Milson & Myron (No 2)
[2019] FamCA 84
•22 February 2019
FAMILY COURT OF AUSTRALIA
| MILSON & MYRON (NO. 2) | [2019] FamCA 84 |
| FAMILY LAW – CHILDREN – Best interests of a child – Where the mother seeks sole parental responsibility, that the children live with her and spend no time with the father – Where the father failed to participate in the final hearing of the proceedings – Where the father perpetrated family violence against the mother – Where the two eldest children have significant mental health concerns – Where the father presents an unacceptable risk of emotional or psychological harm to the children – Where the risk cannot be ameliorated by supervision – Where the benefit of the younger children having a relationship with the father is not outweighed by the risk of emotional and psychological harm to them and their siblings – Where the mother has taken reasonable steps to ensure the children are protected and that they receive ongoing assistance in respect of their mental health – Where the children will live with the mother – Where the father will spend no time and have no communication with the children. FAMILY LAW – PRACTICE AND PROCEDURE – Referral of papers to Legal Services Commission and Queensland Law Society. |
| Australian Passports Act 2005 (Cth) Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Carpenter & Carpenter [2014] FamCAFC 100 Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 Day v Perisher Blue Pty Ltd (No 2) [2005] NSWCA 125 D’Cruz & Pierce and Ors [2009] FamCA Epping & Merl [2015] FamCAFC Johnson & Page (2007) FLC 93-344 Kioa v West (1985) 159 CLR 550 M & M (1988) 166 CLR 69 |
| APPLICANT: | Ms Milson |
| RESPONDENT: | Mr Myron |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Geysen |
| FILE NUMBER: | BRC | 3628 | of | 2018 |
| DATE DELIVERED: | 22 February 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 11 - 14 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr George |
| SOLICITOR FOR THE APPLICANT: | KLM Solicitors |
| FOR THE RESPONDENT: | No Appearance |
| SOLICITOR FOR THE RESPONDENT: | (Withdrew on first day of trial) |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Oakley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | TLG Law |
It is ordered that:
All previous parenting orders be discharged.
The children, B born … 2003, Z born … 2005, X born … 2009 and Y born … 2011 (“the children”) live with the mother.
The mother have sole parental responsibility for the children.
The father not spend time with the children.
Save as provided in this Order, the father be restrained and an injunction hereby issues restraining the father from:
(a) communicating or attempting to communicate with the mother or any of the children by any means including verbally or via email, text message or any form of social media;
(b) causing or requesting any person to communicate or attempt to communicate with the mother or any of the children by any means including verbally or via email, text message or any form of social media;
(c) approaching the mother, or any of the children or Mr F or Ms E or Mr DD;
(d) approaching or communicating with any of the children’s schools, health practitioners or extracurricular activity providers; and
(e) coming within 100 metres of the mother’s residence, Mr F’s residence or any of the children’s schools or Ms E’s residence or Mr DD’s residence.
Notwithstanding paragraph (5) herein, in the case of genuine emergency or for the purpose of a legal proceeding between the father and the mother, the father may request a solicitor acting on his behalf (other than one in the employ of T Pty Ltd) to communicate with the mother via her solicitor for the purpose of that genuine emergency or legal proceeding.
The mother be permitted to provide a copy of this Order to the children’s schools, health practitioners and extracurricular activity providers.
The Independent Children’s Lawyer be permitted to provide a copy of this Order and the Reasons for Judgment to the Department of Child Safety, Youth and Women.
The Senior Registrar of the Family Court of Australia at Brisbane is requested to provide a copy of the title page to the Reasons for Judgment together with paragraph (9) of this Order and paragraphs 37 – 43 (inclusive), 45, 48, 49, 51, 54 – 64 (inclusive), 65 – 68 (inclusive), 70 – 72 (inclusive and including heading), 122 – 125 (inclusive and including heading) of the Reasons for Judgment to the Law Society of Queensland and the Legal Services Commission for their consideration of what if any action to take against Mr Myron.
NOTATION
Any identification of persons other than Mr Myron should be redacted from the Reasons for Judgment prior to the referral mentioned in paragraph (9) of this Order.
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 Milson & Myron (No. 2) 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 BRISBANE |
FILE NUMBER: BRC 3628 of 2018
| Ms Milson |
Applicant
And
| Mr Myron |
Respondent
REASONS FOR JUDGMENT
Ms Milson and Mr Myron are the parents of four children, B aged 15, Z aged 14, X aged 10 and Y aged seven. Unfortunately for these children, their parents have been engaged in a bitter battle over them for some years.
An application by Mr Myron for an adjournment of the trial was unsuccessful. He took no part in the trial.
The issues faced by these children are complex and involve interfamilial sexual activity, criminal proceedings, suicide threats, mental illness, hospitalisation, absconding, drug experimentation, truancy, abduction and extreme anxiety.
Notwithstanding the absence of the father, the trial ran for four days and the Court was greatly assisted by Counsel for the Independent Children’s Lawyer (“ICL”) in particular, ensuring a thorough investigation and presentation of relevant evidence.
Sadly for these children, I have determined that it is not safe for them to have an ongoing relationship with their father and my reasons for that conclusion are set out below.
issues
The two most significant issues requiring determination are:
a)Does the father pose an unacceptable risk of emotional and psychological harm to the children?
b)Is the mother sufficiently cognisant of any risk to each of her children (other than any risk posed by the father) and will she take all reasonable steps to ensure they receive the ongoing assistance they need?
Proposals
The mother proposes that the father spend no time with the children and adopts the terms of the Minute of Order recommended by the ICL.[1]
[1] Exhibit 22 as amended during submissions.
The ICL proposes that the father spend no time with nor communicate with the children. The ICL also recommends the making of personal protection orders in favour of the mother and children.
Although the father did not participate in the proceedings, the family report writer, Mr R, said that the father conceded during interview on 5 December 2018 that it would not be possible to make any orders for B and Z to see him currently. The father conceded that his relationship with B has “already gone”.
background
Before turning to consider the issues, I note by way of background that the mother and father were married for fifteen years before separating in November 2015 and divorcing in 2018. The parents remained under the same roof until early January 2016.
Shortly after the separation the father commenced a relationship with Ms EE and she moved in with him after about a month. They remained together until about March 2017. Shortly after that relationship ended, the father re-partnered with Ms G and he and Ms G share a home for most of the time. The father is 48 and employed in a professional occupation.
Shortly after separation the mother commenced a relationship. After that relationship ended, the mother formed a new relationship with her current partner, Mr F, although they do not live together. Mr F has four children (all girls) aged 14, 12, 10 and seven respectively. The mother is 41 and not in employment.
At times after separation the parents managed to co-parent and even went on a joint holiday with the children in December 2016/January 2017.
After separation the child B lived with his father and spent very little time with his mother by his choice until recommencing to live with her and his siblings on 24 September 2018. In the period 3 April 2018 to 24 September 2018 B lived with a number of people including the father’s sister, Ms E, and also the father’s former partner, Ms EE and her partner Mr GG. B has been a very troubled boy for some time. He faced criminal charges in 2018 and was dealt with through the Youth Restorative Justice Program. He experimented with drugs in 2018 and absconded interstate with a girl. He has threatened suicide on a number of occasions and has been hospitalised because of concerns for his mental health. He no longer attends main stream school and is under the care of a clinical social worker, a psychologist and a psychiatrist.
Z remained living with her mother after separation but did spend time with the father up until March 2018. She is also under the care of a psychologist and a psychiatrist. She too has made a number of threats of suicide and has also been admitted to hospital because of concerns for her mental health. Z changed schools towards the end of 2018 and by all accounts is progressing well academically.
X and Y remained living with their mother after separation but spent about equal time with each parent although this seems to have been a recurring source of conflict. There was an interruption in them spending time with the father in May 2016 after Z told the mother that the father was physically disciplining the children including slapping her across the face. There was a further interruption from 25 March 2018 until the father took X from the mother on 1 April 2018 (Easter Sunday). X was returned to the mother on 4 April 2018. Between 16 June and 5 October 2018 X and Y spent fortnightly supervised time with the father. There was a further interruption in the boys’ time with the father after the supervisor withdrew her services and time recommenced on 27 January 2019 but only Y attended. X refused to get out of the car despite the efforts of the mother and Ms HH from the contact centre. The visit between the father and Y went well.
As a result of an incident that occurred between B and Z in March 2018, B was charged with criminal offences of indecent dealing and the matter proceeded through the criminal justice system’s Youth Restorative Justice Program.
On Easter Sunday in 2018, the father, in the company of B, removed X from Mr F’s home while the children were involved in an Easter egg hunt. The police were again involved and the father and B were charged with criminal offences. B’s charges have now been finalised and were dealt with through the Youth Restorative Justice Program but the charges against the father are yet to be heard.
On 3 April 2018 the father was arrested on charges relating to the incident on Easter Sunday and bail conditions precluded B living with the father. The mother, Z, Y and later X, lived in emergency accommodation for a period after the Easter Sunday incident.
On 4 April 2018 B was interviewed by police and alleged that his mother had sexually abused him when he was aged ten or eleven. B retracted his allegations on 17 April 2018 and said that his father pressured him into making the false allegations.
There is a current temporary protection order in place for the protection of the mother and the children and various third parties. The father is the respondent to that order.
Applicable legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[2]
[2]Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
a)The person or persons with whom a child is to live;
b)The time a child is to spend with another person or other persons; and
c)The allocation of parental responsibility for a child.
The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the children, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[3] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[4] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.”[5]
[3] M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
[4] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.
[5] ‘Unacceptable risk – A return to basics’ by the Hon. John Fogarty AM quoted with approval in Johnson & Page (2007) FLC 93-344, [68], [71].
The Court is not required to make findings of fact on every factual dispute raised by the parties.[6] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[7]
[6]Baghti & Baghti [2015] FamCAFC 71.
[7]M & M (1988) 166 CLR 69.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[8]
[8]Banks & Banks (2015) FLC 93-637.
Does the father pose an unacceptable risk of emotional and psychological harm to the children?
The father has a history of perpetrating family violence on the mother. He admitted doing so in both an email sent to the mother and during an interview with the family report writer, Mr R.
The first protection order - 2016
In the email from the father to the mother dated 30 December 2015 (attached to the mother’s application for a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) dated 14 January 2016) the father made the following admissions in relation to family violence:
a)“most always” using power and control over the mother during their marriage to get his own way;
b)“definitely” engaging in verbal abuse involving using words as a weapon, ridiculing, name-calling, yelling etc.;
c)Engaging in emotional abuse of the mother involving humiliating, degrading or demeaning her through put downs, accusations, emotional withdrawal and refusing to speak for extended periods of time etc.;
d)Initially in the relationship, engaging in social abuse involving constantly putting down the mother’s friends and family;
e)Sexually abusing the mother on one occasion;
f)“I accept that I have been guilty of intimate partner violence and this is because I have been controlling through a power imbalance”.
The email just referred to contained expressions of regret and sorrow for perpetrating family violence on the mother.
Notwithstanding those expressions of regret, the father called the mother a “dirty whore”, a “filthy slut” and a “whore slut” on 2 January 2016 and while yelling and screaming abuse at her, he put both his hands firmly around her neck on two occasions and said among other things – “You are lucky I am a nice person, or this could have been so much worse. I could have gone all Baden-Clay[9] on you and thrown your body into the river”.
[9] The reference to “Baden-Clay” is a reference to a husband in South East Queensland who was convicted of murdering his wife and disposing of her body in a river in 2014.
As a result of this violence a final protection order was made against the father, without his admission, on 3 March 2016 which remained in place for a period of two years.
Despite the father’s failure to admit the violence for the purpose of the protection order made in 2016, during an interview on 27 June 2018 with the family report writer, Mr R, the father admitted frequently abusing the mother verbally including calling her a “bitch” often, and that there had been “two or three (physical) incidents”. The father admitted an incident at separation where - “I put my hands around her neck and I said to her, you’re lucky I wasn’t like Baden-Clay”. The father also accepted during that interview that the mother was “very scared” during the latter incident but said his intention was to frighten the mother but not to hurt her. This does not make his actions any less culpable.
It is apparent, given the admissions made by the father and the information provided by the children to Mr R and the mother’s evidence, that the children were exposed to the father’s family violence over many years. Last year B told his treating clinical social worker, Ms II, that he remembers witnessing family violence perpetrated by his father against his mother from age six and reported feeling stress and fear from that age. He also recalled his paternal grandfather (who lived with the family) intervening when his father would become verbally abusive to his mother and his father verbally abusing his grandfather.
It is regrettable that the mother remained with the father for as long as she did but like so many abusive relationships, the victim experiences extreme difficulty exculpating themselves from the abuser.
The second protection order - 2018
A second protection order was made against the father on 4 April 2018. The order remains a temporary one and a hearing to determine whether or not a final protection order should be made was apparently listed for a contested hearing on 20 February 2019 in the local court. The application for a protection order was made by the police on the mother’s behalf and the order currently in place (it has been varied on a number of occasions) names not only the mother but also the children, the mother’s partner, Mr F and his four children, the father’s sister, Ms E and her wife and two children as persons protected by the order.
The circumstances leading up to this protection order relevantly commence with the mother becoming aware that B and Z had engaged in sexual behaviour of a very serious nature on 25 March 2018 while Z was spending time at the father’s home during a day time visit and culminate in the father and B removing X from the mother’s care on 1 April 2018.
On 28 March 2018 at 5.34pm[10] the mother communicated with the father via her solicitors and said among other things:
[10] Exhibit 23.
…
We are instructed that this incident is of extreme concern to our client and she is prepared to take every measure with respect to protecting the children from risks of harm in your care and the risk that [B] poses to his siblings.
We note that there are no current Court Orders in place and by mutual agreement between the parties, [X] and [Y] are due to commence overnight time in your care tonight. Due to the seriousness of the incident that occurred on Sunday, our client will be acting in a child protective manner and will not facilitate any unsupervised time in your care for the interim. We will revert back to you in the coming days with our client’s proposal regarding parenting matters.
…
We request that any further correspondence in relation to this matter not be communicated directly to our client, but alternatively be forwarded to our office.
We urge you to seek independent legal advice in relation to the above.
Notwithstanding the request not to make direct contact with the mother, the father called her at 7.25 pm that day. The call was not answered. The father followed up with the following text message to the mother:
Pick up the phone now please. If you choose to act legally against me there will be no going back to civil bring again discuss this calmly with me
I trusted you and chose not to do certain things which I might have. You have betrayed my goodwill and chosen to act unilaterally. Pick up the phone and discuss this calmly now or you will have to deal with the calculating side of me and I will show no quarter at all.
Your choice who do you want to deal with? – this is a rest of your life decision. You have until 10pm to call me there’s no need to push this further
We both love our kids, you may feel you need to take certain steps to protect the little boys but if you make me responsible for what happened I will never forgive you. As the matter stands we can discuss our differences and look after all four of them – If you try to use solicitors or obtain orders of the court I will crush that absolutely and go as far as I need to for as long as it takes. Do not get between me and my children. Work it out with me civilly. The choice is yours
[as per original]
There is no doubt, in my view, that the content of the text message is both menacing and threatening.
The following morning, 29 March 2018, the father sent a further text message to the mother at 9.37am:
These are our children, you shouldn’t take sides against me here.
I did not appreciate your solicitors letter. I did not appreciate them saying that I did not supervise my children!! You know that’s absolute rubbish the two of them were out of my view for 10 minutes!
We will need to look after them for the rest of our lives and that will involve interaction between us. We are their mother and father and we need to pull together to deal with this I’m not against you I understand that you are scared and there are things that you do not know but you’re not talking to me and I cannot understand your position. Don’t shut me out please I want to look after our babies.
Don’t forget [B] and all of this as well don’t forget that the way you act in relation to this will impact on him and your relationship with him greatly and that will be nothing that I can do to help you.
We should be acting together in relation to this matter.
Why should you fear that I won’t listen to your concerns and that I Won’t help you to do what best for our children?
Although the father did not participate in the proceedings before me, counsel for the ICL tendered a video and an audio interview conducted by police with the father on 3 April 2018 and it is relevant to the circumstances of the protection order application made by police.
During the interview the father told police that he had sought advice from a specialist family lawyer and a “silk” on Thursday, 29 March 2018 and was told that an application to court could take six to eight weeks for a hearing and even if urgent it could take two to three weeks. He also told police that B disclosed to him on 29 March 2018 that the mother had sexually molested him during the period December 2013 to December 2014. When recounting this information to police the father seemed very distressed.
The father then volunteered to police a number of reasons for his decision to take matters into his own hands on Easter Sunday, 1 April 2018. The father’s reasons were:
a)To protect the little boys from Z whom the father said had a history of precocious behaviour of a sexual nature with other children and it was his view that she had instigated the incident with B on 25 March 2018;
b)To protect the little boys from the mother, given B’s disclosure to him;
c)He had been told by the Department of Child Safety, Youth and Women to take the little boys from the mother; and
d)As there were no ‘custody’ orders in place, if he had the little boys it would give him a tactical advantage in any court proceedings.
On Easter Sunday, 1 April 2018, the father went to Mr F’s home at sunrise in the company of B and his partner, Ms G. The father had hired a car for the specific purpose of minimising the prospect of being detected by the mother. It was the father’s intention to remove both X and Y from the premises. Ms G waited some distance from Mr F’s home while the father and B took up positions near a garden to the side of the home and some ‘wheelie bins’. When there was still no sign of the boys by 7.50am, the father sent a text message to Mr F saying:
Morning [Mr F] I imagine the kids were up at 6am collecting their trail of eggs as usual? Are they having a good time??
At 8.02 am the father sent a further text:
Hello there?
Mr F responded:
Morning [Mr Myron] …
Believe it or not … the wee boys are still fast asleep, [Z] is up and about but wanting to wait until the boys are up.
Getting then (sic) up now as we have the call this morning.
The father responded at 8.07am:
We are not going anywhere. Make sure they get all their Easter joy before they call so it’s special for them and they don’t miss us as much
The father’s texts were a ruse. He had no interest in ensuring the boys obtained “their Easter joy” before speaking to them on the phone. The father was preparing to remove them from the mother, and the father and B had been lying in wait outside Mr F’s home for some hours.
The father’s account to police is that he saw the mother, Mr F, Z, Y and one of Mr F’s children exit the front door of the home at 8.30am. Despite denying to police that he and B were hiding, he admits that neither of them were seen. Rather unconvincingly the father suggested to police that he and B remained undetected because the mother and the others were tired. I consider it more likely that the father and B were hiding as claimed by the mother. Y then re-entered the home and X came out. The father called out to X - “X, come over here, Mum is trying to keep you from us”. He says he picked up X and a slight tussle followed when the mother tried to take X off him. B ran into the home calling for Y but left the home when told to leave by Mr F. The father admitted to police that after Mr F closed the front door he kicked the door twice and called out to Mr F to hand over his son. The father and B then left the property with X. According to the father they drove around for about an hour before returning to his home at Suburb D. The father had bags packed in the car ostensibly because he intended going to Suburb JJ with the children. He did not go to Suburb JJ that day.
When police attended Mr F’s home shortly after the father’s departure with X, the mother called the father and placed her phone on speaker. The father’s words were heard by police and it is reported that he said to the mother – “It is going to get a whole lot worse if you don’t cooperate. The kids will be taken off the both of us”.
The father was asked by police repeatedly to attend at the police station to give his version of events but he declined. Police informed the father that if he did not come to the police station they would come to his home. The father had an opportunity to avoid B and X witnessing police involvement by attending at the police station. His refusal resulted in the children being exposed to police attending at his home.
The mother gives a version of this event which differs in some respects to the father’s version. For example she describes the father and B being in “camouflage” gear when they “jumped out of the bushes” and the father yelling “Quick, grab him” before grabbing X and running into the house, calling to B “Grab [Y]” and yelling “Where is my son?”. When Mr F told them to leave, the father carried X out of the house and left him with B on the driveway before returning to the front door, which was then closed, and repeatedly kicking it. The mother says that X looked terrified when he was being taken.
It is apparent, even on the father’s version, that the incident at Mr F’s home was likely to have been very upsetting for the children. Indeed the father told police that it was an “extremely stressful” day for everyone. The cause of that extreme stress was the father.
The father’s involvement of B in this incident was reprehensible. The father and B were charged with criminal offences arising out of the incident. I also consider it reprehensible that the father sought to justify his decision to involve B, by telling police that B wanted to be involved because the mother had “abducted” the younger children.
Allegations of sexual abuse against the mother
The police records[11] show that at 5.30pm on 29 March 2018 the father reported an allegation of sexual abuse made by B against the mother. This is the day after the father was notified that the mother would not be permitting the little boys and Z to spend time with the father over Easter. Although B was present at the police station he “presented as sick and was unable or would not speak with investigators”. The father, during the interview with police on 3 April 2018, was highly critical of police in their interaction with B on 29 March 2018 suggesting they were insensitive and bullying. When the police told him that the allegations would not be considered unless a complaint was made by B himself, the father told police that “I am sure he will be making that complaint, don’t you worry”.
[11] Exhibit 15 page 181.
On 3 April 2018 the father was arrested and taken into custody over the Easter Sunday incident. B and X were placed in the care of the father’s sister, Ms E, and her family before X was returned to his mother’s care the following day.
On 4 April 2018 B was interviewed by police and made allegations against his mother. No charges were brought against the mother due to inconsistencies in the account provided by B and in particular, his claim to have been asleep the whole time. Police records show that the investigation was finalised on 15 April 2018 as the “evidence indicates the offence did not occur”.
On 17 April 2018 B formally retracted his allegations against his mother. He told police that his father had told him to make the false allegations against his mother and that he was sorry for telling lies. B also told police that his father had told him he needed to say these things for the family’s sake and so they could get the little boys back. He felt he would be disowned by his father if he did not go along with his father’s instructions. He also told police that the father had made him believe his mother was evil and only wanted custody so she would get the house. B said he needed to put things right and although he knows his father loves him he felt his father had manipulated him for years. On 19 July 2018 B repeated to his treating clinical social worker, Ms II, that the father had coerced him into making false allegations against his mother.
During the father’s interview with Dr Q, psychiatrist, on 19 July 2018 the father said that he does not believe the allegations B made against the mother and said that B had lied. The father seems content to attribute blame to B over the allegations.
Conclusion about B’s allegations against the mother
If this were an isolated incident I may have been reticent to make a finding that the father had coerced B into making false allegations, particularly when the father has not taken part in these proceedings. I am also conscious of the fact that prior to making the retraction, B had been exposed to Mr GG’s conversation about people with narcissistic personality disorder and B had spoken to his mother on at least two occasions. I considered whether or not those influences might have caused B into making a false retraction.
However, I have concluded that it is more likely than not that the father acted as alleged by B, namely, coercing and manipulating B to make a false allegation of sexual abuse against the mother. I have come to that conclusion after taking into account the evidence as a whole including:
a)The father’s admitted history of family violence;
b)The father’s menacing and threatening manner of communication to the mother in both the text messages set out above and during a recording made by the mother in February 2016, which was played during the proceedings (the recording was covertly made);
c)The father’s preparedness to involve the children in the dispute by taking all three boys to the police station with him to make a complaint against the mother on 3 January 2016 at 7.35am and again at 8.30am and using B to obtain the mother’s phone so that he could go through her messages “to find evidence of an affair”;
d)Also on 3 January 2016 (the third time he spoke to police on that day) the father made an allegation to police that the mother had slashed him with a ball point pen and showed police what their report describes as “two, 20cm lacerations to his stomach that appeared fresh and to be consistent with this version”. About a month after making this allegation to police, the father admitted to his then friend, Mr DD, that he had poked himself a couple of times with a knife to protect himself from allegations that might be made against him by the mother (Mr DD was a reluctant witness called by the ICL. His evidence gave me no cause to suspect that he was anything other than an honest witness. I am of course conscious of the fact that the father did not cross-examine him);
e)The father’s false denial to police on 3 January 2016 that he had placed his hands around the mother’s throat stating that the only time he had placed a hand on her was to push her away from him after she had slashed him with a ball point pen;
f)The father’s repeated use of the pronouns “we” and “us” during his police interview on 3 April 2018 which left me with a clear impression that he inappropriately involved B causing the child’s “exposure and enmeshment in his parent’s issues [to be] pervasive”;
g)B’s complaints to police about the father’s other inappropriate behaviour towards him including:
i)Showing him naked images of girlfriends;
ii)Making sexual references about their anatomy;
iii)Informing him of his use of a contraption for restraining his girlfriends and spanking them;[12]
[12] B said this information was shared with him by his father after B asked why there were ‘bolt holes’ in the door frame. Exhibit 19 shows the bolt holes in question.
iv)His demeaning use of language about women;
v)Sending the mother a photograph of a poster on B’s wall (of a semi naked woman in a sexual pose) with a laughing emoji;
h)The father’s conduct on Easter Sunday 2018;
i)The father’s statement to X on Easter Sunday that “Mum is trying to keep you from us” (another example of inappropriately involving a child in the dispute);
j)The father’s admission that Y asked him why he had taken X and the father’s response that he had wanted to take him too (again demonstrating a propensity to involve the child in the dispute);
k)The father’s lack of insight into the inappropriateness of his conduct (demonstrated throughout his interviews with police and Mr R and his manner of communication with the mother);
l)B’s attribution of the word “buddy” to the mother when making his false allegations against the mother; the mother’s denial that the word “buddy” was a word she used and the father’s use of that word during his interview with police on 3 April 2018;
m)The father’s threats to the student boyfriend of the mother in or about March 2016 that he would send a letter to the boyfriend’s family disclosing the relationship with the mother (so as to cause him to be disowned by his family) if he did not meet up with the father and referring to the boyfriend as a dog; and
n)The father’s sister’s evidence that she endured a physically abusive relationship while growing up with the father who is 11 years her senior. She described being hit by him as a child and restrained against her will with threats of harm if she did not comply. She also described a particularly nasty incident when the father was excluded from the family home after threatening to burn it down and to kill their mother. The incident resulted in their fleeing the home and the father smashing their car window with a long metal pipe as they drove away. Police were not involved. The father was 26 at the time. While she acknowledges that, as an adult, she had a reasonably pleasant relationship with the father, particularly when B and Z were very young, she admitted feeling fearful of him for many years. She said she would never leave her own children with him (aged 3 and 1) because she does not trust him. She admitted informing police in April 2018 that she was concerned for her personal safety and the safety of the mother and the children. Ms E is a psychologist and she said she, “had concerns because from my part and from my family’s part I knew that [Mr Myron] would be very angry and feel that I had done the wrong thing and that he may take vengeance of some kind towards me and my family. For [Ms Milson] and the kids I had concerns that he may be one of those people that if he can’t have them that he may hurt them, take their lives”. (Ms E was another reluctant witness called by the ICL and her evidence gave me no reason to suspect that she was anything other than an honest witness. I am of course conscious of the fact that the father did not cross-examine her).
Quite apart from the father’s actions being an appalling betrayal of his obligations as a parent, it is a very serious breach of the father’s professional ethical duties.
The fallout from the father’s conduct
The father has currently lost his relationship with all four children. Y is the only child expressing a wish to see the father but even he seems to be experiencing some fear of his father, telling his mother he was scared it would be “his turn to be taken” by the father.
The damage the father has done to his relationship with B is best demonstrated by B’s communication to the father on or about 8 August 2018 which I set out in full:
You fucked my entire life. I want you to know right now that I have been in hospital on suicide watch, [Z] was living in hospital cause she was so close to suicide. I am basically only still here because I’m on some fucking shitty pill that’s meant to make me happy. But it just fucks me up and makes me numb. I will never forgive you for fucking me and my sisters childhoods and making mums life hell by trying to turn me against her with your FUCKING BULLSHIT. YOU FUCKING GAY CUNT. Look at your life mate you made mum want to kill herself the whole time you were together, you fucking over sexualise everything and exposed your children to violence and sexual themes from a young fucking age cunt. Who the fuck hits their kids and tells them they are dumb and stupid all the time huh? Fuck is wrong with you cunt. I’m never gonna forgive you for the fucking scars on my arm and leg, or the way you carelessly tried to turn me into some womanising gay cunt, or how you fucking turned me against all my fucking relatives, you called my sister a bitch constantly which isn’t AT FUCKING ALL helpful especially considering she used to look up to you and has severe anxiety you dumb cunt. Fuck you to hell you fucking pig. I hope you fucking get up tomorrow morning and break your fucking back you gay cunt (rude finger emoji). Look in the fucking mirror, and think about your fucking life. All the fucking thinks you managed to do to me and my family. ‘Looking after the family’ FUCK OFF CUNT. But in the end you’re still my fucking dad and deep fcking deep down I still love you but I will never ever forgive you. I hope you are happy dad
[as per original]
Such is the strength of B’s and Z’s rejection of the father that it has proved impossible for the mother to entirely protect the little boys from their views. She has done her level best though.
X is now very resistant to spending time with the father. Some of that resistance arises because of his own reactions to having been taken by the father on Easter Sunday. He still experiences nightmares about that incident. He is also very wary of the father’s reactions to X’s rejection of him.
Conclusion as to whether the father poses an unacceptable risk of harm
The father has a long history of family violence and the children have been exposed to it. The father’s involvement of the children in the dispute, in particular B, has been reprehensible.
The father did not demonstrate any insight (when interviewed by police) that his conduct on Easter Sunday was in any way harmful to the children. He was intent on blaming the mother and he continued in this vein when interviewed by Mr R on 5 December 2018. After stating that he had never had anything against the mother and did not hold a grudge against her, Mr R notes that this statement was followed by:
29. … an outburst which could be perceived to contradict the question (which he raises) as to whether he holds a grudge in that he has experienced a ‘systemic institution of violence going on against me’. He said ‘she is now sitting of (sic) the party line that she doesn’t want me to have a relationship with the children. She has not changed that view’ …
Mr R said of the interview with the father - “[the] general tenor was his frustration and anger, particularly regarding how poorly he believes he has been treated throughout the court process.” He went on to say:
16. He feels there has been no justice and he made some personal remarks about what he perceives as the position of this writer, exclaiming – in reference to the ICL and presumably others involved – that ‘they want to see me explode’ and there is ‘no compassion’.
Mr R describes the father’s disposition as intense and fractious although he took into account the father’s psychologist’s view that the father may have been unable to be at his best during the interview.
Dr Q assessed the father on 19 July 2018 and noted that by the father’s “own account there do appear to be significant obsessive-compulsive personality traits”. According to Dr Q, if the mother’s account of the father’s behaviour is accepted the father has some significant and pronounced narcissistic traits. Further, if the Court found that the father had coached B to make false allegations against the mother and continued to deny that he had, “this may suggest more profound character pathology is present in the father”. I accept the mother’s account of the father’s behaviour and I have found that the father did coach B to make false allegations.
I conclude that the risk to the children of psychological and emotional harm from the father is unacceptable. Given the father’s history of family violence I also have concerns that the father may physically harm the children and/or the mother and/or witnesses who have given evidence in these proceedings.
Can the risk be ameliorated by supervision?
On the occasions that the little boys spent supervised time with the father between June and October 2018 the experience appears to have been a positive one for the children.
Although, it is significant that the contact centre elected to withdraw their services for the following reasons:
a)The level of monitoring and case management required was excessive;
b)The amount and content of correspondence received from the father was a significant concern;
c)The tone of the father’s communication was harassing if not aggressive;
d)The subtle manipulation of the children by the father during supervised time was considered to be too difficult to manage; and
e)The father ignored some of the conditions under the service agreement.
The mother also contends that the father manipulated the little boys by causing them to bring into her home a model that B and the paternal grandfather had worked on and a large photograph collage with photographs of himself with the children, including B and Z. The mother contends that the father is likely to have known the negative impact such things would have on B and Z.
The current supervisor has only supervised on one occasion. She was unable to persuade a clearly distressed X to see the father. The supervised visit that was due to occur on the Sunday before the commencement of the trial was cancelled by the mother because the contact centre told her that if the father tried to take the children they would not stop him but would call the police. The mother’s concern arose as a result of information conveyed to the mother by her solicitor on the Friday beforehand. (The information was that the father’s sister had expressed a concern that the father might kill the children. The mother was not informed that this information had been given to police by the father’s sister in April 2018).
Mr R is of the view that if the little boys were to continue their relationship with the father, there is a “significant risk” that it would be destabilising for all of the children and affect their sense of security. I agree with Mr R’s opinion and that the risk to the children is greater in this family given their dependence on the mother’s resilience. It is apparent that X is already feeling significant anxiety about the prospect of seeing the father and neither Mr R nor the supervisor were able to persuade him to see his father on the most recent occasion.
I accept the mother’s evidence that she is in a fragile state given the burden she has endured over the last year trying to ensure her children’s mental and physical health is addressed. An example of that fragility is demonstrated by her acute stress reaction to reading the father’s trial material.
Unfortunately, for the children, and the little boys in particular, the difficulties in managing any relationship between the little boys and the father is likely to be too stressful even in a supervised situation. In this regard, I agree with Mr R’s opinion:
113. The family is at a fragile equilibrium, the welfare of the older children is at a critical point, and I think the capacity of the family (particularly the parents) to manage arrangements cohesively and peacefully, is more important in this family than most, even in the highly litigious arena of this Court.
114. I am doubtful that this can occur here, and it is my view that the welfare of all four children would be severely compromised if their mother’s confidence and obvious capacity to care for them was weakened, and the possible benefit of them spending time with their father would be negligible if this were to be a possibility.
I conclude that the risk to the children cannot be ameliorated by supervision and I propose to make an order prohibiting the father from spending time with the children, even in a supervised setting.
Is the mother sufficiently cognisant of any risk to each of her children and will she take all reasonable steps to ensure they receive the ongoing assistance they need?
Counsel for the ICL rightly criticises the mother for her failure to inform the father about her conversation with Z prior to the incident on 25 March 2018. Z told the mother that B had been watching pornography on his computer and asked her to watch it too. If the mother had informed the father, he may have been more vigilant in supervising Z and B on 25 March 2018. The mother’s silence is all the more concerning given the involvement of police on two occasions (2011 and 2015) over complaints made by the parents of other children whom Z was alleged to have involved in sexually inappropriate play. The mother was also told by the father’s sister (a psychologist) that B’s behaviour as described by Z sounded like ‘grooming’.
Another matter worthy of some condemnation concerns what the mother described was a “calculated risk” when she covertly recorded the father in or about February 2016 during a conversation they had outside her home while the children were inside. The mother’s intention was to obtain an admission by the father that he had manufactured evidence to use against her i.e. the self-inflicted wounds which he blamed on the mother. Given the father’s history of family violence, the mother’s actions showed poor judgment given that the children may have been exposed, yet again, to family violence.
I also have some concern that the mother has not been vigilant in protecting B from the parenting dispute. The mother did little to protect him from her discussion with Mr GG on 16 April 2018 when the father’s possible narcissistic personality traits were seemingly discussed at length.
I am nevertheless satisfied that the mother has taken all possible steps to protect B and Z from the risks posed by their respective depression, anxiety and the fallout from the criminal proceedings and in ensuring the safety plans implemented with the assistance of the KK Counselling Service are adhered to. The mother is now acutely aware of the vulnerabilities for each of her children e.g. the impact of B’s exposure to sexually inappropriate material and Z’s challenges in relation to sexual boundaries as recently as November 2018.
In his interview with Mr R on 5 December 2018, B said he felt he had a good relationship with his mother and that she was “a really good support”. He found it difficult at times to manage his relationship with Z saying “She has not got any idea of when to give people peace”.
B works three days a week and has developed a keen interest in boxing which he feels “relieves a lot of anger”. Sadly, he expressed the view that he had accepted that he would be unlikely to feel happiness again because he had been depressed for so long. He said he did not want to see his father every again. He accused his father of ruining his childhood and “over-sexualis[ing] everything”. He said he did not want the same thing to happen to his brothers. He was very protective of them during his conversation with Mr R.
B has undertaken extensive counselling with Ms II who is a clinical social worker attached to the KK Counselling Service, which is funded by the Department of Child Safety, Youth and Women. Ms II obtained a social work degree with first class honours in 1999 and also has a Masters of counselling and psychotherapy. Her professional role is to provide specialist therapeutic support to young people who have committed offences of a sexual nature and have been referred to a restorative justice conference. Restorative justice is a diversion program for young people as an alternative to proceeding through the court process. The young person must be assessed as suitable for mandated counselling and be able to demonstrate their ability to take responsibility for their actions and participate in a conference in which they make amends to the person harmed. Ms II was impressed with B’s commitment to the program and confident that he had addressed the therapeutic goals. She considers that B has “a very clear understanding that …the actions he took [involving [Z]] were completely inappropriate and caused significant harm.” Ms II said that she has at no time been concerned that B had breached the safety plan put in place when he joined the program and she considers him to be a low risk of harming his siblings.
Ms II said that B is interested in undertaking study to obtain qualifications and plans to enrol at TAFE in the middle of this year in order to further his education. Despite many reasons for optimism, Ms II still considers there to be ongoing concerns for B’s mental health and considers that he should continue to receive support from his psychiatrist and psychologist at Children Youth Mental Health Service (“CYMHS”).
Z is also undertaking counselling with a clinical social worker associated with KK Counselling Service, Ms LL. Ms LL and Ms II confer, to ensure that any issues relevant to B or Z are addressed. Ms LL has a social work degree conferred in 1999. Like Ms II, she has extensive experience in therapeutic assistance for young people involved in sexual offending or those harmed by it. Ms LL considered that Z has progressed well in therapy despite an incident involving a boy at school in November last year. She did not consider it a risky situation for Z and B to be living in the same household nor did she consider Z to be a risk to her younger brothers. She supported Z continuing her therapy with CYMHS to assist with any ongoing anxiety.
The mother has been intimately involved in obtaining therapy for B and Z, and has ensured their regular attendance at appointments. She has co-operated fully in their treatment and has been entirely supportive of each of them. It is to her credit that they have each improved to the degree they have. The frequency of appointments with professionals has no doubt been a significant burden but one the mother has managed despite the ongoing stress and anxiety she has personally endured. In my view the mother has been rightly commended by the children’s treating clinical social workers and Mr R for her commitment to the children’s welfare.
The mother’s efforts are all the more impressive given her understandable anxiety involving the father.
Despite her anxiety, the mother facilitated the little boys and Z continuing a relationship with the father up until March 2018 in respect of Z and until January 2019 in respect of the little boys. The efforts she has made to encourage the little boys to spend time with the father has been extraordinary in the circumstances.
It is clear that the little boys have been exposed to the negative views of their older siblings about the father. The mother has done her best, in my view, to protect them from that, by ensuring the older ones were wearing headphones when she collected the little boys from supervised time with the father or dropping Z off at her brother’s house on the way to supervised time and before picking the boys up so that the boys could freely talk about their father without causing upset to Z and being exposed to her negative responses.
I am satisfied that the mother is acutely aware of risks to the children and has taken all reasonable steps to ensure the children are protected.
What parenting order is proper in this case?
This is not a matter where the presumption in favour of equal shared parental responsibility applies because there are reasonable grounds for believing that a parent has engaged in family violence.[13] In any event, given the history of conflict between the parents I find that they do not have the capacity to make joint decisions and it would not be in the best interests of the children for such an order to be made. I concur with Mr R’s opinion that the parent’s parenting relationship and communication has irretrievably broken down and “it is unlikely that it will ever be viable again”.
[13] See s 61DA of the Act.
Accordingly, an order for the mother to have sole parental responsibility is in the children’s best interests.
The mother has demonstrated a capacity to meet the ongoing needs of the children and I am satisfied that it is in their best interests to continue to live with her. I have already found that there is an unacceptable risk of harm to the children if they were to spend time with the father and that supervision cannot ameliorate the risk.
The question remains as to what, if any, communication there should be between the father and the children.
It is not in contention that the father loves his children although how that love manifests is of concern. The father has repeatedly shown poor judgment by involving his children in his dispute with the mother. The worst examples include the incident on Easter Sunday and manipulating B to make false allegations against the mother.
B and Z have expressed very strong views rejecting a relationship with the father. It is apparent that the little boys have been exposed to some of their older siblings’ negativity about the father despite the mother’s best efforts to protect them from that.
The incident on 1 April 2018 has had a profound impact on X, in particular, who has continued to suffer nightmares. He has shown extreme resistance to spending time with the father even in a supervised setting since October 2018. In January 2019 he refused to get out of the car to visit the father even though Y did go. Y seemingly remains the most unaffected by the trauma experienced by the rest of the family. He wanted to see his father on the 5 December 2018 and was observed to be happy and affectionate with him. However, even Y has been experiencing nightmares and expressing fear about being ‘taken’.
I accept Mr R’s opinion that there are “obvious benefits [to the little boys] if they were able to have a relationship with their father such as continuing the sense of identity and attachment that they have had with him, and that generally is of great benefit for development … as a child goes through adolescence and afterwards”. I also accept Mr R’s opinion that there are risks associated with the little boys having no relationship or contact with the father because it may cause them to become oppositional or to idolise the father in his absence. However, I note the response of the children to the receipt of Christmas gifts. B broke down in tears and spoke angrily about his father. The little boys have not returned to play with the gifts they received. Z reacts angrily to any mention of the father.
In Mr R’s view the risk to B and Z (given their history of depression and anxiety) must remain a priority. I agree. Despite some significant improvements, B still presents, according to Mr R, as “vulnerable, depressed and emotionally raw”. It is important that a “mainstay for him is the bond he has renewed with his mother”.
Mr R opines:
99. The way forward for this family is a tenuous one. There are strengths. [Ms Milson] has demonstrated a commendable capacity to balance the needs of the older children with the external pressure of the judicial system (in terms of [B’s] route through the justice process and also in this Court), and her bond with [B] is not just better, but the mainstay of his support. The welfare of both children [B and Z] has at times been simultaneously extremely precarious, and the fashion in which she has balanced and addressed their needs is creditable.
…
104. … [Mr Myron] also leaves the impression of being intensely self-absorbed. It is difficult for this writer to gauge what allowance should be given to him if his psychological or emotional state is considered [a] factor in this area of his presentation. One problem is that he has difficulty understanding the immense task that [Ms Milson] has had to stabilise the children, and I think that he has made that task more difficult for her, and may continue to do so.
Overall I do not consider that it is in the children’s best interests to have a relationship with the father at all. The disadvantages in my view outweigh the benefits.
Other matters
Mr R thought the mother was right to be concerned about the father’s controlling nature and the difficulties she and the children might face once the Court process is finalised. I share that concern, particularly in light of the evidence from the father’s sister and Mr DD.
Having regard to the mandatory provisions of s 60CG and the findings made in this case, I propose to make an order for the personal protection of the mother, the children, Mr F, Ms E and Mr DD.
I propose to include an exemption to the prohibition on the father (via his solicitor) contacting the mother (via her solicitor), in the case of a genuine emergency or in the event of further legal proceedings between him and the mother. However, I do not propose to permit the business that employs the father (T Pty Ltd) to fall within that exemption.
As I propose to make an order that the mother have sole parental responsibility and that the father spend no time with the children I do not consider it necessary to make an order pursuant to s 11 of the Australian Passports Act 2005 (Cth) as sought by the ICL. The father will not retain parental responsibility as that term is defined in that Act[14] and, as such, travel documents may be issued for the children without the father’s consent.
[14] See s 11(5)(b)(i) of the Australian Passports Act 2005 (Cth) and Withers & Russell and Anor (2016) 55 Fam LR 447
Conclusion
I have found that the father poses an unacceptable risk of psychological and emotional harm to the children which cannot be ameliorated by supervision. The father has a history of family violence and has inappropriately involved the children in the parenting dispute. He also manipulated his son to make false allegations of sexual abuse against the mother. His behaviour as a parent and a husband has been reprehensible and he has demonstrated no insight into the harm he has caused his children.
The children will live with their mother and she will have sole parental responsibility for them. The father will spend no time with the children and will be restrained from communicating with them.
As a result of the father’s history of family violence and capacity for manipulation I propose to make an order for the personal protection of not only the mother, the children and the mother’s partner but also two reluctant witnesses in the trial, the father’s sister and a former friend of the father’s.
Referral of the father to the Law Society and the Legal Services Commission
The ICL submits that the father should be referred to the the Law Society of Queensland and the Legal Services Commission for consideration as to whether he remains a fit and proper person to hold a practising certificate.
I am conscious that the father has not been heard on the proposed referral but I am not deciding the issue of whether or not he should retain his practising certificate. That will be a matter for the professional bodies concerned. Whether a decision is made to take the matter further will be a determination entirely within the remit of those bodies and the father will have the opportunity to be heard in any proceedings commenced against him. In the circumstances I do not consider that I need provide the father with an opportunity to be heard on this issue.[15]
[15] Epping & Merl [2015] FamCAFC 81 [58] where a solicitor appealed against a decision to refer him to the LSC before hearing submissions. In dismissing the appeal the Full Court held that the solicitor had in fact been provided with an opportunity to be heard but in any event May J observed that ‘the judge was not making any findings of fact, simply referring the transcript to the LSC for their consideration’; D’Cruz & Pierce and Ors [2009] FamCA 435 [5] (where Dessau J held that was no obligation to hear submissions before making a referral; Carpenter & Carpenter [2014] FamCAFC 100 where the Full Court referred a barrister to a professional body without hearing submissions cf Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 where the NSW Court of Appeal directed a solicitor to show cause why he should not be referred to the Law Society; Day v Perisher Blue Pty Ltd (No 2) [2005] NSWCA 125 where the Court of Appeal made the referral and commented that ‘the proposed reference by the Court to the Legal Services Commissioner is no more than that’; also see Kioa v West (1985) 159 CLR 550 where it was held (in an administrative law case) that affording procedural fairness e.g. a right to be heard, may not be a requirement where the ‘rights, interests and expectations of the individual …[are not affected] in a direct and immediate way.’
I have made a number of significant findings in this matter based in part on admissions made by the father in written material and to other persons i.e. of committing family violence. Additionally, the father’s involvement in coercing his son to make a false allegation to police is a most serious matter indeed. There is also evidence of an admission made by the father that he injured himself and told police that the mother was responsible. The father’s actions bring the administration of justice into disrepute. Accordingly, I consider a referral to the relevant professional bodies to be appropriate.
I certify that the preceding one-hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 22 February 2019.
Associate:
Date: 22.02.2019
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