MITCHELL & MITCHELL

[2019] FamCA 460

FAMILY COURT OF AUSTRALIA

MITCHELL & MITCHELL [2019] FamCA 460

FAMILY LAW – CHILDREN – Parenting – where the Mother seeks that the children have no contact with the Father – where the Father seeks an equal time arrangement – where the Father only attends the first morning of the trial – where the Father filed no material – where there are serious allegations of family violence made against the Father – where the Father poses an unacceptable risk to the children – where the Father has normalised family violence – where there is no net benefit to the children of a meaningful relationship with the Father – orders made for no contact with the Father.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)- ss 60B, 60CA, 60CC, 65DAA.

Marsden & Winch (No 3) (2007) FamCA 1364.

APPLICANT: Mr Mitchell

RESPONDENT: Ms Mitchell

INDEPENDENT CHILDREN’S LAWYER: Ms D Garwell

FILE NUMBER: AYC 255 of 2013

DATE DELIVERED: 31 May 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 28 and 29 May 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

COUNSEL FOR THE RESPONDENT: Ms R Dart

SOLICITOR FOR THE RESPONDENT: Rama Myers Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Davis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That all previous parenting orders be discharged.

2. That the mother have sole parental responsibility for the children, X, born … 2005, Y, born … 2007 and Z, born … 2010 (“the children”).

3. That the children live with the mother.

4. That the children spend no time with the father.

5. Pursuant to section 68B of the Family Law Act 1975 the father shall be and is hereby restrained and injuncted from:

   (a)Approaching within 250 metres of the children or any of them;

   (b)Approaching within 250 metres of the mother;

   (c)Attending at, approaching or being on the premises of the school attended by the children or any of them;

   (d)Attending at, or approaching any premises where the children may from time to time reside;

   (e)Contacting the children or any of them, either directly or through a 3rd party by any means whatsoever, including but not limited to communication by way of email and/or social media;

   (f)Attending at the mother’s workplace;

   (g)Publishing, broadcasting or otherwise posting in any public forum including on the internet or any social media website any information or comment concerning:

   (i)The mother;

   (ii)The mother’s business, Company N Family Trust trading as Company O previously known as Company N;

   (iii)The children who are the subject of these proceedings;

   (iv)These proceedings;

   (v)Any document filed or otherwise prepared in connection with these proceedings; and/or

   (vi)Any allegation raised in these proceedings.

   (h)Doing any act or thing to cause any loss or detriment to the mother’s business Company N Family Trust trading as Company O previously known as Company N.

6. That the injunctions provided for in Order (5) are made for the personal protection of the children and the mother.

7. That pursuant to section 68C, if a police officer believes on reasonable grounds that the Father has breached any of the injunctions provided for in Order (5) by:

   (a)Causing, or threatening to cause, bodily harm to the mother or any of the children; or

   (b)Harassing, molesting or stalking the mother or the children

   the police officer may arrest the Father without warrant.

8. That pursuant to section 65Y, the mother shall be permitted to travel to and from the Commonwealth of Australia with the children X, born … 2005, Y, born … 2007 and Z, born … 2010, at her sole discretion.

9. It is noted that it is the intention of the above Orders and in particular the order for sole parental responsibility, to invest the mother with sole parental responsibility for the children X, born … 2005, Y, born … 2007 and Z, born … 2010, for all intents and purposes, including pursuant to section 11 of the Australian Passports Act 2005 (Cth) and so as to authorise the mother to make an application for the issue of an Australian passport or travel document without the necessity of consent or signature or any document by the father.

10. That within a period of seven days from the delivery of this judgment, the Independent Children’s Lawyer, with the assistance of the Family Consultant of the Albury Registry, is requested to communicate the outcome of these proceedings to the children. 

11. That a copy of these Orders and the Reasons for Judgment be made available for collection by the father at the Albury Registry.

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 Mitchell & Mitchell 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 CANBERRA

FILE NUMBER: AYC 255 of 2013

Mr Mitchell

Applicant

And

Ms Mitchell

Respondent

REASONS FOR JUDGMENT

1. The parties to this matter are Mr Mitchell, the Applicant Father, and Ms Mitchell, the Respondent Mother.  The parties commenced a relationship in 2001 and separated on a final basis in 2012.  There are three children of the relationship: X, born in 2005 (currently aged 14), Y, born in 2007 (currently aged 12), and Z, born in 2010 (currently aged nine) (“the children”). 

2. These current proceedings concern the parental responsibility and living arrangements of the children.  These issues had been previously resolved on a final basis by Judge Harman on 14 November 2014.

3. At the commencement of the trial on 28 May 2019, there were both property and parenting matters on foot.  An application was made by the Mother to have both sets of proceedings proceed on an undefended basis.  The Mother was successful in this application insofar as it related to the property proceedings, but not in relation to the children’s proceedings.

4. After delivering judgment in relation to the application have the matter dealt with on undefended basis, the proceedings were stood down for a morning tea adjournment.  The Father, who was appearing by video link from the Albury Registry, did not return following morning break, and the property proceedings were then dealt with to finality.

5. The Father, who had filed no material for the final hearing, made no further appearance during the hearing of the matter and the children’s proceedings continued in his absence.

What the parties sought

1. The Mother sought that she have sole parental responsibility for the children and that they live with her.

2. The Mother sought that the children spend no time with the Father.

3. The Mother sought a suite of injunctions against the Father restraining him in relation to both herself and the Children.

4. The Mother sought provisions to be permitted to travel overseas with the children without the permission of the Father.

5. The Mother sought a costs order.

6. The Independent children’s lawyer supported the Mother’s position, but also sought orders to facilitate the outcome of these proceedings being communicated to the children, initially by the independent children’s lawyer with the assistance of the Family Consultant in the Albury Registry.  

7. Although he had not filed a response in relation to children’s matters, the Father advised at the commencement of the hearing that he sought orders for an equal sharing of time.  As noted above, the Father did not continue to appear in order to press this result.

Material relied upon

1. The Mother relied upon the following:

   a)Her primary Affidavit filed 14 March 2019;

   b)The Single Expert’s Report of Ms I dated 7 April 2017; and

   c)The limited issues report prepared by Ms AA on 17 May 2019.

2. The Father relied upon no material.

3. Ms I was the only witness was cross-examined in the proceedings.

Approach to this case

1. The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of each of the children.  That is to be determined on consideration of the matters set out at s 60CC of the Act, but in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA. 

2. In order to determine what is in a child’s best interests, the court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC.  The two primary considerations focus, respectively, upon the benefit to the children of a meaningful relationship with both parents, and the need to protect the children from harm from being subjected to abuse, neglect or family violence.  Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.

3. In Marsden & Winch (No 3) Warnick and Thackray JJ observed in relation to both the prominence of, and significance of the primary considerations, the following:[1]

   It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case.  Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions.  That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.

   [1]Marsden & Winch (No 3) (2007) FamCA 1364 at [77].

4. They further observed that a primary judge is:[2]

   of course obliged to place particular emphasis on the “primary considerations”.  This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.

   [2] Ibid at [78].

5. Without disregarding the balance of the considerations, those that dominate and are determinative in this case are the primary considerations, and, from the additional considerations, primarily: the views of the children; the characteristics of the children; the nature of their relationships with their parents; and the capacity of the parents to provide for the needs of the children.  The relevant additional considerations, setting aside the children’s views, are in large part subsumed within a consideration of the primary considerations.

6. While other additional considerations are also applicable, (such as whether there has been family violence, family violence orders, and attitudes to the responsibilities of parenthood), these too are either subsumed or overwhelmed by the primary and the identified additional considerations.

7. In this matter there is a long and serious history of incidents of family violence and abuse involving the Father.  These bear heavily on both the need for the protection of the children, and also on assessing what benefit the children obtain from a meaningful relationship with the Father.

8. It is not necessary to recite all of the incidents occurring since the final judgment, as a number of the incidents prove to be determinative in this case.  It is sufficient to identify the context provided by the previous final judgment of Judge Harman in 2014, and then to examine the pivotal incidents that have occurred since that time.  Those pivotal incidents indicate that the Father presents as an unacceptable risk of harm to the children, that he is lacking in parental capacity, that by virtue of these, the benefits to the children of a meaningful relationship with him are at best minimal, and that there are poor prospects for positive change by the Father.  They also mean that limited weight can be given to the views, insofar as they were expressed, that the children desire relationship with the Father.  Those pivotal incidents mean that, without descending to analysis of the balance of the conduct by the Father, this is a case in which the best interests of the three children are met by them having no further contact with him, and by the children, and the Mother, being protected by injunctions.

Previous final judgment

1. By way of judgment delivered on 14 November 2014, Judge Harman made final orders in this matter.  In summary, Judge Harman's orders provided for the Mother to have sole parental responsibility and for the children to live with the Mother and to spend time with the Father on each alternate weekend.  Judge Harman also made an order setting out several preconditions on the Father's ability to commence future proceedings.  For example, the Father must provide evidence that he successfully attended anger management and parenting programs.

2. In his reasons, Judge Harman made several findings relevant to the current proceedings.  Of particular importance are Judge Harman's findings of family violence.  Judge Harman found that the children had been abused by the Father.  Judge Harman described that the Father had conceded "frankly and candidly, that his behaviours towards these children have been abusive and have damaged them."[3]  Judge Harman stated:[4]

   "These children have been exposed to family violence.  On the basis of the section 4AB definition Ms Mitchell has established coercive and controlling family violence through physical violence towards her, repeated derogatory taunts and denigration, restrictions upon relationships with family members (indeed restrictions upon the children's relationship with their mother) and the active steps taken by Mr Mitchell to enlist these children as his allies or co-conspirators in furthering his interests and meeting his needs."

   [3] At [19] and [21].

   [4] At [344].

Pivotal incidents since the final judgment

1. Since the final judgment of Judge Harman, a number of incidents have occurred that may be identified as pivotal to the determination of the current parenting dispute.  They are set out below.

2. In late 2015, or early 2016 X told the Mother, after spending time with the Father, that the Father had said to him (regarding the Mother) “let me know when you’re ready for me to kill her and I will then we can all stamp on her grave.”  The Mother describes X as being “very stressed and anxious” as he told her about this, clapping his hands and pulling at his hair.  X also reported to the Mother that the Father had made similar comments about the principal at X’s school.

3. On Easter Sunday in 2016, at the Mother’s suggestion, she took the children to see the paternal grandmother (Ms J Mitchell) for lunch.  Unexpectedly the Father was there.  In the presence of the children he called the Mother a “disgusting piece of shit” and told her that he hated her.  He spat on her car.

4. In about August 2016 X was repeating to the Mother accusations that the Father had made about the Mother having taken his money.  The children also reported to the Mother that the Father was smoking fake (synthetic) marijuana, and that he had taken them to buy chips from a takeaway that was next to the shop that sold the fake marijuana, at which point the Father then purchased the fake marijuana.

5. Around 16 August 2016 the Mother was told by Mr BB, the psychologist then working with Y, that she had told him that the Father had grabbed her by the back of her neck and pushed her after she had said that she want to stay with her grandmother rather than with him.

6. On an unidentified date but presumably at about this time, the Father stuffed Y’s mouth with a soft toy so that she could not breathe.  Y also described this incident to Mr BB.  As noted later, the Father acknowledged to the Single Expert that the incident with the stuffed toy was “absolutely horrible” and that he still feels “bad about it”.[5]  He claimed that he and Y had both “got over it” and had both apologised to each other.[6]  The Father attributed the argument to their “strong personalities” and likened it to a “show down” which he “had to win”.[7]  He also held a pillow over her head, and locked her in her bedroom without dinner overnight, as described later.

   [5] Single Expert Report dated 7 April 2017 [102].

   [6] Single Expert Report dated 7 April 2017 [102].

   [7] Single Expert Report dated 7 April 2017 [102].

7. Mr BB reported to the Mother that he had spoken to the Father and the Father had ranted, expressing the idea that the Mother had “all the money”, and that the Mother had destroyed him. 

8. At around this time the school counsellor told the Mother that Y had told her about the Father smoking “green stuff” and falling asleep before the children did.

9. During this time the parties had been engaged in further litigation about the children, which culminated in interim orders being made by Judge Burchardt on 27 September 2016 that required the Father to be supervised by Ms J Mitchell, the paternal grandmother, and for which purpose Ms J Mitchell was required to give an undertaking.  She has not done so, and the Father has not spent time with the children, other than for the purposes of assessment since these orders were made.

10. On 6 January 2017 Mother was informed by the New South Wales police that the Father had contacted the offices of the Local MP.  The details of that attendance by the Father are contained at Exhibit 10 of Exhibit M2 being the police records concerning the Father’s attendance.  Relevantly, the Father called Local MP’s office and made threats to kill the Mother.  He said that he received correspondence from the child support agency, warning that his wages may be garnished.  He was advised by her office that if this occurred he should contact them.  His response was “no, I’ll get in my car with a kitchen knife, go over to her place and cut her fucking throat.”  When he was informed that this threat would be reported to the police he replied “good tell them, they’ll feel sorry for me.”  The police attended upon the Father who denied making direct threats but admitted making the threats that have been recorded saying that it was his intention to obtain a favourable response from the police.  He denied an intention to carry out the threat.

11. On 15 February 2017 a final intervention order was made against the Father in Magistrates Court in C Town.

12. In November 2017 the Father assaulted his Father and was charged and convicted.  When the police attended to arrest him, the Father initially refused to open the door to the police and was non-compliant.  He was initially observed with a large kitchen knife sheathed in his belt with an exposed blade.  He subsequently removed this knife, opened the door and was arrested.

13. On 19 December 2017 orders were made in this court restraining the Father from publishing any comment on a public forum, including on the Internet or any social media website of any information or comment concerning the Mother, her business, the children or the proceedings.

14. On 13 February 2018 and in the months that followed the Father has repeatedly breached this injunction.  This includes examples of him asking a third party to advise of the whereabouts of the children.  It also includes an example of the Father posting in a manner to suggest X contact the Father. 

15. In April 2018 Ms J Mitchell told the Mother that she and the paternal grandfather had obtained an apprehended violence order against the Father.

1. The Father was convicted in July 2018 by the C Town Court of

   a)19 September 2017 - contravening family violence intervention order;

   b)17 February 2018 - contravening family violence intervention order;

   c)17 April 2018 - contravening family violence intervention order; and

   d)23 June to 1 July 2018  - contravening family violence intervention order and committing an indictable offence while on bail

2. The consequence of these convictions was a community correction order which required the Father to be supervised and undergo treatment and rehabilitation directed to assessment of and treatment for his mental health, and to participate in offender behaviour programs.  The subpoenaed material produced by the Victorian Department of Community Corrections detailed interactions between the Father and the case manager.  Although the Father attended as required, he was uncooperative and non-compliant.  On one occasion, he indicated to the case manager that he was not remorseful in respect of his offences stating “I have no problems with reoffending, other than ending up in jail.”  He also told the case manager that he had been reoffending by means of writing about the Mother on social media but that he was doing it in a manner which meant that he would not get caught.  He expressed ongoing anger and hostility towards the Mother through his interactions with the case manager.  This included repeated ranting about the Mother being a child stealer and homosexual (the Mother had entered into a same sex relationship following the end of the marriage).

3. The Father was also recorded as making comments claiming to have been recruited by a foreign government to be a political agitator against the Australian government.  During the hearing, the Single Expert was asked about these comments.  She indicated that they may have been delusional and may be indicative of mental health issues.  It is not possible to conclude confidently however that this is the case

4. The more important matter that the Single Expert took from these records is that they indicated an ongoing and pervasive attitude of hostility and anger held by the Father towards the Mother.  His attitude to the Mother has not abated following the finalisation of proceedings by Judge Harman.  If anything, his animosity towards the Mother has strengthened.

The expert’s reports

1. The children and the parties were interviewed, observed and assessed by the Single Expert, Ms I, for her report prepared on 7 April 2017.

2. The Single Expert observed the time between the Father and the children to be enjoyable.  She also observed that during this time the children were trying to impress the Father and the Father was domineering towards the children.  She further observed that the time between the Father and children ended with the Father saying to X “don’t worry we will get all this crap sorted”.

3. Ms I expressed concern that X had been influenced by his Father.  X expressed to her that he did not want the current arrangement (of not seeing his Father) to continue, in that he missed his Father.  Rather, he hoped for a 50-50 arrangement.  The Mother described to the Single Expert that X had been angry at the Mother because he was not able to see his Father.

4. X described his Father as both smart and strong, being qualities that he wanted for himself.  He described his Mother as helpful, and that she knows what to do, also being qualities that he wanted.  He described his Father as “nice” and said that he loved him and that he was the same as the Mother.

5. X did, however, express some reservations about his Father.  He said that he did not like it when his Father was smoking the cannabis “stuff”.  He said he did not want to swear like his Father.

6. During the assessment X disclosed that the Father used to tell him not to comply with his Mother’s requests.  In the more recent past he had instructed X to nag his Mother so that the Mother would become stressed.

7. Despite X’s benign description of his Father to the Single Expert, the Single Expert noted that X had told the previous psychologist, Mr BB, that the Father had spoken to him about he and the Father stamping on the Mother’s grave.

8. The Single Expert noted that the Mother’s then partner reported that X had told her that the Father had threatened to kill both the Mother and the school principal.

9. Y described to the Single Expert that she was scared of her Father 99 per cent of the time.  The one per cent of time that she was happy with her Father she was happy because she would soon be with her Mother.  Y was afraid that the Father would hurt her and described the Father said really, really rude things about the Mother including using the “C word” and calling her a “f wit”.  Y said that the Father had also called the Mother a mole, ugly and stupid.

10. The Single Expert noted that Y had described to a previous counsellor that she felt unsafe with her Father.

11. Y also described that the Father had “shoved a soft toy down [her] throat” so that she could not breathe. 

12. The Father was asked about this by the Single Expert.  As noted above, he said that it was an absolutely horrible thing to do and that he felt “bad about it”.  He however claimed that both he and Y had got over it, and that each had apologised to the other.  He described that he had undertaken the act as a matter of discipline.  He also claimed that it was an event that was blown out of proportion and that rehashing it with Y would mean that she would need to have counselling.  The cause of that counselling, rather than being him and his actions, was attributed by him to “the one who lied and is a lesbian”.

13. The Single Expert considered this event to be an example of the Father’s inability to manage his anger or to control his impulses even towards the children.

14. Y said that the Father smacked her and shouted at her.  She had also described that on one occasion because of what Y had told people at court, the Father locked her in her bedroom overnight without dinner and without lights.  Y was afraid that she would not be let out of the room.  When the Father let her out of the room the next morning, he refused to talk to her.

15. Z described to the Single Expert that the Father does not like the Mother, because she stole money.  He also told the Single Expert that the Father uses words such as “fuck” and “bitch” in relation to the Mother.  However, Z said that if he was in hospital or had a secret he would want speak to Father about it because Father buys him whatever he wants, whereas the Mother says no.

16. The Father accepted to the Single Expert that he was still smoking the fake cannabis product.  He accepted that he had done so in front of the children.  Although briefly conceding that it was wrong to do so, the Father then claimed that he had probably done so in order that the children would not take up the consumption of such a substance.  That is, he thought that his smoking of it would turn them off in the way that his Father’s consumption of alcohol had, allegedly, turned him off the consumption of alcohol.  He said that this may have been his subconscious motive for consuming the drugs in front of the children.  I do not accept this explanation as anything other than an attempt to minimise his poor parenting.  He did, however, accept that perhaps his conduct in smoking substance in front of them had made them feel scared, nervous and anxious.

17. The Single Expert described the Father as presenting during the interview process with unbridled anger and contempt regarding Mother.  She described him as using derogatory comments towards the Mother, pejorative names and ranting.  For example he said “the bitch is evil personified,” and that he had married her because she was “naïve retard” and that she was a “criminal piece of shit.”  He accepted that he previously described her as a “brain dead lesbian piece of shit.”  The Single Expert recorded the Father’s chuckling when he acknowledged having described the Mother in this way because he saw it as being in some way true.

18. The Father told the Single Expert that he had no intention to comply with the 2014 orders made by Judge Harman directed towards the treatment of his mental health and behaviour more broadly.

19. The second process of interviewing the children occurred through a limited issues report, concentrating on the views expressed by the children, prepared by Family Consultant, Ms AA on 17 May 2019. 

20. Ms AA noted that X very clearly wanted the Judge to know that he wants to see his Father.  He loves his Father and thinks that the worst outcome would be not to see him at all.  X noted that his Father was his dad who he had previously enjoyed hanging out with and doing stuff with.  X thought that the reasons for him not seeing his Father were not good enough.  He observed that his Father used to smoke stuff (past tense) and that he yelled at them although that was over quickly, but that he never hurt or hit them.  Despite this observation, X was aware of the incident when the Father put a stuffed toy into Y’s mouth in response to her screaming and that he placed a pillow over her head.  X described this as his Father “calming her down”.

21. X believes that his Father is not mentally well, but also thought that his Father was not always like this.  He thought that his Father is not a bad person and that the bad stuff had happened a long time ago.  X said that he was not scared of his Father but wishes that his Father would do the things that he needs to do to allow the children to spend time with him.

22. X also seemed aware that his Father was making posts on social media, which he should not be doing.  He knew that his Father had said bad things about his Mother but thought that this had stopped.

23. The Family Consultant noted that X seemed to be content living with his Mother. 

24. Y was worried that the Court might require her to live with her Father.  She told the Family Consultant that she would like to see him monthly, with the paternal grandmother but did not want to see him if she did not wish to.  She thought that her Father was lonely and also said that he was her dad and that she would like to have a dad.  By the same token Y said that she would be fine if she did not see her Father.  Y recounted again the incident where the Father had stuffed a toy into her mouth and placed a pillow on her face.  She said that she could not breathe.  She recalled that X had said to her that she had deserved it.

25. Y also recalled her Father saying that he would kill her Mother and also that he would kill her school principal.  She was worried that he might hurt her Mother or her grandmother.

26. Y also recalled the incident where she was locked overnight in her room.

27. Z told the Family Consultant that he wanted the Judge to work it out, being the time that he spent with his parents.  He wished that his Father was nicer and then he would be able to go to his house more often.  He wanted to see his Father if he was nicer but not if his Father was angry.  He thought that he could see his Father monthly and remembered that he felt happy when he saw his Father when he was nice.  He recalled that his Father would buy him stuff.  Z was observed to love his Father.

28. Z was aware of the incident involving Y and appeared to connect this to his Father's anger.  He said that the worst thing that would happen would be if the Father did the same to him as what he had done to Y.

Risk assessment

1. Prior to giving oral evidence, the Single Expert was provided with information from New South Wales police and the Victorian Corrections Department.  During her oral evidence, the Single Expert identified a number of matters that she said placed the Father at a heightened risk of homicide or filicide.  The particular matters she identified included:

   a)Obsessive behaviour (apparently exemplified in his angry fixation upon the Mother) as shown through breaches of violence orders;

   b)An escalation in violence (apparently seen in his assault upon his own Father and upon Y), threats to kill (including a specific threat to slit the Mother’s throat);

   c)The Father’s current unemployment;

   d)Indicators that his mental health is at risk;

   e)The risk of his substance abuse and a history of domestic violence (as seen in his control of the Mother during the relationship). 

2. Applying her expertise and referencing a study conducted by Jaffe and Campbell in 2012 on indicia of homicidal risk the Single Expert said that these matters indicated that the risk posed by the Father is heightened.

3. These risks go beyond the risk identified by the Single Expert in her written report.  At that stage she identified a risk flowing from a history of the Father being unable to identify the children’s needs, or to separate the children’s needs from his own, or to subjugate his own needs to theirs, an inability to manage his own emotions, his exposure of the children to family violence and his attempt to infect the children with his contempt for the Mother along with the recent threats to kill the Mother.  Even at that stage the Single Expert’s opinion was that the psychological and physical risk of harm then presented by the Father could not be sufficiently protected against even by a supervised regime of time with the children.

Discussion

1. In parenting proceedings, there is a presumption in favour of equally sharing parental responsibility for the children.  The presumption, set out at s 61DA, is rendered inapplicable in cases such as this where there are reasonable grounds to believe that a parent has engaged in abuse of the child or in family violence.

2. The Father’s conduct precludes the sharing of parental responsibility in this case.  The violence toward Y, the threats to the Mother, the ongoing anger and hostility toward the Mother and undermining of the Mother to the children all speak to an abject lack of parental capacity, such as to mean that he lacks the capacity to exercise parental responsibility.

3. The pivotal incidents, outlined above, point to a lack of benefit to the children of meaningful relationship with the Father.  While the children were observed to have an enjoyable time with him, and to desire relationship with him, which may point to some benefit of meaningful relationship, what accompanies that relationship is of a poisonous character.  Without it being necessary to rank the incidents, perhaps the most salient example can be seen in the Father saying to X “let me know when you’re ready for me to kill her and I will, then we can all stamp on her grave.”  To threaten the killing of the Mother to a child, to seek to involve the child in that process in encouraging him to advocate for her death, and in representing to him that it would be a thing for him to take joy in is serious psychological abuse of a child.  Before even turning to the need to protect the children from such abuse, it should be understood that such conduct corrodes any benefit that might otherwise accrue from meaningful relationship such that there cannot be found to be any net benefit of such a relationship.

4. On the question of risk, the Single Expert’s opinion as to heightened risk of homicide or filicide is persuasive.  Even in the absence of such an opinion, the repeated threats to kill the Mother themselves, even if not acted upon, pose a risk of serious psychological harm to the children.  If acted upon such would constitute serious harm to the children through the loss of their Mother, at the hands of their Father.

5. If that is combined with the incident, which the Father justified as discipline, of stuffing a toy into Y’s mouth and placing a pillow over her head, then the Father should also be seen as a risk of serious physical harm to the children.  The obstruction of a person’s airways is a serious instance of assault.

6. The lethal threats, and the serious assault upon Y, even without more, indicate that there is a strong need to protect the children as required by s 60CC(2)(b).

7. Pointing in the other direction, albeit to a limited extent are the views of the children.  To the extent that Y and Z’s views might be thought to support some relationship with the Father, they should not be given weight, given that they are closely accompanied by fear of the Father.

8. X’s more strongly held views have the ability to carry greater weight.  He is older and clearly expresses a lack of fear and desire to see his Father.  However, even the expression of those matters by X reveals the serious lack of parenting capacity of the Father, when X’s perspective on the Father’s assault upon Y is considered.  X’s support of the Father demonstrates the Father’s normalisation of his violence.  Inculcating X with such a perspective, or the opportunity to continue to do so, would be highly detrimental to X’s development into a strong caring man with the capacity to engage in equal relationships with others.

9. Even if X’s views were given full weight, they are still seriously outweighed by the dangers posed by the Father.

10. The balance in this case supports the position sought by the Mother.

11. The Father poses such a serious risk, and displays such a lack in parental capacity as to warrant him spending no time with the children.  While often some supervised time can be provided for to sustain some relationship, I agree with the view of the Single Expert that in this case supervision is insufficient to protect the children.  The Father has not sought supervision, and the evidence did not establish its availability.  As identified by the Single Expert, it cannot be thought that the Father could contain himself even with supervision.  The lethality inherent to his threats further speaks against supervision as being sufficient.

12. The proper resolution, in the best interests of the children, is for no time with the Father, and to provide protection for the children and the Mother by means of injunction, as sought by the Mother.

13. The injunctions sought by the Mother are broad.  Their breadth is necessitated by the breadth of the conduct of the Father against the Mother.  For example, the injunctions that relate to publishing matters about the Mother’s business are necessitated by the Father previously using that as a means to hurt the Mother.  By way of further example, it is necessary to prevent the Father from even posting about the children as the tendered messages show that he has posted about them either to track them down or as a potential lure to have them contact him.  The seriousness of the risk posed by the Father necessitates orders that will expose him to arrest should he approach, contact or attend at premises related to the children or the Mother, or otherwise breach the injunctions. 

14. I also accept the proposal by the Independent Children’s Lawyer that the children be told of the judgment, and to the extent necessary, of the reasons, by the Independent Children’s Lawyer, with the assistance of a Family Consultant.  It is important that they understand that it is neither the Mother’s doing, nor theirs, that has resulted in them not seeing the Father.  It is the Father’s responsibility.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 31 May 2019.

Associate: 

Date:  31 May 2019