McKowan & McKowan
[2025] FedCFamC1F 105
•13 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McKowan & McKowan [2025] FedCFamC1F 105
File number: SYC 6340 of 2020 Judgment of: BOYLE J Date of judgment: 13 March 2025 Catchwords: FAMILY LAW – CHILDREN – Whether the children should spend time and communicate with the father – Whether the mother should have sole parental responsibility and decision-making authority – Where the father is in gaol – Where the father has been convicted of multiple domestic violence offences against the mother – No time or communication between the children and the father ordered on a final basis Legislation: Evidence Act 1995 (Cth) s 138
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61D, 69ZN
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6
Cases cited: Hearne & Hearne [2015] FamCAFC 178
Isles & Nelissen (2022) FLC 94-042
M v M (1988) 166 CLR 69; [1988] HCA 68
Mertens & Mertens [2016] FamCAFC 136
Division: Division 1 First Instance Number of paragraphs: 137 Date of hearing: 11-14 November 2024 Place: Sydney Counsel for the Applicant: Mr Longworth Solicitor for the Applicant: Doumit Family Lawyers Counsel for the Respondent: Mr Provera (11 & 12 November 2024) Solicitor for the Respondent: Vaikom Law (11 & 12 November 2024); Litigant in person (12-14 November 2024) Counsel for the Independent Children's Lawyer: Mr Sperling Solicitor for the Independent Children's Lawyer: Neligan Law Pty Ltd ORDERS
SYC 6340 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS McKOWAN
Applicant
AND: MR McKOWAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
13 MARCH 2025
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders are discharged save for Orders 11 and 12 of the orders dated 14 October 2024.
Parental responsibility and decision-making
2.The mother shall have sole parental responsibility and decision-making authority for the children.
Time and communication
3.The children shall spend no time with nor communicate with the father.
4.The father shall not send the children any cards, letters or gifts.
International travel
5.The children are permitted to travel internationally with the mother.
Name Change
6.The mother shall be at liberty and is hereby authorised to change the children’s names with the NSW Registry of Births, Deaths and Marriages, without the father’s consent as follows:
(a)X McKOWAN to X CRESPI; and
(b)Y McKOWAN to Y CRESPI.
7.Pursuant to section 28(5) of Births, Deaths and Marriages Act 1995 (NSW), the Registrar of Births, Deaths and Marriages register the children’s names from X McKOWAN to X CRESPI and Y McKOWAN to Y CRESPI.
Ancillary
8.All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.
THE COURT NOTES THAT:
A.The following orders were made by consent between the parties on 14 October 2024 and have been replicated here for ease of reference:
a.The children X born 2014 and Y born 2016 shall live with the mother.
b.The mother is authorised and at liberty to apply, without the father’s consent, for an Australian passport for the children X born 2014 and Y born 2016.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BOYLE J:
These are parenting proceedings with respect to the two children of the parties, X aged 10 and Y aged eight.
The children live with their mother and have done since the parties separated in August 2020.
X spent supervised time with the father on one occasion in October 2021. Otherwise, the children have not seen the father since 12 September 2020. The father was sentenced in relation to various domestic violence offences and will be released from custody not earlier than late 2028.
On 14 October 2024, a final order was made by consent that the children live with the mother and that she be permitted to obtain passports for the children.
BACKGROUND
The parties met in around early 2011. They were married in late 2012 and commenced living together thereafter. The parties separated on a final basis on 29 August 2020.
X is now 10 years, and Y 8 years. They will be almost 14 and almost 12 years respectively at the earliest date of the father’s release from gaol.
Father’s criminal proceedings
In late 2020, the father was charged with multiple domestic violence offences. The Police applied successfully for a provisional Apprehended Domestic Violence Order (“ADVO”) that day. A final ADVO was made in late 2022 for the protection of the mother and children until late 2034.
The father’s criminal matter was before the District Court for a jury trial from mid-2022 to late 2022. He was found guilty of multiple offences.
In early 2023, the father was sentenced. He received an aggregate sentence of several years imprisonment with a non-parole period for a number of the counts, and a conditional release order and community correction order with respect to the remainder of the counts.
In late 2023, the father appealed against both his conviction and sentence. The following month, the appeal was dismissed by the Court of Criminal of Appeal. In late 2024, an application for Special Leave to the High Court was dismissed. It is common ground that his earliest release date is late 2028, and the latest is late 2032.
Family Law proceedings
On 10 September 2020, the mother commenced these proceedings. On 25 September 2020, interim orders were made for the children to live with the mother and spend professionally supervised time with the father. Orders also provided for FaceTime contact between the father and the children.
On 30 November 2020, orders for time between the children and father were suspended. On 19 February 2021, orders were made requiring the father to surrender weapons.
On 31 August 2021, interim orders were made for the children to spend professionally supervised time with the father for three hours each alternate Saturday. Other than on 10 October 2021 when X attended supervised time, no time occurred. On 6 May 2022, the orders for supervised time were suspended. The children were oppositional and resistant to spending time with the father, as observed by supervisors.
On 13 April 2022, final property orders were made by consent between the parties.
At times during the hearing, the father raised that family members such as his mother and sister could spend time with the children. There was no application made by any member of the father’s family for that to occur, nor was an order sought by the father to that effect.
PROPOSALS OF THE PARTIES
The mother seeks sole parental responsibility and decision-making authority for the children. She seeks orders that the children live with her and spend no time with the father. She seeks specific orders to authorise her to apply for a passport for the children, travel internationally with the children, and to change the children’s names.
The Independent Children’s Lawyer (“ICL”) supported the orders sought by the mother.
The father seeks orders that the children spend time and communicate with him in accordance with their wishes, that he be entitled to send letters, gifts and cards to them on their birthdays, at Easter and at Christmas each year and at any significant life event, that he be entitled to attend school events, that there be an order for equal shared parental responsibility and decision-making, and that the mother keep the father informed about the children’s medical issues. He seeks that communication with the mother whilst he is in custody be affected through his partner, whom he says is prepared to assist. There was no evidence from the father’s partner.
The father was represented at the beginning of the hearing through the s 102NA scheme, following an order made on 14 October 2024. Pursuant to that order, he was prohibited from cross-examining the mother directly. At the conclusion of the mother’s cross-examination, counsel for the father advised that his instructions, and those of his solicitor, were withdrawn. I granted leave to withdraw to the father’s legal representative. The father’s counsel made himself available in the courtroom during the hearing to provide assistance to the father. I am grateful for the assistance provided.
Once the father became self-represented, I suggested that it may assist him if the ICL cross-examined the mother’s witnesses first. He took that option.
DOCUMENTS RELIED UPON
The mother filed a Case Outline Document setting out the documents relied upon:
(a)Amended Initiating Application filed on 7 March 2023.
(b)Affidavit of Ms McKowan filed on 5 November 2024.
(c)Affidavit of Ms Crespi filed on 5 November 2024.
(d)Affidavit of Ms B filed on 5 November 2024.
The father relied upon his affidavit filed on 5 November 2024.
The father sought and was granted leave to rely upon affidavits from the paternal grandmother filed on 23 November 2020, Ms C filed on 18 September 2020 and Ms D filed on 18 September 2020.
The Court was assisted by a Single Expert Report prepared by Ms E (“the Single Expert”) dated 27 April 2021. The Single Expert was cross-examined by all parties.
The parties, the maternal grandmother, and the mother’s sister were cross-examined. None of the father’s witnesses were required for cross-examination, and their evidence is before me unchallenged.
The paternal grandmother gave evidence about a meeting between the parties, the maternal grandparents, and herself at the maternal grandparents’ home in September 2020. The maternal grandparents raised conditions for separation, such as the mother and children being able to reside in the former matrimonial home, and the father living in the self-contained flat at the home and paying support for the mother and children. There was a dispute about the proposals. The maternal grandfather indicated he could make an innocent man go to gaol. When there was no agreement, the father and his mother left the home.
The father’s sister, Ms D (“Ms D”), gave evidence of her positive experience of the father as her brother and that he was not abusive nor violent towards her, nor her sisters. He was a kind and generous brother, and son to her parents. Her evidence is that she would trust him with her own children.
Ms D was aware the relationship between the parties had deteriorated over the last few years and had observed bickering and frustration between them. She observed a close relationship between her brother and the children. She referred to Christmas Eve 2019, where the father was waiting for the mother to bring the car keys so that he could load boxes into the car. Ms D describes him as seeming frustrated, the parties appeared annoyed at each other, and it was extremely awkward for everyone.
Ms C gave evidence that she resided in a self-contained flat at the former matrimonial home from 2017 to August 2020. She describes a good relationship with the parties. She heard raised voices between the parties on occasion. She did not observe nor hear the father abuse the mother or children. She heard the mother raise her voice and swear at the father more than once.
None of these people provided updated affidavits in these proceedings after the father’s criminal conviction.
THE FATHER’S APPLICATION FOR AN ADJOURNMENT
The father filed an Application in a Proceeding seeking an adjournment of the final hearing. The Application sought leave to serve subpoenae to give evidence on five people who are friends or family of the mother. The filing date on the Application is 12 November 2024, however, the Application was dealt with at the commencement of the hearing on 11 November 2024.
The father sought leave to file a subpoena to produce material directed to Ms F, who previously acted for the father. The subpoena sought all cards and letters belonging to the father, any mobile telephones provided by or on behalf of the father, and all correspondence between the parties.
Submissions by counsel for the father were that the evidence of the five people would go to the father’s parenting capacity, and the relationship between the father and children. It is common ground that none of those people have had the opportunity to see the father with the children for at least the last four years.
The final hearing dates were allocated on 7 December 2023. On 14 October 2024, an order pursuant to s 102NA was made. The father’s solicitors filed a Notice of Address for Service on 25 October 2024. The father’s previous solicitors filed a Notice of Ceasing to Act on 2 May 2024.
The affidavit in support of the Application referred to difficulties in preparation of the father’s case. Orders of 14 October 2024 requested that Corrective Services provide the father with access to a computer or laptop for the purposes of completing documents and emailing his legal representatives, the ICL and the mother’s legal representatives. Corrective Services did so on 25 October 2024. There were difficulties with the laptop on 4 November 2024, and no replacement was provided. This affected the father’s access to documents produced on subpoena. Counsel for the father argued that the father being in custody has created an impediment to the preparation of the matter.
For these reasons, an adjournment was sought by the father. The Application was opposed by the mother and the ICL. The mother and the ICL also opposed the subpoenae to appear that the father sought to issue.
When the matter was listed for hearing on 7 December 2023, the father was legally represented. The father was directed to file and serve a Minute of the orders sought by him no later than 28 March 2024. Directions were made for affidavits to be filed no later than 30 September 2024. The parties were to advise chambers should either become self-represented, so that s 102NA could be considered.
No issue was taken by the mother with the father issuing a subpoena to his former solicitor to produce documents no later than 2.15 pm on 12 November 2024. That order was made. The father’s previous solicitors advised there were difficulties in locating Ms F to effect service. When the father’s solicitors withdrew, the ICL provided assistance to the father by seeking to communicate with Ms F and send her the subpoena. I understand the difficulties in locating her continued, and no affidavit of service of the subpoena was provided, nor correspondence from Ms F. No documents were ever produced.
It was conceded by counsel for the father that no notice was provided of an intention to issue a subpoena to give evidence to any of the nominated people before Justice Brasch on 7 December 2023, when the matter was listed for hearing. Nor was it raised when the matter was before me on 14 October 2024. The issue of the estimated length of the hearing was specifically addressed before me, and hearing dates were reduced to three rather than four days with reference to the number of witnesses.
The orders of 7 December 2023 provided leave to the legal representatives to issue subpoena. That opportunity was not taken prior to the hearing. The father did not comply with orders directing him to file a Minute of Order and advise on the outcome of his criminal appeal by no later than 28 March 2024.
Notice was not given to the mother, the ICL, nor the proposed witnesses, about the subpoenae he now sought to issue. No proof of evidence of any of the witnesses has been provided.
These are parenting proceedings. The court must have regard to the principles in child related proceedings, and the best interests of the children. Section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides:
(1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Section 69ZN of the Family Law Act 1975 (Cth) (“the Act”) provides, relevantly:
Principles for conducting child‑related proceeding
Application of the principles
(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In Hearne & Hearne [2015] FamCAFC 178, in considering an application for an adjournment, the Full Court held at [56]:
… on an application to adjourn proceedings a court is required to take into account not only the individual circumstances of the parties, but the effect on the court as a publicly funded resource, the effect on other litigants, the court’s case management principles, and “the need to maintain public confidence in the judicial system” (AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, per French CJ, at [5]).
In Mertens & Mertens [2016] FamCAFC 136, Kent J summarised the factors to be taken into account in an application for an adjournment. These include the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to other parties that cannot be compensated by an order for costs, and the impact upon other litigants before the court were an adjournment granted.
The application is be considered in the context of the orders sought by the father. Those orders are that the children spend time with and communicate with the father in accordance with their wishes, that he be entitled to send letters, gifts and cards, that he be entitled to attend school events, that there be an order for equal shared parental responsibility and decision-making, and that the mother keep the father informed about medical issues. There is no order sought for specific time or communication between the father and children.
It is common ground that the earliest release date of the father is late 2028, and an ADVO prohibits the father from approaching the mother or children until 2034.
The issues before the court for determination are narrow. The proposed witnesses last had an opportunity to make observations of the children and father more than four years ago. The children were at that time aged six and four; they are now ten and eight years. The father’s orders are for time in accordance with the children’s current views of their father, and any desire they have now to see him or communicate with him. There is a report available where the children have been able to express a view, and the Single Expert has been able to consider the broader context of the views expressed by the children, and their maturity in expressing those views. An ICL has been appointed, who is required as part of their role to ensure any views expressed by the children are fully put before the court.
The matter has been before the court for more than four years. An adjournment would result in an undue delay to the proceedings. The mother and the children are entitled to finality. The father did not comply with the orders of Justice Brasch made on 7 December 2023. He did not file a Minute of Orders, nor did he advise on the outcome of his appeal by 28 March 2024, as directed. He was legally represented at the time of the orders and the filing date. There was no explanation proffered of why that did not occur.
There is no proof of evidence of any of the proposed witnesses. No submissions were made as to how their evidence may be relevant to a determination of the issues currently before the court.
The solicitors for the father took steps promptly after the s 102NA order was made. I accept that the father being in custody hampers the ability of those appearing for him to prepare the matter. I stood the matter down in excess of two hours to allow counsel for the father to confer with his client and take instructions. The father filed his affidavit on 5 November 2024, outside the directions for filing. No objection was taken to that affidavit.
The father will not be released from custody until, at best, late 2028. During any adjourned period, the father will remain in custody with the attendant difficulties of obtaining instructions. I am not confident the situation would be different at an adjourned date.
An adjournment needs to be considered against the ability of the court as a publicly funded resource to provide timely resolution to other litigants awaiting trial dates, where time has been allocated to the hearing of this matter. This matter has already taken up considerable court resources. Allocated hearing dates are a resource that are squandered if the matter is adjourned on the first day of the hearing. The hearing would be delayed by months if not heard within the days already allocated, given matters otherwise listed for hearing.
Taking all those matters into account, the application for an adjournment was refused.
ISSUES ON ADMISSABILITY OF EVIDENCE
The father does not concede that he has perpetrated family violence against the mother. The father sought to tender texts and communications purporting to be from a mobile telephone of the mother to members of her family. He also sought to tender body camera footage from cameras worn by NSW Police. How he obtained that footage is not clear. Objections were taken by counsel for the mother. The objections were upheld. I indicated at the time of ruling that reasons given would be expanded on in these reasons.
There were issues as to how records were obtained by the father, and the provenance of documents he sought to rely on. None of the documents sought to be tendered were put to the mother during cross-examination.
The father attempted to put what he described as text messages to the mother’s witnesses during cross-examination. He referred to taking texts and data from the mother’s old mobile telephone, left in the home after separation. Counsel for the mother objected on a number of bases: that the documents were not disclosed to the mother as required by rule 6.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”); that the documents were illegally obtained under s 138 of the Evidence Act 1995 (Cth), and the court should exercise the discretion to exclude; that the documents may be sought to be used in breach of the Harman principle, as they may have been produced during the criminal trial; and that the documents were not relevant to the issues before the court.
Rule 6.01 of the Rules provides all parties with a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner. The court has a discretion to exclude evidence that is not disclosed, or impose a consequence, including punishment for contempt of court. Rule 6.05 applies the duty specifically to parenting proceedings.
The father did not provide the documents to the mother at any point prior to the hearing. The mother had not had any opportunity to view the messages, nor assess whether the documents are what the father contends, that is, documents created in part by her. There is an issue of fairness to the mother if she has no opportunity to consider the material. She has been denied the opportunity to, for example, test the alleged provenance of the material.
The father’s reference to body cam footage suffers a similar problem with respect to disclosure. The footage was not disclosed to the mother.
Section 138(1) of the Evidence Act 1995 (Cth) provides:
Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
Section 138(3) of the Evidence Act 1995 (Cth) sets out matters the court may take into account under subsection (1), being:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject - matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The father has retained devices he knew to be the mother’s and has taken steps to download data from the devices without her consent.
He has not provided to the mother any evidence of how the material was obtained. He has not provided to the mother disclosure of the material. The mother has been unable to make an assessment of the material, including looking at the metadata or otherwise ascertaining the reliability of it. I accept that there would be unfairness to the mother were the father permitted to rely on the material.
The context of the dispute between the parties is relevant in considering the likely importance of the evidence. This dispute is about orders for the father to have time and communication with the children in accordance with their wishes, and whether there be orders for equal shared parental responsibility and decision-making, or whether the mother should have that solely. The father wants to send the children letters, cards and gifts on special occasions. He wants to attend school events, presumably following his release from custody in several years’ time. He proposes that his partner facilitate communication whilst he is in gaol, without evidence from his partner about that. The mother seeks to travel overseas with the children without restriction and seeks to change the children’s names.
I accept the submission that texts between the mother and members of her family would be of little importance to the narrow scope of the enquiry before the court. Body cam footage falls into the same category of relevance to the current dispute. The father has sought to use these proceedings to relitigate the criminal matter. That is not the purpose of these proceedings.
These reasons should be read with reasons for the rejection of the material sought to be tendered by the father given during the course of the hearing.
THE LAW
Part VII of the Act deals with the making of parenting orders. Section 60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in making a parenting order. Section 60CC(2), (2A) and (3) of the Act set out a list of matters to be considered in determining what is in a child’s best interest. It is not an exhaustive list.[1]
[1] Family Law Act s 60CC(2)(f).
In considering what orders would promote the safety of the children, the authorities of M v M (1988) 166 CLR 69; [1988] HCA 68 and Isles & Nelissen (2022) FLC 94-042 are relevant to the assessment of risk to children. The analysis requires consideration of past conduct of the parties to assess whether there is a risk to the children in the care of either of their parents, and the magnitude of that risk. The assessment of risk is an “evidence-based conclusion”: Isles & Nelissen (2022) FLC 94-042 at [85]. The court must then consider whether that risk is capable of being mitigated by imposing restraints or conditions.
I will have regard to relevant matters set out under s 60CC of the Act as they arise in these reasons.
The parties are also in dispute about decision-making authority for the children. In determining whether to make an order under s 61D(3) of the Act, the court must consider the best interests of the children and apply the matters set out in s 60CC. That issue will be dealt with in these reasons.
FAMILY VIOLENCE
There are allegations of serious family violence made by the mother in this matter. The mother contends that the father was physically, financially, emotionally and psychologically abusive. The mother describes many instances where the father became angry and violent towards her, often without warning. Her evidence is she was frightened by his violent outbursts, and at times injured.
The mother sets out a history from mid-2011, with detail of incidents between them. The mother was not challenged in cross-examination that those incidents did not occur as she alleges. The father was convicted of multiple domestic violence offences against the mother in a jury trial in the District Court, on the criminal standard. An ADVO is in place for the protection of the mother and children until late 2034.
I have set out below some of the unchallenged incidents. It is important for the purposes of these reasons to understand the nature of the incidents that have affected the mother and the children. For that reason, I have referred mostly to matters that occurred after X’s birth. By doing so, I do not seek to diminish very serious incidents that would have been terrifying for the mother, which occurred prior to his birth.
In late 2013, the parties argued about the mother’s mobile telephone. The father threw it on the ground, causing it to crack. He pushed her into the tiled wall of the bathroom, causing a cut to her shoulder. The mother locked herself in the bathroom. The father shouted at her to get in. He broke the door and dragged the mother into the bedroom where he placed his hand over her mouth and pinched her nose so that she could not breathe. The mother tried to get to the front door. The father grabbed her arm and pushed her to the ground. The police arrived. The police were called by neighbours hearing the dispute. The father told her to say they had argued over money and not to say anything more. The mother lied to the police that they had argued over money. The police noted the mother’s injuries and offered to call an ambulance, which she refused. It is clear from the records that the police were concerned for her welfare. The police records support the mother’s version of events.
When X was not yet 12 months old, the mother was in bed with the father and X. The parties were having a discussion. The father began to kick the mother in the thighs. The father said, “get out, you’re not allowed to sleep in the house, it’s not your house and if I could throw you off the balcony I would”. I accept the mother was frightened for herself and X.
In early 2016, the parties were getting ready to go to a member of the paternal family’s house. The father became angry that the mother was not ready. The father took X to the car. The father pushed the mother on her chest to force her backwards into the house. When she reached the car, the father pulled her, saying, “you’re not allowed in”. The mother opened the rear left-side passenger door. While she was getting in, the father accelerated the car forward. The mother was fearful that she would be crushed by the door hitting the fence. Once the father stopped the car, the mother sat in the backseat. The father got out of the driver’s seat, grabbed her arm and pulled her out of the car. The father pushed her twice. The mother pleaded with him not to take X. The father said, “we’re leaving, you’re never going to see him again”. The father pushed the mother again, which caused her to fall to the ground. He then drove away.
Following an argument in mid-2017, the father told the mother, “I’m going to put you six feet under and bury you under the pool”.
In mid-2020, the father indicated that he would be taking the children out. The mother objected. Y started crying and said she did not want to go. The father pushed the mother with both open hands on the upper chest area, causing her to fall on her back on outdoor seating. He did so a second time, causing her to fall backwards onto an old washing machine. The father said, “I’m going to put you six feet under, I’m going to throw you off the balcony”. He took X inside the house. The father shut the front door on the mother, so that she became wedged between the door and the door jamb, bruising her shoulder. The father held the door closed with his foot, so that the mother was unable to move. She screamed for help. Y shouted, “don’t hit Mummy, don’t hurt Mummy”. The police arrived, called by a neighbour. The mother was frightened about repercussions from talking to the police, and did not disclose what occurred.
The father denies any family violence against the mother. He views his incarceration as an injustice, orchestrated by the maternal family. He regards himself as being the victim of a long‑term plan by the mother “to implicate me in domestic violence charges in the event that I was to ever leave her and did so with the help of her sisters starting from our first separation on 22 November 2013.” This is at odds with his evidence that the mother initiated the final separation and left the father, moving in with her parents. It does not explain the police attendances at the property and the mother’s unwillingness to make any complaint against the father at those times. This theory was not put to the mother in cross-examination.
The father points to the #MeToo movement, the “attitude of the courts” and the “societal shift toward automatically believing the woman” as an explanation for why he has been convicted and incarcerated. I note that he was unsuccessful in appealing his conviction to the Court of Criminal Appeal and the High Court.
I accept that the father has not engaged in reflection which could lead to him accepting any responsibility for his conduct or changing his behaviour. He has no insight into the impact of his behaviour on the children. The father made submissions that there is no evidence that there was any violence towards the children. Apart from there being examples of direct violence relied on by the mother against the children, I accept the children’s presence during violence against the mother has a significant impact on their emotional and psychological wellbeing. The mother gives evidence that the unpredictability of the father’s outbursts caused her to be frightened of doing anything to trigger his anger.
There is no question the mother’s complaints about the father’s conduct meet the definition of family violence against herself and the children as referred to in s 4AB(2) and (3) of the Act. He has been convicted at the higher standard of beyond reasonable doubt. The mother was not challenged in cross-examination on any of the allegations of violence. I accept that the father perpetrated family violence against the mother and children as asserted by the mother.
Allegations against the mother
The father alleges that the mother perpetrated family violence against him. He refers to incidents in the first year of marriage and early days of the relationship where she would rage if he forgot to compliment her on the way she cooked or did the washing or dishes. When that happened, she became violent and hit, pushed and stood over him, as she is taller. At times she spat on him and hit him in the groin. There were times she snatched his plate from him. The father contends that on one occasion, the mother became angry when he would not sleep with her. She threw a deodorant can at him which hit the wall, causing a hole.
The father does not provide details of any specific details of family violence incidents which would permit an understanding of his allegations. The allegations were not put to the mother during cross-examination.
The father consented to final orders in October 2024 that the children to live with the mother. There was no submission by the father that there were safety issues for the children resulting from the mother’s violence, that would impact on sole parental responsibility or decision-making for the children.
On the evidence before me, I do not accept that the mother was a perpetrator of family violence against the father.
The father complains that the mother has stayed in a hotel room with the children. She was still asleep when the children let themselves out of the room and into the hotel corridor. They then returned to the room. The father was highly critical of this, complaining that the mother had been partying the night before and did not wake up, putting the children at risk. The evidence taken overall does not support a significant criticism of the mother’s parenting. The father has consented to orders that the children live with her. It does not reflect on matters such as her capacity to make competent long-term parenting decisions for the children.
ISSUES
The issues in this matter are:
(a)Should there be orders for communication between the father and the children?
(b)Should there be orders permitting the father to send the children letters, cards and gifts?
(c)Should there be orders for the father to spend time with the children, or attend school or sporting events, subject to the children’s wishes?
(d)Are the parents able to exercise joint parental responsibility and decision-making?
(e)Whether the mother should be permitted to change the surnames of the children; and
(f)Whether there should be any restraint on the children travelling overseas with the mother.
Should there be orders for communication between the father and children?
There have been many efforts to have the children spend time with and communicate with the father in the past. In the aftermath of separation, there were a number of occasions where the father attended the home of the maternal grandparents, where the mother and the children were residing. There was conflict between the parties in the presence of the children.
In late 2020, the father attended at the maternal grandparents’ home with respect to a dispute about a motor vehicle. The mother ultimately texted the father asking him not to attend the home. The mother arranged a video call for the children. The father was outside the house and asked them to come out so he could take them to dinner. The mother did not agree with this proposal. The father called for the children to come out the front. The father placed the children in the car. The maternal grandfather got into the car to stop him leaving with the children. There was a struggle as the father tried to physically remove the grandfather from the car. The father’s fingers were caught in the door. The police attended and determined that the grandfather did not deliberately injure the father. The police records refer to both men pushing and pulling the door of the car while Y was inside.
I accept that this incident would have been extremely distressing to both children. The situation was instigated by the father. He could have left when it became evident there was a dispute. I accept it was obvious to him that the mother did not agree to time with the children occurring. He involved the children directly in the conflict.
Y spoke to the maternal grandmother after an altercation at the former matrimonial home between the parents in mid-2020, about which she observed: “Daddy pushed Mummy, Daddy not nice, it’s not nice what he does, why did he do that?”. Y was three years old and being held by her mother at the time of the altercation. She has made similar remarks to her aunt Ms B that her dad hit Mummy, and that she was scared.
In mid-2020, the father attended Y’s childcare centre to collect her without advising the mother, nor seeking her agreement. The mother received a call from the childcare centre that the father was there. At the time, the mother was collecting X from school. She then attended the childcare centre. X was present and saw his mother very upset. Police attended. Although X was removed by the childcare workers from the immediate vicinity of the dispute, I accept his mother’s upset would have been obvious. He would have been aware that his sister did not come home with them and was with their father. Y was not returned until some hours later. Y would again have been aware she was at the centre of a dispute between her parents.
The father attended X’s school in late 2020 at lunchtime, although he had agreed not to go to the school. X later told the mother that he was scared his father would take him, but that he let him go back to class.
Childcare and school are places children should feel safe. Those places can be a haven for children from parental dispute. Predictable arrangements are important for children, particularly ones who been exposed to significant family violence as I find these children have. I accept that the father’s conduct caused fear for them, and fear and stress to the mother. She was also entitled to regard the children as safe when out of her care at school and childcare.
The mother has reported feeling highly anxious when organising the AVL calls between the children and the father, so much so that she was shaking. She has tried to shield the children from seeing her shaking hands. It is inevitable that children with the close relationship these children have with their mother would be aware of her stress and distress.
In the interviews for the report, the children were overwhelmingly positive about their mother and could not recall anything positive about their father. They were clear that they did not wish to see him, nor communicate with him. I accept the assessment of the Single Expert that this polarisation of the children has come about in circumstances where there has been high conflict in the past. Their mother is extremely anxious about their father and avoidant of him. The Single Expert noted the children are emotionally attached and secure with their mother. The Single Expert was of the view that it is understandable the children have aligned themselves with her view of their father, as a consequence of their close relationship with her. They are aware of the mother’s anxiety when she is required to discuss or deal with their father.
In essence, the children aligning with their mother has resolved for them the conflict around their parents by choosing a ‘safe’ position, as the Single Expert referred to it. This does not mean that the mother has been deliberately or overtly negative about the father to the children, or in front of them. Rather, as a function of their close relationships the children pick up on their mother’s anxiety. I accept the Single Expert’s evidence on this topic, including that this is not reflective of any strategy by the mother.
Having orders in place that the children are able to communicate with the father in accordance with their wishes in the event that they express a wish to the mother or to the father in writing, is not a practical resolution to the predicament the children are in. It is not clear how that could occur whilst he is in custody. How the children’s views would be ascertained and communicated to the father in the future is not known. It is predictable that dispute about the children’s views may involve the parents in further litigation. Such litigation would not be in the children’s interests. It would stress the mother, which stress would be apparent to the children and adversely affect them.
Should the father be able to send the children letters, cards and gifts and have the children receive them?
A Case Outline Document was filed on behalf of the father while he was legally represented. That document contains a Minute of Orders sought by the father, including an order permitting the father to send cards, gifts and letters to each of the children on their birthdays, at Easter and at Christmas each year and at any significant life event. The order also requires the mother to confirm in writing receipt of such cards, gifts and letters and provide them to the children. When he told the court the orders he was seeking, that order was not mentioned. Similarly, the father did not refer to any order sought authorising the school to provide information and reports to each of the parents.
While it may be that the father no longer seeks an order permitting him to send cards, gifts and letters to the children, I have considered whether to make such an order. This is to avoid any disadvantage caused by the father becoming self-represented.
The children have experienced significant distress as a consequence of the father’s actions, and there is sufficient evidence to indicate that the children are fearful of him. In 2020, at a time the father was not permitted to approach the mother or the children pursuant to a provisional ADVO, a friend of the paternal family delivered items to X’s school for his birthday.
The paternal grandmother’s evidence is that she organised this. I accept that it would have appeared to X, and the mother, that it was organised by the father. One item had “Love from Dad” written on it, and X was shown another item from the father wishing him a happy birthday. It is the mother’s evidence that this incident caused X to become scared and upset. The mother contends that X expressed fears that the father would take him, and that on the following morning X cried and did not want to attend school. The videos tendered into evidence by the father show that the father took the opportunity to question the children over various matters. The videos do not engender confidence that the father would appropriately use any order for communication with the children.
Orders which would permit the father to send cards and letters to the children at his discretion would not be conducive to the children’s sense of safety and emotional wellbeing. I find that such an order would likely cause the children apprehension. There would be no predictability in the arrangement from the children’s perspective, pursuant to the orders sought by the father.
The father denies that he was a perpetrator of family violence. I accept that he has not developed any insight which could assist him through his communication with the children to acknowledge their lived experience of him.
The orders sought permitting the father to send cards and letters to the children are not subject to the children’s wishes. The father can decide whether or not, and when, he sends communications to the children. I do not find that the order would be in the children’s best interest, and I decline to make it. I accept that the children are fearful of the father. I do not propose making orders that would entitle him to receive information about them.
Should there be orders for the father to spend time with the children, or attend school or sporting events, subject to the children’s wishes?
The father does not presently have the capacity to attend school events as he is in gaol. The specific date of his release is contingent on a number of different factors, but it was agreed the earliest date would be in about three and a half years. He suggested in his evidence that should the children express a wish to see him, the mother should bring them to the gaol. He referred on a number of occasions to facilities within the gaol for children to see their fathers, and expressed that people convicted of very serious crimes see their children.
The father’s orders are contingent on the children expressing a wish to the mother, or father in writing, for him to attend. This is subject to the same difficulties of communication and potential dispute about their views outlined above.
There is an ADVO in place until late 2034 for the protection of the mother and both children. In addition to what are commonly referred to as ‘the standard orders’ not to assault, threaten, stalk, harass, intimidate or destroy or damage property, specific orders have been made about contact.
The father is prohibited from approaching the school or other place any of the protected people might go to for study or for childcare. He cannot approach the mother or children or contact them in any way unless it is to attend accredited or court approved counselling, mediation or conciliation, as ordered for contact with the children, or as agreed in writing about contact with the children. He cannot go within 100 metres of where any of them live or go to work.
Parenting orders for a child to spend time with a person, where inconsistent with an ADVO, override the ADVO to the extent of the inconsistency. The mother and children have the benefit of broad orders restraining the father’s conduct towards them. In the context of the father’s convictions, there is an obvious need for them to have the benefit of those protections.
Were orders made as the father seeks, the order for time would override the ADVO if the children express a wish to their mother, or their father in writing, to spend time with him, or have him attend school or sporting events. I do not regard such an outcome as being in the children’s best interests for the following reasons.
The orders would hinge on the children’s wishes. Those wishes would need to be communicated by the mother to the father. It is unclear how they would be able to be communicated given the history of family violence.
The mother has been subjected to serious family violence by the father. It is not safe for her psychologically, nor for the children, for her to be required to engage in communication with the father.
The father was clear to the court that he does not believe anything that comes out of the mother’s mouth. In those circumstances, further litigation over the children’s views is likely. That is not in their interests.
Orders hinging on the children’s wishes may make it difficult for the ADVO to be enforced against the father by the Police. The mother may not know the date of his release, nor any terms of parole. The mother is entitled to feel safe when the father is released from custody and that she and the children are protected by an order. There should be no concern, for example, that the father could attend the school and there be an argument about whether the children wish to see him, which would mean he was not attending in breach of the ADVO.
For these reasons I do not regard it in the children’s best interests to make such an order.
Are the parents able to exercise joint parental responsibility?
Orders for parental responsibility and decision-making are parenting orders, subject to the best interests principle. The legislation requires parents subject to an order for joint decision-making to consult each other and make a genuine effort to come to a joint decision. Where there is no order, the legislation encourages parents to consult each other about major long-term decisions if it is safe to do so.
Apart from the problems of requiring the mother to communicate with the father given his violence against her, there are significant practical barriers. The father was cross-examined about the practicality of an order for equal shared parental responsibility and decision-making whilst he is incarcerated.
The orders sought do not specify how the parents would make such decisions. His evidence is that he is able to receive text messages in gaol. There is no evidence provided from any authority within the prison system about what communication is permitted for a prisoner of his classification, nor whether factors within the gaol may affect his ability to communicate. He proposes communication occur through his partner. His evidence is that he communicates with her daily by telephone from gaol. He proposes the mother advise her of decisions that need to be made for the children. His partner can relay to him information received from the mother. He can then tell her his views, and she can communicate those to the mother.
There are a number of problems with the father’s proposal. Firstly, there is no evidence from his partner about her preparedness to undertake this role. Secondly, it does not take into account that the parents may be required to consult with, and seek the opinions of, medical professionals, teachers or allied health professionals. There is a myriad of possibilities for these children that may require advice, followed by timely decisions for the children’s welfare. There is no evidence that this could happen through the medium of the father’s partner over the next three and a half to eight years whilst he is incarcerated.
A further impediment is that the father regards the mother as a liar. As he put it, he does not believe anything that comes out of her mouth. He does not explain how he could trust information about the children provided by her. The Single Expert noted that the father “impressed as having very little insight into the perspective of the mother. He impressed as dismissive of her opinions.” It is predictable this could lead to further dispute. This applies to any order which would require the mother to provide the father with information about medical matters for the children. How the mother would do that whilst the father is in custody also raises concerns about the practicality of such an order for communication.
The evidence is that the mother is highly anxious at having to deal with the father. She is frightened of him. The proposal of communicating through the father’s partner was not put to the mother. The Single Expert observed, “Based on the mother’s presentation at this assessment it was concluded that she will struggle asserting her parental preferences if she is required to collaborate with the father in making decisions for the children.” I do not accept she could communicate with him, through text message or his partner, to reach major decisions about the children’s long-terms interests in a manner that was safe for her. The father has been convicted of multiple charges where he has perpetrated serious violence against her over nine years.
The evidence supports that the mother has been making long-term parenting decisions about the children’s health and education in the father’s absence. There is no evidence that the long-term decisions she has made have not furthered their best interests. I propose making orders that permit her to make decisions in the exercise of her sole parental responsibility. The mother seeks an order that the father have no parental responsibility for either of the children. Making orders in the mother’s favour for sole parental responsibility and decision-making necessarily means that the father does not retain any parental responsibility for either of the children.
Whether the mother should be permitted to change the surnames of the children
Providing the mother with orders for sole parental responsibility, as I have indicated, gives her the ability to make decisions with respect to the children’s names if no other order is made. The definition of “major long-term issues” includes decisions about children’s names. The father opposes the children’s names being changed.
The mother wants to be able to change the children’s surnames to her maiden name to protect them from being linked to the father’s criminal conduct, and subsequent incarceration. Her evidence is that a Google search would expose to the children, their friends or the community the father’s criminal history. There is no question that this could be easily done by anyone associated with the children.
Further, she wants the children’s name to be the same as hers, and she does not want to use the name McKowan. She is distressed at having to use the father’s surname to maintain a common name with her children. I accept that the mother would experience use of the father’s surname as distressing. I also accept that she wishes to maintain a common surname with the children, and that it is in their interests for that to happen. It is not in the children’s best interests for their mother to be distressed about such a fundamental matter as her name.
The mother gives evidence that the children have indicated they do not wish to have the same surname as their father and wish to be known by Crespi like their grandparents.
The children are part of the Country G community in Sydney through both their parents. They are aware of members of their paternal family. There is evidence of their grandmothers attending the same church. By changing the children’s surname, their knowledge of their paternal family will not be erased.
I do not propose restricting the mother’s exercise of parental responsibility, enabling her to change the children’s surname in exercise of that parental responsibility. I have included the specific orders sought by the mother in this regard for abundant caution.
Should there be a constraint on the children travelling overseas with the mother to Region H countries?
The mother will have sole parental responsibility and decision-making powers. She has effectively been exercising sole decision-making for the children since the father has been incarcerated. It is not part of the father’s case that she has made poor long-term decisions for the children.
I am satisfied that the mother resides in Australia, has strong family connections to Australia, and has no intention of residing elsewhere. It was not suggested to her that she was a risk of removing the children from Australia to reside overseas.
I accept that the mother is able to make assessments about risk for the children as to where she may travel with them. She has no proposal to travel with the children to Region H. The father did not seriously take issue with this during the hearing. I do not propose making any order restricting her exercise of parental responsibility in this area.
The father sought injunctions restraining both parties from speaking poorly of the other in the hearing or presence of the children and similarly discussing the proceedings in the hearing or presence of the children. No submissions were made with respect to this by the father. In the circumstances outlined in these reasons and the orders I will be making the father does not require the injunction as he will not be spending time with the children. I do not propose making the injunctions sought against the mother. The evidence does not support the making of these orders against her.
CONCLUSION
These proceedings have been before the court for over four years. It is in the interests of these children for this litigation to be concluded. It is not known by any of the parties when the father may be released from custody.
The father has perpetrated serious family violence against the mother and the children. The orders made will promote the safety of the mother and children, including when the father is released from custody.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 13 March 2025
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