Niven and Ralph

[2017] FCCA 23

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIVEN & RALPH [2017] FCCA 23

Catchwords:
FAMILY LAW – Mother and father engaged in lengthy litigation for a period of 13 years – Court makes no orders as to 15 year old child who has significant behavioural difficulties and has been exposed to violence and conflict throughout his childhood – father seeks court orders to be used in a punitive approach to his parenting – findings of significant acts of violence by father who has had six apprehended violence orders made against him by separate litigants including former partners and current wife – orders made for 14 year old to live with mother and spend time with the father only as expressed to do so by the child through the mother.

Legislation:

Family Law Act 1975, ss.60CC, 65DAA

Cases cited:

Mazorski & Albright [2007] FamCA 520

MRR v GR [2010] HCA 4

Applicant: MS NIVEN

Respondent: MR RALPH

File Number: CAC 1874 of 2009

Judgment of: Judge Willis

Hearing dates: 14 - 17 March and 6-7 June 2016

Date of Last Submission: 7 June 2016

Delivered at: Cairns

Delivered on: 24 January 2017

REPRESENTATION

Counsel for the Applicant: Mr Berry

Solicitors for the Applicant: Legal Aid NSW Sydney Central

Solicitors for the Respondent: Self-represented

Counsel for the Independent Children's Lawyer: Mr Jackson

Solicitors for the Independent Children's Lawyer: Brian Samuel & Associates

ORDERS

Parenting Orders for X

1. That the child X born (omitted) 2002 (“X”) live with the Mother.

2. That X only spend time with the Father at times requested by X as expressed by X to the mother.

3. The mother is to ensure that X is not left in the sole care of her son Y.   

Parental Responsibility

1. The Mother is have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child X including but not limited to his child’s education, (both current and future), his religious and cultural upbringing, his health, his name, and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.

Parenting Orders for Z

1. That there be no parenting orders issued in relation to the child Z born (omitted) 2001.

Other Orders

1. The father’s application for X to live with him and/ or spend time with him is otherwise dismissed.

2. The Independent Children’s Lawyer is discharged.

3. All outstanding applications are dismissed and removed from the pending cases list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

CAC 1874 of 2009

MS NIVEN

Applicant

And

MR RALPH

Respondent

REASONS FOR JUDGMENT

1. This is an application regarding two children whose parents have been in litigation and argument since 2004, some 12 years. Ms Niven is the applicant mother (“the mother”) and Mr Ralph is the respondent father (“the father”).  After years of ongoing litigation, it can fairly be said that the mother and father are seasoned litigants in the Federal Circuit Court, the State Children’s Court and the State Domestic Violence Courts.

2. Unsurprisingly, their eldest child, Z, born (omitted) 2001 (“Z”) now 15, whose childhood has occurred in the context of his exposure to each of his mother and father having issues of domestic violence separately and jointly both with each other and other partners, has now given up on school and significantly given up on his parents.  Z has been left with significant developmental issues, having been diagnosed with ADHD, ODD, and “attachment disorder” many years ago. He is sadly now a student whose behaviour is beyond anything a mainstream school could accommodate and his relationship with his parents is such that he is beyond listening to or complying with requests of his parents or for that matter, anyone else in authority such as his teachers.  Z has serious issues with authoritarian figures.  The interference to his education caused by his disrupted childhood has left him totally devoid of the skills and learning necessary to enter the work force as Z struggles even with the basic skill of reading.  His diagnosed condition, his exposure to parental conflict for 12 years and his overall instability throughout his childhood have left him ill equipped to obtain employment, focus on education or a vocational course, or behave in a socially acceptable manner.

3. Z has a younger brother, X, born (omitted) 2002 (“X”).  X will be turning 14 in (omitted) 2016.  X, whilst living with the mother, missed school last year for over 100 days.  That amounts to almost half of the academic year. He too has significant behavioural issues though they are not as complex and serious as his older brother.  They are nonetheless very serious, disabling and problematic and the possibility of employment or study in the future is dependent upon him having stability in his home life and education in the future.

4. An Independent Children’s Lawyer (ICL) has been appointed in this matter. The submissions made on behalf of the ICL by his Counsel, Mr Jackson, are to the effect that there is very little the Court can do to assist either of these children given their appalling childhood, characterised by ongoing litigation, family violence, disruption to their schooling, multiple partners of each of the parents and the massive instability that both X and Z have been subjected to over the past 12 years. The ICL submits no orders should be made regarding Z given his age and educational and developmental deficits.  Literally Z is doing what he wants each day and living wherever he wants.  He is beyond being directed what to do by his parents for whom he has lost all respect, and school teachers for whom Z shows utter disrespect as he does for any authority figure. I am satisfied on the evidence before the Court, including the observations of the Report Writer and others such as a variety of teachers, that there is no hope that Z will live anywhere other than where he chooses, or that he will do anything he does not want to do. 

5. The father has another much younger child, A, from another relationship.  Having read the material about A, he shows emerging signs of the bullying, anti-social behaviour of his older half-brothers. 

6. A constant presence in the lives of Z and X for the last 11 or 12 years has been the ongoing involvement of the Child Welfare Department of either New South Wales or the ACT.[1]  The subpoenaed records reveal regular reports from community members and others who have reported concerns about each of these children going back many years.  School records as seen through the subpoenaed material show teachers being alarmed at the anti-social and violent behaviour of both boys. The subsequent significant disruption and consequences to each of their school lives is also tracked through these records.  As if all of this chaos is not enough, the boys Z and X have been separated from each other for years (2) while one or other of the mother or father has decided to hold them over from the other parent. 

   [1] In NSW – Department of Family & Community Services; In the ACT – Department of Community Services Office of Children, Youth and Families.

7. The history of the litigation has been set out comprehensively in the case outline document of the ICL. I adopt the contents of that document. Their chronology includes the parties commencing a relationship in 2000 and separating in June 2003 with police involvement.  Final Orders were made on 17 January 2005 providing for the children to live in a shared care arrangement.  Final Orders were made again on 7 November 2005 with the children to then live primarily with the father and spend alternate week ends and block school holiday periods with the mother. On 1 February 2010 further final Orders were made for the children to live with the father and spend alternate weekends and half school holidays with the mother.  On 1 July 2013 interim orders were made for the children to live with the mother and shortly after that an Independent Children’s Lawyer was appointed. On 4 December 2015 further interim Orders were made for equal shared parental responsibility, both children to live with the mother, Z to spend time with the father in accordance with his wishes, X to spend time with the father each alternate weekend and half the school holidays and the matter was listed for a final hearing.

8. In between all of these dates, it will be seen in the chronology that the children’s living arrangements have changed. It has been cyclical in nature but constant. The significant diagnosis as to the behavioural conditions suffered by Z has not deterred these parents from continuing on with their ongoing conflict. Most of the time Z’s behaviour is beyond anything that this mother or father can continue to deal with. At times the mother has been remiss in keeping up medications or appointments with specialists.Z has yo-yoed in his living arrangements between his parents for years, sometime by agreement, sometime through a parent reaching breaking point and telling the other parent they can no longer cope with him.  Nothing though has deterred the parents from arguing with each other. The mother has handed the children back to the father because she couldn’t handle Z’s behaviour. In early 2015 Z had a falling out with his father and stopped living with him and moved in with another family. At the time of trial he had left that family and moved back in with his mother where he had been since January 2016.   

9. The ongoing litigation between the mother and father of Z and X is a shining example of the collateral damage that two separated parents who are determined to remain in conflict with each other, can cause to their children if they ignore their children’s best interests.  Z and X are casualties of their parents’ quest for ongoing acrimony.

10. As to issues of domestic violence and the need to protect children from violence, abuse and neglect, the mother makes allegations of domestic violence against the father.  The father makes allegations of domestic violence against the mother. The father denies ever causing any physical harm to any woman anywhere. He says that the series of Apprehended Violence Orders issued against him are all without merit. At the commencement of trial there were four AVO’s against the father. At the conclusion of the trial a fifth AVO had been issued as sought by his current wife. Other orders are sought against the father by Ms H, Ms A, Ms Niven, the father’s niece, a neighbour and now his current wife.

11. The father has a version of events justifying his conduct for every incident of violence alleged against him by anyone. The father has some standard responses to the allegations which form the basis of some of these AVO’s including his contention that the allegations have never been tested. I note that there is no evidence of any of the orders ever have being appealed. The father typically asserts that the applicants in the AVO’s were violent to him. 

12. Z and X have through their respective parents also been embroiled directly in conflicted relationship with new partners. There are allegations that the father’s former partner (A’s mother) took an instant disliking to Z, and created serious issues in terms of her rejecting Z. There are other allegations by a partner that Z has exhibited sexually explicit conduct to children who have temporarily been step siblings or X. There are a myriad of allegations made by this mother against the father, and the father against the mother of poor parenting, holding over children, abusive remarks and threats, many of which occurred in the presence and hearing of Z or X or both.  The court material relating to this family has resulted in voluminous material and subpoenaed material going back as far as 2004.  

13. Each of the mother and father has willingly involved as many agencies and statutory bodies including the Police and child welfare departments, in their acrimonious conflict as possible. As far back as 2009, the game playing of these parents is observed by the Police: See subpoenaed material dated 19 November 2009. The ACT Policing subpoenaed documents record their investigations of an incident in which Z, then aged eight years old, was alleged by the mother to be at risk in the care of the father. The police records show they received a phone call from the mother, Ms Niven (as she was then known), alleging she had a phone call from her son, Z, who was home alone at his father’s house in the ACT. The mother told the police that she was engaged in a custody battle with the father, and that she wanted to tell the police about what she believed was neglect.

14. The police records concluded that: 

    “The police were satisfied with Mr Ralph’s explanation, and deemed no further action was required.  Before departing the location police went to speak with Z, but he was on the phone to his mother.  Police could hear Z informing his mother the father had returned.  Police do not believe Z was placed at risk being left at home, or that he was incapable of seeking help should he have required it.  Z had a working mobile phone, and according to Mr Ralph his own set of keys.  Police suspect this incident has more to do with a custody battle than a legitimate case of neglect.  Police suspect Ms Niven (the mother) seized the opportunity to cast Mr Ralph in a poor light, and call the police.  No further action is required.  Notification has been made to the Department of Child Protection.”

15. That incident, and there are far too many of them in the material to attempt to repeat, accords with my observations of the mother’s conduct. This litigation and battle between the parents has been relentless, widespread and has involved a variety of statutory authorities and Courts. Regretfully, the father is equally anxious to unnecessarily involve the police in his disputes with the mother and he is equally adept at contriving a situation aimed to give himself a strategic advantage in litigation against the mother.  

16. The amount of time and resources of the child welfare authorities and the police authorities in NSW or the ACT spent on this family is staggering.

17. In 2012 the mother reported that Z said the father had hit Z in the face.  This led to charges of assault against the father and the father being placed on bail. The father pleaded not guilty. There was a hearing on 3 July 2012. The matter proceeded before Chief Magistrate Lorraine Walker. The records show that just prior to the trial Z did not want to give evidence.  He thought he would get his dad into trouble. He refused to sit in the chair in the witness room and he verbally abused anyone who attempted to question him, including the Chief Magistrate.

18. Subsequently, Z’s electronic interview, previously recorded, was played to the court, but he was unable to be cross-examined. The records show that the defence indicated that even though they were unable to cross-examine, they were willing to move forward as Z’s evidence was not disputed, and they were happy to have the extra information presented to the court through the defendant’s evidence.

19. The other person to give evidence was Z’s younger brother, X, who was present in the room at the time of the alleged assault. Then the court heard evidence from the father, and the court heard that Z was an 11 year old boy with severe behavioural issues. The father presented numerous school suspension notices to the court, and gave evidence in relation to Z’s medical history, including seeing psychologists and private paediatricians in relation to his behavioural issues. The Chief Magistrate, having heard all of the evidence, was satisfied that the father’s conduct towards Z fell into the category of: “Reasonable chastisement.” It was not denied by the father that he had hit Z across the face.

20. Whilst the father was on those charges the children Z and X were removed from his care by the Department. The father says that A’s mother relied on the same allegations to support her case for not allowing A to see the father. That is so. However, as the evidence shows, there are a myriad of other troubling allegations and violent situations alleged by A’s mother involving the father being the alleged perpetrator of family violence including threatening behaviour referred to in the subpoenaed material that need to be considered in the context of their separation and which was before the Court when final orders were made regarding A. The father states he wishes to appeal the decision regarding A albeit, 12 months has transpired since the decision was made and the matter proceeded on an undefended basis given the father’s failure to properly participate in the litigation.  

21. The father alleges that the mother and then subsequent partners make friends, and when his partners leave him (if not before) some sort of conspiracy happens where the father is falsely accused of violence, and being drunk and abusive. The father often makes reference to a similar allegation being made by more than one former partner in an endeavour to demonstrate that the allegation must therefore be false and to assert that he is being victimised through the Court system by his former partners. It is true that the mother has established an association with some of the father’s new partners. She has told them about the father’s violent, abusive, threatening and alcohol fuelled conduct towards her. There has clearly been cross fertilisation of information between the mother and Ms H (A’s mother) for instance. This has also happened with the mother and the father’s new wife, Ms E. I am not satisfied however that just because these women shared their own horrific experiences and that there may be some similarities in them demonstrates that their reported experiences are false.

22. Ms E (also known as Ms E) gave evidence in this trial before and after the re-opening of the evidence. After the re-opening of the evidence she gave an account of suffering significant injuries and assault on the way to Court and subsequent events on 17 March 2016. Initially Ms E gave evidence of being happily married to the father for only a few months and she outlined their hopes and aspirations for their future living arrangements in (omitted) with her children and future study arrangements. Initially Ms E supported the father’s application for residence of either or both Z and X. After the assault Ms E no longer supports the father’s application as she has now realised he is a violent man who she says has caused her significant injury and distress. Ms E wished to tell the Court that she would no longer be remaining married to him, nor will she be around to protect his children and contrary to her initial evidence, X and Z would not be living with herself and her children given her frightening experiences with the father. Ms E also gave evidence that the allegations made by the mother in this matter about the father being bi-sexual and having sexual relations with other men whilst being in a relationship with her appeared to be true given what Ms E had unearthed in the father’s text messages. Ms E also gave evidence that the mother had been most supportive of her after the father had dumped her on the highway back to Canberra after Court on 17 March 2016, and subsequently. Ms E has had a complete turnaround in her experiences with the father and more will be said about her evidence elsewhere in this judgment. It is fair to say though that Ms E is terrified of the father and horrified at the threats he has made to her and her family since the 17 March incident. Ms E will be seeking an annulment of their marriage or a divorce.

23. As to the living arrangements for Z, he stopped living with his father in early 2015 and left in circumstances of distress telling police his father had thrown him out. Essentially this is not denied by the father who says that Z cannot live under his roof if Z does not comply with his rules. Z instead moved in with another family called the (omitted). Although neither parent was particularly happy with this arrangement, neither the mother or father are able to exercise any parental control over Z. There are a range of problematic issues associated with Z living with the (omitted), including allegations by the father that it is an alleged drug household and at times there has been no adult present. Z‘s move has given these parents scope for more dispute. Z was living with the father when he moved in with the (omitted). The father though, not wanting to accept any personal blame for Z leaving his home seeks to shift the focus to blame the mother by alleging that Z could not have stayed there if the mother had not provided the (omitted) household with money on a regular basis. The mother’s evidence however is that she gave money to the (omitted) household to help cover the cost of Z living there for his board and food. In response to that the father says the money given by the mother was in exchange for drugs for her own use. The mother denies the father’s allegations that she has been buying drugs from the (omitted)’s for herself. There is no evidence of the mother buying drugs from the (omitted)’s or continuing to use drugs.  

1. Behaviourally as I have said, Z will not do anything the parents tell him, nor will he comply with school directions. Literally, Z shows no respect for authority figures, he uses vulgar language at any time he wishes to and he can barely read.  Each of the parents use vulgar and explicit language, as does Ms E. In what can only be a tragic downward spiral, Z has now been involved in criminal conduct and has appeared in the Children’s Court in relation to a theft of a mobile phone. Z says that this was done because the father confiscated his own mobile phone. Z had the opportunity to be involved in a restorative justice program however he walked out of the program in defiance of the compliance requirements with neither the counsellor nor the parents being able to do anything to address this.

2. When asked whether the father accepted any responsibility for Z stealing a mobile phone, the father very stridently responded that I take no responsibility whatsoever for that act.  The father explained that he had confiscated Z's Apple iPhone because Z broke the rules associated with its use, and that Z then explained to his father that he therefore went and stole a mobile phone. The father also explained his own involvement in the restorative justice Department which followed on from Z’s theft charge and that Z attended three successful appointments, however, on the fourth appointment after 10 minutes of talking to the counsellor, Z got up and stormed out saying he wasn’t going to do it any longer.  The father accepted that a warrant subsequently issued for Z’s arrest.    

3. During the trial, the mother told the Court that Z is no longer living with the (omitted)’s and she has had Z living with her since about January 2016, so a couple of months at the time of the first tranche of days in this hearing.  Upon the re-opening in June of the matter, evidence was given by the mother that Z remains living with her. Having heard all of the evidence, by the conclusion of the trial I was satisfied that this living arrangement would only last as long as Z wanted it to.

Whether or not to make parental orders for Z

1. It has been the position of the ICL that in regard to Z, there is no utility in making any parenting Orders, for the reasons I have already referred to. In terms of any orders sought in relation to where Z lives, the evidence very clearly is that he is living where he chooses to live. Z is not going to school as he chooses not to go to school and has not done so for over 12 months. Upon the re-opening of the matter however the mother gave evidence that he was enrolled at high school and wishing to attend as referred to elsewhere in this judgment. His behaviour has been physically violent and alarming for many years now and he has not been able to be accommodated at a mainstream school because of this. All arrangements for variations on mainstream schooling or involvement of a specialist school in the past have failed.  Z has been violent at school, particularly to younger or smaller children. The subpoenaed records from the various schools that Z has attended describe his violent obstructive anti-social behaviour at levels rarely encountered by the schools. There is evidence in the subpoenaed material that the paternal grandmother, at a time when Z was younger, became very alarmed at his aggression and herself felt a degree of fear.

2. In terms of Z’s views, Z has expressed strong views to the mother that he does not wish to see his father and he has not seen this father for a lengthy period through his own choice.  Z has reported that the father assaulted him at or around the time he left the father in early 2015. Z did attend at his father’s wedding in (omitted) 2016 however he has not seen his father since that time.  

3. There have been other allegations about aspects of Z’s behaviour which have caused counsellors deep concern and those include reports from A and then X that Z has behaved inappropriately sexually within the presence of both A, and X, exposing himself and masturbating in the presence of younger children and encouraging them to do likewise. In the past, there was agreement between the father and A’s mother that given Z’s sexualised behaviour, Z would not spend time at the father’s home when A was there. 

4. Having regard to all of the evidence from schools from specialist educators, counsellors, the Family Report writer and each of the parties, in my view the mother’s explanation at trial that Z will stay living with her now as she has got a better way of dealing with Z, is in the circumstances very optimistic. However, there are emerging signs on the most recent evidence from the mother that Z remains living with her in June 2016 which provides a glimmer of hope that some stability may be returning to Z’s life. Given the dysfunctional relationship that I have evidence of between the father and Z and the father’s authoritarian parenting style which resulted in Z leaving the father’s home, together with police involvement all things considered I am of the view that the mother is at the moment offering some stability and she is taking every step to try and have Z re-engage in his education.  I am not satisfied that the father has the parenting ability nor that he has a good enough relationship with Z to offer Z a peaceful household, stability or that the father has the ability to encourage and effectively ensure (in a non-violent or coercive manner) that Z is given the best opportunity to complete his education.

5. I am not satisfied that the father fully understands the level of difficulty that Z presents given his multiple diagnoses and his age. The father expects Z to comply with his own standards with military precision and it is clear on the evidence and past happenings that the father’s approach is wholly unsuccessful and has resulted in Z rebelling against the father’s controlling and authoritarian parenting style. I have observed that the father is entirely lacking in the emotional capacity to understand the difficulties and challenges of raising children at the age and stage of Z. Whilst the father criticises the mother about past failings he does not have any insight into his own inappropriate, forceful, overbearing and insensitive parenting.

6. The father sought Orders asking the Court to make Orders that Z (and X) live with him. The father also sought punitive orders regarding Z in asking the Court to issue a standing order for the State police to find and return Z to his home whenever Z runs away or otherwise leaves the Father’s home. I have explained to the father that the Court is not in a position to act as a parent, and if the father can’t control Z, that the Court certainly will not take on the role of policing the parenting from this point on. Further, I have advised the father that it is not the job of the police to do so either.  The father insisted that if the Court issued such an order that he would use it to show Z that a decision had been made about where he was to live and he was obliged to follow the orders. The father said that such an order would add force to his own directions and control of Z.  This draconian and overbearing solution of the father to have the Court and police physically control Z, and to repeatedly return Z to the father’s care, exemplifies the father’s forceful and inappropriate attitude towards parenting and an entirely unacceptable way of dealing with the complex issues associated with the developmental and behavioural problems and challenges exhibited by Z.

7. The father’s method of parenting includes using force, threats and fear. There is evidence of him using the same tactics with his former partners.

8. The father also accepted that he had attempted to secure a carer’s allowance for Z, but admitted that Z would not go to the doctors.  The father said “Z refuses to go to 50 percent of appointments scheduled for him.”[2]

   [2] Transcript 16/3/16, p. 27, line 0 to 5.

9. The father also confirmed that when Z was living with him in March 2015, he called the police because Z failed to attend school for three days, following an argument that Z had with the father.  The records showed that when Z was spoken to by Police he told them that his father treated him “like crap”, and “will not let him back into the house” and that he was not attending school to “piss off his dad” and because his dad took away his Myway card, a bus pass that operates to get him to and from school.  In light of all of this overt conflict, it was suggested to the father by Counsel for the mother that he certainly was not getting on well with Z and that he had tossed him out of the house. The father’s response was that he got on fine with Z and that Z was welcome at his home, but that he has to accept that he cannot break windows, cannot steal stuff, cannot be offensive to people and he cannot threaten to assault people whilst he is there. In principle the father’s objectives may be worthy, however, I am not satisfied that the father has the parenting skills or a secure or a healthy enough relationship with Z to enable Z to live with the father. Their relationship has much hostility and violence.

10. At the outset of the hearing, the father outlined his plans for Z to return to a school and live with him. He then proposed moving to (omitted) and living with his new wife and her teenage children. This proposal is entirely ill conceived given all of the evidence and noting that Z has chosen not to see his father for months and that Z stopped living with the father in circumstances of distress. The father’s plan for Z’s future as explained to the Court involve completely ignoring Z’s views and introduce a major upheaval to every aspect of his life. I consider that the father’s very fixed views and overbearing forceful parenting style represent an unrealistic, inappropriate and impracticable solution for Z. The father chooses to ignore all of Z’s challenges, his defiance in terms of not even being able to have him attend medical appointments or to engage in family report interviews or even remain living with him. I am not surprised that Z refused to engage with a family consultant given the amount of interviews he has had over the past 13 years. The material in this matter is voluminous and consists of multiple reports by child safety officers, counsellors, teachers and social workers who have interviewed and assessed Z. It is clear that in the past Z’s response to the father’s threats is to rebel or retreat, but not to comply. Z is well beyond being afraid of threats by his father, teachers and others in authority. As to the second of the primary considerations, it is very clear that Z will choose if he wants to have a relationship with his father, however, on the evidence, I am not able to be satisfied that it is in Z’s best interests to have a meaningful relationship with his father. I am particularly mindful of the findings I have made elsewhere in this judgment in relation to abuse, neglect and family violence and I am satisfied that he father has committed frightening and serious violence upon his current wife Ms E. I am also satisfied that the father uses threats and coercive tactics to intimidate and cause fear as he has done to his former partners including the mother, A’s mother, his current wife Ms E, the ICL and Counsel acting for the mother Mr Berry. I note in the subpoenaed material that the father has been recorded as making threats to Child Safety in a similar manner.

11. Clearly these findings profoundly affect the father’s capacity to parent and his attitude towards parental responsibility. The father has a history of harming Z in striking him across the face whilst disciplining Z as seen in the Children’s Court matter in 2012. More recently, Z left the father’s home in the midst of allegations by Z of the father acting in an alarming and violent manner.

12. The mother does not seek any orders in relation to Z and neither does the ICL. Having regard to all of the evidence in this matter, I am satisfied that the submission of the ICL is sound, namely, that is a pointless exercise to make any orders in relation to Z.  Z will be 16 in (omitted) 2017. He is a teenager out of control, and neither parent can control him and nor has any educational institution been able to do so. Making an Order that he is live at a particular home is highly likely to just provide the parents some further ammunition to continue to litigate through contravention applications.  Perhaps this is precisely what the father wants. Even after hearing the submissions of Mr Berry Counsel for the mother, the ICL’s views and the bench indicating the obvious practical difficulties (amongst other things) with such an order, the father persisted in seeking such Orders. The father has no insight into his inadequacies in terms of appropriate parenting. I would not countenance the use of coercive orders as proposed by the father in this way. Further, I am deeply troubled at the prospect of the father using parenting Orders in this manner. I am sure that he would, use such orders as a threat and to cause fear and alarm as he has done to other people including former partners and lawyers in this matter.

13. Obviously as a result of the violent incident caused by the father on 17 March 2016 and the subsequent evidence of Ms E, all of the father’s proposed plans about moving in with Ms E have collapsed.

14. In terms of the father’s proposal for Z to live with him, and considering the primary consideration regarding abuse, neglect or family violence, I am satisfied that the father’s parenting capacity and parental responsibility is profoundly affected by his willingness to resort to serious violence when he is angry or trying to achieve a particular objective.  The father, as I have determined elsewhere in this judgment, is content to resort to whatever violence it takes if he decides that it is appropriate to do so to achieve his end goal.  With Ms E he has explained his violent response to her taking his phone, with clinical disinterest and showing no insight of the pain and distress his actions caused.  Rather, he seeks to justify them.

15. There is an abundance of evidence as to the futility of making Orders regarding Z. 

Primary Consideration – Abuse, neglect and family violence

1. As to the father’s penchant for making counter-allegations of family violence, one instance is when he says he was in a relationship with Ms A who was violent towards him and he explains that the allegations of violence made against him are untrue and are made in retribution on account of him reporting Ms A to A.C.T police in relation to firearms offences.

2. The father admits he has an AVO taken out against him by his 37 year old niece as a result of an argument.  As to the AVO taken out against him by a neighbour, the father explains that by saying that the neighbour reacted badly to the father telling him to stop taking photographs of his children. The father implies in this account that the neighbour was taking photographs of children for sexual purposes.  The father says that the mother in this matter was violent to him, as were the other women who obtained AVO’s.  The father asserts that he is actually the victim of domestic violence.

3. This mother has admitted hitting the father on a single occasion.  The mother makes allegations of other family violence by the father, allegations that he is a heavy user of alcohol.  She alleges that the father has been denigrating her in vulgar terms including in a sexually derogatory way, often through the children. The mother says that the father manipulates the children and turns them against her. A’s mother, the father’s former partner, made allegations of family violence against the father and allegations that A was in fear of the father given his heavy drinking and threatening behaviour. The mother admits she has been in various violent relationships and that Z or X or both were exposed to this. 

4. Overwhelmingly, it is clear to me that each of the mother and father have been utterly preoccupied with their enmeshed and hostile engagement with the other and with their own lives. Highly conflicted and at times violent behaviour has occurred in other relationships formed by the mother and father.  The chronology of events shows the chaos these children’s lives and exposure to conflict, violence, and derogatory language aimed at the other parent, and regular upheaval has been the hallmark of the childhood of the children since Z and X were little boys.

5. There is no evidence to support the father’s position that it is in Z’s best interests to live with the father.  It is trite to say that he would at this stage, whatever orders were made, vote with his feet.  

6. The mother has shown some insight into the futility of further Orders regarding Z. She is currently in a position to provide him with a home and shelter whilst Z wants to stay there. She has had failings in her parenting in the past however at this stage she offers a home free of violence, support and some care for Z. To that extent her approach to parenting Z is more in keeping with his age and maturity. It is significant that Z has chosen at this point to live with his mother. At this time, he does not have as many difficulties with his mother as he does with his father’s authoritarian forceful parenting style. The mother has been commended for her efforts in keeping X at school and becoming involved to co-operate with the school on X’s special learning program. The most recent evidence in relation to Z is more positive than any progress he has made for some years. In addition, the mother has a softer personality and chose a more nurturing attitude towards the children than the father who has very fixed views and who lacks any empathy, compassion or understanding of the most appropriate parenting techniques to be adopted with both Z and X in relation to both their current ages and circumstances.

Conclusion about Orders for Z

1. I am satisfied for the reasons referred to throughout this judgment (including references to Z when considering the best orders for X) that it is in Z’s best interests that no further parenting Orders be made involving him. The time has arrived for these parents that the provisions of the Family Law Act 1975 will no longer provide a platform for these two parties to argue about Z.

What Orders are in the best interests of X

1. I will now turn to the remaining issue in this matter which is what parenting Orders ought to be made about X, in light of the evidence about X’s anti-social and obstructive behaviour, which in many respects mirrors that of his older brother Z.  

2. X will be 14 on his birthday on (omitted) 2016.  Given X’s age and all of the evidence regarding his progress in life to date, I have advised the parents that the Orders of this Court regarding X will surely be the last Orders made about X, given that he will be 15 in July 2017. X is exhibiting all of the physical confrontational, alarming and threatening behaviour as has Z.  I doubt he will be at any school for much longer.  He is on report for shocking behaviour including violence. He will likely be refused further enrolment. He may start at a special school, like his older brother, but likely will not stay there and could ultimately end up a delinquent. 

3. At the outset it seems to me that the solution for X’s difficulties in life, education and socially, will not be solved by parenting orders issued by this Court. I am quite sure that whatever orders I make, X will be voting with his feet in about 12 months. 

4. I have no doubt though that these parties will continue to try and involve Police and other agencies in what must be the final months of their conflict. The subpoenaed records show the police have been sceptical about each parent from time to time, in terms of trying to use the police and create situations intended to benefit them in their ongoing litigation.

5. As to the Orders sought regarding X, the mother seeks Orders that X live with her and that she have sole parental responsibility.  In terms of spending time with the father, the mother says that X should only spend time with the father on terms and at times requested by him.

1. The father seeks Orders that X (and Z) live with him and that he have sole parental responsibility and that the boys spend time with their mother as agreed between the parties.  

2. At the conclusion of the re-opened trial, due to events of violence which occurred between the father and his current wife Ms E (Ms E), on the final day of the trial, and after further evidence was given regarding these events, the ICL no longer supported the father’s application for X to live with him (as had been the case at the conclusion of the trial prior to the re-opening), but rather, the ICL sought orders that supported the mother’s position in relation to X (and Z).   

The Law

1. This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”.  Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).”  The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s 60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.

2. When I determine the best interests of X, I will consider also the several additional considerations set out in s.60CC(3) when evaluating each of the parties proposals for X’s future living arrangements. Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked.

3. In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.

4. In this matter I have had regard to all of the evidence and the exhibits.  In these reasons, a statement of fact represents a finding unless indicated otherwise. 

The Witnesses

The Mother

1. The mother in this matter has four children. In relation to Z and X she has, like the father, shown some serious shortcomings in her parenting over these past 13 years.   

2. However, an issue which looms large for X (and Z) at this point in their life, is the opportunity and necessity for the boys to have an education. Throughout the years since the parties separated in 2003, children have moved from one parent to another, then been separated, then moved back together, then separated again when either parent could no longer handle Z’s behaviour. Through all of this, together with the moves of the parties, the children have had to change schools on about six occasions.

3. The evidence as to when and why she moved Z from one school to another only to find that the second school could not take a child with high needs and behavioural difficulties, right at the end of the year smacked of disorganisation. Given the difficulties that each of the boys have exhibited in behaviour and attending school, the mother seemed resigned to the position that schooling was quite a challenge, and that the boys would have had significant school absences. At 15, Z’s school records show significant challenges to all who have attempted to teach him or keep him in check.  He has not been to school for most of 2015 nor has he been to school since returning to the mother’s care in December 2015 up until the conclusion of the trial in March 2016.  However, subsequent to that, inroads have been made in relation to Z with the mother giving evidence that after the final hearing in March 2016, Z agreed to return to school and complete year 10, which he is now enrolled to do at (omitted) High School, though this was subject to a risk assessment before Z could take up his position.  Z was also enrolled in a work placement program which has a vocational emphasis where students get to do a day of work experience. By the time the trial was re-opened, Z also had another youth support worker and there was hope Z would do an Intensive Diversion Program, which develops better social skills for children over a 12 week program.  

4. Z was not going to school regularly when he lived with the father and their disputes saw him running away from his father’s home deliberately not going to school to “get at” his father. Z’s education had effectively come to a halt.

5. In her initial evidence the mother gave a fairly unconvincing but hopeful explanation of proposed future plans for Z involving support offered by a youth worker who she said was going to find Z an apprenticeship and also get him to do his white card.  It was not clear how the mother anticipated Z is going to get a white card or even a driver’s licence if his reading is as bad as is indicated in the education records in the subpoenaed material, showing Z has only the most basic level of reading skills.  When asked about the myriad of problems Z had with schooling, the mother did not present any viable solutions. The mother actually laughed when hearing that Z had been in trouble in school again after telling a teacher, “She could stick it up her fucking arse” or words to that effect. However, as I have said since that time further progress has been made by the mother with Z now saying he is willing to attend school and the mother enrolling him in high school. 

6. In terms of X’s schooling, it became apparent that whilst living with the mother X had not been at school for most of 2015 either. The mother had not fully explained this to the father telling him instead he was “doing well at school” and “the teachers were pleased with him.” This evidence of the mother seemed to be inconsistent given X’s absences however after hearing from X’s teachers I was satisfied that in fact X was doing much better at school than he has been doing and the teachers were in fact pleased with him. Whilst there was initial shock at the amount of days that X had missed from school whilst living with the mother, it became apparent on hearing evidence from two teachers that X’s difficulties and behavioural challenges, X had been and is continuing to improve at school. This evidence came from the teachers at X’s school after the Court indicated to the ICL that the Court found difficulty in accepting the evidence of either the mother or father about what was happening with X at school as their evidence was contradictory and largely based on opinions and point scoring rather than facts. A direction was given to the ICL to organise for evidence to be provided to the Court by X’s current teachers.

7. That evidence was organised and heard after the re-opening of the trial, on 6 June 2016 and proved to be most helpful. Oral evidence was given by Ms J, senior teacher and head support teacher and also Mr J, school teacher who has been teaching X last year and this year. The mother was granted leave on that day to file a further affidavit which included evidence as to the current progress of education for both Z and X.  Ms H provided a narrative and subsequently gave evidence that X was in a support class at (omitted) High School, this class being for students with challenging behaviour and who have not been successful at mainstream classes at school.

8. The evidence of Ms H was to the effect that since February 2015 when X has been placed on an individual learning program, generally he had made improvements compared with the negative experiences X had prior to going to (omitted) High School.  Ms H who supervised and oversees the work of Mr J, was able to confirm that X has commenced being engaged in his education, he had completed more work and that they have been able to have X do more appropriate work to the level of his academic ability. Ms H also confirmed what she had written in a letter of 13 May 2016,[3] that the mother had been very engaged with X’s education and has worked closely with the class teacher and Ms H.  Ms H confirmed that the mother had remained in regular contact via telephone and email communication generally on a weekly basis during the school term. Ms H also explained that X was attending this school at set times only, which had included him finishing at lunch time and that was now extended to 2.30. X received a particular learning program and times because he was struggling with his work and struggling with his social interaction.

   [3] Annexure A affidavit of the mother filed by leave 6 June 2016.

9. Overall the school was pleased with the positive progress of X at school. As to X’s attendance, Ms H agreed that whilst the missed days might look alarming at first glance, (he had significant non-attendance, some 110 days in 2015), but she stated that the number of missed days of school had improved this year, and that the school was happy as they were now seeing X being more settled as well.  Ms H noted that any absence from school is not acceptable, however, some students present with many issues and when they turn up to school, that can be a good thing.  Ms H was well satisfied that educational progress was happening with X.  All of her contact had been with the mother and the only time they had heard from the father this year had been a week prior to her giving evidence, and that was with Mr J. In closing Ms H advised the Court that there had been a significant improvement in X’s ability to socialise in the playground and he had improved in his ability to talk to peers and staff which he had been struggling significantly with when he started at the school.

10. In terms of X returning to a mainstream school, Ms H explained that there are about ten children in the special learning centre and X would be in a class with a maximum of seven students with a teacher and a teacher aide.  In this setting and program X is given far greater attention than would be the case in a mainstream class.

11. Evidence was also taken from X’s classroom teacher Mr J.  Mr J gave positive evidence also about X’s improvement in the classroom, in his engagement with teachers and his peers, as compared with his behaviour when he first came to the school. He noted that in the last week or so, X’s behaviour had deteriorated a little, but Mr J said that could be due to the re-starting of the court case.  Mr J gave praise to X for his improvement in his school work, in being more engaged with his work and in allowing teachers to help him more than had been the situation in the past.

12. Mr J confirmed that he speaks with the mother usually weekly. As to the contact from the father, Mr J had several phone calls about three weeks earlier from the father inquiring about attendance and similar matters. He had not spoken to the father all throughout 2015 nor any other occasion this year.   

13. Having heard the very helpful evidence of the teachers, I am satisfied that the mother has been working well with X’s school, that X has settled down since living with the mother and attending (omitted) High School.  Moreover, he has been settled enough to start focusing on his education, his day to day class work and his social skills and behaviour have improved significantly. The value of this evidence, not apparent in the subpoenaed material, is significant. The issue of the future education of X is a critical issue in determining his future living arrangements and a factor upon which I place significant weight. I note the absence of the father in this process expecting his recent involvement no doubt to gather evidence. 

14. In terms of education of the boys, I do not accept the father’s assertions that the mother is incapable of having X (or Z) attend school or that she does not have the capacity to provide for their educational needs. The task for either of these parents was never going to be easy given the challenges that X and Z present, however, in my view the mother shows much more flexibility in her approach to raising these children, and I found her to be more in touch with the individual needs of each of X and Z. The mother in her own way has a softer personality and is more nurturing albeit at times her parenting in the past has been careless. The father has a powerful presence he is very authoritarian and unyielding. Unless his standards are met, he seems to either reject the children (such as happened with Z) for their failures, tip them out of home for their failures, introduce heavy penalties which are in all of the circumstances counterproductive and controlling. Certainly in Z’s case, he has reacted accordingly. The father is inflexible and unrealistic on many issues. There is no halfway mark or attempt to negotiate solutions. If a child fails to live up to his standards and expectations, he is out. The father lacks emotional intelligence and seems incapable of showing any sensitivity in dealing with either of the children’s difficulties. I am satisfied that the mother is now focusing on trying to genuinely assist both boys and that she is much more approachable as a parent and has much more understanding of the dynamic between herself and each child than the father.

15. As to other aspects of her attitude towards parenting, the mother agreed that she swears in the children’s presence, but says she does not swear at them, as if this was somehow more acceptable. The mother complains of the father’s vulgar language directed to herself and the children yet in her own material and in a recording, she asks X about a scratch on his back. The mother says, what the fuck has happened to your back?” I accept the mother’s evidence that the father has denigrated her repeatedly over the years and in the presence of the children. The father has not only orally abused the mother in the presence of the children but his special subject is sending vulgar and explicit text messages usually accompanied by threats. The father has no hesitation in making threats of violence to people whom he considers have committed transgressions against him or his children. He typically warns of retribution and makes promises of future violence. This can be seen in his text messages with the mother.[4]

    “fuck off dead shit. You are the most violent fucker you have ever met. I will prove that in court. Eat shot [sic] and die you lying cunt.”

    [4] Exhibit M5 tab m113 as an example.

16. And; “wake up to yourself I treat you and that other dead shit cunt the same because you have both assaulted me and claimed I abused you. Go fuck yourself maggot.”

17. Accompanied with, “retribution comes for you” or “I will cut your head off” There are too many messages and comments made to list all of them.

18. Similarly, in 2015 the father accepts that he phoned Ms H, the mother of A leaving voice messages such as, “I am going to send you to jail you dog breath cunt.”[5] “You are going to jail bitch you are a fucking liar you are a dog you are a cheat you cheated on your former husband you have cheated on everyone you have known you fucking harm your children, so yes you are going to jail because that is where people like you belong in jail.”  “I just requested to speak to A. You are in breach of court orders because – you maggot dog. You are a perjurer. You should spend your life in jail. I lied to you about my marriage vows that I stupidly made to you when I am done with you you will spend your life in jail you dirty perjurer you go to hell I hope god make you – that is where he is going to send you straight to hell.”[6]

    [5] Transcript 15/03/16, p. 56 line 10.

    [6] Exhibit M5 tab m109.

19. All of these comments were admitted by the father but in his view totally justified because he believes A’s mother was unreasonable in not having A come to the phone. The father was prepared to make all of these threats but apparently not prepared to engage in the litigation process appropriately to the point where his matter was listed and heard as an undefended matter.

20. These threats of sending people to jail or making allegations that a mother is abusing her children are seen in other threatening messages of the father sent to his wife Ms E after the incident of 17 March 2016. The threats made by the father to Ms E were that he was going to send nude pictures of Ms E to her aging father. This was after the father had in the presence of Ms E phoned her father in the midst of their ongoing argument at (omitted) late in the morning. The father was trying to ensure that Ms E did not go to Court and explain all of the incidents that occurred in the 24 hour period from 16 to 17 March 2016 as he knew that if Ms E told the Court what had happened it would have a significant bearing on his case to have both children live with him.  To that end, the father called Ms E’s father and said words to the effect, “you daughter is a whore. She’s such a slut she’s mental I am sick to the death of her you don’t know who she is.”[7] Ms E could hear her own aged father crying listening to what the father was saying. Before that phone call and in furtherance of his threats to Ms E, the father said on returning from Court, “If you open your mouth again I will drag you out the window cunt.” “You’re such a fucking whore, I am getting my kids back. Have a good life you drug fucked mole.”

    [7] Affidavit of Ms E 13/05/16, paragraph 29.

21. The father’s vindictiveness and threats did not stop on the day and continued in March and April with messages such as, “Your daddy fucks your ass and you suck on your son’s cock.” On 22 March Ms E received a message “Don’t contact me again you anorexic cunt faced ice user. Get the fuck out of my life. Try to take my dog or my stuff see what happens to you and yours. That’s including (omitted) cunt give me my shit and fuck off out of my life you dog cunt. PORT POG!!!!! I understand that your own father took your virginity don’t take that out in me You are beyond help. Family Services may be able to save your kids. Fuck off you disgusting filthy cunt. Make sure you tell police I have two hours of your abuse cunt face. Go fuck your father the way he likes is [sic] anal slur. Go suck your daddy’s cock you filthy cunt whore.”[8]

    [8] Above n, paragraph 40 and 41.

22. As it can be seen the father’s vulgar messages include threats and the father is now making allegations about the mother and her children being drug users which is one of his stock standard allegations.  There are examples scattered throughout the mother’s material of the children asking her questions using explicit language and vulgarities that have been initiated by the father. All of the threats made by the father and his various allegations have in my view been made against Ms E with the purpose in mind of wanting to prevent her from giving evidence against him. The father’s rages and vindictiveness and willingness to engage in family violence profoundly affect his capacity to parent and his attitude towards children.  

23. The mother has in the past shown some irresponsible parenting in terms of leaving the children with unsuitable supervisors and through this there were two house fires and a third house fire when she was present. The mother showed little acknowledgement of the seriousness of these incidents, however, this occurred when the children were very young. X and Z are now much older both being teenagers, and I am making Orders going into the future.

1. The mother has in the past has left her older son Y to look after the boys when she was working shifts. I note back in the welfare report used in the State Court that the mother was warned not to do this.  The Department have told the mother it was not appropriate to have 17 or 18 year old Y looking after Z and X given their significant behavioural issues and Y’s own age and behaviour. Y is now in serious trouble with criminal charges and the police, and is now consuming ice. He has been on assault charges involving random assaults on unknown people.

2. Through her Counsel Mr Berry, the mother has agreed that she would comply with an order that neither X or Z be left in the unsupervised presence of Y. I do not intend to include Z in any such condition as Z will do whatever he likes. I also do not consider it appropriate to order (as requested by the father) that Z & X have no contact whatsoever with their older brother. I accept the mother will monitor their time in Y’s presence. The father’s proposal is extreme and impracticable.

3. I have read evidence of the mother’s extensive use of marijuana for many years and reference to it in the social welfare report which referred to her drug use being ‘managed’ because she was a (occupation omitted), and therefore by virtue of her occupation she was being tested for drugs.  I have no evidence of current drug use. The father alleges she is using cannabis, but his allegations about drugs are unsubstantiated.

4. The father says that Z told him he was physically abused by the mother. I can see in the school records that Z will say whatever he wants to say at school, including accusing people there of harming him, when that has been clearly untrue. I am not satisfied that the mother has abused Z. Z has told the mother that the father has abused him. In her most recent affidavit filed in June 2016 the mother reports that, since the trial concluded and prior to its re-opening, X told her that he had just spoken to the father who had asked him to make a false report that his wife Ms E had “threatened to bash B on Australia day when we were over at Dad’s place so then the school will call family services.  None of that happened mum.  I just want him to stop mum. I’m over him.”  

5. The father has made allegations against many people and he does so recklessly and with scant regard for the truth. In this matter he made utterly baseless and shameful allegations about the ICL and Mr Berry of Counsel, both of whom who have acted with integrity and professionalism throughout the trial.  When questioned about his false allegations about Mr Berry of Counsel and the ICL, the father shirks away from accepting responsibility, saying he must have meant for another person.  His explanations are completely implausible and unconvincing.

6. In relation to the evidence between Ms E and the father, I am satisfied that Ms E has been a truthful witness in her account of everything that the father said to her and did to her on 16 and 17 March 2016 as set out in her affidavit filed on 13 May 2016. The father has admitted to most of it but tried to put a spin on the situation such that, once again, he was the victim and that his actions were justified by the conduct of Ms E in swearing at him and telling him that she was coming back to Court to say that their marriage was over. To that end, I have admitted a video recording made by the father and considered the submissions in relation to it being admitted or not. I consider that it is in the best interests of each of these children that the video recording be placed before the Court as that tape recording is the father’s justification for causing serious injury and assault to his wife Ms E. Looking at the evidence in its entirety, I am satisfied that the father’s evidence and justifications about his attack on Ms E is a continuation of him trying to justify his violent and inexcusable conduct.   

The Father

1. As is evidence from these reasons, there are various troubling matters regarding the father which go to his capacity to parent and his responsibility to parenting.  Apart from the overwhelming issue of his violence, I accept the mother’s evidence that the father drinks heavily and becomes abusive. The father’s wife Ms E gave evidence about the father becoming drunk and abusive which I accept.  There are many reports in the subpoenaed material, in the mother’s material, reports from the children, two drink driving offences, admissions of the father, and reports from previous partners that satisfy me that the father consumes alcohol to excess at times of his choosing.

2. I reject his assertions that he does not have a problem with alcohol. He admits to excessive drinking but attempts to diminish the significance of this by saying that this only occurs when he encounters relationship break ups. There is evidence from the children, through the mother, which I accept, that the father has been drinking to excess. I am satisfied he has engaged in binge drinking. He admits he has woken surrounded by 20 cans of beers but makes excuses trying to deflect the obvious conclusion that such a scene portrays the conduct of a heavy drinker. 

3. As to his violent behaviour, the father uses threats as a means of intimidation and harassment to frighten others and to try and control them. There is compelling evidence and admissions on his part regarding threats and coercion. Apart from appalling threats to previous partners designed to cause fear, there is direct and recent evidence surrounding the incident on 17 March 2016 involving the father’s continued threats to others.  Since the 17 March incident the father has threatened Ms E through text and face book.

4. Very troublingly he has issued threats to the ICL, Mr Samuel and also to Mr Berry of Counsel for the mother. The father was cross examined about these threats and admitted to sending them. These threats started on the day that I conducted a hearing for the mothers’ application for leave to re-open the matter given the assault on Ms E. The ICL supported the re-opening of the trial. The father then sent to the ICL an email on that very afternoon of 21 April 2016 stating, “It completely slipped my mind that you have supported orders that have placed your clients in the hands of a self-confessed drug dealer. Put that in your pipe and smoke it. Gross negligence.”[9] That email was closely followed with another email at 3:02 pm advising the ICL that the father was going to contact the ACT Police and the NSW Police the following day to make full statements in regard to criminal assaults perpetrated both by the mother (dating back in 2003, some 13 years earlier) and by his estranged wife. This was the father’s vindictive response to this litigation being re-opened. The father explained that he made the report as he wished the mother to be seen for her violence. I am aware the mother has admitted to once hitting the father. Having regard to all of the evidence of the mother, I do not regard her as being a violent parent or a parent who presents a risk to X or Z of being harmed.

   [9] Transcript 6.06.16 p.126, line 5 onwards. Exhibit ICL 7.

5. The father explained that his only fault was that “I am guilty of choosing poor and violent partners and nothing more.”[10] This is fairly typical of the rhetoric which the father engages in along with his statements about his distorted views of justice. Despite there being now six domestic violence orders in place, the father is not able to accept his own violence. He still makes statements that he may have been verbally abusive but has never responded with physical violence. He admits to all of the threats including in the last email on 27 May 2016 that, “all will be held to account and I will show no quarter to anyone involved.” And “we are all held to account for our action or our inaction.”[11]The father does not accept the overt violence he perpetrated upon Ms E. He tries to justify it and firmly believes it was “necessary”. His justifications are chilling and clinical.

   [10] Transcript 6.06.16, p.128 line 15.

   [11] Above n, line 30.  Exhibit ICL 7.

6. The father also decided that he would send two emails to Mr Berry of Counsel who appears for the mother. On 6 April 2016, that email stated in part, “I am putting you on formal notice. When next in Court I will be attempting to ask the Judge to refer your perjury to the police for criminal investigation.”[12]  “You attempted to ruin my life, my marriage and my relationship with my beautiful children for your own self-interest. You have committed perjury under oath. I will hold you in account for your actions. I hope to have you jailed.” The father when questioned about these emails was evasive, non-responsive and gave entirely unacceptable justification such as, “I would have only thought that I would have directed such sentiment towards Ms Niven whom I have witnessed commit perjury.”[13]

   [12] Above n, page 130.

   [13] Transcript 6.06.16 p. 132, line 30 onwards.

7. In another email that the father stated to Mr Berry amongst other things, “I will see you jailed and ruined.” The father’s explanation for this was that, “I felt that if I could do something to have justice done I would do it.” When asked whether he was then prepared to make threats of this kind to people acting in their professional capacity the father replied, “At the time I felt it was warranted yes.”

8. I note in the mother’s material[14] that amongst an array of threatening emails to the mother, the father sent her an email in January 2016 threatening her lawyer saying, “You have ruined all of our Christmas plans. Arrange what you want with your meddling lawyer who is going to find herself before the New South Wales Bar Association. When you have both agreed for what’s best for my kids bend over so she can file them. You and your crap about working together for the best interests of the boys.” This threat is similar of the hollow and baseless threats made by the father against Mr Berry and Mr Samuels.

   [14] Affidavit of Ms Niven filed 25/02/16.

9. The father has now had six AVO’s made against him. The applicants have been Ms A, Ms H, his neighbour, the mother, his niece and now his estranged wife Ms E.[15]  The father says that the four women have been violent to him including the mother.

   [15] Above n, p.129.

10. I am satisfied that the father has posted images on the father’s Facebook intended to threaten and intimidate Ms E including an image of a person wearing a mask with blood on it with the caption, “I am the kind of friend who will help you hide a dead body but if you betray me, just remember.”[16]

    [16] Affidavit of Ms E filed 13/5/16 annexure D.

Incident of 16 March 2016

1. The father was evasive and dishonest in his account of the incident that occurred outside of the court on the last day of the trial. He gave the court a false description of what had occurred.  The transcript of the hearing on 17 March 2016 shows the father explaining that his wife was not at Court this morning as she had collapsed and fallen into the bushes. He said that this caused him to be late. He explained that when his wife collapsed, the security men from across the road outside of the other court “came running.”

2. Under cross examination from Mr Berry, the father said that his wife and he had driven in from Canberra and that his wife abused him for the whole journey.  On arrival in Parramatta, when walking to Court, his wife tried to grab his phone. The father said he used the “required force” to ensure that she did not take it. His description was minimised and clinical. He said that he did not notice that she looked physically sick and that he took no responsibility for the appearance of his wife that day. When asked was Ms E distressed the father said, “I wouldn’t say that.” He then said he would say “emotional but not distressed.”  When asked what was it that was emotional, he said, “she had the shakes.”

3. He could give no answer as to why it was that he wanted to physically fight off his wife’s efforts to get his phone. His explanations were implausible and I reject them.

4. The father denied that he had ever said he would send photos of her nude to her father in retaliation to his wife saying that she would retract her support for him and the children. When asked if he had photographs on his phone of the mother nude he falsely said he couldn’t remember.

5. When I directed that the father’s phone be given to him to check in the witness box if he had photos, he suddenly remembered that he had such photos.

6. The father would not make admissions against his own interest unless faced with irrefutable evidence, but even then he attempted to deflect his own conduct by casting doubts and changing his position. This happened when his wife gave evidence about an argument with the father where he had become so angry that she stepped out of the house, and sent him messages saying to calm down. The father denied this and said “she can’t even produce the messages.” She did produce the messages.  The father’s position then moved to, “so you say you sent those messages.” The messages were clearly contemporaneous and in direct response to what was happening. The father was inside the house being abusive and threatening and the wife said he had been “drinking again.”  She said “it’s the third beer that turns him nasty,” and she tried to stop this happening when they were together, by drinking the third beer.  She said that after they had their first big argument, she said she would stay with him but only on the condition that he got help for his depression and drinking.  She said she took him to her doctor. Those records were produced.

7. As to the incident on the way to Court, I am satisfied that Ms E gave a truthful account of the assault by the father and the events that occurred before and after.  The father has tried to minimise and justify his behaviour. He has attempted to turn the whole incident around so that he is the victim and his estranged wife was the perpetrator, which I reject entirely.  Ms E was most anxious and distressed in the witness box giving her evidence, shaking the whole time. Noting the gravity of her assault, the Court offered her the opportunity to give her evidence via video remotely, however, Ms E preferred to be in the Court room with a support person by her side.  Ms E has had various operations with more planned to try and rectify her injuries to her arm and finger (as per the medical evidence) and she has visible injuries with her hand in a sling. 

8. The father has engaged in rhetoric that is entirely at odds with the evidence. The father’s evidence was that he was assaulted physically and verbally, that his actions played no part in the mother’s injuries, that he was quite justified in applying the necessary degree of force to prevent his wife from taking his phone, that he was quite justified in not helping his wife out of the bushes which she fell into or was propelled backwards about 2 metres as she said, and that he was absolutely justified in leaving Ms E by the side of the road without money and on her on own. The father says that the wife’s behaviour in the car on the way to Court that day was “absolutely atrocious” and called for strong sanctions. The father has demonstrated a superb ability to remove himself from causing/ playing any part in the whole assault or sequence of events.

9. The father has given false and inconsistent evidence.  He said that the wife was not distressed when this incident took place, he said the security guards did not come running, they just walked up casually to ask if things were alright. However the transcript on 17 March 2016 shows the father telling the Court on the morning that his wife had “collapsed” and that the security guards had come running across the road to help, and he said she was “downstairs” and that the trial had been very stressful inferring she was suffering from stress relating to the trial.  This was untrue.  I am satisfied that the father and Ms E had an argument in the car on the way to Court following on from the events the previous night wherein the wife had heard the father talking to his own mother on the phone and heard him calling her obscenities including “a cunt” (which he admits). The wife said that she realised that night that if this is how he spoke to his own mother, that she had no hope as his wife and that the father wasn’t going to change. She told the father the marriage was over, that she was going to Court the next morning and retract what she had said about the proposed future life together living in a blended family with herself and her children. Ms E wanted the Court to know she would not be around and that she feared for the safety of the children.

10. The wife explained that on the morning of 17 March 2016, the father woke up early and said he was going to leave for Court without her.  She was in the shower when she heard him backing the car out. He eventually waited impatiently for her to dress and come out to the car.    

11. The father said that during the drive, the wife called him obscene names.  That is true.  He said he recorded her but did not tell her he was recording her. Ms E explained in her evidence other significant events including that she had been minding the father’s phone whilst the trial was in progress for the days before she gave her evidence whilst waiting outside and that she had started looking at things on his phone.  She and the father each had the same code to unlock their phone. Ms E explained said she found to her horror evidence on the father’s phone that the father had been in ongoing relationships with transvestites and homosexual men, as seen in messages his phone was receiving.  She realized that this had been happening during the course of her short marriage with the father. Some of these things had been told to her by the mother when Ms E first met the mother, as Ms E stated earlier in the trial, however Ms E did not believe them.

12. Ms E raised these and other issues with the father in the car whilst the father taped her. When they arrived at Court, Ms E said she tried to take the father’s phone and he resisted and in the process, he grabbed her hand and crushed it violently. She described a physical tussle, where they were both hanging on to the phone and they both turned around bent over. Ms E said that the next thing she knew she was propelled thru the air and into the bushes.  She could hear someone calling out “he is trying to get your bag.” Ms E said that in the process of the struggle the father had ripped off her false finger nails which are attached to the quick of her nail, and this caused intense pain and her fingers to bleed.  She said that she fell very heavily and this caused much pain.  She has had to have surgery twice so far and there is much more to come.  Her injuries were severe.  The father twisted the small finger on her right hand until it hung completely misshapen.

13. Apart from the security guards, the Police were called. The father went off to Court. Ms E told police when asked that she would not lodge a complaint against her husband and she retreated to the car and waited for the father to conclude his Court appearance of what was then the final day of the trial.

14. Overall, I have listened to both versions of events and prefer the evidence of Ms E wherever the evidence of Ms E and the father is inconsistent and in the absence of any independent evidence. 

Ms E (also known as Ms E), the Father’s wife

1. Ms E seemed to give her evidence openly and honestly. She was nervous and taking deep breaths and suffers from an anxiety condition. She was very alarmed at the behaviour of the mother towards her which started right at the first court date. The mother took her downstairs to have a cigarette and then commenced, as she called it, badmouthing the father.  She said the mother told her that the father is gay, that she will not be able to satisfy him sexually, that he has beaten up his partners and abused his children. Initially Ms E did not believe any of this however after the incident of 17 March 2016 and her subsequent evidence of what she had found on the father’s phone Ms E realised subsequently that the mother was being truthful.

1. She had been confident that they would remain happily married in a big happy blended family however again, all of this collapsed after the assault.

2. Ms E seemed very sensible, understandably nervous and with an anxiety condition. She seems to have been competent though and she has run her own business in (omitted), a franchise, and I think she had a business for many years before that. She has raised four boys of her own singlehanded and suffered a significant event in her family with the father of her boys being charged and convicted with a serious assault of her eldest son. The children do not see their violent father at all.

3. All of her children have succeeded at their schooling. She did not seem to be exaggerating her evidence. 

4. Her language is crude and she has admitted that she called the father once, “a silly cunt” and that he reacted unexpectedly badly to this.  She said herself and the father started a relationship in October 2015 and married in (omitted) 2016.  Ms E is intending divorcing the father as soon as possible.

Mr O, the Report Writer

1. Mr O prepared two reports.  He records the views of X to live with Mum. Z would not attend and refused to attend for interviews.  Mr O has had significant concerns each of these parents have a deficit in their parenting such that he had no confidence that any of the remedial work that was needed to have been done, likely years ago, would be done.

2. He had no belief that the parties would work together as they should do to parent Z or X.  He said that the damage to these children was likely done about 10 years ago. He confirmed that the current situation is that no one will tell Z what to do as Z will not do it unless he wants to. He did not think that the father’s idea of having an order in place for the police to bring Z back from the (omitted)’s, or from wherever else he runs away to, the father will work, as Z is well beyond taking directions from his parents, teachers or anyone else.

3. Mr O was not sure whether it was good to have any orders in place for Z to live anywhere as he is doing what he wants anyway.  Overall though in terms of X, he does believe that it is better for X to have orders as no orders will simply mean that X is in the position of having pressure placed on him both by the mother and father, and this will allow X to manipulate the situation.

4. After Mr O gave his evidence, the significant events of 17 March 2016 occurred.  I have had regard to the evidence of the Family Report writer, and I agree with his recommendations regarding no orders for Z as they accord with my views based on all of the evidence. I accept his recommendation for X to have orders made about his living arrangements is in accordance with his best interests.

S. 60CC(2) The primary considerations are:

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

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

1. I am satisfied with that the father and the children have had some good times during their years together, however I do not accept the father’s views that he has a good relationship with both X and Z.

2. Z’s behaviour is difficult and oppositional, in line with his diagnosis, and he has chosen not to spend time with his father.  As for X, I am satisfied on the evidence that given the father’s propensity for violence and his harsh and inflexible attitude towards parenting, that it will just be a matter of time until X comes face to face with his father’s strict standards, and that this will likely lead to a falling out between X and his father.

3. Given the findings I have made about the father’s violence, I am most concerned that X ought not to be forced to see the father. An arrangement where X through the mother, can go to see his father if he chooses to, gives X much more flexibility and removes the opportunity for the father to use the Court’s orders as a punitive measure, as the father intended to do with X.

4. X is also of an age, where it is appropriate in my view, for him to have flexibility about his weekend arrangements. 

S.60CC(3) The additional considerations are:

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

1. X has made it very clear that he will see his father but only at times when he wishes to do so. I accept the mother’s evidence that he has told her on more than one occasion that he does not want to spend time with the father when the father is drunk. X has said, “I don’t like going there when he is drunk.” “I don’t want to go there if he has been drinking.” “He is not nice when drinking.” Given my findings that the father is a heavy drinker and that he is abusive and at times violent I accept that the views put forth by X are sound.

2. Given X’s maturity and his lengthy exposure to ongoing conflict between his parents I consider that to make any routine orders for him to spend time with his father will likely lead to further litigation. X has his own views and experiences with the father and in all of the circumstances I can see significant advantage in the mother’s proposal for X’s time with the father to be flexible and dependent on how X is coping with all of the other issues in his life as well as the overt hostility continually demonstrated by the father towards the mother. I also do not wish to make orders that will simply invite the father to bring unnecessary contraventions particularly in light of the fact of X’s age and experiences.

S.60CC(3)(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)

1. I have made reference elsewhere in this judgment to the constant change in living arrangements for both of these children over many years. I am satisfied that X has a good relationship with his mother and that she is offering him some stability and she is certainly being effective in having him engage in his education as per the evidence from the teachers at X’s school.

2. I am not satisfied that X has a healthy relationship with his father. The father has unrealistic expectations of children as he has demonstrated in his parenting of Z. I consider it simply a matter of time before the father has a major falling out with X and to that extent I think their relationship is delicate.

3. The father has given evidence that he has a great relationship with Z and also with X. I reject his evidence as being pure rhetoric and entirely inconsistent with the facts and the evidence presented to the Court. Neither X nor Z are expressing any desire to spend time with the father at this point and they do not express a desire to live with him. If the father considers he has a good relationship with Z, he is utterly misreading the dynamic between himself and Z.

4. As to his relationship with X, given X’s age and his own behavioural difficulties and his exposure to family violence and endless litigation for the past 13 years, I do not see any benefit to have his time with the father mandated. In all of the circumstances, there are significant advantages in this mother’s proposal that X live with her and spend time with his father only when he expresses a wish to do so.

5. In terms of X spending time with Z and or Y, I am satisfied that the mother will facilitate this. I am equally satisfied that the father will not encourage a relationship with X’s siblings given his “all or nothing” approach to Z and Y. I am satisfied that the mother understands Z’s sensitivities and behavioural difficulties and that she has a superior capacity to deal with Z and parent him as opposed to the father.

6. X has been living with the mother for over 12 months. I am unable to see any advantages in the father’s proposal to uproot him from what is a stable environment and disrupt his progress at school, to live with the father. I also accept the mother’s evidence about the views expressed by X in terms of him wishing to see his father when he chooses to do so. Given my findings about the father’s violence I am deeply concerned at the prospect of X being under the control of the father.

S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

1. To participate in making decisions about major, long term issues     in relation to the child; and

1. To spend time with the child; and

(iii)  To communicate with the child.  

1. Each of the parents have had opportunities to be the primary parent in the past. The orders made in this matter are not necessarily reflective of where the children have been living. I am satisfied that the father has done little to be involved in the education of X over the past 18 months. He seems pre-occupied of being critical of the mother as opposed to showing any genuine interest in being involved with X’s education. The mother has remained as involved in possible in X and Z’s lives.

S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

1. There is very little evidence about how much Child Support either party has been paid in Child Support as they both appear to be routinely unemployed. The mother appears to be carrying the primary cost burden of raising X.

2. I accept that she was doing the best she could given that Z had run away from the father’s in providing some funds in feeding Z when he was living with the (omitted)’s.

S.60CC(3)(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

1. I have already described the difficulties with the father’s application to be a full-time parent of X given the flaws in his parenting style and his propensity to resort to violence and threats. I consider that making an order for X to live with the father will result in him being exposed to the father’s violence, harsh parenting and threats and that it will represent an unnecessary disruption to the stability that the mother has been providing. In all likelihood in making an order for X to live with the father or to make mandated orders for him to spend time with the father will result in X ultimately being evicted from the father’s home when there is conflict between X and the father. Regretfully, the father’s parenting style is not conducive to dealing with young behaviourally challenged teenagers. He also provides a very poor role model in terms of his hostility and violence towards others.

S.60CC(3)(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

1. At the conclusion of the trial, neither party nor the ICL raised this being an issue which would preclude either of the parents of seeing the children. Each of the parties have had access to transport. Each of the parties has a history of moving from time to time. 

2. The father lived in the ACT during the trial and gave evidence that he spent a lot of his time driving and he did not anticipate having any problems driving to and from (omitted) when he was in a relationship with Ms E. The mother lived in (omitted) and on that basis, any time organised between the parents ought not present a difficulty. 

S.60CC(3)(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; and S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. As to the order sought by the father to have X live with him, as I have explained elsewhere the father’s propensity for violence, threats and intimidation profoundly affect his capacity to parent and his attitude towards parenting and parental responsibility. I have no confidence that the father has the capacity to be a full-time parent for X and on the evidence before me, I am satisfied that ultimately X will fail to measure up to the father’s standards and will be dealt with very harshly. The father’s violence together with his drinking in my view place any children living with him at risk of exposure to family violence and abuse.

2. I am satisfied that the mother has the capacity to deal with these troubled teenage boys in the best way possible given all of the circumstances that she is facing. Her efforts in terms of X’s schooling are starting to have positive results. Z has decided to live with the mother for the time being which is certainly a step in the right direction for him and his future.

S.60CC(3)(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

1. I have nothing to add.

S.60CC(3)(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

1. Not applicable.

S.60CC(3)(j) Any family violence involving the child or a member of the child’s family; and S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

1. the nature of the order;

1. the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)   any findings made by the Court in, or in proceedings for, the    order;

1. any other relevant matter. 

1. I have dealt with this comprehensively throughout this judgment and I have nothing further to add.

S.60CC(3)(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

1. I accept without reservation the submission of the ICL that final orders in this matter need to be made and that these parents ought to desist from any further litigation in relation to either Z or X. This litigation has been on foot on and off for 13 years which is most of the childhood of both Z and X. X will be 15 next year and Z will be 17. There is nothing further that can be done to assist these children under the Family Law Act 1975. If the parties wish to maintain their arguments and conflict they will have to find another forum.

S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

1. I have nothing further to add.

Parental Responsibility

1. It is abundantly clear in this matter that these parents are unable to agree about issues to do with parenting. The presumption of equal shared parental responsibility does not apply given the findings I have made about the father’s violent and threatening conduct. Further, it is not in the best interests of X to make an order that his parents are required to discuss long term issues as they do not have the mutual respect or the communication skills to be able to have any civilised discussion. Moreover, the father is incapable of being flexible and does not have the capacity to appropriately parent X or to be able to provide for his educational or psychological wellbeing. I am satisfied that the mother has a warm relationship with X and that she is, of these two parents, the better equipped parent to make decisions about X’s education, health and religion and any other long term matters.

2. I intend to make an order for the mother to have sole parental responsibility in relation to the child X.

Discussion

1. As is clear from this judgment, I am satisfied that it is in the best interest for X to remain living with the mother and I am also satisfied that her proposal for no proscribed orders for X to spend time with the father ought to be made. It is a pointless exercise on a practical level as X will vote with his feet as did Z. There are also compelling reasons why X (and Z) ought not be forced to spend time with their father who has unfortunately displayed inexcusable and violent conduct towards others such that it profoundly effects his ability to parent.

2. I intend therefore to make an order that X live with the mother and that she have sole parental responsibility. In terms of orders to spend time with the father, I dismiss the father’s application for X to live with him for the reasons set out herein. I dismiss his application for an order that X’s time with him be mandated. I am satisfied that the order sought by the mother and the ICL that X spend time with the father only at times agreed to by X.

3. I intend to make an order that the mother be restrained from leaving X in the sole care of Y for the reasons set out herein.

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of Judge Willis

Date:  24 January 2017