Newell & Newell

[2021] FCCA 1609

FEDERAL CIRCUIT COURT OF AUSTRALIA

Newell & Newell [2021] FCCA 1609

File number(s):	NCC 3904 of 2019
Judgment of:	JUDGE TERRY
Date of judgment:	25 June 2021
Catchwords:	FAMILY LAW – Parenting – Application by the father to spend time with his children aged 16, 9, 7 & 5 – where the mother proposes that the children live with her, that the three younger children spend no time with the father and that no orders are made about the oldest child – where the three youngest children have not spend time with the father for two years – where the father has a long history of drug use, criminality and perpetration of family violence – where the mother has also had issues with drug use and the children have had a disrupted life – where the mother is trying hard to give the children a better life – where re-introducing the father into the lives of the younger children would not add value for the children – younger children to live with the mother and spend no time and have no communication with the father – mother permitted to relocate if she wishes.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60CC, 61DA
Cases cited:	Mazorski & Albright (2008) 37 FamLR 518
Number of paragraphs:	177
Date of last submission/s:	25 June 2021
Date of hearing:	24 & 25 June 2021
Place:	Armidale
Counsel for the Applicant:	Mr Mueller
Solicitor for the Applicant:	A W Simpson & Co
Counsel for the Respondent:	Mr Allen
Solicitor for the Respondent:	Lyon Legal Services
Solicitor for the Independent Children's Lawyer:	Adams & Associates

ORDERS

NCC 3904 of 2019

BETWEEN:

MR NEWELL

Applicant

AND:

MS NEWELL

Respondent

ORDER MADE BY:	JUDGE TERRY
DATE OF ORDER:	25 JUNE 2021

THE COURT ORDERS THAT:

1.All existing orders concerning X born in 2005 (“X”) are discharged.

2.The children W born in 2011, Y born in 2014 and Z born in 2015 (“the children”) shall live with the mother.

3.The mother shall have sole parental responsibility for the children.

4.The father shall spend no time with and have no communication with the children.

5.Pursuant to section 68B of the Family Law Act 1975 for the protection of the children the father is restrained and an injunction is granted restraining him from:

(a)removing the children from any school, day care centre, extra-curricular activity or from the care of any person in whose care the mother has placed the children.

(b)attending within 200 metres of the children;

(c)making any attempt to communicate with the children;

(d)once the mother leaves Town B from commencing to live in any residence closer than 1 kilometre from the place where the mother is living.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Newell & Newell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE TERRY

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter involves an application for parenting orders in respect of X, 16, W, 9, Y, 7 and Z, 5.

3. The father is the applicant, and in his filed documents he is seeking orders that the parties have equal shared parental responsibility for the children, that X live in a week-about arrangement and that the three younger children spend time with him on alternate weekends and for half of the school holidays.

4. He made it clear during the hearing however that he would be prepared to start with supervised time with the three younger children if necessary, and it certainly would be necessary given their ages and the fact that they have not seen their father for some considerable time.

5. In her filed documents the mother was seeking orders that she have sole parental responsibility for the children, that the three younger children live with her and spend no time with and have no communication with the father and that X to spend time with the father in accordance with his wishes. The mother wants to move from Town B where she is currently living to a gated community somewhere in southern Queensland, and the purpose of that is to try and keep the father at bay.

6. At the end of the hearing however the mother adopted the orders proposed by the Independent Children’s Lawyer, which were that all existing orders about X be discharged and that the mother have sole parental responsibility for the three younger children and that they live with her and spend no time with the father.

7. That order would allow the mother to relocate from Town B if she wished. There is no reference to communication in the Minute handed up by the Independent Children’s Lawyer but given the issues which led to her proposing that order, logic would suggest that the order should be for no time and no communication.

8. Toward the end of their relationship the parties had a number of separations and one of the three younger children, Z, may or may not be the father’s child. The mother told the father at some point that she had some doubts about it. The father has decided that she is probably not his biological child but there has been no paternity testing and the father is the only person who has ever been a father in Z’s life. Both parties treated Z as if she were part of a group with the other children, and the Court can make a parenting order about Z in favour of the father even if she is not his biological child.

   The evidence

9. The evidence in the matter was given by the father and the mother and they were both cross-examined.

10. A Child Dispute Conference memorandum was prepared by Dr C, a family consultant employed by the Court. She was not required for cross-examination.

11. No family report has ever been ordered in this matter and that was the result of two things. One was that Dr C did not consider there would be any benefit to the children in them being interviewed, and the other was that this is a risk of harm case, and usually in those matters the Court has to hear evidence about the allegations and make a decision about the risk of harm issues before it can do much, and family reports are less useful in that scenario than in others.

12. The father’s counsel submitted this morning that the father was a witness of credit. I do not accept that. He was a most unreliable witness. During cross-examination he sometimes contradicted his own earlier answers, for example when he was asked about the first occasion a knife was found in his car. He said that it was a pocket knife which was in the glovebox. The police records referred to it as a curved knife with a hole in it to be held. When that was put to the father he agreed that was the case.

13. The father said in his affidavit that he had never used drugs before he started using methamphetamine in 2017. He has a very early conviction for possessing Indian hemp so that is unlikely to be true. He also has numerous convictions for offences of dishonesty, which does not inspire confidence.

14. Yet another issue about the father’s credit was that his counsel did not seek to cross-examine the family consultant, and from the information in the CDC memo the father gave inaccurate information to her about his criminal convictions.

15. The mother was a reliable witness. She has in her own way let the children down during their lives, but she did not make any attempt to justify that or to hide what had happened in the past. She made admissions about occasions when she had reconciled with the father or agreed to go on a holiday with him. I considered her forthright in giving her evidence and I was satisfied she was a reliable witness.

    Background

16. The mother and father met and formed a relationship in 2002, when the mother was about 20 and the father 32.

17. They went on to have four children, X born in 2005, W born in 2011, Z born in 2015 and Y born in 2014.

18. Both parties have older children. The father has three children, aged 33, 31 and 36 and the mother has two children, aged 24 and 19, but they are not relevant to the issues I have to decide.

19. The parties had an extremely turbulent relationship and the children must have experienced a good deal of distress and misery at times. There is reference in the material to occasions when they were found by police or welfare workers to be cold, hungry and not properly supervised. I am also satisfied, for reasons I will give later, that they witnessed family violence between the mother and the father. They were interviewed by workers from the Department of Child Safety in Queensland and their education was impacted on. When X came to Town B he had not attended school since he was in year 5, and he is still struggling to catch up. The children have not had a particularly good upbringing.

20. It was the mother’s case that there was family violence in the relationship from very early on. The father did not admit in his affidavit that he perpetrated family violence in the early part of the relationship but he made some admissions in the witness box which contradicted other evidence he had given. There was also drug use from early on. The mother was using cannabis when the relationship began. The father gave the impression that his drug use did not start until much later but during cross-examination he said that he used drugs with the mother after the relationship commenced because she was in a younger crowd who were using drugs.

21. The parties moved around quite a bit and that was an issue for X. He mentioned when he was interviewed by Child Safety at one stage that he did not like all the moves. There were police call-outs to the home and the Department of Child Safety in Queensland required the parties to enter into two separate safety plans.

22. The father was charged with drug offences during the relationship and toward the end of it he was also charged with breaches of a Protection Order made for the mother’s protection. In 2018 the mother was charged with possession of an ice pipe.

23. The date of final separation is somewhat unclear. The father said that the parties finally separated in October 2018. However they had earlier separations and their relationship prior to October 2018 seems to have been on and off for many years. The mother said that the parties separated as early as 2013 because she was trying to escape family violence, and she said that parties were in an off time when both Y and Z were born. She said that sometimes the parties lived near each other but not together.

24. In 2016 the father told the mother that he had been diagnosed with a terminal illness. She felt sorry for him and agreed to be his carer. The parties commenced living together again and made some plans to travel together, although whether that ever actually happened is unclear.

25. In December 2017 after an argument between the parties a Protection Order was made for the mother’s protection. It seems to have been the first time that the matter had got that far. It did not prevent contact between the mother and the father but there were further issues between them in March 2018 and a no-contact Protection Order was made, and in November 2018 the father was incarcerated for a month arising out of breaches of that order.

26. In or about October 2018, as far as I can be sure of the timeline and it is always vaguely possible I have got some of this wrong given all the moves, the mother moved to Town D in New South Wales. Thereafter there is no doubt the parties were separated, although they had subsequently had a couple of very brief reconciliations.

27. In January 2019 the mother moved to Town B and in June 2019 the father moved there as well.

28. The problems between the parties continued in New South Wales. An Apprehended Domestic Violence Order was made to protect the mother in July 2019. In about September 2019 she agreed to go on a holiday with the father to the Region E but in the brief time they were there a blow up happened between the parties. The mother said that this it was because the father had an argument with X. She said that she came back to Town B as soon as she had the money to do so. That was the last occasion the three younger children spent any time with the father.

29. In December 2019 the father filed an application for parenting orders. Following that he was charged with some further breaches of the ADVO. In February 2020 he was convicted of further breaches and an ADVO was made to protect the mother and the three younger children from the father for five years. It does not expire until 2025.

30. Given the issues in the case no interim parenting orders were made after the father filed his application. A Child Dispute Conference took place and an Independent Children’s Lawyer was appointed. A decision was made not to order a family report and in due course the matter was listed for a final hearing.

31. It is regrettable it has taken so long for the matter to be heard. It was listed for hearing late last year but it could not be reached, and I had it listed before me only a few weeks ago and I could not reach it then either. However I have heard it over the last two days.

    Current circumstances

32. The father has been living in Town B since June 2019. He was initially living in a hotel but at some point he moved into a house around the corner from the mother. He said that it was 10 houses from her, counting the houses, but it is just around the corner. The mother is extremely upset and worried by that. The father does not concede that she should be.

33. There have also been some developments in relation to X, the oldest child. He is 16 and is seven years older than the next youngest child. He is almost a young adult. He has been spending some time with the father since the father has been living in Town B. He has effectively helped himself to a week-about arrangement with the parties.

    The father’s case

34. The father admitted perpetrating some family violence, although that really only emerged in the witness box, and he also admitted past drug use but he said he had ceased using drugs.

35. The father denied that his action in moving around the corner from the mother was an act of family violence. He denied her allegations that he was stalking and harassing her in Town B and said that all he wanted to do was see his three younger children.

36. The father said that the children would benefit from having a relationship with him. He opposed the mother leaving Town B with the children and presumably that was for two reasons. First, it would make it difficult for him to spend time with them but second, his counsel submitted that the mother had historically had a lot of issues herself and that it would not be in the children’s best interests to just let her wander off where nobody could see her and nobody knew what was going on.

37. The father also raised the possibility that X might refuse to go.

    The mother’s case

38. The mother’s case was that there had been a very lengthy history of domestic violence and harassment and that the father just would not leave her alone. She said she was frightened by the fact that he was living just around the corner from her. She said that she was still affected by having experienced domestic violence. She had trouble sleeping and had flashbacks, and she felt that the best thing for her and the children was to relocate from Town B to a community where there would be some security on the gate which would keep the father at bay to an extent.

39. The mother felt that there would be no benefit to the children in them being reintroduced to the father and she certainly felt, from what she said in the witness box, that X might go with her willingly if she left Town B.

    The children’s best interests

40. Any orders I make about the children must be determined bearing their best interests in mind, not the parents best interests, and to determine their best interests I must have regard to the matters in section 60CC (2) and (3) of the Family Law Act.

41. There are primary considerations in section 60CC(2) and additional considerations in section 60CC(3). As I often do I am going to start with the additional considerations, and as I also often do I am going to start by ruling out some that do not help me.

42. Child support was not raised as an issue in this case. Both parents are currently on benefits. A consideration of the extent to which each parent has taken or failed to take the opportunity to spend time with the children, make decisions about them or communicate with them will not help me. Discussing the children’s maturity, sex and background as a separate consideration will not help me and considering whether it is preferable to make the order least likely to lead to further proceedings will not help me. This case is not about trying to prevent further proceedings; it is about trying to give the children a good future.

43. The first additional consideration that does assist me is the views of the children and the weight to be given to their views.

44. I do not have a family report but I do have an Independent Children’s Lawyer. She has recently spoken to the children and a document setting out the results of that was tendered in the proceedings.

45. X told the Independent Children’s Lawyer that he planned to continue his current arrangement of spending time with both of his parents. He did not seem to be aware of the mother’s plan to move to Queensland and said he did not know what he would do if the mother moved.

46. W told the Independent Children’s Lawyer that she had not seen the father for a couple of years. She said she did not recall speaking to him much on their last visit, which she felt had been at a skate park, and that she did not want to spend time or communicate with him.

47. Y said he would spend time with the father if the rest of the family did, and he said he missed X.

48. Z would not speak to the Independent Children’s Lawyer. She is obviously a shy little girl.

49. The next consideration is the nature of the relationship of the children with each of their parents and any other relevant persons but the parents are the only other relevant persons in this case.

50. The mother has always been the children’s primary carer. She was their primary carer before the relationship started to devolve into a series of separations in about 2013 and whenever the parents were not together the children were with the mother. The father did not suggest that there was any problem with the children’s relationship with their mother. He did not seek to change their residence and I am satisfied that they have a good relationship with her.

51. The younger three children have no relationship with the father at present and it is instructive to note that Y and Z were both born when the parents were not living in the same residence. W would have been about two or three when this pattern started.

52. Y and Z, and from a very young age, W, have not had a continuous involvement with the father. Since March 2018 when the no-contact Protection Order was made in Queensland they have spent very limited time with him. Sometimes many months went by when they did not see him at all and often when they did see him it was in circumstances where he turned up quickly followed by the police being called.

53. Many months went by when they did not see him, and they have not seen him at all for the past 20 months or so. It is not terribly surprising that they do not have much of a relationship with him or too many good memories of him. The mother said that these three children did not ask about the father and I consider that likely to be true.

54. There is no evidence in the father’s affidavit that the children had a quality relationship with him prior to them last seeing him or even prior to March 2018. The family lived a chaotic destructive lifestyle with many police call-outs. The father did not give any evidence about any activities he did with the children, so there is not much from the past to build on or revive if an order is made for the children to spend time with the father.

1. X is different. He is seven years older than the next oldest child. He has chosen to have a relationship with his father since the father has been in Town B and it seems to be a relationship which is satisfying to X.

2. I must consider the likely effect of any change in the children’s circumstances.

3. W, Y and Z have not seen the father for 20 months and their time with him before that was limited and fragmented. There is nothing to suggest that they are missing the father and if I made an order that they not spend time with him in the future it seems likely that they would adjust to that reasonably readily.

4. I must consider of course the long term benefit to the children of having a relationship with the father. That is a significant issue in the case which I will address that later.

5. The change proposed by the mother was that she leave Town B and commence living in a gated community in Queensland. The three younger children are likely to adapt readily to that. The mother has always been their primary carer, indeed she has been the only parent available for them for years. There is nothing to suggest that she would not be able to care for them appropriately if she left Town B. She has been very reliable in protecting them since September/October 2019 and I am willing to trust that she will continue to do so in the future.

6. There are some risks to it of course. The mother has a lengthy history of drug use and she could relapse into drug use. However she has been very protective of the children and very focused on them since she has been in Town B and I am prepared to find that if she was parenting them somewhere else she would be equally appropriate and equally focused on the children absent relapsing into drug use.

7. I cannot be satisfied that such a move would be detrimental for the children unless of course I make a finding that they should be having a strong relationship with their father and spend time with him, in which case a move could be problematic, because it would put distance between the parties who are not well off and might have difficulty arranging time if that happened.

8. I must consider the practical difficulty and expense of the children spending time with a parent.

9. If the mother and children remain in Town B there will be no practical difficulty and expense in that occurring. Practical difficulty and expense would exist if the mother left Town B and the father remained there.

10. I must consider the capacity of each parent to provide for the needs of the children, including their intellectual and emotional needs

11. This is a very significant issue in this case.

12. The father does not want to take over as primary carer of the three younger children but he does want to spend time with them and I have to consider his capacity to provide for their needs.

13. The father is 51. He was at some pains in his affidavit to provide details about his work history but he provided little or no evidence about his health, mental health, drug use, perpetration of violence and criminality and they are all very significant issues in the case.

14. The evidence about the father’s health, both physical and mental, was most unsatisfactory. He said he had been diagnosed with terminal cancer in 2016. He said he had been told he had 12 to 18 months to live. He made a successful insurance claim on the back of that diagnosis and received money which benefited both parties in terms of acquiring motor vehicles.

15. However the evidence suggests that he is currently well. He is not in hospital. He is not taking any medication. He told the family consultant that he was taking fentanyl and oxycodone but he said in the witness box that he was not taking that any more, which suggests that he does not have any issues with pain.

16. I asked him if he was in remission from cancer and he did not want to commit to that, and I cannot make a finding about the state of his health at present.

17. The father has a very old diagnosis of Bipolar. He said that he was currently prescribed Seroquel. He does not appear to be currently engaged with a psychiatrist or psychologist. There was no evidence about the implications of that diagnosis for his behaviour.

18. I cannot remember if the father raised PTSD or the mother’s counsel did but when he asked about it during cross-examination the father said that he was suffering from PTSD as a result of witnessing a shooting. However he did not mention the shooting in his affidavit. The mother was the only one who mentioned it and whether what she said happened would have been sufficient to cause the father PTSD I simply do not know.

19. There was no evidence in the father’s affidavit or in any document tendered about him which suggested he had any symptoms of PTSD, such as flashbacks or difficulty sleeping.

20. I cannot make any findings about the state of the father’s mental health.

21. There is reference in the tendered documents to several occasions when the father either attempted or threatened suicide and ended up in hospital. What to make of that I do not know. He is not currently having any treatment for his mental health. He is functioning in the community. He has had no recent run-ins by the police except for the mother making complaints about breaches of the ADVOs. He is not seeking residence of the children, so the lack of information about his health and mental health would not, by itself, lead to a situation where I would have to say, “Well, look, this is all too obscure. There could be problems so I am not going to make an order.”

22. A more concerning issue is the father’s history of drug use.

23. The father’s evidence about that in his affidavit was fairly sparse. He alleged the mother, at least early on, was the main drug user. He suggested in his affidavit that she was using cannabis from 2002 and my recollection of his affidavit was that he wanted to create a picture that he was not using drugs at all back then. However in cross-examination he said he and the mother used speed when they were socialising after they met.

24. At some point both parties commenced using methamphetamine, or ice. Ice is a very destructive drug and it is clear from the information in the tender material that it caused enormous problems for the children in this household.

25. The father said that he started using it at the time of his diagnosis with a terminal illness in 2016. He said he took ice to stay awake and alert and help get him out of bed when he was ill. The mother said that his use of ice commenced before that, but whenever it started, the father was using methamphetamine from at least 2016 and the mother was using methamphetamine as well.

26. The father has given contradictory evidence in different places about when he ceased using methamphetamine. He told the family consultant at the Child Dispute Conference that he quit using it in November 2018. However he did a drug test in January 2020, after the proceedings commenced, and it was positive for methamphetamine.

27. He therefore must have used methamphetamine between November 2018 and January 2020 and we also know that this must be the case because of the evidence about the occasion when the mother and father went to Town F and both used methamphetamine.

28. The father said that he had now ceased using illicit drugs and he produced a drug test for October 2020 which was clear of any illicit drugs.

29. The father’s drug use has got him into a trouble with the law. He has a conviction for possessing Indian hemp in 1987, so any suggestion that when he commenced living with the mother she was the only drug user is just not credible. He has a conviction for possessing a dangerous drug in 2007 in City G. He also has a charge for drug-driving in 2017. In 2018 he was convicted of possessing utensils in relation to the use of dangerous drugs and a quantity of cannabis and methamphetamine were found in his car. There were several charges on different days around that time.

30. The mother alleged that the father was involved in the sale of drugs. She alleged that in 2016 he was selling pot, ecstasy and speed. There is evidence that this may be true because the police found a quantity of marijuana after raiding the parties’ home and the father received a 22-month suspended sentence after that.

31. The father was not frank in his affidavit about the extent of his drug use and about when it started. I am satisfied it was much more extensive and occurred over a much longer period than he was willing to reveal. He has the Indian hemp conviction in 1987 and his last conviction for a drug offence was in 2018, so he has a 30-year history of having issues with illicit drug use and criminal offences surrounding that. He provided a clean hair test in October 2020 but with that sort of history it is impossible to say that there is no risk of the father relapsing into drug use or getting into trouble with the law in respect of drugs again in the future.

32. If that were the only issue in addition to the concerns about his health and his mental health it would be gravely concerning but it would not necessarily mean that the court would make a no-time order. The other issue with the father though is his history of criminality.

33. I have already mentioned all the charges and convictions he has had in relation to drugs, but that is not the whole of it. His convictions began in City H in the Children’s Court when he was 15 or 16 and was charged with and then convicted of common assault. He has convictions for break, enter and steal in 1986 and 1990, stealing in 1988 and larceny as a public servant in 2001, and that last charge attracted a suspended prison sentence.

34. In December 2016 he was convicted of possessing a prohibited weapon and a knife, after a baton and a small claw-handled knife were found in his car.

35. In September 2018 he was charged with possession of a knife in a public place and that appears to have been the result of two separate occasions when a knife was found in his car, one in 2018 and one in 2017. He also has a number of convictions in both Queensland and New South Wales for breaching ADVOs.

36. That criminal history, extending over that period, gives rise to considerable concern about the father’s capacity to stay out of trouble with the law and about his respect for the law. For the last 35 years, he has been in and out of trouble with the law. He has convictions for offences involving dishonesty, drugs, weapons, common assault and breaching ADVOs. In that respect he is an exceptionally poor role model for the children.

37. While one matter alone may not be sufficient to cause the court to say, well, the children should not spend any time with the father, when a series of significant concerns mount up the Court has to be very careful about what it does.

38. I also have considerable concern about the father’s capacity to provide for the emotional needs of the children. He is focused on getting his own needs met in relation to them. That is evident in text messages he has sent to his 16-year-old son to try and get to the mother in pursuit of his agenda to try and get some time with the younger children.

39. The father said that it he did that because he wished to see the children but he had proceedings on foot in this Court. He did not need to be continually manipulating his 16-year-old son to try and get to the mother, and that is what he has been doing, and it is emotionally abusive of X.

40. The other issue that concerns me is the awful lifestyle these children have had. The father accepts little responsibility for his role in that. The family consultant, whose evidence was unchallenged, said as follows in regard to X:

    Both parents are concerned about X. The father places the responsibility on the mother for this and accepts little responsibility for his part in this. For example, according to the father, X is dealing drugs, and this is the fault of the mother for introducing him to drugs. The father is a convicted drug dealer but could not see how this history could influence X.

41. The father inability to accept responsibility for his role in what has happened to these children was apparent in other parts of his evidence, including his evidence about family violence, and that raises a concern about whether introducing him into the children’s life is going to add value for them.

42. The mother is 41. W, Z and Y are in her care full-time, and X is in her care part of the time.

43. W, Z and Y are now attending school and they are all making some progress. X suffered hugely as a result of the parents’ dysfunctional relationship. He stopped attending school after year 5 but it would appear from the mother’s evidence that he is re-engaging through TAFE and he has plans for the future, which is always a good thing because it helps people to be motivated.

44. For the last two years the mother has been able to do for these children what the parents were not able to do for them at any point up to then, which is have them living in a settled environment and attending school regularly, and anything which disrupts her capacity to do that for the children has to be avoided. The mother has always been the children’s primary carer. She is attempting to do her best for them and it is very important that she is supported in doing that.

45. The mother has had issues in the past which have impacted very negatively on the children and to her credit she does not shy away from that.

46. The mother also has a fairly lengthy history of drug use. She was using cannabis when she met the father, and after they met they both were using some party drugs. The mother was 20 although that is not to excuse her.

47. The mother commenced using methamphetamine around the same time the father did, and it is clear from the subpoena material that when she was using methamphetamine she was significantly neglectful of the children’s need for supervision and there were police visits to the home.

48. The mother continued to use ice until fairly recently. She said the last time she used it was in Town F with the father. She described herself as previously being addicted to methamphetamine.

49. The mother tested negative for illicit drugs in a hair test in August 2020 and there is nothing in the material to suggest that she is currently using drugs. There is nothing to suggest that she has come to the attention of the police in that regard or been found out of it in the street and the children have not said anything at school which raises a concern. I am prepared to accept that the mother is not using drugs, but she also has a lengthy history of drug use and there is always a risk that she could relapse.

50. Absent that I am satisfied the mother is doing her absolute best to try and give these children a good life. She is trying to be the best parent she can for them and there are no current risk factors for them in her care.

51. I am going to talk about the family violence in just a moment and one thing that can happen when people have been in a family violence relationship is that they re-partner with another violent person. The mother has not done that and that again is to her credit.

52. I must consider any family violence involving the children or a member of the children’s family.

53. The mother said that family violence began two months into the relationship when the father threw a chessboard at her. The father said in the witness box that he did not throw it but that it was damaged during a destructive argument in which the mother damaged property.

54. The father should reflect on what that says about the parties’ relationship namely that it was pretty dysfunctional from the start.

55. In the witness box the father described an occasion early on when he said that he and he mother slapped each other’s faces and he said he then pushed her.

56. The mother gave evidence about some other significant incidents of family violence. She said that in 2005, when X was eight or nine months old, there was violence and the police were called although no charges were laid.

57. She said that the police were called on two or three occasions when the parties lived at Town J. She said the father threw something from the hallway which smashed a doll that she had inherited. The father admitted in the witness box that he threw something which smashed the doll but he alleged it was part of a violent argument to which the mother was contributing.

58. The mother said that in 2013, when she was pregnant with Y the father pushed her against the wall and she fell. She described an incident in 2016 when she said the father grabbed her by the throat and slammed her into a door frame, causing bruising and injuries. She said the police came on that occasion but no charges were laid.

59. The father did not specifically admit that event but he did admit that there was an occasion, and these were his words, when he grabbed the mother by the throat and pinned her to the wall by the throat. He said, “I did do that,” and when he was asked some further questions about the violence in the home and about the children being there he ended up by saying:

    They shouldn’t have seen us fighting or me grabbing their mum.

60. The mother alleged that there were occasions when the father was violent to X. She described an occasion when he grabbed X and pulled him over a fence. The Department of Child Safety became involved with the family and I am not sure if it was in connection with that incident but I will come back to that in just a moment.

61. The mother also alleged there was an occasion when the father grabbed Y and retained him for two days. Behaviour like that is family violence.

62. The mother said that there was an incident in 2017 at Suburb K when the father screamed abuse. She said that he then threw Y into the car. As a result she got into the car as well. She said that the father demanded her phone and held a knife at her throat.

63. The father denied he held a knife to the mother’s throat but he has three separate convictions for having knives in his car and one was for having a knife in his car on this occasion. He said it was innocently there because it was part of a knife set and it had fallen out of the knife set when the parties were moving. However there was certainly a knife in the car and the father has made other admissions about some serious family violence and I accept the mother’s evidence that she was threatened with a knife.

64. The mother rang the police as soon as she got out of the car and the police attended. The father was not charged with assaulting the mother but that does not mean that the incident did not occur. There are can be all sorts of reasons why police do not lay charges, such as people not being willing to go through with a complaint or the police being faced with a situation where they have two separate versions of events and deciding that there is not enough evidence to charge somebody. The fact that the police choose not to charge somebody does not mean that someone in my position cannot find that certain incidents occurred and I am satisfied the mother was threatened with a knife.

65. I am also satisfied that there was much more physical violence than the father was willing to admit in the witness box. The mother said that she was grabbed by the throat on a number of occasions during the relationship and the thing that makes credible the mother’s allegations that there was much more extensive family violence in this relationship than the father is now willing to admit is that the children were interviewed by workers from the Department of Child Safety, X on more than one occasion, and I think perhaps three at different ages, and W on one or two; it might have been one, but it could have been two; I will have to just check the documents.

66. They described witnessing the father being violent to the mother. X described it on several occasions. W described the father punching the mother with a closed fist.

67. The mother described other forms of violence. She alleged that the father would threaten self-harm in order to coerce her into feeling sorry for him and resuming the relationship. She alleged that after she finally made a significant break from him and tried to get away from him he would find her at refuges or places where she had gone. She said that she would go outside and find the fuses had been taken out of her car or the power had been turned off.

1. She also said as follows:

   I invited him on one occasion to see the children for Father’s Day to join us at L Park. I thought if he attended L Park he would not be able to find out where I lived. I had to invite him in writing as I did not want to speak to him. He did not come but later turned up at our home demanding I cook him diner.

   He was very angry and at one point, picked me up by my throat and slammed me into the ground. I remember I soiled my pants. The police were called but because I had invited him to see the children, the just told him to leave. He left long enough for the police to leave before returning and continuing the abuse.[1]

   [1] Mother’s affidavit paragraphs 63 & 64

2. I am satisfied on the balance of probabilities that the mother is telling me the truth about those incidents.

3. The mother said that in 2018, W’s birthday, the father turned up at her house and broke a window and cut himself.

4. It was raised with the mother during cross-examination, and was also raised by the father’s counsel in submissions, that the Court should have reservations about accepting the mother’s evidence that she was a victim of extensive family violence because sometimes the police were called they did not charge the father. I have already discussed why that does not necessarily mean anything. Another reason put forward for why the court should be cautious about accepting the mother’s evidence was that she kept going back to the father and that she had a sexual relationship with him from time to time. They went to Town F together and used ice on one occasion in the not too distant past. The mother agreed to go on a camping holiday with the father in September 2019.

5. Behaviour like that never means that people are making up the evidence they give about family violence. Many family violence relationships involve exactly that kind of behaviour; people leaving and coming back.

6. The mother said that on at least a couple of occasions she agreed to give the father another chance because as he got older X would ask her to. He would go to her and say, “Dad’s changed.” She became very tearful in the witness box when she was asked about this and she said:

   Every time he said things had changed, I did go back. Had things changed? No, they hadn’t.

7. The family consultant said as follows in her memorandum:

   If the information provided by the mother is true there is a serious history of family violence which needs further assessment. The mother’s return to the relationship repeatedly should be viewed in terms of ongoing coercion and control as well as threats.

8. I accept that this is what has happened here because on occasion the mother was drawn back by the father claiming he needed looking after because he was ill, but some of the coming and going may also have been because the mother did not want the relationship to end and trusted the father and also perhaps because she was been drawn back by their common drug use. None of this means that the mother’s allegations about family violence are untrue.

9. I am satisfied on the balance of probabilities that I should accept the mother’s evidence about the family violence, including the severe physical violence. The father made some admissions, and I do not accept that he admitted was the extent of it. The mother gave credible evidence about other incidents and there is the evidence of the things both X and W said to the Department at various times when they were interviewed.

10. The mother alleged that since the father had been in Town B she had been subjected to further family violence.

11. The father’s decision to live 10 doors from the mother, in a location where he could keep her under surveillance as she came and went, was an act of family violence. The father’s counsel submitted that I could not find that was the case. However section 4AB of the Family Law Act provides that family violence is behaviour which coerces and controls someone or makes them afraid.

12. The mother is clearly afraid of the father. She gave compelling evidence about the fact with the father living so close she had difficulty sleeping. She said that if she woke up she could not go back to sleep. She said that she sometimes went out and slept on the lounge. She is frightened of the father and his decision to live 10 doors from her against this background of family violence is in itself an act of family violence.

13. There are numerous specific examples of family violence in section 4AB but they are only examples.

14. The mother alleged that the father had perpetrated other family violence since he had been in Town B and that is true. He has convictions for breaching the ADVO, mainly in the form of sending the mother text messages.

15. The mother is strongly of the view that the father is stalking her and that it is no coincidence that he is continually turns up at the shops where she happens to be. She said that because he lived so close to her he could easily see when she left home. She said in evidence in the witness box that she now shopped in Town F, 45 minutes away, and could not use the local park, because she was afraid that the father was going to turn up.

16. The mother has made numerous reports to the police about the father appearing at various places in Town B and in her view stalking and intimidating her. The police have not acted on those reports and you cannot blame them for that. They tell the mother that Town B is a small town. They would be concerned about whether they would be able to prove beyond a reasonable doubt that the fact that the father was in a particular place was because he was stalking and harassing the mother rather than was just there by accident.

17. I cannot find that every single time the father has turned up at the same place as the mother in Town B it has been family violence, but I do not accept that all of the occasions when he has turned up near her or followed her through the shops have been innocent. I accept that some of them have involved stalking and harassing behaviour. There is also other evidence of the father doing intimidating things, such as taking photographs of the mother’s car. The mother knows that he has done that because some of the photos have appeared on his Facebook page but there was also an occasion when another person saw the father outside premises taking photos of the mother’s car.

18. I cannot find that every time the father is near the mother in Town B it is family violence but I am satisfied that there has been some stalking, harassment and intimidation.

19. The family violence which has occurred has had a severe impact on the mother. She was significantly distressed in the witness box and on one occasion I had to adjourn briefly to allow her to compose herself. In her affidavit she described having nightmares when she recalled the choking incidents. She said she was frightened to go to sleep or would wake up and could not get back to sleep.

20. The violence has also had a severe impact on the children. They have been present on multiple occasions when physical violence has occurred. They have been present on occasions when the father has turned up at the mother’s home, quickly followed by the police appearing because the mother has called them.

21. There is evidence in the subpoena material about the impact on X of being exposed not only family violence but to the dysfunctional lifestyle. He has had problems at school. There is a description of him running out of the classroom and there is another description that is not immediately in my mind about the impact on him behaviourally at school.

22. The mother said in her affidavit, and she was not challenged about this, that very recently an ADVO was been made against X, who is 16 years old, to protect a like-aged female. That is really chilling. It raises is a considerable concern that a cycle of family violence is going to be repeated in another generation, and if W, Y and Z can be saved from that then I should be doing everything I can to make sure that happens.

23. I must consider whether there are any family violence orders.

24. Numerous family violence orders have been made and the father has been charged with breaching some of them. He has two convictions in Queensland for breaching a Protection Order and he has convictions for breach of ADVO in New South Wales.

25. The current ADVO was made in January 2020 for five years and the ADVOs are recognised across state borders so if the mother does go to Queensland, that ADVO will continue to be in force.

26. I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents.

27. For a significant period of these children’s lives both parents demonstrated a very poor attitude to the children and the responsibilities of parenthood. However in the last two years the mother has been trying extremely hard to put the children first and give them stability. She has engaged with services which have supported her. She has accepted their advice about going to the police when she is fearful of the father. She is trying to give the children the best possible life she can and she is displaying a very good attitude to the children at the moment.

28. The father displayed an extremely poor attitude to the children by moving so close to the mother. It has kept the mother under pressure and feeling threatened. He has also displayed a poor attitude to the children by using X to try and get information about the mother. He has continued to show a poor attitude to the children and the responsibilities of parenthood.

29. There are two primary considerations in section 60CC (2) namely the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

30. The children all have a meaningful relationship with their mother. X has a meaningful relationship with the father at the moment, in other words, a relationship which is significant and important to him.[2] Whether it is entirely valuable to him is another matter, but it is significant and important to him.

    [2] Mazorski & Albright (2008) 37 Fam LR 518

31. The three younger children do not have a relationship with the father which is significant, important and valuable to them and the issue I have to consider is whether there is any value to them in reintroducing the father into their lives.

32. The mother is the children’s primary carer. There was no dispute that they should continue to live with her. Until a couple of years ago they were living a very chaotic and dysfunctional life, and I am concerned about whether reintroducing the father into this family any more than he is at the moment, living around the corner, is going to benefit the children or is simply going to reintroduce into their lives the dysfunction and difficulty that the mother is trying to move beyond.

33. There is a real issue about whether introducing the father into the children’s lives is going to add value for them. He has little or no insight into the damage he has done to these children over the years by his behaviour and his role in the dysfunctional relationship. He has no insight into the impact on the mother of being in her face all the time by living around the corner, taking photos of her car and posting them on Facebook and attempting to get X to talk to her and to tell him things about her and then asking X to delete the messages from his phone. He has no insight into the impact on the mother of her knowledge that he is doing those things.

34. Parents in this Court do not have rights. Children have rights. The fact that someone is a biological parent of a child, or even a psychological parent of the child, to make sure that we scoop Z up in case she is not the father’s biological child, does not give them a right to spend time with children. I have to decide whether it will add value to these children’s lives to introduce the father into their lives again or simply lead to a re-establishment of chaos, conflict and dysfunction for them.

35. I also have to consider whether the children are likely to be exposed to abuse, neglect or family violence in the father’s care if he spends unsupervised time with them, which is ultimately what he wants.

36. The father has been significantly violent to the mother and there is evidence that he has been violent to the children. X complained to the Department of Child Safety about the father’s behaviour to him. The mother described the father confronting and verbally abusing X during the Region E holiday. She also described, and I accept her evidence, two occasions on which he grabbed Y. On one of those occasions he withheld him for several days and on the other occasion he threw him into a car.

37. The father accepts little or no responsibility for his behaviour and he behaved like that to X during the Region E holiday when X was an older child and I am concerned that the three younger children may be at unacceptable risk of exposure to abuse or family violence if they spend time with the father.

38. The fact that X, at the age of 16, is willingly spending time with the father does not mean that the risk does not exist. X is making his own choices. He is no doubt a big boy now. It does not mean the younger children would not be at risk in the father’s unsupervised care, and I am satisfied that there is an unacceptable risk that if they spent unsupervised time with the father these children could be at risk of harm even if the father is not using drugs. If he resumed using drugs that would increase the risk.

39. That does not mean that supervised time should not be ordered but that is something I will have to consider in just a minute.

    Parental Responsibility

40. There is a dispute about parental responsibility on paper although the father’s counsel did not address the issue in submissions.

41. The presumption in section 61DA of the Family Law Act does not apply. There has been severe family violence over a lengthy period of time. The father has convictions for family violence offences.

42. I could not possibly make an order for equal shared parental responsibility. The mother feels intimidated by the father. It would not be in the children’s best interests if she had to have a discussion with him and attempt to reach an agreement if a major long term decision was required for the children.

    Conclusion

43. The mother is not perfect, and the biggest risk in relation to her is that she could relapse into drug use. However she is trying really hard to give the children a good and peaceful life and ensure that they attend school, and for her, that involves keeping the father away.

44. The children have been settled in Town B for two years after a lot of moving around and X has complained about the moving around. If it was possible for the mother to stay in Town B with the children, that would be the best outcome for the children. However I cannot ask her to do that when the father has moved in around the corner and she is afraid of him and feels constrained about what she can do, including the weekly grocery shopping, by the fact that he is there.

45. If the mother thinks that moving from Town B to a gated community in southern Queensland will give her security and enable her to be the best parent she can be for these children, I am willing to trust her judgement and let her try that, because the alternative is to force her to remain in Town B with the father living just around the corner, and that is not in the children’s best interests.

46. I do have to consider though whether I should make an order that the father spend time with the children or have any communication with them.

47. The father’s counsel said that this was not a no-time case, but it very much is.

48. It is always a loss for children not to know a parent, but the father could relapse into drug use. He has health and mental health issues which he has failed to clarify for the Court. Those things by themselves would not mean that it was a no-time case, but there are other things to go with it. He has no respect for the mother and he has placed her under enormous pressure by moving in virtually on her doorstep. He has a lengthy criminal history. He has repeatedly breached ADVOs and breached the law. He has committed extensive and pervasive family violence which began very early in the relationship.

49. Introducing him into the children’s lives will not add value for these children. It is more likely to cause harm. W does not want to see him. Y said he would if the rest of the family did but he appears to be perhaps driven to an extent by the fact that he has a strong bond with X.

50. I do not know what Z wants, but these children have had very little to do with the father in two years. There is nothing to suggest that they had a strong relationship with him prior to that, in fact their experience of him was very likely of a person who was frightening and who was not nurturing and there to look after them.

51. Even if I decided that it was appropriate to order some supervised time, there is not a lot to build on there, and there is a considerable risk that introducing the father into these children’s lives would force the mother to continue to deal with her fears of him and her memories of the family violence more than she has to do at the moment and might give the father an edge to continue to harass her with text messages.

52. Introducing the father into the children’s lives is not going to add value for the children. The mother is trying really hard to give them a good life. She needs and deserves the support of the Court to assist her to do that. The children need and deserve it as well, and the support of the Court includes not forcing the mother to make arrangements for these children to spend time with their father.

53. The father’s counsel referred to the fact that sometimes when the Court makes a no-time order, it notes that a parent can come back if they make changes. Sometimes it does but the father is 51. He has been in the criminal justice system since he was 16. His last convictions are very recent. He has no insight into what family violence means. He has no insight into the impact his behaviour has had on the mother.

54. The likelihood of the father changing is remote, and if I make an order for no time and no communication today, that is likely to be it for these three younger children in terms of having a relationship with the father. This is not a case where it is likely the father is going to be able to go away and make some changes and come back to the Court and bring another application.

55. However if making a no time and no communication order breaks the cycle, so I do not have these young children growing up to be violent themselves or partnering with violent people because that is what they have seen modelled to them, and instead have them growing up to live a peaceful life then it is worth it.

56. The only thing I wanted to address with the parties is this. The father has been able to move in 10 doors from the mother without breaching the ADVO. I am wondering whether, for the protection of the mother and the children, I should consider making a section 68B order requiring the father to remain at a much greater distance from the mother, because even if the mother goes into the gated community, the father might find accommodation just outside the gate, and the mother might find herself in a similar position again, as might the children.

I certify that the preceding one hundred and seventy seven (177) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry.

Associate:       

Dated:            22 July 2021