Menzies and Barclay and Anor

[2017] FamCA 851

FAMILY COURT OF AUSTRALIA

MENZIES & BARCLAY AND ANOR [2017] FamCA 851

FAMILY LAW – CHILDREN – With whom the children live – Where the matter involves parenting orders in respect of three children of two separate relationships, two children to the Applicant mother and one child to the Intervener mother, with the three children being to the Respondent father – Where the Applicant mother shall have sole parental responsibility for her children – Where the Intervener mother shall have sole parental responsibility for her child – Where the Respondent father was charged with sexual assault of the Applicant mother’s daughter from a previous relationship – Where the Respondent father was charged with physical assault of the Applicant mother’s daughter who was the subject daughter in this case – Where the parenting capacity of the father is impaired due to his immaturity and inability to understand the needs of children and adolescents – Where there is a need to protect the children from physical or psychological harm or from being subjected or exposed to abuse or family violence – Ordered the children live with the Applicant mother – Ordered the child live with the Intervener mother – Ordered the Respondent father shall spend no time and have no communication with the Intervener’s child – Ordered the Respondent father shall spend no time and have no communication with the Applicant mother’s elder subject child and no time and communication with the younger child without the Applicant  mother’s prior written agreement

Family Law Act 1975 (Cth) ss 60CC, 64B

APPLICANT: Ms Menzies

RESPONDENT: Mr Barclay

INTERVENER:	Ms Suzzanna
INDEPENDENT CHILDREN’S LAWYER:	NLS Law

FILE NUMBER: NCC 3027 of 2008

DATE DELIVERED: 27 October 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 13 -17 & 20 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mooney

SOLICITOR FOR THE APPLICANT: Catalyst Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr De Dassel

SOLICITOR FOR THE RESPONDENT: CBD Law

COUNSEL FOR THE INTERVENER:	Mr Graham
SOLICITOR FOR THE INTERVENER:	Mason Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Goodchild

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: NLS Law

Orders

1. That all prior parenting orders in relation to:

   (a)       A, born … 2003 (“A”);

   (b)       F, born … 2007 (“F”);

   (c)       J, born … 2012 (“J”);

   together known as “the children” are discharged.

A and F

1. That the Applicant mother Ms Menzies shall have sole parental responsibility for A and F.

2. That A and F shall live with the Applicant mother.

J

1. That the Intervener Ms Suzzanna shall have sole parental responsibility for J.

2. That J shall live with the Intervener.

Time and Communication

1. That the Respondent father shall spend no time and have no communication with A and J.

2. That the father shall spend no time and have no communication with F without the prior written agreement of the mother.

Restraints

1. That pursuant to s 68B(1)(b) of the Family Law Act that the Respondent father be restrained by injunction from:

   (d)Assaulting, molesting, harassing, threatening or interfering with the Intervener;

   (e)       Intimidating the Intervener;

   (f)Stalking the Intervener or anyone in a domestic relationship with her from time to time;

   (g)Contacting or approaching J, directly or indirectly, without the express written permission of the Intervener;

   (h)Attending the home or workplace of the Intervener without the express written permission of the Intervener;

   (i)Attending, removing, or attempting to remove J from his school or daycare, without the express written permission of the Intervener.

Travel

1. The Intervener is authorised and permitted to travel internationally with J.

2. The Intervener is authorised and permitted to apply for and receive an Australian Travel Document (Passport) for J without first obtaining the written consent of the Respondent father.   

3. I direct the Registrar of this Court to provide to the Commissioner NSW Police a copy of these orders and reasons for judgment.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC3027/2008

Ms Menzies

Applicant

And

Mr Barclay

Respondent

And

Ms Suzzanna

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of three children of two separate relationships, born in 2003, 2007[1] and 2012.

   [1] The birthdate for F was inconsistent in the documents.  His filed birth certificate was relied on to determine the issue

2. The matter had been set down for up to seven days of trial.

3. The trial ran for two days. On the third day of trial the mother had illness associated with her twin pregnancy[2] and was taken to hospital. The father proposed that the matter be adjourned. That application was rejected for the reasons given at that time. By her own application, and from that day inclusive, the hearing continued in the absence of the mother.

   [2] Exhibit 10

4. The trial proceeded for three more days. There were oral submissions on behalf of all parties other than the father who took up the option of written submissions.

The applicant mother

1. The applicant Ms Menzies (“the mother”) is the mother of the two older subject children A, a girl now turned 14, and F, a boy of 10. The mother is now aged 37.

2. The mother has remarried. She is at home caring for the subject children and two younger children, a girl aged six born of a subsequent relationship and a boy aged five born of her current marriage. At the time of trial the mother was pregnant with twins due to be born in September 2017.

3. The mother also has two older children M now 20, living with her, and T a boy of 15 who lives with his own father.

The respondent father 

1. The respondent Mr Barclay (“the father”) is the father of the three subject children. He is now 35 years. He is a concreter/landscaper by occupation.

The intervener mother

1. The intervener Ms Suzzanna is the mother of the youngest child J, a boy now almost five years. J has been diagnosed with Autism and Global Developmental Delay. He is described by his mother as “a very happy, sometimes challenging child”.[3]

   [3] Affidavit of the intervener filed 7/12/2016, par 5

2. The intervener is 27. She is a support worker by occupation and a fulltime student.

3. The intervener has one older child by an earlier marriage, S, just turned eight years. His father lives in Country Z. S sees his father regularly although not often.

APPLICATIONS

The applicant mother, Intervener and Independent Children’s Lawyer

1. Ultimately these three parties had a common position that there should be no time and communication between the father and any of the children. Time for the half siblings with each other would be by arrangement.[4]

   [4] Exhibit 4

The respondent father

1. The ultimate position of the father was that he did not press for any order inconsistent with the mother and the intervener having sole parental responsibility and residence for their respective children.[5]

   [5] Written submissions on behalf of the father filed 28/03/2017

2. In respect to A and F the father proposed a stepped program of time:

   Supervised

   time in a centre - 3 months

   Unsupervised

   three hour block,  alternate Saturdays - 3 months

   seven hour block, alternate Sundays - 3 months

   alternate weekends, half school holidays and special occasions

3. There were other orders including therapeutic restoration of relationships, telephone contact and time for the children with each other.

4. In respect to J there was a very similar proposal with an acknowledgment that J’s special needs were somewhat inconsistent with the proposal.

Relationship of father and mother (A and F)

1. The father and the mother began living together in 2002 when they were aged 20 and 22 years respectively.

2. At that time the mother had two children, one from each of two prior relationships. M was then aged five and T was a baby boy of a few months of age. The two elder subject children were born over the following four years.

3. In either January or October 2008 the mother and father separated. The subject children, by then aged four and 18 Months, remained living with the mother and their two older half siblings.

4. In November 2008 there was an incident between the mother and the child M later found by a court to be an assault. There was conflict between the parties over it. The father removed the children into his care, taking them to his mother’s home.

5. After this incident in 2008 M lived with the father [her step-father], until late 2012 at first in the home of the paternal grandmother and later in a household formed with the intervener, her son S and the child of the relationship J.

6. In November 2008 an application was made by the father for parenting orders.

7. On 5 August 2010 final parenting orders (the 2010 orders) were made in this Court after a trial. These orders relevantly provided that the oldest child M, by her wish, was to live with the father and A and F were to live with their mother and spend time with their father and M on alternate weekends and during school holidays.

8. In relation to M and the mother, I have the read the reasons for judgment of 5 August 2010[6] in relation to final orders made at that time. I adopt the following passages:

   54On 11 November 2008 there was an argument between the mother and applicant about the applicant taking the children on an outing. The eldest child intervened in the argument and was insolent to, and defiant of, the mother. As a consequence, the mother lost control and assaulted the child. The applicant took all four children and departed the mother’s household. He took the eldest child to the police to report the incident, which resulted in the mother’s subsequent prosecution for the assault upon [M].

   65The prosecution of the mother for the assault upon [M], which occurred in November 2008, was finalised before the NSW Local Court on 22 June 2009. Despite entering a plea of “not guilty”, the offence was found proven. No conviction was entered against the mother, although she was required to enter a good behaviour bond for a period of 6 months. An apprehended violence order was also imposed upon the mother for the protection of the child. The bond and the apprehended violence order both expired on 22 December 2009.

   108There is no dispute that the mother assaulted [M] on 11 November 2008. Although the mother and applicant have different perceptions about the seriousness of the incident, the occurrence of the assault is undeniable. I am left with the impression that the mother minimised, and that the applicant exaggerated, the incident. However, the assault was found proven by the NSW Local Court and the statement of facts tendered to that court was tendered in these proceedings.[7] The mother’s counsel conceded that the only purpose of the tender was to prove the facts upon which the criminal court determined the criminal proceedings. The facts disclose a serious incident of which the mother should be ashamed.

   [6] Exhibit 6

   [7] Exhibit M1

Relationship of father and the intervener (J) - household including M

1. The father and the intervener met in July 2011 and began living together weeks after. Their relationship endured for a total of about 15 months from mid-2011 to October 2012. The subject child was born just before separation.

2. Within weeks of the parties meeting the father moved himself and M out of the home of the paternal grandmother and into a new household in a nearby town on the Central Coast. The household consisted of the father, M, the intervener and her then two year old son S.

3. The new household was not a congenial mix from the outset. By then, M had been living with the father for about two and half years. She had just turned 14 when the new household formed.

4. The father described to the Family Consultant his relationship with M.[8]  The Family Consultant reports his comments as follows:

   He described their relationship as having been ‘best friends’ until he re-partnered with the intervener, ‘We were more like best friends. I knew I was her Dad but we were friends.’  He described himself as giving M a fair amount of freedom ‘I gave her a lot of freedom, she acted a lot older than she was, she danced […] with older kids, I waited on her hand and foot before [Ms Suzzanna] (the intervener)’.

   [8] Family Report dated 24/06/2016, par 30

5. At the beginning of the relationship between the father and the intervener, the latter had just turned 21, a young woman with a two year old son. It is apparent that the father was enraptured by the intervener and changed his life, and M’s, for her on short notice. He ceased being M’s best friend and ceased waiting on her hand and foot.

6. Predictably M reacted badly. She was a vulnerable young teenager living with neither of her biological parents. She had been estranged from her mother since 2008 although their relationship was assessed to be a strong and meaningful one for many years before that.[9]  She had limited contact with her siblings. The father was, for a period of time, her whole family.

   [9] Exhibit 6, par 102

7. The father had promised her a lot. He supported her dancing, financially and logistically, and had given her his undivided attention. His manner of doing so was insightless, manipulative, intrusive and possibly criminal, given the allegations she subsequently made, but nevertheless intense.

8. From M’s perspective it must have seemed that the father lost interest in her and “dropped her” for the intervener.

9. By early 2012 the intervener was pregnant.

10. I accept the evidence of the father that he had expected M to be respectful and compliant towards the intervener and was shocked and frustrated when she was not. This, despite the fact that the intervener was only seven years older than M.

11. The father, it appears to me was so far out of his depth that he did not consider seeking professional help. He was content to blame M for problems in the household.

12. The father told the Family Consultant that when he and the intervener started living together, M started having “a temper” and would “yell and carry on”. He queried whether it was hormonal or teenage rebellion.

13. M is alleged by the father to have thrown a chair at the intervener when the latter was seven months pregnant. The chair came close to hitting S. The father said he smacked M, by then aged 15 years.

14. The father was working long hours to support the household and “relied on the intervener to provide supervision for M.” This was an impossibly difficult task for the intervener who gave birth to J in 2012.

15. M looked elsewhere for affection. She found sexual partners, including with a man in his mid-twenties.

16. The father condemned her as promiscuous and compared her with her mother as a young woman in a way belittling to them both.

17. Significantly, the father did not consult with the mother or M’s natural father about M’s behaviour and the risks she was running. Nor did he contact police about the “boyfriend” in his twenties, nor a doctor about contraception or sexual health. He simply rejected M. He told her to leave his house.

18. On balance I consider that his main motivation for doing so was that within three weeks of J’s birth the intervener ended the relationship with him and moved with the new baby and her older son to live with her own mother.

19. The father was desperate to reconcile with the intervener and M was an obstacle to reconciliation.

20. M left the home of her step-father in late 2012/early 2013. She began to make contact with her mother thereafter.

21. M returned to the home of her paternal grandmother for two or three months. She then stayed with her biological father for a few weeks before returning to live with the mother. She was again a member of that household at time of this trial.

22. A Parenting Plan was signed to the effect that J live with his mother and spend time with his father for two nights per week and for block periods of time when the father had time with his other children in accordance with the 2010 final orders.

23. The intervener asserts that she was pressured by the father to sign the Parenting Plan. One source of pressure was his statement[10] that if he could get custody of M, who was not his biological child, he could easily get custody of J who was.

    [10] Affidavit of the Intervener filed 7/12/2016, par 105

24. I accept that the intervener was fearful about losing the care of J and it was that fear that impelled her to agree to arrangements proposed by the father which she did not consider appropriate given the age of the child.

25. In July 2013 the intervener was spoken to by a police officer who advised her that the father had been charged with offences including sexual and physical assault relating to M and A. Since then J has spent no time with the father.

26. On 30 March 2015 the intervener was granted leave to intervene in these proceedings between the father and mother.

Events From 2013

1. In February and March 2013 the intervener made a statement to police and obtained first a provisional and then a final Apprehended Violence Order (“AVO”) for her protection from the father. She also successfully applied for an order allowing her to recover property from her former home with the father.

2. In July 2013 M returned to live with her mother. She brought with her many items of the mother’s jewellery which had been removed by someone from the mother’s home over the prior three to four years. Over time M spoke of events which had occurred whilst in the care of the father.

3. On 15-17 August 2013 all three subject children spent the weekend with the father. J was about 10 months old.

4. When A and F returned to their mother the mother became concerned about A. She complained of a headache and dizziness which did not pass. The mother took her to the GP who diagnosed concussion.

5. The child A gave her mother an account of an incident during the weekend past. She said the father was angry (as it turned out, about baby J being woken by noise) and rushed her into her room. She tripped and fell running in, her father slammed the door hitting the back of her head and catching her hair in the door.

6. The mother found an injury on A’s head and took her to hospital. She was admitted. The father was arrested and charged.

7. Time between the children and the father ceased.

8. On 21 November 2013 a fresh application to this Court was made by the mother to discharge the 2010 orders.

9. There was a Notice of Risk filed with the application which contained the following allegations, summarised:

   ·The father would force M to wear the mother’s clothing and make her lie in bed with him;

   ·The father would whisper “make Daddy feel good”. He often made her do sexual acts;

   ·The father gave M alcohol saying “I’ll make you feel good” whilst nibbling on her ear;

   ·The father would drug M causing her to black out;

   ·The father chased M with a taser and locked her in a car boot and other physical assaults;

   ·The father chased A causing her to fall. He slammed a door causing A’s hair to get caught. She suffered concussion and was hospitalised;

   ·The father forced M to leave the home in the rain for hours;

   ·The father failed to put sunscreen on A and F causing severe sunburn requiring medical treatment;

   ·The father made M steal from the mother and assist in slashing the tyres of the mother’s car;

   ·The father also had her help steal from others and forced her to tell the police that the mother had bashed her when she had not;

   ·The father fell on F breaking his arm;

   ·The father told M he would kill her mother;

   ·The father perpetrated prolonged, extensive, threatening, harassing, behaviour toward the mother including an assault on her right wrist;

   ·The mother has had three Apprehended Domestic Violence Orders (“ADVOs”) in place due to harassing, stalking and intimidation;

   ·The father was incarcerated for one month for breach of an ADVO.

1. The proposal of the mother was for sole parental responsibility for M, A and F and residence with her. Time and communication with the father was to be determined by the Court.

2. The main reason for a further application related to the allegations of the older child M, although a physical injury to the child A in March 2013 was also a consideration.

3. M raised criminal allegations about the conduct of the father with her that alarmed the mother.[11]  The mother encouraged M to make a statement to the police which she did.

   [11] Affidavit of the mother filed 2/12/2016, pars 25-39

4. The father was charged with a number of offences including aggravated sexual assault of M and a physical assault on A. A also made a statement. An ADVO was taken out for the protection of the children.

5. On 26 November 2013 in this Court, the 2010 orders in relation to M were discharged by consent. There were fresh orders for sole parental responsibility and residence for her with the mother. The proceedings were allocated into the Magellan Protocol. The father, at all times maintaining his innocence of wrong doing, pressed for the orders in respect of A and F to continue unchanged.

6. On 7 March 2014 after an interim hearing, orders for face to face contact between the subject children and their father were discharged and restraints made pursuant to s 68B of the Family Law Act 1975. The father maintained his right against self-incrimination and did not wish to have his application progress to hearing before completion of his prosecution in the Local Court [A] and in the District Court [M].

7. In March 2015 the charges in respect of A were dismissed. In respect of the charges in the District Court involving M, the father was found not guilty in mid-2016.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The applicant mother

   (a)Minute of Order;[12]

   [12] Exhibit 4

   (b)Affidavit of the mother Ms Menzies filed 2/12/2016;

   (c)Affidavit of M filed 2/12/2016;

   The respondent father

   (d)Amended Response filed 4/11/2016;

   (e)Affidavit of father Mr Barclay filed 5/12/2016;

   (f)Affidavit of paternal grandmother Ms E Barclay filed 26/02/2017;

   The intervener

   (g)Minute of Order;[13]

   [13] Exhibit 4

   (h)Amended Response filed 13/09/2016;

   (i)Affidavit of Ms Suzzanna filed 7/12/2016;

   The Independent Children’s Lawyer

   (j)Minute of Order;[14]  

   Reports

   (k)Family Report dated 24/06/2016;

   (l)Magellan Report dated 30/12/2013.

Oral Evidence

[14] Exhibit 4

The mother – Ms Menzies

1. The mother is aged 37 years. She presently has six children including the two subject children, and at the time of hearing, was pregnant with twins due in September 2017.

2. The household of the mother consists of herself, her husband Mr N and five children, including two of the subject children. The mother is fully engaged as a parent at home.

3. The mother was prompted to make a fresh application in November 2013 based on events around her daughters M and A.

4. After M re-engaged with her mother and came back to live in her household she is said to have begun to disclose physical, psychological and sexual abuse perpetrated by the father on her. Some of those matters are set out in the Notice of Abuse filed together with the Initiating Application of the mother.[15] They are serious allegations.

   [15] These reasons, par 59

5. The mother’s evidence is that she listened to what M had to tell her and encouraged her to make a statement to police.

6. The mother had felt, in her own words “haunted by a telephone conversation that she had heard by mistake when the father’s phone rang her number in July 2009”.[16]  The mother’s version of events was that she had answered the phone and heard what sounded like screaming for a number of seconds, she then heard a voice that she recognised as the father’s but could not understand what he was saying. She then heard a second voice which she recognised as M’s saying, “Get off me, get off me.”  This same voice was screaming, “Stop it, stop it, you mother fucker.”  The mother then heard a voice which she believed to be the father again saying, “Give me the phone, you’ve just rung people.”  The voice of M repeated the words, “You stupid mother fucker” and the phone was then hung up.

   [16] Affidavit of the mother filed 2/12/2016, par 35

7. After M returned home in 2013 the topic of this telephone call was raised by the mother and was met by awkwardness and avoidance by M initially but she did tell her mother a series of events.[17]  M told her mother that it was her who had called from the home of the paternal grandmother, “Yes mum, it was me, I was trying to hide the phone under the blanket from him [Mr Barclay] without him knowing it was me”. The mother said that M was demonstrating with her body how she had been hiding the phone under a blanket on the bed. The mother commented, “It sounded like you were wrestling.”  M did not respond verbally but the mother observed that she was shaking her legs and biting her fingernails. She then went on to make a series of allegations and disclosures about the conduct of the father,

   He used to make me break into your house and take your things, I stole your jewellery, perfume and sunglasses, he used to make me wear it, did you ever wonder why you always had flat tyres before Court or if you were going somewhere? Before every Court case he used to make me slash or let down your tyres. Did you know why your solicitor’s tyres were flat. He was using my tax file number to pay me as him so he didn’t have to pay you child support. He used to pin me down on the floor with his foot in my mouth so I couldn’t get up.

   [17] Affidavit of the mother filed 2/12/2016, par 37

8. The mother had lost jewellery and other personal items from the house. She had reported it to the police and no one had ever been arrested. She said her tyres had been slashed before Court appearances.

9. The mother rejected the question that it would be odd for the father and/or M to break into the mother’s house. She said this, “He was obsessed with me. He had my child, who wasn’t his. Why else would he want her?”

10. Subsequent allegations were made in relation to stealing, other criminal acts and being given alcohol by the father,

    I don’t know if he put something in my drink, I’ve had alcohol before and I don’t pass out but everytime he [Mr Barclay] gave me alcohol I’d remember to a certain point and then remember waking up the next morning in my bed, dizzy and having blackouts. He used to make me have spas with him. He [Mr Barclay] would play a game in the spa where he would take my top off and try to make me find it. I would remember being in the spa and him touching me and then waking up the next day in my bed. Mum, I’ve drunk alcohol before, I wouldn’t just black out like that. You don’t pass out on 2 drinks. When I woke up the next day I didn’t feel normal.

    Sometimes when we were in the spa he used to try and touch me and hug me, he would ear nibble me and say this will make you feel good. He would then put his fingers inside there [point towards her genitals], she would then start crying.

11. Further, M alleged she had seen a video of a family member’s girlfriend having sex with the father. This video being on the father’s telephone.

12. M asserted that once the father started a relationship with the intervener he stopped, “Doing that stuff [a reference to sexual touching] but he kept bashing me, that got worse.”

13. Finally, M alleged that the father forced her to make a statement to police where she alleged that the mother had hit her. Despite her denials the mother was arrested and convicted at the Local Court of common assault against M on 22 June 2009.

14. Those matters were before this Court for the hearing in 2010 and findings have been referred to in these reasons.[18] The statements by M in relation to this matter appear to be in the nature of apology for having caused trouble for the mother. They also tend to confirm the view of the trial judge in 2010 that although there was an assault by the mother on M, the father exaggerated the incident to police.

    [18] These reasons, par 24

15. I formed the impression that the mother is bitter over the loss of the four years with M when she lived with the father and also that the mother is fearful. In response to a question as to whether the mother would be affected if the father again had orders for contact with the two subject children, the mother said, “I feel scared, yes, very” and her voice shook for the only time during her evidence in that moment of reflection on the father’s vengeful attitude towards her. The mother was extensively cross-examined.

16. Nevertheless, I thought there was an open-mindedness to the mother’s evidence. When she was asked why she had sent A to spend time with the father after the events of 15 August 2013 she said this, “It was an isolated incident. I was hoping to give him the benefit of the doubt, just to observe for further injury”.

17. On the positive side, the mother spoke with obvious pride of the improvement in the children’s emotional health and educational performance. A is in Year 8 this year, doing well and part of a class for high performing children. She said F had been slow at learning, a bit below average, but now could work on his own, “It’s taken these children a long time to get where they’ve gotten.”

18. The mother stoutly rejected the idea that her parenting would be affected if there were further orders made for time between the children and the father, “I would do my best to cope, I would cope, I’m tough. I lost M for five years and was still able to parent my other children.”

19. In relation to the paternal grandmother, the mother expressed no confidence. She was most unhappy that the paternal grandmother had been willing to have the father arrive to stay with her in November 2008 with M, A and F [a breastfed baby at the time], “She does not want to believe there is a problem with her son.” In the event of an order for the paternal grandmother to supervise time the mother’s reaction in her own assessment would be fear, “scared”. I accept that she would be, on the basis that the paternal grandmother would be unwilling and unable to control the actions of the father.

20. The mother spoke in an impressive way about her second oldest child T, the 15 year old son who lives with his father. She said she was waiting for him to come back to the relationship with her, “I’ve learnt from M” and that he preferred living with his father as he has done for the last five years.

21. The mother complied with the orders that were made in 2010. She was concerned about the report from her daughter A of a physical injury caused by the father in March 2013 but it was the information provided by her daughter M when she returned home that frightened the mother. She supported M; she made a fresh application and although I am confident she would again comply with orders; she has been overwhelmed by the process of her and some of her children being witnesses in criminal proceedings. She is proud of the children’s progress; she is happy and secure in her current marriage. She regards the father as an abusive threat to what has been achieved.

The mother’s daughter - M

1. M was a witness for her mother providing an affidavit. She showed considerable courage in doing so. Her affidavit contained serious allegations of:

   1.Criminal conduct by the father, such as intercourse whilst drug affected, inserting his fingers into her vagina in the spa bath, removing her bikini top in the spa bath, forcing her to drink alcohol;

   2.Manipulative conduct “If you want to see your mum I won’t pay for your dancing”, making death threats against her mother and maternal grandmother;

   3.Punitive conduct, for example, standing the children against the wall, hitting them if they moved, pushing, punching, slapping and choking them; killing a pup by breaking its neck in front of her [M];

   4.Fraudulent conduct in relation to M’s bank account.

2. I am not asked to make specific findings about the father’s conduct with M.

3. M was cross-examined on the basis that she was a malicious liar.

4. Ultimately, the matter of misuse of her bank account was undeniable.

5. The father had opened the account in her name and had his wages paid into it for two reasons:

   1.To minimise his own tax;

   2.To reduce his taxable income for child support assessment.

6. I find that the father controlled that account, to which he had a keycard, and M’s use of it, in order to achieve financial advantage for himself.

7. In answer to my question as to whether the father had apologised to M, his response was that there was an order in place that he not contact or approach her. Although that is true it was apparent that the father was indifferent to his adverse impact on M.

8. I consider that from November 2008 until mid-2011 the father variously treated M as his best friend, his accomplice in criminal mischief, as a companion and a naughty child to be punished. Having alienated her from her mother in order to punish the mother, he failed to be a parent to her, to protect her and to help her reconnect with her parents when he no longer wanted her in his household. His conduct towards M was arrogant, self-absorbed and cruel.

9. I give these matters considerable weight in coming to conclusion about his parenting capacity.

The father – Mr Barclay

1. During his oral evidence the father indicated that his real position in relation to A and F was that he wanted the children to live with him. A document[19]  set out new proposals in the alternative;

   1)that the father have sole parental responsibility and residence, with a graduated regime of contact for the children with the mother starting with supervision, or

   2) that the mother have sole parental responsibility and the children live with her A to spend time as she wished and a regime of time for F with his father commencing with supervision.

   [19] Exhibit 9

2. I take it to be an acknowledgment by the father, having received legal advice, that the relationship between the parents was such that one of them should have sole parental responsibility as a matter of practicality. Ultimately the father made the concession that the mothers should each have sole parental responsibility.[20]

   [20] Submissions made on behalf of the father on 27/03/2017

3. The father expressed his belief that the reason there were parenting proceedings about the three subject children is because of the charges that had been brought against him by M;

   Q.If it weren’t for those allegations, everything would be fine?

   A.Yes.

4. When taken to some of the things A had said when interviewed about being smacked by the father and being told by the father that the mother had hit M, the father did not hesitate to say that the child, “was lying for the criminal case.”  Likewise in relation to the incident where A’s head was injured the father was quick to say, “She’s lying, maybe told to lie.” 

5. Nevertheless, he conceded there had been an incident where A was in trouble after waking up J. He conceded that he sometimes sent the children to their room as a punishment. Taken to the reference in her interview where A was asked what normally happened if she was in trouble with her father, she had replied, “A big smack on the bum and think what you just did”.[21]  The father was immediately defensive and accusatory, “No way, it’s a lie.”

   [21] Exhibit 23, pars 344-349

6. The father agreed that he was “an emotional person” and that he sometimes lost control of his emotions, “Yes, I cry. I go into my room.”  He thereafter conceded that for Christmas 2012 when the intervener would not let J spend time on Christmas Day the father had cried in front of the children the whole day.

7. The father conceded that for A, Christmas was not nice. He followed up with the fact that it was not the best of Christmases for him and said quite aggressively, “Ok so I’m not supposed to be emotional”.

8. The father certainly blamed the mother for the fact that he was not seeing A and F, “She’s being kept from me, she [A] has been kept from me for three and a half years.”

9. The father denied that he had said bad things about the mother to the children,[22] “Dad used to tell me things about mum, bad things.” When asked whether she [A] was telling the truth the father was comparatively tentative, “No, I don’t think so”.

   [22] Exhibit 23, pars 491-494

10. There was an exploration of the level of the father’s empathy for A’s position:

    Q.How would she feel if she was told bad things about someone she loved?

    A.I don’t know, I’m not A.

11. Either the father was unwilling to make a concession that it would be hurtful for the child to hear criticism of her mother, or of equal concern, he was unable to imagine her state of mind.

12. The father agreed that during a short period of time when he was in jail for a breach of an ADVO he had written a letter to M asking her to let A know that, “Mum put Dad in jail, no love.”  The father was easily able to justify his conduct from his own perspective, “I was upset. I was in jail at the time.”  The father repeated the words, “upset” and “highly upset”. It was a very clear example of the self-absorption of the father.

13. When the proposition was put to him that he had not been in control of his emotions in jail and had been attempting to use M to influence the other children against their mother, he responded, “Not answering, I was in jail, I wasn’t able to talk to my children”.

14. There was a childish, immature quality about the father’s answers where he was protecting himself from criticism and simply refusing to reflect on his own past conduct and his impact on his children.

15. The evidence of the father about his use of M’s account, given after the issue of a s 128 certificate, was a disgrace. The father conceded that he had put his wages into the account for two reasons: to bring him under a lower tax bracket; and to avoid paying child support. He used M’s ABN. When the father was challenged with the fact that he had a keycard to M’s account but she did not, the father simply responded in his usual way, “Lie!  She had one and I had one.”

16. Subsequently the father filed an amended Tax Return in 2014 and 2015. It was put to him that he had done so because of M annexing her account to her affidavit. The father asserted that he filed the amended return, “Because it needed to be done, why wouldn’t it be?” Given the concessions of his motivations for using M’s account, it was a foolish response.

17. In relation to the charges against him for A’s injury the father agreed that the charges had been dismissed and he had not been obliged to give evidence:

    Q.How did the children feel about being cross-examined by your barrister?

    The father’s response revealed an indifference to the children’s experience,

    A.Their mother took them to a police station and made them lie. I had no choice but to defend myself and I did.

    There was a note of considerable satisfaction in the father’s tone as he said those words.

18. On behalf of the father in written submissions counsel proposed that the incident with A, where her head was injured, could have been entirely accidental. The father himself did not depart from his position that A had lied.

The child J

1. The father had proposed equal shared parental responsibility for himself and the intervener for J. He explained that that was so he could have a say in the big decisions about the child’s life. He did not agree that for that to happen there would need to be a good relationship between the two parents. There had been no communication at all after the intervener left the father’s home and AVOs put in place soon after.

2. I formed the impression that the father was so focused on vindication of himself and revenge for those who had caused him trouble, most particularly the mother but also the intervener, that the reality of the children’s experience was not his priority.

1. The father blamed the intervener for “egging him on” to breach the order although agreed that he had no evidence to support that she had done so.

2. When the intervener began to associate with someone else the father conceded that he had spoken to the man that she was seeing, “I did ask him to back off.”  He also conceded that he had hired a private investigator, “I had a meeting and spoke to him but didn’t go ahead. I felt sick to my stomach.”

3. Again the father was defensive, insisting that he was simply trying to see his family and wanted reconciliation with the intervener, “I was angry and upset at the time.” The father did agree that he had attempted to get the intervener’s older child’s passport cancelled, “Yeah, I was hurt and upset. I didn’t have a lawyer.”

4. What emerged from the evidence was that the father had not reflected on his own role in the breakdown of the relationship between himself, the mother, the intervener and the three subject children. He had not read the reasons for judgment from the 2010 orders. He had not undertaken any counselling. He appeared to have forgiven himself for whatever mistakes he thought he had made but continues to be vengeful and angry towards those who he believes have done him harm. His intimidating conduct towards the intervener to dissuade her from continuing to see a new partner amounts to family violence.  His threat to her “I’ll be round to sort things out” was explained as so many things had been by the words, “I was upset.”

5. The evidence supports a finding that the father mounted a campaign of intimidation against the intervener with a view to forcing reconciliation or at least deterring her from entering a new relationship.

The paternal grandmother – Ms E Barclay

1. Ms E Barclay was 58 at time of trial. She described her health difficulties which entitled her to a disability pension as having cancer of the mouth and being an alcoholic.

2. The paternal grandmother was unwaveringly supportive of her son, the father, and inclined to blame the mother for all his difficulties. She described herself as totally convinced that her son had done nothing wrong.

3. Given her stated position there could be no possibility of the paternal grandmother being a supervisor or even a presence for the children, I am not confident that if the children complained or expressed any fear or reservation during a period of time with their father, that Ms E Barclay would act protectively nor that she would let the mother or the intervener know of any difficulties.

The Family Consultant

1. The Family Consultant was particularly concerned about the intervener. She also wondered whether the bonding and attachment relationship between the intervener and J had been compromised by the periods of time for which the child was away from her when he was an infant. The Family Consultant described the intervener as, “very anxious, hyper-vigilant”.

2. She highlighted the significance of the father needing to be able to regulate his emotions for any restoration of the relationships with them to be successful.

3. The Family Consultant noted that the intervener’s attunement to J was central to his growth and development, “He will pick up on changes in the mother’s emotional state.”  She considered that it would be very distressing to the intervener to consider facilitating time for J with the father, that she would find it very distressing and would not be able to manage it well.

4. When told of the father’s threat to publish on social media photographs of the mother giving birth to J and the father making intimidatory threats to a potential new partner for the intervener, the Family Consultant was clear about risk to the child from his mother having being treated that way.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. Although there is a presumption that parents should have equal shared parental responsibility, that presumption will not be applied here.

2. All parties agree that the two mothers should each have sole parental responsibility for their respective children.

3. The concession by the father in that regard is a proper one in the best interests of the children.

4. For J, his relationship with his father was short lived. It would be disruptive to attempt to revive that relationship both because of his own need for routine and certainty but also because of his likely exposure to his mother’s anxiety and antipathy to the father if contact began.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. Each of the three subject children has a meaningful relationship with his or her mother.

2. The issue for consideration is whether relationships with the father should be maintained or restored.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. In this case there is a need to protect the children from physical or psychological harm or from being subjected or exposed to abuse or family violence.

2. In the case of A and F the evidence of the father being harshly critical of their mother is evidence of emotional abuse.

3. The children have loved their father and perhaps still do but they are wary of his temper, his bullying behaviour and his relentless criticism of their mother.  A is aware that her sister M had some very unhappy experiences whilst in the full time care of the father. Whilst A is satisfied that the father would not do anything bad [by which she means sexual abuse] to her, she is content not to see him and wishes not to.

4. In the case of J he likely has no memory of the father. He would be disrupted in the routine which means so much to his progress and development if an order was made compelling time between himself and his father. Given the close attunement of the child to his mother’s emotional state attempts to restore the relationship are likely to be destructive for J and to retard his progress and education.

Additional Considerations

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

A

1. At 12 years nine months when she was observed for the Family Report the child A was able to express her views. She was in her first year of secondary education.

2. She reported that she felt a significant difference within herself since she stopped spending time with her father in March 2013:

   I was really stupid and as soon as I stopped seeing Dad I got a lot better at school work.[23]

   [23] Family Report dated 24/06/2016, par 93

3. She was pleased with a strong academic improvement over the two previous years.

4. She reflected on her memories of her father having a very short temper, that he would yell at her intensely, “He’d swear a lot and get really really angry” and of him hitting M. She also felt uneasy about the difference between the hugs he gave M which were different to the hugs between herself and her brother. She knows that M has said the father molested her.

5. She described herself as not anxious, more confident and happier. She appreciates the way her new step-father treats her and helps her with school work.

6. She commented on the father having said bad things about her Mum which she had believed, but now does not.

7. Importantly she said that the difference between her parents was that her Dad would, “Carry on about it [about how bad her Mum was]” but Mum would say, “It’s ok for us to go there and love him”.

8. A wanted it to be clear to me, as the trial judge, that she did not want to see her father, not even for supervised visits.

9. The Family Consultant found A to be balanced and thinking for herself. She expressed the view that A’s wishes should be given significant weight.

10. In the circumstances, I agree that A’s wishes should be respected and implemented.

The child F

1. F was 9 years old when he was observed for the Family Report.

2. He was able to express his views although his memories of time with his father were reported to be limited.

3. When asked about good memories of the father F said:

   Every time he went to see his father he gave him a bunch of toys. It was a lot … (words of description omitted). He went on to say, ‘sometimes he’s a bit mean. He’s mean, he’s nice and he’s also a kind of adult bully when he’s upset’.  He said that his father got angry at little things and ‘swore at us a lot. He’s really big and he used to make us really scared’.[24]

   [24] Family Report dated 24/06/2016, par 114

4. F considered that he had a lot less problems and was happier just with his Mum, “Mum is a nicer person and she cares for me.”

5. F wanted the judge to know that he did not want to see his father. When asked if he thought he might want to see him one day he reflected:

   I do sometimes because I love him because he’s my father but other times I don’t want to because of what he’s done to me and others.

6. F is somewhat ambivalent about seeing his father. He mainly does not want to but sometimes does.

7. The Family Consultant considered that F’s views should be given some weight. I agree. His ambivalence should be respected so he is not compelled by order to spend time. In circumstances where he knows nothing about what has happened with his older sisters I conclude that he has been appropriately protected by the mother and the two girls. That is to the credit of them all.

8. As F gets older and matures no doubt he will learn and understand more about how the father treated M and what the father was charged with and acquitted of in respect to both his sisters.

9. In the event he decided he wanted to see his father, history suggests that his mother would support his decision.

The child J

1. At three years and eight months J was observed with his mother, his brother S and his maternal grandmother for the Family Report. Due to his age and limited verbal abilities he was not interviewed.

2. J was an infant of about 10 months when he last saw his father in mid-2013. He is now five years old. It is improbable that the child has any memory of the father.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. A and F have an excellent relationship with their mother, their older sister M and their two younger siblings. A in particular benefits from a strong relationship with her step-father Mr L who is calm and patient and willing to assist her with her school work.

2. J has his closest relationship with his mother and observably good relationships with his older brother S and his maternal grandmother.

3. The three subject children spend some time together as a result of the goodwill and cooperation between the two mothers.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. I consider that the father has at all times wanted to enjoy a good relationship with his three children. He has limits on his capacity which has made this difficult and which has caused the children harm. He is apparently unable to imagine what it is like to be a child of his, to be exposed to his anger, to be exposed to his raw emotions which he is unable to contain in front of them.

2. Each of the mothers has taken on the responsibility to make decisions about the children and have been at all times willing to provide their care.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father, at least for a period of a year, concealed his income by paying it into M’s bank account in order to reduce his assessment of child support. This was a failure of his obligation as a parent to properly contribute to their material needs.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. If there was an order made for A to spend time with her father it would be against her expressed wishes. A believes that she is now more confident, successful at school and happier as a person since she ceased seeing her father. Certainly the experience of having her head injured, in the incident referred to in these reasons, was a painful and unpleasant one. Even s worse was having to give evidence in court about that matter. The experience  had quite an impact on her, particularly as she was cross-examined by her father’s barrister on the basis that she was lying.

2. If an order was made compelling F to spend time with his father he might immediately enjoy that time given his ambivalent feelings but as he moves into adolescence and understands more about M’s and A’s feelings about the father and reasons for them, he will likely feel differently and should not be forced. Feelings of disloyalty to his sisters could undermine the restoration of a relationship with his father.

3. If J was subject to an order the crucial relationship with his mother could be adversely affected and his development further delayed.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The father has an impaired capacity to meet the needs of the children, including their emotional and intellectual needs.

2. The manner in which he dealt with M treating her as a friend, allowing her adult freedoms, waiting on her hand and foot, until he met a new partner, after which all of that behaviour ceased, is a revelation of his immaturity and his inability to understand the needs of children and adolescents.

3. The fact that the father was pleased to have avoided giving evidence but unable to imagine what it was like for A and F to be interviewed and to give evidence is also an example of his impaired capacity.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. A is now a 14 year old girl, well into adolescence, happy in her life with a strong sense of pleasure in the current family unit with her mother, step-father and siblings. She is in her second year of secondary education.

2. F is now a 10 year old boy, he misses the fun and indulgence associated with events at the father’s house but feels happier in himself and well cared for in his mother’s home.

3. J at just five needs the calm, structured support of the family like that he has now. His autism and global developmental delay are considerations which should be given priority.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There have been episodes of family violence affecting all children.

2. The mother was charged and found guilty of an assault on M which took place in 2008. M by expression of her own strong feelings pressed to be able to live with her step-father. Orders were made accordingly. She was exposed to erratic, emotional behaviour and to conduct which left her feeling abused and rejected.

3. The intervener obtained an AVO post-separation and obtained an order to recover her own personal property. She was followed, stalked and threatened by the father or third parties at his direction. Her new partner was also threatened. Her sense of safety and ability to care for J was undermined by the father’s insistence on blocks of overnight time with J as an infant which may or may not have had some enduring consequences.

Conclusion

1. The course which best promotes the interests of all the children, as different as each child is, is for an order to be made that there be no time and communication between them and the father.

2. Although the father does have something to offer, he is an immature man and vengeful when crossed. He can be fun for the children but he can be a large threatening presence in their lives as well. He has not hesitated both to criticise their mother in front of them, particularly A, and to accuse them of being liars in order to protect himself.

3. The children are safe with their respective mothers and progressing well at school and in their lives. Given the turmoil of the past there is a risk of harm both emotional and physical of compelling the children by order to spend time and communicate with their father.

4. Orders are made accordingly.

JIRT DVD

1. On the afternoon of the second day of this trial, counsel for the father produced a JIRT DVD of the interview conducted by police with A about which the father had been cross-examined.

2. I asked for an explanation to be given. I was advised that the DVD had been sought in a subpoena issued by this Court to police but not produced. I was told that DVDs were served on lawyers for the father as part of the police brief for the criminal proceedings that concluded in 2016. Those same solicitors acted for the father in these proceedings.

3. I was told by counsel for the father that there had been no request by the police for the return of those DVDs at the conclusion of the prosecution.

4. In my view the DVDs should have been, and should still be, returned to police for the sake of the privacy and protection of the children. A copy of these reasons will be provided to Commissioner of NSW Police.

I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 27 October 2017.

Associate: 

Date:  25 October 2017