children, being [X] born … 2006, and [Y] born … 2007, by virtue of this Court Order permitting
i) the children to have an Australian travel document; and
ii) the children to travel internationally.
and provide such Australian travel document to the Mother, being the sole person who has parental responsibility for the children and without the need of any such consent from the Father.
The father seeks orders as detailed in his case information document provided to the Court by email on 3 July 2018 subject to the amendment to the period specified in paragraph 4 a) as follows:
1.All previous orders discharged
2.The children [X] born … 2006 and [Y] born … 2007 (‘the children’) live with their Father.
3.The father have sole Parental Responsibility for the children.
4.The children spend no time with or have any communication with the Mother other than agreed between the parties in writing until
a)a 24 12 month minimum period has passed and;
b)The Mother and her husband complete a Kids in Mind course and;
c)The Mother seeks Psychological therapy with a Parental Alienation specialist and the therapist is satisfied that the Mother can interact with the children without emotionally abusing them.
5.At this time, the children shall decide who they wish to live with and spend time with, and how and how [sic] often they communicate with the other parent.
During the course of final submissions the father said something to the effect that he sought the orders he did because of something I had said to him at an earlier court event. If I understand the father and recall the event correctly, at an earlier listing he had proposed orders that while continuing to reside mainly with the mother, the children would spend overnight time with him. At least part of his justification for those orders was said to be that the mother’s husband, Mr Marrow, abused alcohol and/or illegal drugs. It may be that I pointed out to the father the lack of logic in such a case. In any event, the father did not press the matter on 11 July 2018 and I took it no further with him.
The father was asked about the injunctions sought by the mother at paragraph 7 of her minute and about the orders she proposed in relation to overseas travel. I understood him to say that he strongly opposed the granting of the injunctions while indicating that in his view, they would in any event be unnecessary. I understood the father to say that he did not oppose the orders in relation to overseas travel provided they are expressed in mutual terms.
The ICL sought orders in terms of a minute[2] that was submitted on 11 July 2018 as follows:
[2] Exhibit 28.
1.That the mother, [Ms Marrow], have sole parental responsibility for the children [X] born ...2006 and [Y] born ...2007.
2.That the children shall live with their mother.
3.That the father communicate with the children as follows:
(a)by sending letters, cards and/or gifts on the occasion of the children’s birthdays and Christmas if he so chooses;
(b)by telephone (including Skype or Face time or similar internet services) if the father so chooses, on one occasion each month, being the first Saturday of every month between 7:00pm and 7:30pm (unless otherwise agreed in writing between the parents) and on the day of each child’s birthday and Christmas Day between 7:00pm and 7:30pm with the father to initiate the phone call to a number as provided by the mother and the mother to ensure the children are available to take the call.
4.That apart from Order 3 herein, no orders are made for the father to spend time with the children.
5.That the mother shall keep the father informed as to the telephone contact details and address details to enable the father to communicate with the children in accordance with Order 3 herein and shall advise the father in written form within seven (7) days of any change to these contact details.
6.That in the event that the father participates in therapeutic intervention/s (as outlined in the notation below) then the father shall provide any treating therapists/practitioners with a copy of the Family Report of [Ms C], dated 16 September 2017 to assist any treating therapist/practitioner in their treatment of the father.
Notations
(a)The Court notes that subject to the father’s participation in intensive individual therapy of at least twelve (12) months duration (the frequency of such therapy sessions being at the discretion of the treating therapist), any further application he may make to the court in relation to his time with the children will not be subject to meeting the threshold test regarding the demonstration of a change of circumstances pursuant to the case of Rice & Asplund, subject to notations (b) and (c) herein.
(b)Should the father participate in individual therapy then he is to engage in and satisfactorily complete the therapy program/s which are to include and address:
(i)a program of behaviour change aimed at men who have used violent behaviour in interpersonal relationships;
(ii)anger management;
(iii)emotional regulation;
(iv)understanding of children’s needs in circumstances where their biological parents are separated and in circumstances where children have witnessed family violence;
(v)drug and alcohol assessment and counselling.
(c)That prior to the father filing any further application (not less than twelve (12) months after the date of these orders) he is to:
(i)Attempt to resolve the matter through formal mediation by an accredited family law mediator/mediation service; and,
(ii)Provide the mother with a comprehensive report from his treating therapist/s in relation to the issues outlined herein in notation (b) (i)-(v) inclusive; and,
(iii)In the event the issues cannot be resolved at mediation then the comprehensive report from treating therapist/s is to be provided to the Court as part of the father’s evidence for any further application.

Written Evidence

The mother relied on the following documents:
(a)Initiating Application filed 6 October 2015;
(b)the mother’s affidavit filed 2 May 2018; and
(c)affidavit of Mr Marrow filed 2 May 2018.
The father relied on the following documents:
(a)Amended Response to Initiating Application filed 1 August 2016;
(b)the father’s affidavit filed 26 May 2018;
(c)the father’s affidavit filed 1 May 2018; and
(d)affidavit of Ms D filed 1 May 2018.

Expert Evidence

The expert evidence was provided in a Family Report prepared by Ms C dated 16 September 2017.

The Hearing

The mother was represented by her solicitor, the ICL appeared by counsel but the father did not have legal representation. I explained to the father the format the trial would take and invited him to ask questions about procedural matters. Notwithstanding the unorthodox nature of the father’s evidence and the presentation of his case, the legal representatives for the mother and the ICL did not take formal objections and I am grateful for the practical and cooperative approach taken by them. I should also say that in the difficult circumstances of being a lay advocate in his own cause, the father was polite and cooperative during the trial.
Prior to the commencement of the trial the mother’s solicitor raised the matter of two outstanding contravention applications filed by the father, one filed in 2015 and one in 2017. The father said that he understood that he had withdrawn the 2015 application and I noted that fact. As to the 2017 application, the father wished to proceed with it. I discussed the issues with the parties and left learned counsel for the ICL to settle a draft trial plan for the four days allocated to the matter and to seek an agreement between the parties about the contravention application. I indicated that I doubted that the parenting trial could be completed if the contravention application was also heard; that if both applications were heard, the contravention application would need to be heard first; and that if the contravention application was withdrawn, that would not prevent the father raising those same issues in a later application, if there remained similar parenting orders in force. Despite those intimations, on returning to the Court I was advised by the ICL’s counsel that the parents had agreed that the first day of the trial would be taken up with the contravention hearing.
The contravention hearing commenced but for reasons given at the time, the application was shortly dismissed.
The parenting hearing then commenced. The ICL’s counsel settled a draft trial plan with the parties but it was revised on 10 July 2018, when I was informed that the hearing would conclude a day early, on 11 July 2018. On 11 July 2018 the hearing concluded and save for the provision of a minute of order sought by the mother about overseas travel, judgment was reserved.

Short History

The mother was born in 1973. As at the date of the hearing she was 44 years of age. The father was born in 1974. As at the date of the hearing he was also 44 years of age. The parties commenced living together in 1995, were married in 2005 and separated on a final basis in 2009.
X was born in 2006 and Y was born in 2007. They are the parents’ only children.
As at the time of the hearing the children had not spent any meaningful time with the father since September 2017.

Credibility and Submissions

There are a number of disputed issues in respect of which objective evidence is not available to support a finding of fact. In that regard, the available evidence is the testimony of the parents and their current partners.
I did not detect any significant attempt by any of the witnesses to mislead the Court. To my observation each of the witnesses appeared to genuinely believe their version of controversial events. In some cases the factual dispute was more a matter of perception than concrete fact. Where practicable findings of fact on disputed events fall to be made issue by issue.

Background Facts

In 1995 the parties began living together.
The parties were married in 2005.
X was born in 2006.
Y was born in 2007.
The parties separated in 2009. Following the separation the father was diagnosed with anxiety and depression. He took some time off work and he was supported by a nurse. He also started seeing a psychologist.
After separation the mother and children moved out of the former matrimonial home to a residence in F Town. There is some controversy about the duration of their stay in F Town but I gather that it was for at least a month.
In May 2010 the wife met Mr Marrow.
In late 2010 the parties were divorced.
On 1 February 2011 orders were made by consent providing that the parents have equal shared parental responsibility for the children and that the children live with the mother and spend four nights per fortnight with the father.
On 9 September 2011 the mother and Mr Marrow moved to Suburb B, in Northern Sydney.

In 2011 the mother and Mr Marrow were married.
The father and Ms D commenced living together in about April 2014.[3]
[3] The father and Ms D were not sure about that during the trial but that is what Ms C was told.
In 2014 the children, the father and Ms D travelled to Asia for a holiday.
In February 2015 the father was retrenched from his job.
On 11 June 2015 the father assaulted Ms D. She suffered two black eyes and a split lip. The father and Ms D claim that Ms D hit him and that following a lengthy argument, he hit her. The children were not with the father at the time of the assault. The assault was not reported to the police by the father or Ms D but the police later made enquiries of Ms D. Initially Ms D lied to the police about the cause of her injuries but ultimately she admitted what had occurred. The father was charged on 14 June 2015.
On 27 July 2015 the mother says that the children disclosed to her that the father hits Ms D. Following that disclosure the mother contacted Suburb F Police.
On 4 September 2015 a hearing took place at Suburb G Local Court in respect of the assault on 11 June 2015. Later in September 2015 the father was convicted of assault occasioning actual bodily harm and was placed on a good behaviour bond for 12 months. An apprehended domestic violence order was also issued for the protection of Ms D. As a result the father was precluded from consuming alcohol for 12 months.
In 2015 the father was again diagnosed with anxiety and depression and started medication and treatment with his local GP.
On 5 February 2016 orders were made for the parties to enrol in the intake at a Contact Centre so that the father could spend supervised time with the children as soon as possible. It was noted by the Court that the father was not spending any time with the children at the time the orders were made.
In March 2016 the father completed a “Keeping Kids in Mind” course through the H Group.
On 3 November 2016 interim parenting orders were made by consent, providing for the previous orders to be discharged, the parents to have equal shared parental responsibility, the children to live with the mother and spend time with the father for gradually increasing periods leading to alternate weekends from 5.30 pm Friday to the start of school the following Monday. Orders were also made by consent for the father to spend half the school holidays with the children as well as special occasions and for him to have telephone contact with the children twice a week.
The father says that the mother did not make the children available to spend time with him on 24 December 2016.
On 7 April 2017 orders were made providing that the children spend time with the father from 11.00 am Saturday 8 April 2017 until 11.00 am Sunday 16 April 2017. It was also ordered that the arrangements specified in orders made on 3 November 2016 were to continue but the children’s time with the father was thereafter to commence at 4.30 pm on Fridays.
On 18 September 2017 the Family Report of Ms C was released.
On 21 September 2017 the proceedings were transferred from the Federal Circuit Court to this Court.
On 22 September 2017 the mother did not make the children available at changeover.
From 22 September 2017 to 9 November 2017 the father spoke with the children by telephone on Tuesdays and Thursdays.
On 14 November 2017 the father called the police as he was unable to contact the mother and children.
On 5 December 2017 interim orders were made by Senior Registrar Campbell for the children to live with the mother; for the mother to have sole parental responsibility for the children limited to those decisions necessary to ensure that the children engage in counselling or therapy; and for the father to spend no time and have no communication with the children other than as agreed in writing.
On Christmas Day 2017 the children spoke to the father over the telephone at their request.
On 19 February 2018 the matter was listed for hearing over four days commencing 9 July 2018.
In late March 2018 the father spoke to the children over the phone on the occasion of his birthday.
The father contends that Y has been absent from school for more than 11 per cent of the time, this year. The mother disputes that assertion.

The expert evidence

The single expert was Ms C. Her qualifications include the following degrees:
·Master of Health Science (Child and Adolescent Health);
·Bachelor of Arts (Psychology).
Ms C’s work experience includes the following roles:
·Regulation 7 Consultant in the Federal Circuit Court and Family Court of Australia;
·Witness Intermediary;
·Psychologist;
·Child Protection caseworker.
Ms C prepared a Family Report in this matter dated 16 September 2017.

The Legislation

The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC of the Act identifies the matters that are relevant to the determination of what is in a child’s best interests. Subsection 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in subsections 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII of the Act starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. Findings are made by reference to what is in the child’s best interests.
For the purposes of the determination of these proceedings, I will adopt the following approach:
(a)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
(b)where possible and relevant, consider and make findings about matters set out in s 60CC;
(c)consider and make findings about parental responsibility, including considering the presumption in s 61DA;
(d)apply s 65DAA of the Act if relevant and assess the proposals in light of that provision;
(e)if s 65DAA is not relevant, assess the proposals against the best interests criterion;
(f)consider and make findings about living arrangements; and
(g)make orders.

The Proposals

From the parties’ applications it is agreed that one parent should have sole parental responsibility for the children and that they should live with that parent and have no time with the other parent, at least for a significant period.
The parents disagree as to who the resident parent should be.
Neither the single expert nor the ICL proposed a different format of orders to those presented by the parties. No other pattern of orders was canvassed during the hearing.

Key Issues

The range of dispute is to identify the parent who should exercise parental responsibility and with whom the children should live.

Section 60CC considerations

The section[4] specifies the following considerations:
[4] The case information documents lodged on behalf of the parents refer to some s 60CC factors as they applied to proceedings commenced prior to June 2012. It is possible therefore that the priority that is now to be given to s 60CC(2)(b) and the expanded definition of family violence, escaped the attention of the drafters of those documents. This issue arose during oral submissions and I indicated that I could take account of arguments based on the previous wording of s 60CC(3)(c) under the catch-all criterion in s 60CC(3)(m).

Primary considerations

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents

A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[5] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[5] McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[6]
[6] Champness & Hanson (2009) FLC 93-407.
Both parents report that they have close and positive relationships with the children. It is recorded in the Family Report dated 16 September 2017 that the mother acknowledged that the children love their father.
Each of the parents ultimately conceded that there is a meaningful relationship between each of the children and the other parent.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

‘Abuse’ and ‘family violence’ are defined terms under the Act. Section 4 provides:
abuse, in relation to a child, means:
(a)an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Section 4AB of the Act provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d) repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member‘s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child‘s family towards another member of the child‘s family; or
(b) seeing or hearing an assault of a member of the child‘s family by another member of the child‘s family; or
(c) comforting or providing assistance to a member of the child‘s family who has been assaulted by another member of the child‘s family; or
(d) cleaning up a site after a member of the child‘s family has intentionally damaged property of another member of the child‘s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child‘s family by another member of the child‘s family.
Subsection 60CC(2A) deals with the weight to be given as between the primary considerations as follows:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The mother has made a number of allegations about family violence perpetrated against her and the children by the father. The father has conceded that he pushed the mother into the water from a dinghy in front of the children however he denies all other allegations of physical violence against her.
In relation to the incident where the father pushed the mother out of the dinghy, Ms C made the following observations about the father in her report dated 16 September 2017 at page 19:
He reported being unable to recall the circumstances leading to his actions, but acknowledged that he had consumed alcohol prior to him pushing [Ms Marrow] out of the boat. He stated, “I lost it. I pushed her out of the boat”. When asked to explain how he had pushed her; [Mr Periwinkle] stated, that, he had pushed [Ms Marrow] with his open hands against her shoulders when she was facing him, and she fell backwards into the water…[Mr Periwinkle] stated, “I don’t lose it very often. I consider myself reasonable.”…He hung his head down and looked at his hands at this time, in what appeared to be body language indicating remorse. [Mr Periwinkle] then appeared to quickly change his mind. He then stated, that, if this incident was the worst thing to happen to [Ms Marrow], then she “has nothing to complain about”. He then took the approach of minimising his actions, claiming that pushing someone off a boat was not such a big deal…When asked what it might have been like for [X] and [Y] to witness their mother being pushed off a boat, [Mr Periwinkle] did not answer this question. Instead, [Mr Periwinkle] advised me that [X] and [Y] were just babies at the time, and they do not remember it happening.
I understood from that last comment that the father may believe that no harm could come to children exposed to violence unless they were old enough to remember the event. That issue was taken up with the report writer during her oral evidence. She confirmed that there is no basis for believing that the older a child is, the greater the potential harm would come from being exposed to violence. Indeed she agreed that the opposite is true, that the younger the child is, the greater the potential harm from exposure to violence. The father’s failure to appreciate this fact could well have left the children exposed to conflict that caused them psychological if not physiological harm.
The father was convicted of assault occasioning actual bodily harm on his current partner, Ms D, in September 2015. Ms C made the following observations from her interview with the father on page 20 of her report:
[Mr Periwinkle] discussed the incident with Ms D which led to him being charged with assault occasioning actual bodily harm (domestic violence). Mr Periwinkle stated, that, this incident occurred “after a long day of abuse from [Ms D]” ([Ms D]) and he then “lost it” as he “just wanted her to shut the fuck up”. He said he had been drinking alcohol prior to assaulting [Ms D] and described his level of alcohol consumption on this date as “too much”. About the assault itself, [Mr Periwinkle] stated, that, “it was not right” and “it should not have happened”. [Mr Periwinkle] was asked what he would do differently in the future to avoid assaulting [Ms D] if he was angry or felt himself beginning to ‘lose it’. [Mr Periwinkle] said that he does not have to do anything differently in the future, as it is not going to happen again. When challenged on this response, [Mr Periwinkle] was not able to identify any strategies he could use to avoid assaulting [Ms D] if he felt himself beginning to ‘lose it’.
It is the mother’s evidence that the children have disclosed to her that they have overheard arguments between the father and Ms D. The children reported a similar account to Ms C during interviews where they each stated that they had heard the father yell at Ms D while the children were in bed trying to get to sleep. The father denies that the children could have overheard him yell at Ms D. He did concede that it is possible that the children may have heard him and Ms D having sex in the other room.
At page 30 of her report, Ms C reported that Y said that she had considered interjecting herself into the arguments and fights between the father and Ms D to protect Ms D from the father.
It is likely that the children have been exposed to arguments between the father and Ms D.
It is the father’s belief that the mother has alienated the children against him and has therefore prevented the children from maintaining a connection with their father.
Ms C made the following evaluation in relation to family violence between the mother and father in her report on page 35:
The information available during this assessment is strongly suggestive of [Mr Periwinkle] having perpetrated family violence against [Ms Marrow], and of this family violence being of a coercive, controlling nature, rather than the situational-violence [Mr Periwinkle] claims. Although he acknowledged one single incident of violence, [Mr Periwinkle] minimised the severity of actions and denied that it could have possibly had an impact on his children…Interviews with [X] and [Y] indicate that they have been exposed to an extremely high level of conflict between their father and mother. They both reported hearing their father swear at, verbally abuse and speak aggressively to and about their mother in their presence….This assessment provides strong support for the proposition that [X] and [Y] have been exposed to family violence perpetrated by [Mr Periwinkle] against [Ms Marrow].
Ms C identified in her report on page 37 that the father’s assault of Ms D only came to light following an anonymous tip off to police. She stated that the father minimised the severity of the behaviour, trivialising it to just “a fight”. She said that Ms D’s willingness to accept responsibility for the father’s violent behaviour through ‘provoking’ him is of great concern. She reported that the father does not see changing his behaviour as a necessary component of his ongoing relationship with Ms D. In relation to the reports from X and Y of the father’s purported continual assault of Ms D, Ms C offers two explanations. Firstly, that there is a much higher level, frequency and severity of family violence than either the father or Ms D acknowledge. She describes this hypothesis as “more probable”. A second explanation may be that the children have been manipulated to report false allegations against their father. However Ms C reports that there was nothing to suggest that either child had been coached to report false allegations, they both appeared to have formed their own independent and age-appropriate opinions about the relationships and dynamics of their family.
In relation to Y, Ms C reports that her individual interview indicated that she is experiencing anxiety when spending time with the father and Ms D. She reports that Y appears to internalise the anxiety. Ms C reports that Y is at high risk of developing psychological disorders, such as clinical depression or anxiety during adolescence if she is required to spend time with the father. She observed that Y is at high risk of becoming a victim of family violence in her own interpersonal relationships due to the role modelling she has observed from the father’s treatment of women.

In relation to X, Ms C reported that he also appears to internalise his psychological state and that she has great concerns for his psychosocial development and psychological adjustment as he enters adolescence if he resumes spending time with his father. She reported that this is due to X’s internalisation of his emotional state, emotional constriction, having a role in trying to maintain the secrecy of family conflict and possible violence occurring, and ongoing exposure to potentially traumatic events. She reported that X’s mean and potentially aggressive behaviour directed towards Y was of great concern. She states that the role modelling he has been exposed to as a result of the father’s behaviour towards women indicate that he is at high risk of becoming a perpetrator of family violence in his own interpersonal relationships.
In the circumstances of this case, this is a critical criterion. It is an agreed fact that the father has been violent to the mother and in the presence of the children. The father concedes that he has a propensity for angry reactions. The incidents conceded by the father occurred when the father was affected by alcohol. The father has no strategy to address these issues in the future. His attitude is that they will simply never again arise.
As I will discuss later in these reasons, the father’s violent behaviour has occurred more often than he concedes.
Any tension between keeping the children safe from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the priority of the meaningful relationships with their parents must be resolved in favour of safety.

Additional Considerations

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

In her report, Ms C recorded the following during X’s interview with her on page 26:
When asked about his thoughts on living with, and spending time with, his mother and his father, [X] reported that he would like to continue the current arrangements that are in place. He indicated that he wants to continue living with his mother and [Mr Marrow] and to keep spending time with his father and [Ms D] each alternate weekend. [X] reported that he would like to continue spending half of each school holidays with his mother and his father.
It is an agreed fact that each of the children love each of their parents and each of their parents’ new partners. It appears that Ms C did not directly canvass Y’s views about spending time with her father. However, Y described feelings of anxiety when spending time with the father and Ms D. She told the report writer that she has considered interjecting herself into arguments and fights between them. She reported that Y said “It makes me want to do something, but I’d be scared to do something. I want to say ‘stop’ [to Mr Periwinkle] but I feel that he might get angry with me. I don’t want to say anything because I’m scared.”
The factors in this case that support the mother’s proposal do not rely on the children’s views. If there is found to be an unacceptable risk for the children in residing with the father, it would be irrelevant that either of the children wished to live with him and not with the mother. Again, the children’s safety must have priority over their wishes.

(3)(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)

The Family Report indicates that the children have reported positive relationships with each of their parents’ new partners, Mr Marrow and Ms D.
Ms C observed the children to be very comfortable and settled with the mother on the day of her interviews. When seen with the father and Ms D the children were observed to have a casual playful relationship. Y appeared to be initially cautious in relating to the adults, perhaps because of her earlier conversation with the report writer about spending time with them. Ms C observed that the father hugged each of the children and they, in turn, hugged him back.
The mother has arranged for the children to see their paternal grandfather. He was not observed with the children by Ms C and there is no other evidence about their relationship with him.

(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and

(iii) to communicate with the child

I am satisfied that both parents have taken all opportunities to participate in making decisions about the children, spend time with the children and communicate with the children.
The father has not seen the children since September 2017 however this was not due to a failure by him to take opportunities to do so.

(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

There is some controversy about this question but it does not assume importance in the overall context of these proceedings. The mother conceded that the father has met his child support obligations. Ms C gained the impression that the mother was apathetic about the father’s child support payments. That was put to the mother in cross-examination by the father and she agreed. She said that she accepted that it would have been difficult for the father to make payments when he had no income.
On the other hand the father is very concerned that the mother does not adequately provide for the children. For example, he and Ms D report being alarmed from time to time by the state of disrepair of the children’s clothing and shoes. The mother’s income and her use of the child support payments made by the father over the years are themes in the father’s SMS discourse with the mother and they were also raised in the course of these proceedings.
There is nothing in the independent material about inadequate financial support for the children coming to the attention of school or other authorities. On the face of it the father and Ms D seemed more prepared to complain about those matters than to take a more constructive approach. Replacing an offending garment comes to mind.

(3)(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;

During his oral evidence, the father was asked about the impact on the children of a 12 month separation from their mother which he proposes. He responded to the effect: “I think they will be just as upset as when they were ripped from my care.” I am not sure whether he intended by that remark to be asserting that the earlier separation would better fit the children to be separated from their mother or that the court might view a second separation from a parent as of lesser concern because of the first. He said that the children were used to being exposed to only one parent. He said that they would be upset and confused but with counselling and education, that could be combatted.
Ms C was asked about the effect on the children of a 12 month separation from their mother and she said that there would be a: “devastating impact on them. It would have a significantly negative impact on their psychological wellbeing.” She was asked about the behaviours that the children might exhibit in that case and responded: “grief, anger, confusion, anxiety, depression”.
In her 2017 report Ms C reported a great concern for X’s psychosocial development and psychological adjustment as he enters adolescence if he continued to spend time with his father in accordance with the orders then in force.
Ms C opined that X’s mean and potentially aggressive behaviour directed towards his younger sister is of great concern. She reported that the role modelling to which he has been exposed as a result of the father’s behaviour towards women indicates that he is at high risk of becoming a perpetrator of family violence in his own interpersonal relationships.
Ms C also reported great concerns for Y’s psychosocial development as she enters adolescence due to her internalising her anxiety, being silenced from talking about her experiences of trauma and ongoing exposure to potentially traumatic events. She opined that Y is at high risk of developing psychosocial disorders, such as clinical depression or anxiety, during adolescence if she remained subject to the then existing orders for spending time with the father. Y is at high risk of becoming a victim of family violence in her own interpersonal relationships due to the role modelling she has observed from the father’s treatment of women.
As to the impact on the children of a continued separation from their father, Ms C said words to the effect:
I believe [X] and [Y] have a strong sense of their relationship with their father. They know who he is and that they belong to him. I do not see that it would have a significantly negative impact being separated from him due to the concerns about their safety and their anxiety around that.

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

Given the two proposals for living arrangements there are no issues relevant to this criterion.

(3)(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

Each of the parents claims that the other parent has been intoxicated while caring for the children. They each rely on recordings of the other which they contend reveal the other parent (and Mr Marrow) to be under the influence. The mother relied on a voicemail message left by the father on her telephone. The message was referred to at paragraph 77 of the mother’s affidavit and it is the mother’s evidence that she recognised in that message the manners of speech that indicate to her that he was drunk. The father’s comments included:
It’s absolutely disgusting what you are doing to our children, you have absolutely ruined them.
You have done nothing for them with over $100,000 I have given you, you have done nothing with them, you fucking disgust me
Get it in your head that I am not giving up. I will fight your life and your husband’s life
The father contends that in that last sentence he actually said:
I will fight your lies and your husband’s lies
That would make more sense.
The mother’s report of the message continues with:
I assaulted him, Yeah? How much did I assault him? Yeah, not so much.
Your [sic] an idiot, just wake up to yourself.
Children need parents, [Mr Marrow]’s obviously not a father as the judge pointed out.
We can do this the hard way or we can do this the easy way.
You’re going to get punished.
You’re harming them, you won’t do anything for them.
The father in turn relied on a FaceTime recording that showed bottles and cans in the background which the father says had contained alcoholic drinks and the mother scratching herself in a manner which indicated to the father that she was under the influence of drugs. Suffice it to say that it is not possible to make the findings proposed by each of the parties based on the recordings. As is often the case, the FaceTime recording demonstrated something not intended by the person who recorded it. The 23 minute recording showed the mother and Mr Marrow interacting with the children while they were at the father’s home. The recording showed a warm, sensitive and entirely child focussed communication. There were several opportunities during the session for the mother and Mr Marrow to make an implied criticism or denigration of the father. An upcoming trip for the children overseas with their father and several, increasingly desirable, Lego constructions were each met with warm interest and approval by the mother and Mr Marrow. There were other potential opportunities for the adults to respond coolly to the excited representations of one or both of the children and none of those opportunities were taken up. It was also apparent from the recording that the children wanted to extend the session and despite offering the children several opportunities for the session to end, the mother and Mr Marrow were good natured in encouraging each extension.
Suffice it to say, that it is not possible to find that any of the adults were intoxicated on the occasion of those communications.
There were several matters put to Ms C by the father in cross‑examination. He asked the expert about the number of Family Reports she had prepared at the time she conducted the interviews and she estimated that she had prepared six. I assume that the question was intended to reveal a basis for placing reduced reliance on Ms C’s observations and recommendations. In any event, that submission was not made by the father. However, the father made valid arguments in respect of some of Ms C’s observations. For example I understood that she felt that the father’s physical presentation at the interviews for her report (sweating and shaking) could reasonably be explained by alcohol withdrawal. A letter from the father’s General Practitioner was tendered by the father during the hearing.[7] Albeit that the father’s doctor was not on affidavit, I accept that it is also possible that the father’s presentation resulted from his Addison’s Disease. Ms C reported that all of the substance abuse tests on the adults were negative. In fact Mr Marrow failed to complete a test, albeit apparently through no fault of his own. It may be that some of Ms C’s observations and recommendations were reinforced by those matters but in my view, the gravamen of her report is soundly based on the uncontroversial facts.
[7] Letter from Dr J dated 3 April 2018 and marked exhibit 32.
In cross-examination the father was asked about how the current circumstances of his estrangement from the children had come about. The father’s response was to the effect that the estrangement resulted from a 10 year campaign by the mother to shut him out of the children’s lives. He was asked to reflect on whether there could be any other reason aside from parental alienation that could have resulted in the children not seeing him and he could think of no other reason. He said “I’ll say no because the children have not been involved in any of this”.
Ms C provides an evaluation of the ability of the parents to provide for the needs of the children on page 40 of her report. She reports that the father does not appear to be able to protect the children from harm considering that (in something of an understatement) “he is the likely perpetrator of possible family violence”. The report writer goes on to record that the father demonstrated no insight into the children’s primary and most basic needs for safety, security and stability. He does not understand potential trauma suffered by the children when he assaulted their mother in front of them. He does not appear to understand the emotional abuse he has subjected the children to by yelling at, intimidating and assaulting Ms D. She assessed the father as having no capacity to promote the children’s psychological, emotional and educational wellbeing, given that he compromises their basic needs for safety and security, and ongoing contact with him places them at continued risk of abuse and trauma.
At paragraph 25 of the Family Report, Ms C recorded that the mother said she believed that the Court had ignored her concerns for the children’s safety (with the father). During her cross-examination by counsel for the ICL, the mother was asked about her concerns and she expressed the problem in words to the following effect:
That they are witnessing domestic violence in their father’s care. That they will grow up to (1) [X] may think that it’s okay to treat women or partners in this way and (2) that [Y] thinks that that’s how men should be treating her growing up and I just can’t put them in that danger. [Y] said that she wants to protect [Ms D] – she can’t protect [Ms D] – she’s 10.
There the mother succinctly outlines the long term concerns arising out of the children’s exposure to their father.
Albeit not falling within the definition of family violence, the father was involved in a violent incident in January 2009. On 16 January 2009 the father was at a bar at Suburb K. It is his evidence that he was speaking with some women in the bar when a number of men indicated to him that they objected to him speaking to the women and they verbally threatened him. He said that there were about six men in the group. It is the father’s evidence that he then punched one of the men on the jaw. There was something of a melee and the father was removed from the premises. The COPS entry[8] confirms the basic facts but records that:
·the father was the aggressor. Security staff were involved and they removed the father from the premises;
·the incident was clearly depicted on CCTV footage;
·the man struck by the father is described in the COPS entry as the victim but he did not wish any action to be taken against the father and refused to supply a statement;
·the police issued the father with an infringement notice for the offence of “excluded person re-enter the vicinity of licensed premises”; and
·the licensee of the premises issued the father with a banning notice whereby the father can never return to those premises.
[8] Exhibit 24.
There is no escaping the fact that the father has been violent in the past and he has the propensity to be violent in the future. He does not fully take responsibility for his conduct, he has no appreciation of the impact his violent conduct might have on the children and he has no strategies to avoid future incidents beyond asserting that they will not happen.
The father was asked about his assaults on the mother and on Ms D and his alcohol consumption and agreed that on occasions he had drunk too much. He was asked whether his past bad behaviour was a direct result of him drinking alcohol and he responded to the effect that there were other contributing factors but alcohol was involved in both incidents and was something he needs to work on. He was asked to identify the other contributing factors and he responded “people being very unreasonable”. He was later asked: “you’re vulnerable to behaving badly if you have too much to drink?” And responded “and am antagonised”.
He was asked if he could understand the mother’s perspective and whether the mother would be justified in having concerns about his anger and potential violence considering he pushed her out of the boat and she was aware of his assault on Ms D. The father responded that he did not believe the mother’s position was justified as when he pushed the mother out of the dinghy “it was when our marriage was falling apart, [Y] was one, [X] was three - they don’t remember the incident”.
The father was asked about the occasion when he assaulted his partner, Ms D. The ICL’s counsel asked: “[Ms D] had injuries didn’t she?” and the father responded “we both had injuries”. He was asked if both of Ms D’s eyes were blackened and he disagreed, saying: “there was one eye blackened and one eye that had been hurt in the same slap”. The father agreed that potentially Ms D also sustained a cut to her lip. He rejected the proposition that he had punched Ms D but responded: “it was a slap but there might have been a few slaps - the argument went for many hours”.

There is evidence about the father physically harming the children. The mother gives evidence that the father burned X with BBQ tongs saying to her: “[X] just wouldn’t stay away from the webber, so I grabbed him with the Tongs”. The mother deposed that X’s hand was red raw. On Australia Day 2009 the mother found 15 month old Y with her nappy off and a red hand mark on her bottom. X did not want to put his head under water on the trip from the paternal grandfather’s boat to shore and the father shoved his head under the water. When the mother stepped in to stop that behaviour, the father became angry and started yelling.
That was followed by the father pushing the mother out of the dinghy. The mother says that the father then slapped her twice, as she held the children.
Care is needed before findings of fact are made about disputed incidents without any objective evidence. I understand that the father denies all allegations about him being violent to the children. However, there is a risk that the additional violent incidents occurred as the mother deposed. Importantly, the father concedes several incidents of violence and there is ample evidence that the children have been exposed to his anger and to his violence. There is ample evidence that the father gets angry and expresses himself with aggression. For example, there is an SMS exchange between the mother and father[9] which included the following exchanges:
[9] Exhibit 7.
Mother: You told them [presumably the children] they were a disgrace and pathetic… How could you? Don’t text don’t call
Father:Fuck off ! Court orders. I told them I was disgusted with them and I am. Who has xmas and receives presents … And doesn’t want to talk about it? Only those influenced by fuckwits!
It’s all recorded …
… xmas was big for them last year …. You refused to let them go to [xmas] function last year and this …. Seems you have an issue with [Ms D]?
Yes, she’s younger, smarter, better looking, much harder working, and a better Mum than u could ever be. How’s work going for you two?;-)
And later:
Father:Worst mother ever!
Your disgusting!
It is likely that some psychological harm has already been done to the children and most concerning of all, the father has demonstrated that he has no insight into the harm caused by his behaviour, he takes no responsibility for his behaviour and he has no strategies for avoiding that behaviour in the future.
The father’s attitude to the parenting programs that he attended was to the effect that they demonstrated to him that his parenting behaviour was appropriate and that the mother’s behaviour was not.
The father gave evidence about being abused as a child by his parents. No probative evidence was offered to contradict his assertions and one could speculate that the father’s attitudes and behaviour could be explained by his own exposure to abuse. Even if those findings could be made, they can be of no comfort in proceedings where the unambiguous focus must be on X and Y. Indeed, as I have stated, the concerns expressed by the mother and by Ms C included the concern that the father’s behaviours might be replicated or modelled in the lives of the children and their relationships as they move through adolescence and into adulthood. I have no doubt that the father loves his children and that he has much to offer them. I am confident that if he is able to reflect on the circumstances the father would be mortified if the violent incidents and attitudes he has experienced became a feature of the lives of his precious children.
The paternal grandfather provided a letter (exhibit 12) to the mother for these proceedings. The mother facilitates time between the paternal grandfather and the children. The father is estranged from his father. Ms D said that she and the father last saw the paternal grandfather three or four years ago. I think she referred to the occasion involving her and the father travelling from Tasmania on the paternal grandfather’s boat. Ms D said that the father and paternal grandfather later became estranged because “when all this started” the father rang him and asked him to help explain everything (presumably related to these proceedings) and the paternal grandfather said that he did not want to get involved. Ms D said that the paternal grandfather asked the father to first apologise for breaking his father’s nose, as a condition and the father cannot apologise. The father says that he saw the paternal grandfather hurting one of the children and, in his view, the paternal grandfather should not have unsupervised time with either child. There has obviously been an ambiguous relationship between the father and paternal grandfather. I take it that at times the father believed that there was benefit for the children in having contact with their grandfather but now he says that they cannot be left unsupervised in his care. No findings are possible about the paternal grandfather save to say that he is someone to whom the children have been exposed by both parents at various times. In any event, the mother is protective of the children and alive to the potential damage caused by exposure to violent behaviour.

(3)(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

Ms C reported that there was more concern from all parties for the psychosocial and psychological adjustment for X than there was for Y. Ms C was told that he is sensitive, gentle and deeply affected by life events. He presented to Ms C as quiet, reserved and emotionally constricted. She reported that those observations were consistent with reports from the principal of his school who suggested that X has found the court processes difficult, including having to talk to strangers about his life. X did not directly report any significant anxiety or distress about possible family violence he has been exposed to, but he did acknowledge finding it scary. Ms C observed that he appeared to internalise his psychological state and that it would be difficult for a third party to recognise that state without directly asking him about it.
During the session observed by the report writer between the children and the mother, the children competed for the mother’s attention and they bickered and disagreed frequently. X was observed to be quite physically rough and aggressive with his younger sister. He would push her, shove her and bump into her with his body. He stopped short of actually hitting or striking Y. X was constantly in his sister’s space and appeared to deliberately annoy her or provoke her. Y was not observed to retaliate to her brother’s aggression at any time, except to complain to the mother that it was happening. Y spoke and drew on the whiteboard about loving her family, which included X. Ms C reported that X rejected those expressions of love with disgust and spoke about wishing that Y was not part of the family and wishing that he was an only child.

(3)(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

This does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

The father asserts that Y has been absent for 11 per cent of 2018 school attendance. The mother responded to the effect that X had been away four days so far this year and Y seven days, of which four days involved the whole family being away and on the other occasions, Y was sick with a cold. Nothing is raised by way of concern from a school.
The father contended that the mother had not involved him in decisions about the children since the orders were made in February 2011. The mother disagreed, saying that there had been no major decisions over that time and that she tried to involve the father in a decision about swimming but she “was shut down” and the father “refused to take them [to swimming] on Saturdays”.
The mother ultimately conceded that she had not involved the father in decisions about the sporting activities the children would engage in at school. She conceded that she had not involved the father in the decision about X playing cricket outside school hours.
The most concerning attitudes are those of the father in respect of the acceptability of exposing the children to violence and conflict.

(3)(j) any family violence involving the child or a member of the child’s family

It is an agreed fact that the father assaulted members of his family on three occasions. While a teenager, the father punched his father and broke his nose. The father pushed the mother off a boat. He was convicted of assaulting his current partner. While conceding the conduct, in addressing each of those incidents the father sought to minimise or justify the event.
The mother claims that in 2000 the father pushed her when they were camping and that she was injured.
The mother says that in 2008 the father threw her across the room during an argument in front of X. The mother also claims that in 2008 an incident occurred where the father burned X with a pair of tongs. The father denies these allegations.
The mother says that on 26 January 2009 the father smacked Y leaving a red hand print on her bottom. On the same date the family went out in a dinghy. Mother says that X did not want to put his head under the water and the father shoved his head under. The father denies these allegations. Following an argument and in the presence of the children, the father pushed the mother from the boat and she landed in the water. The mother also says that later on that day the father slapped her twice while she was holding the two children following an argument. The father has conceded that he pushed the mother out of the dinghy however he denies hitting or assaulting the mother in any other way.
In 2009 the mother claims that the father held her down on the couch by her neck and threatened to rape her. The mother called the police.
The father says that in March 2012 X disclosed to him that Mr Marrow had hit him across the face.
On 11 June 2015 the father assaulted Ms D. She suffered two black eyes and a split lip. On 23 September 2015 the father was convicted of assault occasioning actual bodily harm and was placed on a good behaviour bond for 12 months. An apprehended domestic violence order was also issued for the protection of Ms D. As a result the father was precluded from consuming alcohol for 12 months.
On 15 January 2017 an incident occurred at changeover. The mother and Mr Marrow state that the father assaulted Mr Marrow. They subsequently reported that to police. The father denies that allegation and Ms D alleges that Mr Marrow threatened her. Ms D later attended L Town Police Station and made a report to that effect.
On 18 June 2017 the mother received the following Snapchat message from Y:
Mum, dad got mad at [Ms D] talk tomorrow don’t know what happened don’t talk about it yet
The mother says that on 19 July 2017, Y disclosed that the father pushed Ms D.
There is one allegation against Mr Marrow in relation to striking X in 2012. Mr Marrow denies the allegation. Unlike the situation with the father, there is nothing in the agreed background evidence that suggests that either child is at risk of abuse from Mr Marrow.
There are many allegations against the father in respect of heated arguments with and potentially, family violence against Ms D. Based on the father’s attitude to the mother, his manner of written and verbal communication and the agreed assault, it is likely that the allegations are broadly accurate. Unfortunately Ms D is not a reliable witness in relation to these matters. She lied to the police about the assault and sadly, she feels that she was in part to blame for the father’s violence.

(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter

This has been detailed above.

(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

There have been problems with orders providing for time between the father and the children. Appeals aside, it may be that if there is no provision for the non-resident parent to spend any time with the children that there will be less opportunity for further proceedings.

(3)(m) any other fact or circumstance that the court thinks is relevant.

The repealed s 60CC(3)(c) was wrongly addressed in submissions on behalf of the ICL and the mother. I noted that the issue could be taken into account under this provision. The father has a very poor opinion of the mother. He has called her “disgusting” and that is his view. There is not much support for the mother in the father’s household. Ms D was asked about the father’s view of the mother. As to positive things about the mother expressed by the father, Ms D said words to the effect that once they used to be in love and they were together for 13 years and she cooked one dish very well. Ms D was aware that the father had sent text messages to the mother including the expression “fuck off” and asserting that the mother was disgusting. As to her own opinion about the mother, Ms D agreed that she thought that the mother is a toxic person. She agreed that she had a similar view of Mr Marrow.
Otherwise nothing comes to attention here.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows as required by s 61C of the Act:
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child‘s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.

Discussion

In the context of this case, s 61DA requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them unless there are reasonable grounds to believe that the father or the mother have abused them or engaged in family violence. It is an agreed fact that the father has engaged in family violence and therefore the presumption does not apply.
Subsection 65D(1) requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parties as it “thinks proper”. What is proper is what is in the best interest of the child which is determined by reference to s 60CC of the Act.
The mother seeks sole parental responsibility for the children. The father seeks that he exercise that responsibility.
On page 42 of her report, Ms C made the following recommendations about parental responsibility:
If the Court finds that [X] and [Y] have experienced or been exposed to family violence then it would follow that it is not in their best interests for [Ms Marrow] and [Mr Periwinkle] to share parental responsibility. [Ms Marrow] having sole parental responsibility for the children would mean that she has a greater capacity to protect [X] and [Y] from harm, to make decisions that are in their best interests and to promote their psychological, emotional and educational wellbeing….Possible risks or concerns about [Ms Marrow] having sole parental responsibility of [X] and [Y] could include [Mr Periwinkle] feeling distressed about the loss of legal parental responsibility over his children.
I do not really follow the last sentence of that passage. Whatever it means I assume that it does not mean that the father’s reaction would be a reason to give him sole parental responsibility.
Ms C further states on page 43 of her report that even if it was determined that the children had not been exposed to family violence, she does not recommend equal shared parental responsibility. She observes that the parents have not shown an ability to work together cooperatively and productively in the best interests of the children and all adult parties acknowledged the high level of tension and stress at changeover times. She ultimately recommends that the mother be granted sole parental responsibility for the children.
The ICL supports the position of the mother and the recommendations of Ms C.

Conclusion

The presumption that the parents having equal shared parental responsibility would be in the best interests of the children, does not apply. The proper order is one that places parental responsibility with the mother. I will make that order.

Living Arrangements

In that the Court will not make an order that the parties have equal shared parental responsibility, it is not necessary to consider any particular pattern of living arrangements.
The children will live with the mother. That is the recommendation of the expert and it makes sense of the facts of the case. For the time being it is not safe for the children to be exposed to the behaviour and attitudes of the father. It is common ground between the parents that the children should not be required to move from one household to another, that they should not spend time with both of their parents, at least for the time being. I agree.
The parents’ communication has been conflictive and they have not been able to insulate either child from the angry interchanges that have characterised their poor relationship. Ms C recommends:
…
2.It is recommended, that, [X] and [Y] live with [Ms Marrow].
3.It is recommended that [X] and [Y] be permitted to engage in counselling or therapy for victims of domestic and family violence, and that their mother organise such intervention. It is suggested that [X], in particular, would benefit from a clinician experienced in play therapy, and non-verbal therapy methods.
4.It is recommended, that, contact between ]X], [Y] and their father be suspended until the father’s engagement in, and satisfactory completion of, a family violence intervention program, preferably in an intensive individual therapy format. A workshop style course, or an online course are not sufficient methods to bring about long-term behavioural change. [M Psychology] are one private practice that specialises in forensic psychology issues, including treatment for family violence issues.
5.It is recommended that [Mr Periwinkle] undergo an assessment for possible Alcohol Use Disorder, and to follow the treatment recommendations as assessed. It is further recommended that sobriety be a condition of [Mr Periwinkle’s] contact with [X] and [Y], whether that contact be by telephone or visits.
6.It is recommended that during the first year following Final Orders that contact, whether telephone or face-to-face, between [X], [Y] and [Mr Periwinkle] does not occur until;
a.[X], or [Y], as individuals, express a wish to have contact with their father;
b.Their therapist recommends contact between each child and their father to be in the best interests of each child;
c.[Mr Periwinkle] has engaged in, and satisfactorily completed, a program of behaviour change aimed at men who use violent behaviour in interpersonal relationships;
d.[Mr Periwinkle] has engaged in, and is satisfactorily undertaking treatment in relation to possible Alcohol Use Disorder, and refrains from consuming alcohol prior to, and during, telephone calls and visits with the children.
e.[Ms Marrow] is assured of [X] and [Y’s] safety around their father; and she is able to organise supervised contact either formally through a contact centre, or, informally through a suitable family member or other adult.
f.[Ms D] would not be considered a suitable adult to supervise visits between [X], [Y] and [Mr Periwinkle], due to her own experience of being assaulted, her ongoing anxiety around upsetting [Mr Periwinkle], and, therefore, her limited capacity to effectively safeguard the children.
7.It is recommended that following the first year of Final Orders being made, that ongoing contact between [Y], [X] and [Mr Periwinkle];
a.Be at the discretion of each individual child
b.Not be subject to Court Orders
c.Be facilitated and/or supervised at the discretion of [Ms Marrow]

I can understand the logic of Ms C’s recommendations 4 – 7 but they will not be included in the orders. Indeed there is an internal inconsistency in recommendation 7 which seeks to impose conditions but without Court orders. Similarly the ICL has proposed a number of notations for inclusion in the orders. At the heart of the recommendations and notations is an attempt to set out for the parents and particularly for the father, the matters that he would need to address before a Court would revisit the question of him spending time with the children. The father would be wise to heed the practical advice incorporated in those recommendations and notations. However, there are a number of problems with including them in the final orders. The position at law is that a Court will not revisit a dispute between what are effectively the same parenting circumstances[10] but there is no way of binding a future Court as to the circumstances that would need to exist before different orders were made. Secondly, and fundamentally, the father does not acknowledge that there are any issues for him to address.
[10]Rice & Asplund (1979) FLC 90-725.
The father will always be the father of X and Y and he and they will make decisions as adults, if not before, about how they will interact. In the meantime, the father needs the insight and motivation to make some changes in his attitudes and behaviour. That might not be possible and it would be misleading, frustrating and perhaps distressing to him, the mother and the children to pretend otherwise. In that regard I refer to the father’s reaction to the parenting programs he attended.

Conclusion

X and Y have lived with their mother since they were born. After their parents separated in 2009 there have been some periods when they have spent little time with their father. They have had no time with him since September 2017. The parents both seek parental responsibility and that the children live with them and have no time with the other parent, at least for 12 months. Given the high level of conflict between the parents and the fact that they have not been able to protect the children from that conflict, their joint proposals are appropriate. The father has been responsible for family violence and at least in part, he feels that he has been justified in that conduct. Those attitudes are not healthy for the children. The children will be safe and competently cared for in the mother’s household. The orders will provide for that arrangement and will exclude the father for the time being.
The orders will provide for communication between the children and the father at the initiative of the children.

Other Orders

Injunctions

The mother seeks an order for personal protection in the style of an Apprehended Violence Order. I say “in the style of” because the drafting of the proposed order owes more to NSW law[11] than the Act. No head of jurisdiction is identified in the mother’s minute of order but there would be scope under s 68B to make an order in the terms of the order proposed. However, an application in the terms now proposed was not included in the mother’s Initiating Application or in her Case Information dated 3 July 2018. The order was first proposed on the final day of the hearing. It would be a denial of natural justice to impose the proposed order without the father having an adequate opportunity to respond.
[11] Orders available under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Further, there is no evidence that the husband has engaged in the types of behaviour sought to be restrained other than while the parents lived together or when they have interacted after separation. The orders I propose need involve no interaction between the parents. Several of the restrained activities are against the law in any event. I will not make an order in the proposed terms.

Overseas travel

As I set out earlier in these reasons, the father indicated that he did not oppose orders that would facilitate overseas travel for the child when with the mother. He did however, seek that the orders be expressed in mutual terms. I will express the orders in mutual terms, while noting that they would only apply to the father if at some time in the future he was permitted to spend time with the children. As to the second of the orders proposed by the mother in the minute provided by email on 24 July 2018, I am not aware of any power the Court has to direct “the Minister” to do anything. Either the formulation of the orders will have the desired effect or it will not.
I have based the orders on the mother’s proposals but have made some amendments. Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.

I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 23 August 2018.

Associate:

Date: 23 August 2018

[2018] FamCA 637

23 August 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Jurisdiction