Meeuwes & Giles
[2024] FedCFamC1F 231
•15 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Meeuwes & Giles [2024] FedCFamC1F 231
File number(s): NCC 2979 of 2020 Judgment of: SMITH J Date of judgment: 15 March 2024 Catchwords: FAMILY LAW – CHILDREN – oral decision - final hearing - history of alcohol abuse and gross neglect by both parents – children suffered significant psychological trauma due to mutual neglect and parental conflict – father is entirely self-centred – father denies any responsibility for children’s trauma – father says mother is solely to blame - father denies alcohol abuse despite overwhelming evidence – father has history of repeated indecent exposure – no risk of sexual harm from father but indicative of self-focus and disregard for rights of others – father engaged in ongoing coercive control post separation – father attended school assemblies in breach of supervision orders – mother gave in to father’s pressure for unsupervised time with children contrary to court orders after ongoing coercive pressure by father on children during telephone calls – mother has limited capacity to protect herself or children from father - mother freely admits neglect, alcohol abuse and responsibility for children’s trauma – mother genuinely contrite – mother engaged in long term alcohol counselling and now abstinent – mother poses risks to children through low parental capacity and risk of alcohol relapse - father poses significant and unacceptable risks of psychological harm to children through coercive and controlling family violence
FAMILY LAW - ORDERS – children live with mother – mother to exercise sole parental responsibility – children to spend no time and have no communication with father – father permitted to send the children correspondence which mother may pass on – father may have school reports – extensive s 68B injunctions against the father – passport orders for mother
Legislation: Australian Passports Act 2005 (Cth) Pt 2, s 11(1)(b)
Family Law Act 1975 (Cth) Pts VII, XI ss 60CA, 60CC, 65AA, 65DA, 65Y, 68B, 68C, 102NA
Division: Division 1 First Instance Number of paragraphs: 221 Date of hearing: 4-6 March 2024 Place: Newcastle Applicant: Litigant in person Counsel for the Respondent: Mr Willoughby Solicitor for the Respondent: Hannaway Lawyers Counsel for the Independent Children's Lawyer: Mr Teoh Solicitor for the Independent Children's Lawyer: Foat Roberts Lawyers ORDERS
NCC 2979 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MEEUWES
Applicant
AND: MS GILES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
15 MARCH 2024
THE COURT ORDERS ON A FINAL BASIS THAT:
1.Ms Giles (date of birth 1978) (“the mother”) shall have sole parental responsibility for the X (born in 2013) and Y (date of birth 2016) (jointly and severally “the children”).
2.The Children shall live with the mother.
3.The Children shall spend no time with the Mr Meeuwes (date of birth 1973) (“the father”).
4.The children shall have no communication with the father, save for and in compliance with Order 5.
5.The father is permitted to send the children correspondence comprising cards, letters and or gifts on no more than 4 occasions in total per calendar year.
a.The mother shall be at liberty to review the cards, letters and gifts and to decide whether or not it is appropriate to provide the cards, letters and or gifts to the children. Her decision is not reviewable.
b.The mother may inform the father in writing of the reasons why she decides not to provide any card, letter or gift to the children, but is not required to do so.
c.Within 14 days the mother is to provide the father with an address for the purpose of this order, which may be a post office box or address other than her residential address, and the father may provide a return address within 14 days.
d.If the mother no longer has access to the address notified in (c) above she is to notify the father within 14 days of a new address for the purpose of this order, if the father has given her a return address.
Restraints on the Father
6.Pursuant to s 68B of the Family Law Act 1975 (Cth), Mr Meeuwes (date of birth 1973) (“the father”) be restrained, subject to order 5 above, from:
a.contacting or attempting to contact X (born in 2013), and /or Y (date of birth 2016) (jointly and severally “the children”), and or Ms Giles (date of birth 1978) (“the mother”) by any means, either directly or indirectly, and including through a third party; and, or,
b.approaching or coming within 200 metres of any place where the children and the mother reside from time to time; and, or,
c.approaching or coming within 200 metres of any place where the children might attend day care or school from time to time; and, or,
d.approaching or coming within 200 metres of any place where the mother might work from time to time.
7.Pursuant to s 68B of the Family Law Act 1975 (Cth), further and in addition to order 6 above, Mr Meeuwes (date of birth 1973) (“the Father”) be restrained from knowingly:
a.approaching or coming within 100 metres the children or the mother at any location; and, or,
b.approaching or coming within 100 metres of any place where the children are engaging in extra-curricular activities; and,
c.the father is required to immediately remove himself from the vicinity of the children and or the mother in the event he unknowingly breaches this order.
8.Pursuant to s 68C the injunctions in Orders 6 and 7 above pursuant to s 68B of the Family Law Act 1975 (Cth) are for the personal protection of X (born in 2013), and or Y (date of birth 2016) (jointly and severally “the children”), and or Ms Giles (date of birth 1978) (“the mother”).
9.If a Police Officer believes on reasonable grounds that Mr Meeuwes (date of birth 1973) (“the father”), at which the injunction is directed, has breached the injunction in Order 6 or in Order 7 they may arrest the father without warrant.
10.Pursuant to s 68B of the Family Law Act 1975 (Cth), Mr Meeuwes (date of birth 1973) (“the father”) be restrained from:
a.knowingly denigrating the mother to any third party who is involved in the regular care of the children, whether medical or educational care or otherwise, or any third party who has regular contact with the children or the mother; and, or,
b.contacting or providing Court documents, or subpoenaed documents or other documents relating to these proceedings, to any third party, including to any of the children’s schools, treating medical practitioners or other agencies that provide services to the children, excepting only as specifically permitted by Order 12 to request school reports and photos.
11.Pursuant to s 68B of the Family Law Act 1975 (Cth), Mr Meeuwes (date of birth 1973) (“the father”) be restrained from retaining any subpoenaed documents which he may have obtained access to during these proceedings and be required to destroy forthwith any copies, paper or electronic, which he may possess within 24 hours of these Orders.
School reports
12.Mr Meeuwes (date of birth 1973) (“the father”) is at liberty to provide his contact information to the school and to request to be provided copies of School Reports and Photographs of the kind usually sent to parents, at his sole expense.
13.A copy of these Orders is to be provided to any School by the mother for the purpose of informing them of the injunctions directed to the father and that the father is entitled to request School Reports and Photographs at his own expense, but not to otherwise engage with the School.
Passport
14.Ms Giles (date of birth 1978) (“the mother”) shall have sole parental responsibility for the X (born in 2013) and for Y (date of birth 2016) in respect of any application for a passport and in respect of any travel outside the Commonwealth of Australia.
15.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), Ms Giles (date of birth 1978) (“the mother”) is authorised to apply for and retain a passport for each of the Children without Mr Meeuwes’ (date of birth 1973) (“the father”) written consent or approval.
16.The consent of Mr Meeuwes (date of birth 1973) (“the father”) to the issuing of such an Australian passport for X (born in 2013) and Y (date of birth 2016) be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
17.Pursuant to s 65Y of the Family Law Act 1975 (Cth), Ms Giles (date of birth 1978) (“the mother”) is at liberty to travel outside of the Commonwealth of Australia with X (born in 2013) and or Y (date of birth 2016) (“the children”) whether or not Mr Meeuwes (date of birth 1973) (“the father”) has consented to any such travel.
Provision of orders to organisations involved with the children
18.The mother may provide a copy of these orders to any school, activity provider, medical or allied health practitioner or practice, Government Department or other similar entity at which the children attend or which provide the children with services.
Explaining the orders to the children
19.The Independent Children’s Lawyer (“ICL”) may, if they choose, explain these orders to the children in an age appropriate fashion, and may obtain assistance from a Court Child Expert or other person the ICL considers appropriately qualified, at the ICL’s discretion.
Costs
20.A party who seeks costs is to file an Application in a Proceeding in accordance with the Rules within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Meeuwes & Giles has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are oral reasons for decisions in a final hearing, heard by me last week, in parenting proceedings pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The hearing was to determine what parenting orders are in the best interests of the children, X born 2013, now aged 10, and Y born 2016, aged eight (“the children”).
These proceedings were commenced on 19 August 2020 by the applicant father Mr Meeuwes born 1973, aged 50. The respondent mother is Ms Giles born 1978, aged 46. An Independent Children's Lawyer (“ICL”) was appointed and has participated.
The parties commenced cohabitation in either 2005, according to the mother,[1] or in 2006 according to the father.[2] The relationship ended in December 2019 after the mother left the relationship. Her evidence was that this was following years of verbal, emotional and financial abuse.[3] The father's evidence was that it followed an incident of child neglect by the mother.[4] Both of these assertions appear to be correct.
[1] Mother’s trial affidavit filed 21 August 2023 at paragraph [5].
[2] Father’s trial affidavit filed 21 August 2023 at paragraph [4].
[3] Mother’s trial affidavit filed 21 August 2023 at paragraph [6].
[4] Father’s trial affidavit filed 21 August 2023 at paragraph [4].
The children currently live with the mother. Both parties live in the Town B area in rental accommodation. It is a small town. The parties live relatively nearby to each other. Neither party has re-partnered. The circumstances in which they live nearby are relevant and will be discussed later.
The child court expert, Dr C, provided an opinion in her second Family Report, which I accept. That opinion was that "[t]here is no doubt that these children have been exposed to ongoing parental alcohol dependency during their formative years".[5] This caused the expert to opine that as a consequence of this trauma X has a "probable attachment disorder",[6] and that Y’s presentation may also be “consistent with” that hypothesis. [7]
[5] Exhibit ICL 3, Family Report dated 22 August 2023 at [108].
[6] Ibid at [109].
[7] Ibid at [110].
The evidence makes it crystal clear that both parents abused alcohol during the relationship, that this adversely affected their parenting capacity, and had significant adverse consequences for the children.
The children have also been clearly significantly adversely affected by the high level of conflict and dysfunction in the parenting relationship, both during the relationship and afterwards.
The father's case is that the mother poses a significant risk to the children through her family violence and neglect. There is no doubt that the mother severely neglected the children and that this neglect had major adverse consequences for them. The father in raised the issue of the mother’s possible return to alcohol abuse and associated neglect as a significant risk issue in relation to the mother.
In closing submissions, the father raised the risk issues in the mother’s household. He proposed, nevertheless, that there be equal shared parental responsibility, that the children transition to live with him, this being a way to reduce the risks in the mother’s household by ensuring that they primarily live with him, that they spend time with the mother from Monday after school to Thursday before school and on special occasions, and he also proposed a variety of orders concerning restraints and other matters.
The mother's case is that the father poses an unacceptable risk of psychological harm to the children due to his family violence, involving coercive controlling behaviours and his ongoing insistence on denigrating the mother to the children and undermining her relationship with them. The mother also raised as a risk the possible return by the father to alcohol abuse exacerbating his parenting defects.
The mother says the father’s behaviours, and lack of parenting capacity, are reflective of his general lack of insight into the needs of other people, including the children, and of his entirely self-centred or self-focused view of what should occur. She ran a no time and no communication case.
There was an issue prior to, and at trial, of a risk of sexual abuse by the father of the children. I consider that was properly raised in the proceedings, given the father's history of convictions and the fact that there were criminal proceedings related to sexual activity on foot until recently, but for which he was not found guilty. In light of all of the evidence that risk was not pressed by the ICL or the mother. I find, that while the issue was properly raised and was relevant, there is no risk of sexual abuse of the children by the father and I do not take that into account as a risk.
However, I will be considering the material about that issue, as the father's history of convictions, and his own evidence about his conduct both in respect the historical issues, and also his conduct and evidence about his conduct that led to recent charges, though not amounting to criminal conduct, is relevant to the assessment of the father and his likely behaviours generally. Firstly, it is relevant to the case that he is a person who seems to have no regard for, or perhaps no ability to understand, other people's boundaries, or needs, or the impact of his behaviours on others. Secondly, it goes to the facts on which I find he was an entirely dishonest witness, who was willing to casually lie whenever it suited him, and whose evidence therefore can be given virtually no weight unless otherwise supported by independent evidence. This will all be considered in due course.
The mother’s final proposal was that she have sole parental responsibility, the children live with her, they have no time and no communication with the father, which was, largely in line with the ICL’s final proposal, except that she proposed the father be permitted to send cards, letters, and gifts, which she could pass on at her discretion.
The mother initially proposed recognition time, and indeed she gave some quite impassioned oral evidence about the fact that while she thought the father posed a significant risk, the children do love him and are attached to him, and there is no doubt about that, and she was concerned about the long-term impact of the children having no time or no communication with him.
She was also concerned, as her counsellor indicated, about the possible “white knight” factor: where children who inevitably become unhappy with their parent, particularly during their teenage years, may tend to idealise the absent parent and fantasise about the fact that if they were with the absent parent they would be allowed to do whatever they wanted and be happy; and then perhaps blame the parent they are living with for having removed that parent from their life.
The expert’s evidence was very much against that course of action. The expert’s opinion was that the children know the father well, and so the expert did not think that there would be any benefit to the children in having recognition time, given their deep experience of the father meant they were unlikely to idealise him.
The mother proposed the father be permitted to provide his contact information to the school, and she requested he be provided with copies of school reports and photos at his expense, but not otherwise to contact the school or become involved in the children’s education. She also proposed section 68B restraints on the father.
The Independent Children’s Lawyer submitted, at the end of the evidence, that the father poses an unacceptable risk of psychological harm to the children.
On that basis, the ICL proposed that the mother have sole parental responsibility, that the children live with the mother and that the children spend no time and have no communication with the father. The ICL, for reasons I will refer to a bit later, also proposed a section 68B restraint on the father.
As this is an oral decision, so the parties are not required to wait further, I will indicate now that for reasons I will explain, I substantially accept the submissions on behalf of the ICL and the mother, and find that the father does pose a significant and unacceptable risk of psychological harm to the children, noting that they are highly psychologically vulnerable, and that X at least has been significantly psychologically impacted by the actions of both parents.
In that circumstances I will make orders, substantially, as proposed by the ICL and the mother, with some slight variations.
RELATIONSHIP BACKGROUND
I will now consider the relationship background.
Post-separation, the father says the parties agreed he would be, or remain, the primary carer of the children,[8] whilst the mother's evidence was that the parties agreed to share a shared care arrangement.[9] I note that, given the mother was working, it appears the children were spending more time living with the father, but also substantial and significant time with the mother. Nothing ultimately turns on this.
[8] Father’s trial affidavit filed 21 August 2023 at [4].
[9] Mother’s trial affidavit filed 21 August 2023 at [7] – [8].
The mother unilaterally retained the children in her primary care in August 2020, which led to the father commencing these proceedings by Initiating Application on 19 August 2020. The father sought a recovery order and final orders for equal shared parental responsibility for the children, with the children to live with the father, the children to spend time with the mother from 4.00 pm Saturday to 4.00 pm Monday, as well as a restraint on the mother consuming alcohol prior to the children coming into her care.
On 14 September 2020, the parties entered into consent orders that the children live with the mother and spend time with the father "as agreed between the parents in writing but failing agreement" each Wednesday after school and each Saturday from 10.00 am to 3.00 pm, this time being supervised by the maternal grandfather. The mother was restrained from consuming alcohol or illicit substances, and the father was similarly restrained, on a without-admission basis. Each party was ordered to obtain a referral for a CDT test and provide the other party with a copy of the results. Each party was entitled to request a CDT test on one occasion, to be undertaken within seven days.
The mother has conceded she has a significant history of alcohol abuse and is working on stopping that. The father has raised the fact that there are no current CDT tests from the mother, but he did not seek any as he could have. He gave spurious reasons for that course in oral evidence, suggesting that it was better to have the risk of testing hanging over her head, even though he said he thought she was drinking and at that time did not require her to undertake testing.
The father spent time with the children from September 2020 supervised by the maternal grandfather.
On 29 January 2021, further consent orders were reached suspending the spend time arrangement with the father and ordering the time be supervised by D Contact Service not less than two hours a week.
A Family Report was ordered and was subsequently released on 5 October 2021. That is the first Family Report by the expert, Dr C.
In January 2021, the father spent time with the children via the professional supervising service.
The matter was listed in December 2021 for a final hearing commencing in September 2022.
However, on 23 March 2022 the father engaged in conduct which led to criminal charges being filed against him relating to the receipt of certain services. That will be considered in detail later.
On 10 August 2022, consent orders were made vacating the trial in the context of the impending criminal trial, and further adjourning the matter to May 2023. On that date, an Order pursuant to s102NA of the Act was made. The matter was listed for trial on 18 September 2023, but could not proceed as the father was appealing his then conviction.
The parties reached further consent orders on 18 September 2023 which provided for the father to be restrained from approaching the children or the mother. Further orders were made that the father was to communicate with the children each Tuesday and Thursday via telephone, and the matter was transferred to Division 1.
The father's criminal conviction was quashed in late 2023.
Orders were made on 23 January 2024 setting the matter down for the final hearing commencing on 4 March 2024.
The father was allocated a solicitor pursuant to the scheme under s102NA of the Act and that solicitor prepared materials for him.
On 14 February 2024, the father's solicitor filed a Notice of Ceasing to Act. Given the s102NA order in place, I had the matter listed for mention before me. The father and his solicitor appeared, and the solicitor advised that his retainer had been withdrawn on an "amicable basis". The father said he wanted to represent himself.
The father was advised that, because of s 102NA, while he was entitled to represent himself, he could not cross-examine the mother, which would substantially reduce any potential prospect he had of succeeding in these proceedings.
The father advised the Court that he understood that and wished to proceed on the basis that he act for himself. On the basis of this informed consent to a final hearing in which the father was not allowed to cross-examine the mother, and the need to finalise the matter, the final hearing commencing 4 March 2024 was confirmed.
TRIAL AND EVIDENCE
The final hearing was held in person, commencing on 4 March 2024 before me. The mother and the ICL were represented by counsel. The father was self-represented.
The father filed a court book in two parts, MFI 1 and 2 respectively. The father relied upon the Application for Final Orders filed 21 August 2023 and the Notice of Risk filed 21 August 2020. He had a tender bundle from which material was submitted, MFI 3. He relied upon his final hearing written submissions, MFI 4, which I will go to later, and a Final Minute of Order, MFI 5. The father read his affidavit filed 21 August 2023 without objection and was cross-examined for the mother and the ICL.
The mother provided her court book, MFI 6. She relied upon her Amended Response to Final Orders filed 21 August 2023 and her Notice of Risk filed 11 September 2020. She also had a Case Outline document, MFI 7, and a Final Minutes of Order, MFI 15, filed after the conclusion of all the evidence. She read her affidavit of 21 August 2023 and was cross‑examined by the ICL.
The ICL filed a tender bundle, MFI 9. The ICL tendered and relied upon the two Family Reports prepared by the expert Dr C, one dated 1 October 2021, exhibit ICL 2, and the updating report dated 22 August 2023, exhibit ICL 3. I note that the expert was required for cross-examination by all the parties. The ICL relied upon written submissions, MFI 8, and after the final evidence from the expert, the ICL had a final minute of order, MFI 14.
Various doctor’s documents were tendered as exhibits and were admitted and will be dealt with where necessary.
FATHER’S HISTORICAL SEXUAL OFFENCES
I will start with the father's prosecutions for historical criminal sexual offences.
The father's historic convictions, which are very old, and recent charges for sexual offences, took up a substantial portion of the trial.
Events of 1997
In 1997, the father pled guilty to, was convicted of, and sentenced to a period of supervision for, two counts of a sexual offence.
The convictions related to events where the father exposed himself to, and was said to be performing a sexual act in front of, two women, and exposed himself to a sales assistant in a change room that same day.[10]
[10] Exhibit C, MFI 9, pp.374 – 375.
The police Fact Sheets are part of Exhibit C, MFI 9, at pages 374 to 375. It appears to be the Fact Sheet the father plead guilty to:[11]
He made admissions to [performing a sexual act]. When asked for an explanation he replied, “I carn’t [sic] explain it in anyway that makes it right. I just felt like doing it”.
[11] Ibid p.375.
The expert noted that, during the interviews the father acknowledged exposing himself in public but denied performing a sexual act. He also denied exposing himself purposefully to the salesperson.[12] The father maintained these positions in his oral evidence before me, despite his guilty pleas and convictions.
[12] Exhibit ICL 3, Family Report dated 22 August 2023 at [53]-[54].
The father said he was exposed in public. He said he was ashamed about that, but he denied he was performing a sexual act.
In respect of going into the change room, his evidence before me was that he did not realise or intend that when he asked the young sales lady to come in, that he would be exposing himself to her, because he said he thought his shirt was covering him.
Apart from being inconsistent with his plea of guilty and his recorded conviction, the inherent improbability of what he says about what occurred in the change room also confirms my assessment of his oral evidence that he did not realise he was exposing himself as fanciful nonsense.
I find the father's oral evidence in respect of what occurred in public and in respect of the salesgirl to be intentionally dishonest, to the extent it was inconsistent with the plea’s of guilty and the contemporaneous record of his concession against interests.
His oral evidence was designed to minimise responsibility for his behaviours by admitting only what he had to admit, which was that he intentionally exposed himself in public, there being no other possible explanation for his being exposed, but then to deny the sexual act which was recorded by police as being admitted by him at the time, and then to also denying an intention to expose himself to this young salesgirl.
I note, that I refer to contemporaneous notes of the admission of performing a sexual act in the context of the guilty plea over the husband's evasive evidence to me about that. I find the father's oral evidence of this issue unreliable and intended to minimise his culpability, as I said, by admitting only that which had to be admitted, whilst denying the rest, despite the admissions recorded and convictions, and the inherent impossibility of what he said occurred in the changeroom.
Events of early 2022
In 2022, the father was charged with two sexual offences. The first charge was withdrawn, but the father was convicted of the second in early 2023, after a defended hearing, resulting in a community corrections order. The father appealed his conviction and was successful on appeal, resulting in his conviction being quashed. I therefore do not take the conviction into account.
However, the transcripts of the Local Court trial, sentencing, all grounds appeal, and reasons for the quashing of the decision in the District Court were tendered by consent, that is Exhibit ICL 4, 5, 6 and 7.
While not criminal the father’s admitted conduct was clearly relevant.
In her evidence at Trial, the complainant, a young lady, stated that the father booked a service in early 2022 at a business in a suburban mall. There was no suggestion that this was, or might reasonably have been thought to be, a business where sexual services were or might be offered.
The father booked, he agreed, the service under a false name and gave a false contact number, he says to avoid later spam. The father arrived in the morning and was asked by the complainant to follow him into the room. She says she instructed him to change, but leave his underwear on, which was, she said, her usual practice. She said that clients do not always accept that advice to keep their underwear on, but there is a method of working in those circumstances.
She said the father indicated he wished to have a particular service. She said that the father commented that the service felt good and that the movement of her hands was nice. She stated that he then made comments about the techniques she was using, which made her uncomfortable, so she stopped working the way she was. He continued to give her compliments, she said, such as saying she had soft, warm hands. Once again, she said she felt uncomfortable.
She then stated the father asked her if she could “[perform a sexual service]” to which she replied, “No. […]”. She says, he responded, “I was just trying to ask you respectfully”. She continued to work, and says he again asked her, “Respectfully, can you [perform a sexual service]?”. She again told him, “No...”. At this point, she stated that he took hold of her hand and pulled it over his groin area. She said she moved away quickly as a result and asked him to leave.[13]
[13] Exhibit ICL4, pp.19-20.
She says she went and spoke to her co-worker and burst into tears. The co-worker went and got their employer or manager, Ms F.
Ms F gave evidence that when she saw the complainant after the event, she was clearly distressed and told her the father had “asked [her] to [perform a sexual service]”. She provided evidence that she then spoke to the father and told him, “We don't do that here”, to which he replied, “I didn't know, I just thought I’d try.” She told him he had to pay. He gave her $100 and left.[14]
[14] Exhibit ICL 4, p.32.
The father gave sworn evidence in his defence. He said he had provided the false name and number to avoid spam and scams. He said he was told he could take his underpants off or leave them on. He said that he asked the complainant to provide a particular service. He admitted to asking, “Do you ever offer to [perform a sexual service]?”, to which he says the complainant responded, “No, we don't do that here.”
He said that he was embarrassed, and she seemed embarrassed, so he apologised. He maintained in that trial that he did not ask her to perform a sexual service, only asking if she had ever offered to. He denied asking, “Can you [perform a sexual service]” or repeating the question. In particular, he denied grabbing her hand or placing it anywhere. He said his intention was not to find out whether she would perform the service, but rather only to find out if she ever offered that type of service.
A magistrate convicted him. That conviction was set aside.
In his oral evidence before me the father denied he had asked the worker to perform a sexual service. He accepted that he had asked the worker if she “did” perform that service. He said, however, that he did not ask her to perform the service. He indicated this was an important distinction.
He did accept, assuming his evidence, that the first question, about whether she ever did offer sexual services, might naturally be understood by her to be a precursor to a second question of whether she would offer those services to him at that time. However, the father made it clear that he did not think there was anything at all wrong with this behaviour as he described it.
The father was cross examined on his denied that he asked the worker to “[perform a sexual service]” by reference to both a pre-sentence report and the Family Report.
The father was sent for a pre-sentence report, prepared on 12 April 2023 by Ms G, a community corrections officer, which reads:[15]
[15] Exhibit C, MFI 9, p.358.
Attitudes
•[Mr Meeuwes] stated he did not agree with some of the police facts; while he readily conceded he did ask the victim to perform a sexual act, he denied touching the victim.
•[Mr Meeuwes] reported he did not attend the [business] with the intention of obtaining sex. He said he misread the victim's friendliness and "respectfully" ask for the sexual service.
•[Mr Meeuwes] stated that he did not think his request was inappropriate, as he has previously asked or been offered this service at other various […] establishments.
Sex offending
•[Mr Meeuwes] has two prior charges for [sexual offences] being committed in 1997.
•[Mr Meeuwes] scored in the Above Average Risk level of sexual re offending using the Static - 99R assessment.
Responsivity
Insight into impact of offending
•[Mr Meeuwes] stated he is remorseful for his actions. He said in hindsight, he thought it may have been the first time the victim had received such as request and he was sorry. He said he noticed she had become quiet and stopped engaging in conversation after his request and in reflection he could have apologised for making the victim feel uncomfortable.
•Although [Mr Meeuwes] said he felt badly that the victim had been affected by his request, he verbalised limited insight regarding her refusal and the subsequent response he received from the manager of the [business] after the offence.
•[Mr Meeuwes] stated his concern about the sentencing outcome at court with regards to how it could impact on him and his children.
(Bold emphasis in original, Italicised emphasis added)
It was put to the father in cross examination that he had told Ms G that he asked the victim to perform a sexual act but had not touched her. He denied this and expressed distress that this was recorded.
It was put to the father in cross examination that in the interview for the second Family Report, he had told the expert that:[16]
48.…The father agreed that whilst in the process of the [service], he did ask the [worker] if she would [perform a sexual service]. The father noted the worker alleged he placed her hand […] over his penis, when he asked her this question, which he actively denied. The father reported that the worker was “all fine” after he asked her and did not seem upset. The father stated her manager was the person who was upset, not the worker, and asserted that the worker and the manager were colluding in providing false information to Court regarding the details of what occurred. The father was asked why the manager would lie and he stated, “to protect the reputation of the business” and was then asked why would the worker lie, and he replied that he had often wondered this himself. The father viewed his criminal conviction as “I agree I insulted someone”, does not think the conviction supports a risk of harm with respect to women or children and cannot understand why his Working with Children Check has been revoked as a result. The father denied that he had ever sought out [sexual services], from [similar businesses] in the past.
(Bold emphasis added)
[16] Exhibit ICL 3, Family Report dated 22 August 2023 at paragraph [48].
The father denied saying to the expert that he had asked the worker “to” perform the sexual service and maintained that he had only asked if she “did”.
In her oral evidence the expert confirmed that the father had said this to her and maintained the accuracy of her record of the interview.
On the father’s oral evidence, both the child court expert and a community corrections officer writing an expert report for a criminal court mis-recorded a concession from the father that he did not make.
I am comfortably satisfied that it is appropriate to accept and prefer the written and oral evidence of the child court expert as to what the father told her. In that context, and given all of my findings concerning the father’s credit, on balance I also prefer the corrections officer’s written record of a concession.
I find that the father lied about having asked if she “did” provide sexual services, and not to provide sexual services, to minimise the impact of his behaviours in these proceedings.
Further, even on the father’s eversion of events, his sworn evidence as that he felt that going to a suburban mall, and asking a young lady whether she did offer sexual services while she giving him a service was entirely reasonable.
Findings
The expert’s opinion was that that given the father's contrasting, conflicting evidence on the events, both past and recent, high levels of doubt must be cast as to the credibility and the validity of issues relating to his sexual offences.
I have reached a similar conclusion primarily on the basis of the father's oral evidence before me.
The expert noted her concern in the second Family Report that:[17]
113.The father’s sexual behaviours in all three crimes involved young women, a public location and the father failing to follow social guidelines regarding sexual behaviour, suggesting the father’s boundaries with respect to sexual behaviour may be of concern. The father failed to acknowledge the impact his behaviour had upon his victims, avoided questions attempting to ascertain responsibility and showed some skill in avoidance of the CCE’s questions.
[17] Exhibit ICL 3, Family Report dated 22 August 2023 at paragraph [113].
These are all matters of concerns.
I do not need to find whether or not the father probably asked the worker to provide a sexual service, although his concession to the expert and then denial before me raise the possibility that he did.
The fact that, on his own sworn evidence, the father’s view is that it was entirely reasonable to ask another young woman at a mall who was giving him a service whether she happened to be someone who offered sexual services shows a lack of appreciation of other people's rights or what is acceptable behaviour.
The father’s behaviours, and evidence, are consistent with the concern the expert raised that the father only sees his own needs and desires and does not take into account other people's positions or needs.
I therefore consider this evidence of conduct towards other people highly relevant to my assessment of the probability of the allegations of family violence made by the mother being true. Although I find the evidence does not support a finding of sexual risk to the children, the historic convictions are relevant to the father's attitude to others at that time and his behaviours at that time, and the recent charges and his evidence about that are relevant to his attitudes to others at the moment.
I note the family violence evidence is word against word, and it occurred behind closed doors, as is usually the way.
FATHER’S MOVE TO TOWN B
Now, I move to consider the issue of the father's move to Town B because it flows naturally from what I have just said. Again, this issue took up a substantial part of the trial.
It is also highly relevant because, again, it is evidence that is testable which demonstrates the father's attitudes to the rights or interests of others, and in particular of the mother, and the children, as well as about his attitude to whether or not he is bound by orders of this Court, and the general laws that govern society, if they happen to stand in the way of him getting what he wants.
Now, the father was living a nearly one hour drive from the children and spending professionally supervised time with them. I note that in Sydney, that is about the standard difference between many parents. It did not involve any impediment to the father spending supervised time in accordance with the orders. But at the time of the second Family Report, the father had moved to rental accommodation in Town B about three weeks beforehand. He told the expert in the second Family Report,[18] the move was “to be closer to the children”, and in that same report said,[19] “knowing I'm in the area will make them feel better”, that is, the children. He did not give any consideration of the potential impact on the mother.
[18] Ibid at paragraph [5].
[19] Ibid at paragraph [28].
In oral evidence, the father, when asked about this, said that he was concerned that if he lived nearly one hour away, the expert would say it was a factor militating against time during the school weeks being spent with him. He made no mention of the reasons given to the expert. I consider this a post-hoc fabrication in the witness box of a potentially plausible explanation to explain his move to be closer to the children in the context of what follows.
At that second Family Report interview, three weeks after the father's move:[20]
89.[Y] informed the CCE that he and his sister were “going to have a sleepover at Dad’s house”. When asked who had told him this, [Y] stated, “my Dad told me” and when questioned further [Y] stated this had occurred on a phone call between himself and the father. When asked what else the father had said about the sleep-over, [Y] reported the father had said “mum has to figure it out”.
[20] Ibid at paragraph [89].
Now, the father denied saying this to Y, but it is not clear why Y would say it to the expert if the father did not say it to him.
Significantly, following what Y says occurred after the father's move to Town B, the mother and the father, it is common ground, then agreed contrary to the Court's orders that the mother would bring the children to a park, so the father could spend time with them outside of the supervision centre.
The mother says the children pestered her to spend time with the father outside supervision and she gave in and allowed them to spend time with him at the park. I note that this is an example of the mother's ongoing vulnerability to the father, which is relevant to my assessment of what is in the children's best interests in the case.
While the father denies saying this to Y in his phone conversation, what followed in terms of the parties agreeing to break the orders is entirely consistent with the version of events that Y volunteered to the expert about the father telling Y that there was to be a sleepover, and it was going to be the mother's problem to figure out what happened, and then the children pestering the mother until she gave in, in circumstances where the Court had made an order for supervised time only.
Similarly, despite the Court orders, it is not in contest that the father regularly attended the children's school assemblies despite orders for professionally supervised time only, as detailed in the Family Report:[21]
117.There are counter allegations of family violence in the current matter. The father has recently moved to the [Town B] area, where the mother and the children live, and has done this purposefully and deliberately to support his time with the children, despite the current supervised time with the children. The father also regularly attends school assemblies and this behaviour appears inconsistent with current Court orders being for the father to only spend supervised time with the children. These two behaviours exhibited by the father is consistent with his inflexible position with respect to the living with arrangements and could be suggestive of entitlement and power observed in family violence perpetrators. Furthermore, if the father does not obtain Orders consistent with what he is seeking, this inflexible thinking raises the potential risk of escalation in his future behaviour, with respect to women, the mother and the children.
118.The mother expressed fear and concern over the father’s future behaviour if the children were not returned to his primary care, given his access to the children at school, his knowledge of where the mother lives and the father living in her local area. The CCE’s concerns mirror that of the mother and suggests that if the Court regards the father as a risk of harm to the children, the Court restrain the father from attending the children’s school, the mother’s home and other areas the children and mother frequent.
119. The mother reported ongoing concerns the father would deliberately isolate her from her local supportive environment by sharing negative information regarding her with professionals. To avoid the likelihood of this occurring, if the Court considers the father poses a risk of harm to the children, it is recommended the ICL be permitted to provide a copy of the Final Orders to the children’s school, the children’s medical practitioner and any services involved with the children.
[21] Ibid at paragraphs [117]–[119].
The father was cross-examined on why he repeatedly breached the court's clear orders by attending on the school and by meeting with the mother and the children at a park contrary to court orders. He said he was advised by lawyers that the parties could vary the orders and have unsupervised time if they wanted to. He referred to the orders saying that.
Now, he was taken to the orders of 14 September 2020, at consent Order 2, which did talk about supervision by the maternal grandfather as being “as agreed between the parties”, but he was then taken to the orders of 29 January 2021 at Order 2 which clearly makes no provision. He maintained he had legal advice that this was not the effect of the order, and that he and the mother could vary it at will.
As I have said, the mother, when asked why she broke the orders, said that given the pressure the father had placed on her through the children for time outside the orders, she reluctantly breached the court orders. She thought that meeting at a park was better than having the kids go to see him elsewhere. She said she felt compelled to do so. I accept the mother's evidence. I note and agree with the expert's serious concerns about the mother’s capacity to withstand pressure from the father and protect the children, which is consistent with having been the victim of longstanding coercive control. The mother’s agreement to this breach of Court orders establishes that she has limited, if any, capacity to protect herself or the children from the father if he is given even the smallest avenue by which to involve himself in their lives.
I do not accept that the father was advised or believed that the clear orders of the court requiring his time with the children be supervised was somehow discretionary. I find that the father moved to Town B to be close to the children with the intention of seeking to use his telephone calls with the children to tell them to tell the mother to spend time with him and to make it clear that if they did not get that time it would be the mother's fault because she had to “figure it out” and to make it clear to the children that the mother would be the bad parent if she did not facilitate the unsupervised time which he wanted.
He clearly intended to undermine the mother's relationship and authority with the children, and he clearly intended to put pressure on the mother through the children to circumvent the court's orders.
I find the father’s behaviours demonstrated a clear view that he is above the Court's orders, and that he will get what he wants regardless.
This is consistent with the kind of beliefs and behaviours I find were indicated by the two criminal convictions and the service worker matter I have referred to, where the father prioritises his own wants and desires over what anyone else may want or their rights.
ALCOHOL ABUSE
Mother’s alcohol abuse
Now, I will come now to alcohol abuse. The father alleges that the mother heavily consumed alcohol and marijuana as a teenager and her excessive alcohol consumption continued throughout the relationship.[22] He sets out in detail the issues about what happened in 2010,[23] and what happened in 2017 where the mother was found by a witness in an unconscious state in her vehicle with the children in the car.[24]
[22] Father’s trial affidavit filed 21 August 2023 at paragraphs [19]-[20].
[23] Ibid at paragraph [30].
[24] Ibid at paragraphs [38]–[39].
On that date the police arrived, and the mother blew a high-range reading, was arrested and charged. She pleaded guilty and was convicted of high-range drink-driving, disqualified, and had an interlock device placed on her car. The material is in the police reports.[25]
[25] Exhibit 2, MFI 3 p.22.
Significantly, the mother accepts all of that, and indeed, the mother accepts that her alcohol abuse caused the children significant long-term harm.
The mother attended upon a psychologist, Ms E, after that incident. She went into drug and alcohol counselling and engaged with H Program. I note the contents of Ms E's letter of 3 June 2020, which described work on patterns of stress and anxiety with CBT, relaxation and breath work.
The mother in her affidavit says she stopped drinking altogether for six months, then only drank a small amount socially.[26]
[26] Mother’s trial affidavit filed 21 August 2023 at paragraph [80].
I note that Ms E's report, which is part of exhibit C, also refers to unhappiness, avoidance social isolation and the mother’s shock at what she had done.
I have reviewed the material concerning drug and alcohol clinic attendances, in particular, part of exhibit C, at MFI 9, pages 133 and 138. Amongst the triggers identified, at page 133, were anxiety, low self-esteem, and the mother having struggled with weight gain, having reported to have gained weight since having children.
Apart from her weight gain being one of the issues that the father used to denigrate her, that suggests the mother may have an undiagnosed eating disorder which has inadvertently been conveyed to the children. I will come to that and the eating / weight issues further.
What is clear is that the mother expressed in 2017 what appears to be genuine grief and guilt. In circumstances where she had been convicted and in the absence of any litigation on foot I do not see any reason to think that what she said in Exhibit C, MFI 9, at page 138, was anything other than a true expression of her views.
Now, many, many parties in this jurisdiction come and give evidence that they have now seen the error of their ways and have addressed their substance abuse issues. In many cases little weight can be given to it. But the documentary evidence from the drug and alcohol counselling and from Ms E, part of Exhibit C, seemed to me to describe the slow and genuine development over time of the mother's gradual acceptance that she is, in lay terms, an alcoholic, that she engaged in alcohol abuse, that she created significant negative impacts on her life, and also on the children's lives.
The mother’s distress in her oral evidence about the harm she had done to the children, and the candour and level of insight she showed were unusually persuasive as was her oral evidence about the techniques used to minimise the risk of relapse.
The mother’s evidence that she does not want to drink, not even one drink, because X seeing her have one glass of alcohol will cause X distress, had the ring of truth, as did her unilateral request for orders, even in the context that the father will not on her case be involved, that she not consume alcohol when the children are in her care, as part of her commitment to sobriety.
Her CDT test and the objective evidence tends to indicate she is telling the truth about this.
The expert said there is, generally, a two-year minimum period of sobriety one would look for to establish a reliable pattern of abstinence. Then there is always a risk of relapse. The mother seems to be well aware of that risk. But it is clearly relevant and I accept the father’s submission that the mother’s history of alcohol abuse with associated mental health impairments leading to significant neglect and causing harm to the children means there is a real risk that this will recur. That is a risk that must be carefully weighed.
However, in assessing the likelihood of relapse it is also relevant that the mother's identified triggers are anxiety, particularly in the context of her dealings with the father and his coercive and controlling behaviours.
Given that, any requirement for her to continue dealing with the father, and to be exposed to the ongoing stress associated with that engagement, increases the risk of the mother relapsing and creates additional risk for the children. The risk that she will suffer ongoing coercive control and associated stress and distress if required to continue dealing with the father is high, despite any orders I might make, noting my findings that the father intentionally acted to pressure the mother through the children circumvent and disobey the court's orders since moving to Town B as I’ve already discussed.
I find that any order, other than a no time and no communication order, therefore poses a significant risk that the mother, as a consequence of ongoing family violence through coercion and control, may suffer the levels of anxiety and stress that are likely to put her abstinence at risk, tip her back into active alcoholism, and significantly reduce her parenting capacity, which necessarily create risks to the children given she is their primary carer.
Father’s alcohol abuse
The father clearly also has alcohol abuse issues. The distinction was that whilst the mother, tearfully, and I find genuinely, admitted that she has a problem with alcohol and has worked on it, the father acknowledges drinking alcohol but says it has never caused a problem.
While emphasising the mother's alcohol abuse, he sought to minimise and avoid acknowledgement of his own extensive history of alcohol abuse. His evidence on this was consistent with his general pattern of denial, deflection and minimisation described earlier when speaking about the criminal convictions and the service worker incident.
I note he was convicted of high-range PCA in 1992, and in 2005 and low-range PCA in 2013.[27]
[27] Exhibit C, MFI 9, pp.269-271.
I note his history on 28 September 2017 to a GP that, “He drinks up to 10 SD/day”,[28] which the father did not consider excessive. But 70 standard drinks of alcohol a week is alcohol abuse on any measure.
[28] Ibid at p.228.
The father gave a history on 25 June 2018 to a GP:[29]
[29] Ibid at p.231.
Also concerned about sleeping
- Has not smoked any THC for 4 days
- Has been having difficulty sleeping as a result
- Having 2 cigarettes/day […]
- Offered patches to help with nicotine craving, however declines currently
- Has cut down to maximum of 4 drinks each day
- Prior to this was having 14 beers most days and 20 cones of marijuana
- Has been doing this for many years
- May be trying to get custody of his children, so wants to decrease his smoking
- Feels a little bit jittery
- A little bit of nausea and vomiting
…
General:
- Smoking assessment changed: 25/06/2018
- Smoker: Smoker
- Frequency: Daily
- Number of cigarettes: 2
- Last quit attempt: Never/Unknown
- Longest abstinence period: Not Recorded
- Comments: Smokes THC 1g daily (6 cones)
(As per the original)
The father in cross-examination suggested that this reference to 14 beers and 20 cones was a reference to his distant youth. I give little weight to this evidence, noting it is common ground that his CDT testing during the course of these proceedings included test results in September 2020 of 4.4 per cent and in November 2020 of 3.1 per cent. These tests were consistent with the father's ongoing engagement in alcohol abuse whilst these proceedings were on foot.
In the context of the father's denial that he had or has a problem with alcohol abuse the father's evidence that he was drinking to that level because he was stressed post-separation did not assist his case. He was abusing alcohol during these proceedings even knowing he would be CDT tested.
The father reduced his alcohol consumption for a period, see his CDT tests of September 2021 at 1.8 per cent and May 2022 of 2.02 per cent, however, that reduction, whilst positive does not persuades me that the father has addressed in any meaningful way the fact that he has long term issues with alcohol abuse given his evidence that he has never had an alcohol abuse problem.
I find that while the father has reduced his alcohol consumption, in the context of this case and CDT testing, his ongoing denial that he had or has any problem, and the consequent failure to take any steps to get treatment or put in place programs or techniques to reduce the risk of relapse, means that the father’s risk of relapse is significantly higher than the mother’s risk of relapse.
The father's evidence on the topic of alcohol abuse, like most of his oral evidence, was dissembling and intended to both relieve him of any responsibility for his actions and their negative impact on the children while putting all responsibility on the mother.
As I said, the expert identified the risk of relapse as significant when speaking about the mother, even with her work on sobriety and recent history of abstinence.
I note the father has a significant history of alcohol abuse, and the fact that he denies it means that when CDT testing stops, the likelihood of a return to alcohol abuse is very high, and that is another significant risk factor.
FAMILY VIOLENCE AND NEGLECT
Father’s Allegations
The father sets out the allegations he makes against the mother, including in terms of her exposing the children to family violence and neglect.[30] To the extent to which the allegations relate to neglect and the significant negative long term impact her behaviours had on the children the mother does not substantially contend against them.
[30] Father’s trial affidavit filed 21 August 2023 at paragraphs [5]-[15], [48]-[49] and [21]-[28] (in relation to gambling).
She was an active alcoholic, she was neglectful, and to her credit, at she now accepts that, and I accept that she is now doing what she can to remedy those faults and to help the children. I am satisfied that she is doing the best she can, and that she will continue to try to do so.
Mother’s Allegations
The mother's allegation is that the relationship was characterised by years of verbal, emotional and financial abuse by the father, resulting in separation. She sets out what she said occurred.[31] The father generally denied the mother’s claims.
[31] Mother’s trial affidavit filed 21 August 2023 at paragraphs [6], [17], [29]–[34], [36], [38]-[39], [41]-[42], [57]-66].
The difficulty, of course, is that these things always occur behind closed doors. Significantly, what the mother says about the father’s behaviours is consistent with the father’s consistent behaviours to the extent I can make findings about specific matters. The behaviours are consistent with his own evidence in relation to what happened in 1997, what happened on his evidence in 2022 with the service worker, and also my findings that he intentionally used the children to manipulate the mother to circumvent the court's orders.
In these circumstances it is likely that the father would have acted the same way throughout the relationship, prioritising his own desires with no regard for anyone else’s rights or needs.
In these circumstances, taking into account the whole of evidence, and noting that the father has been a generally dishonest witness whilst the mother has been candid and honest, I prefer the mother’s evidence on the issue of the father’s family violence and am satisfied that the father engaged in long-term coercive and controlling behaviour in the context of his alcohol abuse, as alleged by the mother, and that his controlling behaviours have continued post separation and despite, and in contravention of, the court’s orders made to protect the mother and children.
In those circumstances, there is no need to go to each allegation.
Apart from the fact that the father was clearly the primary perpetrator of family violence, whilst the mother was engaged in neglect in the context of her response to the father’s family violence, it is also significant that the mother accepts responsibility for the negative impacts of her behaviours on the children, and has sought to address those behaviours and change them, whilst the father denies responsibility and continues to engage in family violence through coercion and control as demonstrated through is manipulation of the children to pressure the mother to breach Court orders and his flagrant breach of Court orders by attending the school contrary to the order.
Mother’s alleged ongoing child neglect
The father says that the mother is still neglecting the children and that this is proved by their weight.
His submission is set out in his case outline. At page 4 of MFI 4, under the heading for section 60CC(2)(b), he sets out 10 circumstances as being the most traumatic for the children.
To only one of those, the parents separating, does he attribute responsibility to both parents.
The other nine, including the father being removed from the children's lives, he says is the mother’s sole responsibility. The children going from being healthy to overweight with low self‑esteem, he says is entirely the mother's responsibility, and so on.
The father is entirely focussed on blaming the mother whilst denying any substantial responsibility himself.
Much of what he says about the mother’s prior neglect is true, which she admits and takes responsibility for and is genuinely trying to correct.
On the other hand, the father takes no responsibility at all for his own behaviours. That leads me to find that there is no real prospect that is his long-term and ongoing coercive, controlling, manipulative and denigrating behaviours changing in the future. That finding is essential to this decision.
I do have real concerns about the children's weight. I note what the expert said in the second Family Report, that there “is no doubt these children have been exposed to ongoing parental alcohol dependency for their formative years”.[32] She further noted that:[33]
109The physical presentation of [X] in 2021 was consistent with a child who has experienced a high level of incapacity from her primary caregivers, leading her to uncertainty as to whether her needs will be met on a regular basis, resulting in a probable attachment disorder. [Y’s] subsequent [overweight] presentation in 2023 may also be consistent with this hypothesis.
110.It is clear that in the sole care of the mother, the children’s weight has increased substantially and is now causing them direct physical harm. The mother accepted responsibility for the children’s health status, blamed herself and acknowledged patterns of food and exercise behaviour in her household needed to change. The father’s theory is the children are overweight due to the ongoing trauma they feel as they are living with the perpetrator of harm [the mother], which appears inconsistent with the children’s presentation, school records and observations. It is essential these children are engaged with medical assistance to manage their current worrying health issue.
[32] Exhibit ICL 3, Family Report dated 22 August 2023 at paragraph [108].
[33] Ibid at paragraphs [109]–[110].
In respect of weight loss:[34]
43.Both parents presented as concerned regarding the children’s weight, which is a concern mirrored by the CCE. The father blamed the mother entirely for the children’s weight and did not accept the hypothesis offered by the CCE that the children’s weight gain was due to attachment related issues from both parents being absent in the early parts of these children’s lives due to their alcohol dependence. The father viewed the children’s [weight] as a “form of Post-Traumatic Stress Disorder” as they “are forced to live solely with the person who has caused them the most trauma”.
[34] Ibid at paragraph [43].
The mother in her oral evidence also accepted fault for the children having these psychological and consequential weight-related issues. She did raise the cost of living as an issue in food purchasing, and I note her parlous financial position and that it is notoriously more expensive to purchase healthy rather than un-healthy foods, but she repeatedly and unreservedly accepted her responsibility for the children's past and ongoing trauma symptoms and weight issues.
I note the father blames the mother entirely in his case outline at Trial, and in his oral evidence, the father's position was that he was in no way responsible, and he will solve the weight issues by simply imposing discipline and a sensible diet on the children.
The father's unwillingness to consider the attribution of responsibility to both the mother and the father, which is clearly right based on the evidence before me, was an example of his black and white thinking that the mother is bad and he is good, and that he is entitled to get whatever he wants.
He complained in submissions that the expert was trying to "blame shift" from the mother to him. The reality is that this entire case has been about the father trying to shift blame from him and the mother to the mother solely.
I note, in terms of the children's eating, that the father's approach shows a remarkable lack of understanding of the complex factors clearly driving these psychological behaviours and the real difficulties associated with dealing with potential childhood eating disorders, which the court has had to deal with extensively through COVID.
I note, the mother has obtained a referral to a dietician from Dr J.[35] It is a referral to a public health facility. She says she has not been able to access the service to date. Unfortunately, such health services with a dietician are notoriously difficult to access even in City K, much less in a regional town.
[35] Exhibit ICL 8.
I accept the expert’s hypothesis, noting the clear evidence of long term neglect and exposure to family violence, and find that the children, and particularly X, have psychological issues stemming from neglect by both parents in their early years.
The mother has insight into this and is attempting to work on herself and with the children and medical professionals to address it. Consistent with his overall patterns of behaviour and attitudes and case, the father considers everything to be the mother's sole fault. He is focused on allocating blame to her, thinking that this simplistic approach will help him get what he wants. I am satisfied that it is likely that if the father has any involvement with the children, his approach, not only his generally coercive and controlling approach, but his black and white approach that they will just need to do as he tells them, is likely to exacerbate these complex childhood behaviours and psychological concerns rather than address them.
I note the expert said in the second Family Report,[36] the father “displayed very little ability to reflect on the needs of the children or the mother”, and in the same report noted that the father,[37] “struggled to acknowledge the positive benefits for the children living with the mother”, attributing Y's academic achievements to his input, although Y only started school while in the mother's primary care. The father told the expert in the second report,[38] “that any negative issues reported by [X] regarding the father to the CCE in the previous report (see for example, paragraph 111 of Family Report dated 1 October 2021), were due to [X] being encouraged to lie by the mother”.
[36] Exhibit ICL 3, Family Report dated 22 August 2023 at paragraph [25].
[37] Ibid at paragraph [27].
[38] Ibid at paragraph [31].
I note the comments recorded in the second Family Report:[39]
70. … Given the father’s strong and overt negative stance regarding the mother observed during interview, there is no doubt the father will expose the subject children to his negative view of the mother if he were to spend unsupervised time with the children, even if restraint orders were made regarding denigration.
[39] Ibid at paragraph [70].
And further that:[40]
121. Given the father’s strong and negative view of the mother, observed over multiple interventions and his inflexible position in this matter, there is doubt as to the parent’s capacity to engage in shared decision making with respect to the subject children. If there is found to be family violence in the current matter, it is strongly recommended the mother be granted sole parental responsibility for the children, noting that the mother has been making sole decisions for the children since August 2020.
[40] Ibid at paragraph [121].
I agree with the expert's opinion that the father will expose the children to his strong and overt negative views of the mother if he were to spend unsupervised time with them. Further, given that he was willing and able to manipulate them through telephone calls, I am not satisfied that supervised time or communication would prevent him from conveying these views to the children if given any chance to interact with or communicate with them.
Indeed, I have come to a stronger opinion on this topic than the expert, having seen the father myself. The father poses very significant psychological risks to the children because of his view of the mother and his insistence that everything that has caused the children trauma is her fault whilst he is effectively faultless.
I note in terms of supervised time or recognition time, the experts have indicated that since the children clearly know the father, have an attachment to him, but have also experienced him, there will be no meaningful relationship achieved by recognition time, that there is no issue of “white knight syndrome”, and also even recognition time might create a circumstance where the father will circumvent the orders.
I will just note that there were references to the paternal grandfather, Mr L, sexually touching X.[41] This did not go further during the trial. I will make no further reference to it.
[41] Father’s trial affidavit filed 21 August 2023 at paragraph [47].
SUMMARY OF FINDINGS AND DECISION
It is open to infer, and I do, that the father’s attitudes to the rights of others when they conflict with what he wants were the same in about 1997 when he was first charged as they were in about 2022 when he was again charged, which is to say that the father is entirely focussed on his own desires without reference to the rights or needs of others. It is likely those attitudes continued across that period.
Those attitudes are consistent with the mother's description of his behaviours towards her and the children, and others. That is relevant to my assessment of whether or not what the mother said as to family violence occurred across the period of the relationship.
In this context the mother alleges that during the relationship, the father made various inappropriate sexual advances to her friends, including touching one of her friends on the bottom while she was asleep, masturbating in front of another friend who was asleep on their lounge, attempting to massage a friend who was asleep in the spare room and exposing himself to a friend.[42] While these actions are denied by the father they are consistent with is past behaviours and with the attitudes he expressed to me in oral evidence.
[42] Mother’s trial affidavit filed 21 August 2023 at paragraph [28].
The expert noted that if the Court accepted the mother's reporting of this information, it could be construed as family violence.[43]
[43] Exhibit ICL 3, Family Report dated 22 August 2023 at paragraph [39].
The mother's told the expert she did not challenge the father's behaviours because she blamed herself for his behaviours due to her lack of attractiveness. Denigration by the father for lack of attractiveness due to her weight is recorded out in the mother’s historical clinical notes, relating to the mother's alcohol use. This is consistent with her case of long term coercive and controlling and manipulative denigration.
Given the father's attitude, what the mother says is entirely plausible, and indeed, given the fact that I find the mother was a very credible witness, I accept the mother's allegations.
So this is, I find, more evidence that the father considers whatever suits him to be appropriate conduct and behaviour, without regard to or reference to anyone else's views, emotions, or needs.
And he is clearly a clever man, who tries to create plausible explanations so he does not get in trouble, but this is a person who will, if given any opportunity, seek to coerce and control and manipulate the mother and the children to get what he wants, regardless of any order this court may make or whatever anyone else may say or do.
The family violence allegations are contested, but the father's own evidence clearly demonstrates to me that he is a man who will relentlessly pursue whatever he wants, regardless of the cost to others and regardless of any orders of the court and think himself entirely justified in doing so.
I think it is clear, that whilst there are risks in mother's household, she is not an unacceptable risk.
I find that she was engaged in neglect and did contribute to the children's psychological harm, which she acknowledges, but that she is now working to her best ability to be abstinent and to care for the children.
I find that she is providing a basically safe environment. But I do find that she is at risk of relapse if put in a position of stress, and that if she relapses, and in terms of her alcohol use, it will be a terrible result for the children.
The expert formed an extremely poor view of the father, a fact about which the father complained in submissions. I accept his submission that a careful reading of the expert report shows the expert formed a very poor view of him. However, that view was not biased, it was an assessment, and I formed an as bad, if not a worse, view of the father based on my own observations of him in the witness box.
I find the father is a witness of little or no credit who casually lied whenever it suited him. Many of his lies were just fanciful and his evidence can be given little or no weight except where corroborated by independent evidence. The father is a person who either cannot or will not accept responsibility for his own actions or behaviours, including for the obvious negative impact of his behaviours on others, including on the children and the mother.
I find the father either cannot or will not countenance any consideration of evidence or views which do not align with his achieving his own goals. I find the father is a person who is entirely focused on his own needs and desires without any regard for the needs of the children, the mother, or anyone else around him.
The father's view of the mother is relentlessly negative. I accept the expert's opinion that if given any opportunity to speak to the children, he will not be able to help himself. I find that he will, at every opportunity, seek to denigrate and undermine her in the hope that he may ultimately gain what he wants, which is the children living with him.
I find that in his relentless pursuit of his own desire for the children to live with him, the father will say or do anything that advances that desire without regard to the truth or the interests of the children, the impact of his behaviours on the mother or the children or indeed for the law or what this Court may order, which is why I am going to make very strict s 68B orders so that if the father does breach them, the full force of the law will apply.
For most people, when you make s 68B orders, there is a reasonable likelihood they will comply with them. However, given the father's attitude to date, unfortunately I am going to make the orders, even though I fear we may end up having to deal with contraventions, but that is a matter in due course.
I am comfortably satisfied and find that the father poses an unacceptable risk of psychological harm to the children.
I accept the mother's evidence, supported by the documents and CDT testing, that he engaged in not only severe alcohol abuse, but coercive and controlling behaviours and ongoing denigration of the mother and controlling behaviours of the children. I am comfortably satisfied and find that this represents his essential character.
I am comfortably satisfied and find that if he is given any opportunity to spend time and communicate with the children, that he will continue to act in this way, and that the children will be exposed to this in the future. I am comfortably satisfied that this would be terrible for the children. Even if they were not already psychologically harmed, it would be bad for them. Given their current state, it would be devastating.
As I have said, on the other hand, while the mother has a history of alcoholism leading to child neglect, which has significantly adversely impacted the children, she accepts responsibility for her past alcohol abuse and neglect. I find she is ashamed and remorseful, and that she is doing what she can to do better.
I note that I am required to consider the children's best interests being paramount; sections 60CA and 65AA take into consideration the factors set out in section 60CC.
The two primary considerations in order of weight, are, firstly, the need to protect children from harm, here mainly psychological not physical harm, or being subjected to or exposed to abuse, neglect or family violence, and the benefits to the children of having a meaningful relationship with both parents. The need to protect the children from harm takes precedence and given my finding that the father is a persistent engager in family violence, because his essential character is someone who only takes into account his own needs and desires, it means that, as I have said, he is an unacceptable risk of psychological harm.
In those circumstances, I also do not find there is any benefit to the children in having a meaningful relationship with the father where that relationship is overwhelmingly likely to be characterised by ongoing family violence through manipulation, coercion and control and denigration, as I find has occurred with the mother.
I note the mother's evidence about X saying certain things to her that the father has said to her about her weight, and I accept that evidence as well, noting that I accept the father used the mother’s weight as a source of denigration and control.
I note I must take into account the children's views. X is 10 and therefore her views should be given some weight. She said she would like to see the father outside of D Contact Service and would like to spend time with the father each week.[44] It was also noted that X understood her parent’s alcohol use and expressed fear and worry about them drinking in her presence.[45] That is something the father gives no weight to, but the mother has taken into account. I note that Y, aged eight, expressed a desire to live with the father and did not raise concerns about either parent.[46]
[44] Exhibit ICL 3, Family Report dated 22 August 2023 at paragraph [81].
[45] Ibid at paragraph [83].
[46] Ibid at paragraph [91].
The reality is that the children are too young to understand the risk issues. While I take account of their views, and they love the father and removing him from their life will be a significant change and they will suffer more trauma because of it, on balance, the unacceptable risk that the father poses means that their views cannot be acted on.
In respect to the nature of the relationship of the child with each of the child's parents, the mother has a good relationship with the children. As a result of the early nature of the relationship, X was parentified, but the mother is now acting like a parent and there is a good attachment, to the extent to which that is possible given the attachment issues that arose because of the impact of the trauma the children suffered, but it is something that is being worked on - it is a good enough relationship.
The children's relationship with the father is that they love him, but I consider the likelihood is that it was a relationship of coercion and control and manipulation.
I do not think that any other people, including grandparents, are relevant in terms of the issues I am dealing with given the findings I have made.
In terms of the extent to which each of the child's parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, spending time with the children, each parent has participated in those matters.
In terms of each parent fulfilling or failing to fulfil the parent's obligation to maintain the children, it was not raised as a substantial issue, given the other issues.
The likely effect of any change in the child's circumstance, including separation from a parent is likely to be significant. X and Y love the father and this is going to be terrible for them, and that is going to add to their psychological burden and trauma, but on balance I think the risk of psychological harm they will suffer from the father's removal from their life is significantly less than the risk of long-term psychological harm they will suffer of allowing him to actively participate in their life, even having minimal involvement, which will involve him, I find, trying to manipulate them to circumvent the orders.
So, it is a terrible result for the children, but a no time no communication order is the lesser of the evils.
There is no issue with practicality or difficulty.
In terms of parental capacity, I have described the parental capacity. The mother's parental capacity, though not ideal, is adequate or good enough, and she is working very hard at it.
The father has limited, if any, capacity to provide for the emotional needs of the children because he only considers his own emotional needs, and that is the real issue.
In terms of the maturity, sex, lifestyle, background of the children and of either of their parents, I have referred to those matters.
The children are not Indigenous or Torres Strait Islander children.
The mother has a good attitude to the children and the responsibility of parenthood.
The father's attitude is one entirely focused on his own needs and is a very poor attitude which gives no weight to the children's needs.
I note that I have made findings of family violence by the father and by the mother, and of mutual neglect.
It is preferable to make an order least likely to lead to the institution of further proceedings. I find that any time with the father or communication with the father is going to likely lead to further proceedings when he seeks to circumvent any opportunity or small gap he is given, as with the phone calls he had and then used to pressure the children to pressure the mother and manipulate them all through coercion and control into doing what he wanted. That is highly likely to lead back here to further litigation.
The other matters that are relevant have been considered.
The presumption of parental responsibility has been rebutted, s 65DA, in the context of family violence. The parties cannot share parental responsibility and given the fact the father is an acceptable risk, it naturally follows that the only possible consequence is that, as the expert suggested, the mother must have sole parental responsibility.
I note the proposals as set out by the father in MFI 5, the ICL in MFI 14, and the mother's modified proposal in MFI 15. I have indicated what they are, broadly speaking. The findings I have made concerning the father and the fact that he is an unacceptable risk if he has any contact, and that there is no benefit to the children of a relationship with him, means there can be only one result, which is that they live with the mother, who will have sole parental responsibility, there will be no time and no communication with the father, not even recognition time which I find will not help the children and may expose them to further risk of the father trying to manipulate them. I will make the broad s 68B injunctions to protect the mother and children to give effect to that noting his prior breach of the Court’s orders.
She does not want him to communicate with the school except to get school reports. I am not sure what the benefit to the children is of the father having the school reports, but it may be when they are adults, they will want to see him, and at least he will know something about them, but if the mother seeks that, I will not stand in the way and will make that order and the orders can be given to the school to clarify what he can do and to other places the children go so they know about the s 68B injunction.
The mother wants the children to have access to cards to mitigate the harm they are going to suffer from losing him. If it is just cards, then that is probably reasonable. I will make the orders about cards, but her decision to give them or not is not to be subject to litigation, and she can as she suggested but does not have to inform the father of her decision.
I will make the passport order and the order for the orders to be explained to the children.
Those are my reasons.
I certify that the preceding two hundred and twenty-one (221) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 9 April 2024
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