Nimmo and Silva
[2014] FCCA 160
•13 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NIMMO & SILVA | [2014] FCCA 160 |
| Catchwords: FAMILY LAW – Parenting – ten year old girl - parental responsibility and spend time arrangements – extensive history of family and other violence by father – mother justifiably fearful of father – child concerned for mother's safety from father – child opposed to seeing father – sole parental responsibility to mother – child to spend no time with father. |
| Legislation: Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Schedule 1, Part 2 |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 MRR & GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424 |
| Applicant: | MR NIMMO |
| Respondent: | MS SILVA |
| File Number: | PAC 5346 of 2010 |
| Judgment of: | Judge Halligan |
| Hearing dates: | 29, 30 and 31 July 2013, 2 December 2013 |
| Date of Last Submission: | 2 December 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 13 February 2014 |
REPRESENTATION
Solicitors for the Applicant: | Hal Ginges and Co | |
Counsel for the Respondent: | Mr Morley | |
| Solicitors for the Respondent: | Benetatos White | |
| Counsel for the Independent Children's Lawyer: | Ms Eldershaw | |
| Solicitors for the Independent Children's Lawyer: | Mahony Family Lawyers | |
ORDERS
All prior parenting orders in relation to the child X born on (omitted) 2003 are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The father shall spend no time with the child.
The father shall have no communication with the child other than in accordance with the following order.
The father may send the child letters, cards, photographs and gifts by ordinary post, and the mother shall provide any such communications from the father to the child unopened.
The father is restrained from approaching, contacting, or attempting to approach or contact, the mother or the child, except as specifically permitted under the preceding order. This is an order under section 68B, Family Law Act 1975, for the personal protection of each of the mother and the child to which the power of arrest without warrant under section 68C of the Family Law Act 1975 attaches.
The mother shall authorise any school attended by X to provide to the father, at his expense, copies of X’s school reports, newsletters, circulars and school photographs of X and the forms for applying for such photographs, and the father may arrange with any school attended by X to receive copies of such documents at his expense.
The mother may take the child out of the Commonwealth of Australia provided that:
(a)she takes the child out of Australia for no more than 21 days on each occasion; and
(b)she does not take the child out of Australia more than once in each calendar year.
Otherwise all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Nimmo & Silva is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5346 of 2010
| MR NIMMO |
Applicant
And
| MS SILVA |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings under the Family Law Act 1975 concern the parenting arrangements for the parties’ 10 year old daughter, X.
At the conclusion of the hearing the father sought orders that the parents have “joint parental responsibility”, by which I take it he means equal shared parental responsibility, for X, that X live with the mother, and that he spend time with X under the supervision of X’s paternal grandparents for “at least” two hours one day a month at the home of the paternal grandparents. He also sought to have telephone communication with X each Wednesday evening. The time he ultimately sought to spend with X was markedly different to the time he had sought up to the final submissions.
The mother sought sole parental responsibility for X, that X live with her and spend no time with the father, and that the father be restrained from approaching the child, from going within 100 metres of the child’s home and from entering the child’s school. The mother also sought an order that she be permitted to remove X from Australia for the purpose of overseas holidays for periods not exceeding three weeks on any one occasion. The mother ultimately did not press for an order enabling her to change X’s name as she sought at the commencement of the hearing.
The Independent Children's Lawyer proposed that the mother have sole parental responsibility for X other than in relation to X’s name, that the child live with the mother and spend no time with the father, and that the court grant an injunction expressed to be for the personal protection of X and the mother restraining the father from approaching, contacting or attempting to contact X or the mother, except to send the child gifts, cards, photographs and letters, and that the mother be required to give such items from the father to the chid unopened. The Independent Children's Lawyer also proposed that the father be permitted to arrange with any school the child attends to obtain copies of the child’s school reports, newsletters, circulars and school photographs at his expense. The Independent Children's Lawyer also proposed that there be a mutual non-denigration injunction against each of the parties.
The principal issues raised by the evidence in this case are the father's violence, in particular but not limited to violence against the mother, the impact of the father's violence on both the mother and X, X’s relationship with the father and whether the mother has influenced X against the father, and whether the risks of harm to X from spending time with the father outweigh the benefits of doing so.
For the reasons that follow, I am satisfied that-
a)the father has perpetrated serious family violence on the mother throughout the parties’ relationship;
b)the father has been guilty of acts of serious physical violence against others, for some of which he has served a significant term of imprisonment;
c)the father has abused alcohol and drugs;
d)the mother has a deep fear of the father and what he may do to her and this fear is well founded;
e)X has been exposed to the father's violence against her mother;
f)X is fearful both of the father and of the risk of violence from him towards her mother and for her mother’s safety being at risk from the father's violence;
g)X has been influenced in her attitude towards the father by the effect of the father's violence on her mother and the mother's hyper-vigilance and security consciousness as a result of the father's violence;
h)the mother has not deliberately attempted to turn X against her father;
i)X’s relationship with the father is one marked by fear, distrust and a strong reluctance to see him;
j)the father has no real insight into the effect of his violence on the mother and on X;
k)the father's claim that he has reformed and is drug and alcohol free and no longer violent is not true, as proven by his alcohol and drug fuelled violence four months before the commencement of this hearing;
l)the father remains a threat to the mother;
m)an order that X spend time with the father is likely to harm X by:
i)risking exposing her to the father's violence against others, but not against X herself;
ii)ignoring X’s firm view not to see her father;
iii)heightening her fear and anxiety of the father and for her mother's safety from the father; and
iv)exposing the mother to the father's family violence by giving him an excuse to contact her, and causing the mother such fear and anxiety about X’s and her safety that it is likely to impair the mother's functioning as X’s primary carer, thus being detrimental to X;
n)the advantages of X spending time with the father are relatively limited, given the current poor relationship she has with the father because of her fear of the father, her exposure to his violence on the mother, the limited time she has spent with him since separation, and her opposition to seeing him, and given the short amount of time the father now seeks and the limiting and constrained circumstances in which it must be spent;
o)the detriments and risks for X of spending any time with the father far outweigh the limited benefits of doing so; and
p)an order that X spend no time with the father is in X’s best interests.
Background
The father is aged 33 (born (omitted) 1980) and the mother is 41 (born (omitted) 1972). They commenced cohabitation in about October or November 2002 and finally separated in about late March or early April 2009. During the parties’ cohabitation, the father spent time in gaol.
X was born on (omitted) 2003.
The mother has two older children, Y aged 21 (born (omitted) 1992) and Z aged 19 (born (omitted) 1994). They were members of the parties’ household during the parties’ cohabitation. Y now lives independently and Z lives with the mother and X.
On 25 February 2011, the parents entered into interim Terms of Settlement providing for X to live with the mother, the mother to have sole parental responsibility for X, and the father to spend time with X until 13 March 2011 on each Sunday from 10.00 am to
12 noon at the (omitted) under the supervision of the child’s paternal grandfather and in the absence of the paternal grandmother, then from 20 March 2011 until 8 May 2011 on the first three Sundays in every four from 10.00 am to 2.00 pm under the supervision of the paternal grandfather, and then commencing 21 May 2011 unsupervised on the first three Saturdays in every four from 10.00 am to 5.00 pm. The court made consent interim parenting orders in accordance with the Terms of Settlement on 25 February 2011, but as the court appointed an Independent Children's Lawyer on that occasion, it limited the operation of those orders to the period until the next occasion the matter was before the court, which was 28 March 2011.
On 28 March 2011, the newly appointed Independent Children's Lawyer appeared and mentioned the matter on behalf of both parties’ legal representatives to seek a further adjournment, which was granted. No request was made to continue the orders made on 25 February 2011, and they thus lapsed on 28 March 2011.
On the next occasion the matter was before the court, 29 June 2011, the matter was adjourned to 29 July 2011 for an interim hearing of the competing interim parenting applications, and orders were made until 29 July 2011 that X live with the mother and restraining the father from approaching the mother or X. The injunction was expressed to be an order for the personal protection of the mother and the child to which the power of arrest without warrant under section 68C, Family Law Act, attached.
On 29 July 2011 the matter was further adjourned to 30 September 2011 to enable the Independent Children's Lawyer to make further enquiries about possible fresh criminal proceedings involving the father. The orders made on 29 June 2011 were continued until 30 September 2011.
On 30 September 2011, consent interim parenting orders were made providing for X to live with the mother, for the mother to have sole parental responsibility for X, and for the father to spend supervised time with X at the (omitted) Children's Contact Centre for two hours each alternate Saturday. Those orders also restrained the father from approaching the mother or X except pursuant to the spend time with order, and this restraint was expressed to be an order for the personal protection of the mother and the child to which the power of arrest without warrant under section 68C attached.
The matter was listed for final hearing on 16 July 2012, but the father was not ready to proceed with his case and the hearing was vacated. Consent orders were made on 16 July 2012 for the parties and X to attend Mr N, psychologist, for family counselling to seek to address the issues concerning X spending time with the father, and the Independent Children's Lawyer was authorised to provide a copy of the Family Report, prepared for the hearing that had to be vacated, to the psychologist. The mother was also restrained by consent from taking X to any medical practitioner or counsellor other than the named psychologist in relation to matters pertaining to X’s relationship with her parents.
Credit of witnesses
The witnesses at the hearing were the father, the mother, the mother's partner Mr C, and the Family Consultant who prepared the Family Report, Dr H.
Mr C was not required for cross-examination, and no issue arises in relation to his credit. I accept his evidence.
Dr H was cross-examined but no issue arose in relation to his credit.
I have concerns about the father's credit as a witness. The father reswore an affidavit he first swore on 14 July 2012 on the first day of the hearing. I allowed this when it appeared in the course of his cross-examination that he was unable to read the affidavit without assistance, and there was no certificate of anyone having read over the affidavit to him and of him appearing to understand it before swearing it. On reswearing, the affidavit had appended to it such a certificate by his solicitor, who witnessed his signature. The affidavit still contained an assertion that since he went to prison in June 2007, he had not engaged in any criminal activity and he had not drunk alcohol or used any other drugs for over four years.
Both these assertions were incorrect at the time he reswore the affidavit to the father's knowledge, and the assertions were inconsistent with another affidavit he had sworn that day, and which he also reswore at the same time as he reswore his 2012 affidavit. An assertion that he was happy in his relationship with Ms M also remained unchanged in his affidavit originally sworn in 2012, despite his other affidavit disclosing a fracas in March 2013 at Ms M’s birthday party that resulted in the father being charged with 13 offences, remanded in custody for several months, and being subject to an AVO for Ms M’s protection that prevented him approaching her or speaking to her.
This suggests the father took little care when reswearing his affidavits with the assistance of his solicitor, despite my emphasising to him that I was permitting him to do so despite being under cross-examination because it was important that the court have confidence that he understood what he was swearing to be true. It well illustrates the cavalier attitude I am satisfied the father has to the requirement to tell the truth on oath.
The father gave inconsistent evidence as to whether or not he knew it was illegal to possess a flick knife. Early on the second day of the hearing, under cross-examination by counsel for the mother, the father said he was charged with possession of a flick knife after the fracas in March 2013, he kept it in his bed side table, he knew it was illegal to carry or possess such a knife as a result of charges he faced in 2007 after he stabbed two men with a flick knife, and he was aware he was in possession of an illegal weapon. The father's demeanour at this point was calm and responsive, readily making appropriate admissions or concessions. However, in cross-examination about the same flick knife by counsel for the Independent Children's Lawyer later the same day, he asserted he did not know it was illegal to possess the flick knife. He said it was a fishing knife that he kept in his tackle box with other fishing knives. He said he did not believe it was illegal to have the knife at home, but was illegal to have the knife “on” him. By the time he gave this evidence, his demeanour had reverted to what it had quickly become the previous day under cross-examination - evasive, argumentative and contemptuous of the cross-examiner. The quite different versions of his evidence on the same issue on the same day well illustrate the difficulties that permeate the whole of the father's evidence.
In re-examination about his knowledge of an apprehended violence order for the protection of a former fiancé, he claimed that as it had not been properly served on him “it does not exist” despite the father saying he had been informed about it by a Supreme Court judge before whom he appeared on a bail application. This disingenuous response was consistent with the general tenor of his evidence and his demeanour for most of his cross-examination. It also speaks of a contemptuous regard for the law, which is further illustrated by his extensive criminal record and his failure to observe the supervision requirements under the interim parenting orders made on 25 February 2011, and is entirely inconsistent with the father's claim of now being a changed man and a law-abiding member of society.
He was cross-examined on the first and second days of the hearing, and while at the commencement of his cross-examination on each day his demeanour was polite and responsive, readily making appropriate concessions, he quickly changed on each day and became argumentative, unresponsive and was openly contemptuous on occasions of the cross-examiner. Such demeanour resonated with the type of person the mother asserted the father was, and was not consistent with the picture of a person who had turned his life around and was now a responsible, law-abiding, pillar of society who had found God, as he sought to portray himself.
Another illustration of evidence from the father that betrayed a cavalier attitude in giving his evidence was in relation to the consequences of the fracas at the birthday party he arranged for Ms M in March 2013, with whom he was then living, and to which he invited her best friends. The father drank and consumed cannabis at this party, and became involved in an altercation with guests as a result of which he was charged with 13 offences and denied bail. An AVO was made against him for the protection of Ms M that according to the father stopped them living together and stopped him communicating with her. He said he had had no contact with her in the four months since that night, nor did he call her as a witness in his case. Yet in cross-examination when asked about the then current state of his relationship with Ms M, he “guessed” that she was still his fiancé, and “guessed” they would still get married someday.
I was not persuaded by the submission on behalf of the father that because of his limited literacy it was unfair to take his words literally at face value and to base an adverse assessment of him or his credit on them. This was said, for example, in relation to his referring to the family therapy with Mr N under the consent orders made on
16 July 2012 as a hurdle he had to jump over to see his daughter. I was satisfied that this evidence of the father was indicative of a cynical and contemptuous attitude towards an important process to attempt to therapeutically address serious issues in his relationship with his daughter that was recommended in the Family Report and that he consented to the court ordering be undertaken.
I note that the father said he has dyslexia, ADD and ADHD. There was no evidence to confirm a diagnosis of any of these conditions. It was not submitted on his behalf that having ADD and/or ADHD may affect the assessment of his credit. I was not satisfied that if the father has dyslexia or any other issue affecting his ability to understand written English without assistance, that this affected his ability to communicate in spoken English, his first language.
I was ultimately satisfied the father was a person whose evidence was unreliable and who could not be believed. I am satisfied the father was prepared to say whatever he thought he should say or needed to say to achieve what he wanted.
In relation to the mother's evidence, it was put to her several times in cross-examination by the father's solicitor that she admitted in Local Court proceedings that her statement to police that the father took her in a bear hug and pulled her into his caravan in April 2009 was untrue. She consistently denied making such an admission, and maintained that the father had taken her in a bear hug and pulled her into the caravan.
However, I am concerned that the propositions put to the mother appeared to conflate two separate aspects of the mother's statement, and was potentially misleading, or at best ambiguous. I emphasise I am not suggesting the father’s solicitor deliberately sought to mislead the mother in cross-examination, and I note no objection was taken to the questions in which the propositions were put to the mother.
The mother said that in April 2009 she and X attended the home of the paternal grandparents, at the rear of which was a caravan in which the father was living. She said she did so when the father requested to see X. She said the father wanted her to come down the driveway to the caravan but she was reluctant to do so and resisted his requests. She said he took her by the arm several times to pull her down the driveway, then took her in a bear hug and carried her a few metres, and when they arrived at the caravan and she declined his invitation to enter it, he took her by the hands and pulled her inside. Thus, the mother did not say the father took her in a bear hug and pulled her inside the caravan, but this is what was repeatedly put to her in cross-examination that she had said and had admitted was untrue.
To the extent to which the mother denied she had lied and said it was true that he took her in a bear hug and pulled her into the caravan, I am not satisfied I should regard this as inconsistent with her police statement, and nor was it submitted on behalf of the father that I should. I am satisfied that I should treat the propositions put to her in cross-examination as referring to two separate aspects of this incident, and not one, to be consistent with the police statement on which she was being cross-examined, and that the questions asked of her, while ambiguous, were not misleading or misrepresenting to her what she had said in her police statement.
The mother readily agreed she admitted in the Local Court proceedings having gone to the father's residence a few days earlier and threatening to smash Ms M’s car. She readily admitted that on that occasion she had gone to the father's caravan and yelled at the father, asked if Ms M was there, called on her to come outside, and referred to her as “that bitch”. There was no evidence to contradict what the mother said. In fact, the father offered no evidence of this incident at all.
No transcript of the mother's evidence in the Local Court was put into evidence in these proceedings, despite the father telling the Family Consultant that he intended to do so, and there was no explanation why it was not put into evidence before me. The father himself gave no evidence about what he said occurred in the incident giving rise to the mother's complaint to police in which it was put to her she lied. There is nothing to contradict the mother’s evidence that she made no such admission. There is no evidence she made any false statement to the police. The fact the father was acquitted on a criminal charge arising out of a statement the mother made to police or after the mother had given evidence in the prosecution case does not necessarily mean the court did not accept the mother's evidence. Nor does it mean the court found that the father did not do what was alleged against him by the prosecution. It simply means his guilt was not established to the court’s satisfaction on the evidence before it beyond a reasonable doubt.
I also note that the only aspects of the mother's statement to the police about the incident on 15 April 2009 about which the mother was challenged were that the father took her in a bear hug and that he pulled her into his caravan. The balance of the mother's evidence about this incident was unchallenged and uncontradicted.
In assessing this passage of evidence by the mother, in my view it is also relevant that the mother readily made admissions about what she said and did on a previous visit to the father's home, but consistently maintained that her version of the incident on which she was being cross-examined was true.
I am not satisfied it was shown that the mother was untruthful on her oath in this or any other court, or in statements she made to police. In fact, no submission was made on behalf of the father that I should have any concerns about the mother's credit as a witness, despite the fact the father denied in cross-examination several serious allegations the mother made against him.
I was concerned with aspects of the conduct of the father's case. I accept this was on his instructions, and am not critical of his solicitor. The father gave no evidence of the incident or incidents immediately after separation that resulted in him being charged with assaulting the mother, which charge was dismissed after a hearing. He certainly gave no evidence denying the mother's assertion he took her in a bear hug and that he pulled her into his caravan on 9 April 2009.
The father gave evidence that the parties argued immediately before they separated. He said X sustained an injury to her eye, of which he took some photos. He said-
“That moment (apparently when X’s eye was injured) and the photos of X’s injury continue to haunt me to this day. I was very distressed at seeing X, once again, becoming the victim of conflict between her mother and me.”
He gave no evidence as to the circumstances in which X suffered her eye injury. Yet, it was put to the mother in cross-examination that she had become angry with X for wetting her pants and had thrown her to the floor, causing bruising to the child’s eye, of which there was a photo that was put to the mother. This, of course, is not consistent with the father's evidence in chief of how X sustained the eye injury. The mother's response to the suggestion she had caused the injury was that this was an accidental injury to X in March 2009 when the father and she were living in the mother's home, caused when X fell and hit a wardrobe. The mother said neither parent caused this injury, but that the father had told her he would use the photo against her one day.
I am satisfied that is exactly what the father did. I am satisfied there was no substance to the suggestions put to the mother in cross-examination, on instructions from the father, that the mother violently mistreated X. I am satisfied this illustrates and is evidence of the father's vindictive, manipulative and coercive behaviour towards the mother, and is yet another reason to reject him as a witness who can be believed.
I accept the mother as a reliable witness and I prefer her evidence over the father's when their evidence differs.
The evidence
The father sought to rely on two affidavits, sworn on 14 July 2012 and 29 July 2013. The latter affidavit was filed well after the deadline I fixed for filing affidavit evidence for the hearing, namely 8 July 2013. I nonetheless allowed him to rely on his late affidavit evidence. As mentioned, I permitted the father to reswear both affidavits after the commencement of his cross-examination when it appeared he needed assistance with written English and there was no certificate of a person having read over the affidavits with him before swearing them and of him appearing to understand them.
The father's involvement with the child
The father said that during the parties’ cohabitation, he and the mother worked at different times, and that X was “often” just with him. He was not challenged on this evidence and I accept it. He gave no further evidence about his involvement with X before his incarceration in 2007.
The father was imprisoned in June 2007 for a knife attack. He was released on 1 March 2009. The mother took X, Y and Z to see the father while he was in gaol, initially once a week but then reducing to once a fortnight.
On his release from gaol on 1 March 2009, the father returned to live with the mother but they separated about a month later after an argument. The father moved to live in a caravan at his parents’ home.
Immediately after separation, the mother allowed the father to see the child on a few occasions, but then the father was charged with assaulting the mother and breaching an AVO made in April 2009 very shortly after separation and refused bail. He remained in custody until the charges were heard in November 2009. He did not see the child during this time. The assault charge was dismissed and he was convicted of breaching the AVO. He was sentenced effectively to time served for breaching the AVO, and released from custody in November 2009.
By the time he was released from gaol he had entered into a relationship with Ms M. The father had met Ms M through the (omitted) and had fallen in love with her. He described her as a committed Christian, and a quiet and thoughtful person. He said having Ms M’s love and support over the time he returned to gaol “made all the difference to him”. They later became engaged. As mentioned, that relationship broke down after the fracas at Ms M’s birthday party in March 2013 and an AVO was made against the father for Ms M’s protection that the father said prevented him approaching or contacting her. The father did not put a copy of this AVO into evidence.
The father had a solicitor write to the mother about arrangements for him to spend time with X twice in July 2010, without success, and after unsuccessfully seeking family dispute resolution, he commenced these proceedings in Katoomba Local Court on 8 September 2010. The proceedings were transferred to this court the following month.
The father said he attended a “Caring for Kids” program conducted by the (omitted) Church. The certificate of attendance refers to attendance on 27 November 2010 at Caring for Kids Level 1 training, accredited with the National Council of Churches Safe Church Project, and appears to be child protection training for church workers rather than a parenting course.
From February 2011, the father started seeing X for a couple of hours a week under the supervision of the paternal grandfather pursuant to the consent orders made on 25 February 2011. However, the father said that on one occasion X needed a change of clothes because she got wet and the father took X, apparently in wet clothing, to buy some additional clothes without the paternal grandfather also attending. He also said that X liked to “wander off herself to see the horses”. He said his father was not as fast on is feet as X, and there was “some short time” when X “ran off to see the horses” when the paternal grandfather was not with her. He said these were the only occasions when X was not supervised by the paternal grandfather.
In cross-examination, the father said he and the paternal grandfather took X swimming on one occasion, the paternal grandfather was called to work and had to leave, and he remained with the child unsupervised. When asked why he did not contact the mother to return the child, he said there was an AVO in place preventing him contacting the mother. He did not ask anyone else to contact the mother for him. He could of course have asked the paternal grandfather to do so, and he could also have asked Ms M, at whose workplace the swimming pool was located. This, together with the fact this was another occasion he disregarded the supervision order which he did not acknowledge in his evidence in chief, are further examples of the troubling aspects of the father's evidence and attitude. There were numerous other occasions when an AVO was no impediment to the father doing whatever he liked, and his use of the AVO as an excuse on this occasion was hypocritical.
Also in the course of the father's cross-examination about spending time with X without the paternal grandfather being present, it became clear that his evidence in chief about the only occasions the paternal grandfather was not present to supervise was incorrect in another respect. He contradicted his evidence in chief that there was a short time the paternal grandfather was not with them when X ran ahead to see the horses on a neighbouring property and the paternal grandfather could not keep up, saying that the paternal grandfather stayed at home when he and X went to look at the horses. He at first said the paternal grandmother came with them, then said he was not sure if the paternal grandmother came with them. These are further examples of why I am satisfied I cannot accept the father's evidence on any contentious issue. Although the interim orders made on 25 February 2011 expired on 28 March 2011, the mother thought they were in force until 20 May 2011.
The mother stopped the child’s time with the father after becoming aware the father had spent time with the child without the paternal grandfather being present once on 20 March 2011 and twice on
3 April 2011.
Thereafter, the father went to the mother's home and X’s school in May and June 2011 in the hope of seeing X. The father said that on 25 June 2011, the mother invited him to attend X’s birthday party the next day, but he decided not to attend because-
“I was fearful that this was some kind of trick, and that there would be further allegations made against me.”
The mother denied inviting the father to X’s eighth birthday party. She said there was no party.
I prefer the mother's evidence to the father's and am not satisfied the mother issued any such invitation. Even on the father's evidence, his suggestion that despite saying he went to the mother's home and X’s school trying to see X in May and June 2011, he did not take up an invitation to attend a birthday party for X in June 2011 when he could have seen X, is inherently improbable. He went to the mother's home uninvited to give the child birthday presents the day after her birthday.
The father said that despite consenting to the orders on 30 September 2011 that he spend supervised time with X at the contact centre, he was “very unhappy” about the arrangement. He said it was a very artificial and limiting environment and it was distressing to him that “X’s time with me has been made into a burden for her, and that all the natural love and affection we had for each other has been taken away from both of us”. He also expressed distress that X could not spend time with the paternal grandparents, and with his brothers and their families.
The initial days allocated by the contact centre for supervised time under the September 2011 orders were 4 March 2012, 1 April 2012,
15 April 2012 and 29 April 2012. The mother said one date,
15 April 2012, was unsuitable (she did not explain why) and she contacted the centre to cancel that date.
X attended on the first two dates. The mother said X was “nervous” prior to the visit on 4 March 2012. She did not explain why she was of that opinion. She said that while driving to the contact centre on 1 April 2012, X complained she needed more air despite the car window being down next to her, and then vomited several times during the trip. The mother said she spoke to a doctor later, who advised her that these were symptoms of X having a panic attack. I accept the mother’s evidence.
The visit on 29 April 2012 did not proceed after the motor vehicle belonging to Mr C was severely damaged while parked outside the mother's home overnight on 20-21 April 2012. The mother and Mr C believe the father was responsible. The father denied he was responsible. The mother provided a letter from X's GP, Dr B, to the contact centre stating that-
“X has developed a major Anxiety Disorder about attending supervised access visits with her father. X has been receiving psychological counselling from a counsellor in (omitted) for her anxiety disorder for several months.
She does not want to attend her visit with her father on 29.04.12, and for the foreseeable future. I have enclosed some recent consultation notes which I made for X’s mother. These explain a lot about the war which X’s father appears to be waging against X’s mother. This is clearly having a major impact on X.”
I note that the copy of the doctor’s letter the mother put into evidence had no consultation notes attached, and so it is not possible to see what it was that the mother had told the doctor, and on which the doctor apparently based her opinions, at least in part.
I also note the apparent inconsistency in the statement in the doctor’s letter that the child had developed a major anxiety disorder about attending supervised time with the father, for which she had been seeing a counsellor for “several months”, at a time when the child had attended only two such visits, both within two months of this letter.
Following receipt of Dr B’s letter, the contact centre cancelled the visits arranged at that point, on 29 April 2012, 13 and 27 May 2012, and 10 and 24 June 2012, until X was able to obtain some counselling.
Ms T, X’s counsellor up to that time, was a social worker, and the mother then arranged for X to see a psychologist, Ms H, who saw X on 7, 14 and 18 May 2012.
After these consultations, the contact centre scheduled further supervised visits, on 16 and 30 June 2012 and 14 July 2012.
The mother said X was “quite upset” in the car on the way to the contact centre for the visit on 16 June 2012, telling the mother she did not want to go because she did not like her father. I accept the mother's evidence. The contact centre terminated this visit after about half an hour as X asked the visit to end as she had become too distressed.
The mother gave no evidence about the scheduled visits on 30 June and 14 July 2012. I infer they did not proceed.
The father was reported in the Family Report to have told the Family Consultant that on his last visit with X at the contact centre, X told him she did not want to be there. I infer this would have been the visit on 1 April 2012, as the father saw the Family Consultant on 21 May 2012. He was reported to have said X spoke quietly to contact centre workers and had said little to him. When the relevant part of the Family Report was read to him, he said he could not remember saying this but accepted he had. Yet despite this, the father said that when he asked X what was the matter, as X was very quiet, he said she told him she was unsettled by the contact centre workers.
The father's reported description of X’s behaviour to the Family Consultant on his last visit with X before the Family Report interviews is consistent with what the mother said was reported to her by contact centre workers after the visit on 16 June 2012.
The final hearing of the matter was initially listed on 16 July 2012. The father was not ready to proceed. The parties agreed to engage in therapy with Mr N while awaiting further hearing dates, and orders to effect this were made on 16 July 2012.
The mother and X attended their initial interviews with Mr N on 6 August 2012. Each was seen separately by Mr N. Their next appointment was 10 September 2012, and Mr N saw X on this occasion.
In early November 2012, Mr N advised the mother that the father had cancelled his appointments “a few times”, and a further appointment for X was made for 10 December 2012, which X attended.
After rescheduling a visit at Mr N’s request, Mr N scheduled appointments for X on 25 February and 25 March 2013. The mother said that after the March appointment, X told her she told Mr N she did not want to see the father but he told her she had to. The mother responded confirming that she had to attend the appointment with her father, but she would be waiting “outside”. The mother said this was insufficient to change the child’s view. I accept the mother’s evidence.
The next visit was scheduled for 22 April 2013. It was to be at this appointment that the father would meet X with Mr N. This appointment was cancelled after the father was arrested and refused bail on serious charges arising from the fracas at Ms M’s birthday party in March 2013. The father knew he was due to see X at the appointment that could not proceed because of his imprisonment.
Thus, since X’s birth, the father's involvement with her has been spasmodic and limited. He was in gaol from June 2007, when X was only four, to March 2009. During that time X’s involvement with her father was limited to prison visits, initially weekly and then fortnightly. For about a month after the father's release from gaol in early March 2009, the father lived with the mother and X. After separation in late March or early April 2009, the father saw X a few times in April 2009, and then did not see her again until the visits that were to be initially supervised by the paternal grandfather began in February 2011.
As best I can determine on the evidence, it seems that X spent time with the father under the 25 February 2011 orders for two hours on 27 February, and 6 and 13 March 2011, and for four hours on 20 and 27 March and 3 April 2011. He did not spend time with X thereafter until the supervised time at the contact centre under the orders of 30 September 2011 began in March 2012. It seems the father spent time with X at the contact centre on 4 March, 1 April and 16 June 2012, and he spent time with X for the observations with the Family Consultant for the Family Report on 21 May 2012. He has not spent time with X since 16 June 2012.
Thus, since April 2009, from before the child’s sixth birthday until after the child’s tenth birthday, the father has spent no more than a total of 22 ½ hours with X on nine occasions, all of which were or were to be supervised.
The father's criminal antecedents
The father stated in his first affidavit-
“I have a history of criminal activity and violence from when I was a teenager until I was sent to prison in 2007. … I started to drive cars without a licence, and then got involved in various motor vehicle offences and stealing property. I also started to drink and use cannabis. I was already short tempered, and when I drank I became violent. I spent time in and out of custody, and then spent 18 months in custody for a knife attack in June 2008.”
In his second affidavit, sworn on 29 July 2013, the father said he did not engage in any criminal activities from his release from his incarceration in 2007 until 24 March 2013. He was not cross-examined about the inconsistency between this statement and his conviction for breaching the AVO in 2009. He said he did not drink alcohol or use drugs for over four years.
The father said that on 24 March 2013, “we” held a small party to celebrate his partner Ms M’s 26th birthday. He said it was attended by “her closest friends and their partners”. That night he said he drank alcohol and used cannabis. He said it was the first time he had done so in “many years”. He got into a fight with the partner of one of Ms M’s friends, others became involved and “some property was damaged”. The father was charged “for all the matters which occurred”. He said he was remanded in custody because of his criminal record. He did not disclose the charges against him. There initially were 13 charges against him arising from this incident.
The father said he offered to plead guilty to a charge of common assault but denied all other charges. He said on 9 July 2013, “almost all” of the charges were withdrawn and dismissed and he was granted bail.
In fact, he ultimately pleaded guilty to three charges – common assault, possess a flick knife and possess cannabis.
That was the extent of the father's disclosure of his criminal history in his evidence in chief.
The father's criminal record was put in to evidence, and shows convictions from 1997, when he was a juvenile. His convictions include a variety of property and driving offences as well as violence offences. He has convictions for-
a)resisting a police officer in November 1997 (two counts);
b)assaulting a police officer in November 1997;
c)assault occasioning actual bodily harm in June 1998;
d)threaten or cause injury to a potential juror or witness in July 1998;
e)resisting a police officer in August 1998;
f)2 counts of common assault in December 1998;
g)contravene an AVO in April 1999;
h)using a carriage service to menace or harass in March 2000;
i)assault occasioning actual bodily harm and malicious wounding in 2007;
j)two counts of contravene an AVO in April 2009; and
k)common assault, possess a flick knife and possess cannabis in March 2013.
The father's criminal record shows the following terms of imprisonment were imposed on him on the dates indicated-
a)11 May 1999, three months commencing 16 April 1999;
b)
5 July 1999, two terms of three months concurrent commencing
5 July 1999 and an additional term of nine months commencing
5 October 1999;
c)12 July 1999, two terms of six months and one term of three months concurrent, concluding 11 January 2000;
d)9 August 2000, six months concluding 13 January 2001, confirmed on appeal;
e)
11 September 2000, six months concluding 10 March 2001,
12 months concluding 10 September 2001, and 21 months concluding 10 June 2002, confirmed on appeal;
f)12 November 2003, three terms of six months concurrent, commencing 29 October 2003;
g)
7 November 2008, 15 months from 2 June 2007 to
1 September 2008 and three years commencing 2 December 2007 with a non-parole period of 15 months, and;
h)26 November 2009, sentenced to the rising of the court.
Thus, during the nearly six and a half years from the commencement of the parties’ cohabitation to their final separation, the father was in gaol on two occasions, for three months in 2003 – 2004 and 21 months from 2007 to 2009.
In relation to the charges for which he was imprisoned in 2007, the father in cross-examination asserted he acted in self-defence. This is inconsistent with the statement of agreed facts presented to the court after he pleaded guilty to the charges.
The father’s family violence
Relevantly for these proceedings, they having commenced before the commencement of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, family violence is defined as follows-
“family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”
The mother alleged that she was the victim of the father's violence on a number of occasions, often when he had been drinking. She particularised many instances of his violent and abusive behaviour in her evidence in chief.
The father said in his evidence in chief-
“I admit I behaved badly at times towards (the mother) when she and I were together, especially when I had been drinking. I deeply regret many of the things I did then …”
The father did not give any indication of what his bad behaviour towards the mother involved in his evidence in chief. He did not disclose being violent to anyone else in his evidence in chief, other than for the incident at Ms M’s birthday party in March 2013, about which he gave very little information apart from the fact he had consumed alcohol and cannabis, had become involved in a fight, and had been charged with unspecified offences.
In cross-examination the father denied he had ever done anything to make the mother fearful of him. However, he admitted that after he pleaded guilty in 2007 to charges arising from him stabbing two men, the mother would have had cause for concern for her and the children’s safety around him.
The father said that the bad things he said in his evidence in chief he did to the mother was having argued with her, and the things he said in his evidence in chief he regretted were having a problem with alcohol and having a child to the mother, which he later clarified as regretting having a relationship with the mother. He reiterated these were the only two things he regretted, then said he had many regrets but could not recall any others.
The father showed a complete lack of candour in his evidence in chief. He expressed deep regret for having “behaved badly at times” towards the mother, and for “many things” he did, none of which he particularised. He said while in gaol, he had time to reflect on “what I had done with my life and the harm I had caused to other people”, but he did not indicate what harm he had caused to what people. He said he started to see how his behaviour had affected them, but he did not say how it had affected them.
In stark contrast to the father's vague references to behaving badly towards the mother, the mother’s evidence about the father's abuse was detailed and comprehensive, and much of it was unchallenged in cross-examination and uncontradicted by any evidence from the father. Where the father denied the mother's version of events when it was put to him in cross-examination, I accept the mother's evidence for reasons previously given. I therefore find as follows-
2002 or 2003
While the mother was pregnant with X, the father had been drinking and started to yell at her. She told him he was frightening her and she would sleep on the couch. She later woke up on the couch to see the father “running down the hallway in the house towards me with an axe over his head to scare me”.
I am satisfied this was an incident of family violence.
2003 (“when X was a baby”)
When X was a baby, in the presence of the mother and her two oldest children Y and Z, the father tried to throw the family dog (omitted) through the window, but (omitted) bounced off and the window did not break. The same night the father tried to pick up a heavy television set and throw it through the window, but the mother intervened and stopped him doing so. The father then smashed the mother's video camera and ceiling lights in the house, which the mother had to replace.
I am satisfied this was an incident of family violence.
The father threw things around the house and broke internal walls when he was angry. The paternal grandfather came with plasterboard and repaired the damage and made the father pay for the cost of the materials. On other occasions the paternal grandparents patched walls and windows with cardboard until permanent repairs could be effected. The parties were living in the (omitted), and the holes in the walls made it very cold in the house.
Although the mother instanced no particular occasion when the father threw things, other than as just referred to, and instanced no particular occasion when walls were either broken or repaired, I am satisfied by this evidence that there were other instances of family violence apart from those particularised by the mother.
After father's release from gaol (early 2004)
The mother had gone out with a Mr W while the father was in gaol. After the father was released from gaol the mother attended Mr W’s home with X to get ready to go out together. She received a phone call from the father saying he was across the road and knew exactly where she was. She became frightened, and left Mr W’s house and went to the house of another friend. She waited there until she calmed down then went home.
I am satisfied this was an incident of family violence.
30 April – 1 May 2004
The mother and the father argued on 30 April 2004 over a man she had seen while the father had been in gaol, after which the father left. The mother picked up the father in the early hours of the following morning, and both parties “had a few drinks” on arriving home, then went to bed. The mother was woken by a phone call. The father answered the phone, told the mother it was her friend, but would not let her talk to him. The parties argued again and when the mother said she was calling the police, the father lunged for the phone, the mother threw it away so he could not get it, then the father dragged the mother by her dressing gown across the floor causing carpet burns to her knees, which bled. They continued to talk until about 5.00 am, when the father slapped the mother with an open hand on her left cheek. The mother began to cry and attempted to get some tissues but the father held her down preventing her doing so. A short time later the father left.
The mother reported this incident to the police. She sought an AVO but requested that the father not be charged. Later, the father's mother and the father each told the mother not to go ahead with the AVO application, and she withdrew it.
When cross-examined about this incident, the father said he could not recall the incident but remembered it being reported to police, denied dragging the mother across the carpeted floor, admitted the mother had a graze on one knee, denied the graze was caused by a struggle between them, agreed that the mother was granted an AVO soon after and agreed she was granted the AVO because she sustained bleeding knees during an argument between them.
I am satisfied the father was not candid in his evidence about this incident, and I accept the mother's evidence that this incident occurred as she described it. I am satisfied this was another incident of family violence perpetrated by the father on the mother.
2004
In about 2004, the mother, the father and X visited the mother’s sister in Sydney. The father left and later called the mother to pick him up. She did so and he was drunk, telling the mother he had been on a pub crawl. The mother then commenced to drive back to the parties’ home, and the father said to her “I am going to kill you”. The mother was scared and drove to the home of Mr M, one of the father's brothers. The father left Mr M’s home, and the mother rang her son Y, who was at the parties’ home, and told him to leave. Mr M and his fiancé Ms R drove the mother and X to the parties’ home, where she found the father sitting on a bed. The father took X off Ms R, and Mr M intervened and told the father to give the baby back, and the father “eventually” gave X to the mother. The mother found Y hiding under bushes across the road from their home. Y would have been about twelve at that time. The mother then left the parties’ home and went to stay at Mr M’s home with X and Y.
The mother was asleep at Mr M’s home when the father arrived. When the father's demands to be let in were not met, he smashed the door open and there was then a physical fight between the father and his brother Mr M during which items in the house and internal walls were broken. Ms R called the police but Mr M did not want to press criminal charges against his brother. Mr M asked the mother not to come to his home again for protection from the father.
This is another incident of serious family violence by the father on the mother, involving a threat to kill, and violence by the father against his own brother when that brother sought to provide the mother with a safe refuge. It well demonstrates the extent to which the father is prepared to go to control and coerce the mother to bend her to his will.
November 2004
In November 2004, the parties attended a wedding. The father had been drinking at the wedding, and on the way home, the father said he wanted to go to the mother's ex-boyfriend’s home. When the mother refused, the father threatened to “fuck your life up like you have fucked up mine” if she did not drive him there. The mother got out of the car and started to walk away. The father chased her, picked her up and carried her back to the car, the boot of which was open, and said he was going to put her in the boot. The parties struggled, and then both got back into the car and continued to argue.
The father then put on some work gloves and began to choke the mother with both hands around her neck, saying “I am going to strangle you”. Later on the drive home from the wedding, the mother pulled up on the motorway and the father kicked the dashboard and the windscreen from the inside cracking the windscreen.
The mother drove on a little further and stopped the car again on the side of the motorway and got out of the car. The mother and father were arguing, during which the father threatened to throw the mother into the path of oncoming motorway traffic. Another motorist stopped and asked if they needed assistance, to which the father replied that the mother had gone crazy and kicked the windscreen in. On seeing that the passenger in the car that stopped appeared to be heavily pregnant, the mother told the other driver to go, she would be fine. When the other driver asked her “Are you sure?”, the mother replied he should just go now.
The mother then drove on again, but stopped at a taxi rank at a township in the (omitted), got out of the car, and began walking towards some people when she saw that the interior roof of her car was on fire. The father had been flicking a cigarette lighter and before she got out of the car had threatened to set the car on fire. The mother put the fire out. She attempted to run away again but the father set the roof alight again. She returned to put it out and then ran away again, only to have the father set it alight again. The father set the roof alight four times in all. She put the fire out each time with her hands, burning her hands.
On the fourth occasion the mother put the fire out, the keys had been removed from the ignition, and the father tried to get her out of the car. She put the keys back in the ignition and drove away with the father hanging onto the window. The mother was frightened and feared the father would kill her if she did not get away. She went to the nearest police station a little further up the (omitted) and reported the incident.
The paternal grandfather and another brother of the father, Mr S had been minding the children. They stayed the night to reassure the mother. The mother expressed concern the father would gain entry through a sliding glass door despite it being locked by lifting it off its hinge, saying he had gained entry this way before, and the paternal grandfather and Mr S slept in front of the sliding door. The mother locked all the other windows and doors. Nonetheless, the father gained entry to the house and entered the mother's bedroom. The paternal grandfather awoke and told the father to come out of the bedroom. The father refused. While the paternal grandfather and Mr S remained the night, they did nothing more to have the father leave the mother's bedroom. The mother did not suggest there were any threats or violence by the father after he entered her room.
When cross-examined about this incident, the father said he could remember the occasion, that the mother was driving as his licence had been cancelled, the mother stopped the car, it was possible he opened the boot but could not remember, he did not remember picking the mother up and carrying her back to the car, and he could not recall putting on gloves but said it could have happened. He said he remembered the car stopping on the motorway and that another car stopping, but could not remember its occupants enquiring if the mother needed assistance. He agreed they drove on and stopped at a township in the (omitted), but said it was he, not the mother, who got out of the car. He admitting he set fire to the car, to get the mother back into the car. This is inconsistent with his assertion he, not the mother, alighted from the car.
I was not satisfied with the father's apparent selective memory about this incident, and the inconsistencies in it. He admitted deliberately setting fire to the car to get the mother to come back to the car, as the mother alleged. I accept that this incident occurred as described by the mother, and is another instance of serious family violence by the father against the mother.
“When Z was younger”
When Z “was younger”, as the mother described it, and not doing as the father had asked, the father squeezed her shoulders and lifted her up. He placed his face very close to hers and was yelling at her. Z slapped his face, and the father threw the child “a couple of feet across the room”. Z was winded when she landed with a loud thump on her back. The mother intervened telling the father to leave her children alone.
This is both an instance of family violence and of child abuse by the father.
Following separation in March 2009
After the father moved to live at his mother's house in March 2009, he returned to the mother's home a number of times and gained entry during the night despite her locking the doors and windows. There were several nights when she woke up and found the father lying in bed with her.
One night in March 2009, the mother woke up to see the father entering her room. She told him to leave or she would call the police and picked up the phone. He replied “I’ll cave your fucking head in before they arrive”, and she put the phone down. They argued for a while, the father entered the bed, she refused his sexual advances, and eventually went to sleep with the father in her bed.
She awoke in the morning. The mother’s elder children left for the school bus while she was still in bed. Before she got out of bed, the father forced the mother to have sex with him against her wishes, during which X entered the bedroom. The father did not stop his sexual assault on the mother but told X to leave the room and go and get ready for school, which she did. She mother did not report this incident to police.
This evidence was unchallenged in cross-examination and uncontradicted by the father.
This is an allegation of a serious criminal offence. However, these are civil proceedings and the standard of proof required is the balance of probabilities (Evidence Act 1995 (Cth), section 140(1)). In determining whether it is so satisfied of a fact, the court must take into account-
“(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.” (Ibid, section 140(2))
Although unchallenged and uncontradicted, the mother's evidence is lacking in particularity. For instance, she does not explicitly say how the father “forced” her to have sex against her will, that is, whether by physical force, threats, a combination of the two, or by some other means, although I note her evidence of the father's threats some hours earlier to “cave her fucking head in” before the police could arrive if she attempted to call them for help. While the mother did not report this incident to police, she made other complaints to police of criminal conduct towards her by the father, both before and after this incident. The mother’s explanation for not reporting this incident was that she was “upset”. I note that reporting a sexual assault involves rather different considerations for a victim than reporting stalking, threats or physical abuse.
Having regard to the seriousness of this issue, but considering the unchallenged and uncontradicted nature of the mother's evidence, and my accepting her as a reliable and truthful witness, I accept the entirety of the mother's evidence about this incident, and find that-
a)Shortly after the father moved out of the mother's home in about March 2009, he returned to the home one night and gained entry without the mother's knowledge while she was asleep;
b)When the mother told the father to leave and attempted to call the police, he threatened to cave her skull in, which clearly was a threat to kill the mother;
c)The mother refused the father's sexual advances, and ultimately fell asleep with the father in her bed, which she was then powerless to prevent;
d)The following morning, after the older two children had gone to school but while X was still at home, the father forced the mother to have sexual intercourse with him against her will;
e)During his sexual assault of the mother, X entered the room, and more likely than not would have become aware that her father was hurting her mother; and
f)The father told X to go and get ready for school and continued his sexual assault of the mother.
I am satisfied this was an incident of serious family violence.
After March 2009
The father did not like the mother seeing other people after their separation and there were occasions when the mother was visiting people and the father rang her on her mobile phone and told her if she did not leave now, he would come to where she was and cause trouble. On one occasion the father told her that if she did not stop seeing a man she had been seeing while the father was in gaol “I will have sex with his teenage children and film it and send it to their father”. It seems that man was Mr C, her current partner.
I am satisfied this was a further incident of family violence by the father against the mother.
Early April 2009
In early April 2009, the mother received several phone calls from the father in which he threatened to harm two men she had relationships with while he was in gaol, threatening to burn their houses down and watch them (the men) burn.
I note that the COPS record of the mother's complaint about these threatening calls includes the observations of the police officer recording the event as follows-
“The victim was teary at times and it was obvious she has genuine and serious fears of the (father). It was obvious to police that other (possibly serious) incidents have occurred recently with the (father), however the victim would not disclose any other incidents. The victim appeared to have a swollen and bruised left eye, however she would not confirm or deny this was caused by the (father). The victim declined to make a statement at this stage.”
After the mother made complaint to the police, they applied for an AVO for the protection of the mother. An urgent AVO was granted on 7 April 2009. It is not in evidence.
I am satisfied these phone calls were further instances of family violence by the father against the mother.
13 and 14 April 2009
On 13 April 2009 the mother received three text messages from the father. The mother responded to them. The father then rang her and they spoke for 55 minutes. The mother said she could not remember what they talked about, but said she told the father he was not supposed to call her.
Thereafter, the mother received 16 text messages from the father between 4.36 pm and 12.40 am the following morning, after which she turned her phone off. She also received four phone calls from the father between 7.42 pm and 11.00 pm.
The AVO application was before the court on 14 April 2009. The mother attended court. The father did not attend, but from text messages he sent the mother that day, he was aware there were AVO proceedings at court that day, and that the mother was at court for those proceedings.
The mother received three phone calls from the father while she was at court, between 11.17 am and 11.30 am. She also received 6 text messages from the father that day between 10.37 am and 12 noon.
A final AVO was made against the father for the protection of the mother on 14 April 2009 for a period of two years containing the mandatory orders and restraining the father from going within 250 metres of the premises where the mother may from time to time reside or work. The father was not present when the order was made, but as mentioned I am satisfied he knew about the AVO proceedings and when and where they were being heard, and I am satisfied any ignorance of those orders was wilful on the part of the father.
In the circumstances of the number and frequency of the father's communications with the mother at this time, I am satisfied they were harassing of her and amounted to family violence against the mother.
15 April 2009
On 15 April 2009, the day after the AVO was made, the mother attended the paternal grandparents’ home, where the father was living, at the father's request so he could see X. I have referred to this incident, and the challenge to two aspects of the mother's police statement about it, when dealing with the credit of the witnesses.
The mother met the father on the driveway of the property. The father was living in a caravan at the rear of the property, and when the father asked her to come down to the caravan, she refused. The father then took hold of her arm and pulled her down the driveway towards the caravan. When they got to the caravan, the father and X entered and the mother stayed outside. When the mother refused the father's requests to enter the caravan, the father came out, grabbed her hands and pulled her into the caravan.
The mother sat on the edge of the bed. Soon after the father grabbed her bodily and lifted her over onto the bed. She kept trying to sit up, saying she did not want to be there and it made her feel sick, but the father kept pushing her so she would lie down. He did this three times. She told the father that she wanted to leave, then heard dogs barking and the father told her to stay in the caravan as it was the police. She stayed in the caravan because she believed she would be in trouble with the police for being with the father while there was an AVO in place. The father came in with a copy of the AVO, which he screwed up and put in the bin. She got up and went outside with X and the father followed them.
The father picked X up and said-
“I’ll put a movie on and give you some chocolate. I’m going to have a shower with Mummy.”
The mother replied “No way”, and the father grabbed her in a bear hug, lifted her off the ground and started to carry her towards the main house. When she said she had to go, the father let her go and she went back to her car, followed by the father carrying X. She then left with X.
The mother's evidence did not suggest she strongly resisted the father's attempts to physically bring her to and into the caravan and onto his bed. However, in my view it was not necessary for her to do so. The fact it required any physical force from the father to bring the mother into the caravan shows the mother was resisting the father, but he would not be thwarted in achieving what he wanted. In any event, I am satisfied the mother was extremely fearful of the father, and with good reason. I am satisfied that it was through her fear of the father and consequent inability to be assertive in resisting his requests and demands that she agreed to his request to bring X to him the very day after an AVO was made for her protection.
Another appropriate observation to make about this incident and the father's consequent arrest and remand in custody on a charge of breaching the AVO on this occasion is that even if the father had not taken the mother in a bear hug or pulled her into his caravan, the balance of the mother's version of this incident, unchallenged and uncontradicted, would have been enough to sustain a charge of breaching the AVO. And yet the father alleged that the mother deliberately had him imprisoned “on a lie”. All the evidence before me satisfies me that it is simply untrue.
I am satisfied the father physically taking hold of the mother several times on this occasion to have her do what he wanted against her will amounted to family violence by him against the mother.
14 - 18 April 2009
The mother sent the father a text message at 12.57 pm on 14 April 2009 telling him the final AVO had been granted for two years, advising him the constant text messages were harassment, and asking him to “please stop contacting me”. After sending the father that message, she said she received a further 11 telephone calls and a further nine text messages from the father on 14 April 2013, the last phone call being at 9.46 pm and the last text message at 9.53 pm.
The mother said that on 15 April 2009, she received approximately 15 phone calls and 16 text messages from the father, on 16 April 2009 eight phone calls including one at 2.06 am, on 17 April 2009 about six phone calls and five text messages, and on 18 April 2009 nine text messages.
The mother said the constant phone calls and text messages from the father made her feel very harassed, and caused her to begin turning her mobile phone off at night so her sleep was not disturbed.
I am satisfied this harassment of the mother by the father constituted family violence.
On 28 April 2009, the mother made an application to vary the AVO made on 14 April 2009 by restraining the father from approaching or contacting her except through his legal representative or as agreed in writing or as permitted by an order under the Family Law Act 1975 for counselling, conciliation or mediation, and by extending the operation of the AVO as amended to her three children, including X, and the then 17 year old girlfriend of Y, Ms L, who was living in the mother's home.
That application was heard the following day, and the AVO was amended as the mother sought. It was to continue in force for two years from 29 April 2009. The amending AVO noted that the father was present when the order was made.
On 26 November 2009, the father was convicted on two counts of breaching the AVO made on 14 April 2009, and sentenced to the rising of the court, he having been remanded in custody when initially charged with these and other offences earlier in the year.
17 November 2010
On 17 November 2009 the father followed the mother while she was driving in her car, the father driving very close behind her vehicle.
In light of the father's history of violence and harassment of the mother, I am satisfied this was an incident of family violence.
23 December 2010
On 23 December 2009, while the mother was in her car in a car park in (omitted), the father parked his car two spaces away from her and sat in his car watching her. She then drove to another car park in (omitted), and saw the father drive his car around the car park to which she had moved.
I am satisfied this was stalking behaviour and amounted to family violence by the father against the mother,
24-25 April 2011
Mr C stayed at the mother's home on the night of 24-25 April 2011, parking his motor vehicle outside her home. The following morning the mother and Mr C discovered all four tyres on Mr C’s car had deflated. Later Mr C discovered that each tyre had two punctures in the tyre wall, and he had to replace the tyres.
The mother and Mr C both believe the father is responsible for deliberately damaging Mr C’s motor vehicle on this occasion. The father denied damaging Mr C’s car.
This incident occurred shortly after the mother stopped the father's time with X under the interim Terms of Settlement the parties entered into on 25 February 2011 when she became aware that the father's time was not being supervised as agreed. The father was due to spend time with X supervised by the paternal grandfather on 17 and 24 April 2011, but was prevented from doing so because of the mother's decision. I am satisfied that the father had the motive and the opportunity to damage Mr C’s car as retribution against the mother. An order for a Family Report is made in accordance with Exhibit stopping his time with X, and his amply demonstrated tendency to resort to violence against the mother and damage to her property to get what he wanted suggest damaging Mr C’s car would not be out of character for the father. There was no evidence to suggest anyone else would have wished to harm Mr C or damage his car.
In all the circumstances, and notwithstanding the seriousness of such a finding, I am satisfied it is more likely than not that the father caused the damage to Mr C’s car.
However, as Mr C was not and never has been a member of the father's family for the purposes of the definition of family violence (see Family Law Act, section 4(1AB)), this was not an incident of family violence. It was however an incident of violence by the father directed at the mother's de facto partner and through him at the mother, and typifies the father's propensity to use violence to get his way.
8 May 2011
The mother attended the (omitted) on 8 May 2011, travelling there in her car with Mr C and X. The mother's son Y also drove there in his car with the mother's elder daughter Z and his girlfriend. When the mother parked her car, Y pointed out to her that the father's car was parked nearby. Despite not wanting to remain parked there, she did so due to the difficulty of finding an alternate parking space.
When the mother went to leave about four hours later and commenced to drive off, Y told her there was petrol coming from her car. On Mr C inspecting the fuel line, he observed a clean cut in the fuel line that appeared to him to have been made by a knife.
On 10 June 2011, when X arrived home from school, she told the mother that the father had been waiting for her at the bus stop and had offered to drive her home, but she declined. She said the father wanted to take her to McDonald’s and was waiting outside for an answer. The nearest McDonald’s was approximately 45 minutes’ drive away. The father then knocked on the door. The mother did not open the door but spoke to the father through the closed door. When the father said he wanted to spend time with X, she accused the father of cutting the fuel line and putting X’s life in danger, to which the father replied:
“We can stand here all day and talk about what we’ve done to each other. I am sorry.”
The father admitted in cross-examination seeing the mother's car when he returned to his vehicle when leaving the (omitted), but denied damaging it.
As with the damage to Mr C’s car two weeks earlier, I am satisfied the father had the motive and the opportunity to damage the mother's car, and that doing so would be consistent with his prior violent and abusive behaviour towards the mother. He failed to deny causing the damage in the conversation with the mother on 10 June 2011, and his ambiguous reply implied that he had done so.
Despite the seriousness of such a finding, in all the circumstances I am satisfied it is more likely than not that the father caused the damage to the mother's car on this occasion. I am satisfied this is another incident of serious family violence by the father against the mother.
When the father attended the mother's home on 10 June 2011 as just referred to, the mother attempted to contact her domestic violence worker without success when Z first told her the father was waiting outside.
Mr C arrived with Z while the father was at the front door talking with the mother. As he entered the front door he passed the mother and observed her to be shaking. The mother ultimately agreed to the father talking to X at the bottom of the steps of her house with Z present to supervise. When she came inside when the father was outside with X and Z, Mr C observed the mother to be shaking so much she could barely stand up.
This evidence of the physical manifestations of the stress and anxiety the mother experiences when having to deal with the father is supported by statements Z made in a police statement she gave on 23 August 2011. Referring to the father's attendance at the mother's home on 10 June 2011, she said that when she arrived with Mr C, her mother looked “really scared”. She added:
“When Mum has any contact with (the father) she is becomes (sic) very quiet and jumpy. She won’t eat very much or talk much. This goes on for days and some times weeks when she knows she has a Court matter coming up with him (like Family Court). I wish (the father) would leave my Mum alone. I hate seeing her upset and scared.”
The Family Consultant said that given there had been a history of AVO’s against the father for the protection of three different partners, his breaching two of those orders, and the risk to the child from exposure to family violence, he was concerned for the child with the father in the future if the father repartnered.
He expressed the opinion that given the failure of Mr N’s intervention and the March 2013 incident, he could not see any basis on which he could recommend face to face time between the father and the child, and he could not see how it would be useful for the child to spend time with the father. He noted that time supervised by someone the child trusts had been tried already unsuccessfully and he did not support it as it was unlikely to be any more successful now than previously.
The Family Consultant was not challenged as to the correctness of his opinions and I accept them.
The applicable law
The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders. As previously alluded to, since the proceedings commenced before 7 June 2012, most of the amendments to Part VII of the Act and to definitions for Part VII that commenced on that date do not apply to these proceedings (Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Schedule 1, Part 2).
The Court may make such parenting order as it sees fit, subject to sections 61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (section 65D).
Except to the extent Terms of Settlement entered into between the parties in these proceedings may be argued to be parenting plans, the parents have not entered into any parenting plans about X. It was not submitted on behalf of either party that there were any relevant parenting plans, and section 65DAB is not relevant.
Section 60B sets out the objects and principles of Part VII. In deciding what parenting order to make, the child’s best interests are the paramount consideration (section 60CA). Section 60CC indicates how the court determines the child's best interests.
The Full Court of the Family Court of Australia explained the interplay between sections 60B and 60CC in Goode v Goode, [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
If the court is to make an equal shared parental responsibility order, the court must consider the child spending equal time with each parent, and if such an order is not to be made, must consider the child spending substantial and significant time with each parent (section 65DAA). In relation to each of these options, which the court must consider sequentially, not concurrently, the court must consider whether such an arrangement would be in the child's best interests (section 65DAA(1)(a) and (2)(c)) and then consider whether such an arrangement is reasonably practicable (section 65DAA(1)(b), (2)(d) and (5)) (see MRR v GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424). If so satisfied on both these matters, the court must consider making such an order (section 65DAA(1)(c) and (2)(e)).
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
Children can benefit greatly from having a meaningful relationship with both parents. It can provide a child with a sense of identity, a sense of self-worth to know both parents love them and thus they are worthy of their parents’ love, and can provide a child with links to their wider parental heritage through contact with or exposure to knowledge of their extended family, both paternal and maternal. Conversely, lack of a beneficially meaningful relationship with both parents can cause significant harm to a child, continuing into adulthood. The Family Consultant referred to these matters in cross-examination, and also expressed the opinion that spending time with her father may give X a more realistic image of her father based on her own experience of him, rather than her current view of the father, which he described as “demonised”.
Nonetheless, the Family Consultant was ultimately of the opinion that X would not benefit from having any more meaningful relationship with her father than may arise from the father sending her letters, cards and gifts. I agree with his opinion. In light of the child’s exposure to and awareness of the father's violence, particularly against the mother, her awareness of the mother's deep seated and justified fear of the father, her tenuous relationship with her father, her apprehension for her mother's safety from the father, and her resistance to seeing him, the prospects of this child having a beneficially meaningful relationship with her father are extremely remote.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am satisfied that there is a need to protect X from psychological harm from exposure to family violence and other forms of violence by the father. I am satisfied there exists a significant risk of the father being violent and of X being exposed to that violence if with him.
Despite both parties asserting they attempted to shield X from their arguments and the father's violence, I am satisfied she was exposed to his sexual assault of the mother and still remembers her father hurting her mother, as she mentioned to the Family Consultant, and I am satisfied she witnessed damage to their home caused by the father on a number of occasions. She has been exposed to the father's damaging the mother's car and Mr C’s car. She was the first to discover the damage that caused Mr C’s car to be written off, and was greatly upset by it. She is aware the father caused this damage.
I am not satisfied the father has any real appreciation of the effect on X of his violence. Nor am I satisfied he is genuinely remorseful for his past appalling behaviour. His lack of candour in his evidence in chief about what behaviour he claimed to regret with the relatively trivial matters he professed in cross-examination to be remorseful for, and his failure to identify what impact on the mother and X he claimed to have come to appreciate his actions had while in gaol from 2007 to 2009, are not consistent with a person genuinely appreciative of and remorseful for the consequences of their violent actions.
I am satisfied that in fact the risk to X from exposure to the father's violence is also a risk of neglect by the father. I am satisfied that the serious adverse effects on X of the father's violence that already exist, and the risk of serious and long term psychological harm that exposure to violence can cause a child, are sufficient to support such a finding.
Assessment of additional considerations (s.60CC(3))
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
X expressed to the Family Consultant a fear of the father and a wish not to see him. I am satisfied X’s views are not the result of the mother attempting to turn X against the father, nor am I satisfied they are the result of the mother inappropriately exposing X to her deep seated fear of the father.
Ms T, a counsellor who saw X under the Victims of Crime Counselling Service as a “secondary” victim of family violence, stated in a letter dated 13 October 2010
“(X initially) presented as very sensitive to any anger in her home environment with an elevated sense of protection of her mother within the family. She presented as watchful and anxious in her surrounding (sic) with a hyper-vigilance and monitoring that is usually seen in children that have witnessed violence. X was having difficulty separating from her mother and viewed her mother as in need of protection from her father.
X is well supported by her mother and older siblings and appears to be meeting her developmental milestones and have good peer relationships at school. X has been able to build up a trusting relationship in counselling and started to talk more about her fears. These fears involved her father returning to the home and assaulting her mother again, she also worried about the safety of her siblings. … X views her father as a potentially very violent man and this view is based on her experiences of him in the past.”
I note that Z reported in one of her police statements that she and Y would retreat with X to their bedrooms when the mother and father began to argue, suggesting the children were more aware of the conflict between the parents than either of them believed.
I am satisfied the mother has exposed the child to her fears of the father. However, against the background of serious and persistent violence against the mother by the father, including threats to kill her, the father's threats of serious harm against men with whom the mother had formed romantic relationships, including her current partner, and his damaging the mother's property before and after separation and damaging Mr C’s property after separation, I am satisfied this was not inappropriate, and nor was it to attempt to turn X against the father. I am satisfied the mother appropriately sought to put in place measures for the personal protection of herself, her three children, and Mr C, and this of necessity required her to inform X of the risk and the reason for it that the father posed to the safety of the mother and other members of her household. However, I am not satisfied this is the sole or principal reason for X’s fear of the father and her wish not to see him. She has seen and heard the father's violence for herself, and I am satisfied she has been deeply affected by it.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
X has a close and loving relationship with her mother.
X’s relationship with her father is marked by fear of his violence and of its potential effect on herself and her mother, for whom X holds protective concerns because of the father's violence she has witnessed.
The child I am satisfied had a good relationship with both of the paternal grandparents until the parties separated. They babysat X on occasions, and the mother had a lot to do with the paternal grandparents until final separation. However, it is concerning that the paternal grandfather did not take his responsibilities as supervisor of the father's time with X under the February 2011 interim orders seriously, and effectively abandoned his responsibilities on more than one occasion. It is also concerning that the paternal grandmother saw fit to attempt to physically force her way past Z to get to X over the mother's objection on an occasion after separation when she encountered the mother and her children in a restaurant. As already mentioned, neither of the paternal grandparents were called as witnesses, despite the father putting them forward as supervisors of his time with X under the orders he ultimately sought.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I am satisfied that the mother is unable to facilitate and encourage any relationship between X and the father. I am satisfied this is a result of the mother's justified deep seated fear of the father and what he may do to her because of her experience personally of his violence and her knowledge of his violence towards others. I am satisfied that objectively there is no basis for concern that the father would deliberately harm X physically, but I am satisfied there is a risk of X suffering psychological harm from exposure to the father's violence, and I am satisfied there is a real and significant risk of the father becoming involved in further violence, whether that be with a female partner, a guest at his house for a social gathering, or someone he happens to meet and with whom he comes into conflict. I am also satisfied there is an ongoing risk to both the mother and Mr C from the father.
Thus, I am satisfied there are genuine objective bases for the mother's fears, and as the victim of serious and persistent family violence by the father, I am not satisfied the mother is warranting any criticism for her inability to facilitate and encourage X’s relationship with the father because of the ongoing serious impact of that violence on her and the manifestations of that impact, for example her fear and hyper vigilance, the installation of security cameras at her home and her restrictions on some of X’s activities, even though this exposed X to the mother's fears and the reasons for it, and must influence the child’s attitude towards her father. However, as mentioned, I am not satisfied either that the mother has deliberately set out to turn the child against the father or that the child’s views of her father are solely based on exposure to the mother's views of him.
The mother has sought to deal with her personal legacy of the father's violence through therapy she had over the past five years, but she has had to keep reliving her experiences of the father's violence through the continuation of these proceedings.
The mother has also sought counselling therapy for the child to address the child’s extreme protectiveness of her mother, which has improved with counselling although X retains a fear of the father and a concern for her mother's safety. The Family Consultant said the mother arranging this therapy for X indicated a proper parental insight into the child’s needs. That counselling stopped when the therapy with Mr N was ordered as a term of the orders for that therapy.
The Family Consultant said that it would be difficult for a parent who had been the victim of violence as the mother alleged to draw the appropriate line between giving the child appropriate messages about safety from the father and undermining the child’s view of the father, adding that it would be a sophisticated parent with a clear focus on the child who could do it. He said that if the primary carer experiences an acute level of anxiety about the father, as I am satisfied the mother does, it would be likely to transfer to the child, and if the court accepts that the primary carer is not maliciously trying to keep the child from the other parent, as I do, the court should prioritise the primary carer’s safety and reassurance. I accept this evidence of the Family Consultant.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I am satisfied that allowing any face to face time between X and her father would be seriously detrimental to X. It would be against her clearly expressed wish not to see him, it would heighten her fear of her father and her anxiety about her mother's safety from the father, it would risk exposing her to the father's violence, whether drug and alcohol induced or not, and it would cause a high level of distress and anxiety to the mother, acutely heightening her fears for the safety of X and herself, with a consequent risk of a real impairment of her functioning as X’s primary carer and source of security.
I am not satisfied supervised time with the father would address any of these concerns. Supervised time failed in 2011 because one of the supervisors the father now proposes abandoned his responsibilities, and neither of the proposed supervisors were called as witnesses and made available for cross-examination. I accept the mother's evidence that despite the paternal grandparents assisting the mother by babysitting X many times before the parties separated, after separation there was an incident at a restaurant when the paternal grandmother forcibly and against the mother's opposition sought to approach X, pushing Z physically in the process, apparently on the basis that it was her right as X’s paternal grandmother to approach her. I am satisfied there could be no greater confidence in the paternal grandmother conscientiously exercising a supervisory role of the father's time than the paternal grandfather.
As previously acknowledged, the adverse consequences for X of not spending time with the father are also very serious. The Family Consultant was concerned it would leave X with a demonised image of her father, it will deny X any real relationship not only with her father but with her extended paternal family, and it will thus deny her contact with part of her heritage. It may significantly harm her self-esteem. It will however conform to her wishes, alleviate her anxiety about her mother's wellbeing, and protect her from exposure to her father's violence.
I am satisfied on balance that the benefits of X spending no time with her father outweigh the tenuous prospective benefits to her of spending time with him, and that there are the significant risks and detriments of X spending even supervised time with her father.
I note in any event, and concur with, the opinion of the Family Consultant that it is highly unlikely that any regime of X spending time with her father would succeed, given the failed attempts to put such regimes in place during the course of these proceedings. I also note and concur with the opinion of the Family Consultant that further failed attempts to initiate time between X and her father is likely to further damage X’s image of her father.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is not a relevant consideration.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that the mother is aware of X’s needs and has met them in the most difficult circumstances of the continuous risk of the father’s violence. She has taken professional advice about managing her fear of the father, and when advised information she has given X may be inappropriate has sought and followed advice about how to more appropriately deal with exposing X to her attempts to secure the safety of herself and her family from the father's violence.
I was left with the clear impression that the father did not understand the child’s needs at all, and so could not meet them. On the second day of the hearing, when his application was for overnight time and included three weeks in the Christmas holidays, the father said he believed X would cope with the immediate introduction of overnight time, and that a reintroduction period was unnecessary as he had had that over the past few years. In fact, in the past few years up to that point, three attempts to reintroduce time had broken down – time supervised by the paternal grandfather, supervised time at the contact centre and the therapeutic approach with Mr N. The Family Consultant expressed the opinion that the father seeking to move immediately to overnight time with no gradual introduction of time, as he did at that stage of the hearing despite having read the Family Report, showed a lack of insight by the father into X’s needs.
When taken to the Family Report writer where the child was reported to have said she felt safer when the paternal grandfather was present to supervise her time with the father, that she did not like the father, that she understood her mother did not like her seeing her father and that a court decision that she not see her father would be “much easier because I feel slack when I’m mean to Mum”, the father said that it did not impact in any way on what he was seeking, and that he did not think his proposals might cause a conflict of loyalties for the child.
When asked what effect cancellation of the appointment with Mr N because of his incarceration in March 2013 may have had on X, the father said he did not know, probably not huge because he does not live with her, not big at all. He then added that he did not think they needed to go to therapy, it was just another hurdle he had to go through to spend time with X. That this was the father's attitude despite knowing of the recommendations of the Family Consultant that it would be futile to attempt to implement any regime of spending time without first having family therapy, and despite the father having consented to orders for that therapy, demonstrates not only a cynical attitude by the father to therapy and to court orders and the whole court process, but also a self-centred rather than child focussed attitude to matters concerning X.
As previously mentioned, I am not satisfied that the father has any real appreciation of the effect on X of exposure to his violence. This is another aspect of X’s needs that the father seems singularly unable to meet.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I note X’s age at the time she expressed her views to the Family Consultant, namely eight years and eleven months. I am not satisfied there are any other matters relevant to this consideration that have not previously been addressed.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
This consideration is not relevant.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied the mother has demonstrated an appropriate attitude to X and her needs, and to her responsibilities as X’s mother. As already mentioned, I am satisfied that the mother's exposure of X to her fear of the father was not inappropriate in the circumstances of her having been the victim of serious, persistent family violence and her need to ensure the safety of herself and of all members of her household, including X.
I am satisfied that the father's serious and persistent family violence, his lack of any true remorse for his actions, and his failure to appreciate its serious adverse impact on X demonstrate an abysmal attitude to X and to his responsibilities as X’s father. He claimed to have shielded X from “arguments” with the mother, yet when X entered the bedroom while he was sexually assaulting the mother shortly after separation, he told her to go and get ready for school and continued his assault on the mother. I am satisfied that while the father loves his daughter, he is unable to place her needs ahead of his wants.
(j) Any family violence involving the child or a member of the child’s family
I have set out my findings as to the pervasive serious family violence that marked the parties’ relationship, and its significant adverse impact on the mother, on X, and on Z as well.
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
I have set out the details of family violence orders as disclosed in the evidence.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I am satisfied it is very much in X’s best interests to make the order least likely to lead to further proceedings. X is fearful of the father and apprehensive for her mother's safety from the father. The effect on the mother of the father's violence towards her has been profound. The mother's presentation and effect on every occasion this matter came before me, including for the whole duration of the final hearing, was striking, and was consistent with the mother being terrified of the father and of being in his presence, even in the courtroom. The continuation or renewal of proceedings, in which she must relive in her evidence numerous incidents of serious violence, including threats to kill her and her acquaintances, perpetuates that impact. This in turn I am satisfied risks compromising the mother's capacity to parent X.
An order for any time between X and her father is likely to fail, and lead to further proceedings. These proceedings have been unduly protracted, in part because the father failed to prepare for the hearing when first scheduled. He sought to further protract the proceedings by twice seeking to delay or adjourn the final hearing when it came before me for the second time, again because he said he was not ready.
I am concerned that any further protraction of these proceedings, or the avoidable institution of fresh proceedings, risks making X the victim of systems abuse and needs to be avoided if at all possible.
I am satisfied that the order least likely to lead to further proceedings is one that the father spend no time with X.
(m) Any other fact or circumstance that the court thinks is relevant
I am not satisfied there is any other relevant fact or circumstance to be considered.
Sections 60CC(4) and (4A)
The mother admitted that since separation in 2009, she had not fostered X’s relationship with the father or with the paternal grandparents. When the father was in custody from April to November 2009, she made no attempt to arrange for X to see the paternal grandparents. She said they did not ask to see her, and she did not attempt to arrange time for X with them because they were supporting the father.
I am not satisfied the mother is warranting of criticism for this in light of the history of family violence she endured. That the paternal grandparents supported the father against her despite his violence, some of which the paternal grandparents were aware of both against the mother and against others, is troubling. It suggests they too fail to appreciate the significant adverse effect on children of exposure to violence.
Decision
There is no issue that X should continue to live with her mother.
The father sought what I infer was equal shared parental responsibility, while the mother sought sole parental responsibility and the Independent Children's Lawyer proposed sole parental responsibility to the mother other than in relation to the child’s name.
Because of my findings of family violence by the father against the mother, the rebuttable presumption as to equal shared parental responsibility under section 61DA does not arise (section 61DA(2)).
Because of the father's past violence against the mother, the ongoing risk of violence and abuse of the mother by the father, the mother's justified deep seated fear of the father, the adverse effect on the mother of having to deal with the father, and the fact the mother’s ability to meet X’s needs may be compromised because of the effect on her of having to deal with the father, I am satisfied it would be in X’s best interests for the mother to have sole parental responsibility for X. The parents cannot communicate in a child focussed manner, so pervasive is the impact of the father's past violence on the mother on their current relationship, and hence they are not able to exercise equal shared parental responsibility. The mother withdrew her application to change X’s name during the hearing, and in the circumstances I am satisfied it is unnecessary to exclude parental responsibility for X’s name from the sole parental responsibility order in the mother's favour.
I am satisfied that the benefits to X of a meaningful relationship with her father - assuming one could be fostered, and I am unconvinced one could be - are far outweighed by detriments to her of providing an opportunity for her to have a beneficially meaningful relationship with the father. I am not confident any order for her to spend time with the father would be successful, in light of the previous three failed attempts to provide that opportunity. It must be said that at least the first and last of those attempts failed solely because of the father's actions, while the second failed because of X’s distress at the contact centre.
I am satisfied that in this case there is a real need to protect X from psychological harm from the risk of exposure to the father's violence. I am satisfied that the risk of X being exposed to the father's violence if with him is significant, despite the father's assertions to the contrary. Given the nebulous relationship between X and her father and her resistance to spending time with him, the prospects of a meaningful relationship from which X might benefit being established between X and her father seem poor indeed.
I am satisfied there is a real risk of further harm to X from attempting to establish a regime of time between her and her father, even time supervised by the paternal grandparents or at a contact centre. I accept the opinion of the Family Consultant that therapeutic intervention is necessary to seek to provide a foundation on which any regime of spending time could be built before any further orders for spending time are made. The attempt at therapeutic intervention to establish that foundation, under the consent orders of 16 July 2012, failed because of the father's substance abuse and use of violence.
I am satisfied that in the particular circumstances of this case, it is in X’s best interests that she spend no time with her father. I accept the opinion of the Family Consultant that risk to X’s self-esteem if she believes her father does not want to see her may be reduced if the father is permitted to send her cards, letters, photographs and gifts, and I propose to so order. I am satisfied that the injunction for the personal protection of the mother and X to restrain the father otherwise approaching or contacting X or the mother in the terms sought by the Independent Children's Lawyer is appropriate in this case and necessary to protect and promote X’s best interests, by affording the mother some reassurance through the protection the order may afford her, despite the father's record of disregarding court orders.
Overseas travel
The mother hopes to save up for an overseas family holiday of about two weeks. However, her fear of the father is such that she could not approach him to consent to the issue of a passport for X, and hence she sought an order permitting her to take X for overseas holidays of no more than three weeks’ duration.
In cross-examination about this aspect of the mother's case, the father said he objected to X going overseas until he had spent some time with her. He otherwise said the mother taking X overseas worried him “a little bit”. He said he was worried about lots of things – the plane might fall out of the sky, and the mother might not bring the child back because the mother put him in gaol on a lie. This appeared to be a reference to the assertion put to the mother in cross-examination that she admitted lying in her police statement on the hearing of charges brought against the father shortly after separation that resulted in him being remanded in custody for some months. As previously mentioned when dealing with the credit of the witnesses, there is no evidence of any such lie or that the mother admitted to such a lie, and I am satisfied the mother did not lie.
The mother agreed with the proposition put to her in cross-examination by the father's solicitor that she had no intention of taking the child permanently overseas. This is at odds with the evidence of the father in cross-examination that he had such a fear.
I am satisfied the father's objection to the mother taking X overseas is primarily out of hostility towards the mother and driven by a desire to exert some control over her. I am not satisfied the father has any genuine concerns for X’s safety or welfare if taken overseas by the mother, nor am I satisfied his stated concern the mother may not return the child to Australia is genuinely held. The father did not articulate any rational basis for such a concern. I am satisfied there is virtually no risk of the mother not returning the child if permitted to take her overseas.
I am satisfied it would be in X’s best interests to allow the mother to take her overseas for short periods if the opportunity arose, and hence I will make the order the mother seeks in this regard.
I certify that the preceding two hundred and eighty four (284) paragraphs are a true copy of the reasons for judgment of Judge Halligan
Date: 13 February 2014
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Family Law
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Injunction
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