Parkhurst and Bardsley
[2018] FCCA 2764
•27 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARKHURST & BARDSLEY | [2018] FCCA 2764 |
| Catchwords: FAMILY LAW – Parenting – final orders – two children ages 8 and 9 – whether the children should live with the Mother or Father – whether equal shared parental responsibility is in the best interests of the children – where the Father has been the primary carer of the children post-separation – where the Mother has had a limited parenting role post-separation – where the Father perpetrated coercive and controlling family violence on the Mother – where the Father has a history of resolving conflict with aggression and violence – best interests of children. |
| Legislation: Family Law Act 1975 (Cth), pt.VII |
| Cases cited: M & M (1988) FLC 91-979 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR PARKHURST |
| Respondent: | MS BARDSLEY |
| File Number: | NCC 3434 of 2016 |
| Judgment of: | Judge Betts |
| Hearing dates: | 21, 22 & 26 June 2018 |
| Date of Last Submission: | 13 July 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 27 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Solicitors for the Applicant: | Turnbull Hill Lawyers |
| Counsel for the Respondent: | Mr Bithrey |
| Solicitors for the Respondent: | Powe & White Family Lawyers |
ORDERS
That all previous parenting orders be discharged.
That the Mother have sole parental responsibility for the children [X] born 2009 and [Y] born 2010 (“the children”).
That within seven (7) days of making any major long-term decision for the children, the Mother is to advise the Father in writing of the decision.
That the children live with the Father until 12noon on the first Wednesday of the end of the Term 3 school holiday period in 2018 and thereafter the children are to live with the Mother.
That the children spend time with the Father as agreed in writing between the parents and failing agreement:
(a)During school terms, each alternate weekend from conclusion of school Friday (or 3pm if the children are not at school that day) until commencement of school Tuesday (or 9am if the children are not at school that day), commencing the second weekend of term in terms 1 and 3, and the first weekend of term in terms 2 and 4.
(b)During the end of Term 1, end of Term 2 and end of Term 3 school holiday periods each year, being:
(i)In odd numbered years, from conclusion of school Friday until 12 noon on the middle Saturday;
(ii)In even numbered years but excluding 2018, from 12 noon on the middle Saturday until 12pm on the last Sunday before school recommences;
(c)During the end of Term 4 school holiday period in each year, being:
(i)In odd numbered years, from 12 noon on the first Saturday until 12 noon on the Wednesday which falls eighteen (18) days later (“the middle Wednesday”);
(ii)In even numbered years, from 12 noon on the middle Wednesday until 12 noon on the last Saturday before school recommences.
If the Father’s weekend pursuant to order 5(a) falls on the Mother’s Day weekend, then order 5(a) is suspended for that weekend. If the Father’s Day weekend does not fall on the Father’s weekend pursuant to order 5(a), then the Father is to spend time with the children on the Father’s Day weekend as if order 5(a) did apply.
Unless otherwise agreed in writing between the parents, changeovers are to occur:
(a)at the children’s school/s on school days;
(b)at the Service Station at Town A on non-school days.
Pursuant to section 68B of the Family Law Act, each parent is restrained from administering corporal punishment to either of the children, or from allowing any other person to administer corporal punishment on the children.
For the purposes of these orders, “writing” includes emails and text messages.
If either party seeks a costs order in respect of these proceedings they are to file and serve an Application in a Case and supporting Affidavit within fourteen (14) days, failing which Orders will be made that the proceedings be removed from the Active Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Parkhurst & Bardsley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3434 of 2016
| MR PARKHURST |
Applicant
And
| MS BARDSLEY |
Respondent
REASONS FOR JUDGMENT
BACKGROUND:
These proceedings relate to whether the parties’ children, [X] aged nine (9) and [Y] aged eight (8), should live with the Father or the Mother. Parental responsibility is also in issue.
The parents commenced their relationship in Town B in mid to late 2008; both children were born in Town B; the family lived there until early 2014 at which time they moved to the Region 1 for the Father’s work; the parents separated just a few months later in August 2014; during the relationship both parents had been actively involved in the children’s care; upon separation the Mother moved out of the parents’ rental home and the children remained living in the primary care of the Father.
After separation, the parents co-parented the children in such a manner that they spent nearly all of their nights in the Father’s care, with the Mother often collecting them in the mornings and returning them to the Father at night. There were also some periods when the Mother’s involvement in the children’s lives was only sporadic.
The Mother explains her somewhat limited co-parenting role post-separation by saying that she was, at all material times, a victim of the Father’s coercive and controlling family violence. She says that her limited time with the children post-separation was a direct result of the Father actively restricting and controlling her time with the children. The Mother says that the Father’s conduct was consistent with other abusive, controlling and threatening behaviours perpetrated against her throughout their relationship. She says that the Father does not respect her as a parent.
The Father denied perpetrating any acts of family violence against the Mother. The Father’s case was that he has been the agreed primary carer of the children since separation and has done a very good job caring for them. His case is that the Mother’s limited involvement with the children after separation was entirely voluntary on her part; that only he was able to provide consistent quality care to the children in the circumstances. The Father also raises a concern that the Mother’s partner, Mr L, poses a risk to the children due to his past history of excessive physical discipline against the eldest child [X].
These proceedings were commenced by the Father in December 2016, following the Mother and Mr L effectively holding the children over after a weekend visit. Pursuant to court orders, the children have since remained living with the Father and have spent regular time with the Mother each alternate weekend from Friday afternoon until Tuesday morning. The children have also been spending approximately half of school holidays with each parent.
By the time that the proceedings came on for trial before me in June 2018, the children had been living in the Father’s primary care for the better part of four (4) years. The Father remained living on the Region 1 in a settled and stable relationship with Ms S. The Mother was living at Town C in a settled and stable relationship with Mr L. She and Mr L now have a child together, [A], born 2018.
At trial, each parent proposed orders that the children live with them, and that the other parent spend regular weekend and holiday time with them.
DOCUMENTS & EVIDENCE RELIED UPON BY THE PARTIES:
The Father relied upon his Initiating Application filed 15 December 2016, his Notice of Risk filed 15 December 2016, his trial affidavit filed 12 June 2018, and the affidavit of Ms S filed 12 June 2018.
The Mother relied upon her Response filed 27 April 2017, her trial affidavit filed 30 May 2018 and the affidavit of Mr L filed 30 May 2018.
The court had the benefit of a detailed Family Report by Mr N, a Regulation 7 Family Consultant.[1] Mr N also gave some supplementary oral evidence.
[1] Exhibit FR-1
Various exhibits were tendered in the course of the trial, predominantly subpoenaed documents.
The Court has also had regard to some extracts from the Child Inclusive Conference Memorandum prepared by Family Consultant Ms B on 3 February 2017 which were the subject of cross-examination at trial.
I have considered all of the above material, together with the Case Outlines, the closing addresses of counsel and their supplementary written submissions.
OBSERVATIONS ABOUT THE EVIDENCE OF THE WITNESSES:
Ms S:
Ms S was an honest and reliable witness, albeit somewhat anxious and reluctant. I think she found the trial process rather confronting.
Ms S agreed that one disciplinary method employed by the Father and not mentioned in her affidavit was destruction of the children’s toys. When pressed about it being absent from her affidavit, she explained that he had not destroyed toys “for quite a while now.” I sensed that she was uncomfortable and embarrassed about the Father’s use of that disciplinary method.
She agreed that Police had attended the home on one occasion in 2016. I accept her evidence about that event and nothing turns on it.
Ms S’s evidence is that [X] only ever reports negative things to her about Mr L. Ms S assumes that Mr L is the cause for [X]’s defiant behaviours.[2] To be fair to her, the Father has never told Ms S that [X]’s behavioural problems date back to her childhood.
[2] Family Report paragraph 74; exhibit FR-1
Ms S knows nothing about the Father’s past criminal convictions, including for assault.
I accept Ms S’s unchallenged evidence that the Father has never been physically violent towards her and that they have been able to rationally resolve any disputes between them.
I accept that Ms S has genuine love and affection for the children.
Mr L:
Save that he was less than forthcoming in his affidavit in relation to the “bed throwing” incident with [X] discussed later, I also found Mr L to be an honest and reliable witness.
I accept Mr L’s evidence that after he commenced a relationship with the Mother, he observed that she was experiencing issues with the Father’s behaviour, most notably the volume of calls and messages he was leaving for her.
I accept Mr L’s evidence that he stayed out of the parental dispute up until December 2016 when the Mother told him that the Father had just threatened her that if she tried to change the parenting arrangements then he would take the children and she would never see them again.
I am satisfied that Mr L is genuinely remorseful about confronting the Father afterwards, in the presence of the children.
Mr L was cross-examined about an alleged act of violence towards a former partner in 2006, when he was twenty (20) years old. Essentially he had had an altercation with her in his car in the course of which he grabbed her by the arm and dragged her out of his car and she hit her head on the roof. He and she then pushed each other. They both got back into the car and continued to argue and the victim noticed that she had some bleeding from the mouth. Mr L agreed that Police later charged him with common assault – but the charge did not proceed.
The Father’s counsel suggested that I should draw an adverse inference from this event because Mr L deposed that his only “involvement” with Police had been in relation to traffic infringements. But Mr L explained that the common assault charge never went ahead and overall I am satisfied that he was not trying to deliberately mislead the court.
This event is a cause of some concern to me. He had never told the Mother about it. However, it was a one-off over eleven (11) years ago. I do not accept the Father’s submission that this event constitutes an undisclosed “history of domestic violence offending”.[3]
[3] Father’s Case Outline, paragraph 14
Regulation 7 Family Consultant, Mr N:
Mr N had provided the court with a detailed Family Report.[4]
[4] Dated 13/12/17, which became exhibit FR-1 in the proceedings
The Family Report was quite comprehensive. Mr N interviewed each parent, Ms S, Mr L, both children, as well as conducting family observations. He reviewed all of the court material that had been filed at that time, and also reviewed subpoenaed documents.
At interview the Father admitted that the parents had a high conflict relationship involving mutual verbal abuse escalating following the birth of [Y] and that on occasion their interactions were “explosive”.[5] However the Father categorically denied that he had ever perpetrated any physical violence on the Mother.
[5] Family Report, paragraph 27; exhibit FR-1
The Mother also told Mr N that the parties had a high conflict relationship, involving physical violence and coercive behaviours. She said she had covered up the abuse, lying to medical practitioners she attended upon.
Both parents agreed that the children were exposed to their conflict.
The Father described [X] as having a similar personality to his, saying ‘she is argumentative’ and he admitted that she has anger issues and could yell. The parents agreed that [Y] was more laid back.
[Y] told Mr N that when she was four (4) or so, she had seen her Father punch and kick her Mother, although she says that he denies this when she discusses it with him.[6]
[6] At interview the Father expressed some concern that [X] had said to him on a few occasions “Did you hit mum?” - his position being that he has never done so.
[X] complained to Mr N that Mr L had punished her by throwing her onto a bed and by hitting her on the leg. [X] told Mr N that the Father had said to her that Mr L “can’t touch her or tell her what to do”. [X] said that she was no longer fearful of Mr L.
[Y] told Mr N that his Father was ‘very nice’ and Mr N thought he was clearly comfortable in the Father’s household. [Y] seems to get on well with everybody and he had never been physically disciplined by Mr L.
In observations [X] did not display any fear of Mr L. She was primarily focussed on the Mother, but did seek Mr L out during the observation period. Both children hugged their Mother and Mr L voluntarily upon the cessation of the observation period. The children were equally comfortable when observed with the Father and Ms S.
In the Family Report, Mr N raised concerns about both parents.
As to the Mother, Mr N was concerned about the effects on her of having experienced coercive and controlling family violence from the Father, consequent upon her own dysfunctional childhood which involved parental alcohol abuse, amphetamine use and her own father assaulting her mother.
Mr N was concerned about the Mother’s admission that she used to yell a great deal at the children.[7]
[7] She told him, and I accept, that she had better learned to manage her emotions after completing the “Building Connections” Program in 2016
Mr N considered that the Mother needed to engage in a therapeutic relationship with a clinician experienced in dealing with women who have experienced domestic violence. It was also suggested that she undertake a recognised parenting program with a community-based agency. He also considered that she may possibly benefit from anxiety medication as well.
Mr N did not however consider that the Mother’s parenting capacity was compromised as such. His “mental health” recommendations were prophylactic in nature.
Mr N was also concerned about the Mother’s somewhat limited time with the children post-separation.
As to Mr L, Mr N properly expressed concern about him throwing [X] onto a bed as punishment and physically chastising her.
Under the heading ‘Evaluation’, Mr N expressed concern about the children’s experience of the separation and the dynamics of the parent’s relationship on a number of levels. He noted during the Child Inclusive Conference in February 2017, that both children had expressed considerable concern about the Father’s hostility towards the Mother and both expressed concern about the Mother’s safety and wellbeing in relation to the Father. He was concerned that [X] had a clear memory of the Father assaulting the Mother at least once. Mr N’s view, on the balance of probabilities as best he could assess, was the Mother’s version of events as to past family violence was more likely to be true particularly given the information revealed about the Father in the NSW Police Criminal Records. On that basis, Mr N had a “major concern” that the Father may have “an entrenched pattern of resolving conflict with aggression and violence.” He was concerned that the Father may be a person who has a strong sense of male entitlement and/or a misogynistic view of the world.
Mr N was concerned that [X]’s recognised defiant behaviour was “in all likelihood the result of family violence” which needed further examination within a therapeutic relationship for [X]. In what he clearly found to be a difficult matter, Mr N “slightly” favoured the Mother’s proposal that the children live with her.
Mr N’s Family Report was usefully supplemented by some oral evidence.
In the witness box, Mr N confirmed that he had significant professional experience in family violence cases. He said that family violence victims often underreport the extent of the abuse; that the abuse can often occur in a cyclical pattern involving apologies, promises not to do it again, and then a build-up. These dynamics drive underreporting and false denials to treating medical practitioners.
Mr N considered that there were significant negative impacts on children who were caught in entrenched patterns of violent behaviour as a means of conflict resolution. He said that it would have a significant adverse impact on the psychosocial development of the children and could lead to fear and insecurity on their part. He explained that children do not expect to experience family violence in their home environment.
Mr N was concerned not only about the family violence allegedly perpetrated by the Father on the Mother but also about the Father’s use of violence generally as a way of navigating conflict with others. He was concerned about the Father’s capacity to regulate his anger.
Importantly, Mr N said that even if there were no findings about family violence perpetrated by the Father against the Mother, he would still have reservations about the Father’s past violent behaviour, noting that it can be a pattern, even an intergenerational pattern – noting the Father’s own violent upbringing. He agreed with the proposition that [X]’s own defiance and aggressive behaviours could represent the problem going down to the next generation.
The Father’s counsel understandably challenged Mr N about having preferred the Mother’s evidence as to family violence over the Father’s evidence. Mr N ultimately conceded this,[8] but made clear that he was not making assumptions as to individual acts of family violence. Rather he was proceeding on the basis that the nature of the parents’ relationship involved coercive and controlling family violence.
[8] Such a concession is apparent in any event from paragraph 61 of the Family Report
I am not critical of Mr N for making a “judgment call” on this issue. His opinions are inevitably hypothetical and ultimately based upon assumptions as to factual findings that only a trial Judge can make. The weight to be accorded to his recommendations inevitably depends upon the court’s findings of fact.
Overall, I found Mr N’s evidence to be thoughtful and considered. His evidence was of assistance to me in my determination.
The Mother:
I found the Mother’s evidence to be broadly honest and reliable.
She made some proper concessions – for instance that she and Mr L should not have decided to confront the Father at handover in December 2016 and that it would have been confusing and frightening for the children. But she refused to admit that the Father and Mr L had in fact a heated argument when they clearly did.
Her evidence as to the Father’s past family violence appeared genuine and was at times compelling.
But not all of the Mother’s evidence as to family violence was consistent. For instance, the Mother was cross-examined about inconsistencies between her trial affidavit and an affidavit she swore in 2017. The Mother accepted in the witness box that the 2017 affidavit had only made one (1) allegation of family violence against the Father – being that he pushed her on one occasion when she was pregnant. Her 2017 affidavit also apparently accused the Father of physically hurting [Y] on multiple occasions. Yet her trial affidavit only referred to one (1) such event. She also agreed that her 2017 affidavit made no mention of the Father putting a “tracking app” on her phone or monitoring her texts. Her 2017 affidavit also referred to an “eyewitness” to a particular event – who was then not mentioned in the Mother’s trial affidavit, or called in her case.
The Mother explained that she had a “legal aid lawyer” at the time she swore the 2017 affidavit and said that she had basically written the affidavit herself. I accept that evidence. She remained adamant that the Father had perpetrated family violence against her as alleged in her trial affidavit and consistently maintained that she was being truthful.
Although the 2017 affidavit gives rise to concerns about her evidence of family violence, I did not consider that she was trying to mislead the court about the family violence allegations. While her recollection of events of past violence was at times confused and unreliable, she was not being dishonest.
By and large I found the Mother to be a reliable witness. I am satisfied that she and Mr L are in a stable relationship which does not involve family violence although they do have heated arguments at times.
The Father:
The Father categorically denied perpetrating any acts of family violence against the Mother whatsoever. He denied all allegations of family violence including that he had ever assaulted the Mother at any time.
Insofar as the Father was cross-examined about his past violence and angry behaviour towards others, I must say that I found his evidence to be distinctly unconvincing and lacking in candour. To the extent that his past behaviour was ‘provable’ in the form of criminal convictions, he was willing to make only grudging concessions as to his own behaviour. He consistently downplayed what he had done.[9]
[9] His counsel’s written submissions (paragraph 5) properly conceded that it was open to the court to find that in certain parts of his evidence the Father minimised his violent conduct.
Moreover, throughout his oral evidence it became very clear to me that the Father does not feel any - or any genuine - remorse for the past violence towards others, being the only violence to which he is willing to admit. Like Mr N, I found the Father’s evidence about his past violence to be “coy”.[10]
[10] Family Report, paragraph 54; exhibit FR-1
His decision to downplay the violence he perpetrated against others diminishes the Father’s credibility in relation to the Mother’s family violence allegations.
Having seen the Father in the witness box and having weighed up all of the evidence in this case, I am satisfied that the Father has a longstanding difficulty with anger management. Perhaps worse, he does not accept it.
I also formed the strong impression during the Father’s evidence that, notwithstanding his statements to the contrary, the Father does not genuinely respect the Mother as the other parent – he certainly does not see her as an equal parent. He considers himself superior to her.
As a general statement, I preferred the evidence of Mr L over the Father’s evidence where they conflicted. I generally preferred the Mother’s evidence to that of the Father’s where they conflicted.
Having said these things, I do not wholly reject the Father’s evidence. I am satisfied that in his own way the Father has been a good provider to the children and that he is devoted to them. He has attended to their day-to-day needs and has been consistently committed to their care. He has not behaved in a violent manner towards Ms S and the children are settled in their home environment.
RELEVANT LEGAL PRINCIPLES IN PARENTING CASES:
Part VII of the Family Law Act 1975 (Cth) (“the Act”) empowers the Court to make a “parenting order” in respect of children.[11]
[11] The term “parenting order” is defined in s.64B
There are a number of key objects and principles which underpin the operation of Part VII and these are set out in s.60B of the Act.
When deciding whether or not to make a particular parenting order, the Act requires that the court regard the “best interests” of the relevant child as the paramount consideration: s.60CA; s.65AA.
In arriving at a “best interests” determination, the Act prescribes mandatory considerations in s.60CC. The two (2) so-called “primary considerations" are set out in s.60CC(2)(a) and s.60CC(2)(b) respectively and they are:
· s.60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents; and
· s.60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Not uncommonly, those two (2) primary considerations pull in different directions. When they do, s.60CC(2A) resolves that tension by providing that the court is to give greater weight to the consideration set out in s.60CC(2)(b). A court will not make parenting orders that expose the child to an “unacceptable risk” of harm.[12]
[12] M & M (1988) FLC 91-979 (High Court of Australia).
Section 60CC(3) of the Act goes on to prescribe fourteen (14) so-called “additional” considerations, although the final such consideration in s.60CC(3)(m) is in the nature of a “catch-all” provision designed to accommodate the facts of each individual case and family that comes before the court.
Section 61C of the Act provides that, subject to court orders, each parent has “parental responsibility” for a child. Section 61B defines “parental responsibility” as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
By section 65DAC, parents who share parental responsibility for a child are obliged to consult with each other in relation to any “major long term issue” for the child, and must make a genuine effort to come to a joint decision. “Major long term issues” for a child are defined by section 4 of the Act to include long-term matters relating to a child’s education, religious and cultural upbringing, health, the child’s name and changes to a child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. The statute expressly excludes from the definition a decision by a child’s parent to enter into a relationship with a new partner.
Regarding day-to-day decisions in relation to a child, section 65DAE provides that, subject to contrary provision in a parenting order, a person spending time with the child pursuant to an order may make such decisions without consulting a person who has parental responsibility for the child.
Section 61DA(1) of the Act imports a rebuttable statutory presumption that, when making a parenting order for a child, it is in the child’s best interests for his/her parents to be allocated equal shared parental responsibility for the child.
Section 61DA(2) provides that the presumption is not to be applied if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
· “abuse”[13] of the child or another child who, at the time was a member of the parent’s family (or that other person’s family); or
· “family violence”;[14]
in which case the issue of parental responsibility is at large, to be determined in the exercise of the court’s discretion with the child’s best interests being paramount.
[13] as statutorily defined in section 4 of the Act
[14] as statutorily defined in section 4AB of the Act
Consistent with the paramountcy principle, where the presumption does apply it is nonetheless rebuttable by evidence that satisfies the court that the making of such an order would not in fact be in the child’s best interests: s61DA(4).
In the event that the court makes an order for equal shared parental responsibility, then this engages the statutory pathway set out in s.65DAA of the Act.[15] Put shortly, the court must consider as the first option making orders for the child to spend equal time with both parents if such an order is in the best interests of the child and reasonably practicable.[16]
BEST INTERESTS – PRIMARY CONSIDERATIONS:
[15] See Goode & Goode (2006) FLC 93-286
[16] As to reasonable practicability, see the decision of the High Court in MRR & GR (2010) FLC 93-424
Section 60CC(2)(a):
The court considers that the children would benefit from continuing to have a meaningful relationship with both parents.[17] That will continue on either parent’s proposed orders.
[17] As to a meaningful relationship, see Mazorski & Albright (2007) 37 Fam LR 518
Of the two parents, the court considers that the Mother can better promote the Father’s relationships with the children. That issue will be addressed later in the context of the additional considerations in s.60CC(3)(f) and s.60CC(3)(i).
Section 60CC(2)(b) – the risk case against the Father:
The Father has had longstanding anger management difficulties, and his past history shows an established pattern of resorting to violence as a means of conflict resolution.
I will deal firstly with the Father’s alleged angry and violent interactions towards persons other than the Mother.
Early instances of the Father’s violence:
The Father had a difficult childhood. His own father physically disciplined him in an excessive manner.[18]
[18] As stated by the Father in the Family Report interviews. Ultimately the Father moved away from home to finish his secondary education.
According to the Father’s criminal history:[19]
(a)in September 2001, at age thirteen (13), the Father was convicted in the Town B Childrens Court of two (2) counts of common assault, one being in 2001 and the other in 2001;[20]
(b)in 2002, at age fourteen (14), the Father was convicted of a common assault earlier that month and ordered to undertake probation;
(c)in 2007, by then an adult, the Father was convicted of common assault and of destroying or damaging property with a value of equal to or less than $2,000. He was placed on a section 9 bond, and again ordered to undertake probation.
[19] Exhibit M-4
[20] The Father was found guilty of these offences and dealt with under s 33(1)(a) of the Children (Criminal Proceedings) Act1987 (NSW); see exhibit M-9
Assaulting a female referee in 2011:
In 2011, the Father lost his temper in the course of losing a squash game and he then went on to have a confrontation with - and assault - a female who had played a refereeing role. The relevant COPS entry of 2011 is exhibit M-2. He was later convicted of the offence, fined and placed on a section 9 bond.[21]
[21] Exhibit M-4
I am satisfied on the evidence that the Father swore at the victim, and that he deliberately squirted her with water in a demeaning and contemptuous manner. His initial response when Police became involved was to try to dismiss the matter as petty. In my view he still considers this to be a petty event. For instance, when asked about his past criminal history by Mr N, the Father could not even recall who he had assaulted.
When I specifically suggested to the Father that this assault was possible evidence of an anger management problem, he responded with “possibly, but it was eight years ago”. He minimised the event.
Road rage event in 2012:
In 2012 the Father committed an act of “road rage”. He was upset at the manner in which the driver behind him had been driving and, when both vehicles came to a stop at a set of traffic lights, the Father got out of his vehicle and advanced toward the other vehicle. As he approached, the other driver attempted to open the door. The Father pushed back on the door and it appears to have struck the driver’s leg. Police were called and defused the situation and no charges appear to have been laid.
Both children were in the Father’s car at this time and exposed to the Father’s violent and angry behaviour.
Altercation with a fellow (employer omitted) employee in 2014:
In late 2014, the Father lost his job at a (employer omitted) following a physical altercation with one of his co-workers. His trial affidavit deposed that the other employee was the aggressor and that the Father was merely restraining him. His evidence on this topic was entirely self-serving and I do not consider that I can make a specific finding about the circumstances of this event, save to note that once again, the Father had gotten into a physical altercation.
Interestingly, the Father admitted in the witness box that he was not the easiest person to get along with and unable to work in a team environment.
Choking Ms C in 2015:
On 2015, the Father assaulted his then partner Ms C. According to his trial affidavit, Ms C “shoulder charged” him in the course of an argument and he then told her that she needed to leave and he “pushed her”.
The subpoenaed COPS entry relating to this event[22] records that, according to Ms C, the Father’s push made her stumble and fall. He was angrily yelling at her in the presence of Ms C’s one (1) year old daughter. At some point Ms C said to the Father “You touch my daughter and I’ll have the Rebels on your doorstep in five minutes.” At this point, the Father then grabbed Ms C around the throat and slammed her to the ground - maintaining his grip around her throat while she was on the ground for around 15-20 seconds while telling her “You threaten me with bikies this is what you get”.
[22] Exhibit M-3
The COPS entries recorded that Police were called and they noted, and photographed, red marks on Ms C’s throat.[23] The Father made admissions to Police about pushing Ms C, grabbing her around the throat and pushing her to the ground, although he said he only held her around the throat for a few seconds. The Father admitted yelling at Ms C while her daughter was standing there.
[23] Ms C was also complaining of a sore neck
When the Father was cross-examined about this COPS entry, his evidence was unreliable. He denied grabbing Ms C around the throat and denied admitting to Police that he had grabbed her by the throat and pushed her to the ground. His explanation for the red marks on Ms C’s throat was that he had “fallen on top of her while his hand was on her throat”.
In re-examination, the Father also claimed to have told Police about this“fall”. But I reject both the Father’s explanation as to the “fall” which version I find to be self-serving, glaringly improbable and conspicuously absent from his trial affidavit. I also reject his evidence that he told Police about the “fall”. I am satisfied that he did in fact tell Police what is recounted in the COPS entry.
The assault itself is highly troubling, but so too is the Father’s ongoing minimisation and denial. The fact that the Police observed red marks on Ms C’s neck means one of two things: that either the Father was choking Ms C as she described to Police or that the Father applied a fairly significant amount of force to Ms C’s neck when he pushed her to the ground as I find he admitted to Police. Absent Ms C as a witness, I proceed on the basis that he did what he admitted to. He grabbed Ms C by the throat and pushed her to the ground, holding her by the throat for a few seconds. It was in my view a display of violent force and domination.
On 1 December 2015, the Father was convicted of the assault on Ms C, fined and placed on a section 9 bond.[24] Significantly, as with the “road rage” event, the presence of children on this occasion did not act as a check to the Father’s anger and violence.[25]
[24] Exhibit M-4
[25] Ms C’s other child, aged six (6), was also in the home at the time of the assault but did not witness it
Family violence allegedly perpetrated against the Mother:
I turn now to the Mother’s allegations of family violence. In her trial affidavit the Mother deposed that the violence involved emotional abuse, physical abuse, threats, financial control and social isolation. Post-separation her affidavit evidence is that the family violence continued in that the Father essentially retained the children in his care by force, that he limited and controlled her time with them, and made threats to her – culminating in the final threat in December 2016 as a result of which she and Mr L confronted him at the home.
The Father flatly denied perpetrating any family violence towards the Mother. In his trial affidavit he deposed that the parents used to argue, that he “liked to talk about the problems we were having whereas Ms Bardsley was quite hot-headed.” He denied ever socially isolating her, monitoring her phone or controlling their finances. According to him, the Mother ran the household, including finances and that she had full access to his account.
The Father admitted to verbal abuse only - which he said went both ways. He adamantly denied ever physically assaulting the Mother on any occasion whatsoever, or ever threatening her.
In Amador & Amador [2009] FamCAFC 196, a Full Court appeal involving allegations of coercive and controlling family violence, their Honours May, Coleman & Le Poer Trench JJ observed in their joint judgment:
· Family violence frequently occurs in circumstances where there are no witnesses, other than the parties themselves and possibly their children. It is wrong to suggest that a court could never make a positive finding that violence occurred without corroborative evidence from a third party, or a document or an admission;[26]
· Victims of family violence do not have to complain to the authorities or subject themselves to medical examination to have their evidence of assault accepted. Clearly a victim who does do so may be able to provide corroborative evidence;[27]
· While ultimately the relevant test is that of “unacceptable risk” of harm to the children,[28] this does not mean that the court should shy away from making findings as to alleged family violence where that can be done – the best interests of children require that a court do so;[29]
· The more serious the allegation, the greater the degree of certainty in relation to making the finding is required.[30]
[26] Paragraph 79
[27] Paragraph 80
[28] M & M (1988) 166 CLR 69 – High Court of Australia
[29] Paragraphs 95 & 96.
[30] Paragraphs 90 – 92. The joint judgment also referred to s.140 of the Evidence Act (Cth) and to the celebrated judgment of Dixon J (as his Honour then was) in Briginshaw & Briginshaw (1938) 60 CLR 336
Against that background, my findings as to the Mother’s allegations of family violence are as follows:
Emotional abuse & name-calling:
The arrival of children into the parents’ relationship created a lot of pressure and stress in the family home. The Father freely admitted both in his affidavit and in his oral evidence that he would become frustrated at times when he got home from work to find that the house was a mess. The Father explained that he did not expect the home to be spotlessly clean but he expected it to be cleaner than it was.
The Mother alleges that the Father would say things to her such as “What the fuck have you been doing today, you lazy bitch?” and that he would on occasions call her a “whore”, “slut”, or a “fucking Bardsley”. The Mother said that the “Bardsley” reference was particularly offensive as it was a hyphenated name relating to her father with whom she had a strained relationship.
The Father admitted saying to the Mother things such as “what the fuck is going on?” - but he could not ever remember using abusive words to the Mother.
Having seen and heard the witnesses, and noting my other findings in relation to the Father’s anger management problems, and his own admission to Mr N that at times the parents’ relationship was explosive, I am satisfied that the Mother’s evidence as to his emotional abuse of her during the relationship is accurate. I am also satisfied that on occasions the children witnessed such abuse.
Physical assaults:
The Mother alleges that the Father physically assaulted her numerous times during the relationship, the assaults commencing around the time that [X] was three (3) months of age.
I will commence with the two (2) alleged assaults that potentially find independent corroboration.
According to a subpoenaed record from the Mother’s medical file at the Medical Centre,[31] the Mother attended there on 2010, some six (6) weeks post-partum, with fresh bleeding and at that time reported:
“has been physically abused by partner this am and has bruising on her L upper arm, extensor surfaces on her L lower arm, lateral aspect of her L lower leg and L lower thigh. Has swelling at the temple on the L where she hit her head as she fell out of bed. These bruises are consistent with having been assaulted today. Medication is being tolerated well. Discussed DV and has parents as a support and will go to them if it occurs again.”
[31] Exhibit M-6
This a contemporaneous statement by the Mother to a medical practitioner at a time when the parties were still in a relationship. Her observed injuries were consistent with an assault. Though this attendance was not specifically mentioned in her trial affidavit, the Mother had told Mr N about it during the Family Report interviews.[32]
[32] Family Report, paragraph 25; exhibit FR-1
I am satisfied that the Father physically assaulted the Mother on that occasion.[33]
[33] While it is true that this entry was not specifically put to the Father in cross examination, he was repeatedly challenged in general about physically assaulting the Mother – which he denied.
According to a subpoenaed record from Town B Hospital dated 8 July 2011,[34] the Mother attended there late in the evening “post alleged assault” presenting with facial pain and a small laceration above the left eye. She said that the assailant had hit her once in the face and once in the abdomen and reported that since the assault she had had fevers and elevated abdominal pain.
[34] Exhibit M-7
The Mother deposes to this event in her trial affidavit but she gives the wrong date (2010). On her evidence the Father was again upset about the state of the house and he blamed this on her spending too much time reading. He then started ripping pages out of her books[35] and when the Mother tried to stop him, he pushed her and punched her before ultimately grabbing her by the back of the head and pushing her head into the bookcase, causing her to suffer a laceration. He refused to take her to hospital and she had to walk there. The Mother said she told them she had been struck by a random third party and that she was given about five (5) stitches.
[35] NB – The Father damages or destroys the children’s toys on occasion as a form of discipline / punishment. Ripping pages out of the Mother’s books would in my view be broadly similar behaviour.
On the Father’s version, the Mother rang him from hospital to complain that the maternal grandfather had assaulted her.
Counsel for the Father points to the fact that the maternal grandfather and grandmother sat in the back of the Court throughout the trial and were not called as witnesses. The maternal grandfather has a history of at times behaving violently towards the Mother. On that basis it is submitted that the Father’s version of events gains some credibility.
Had they been called, the maternal grandparents could potentially have given evidence that the grandfather did not assault the Mother. But such evidence would not have proved that the Father did.
I do not accept the Father’s version of events. There was no particular love lost between the Father and the maternal grandparents,[36] yet the Father did not confront the maternal grandfather about this assault in any way, shape or form. His evidence that the Mother told him not to do so does not ring true. Moreover, I do not believe that the Father would have listened to the Mother even if she had made such a plea. Having regard to the Father’s history of violence and aggression I have little doubt that the Father would have taken some step to let the grandfather know that what he had done to the Mother was not going to be tolerated.
[36] The Father makes multiple complaints about the grandparents in his trial affidavit
In the end I am satisfied that the Father did in fact assault the Mother on this occasion as she alleges – although the Mother has the date of this event wrong in her affidavit.
The balance of the assaults alleged by the Mother are uncorroborated. Most of them do not have specific dates attached to them.
I accept the Mother’s evidence that the Father first assaulted (slapped) the Mother around three (3) months after [X] was born, in the context of the parties arguing about the state of the home.
I accept the Mother’s evidence that the Father choked her in 2009. When she was questioned about it in the witness box, I considered her evidence honest and compelling. This was high level, coercive, dominating violence. The fact that Ms C experienced similar violence at the Father’s hands lends further support to my finding.
I accept the Mother’s evidence that the Father physically assaulted her in 2010 following which, while the Father was out of the home, she packed as many things of hers as she could and rang her parents to collect her and the children.[37]
[37] Mother’s trial affidavit, paragraph 40
In his trial affidavit the Father concedes a verbal argument about the state of the home at the same date. He deposes that the Mother told him that she was going with the children to the grandparents’ home and that he let her go.
The Father’s version is improbable. He clearly did not want the children staying in the grandparents’ home and it is common ground that he later drove to their place demanding the children’s return.[38]
[38] Having regard to paragraphs 125 – 131 of the Father’s trial affidavit I simply do not accept that he would have willingly agreed to the Mother taking the children to the grandparents’ home
I find that the Father was angry when he came home and discovered that the Mother and children were gone, which is why he went to the grandparents’ home to try to collect the children.
I accept that the Father otherwise physically assaulted the Mother on numerous occasions throughout the relationship as she deposes.[39] Although her trial affidavit lacks detailed particularity, or specificity as to dates, I am satisfied that the Mother has been truthful about such matters.
[39] See particularly paragraphs 41 and 49 of the Mother’s trial affidavit.
I also accept the Mother’s evidence that the family violence involved the cyclical pattern referred to by Mr N. I also accept that, like many victims of family violence, she covered up her injuries.[40] She did not make reports. Like many victims of family violence, she persisted in the relationship when logic dictated otherwise. She moved to the Region 1 with the Father for his work at a time when their relationship was struggling and when, as she said in her oral evidence, she was fearful of him.
[40] Mother’s trial affidavit, paragraph 53
Disclosures by [X]
The evidence establishes that [X] had disclosed witnessing the Father assault the Mother in the school setting in 2014,[41] in the February 2017 Child Inclusive Conference, during the Family Report interviews and most recently when talking to a counsellor in February 2018.[42]
[41] Exhibit M-10
[42] Exhibit M-11
The Mother however, admitted talking to [X] about the Father assaulting her, although her oral evidence was that [X] told her she could remember him doing so and the Mother merely confirmed [X]’s recollection. She said she did not bring up the subject with the children and I accept her evidence.
While some of [X]’s disclosures may be unreliable by reason of contamination, I am satisfied that [X] has in fact witnessed family violence.
Financial control:
The Mother alleges that the Father exercised a measure of financial control over her during the relationship in that he controlled the family finances and limited her access to moneys.
The Father denies this. His evidence is that she always had access to moneys.
This aspect of the Mother’s case was not much explored in cross examination and my capacity to find the facts is somewhat constrained.
The Mother was working and earning an income for much of the relationship, albeit that the Father was the primary breadwinner. She agrees that he never stopped her from working.
I accept the Mother’s evidence that, broadly, the Father was responsible for supplying her with the money for household expenses. I accept the Father’s evidence that he paid for the groceries. In my view the Father was providing the Mother with financial support and she did have some access to funds - noting her admitted use of his cash card.
In 2012 the Father noticed that savings were significantly depleted (he says about $8,000 in 8 months); he discovered that the Mother was spending their rent money on other things; he confronted her and she responded she had spent the money on food and clothes for the children. After this he made sure the rent was direct-debited instead of the Mother being able to access the rent money as cash.
Not long after the Father set up the direct debit, the Mother was caught shoplifting at (store). The likely inference is that the Mother committed the offence because she found herself without adequate financial support, particularly given her evidence that around that period she found herself with insufficient money to buy food and clothing for the children and so she started to use the Father’s cash card.
At that time the Mother appears to have been working only limited part-time hours at a (employer omitted). On any view her income would have been limited. She was dependent upon the Father’s financial support.
The Mother gave some poignant evidence about his controlling behaviour when she explained in the witness box that the Father would not necessarily stop her spending – rather he would complain about it afterwards. The specific example she gave was that she spent $20 on coffee with friends, following which the Father told her that such expenditure added up to $1,000 per year which was too much. Her evidence reflected not only a measure of financial control but potentially an element of social isolation. The Father selected the Mother’s coffee group as a budgetary issue.
In the end I consider it likely that the Father exercised a measure of financial control over the Mother from 2012 onwards, not all of which was based on genuine budgetary considerations. There were periods when he unreasonably withheld financial support from her but I cannot put it any higher than that. Certainly from the Mother’s perspective his financial control felt very real.[43] At the same time the Mother did retain some financial autonomy throughout. The Father did not have total control over the family finances.
[43] Occurring as it did, against a backdrop of physical violence.
Social isolation:
The Mother alleges that the Father socially isolated her.
On any view he did not like her parents.
I am satisfied that the Father would have discouraged/dissuaded the Mother from maintaining a close relationship with the maternal grandparents.[44] Given the dynamics of the relationship, I am satisfied that the Mother would have felt that the Father was isolating her from them.[45]
[44] I accept the Mother’s evidence set out in paragraphs 21.3 and 21.4 of her trial affidavit
[45] That said, the Mother and her parents have had a historically difficult relationship quite unrelated to the Father or his actions.
As for other allegations of social isolation of the Mother, these were not pursued in any real way at the trial. While I consider it likely that from the Mother’s perspective she may have felt some social isolation (as evident from the Mother’s evidence as to her coffee group) on balance I am unable to make a positive finding one way or the other.
Tracking App, access to motor vehicles during the relationship (and car seats):
I am unable to make specific findings about these matters. Each party gives a conflicting version and there is a dearth of oral or other evidence going to these issues. Having regard to the Father’s other behaviour towards the Mother, there is certainly a likelihood that he behaved in the manner alleged but I cannot put it any higher than that.
Violence towards [Y]:
I am unable to accept the Mother’s allegation that the Father assaulted [Y] as she asserts. This allegation was denied by the Father, not pursued by the Mother at trial and ultimately was not a significant feature of the Mother’s case. The Father referred to it as evidence of fabrication but I do not accept that either.
Post-separation allegations of family violence:
Post-separation, the Mother moved out of the parents’ home and subsequently the Father did provide her with a motor vehicle, a fridge, washing machine and small appliances. He also assisted her to move into her own home. In submissions the Father’s counsel points to such matters as tending to show that the Father was not the controlling and violent man the Mother portrayed him to be.
While I accept that the Father provided this support, it came at the price that the Mother had to accept him as overwhelming primary carer for the children. It was a most unequal parenting arrangement.
In particular:
(a) the “agreed” arrangement was that the children returned to the Father’s home almost every night. This is inexplicable on the basis of the Mother’s work because even on the Father’s case, the Mother was not working every night.[46] Such an arrangement was also at odds with the Mother’s past significant history of caring for the children;
(b) although he had provided the Mother with a roadworthy motor vehicle, and the parties only lived ten (10) minutes apart, the “agreed” arrangement was that changeovers always occurred at the Father’s home.
[46] Father’s trial affidavit, paragraph 54 – she was working “mainly” nights
I find that the Father was controlling, limiting and marginalising the Mother’s parenting role. The Mother’s will had by this stage been largely overborne.
Alleged threat in late 2014:
The Mother gives evidence of the Father going into an angry rage on an occasion in late 2014, driving off in a car with [X] and threatening to run into a tree and kill them both. She says she rang Police but that they did not come to the home. Nothing happened and she collected [X] the next day.
The Father denies this event and there is no Police record of such a call. There was no follow-up by Police whatsoever.
I am unable to accept the Mother’s evidence as to this particular threat.
Threat in late 2016:
Upon the Mother moving in with Mr L in late 2016, she almost immediately started keeping the children overnight. The Father’s reaction was to object “as we had not agreed to the overnight time.” [47] The Father was trying to maintain control. It quickly led to a spiral in the co-parenting relationship because this time the Mother finally stood up for herself with the support of her new partner.
[47] Father’s affidavit, paragraph 76.
I accept the Mother’s evidence that the Father was contacting her incessantly and that she spoke to Police about his behaviour.[48]
[48] Mr L corroborates this evidence and the Father accepts that Police spoke to him at that time
Notwithstanding his denial, I accept the Mother’s evidence that in December 2016 the Father specifically threatened her: “If you change the arrangement, I will take the children and you will never see them again.”
She told Mr L about the threat and they both made the ill-considered decision to confront the Father as noted earlier.
To be clear, the Father’s threat was objectively pure hubris. He was in a relationship with Ms S at the time and well settled in the Region 1 area. The threat was likely made because the Father was feeling threatened and – for the first time – genuinely challenged by the Mother. He could no longer control the situation and, having failed through harassing phone calls to get the Mother to relent, he simply resorted to threats.
Conclusion as to family violence:
Though she has not made out all of her allegations, I am comfortably satisfied that the Father perpetrated coercive and controlling family violence against the Mother.
The relevant issue is whether or not the Father’s past family violence and/or his past violence towards others and his anger management issues, give rise to such a level of risk to the children as to be relevantly “unacceptable” for a primary carer.
Factors potentially ameliorating the Father’s risk:
In January 2018 the Father attended upon Baptist Care for the purposes of undertaking a domestic violence perpetrator’s course.[49]This gave him an opportunity for reflection and change.
[49] Trial affidavit, paragraph 133
I am not however satisfied that the Father properly engaged with Baptist Care. He told them that there had been one act of family violence only - against Ms C. He could not recall if he told Baptist Care about his hand being on Ms C’s throat, but in any event his evidence as to her throat injury was that it was an accident.
He said that Baptist Care advised him to undertake individual counselling. He did not. Nor did he undertake any anger management treatment despite clearly having an anger management problem over many years.
In my view, the Father’s attitude was that he did not need such assistance. He likely only attended there for court purposes. It was a wasted opportunity.[50]
Relationship with Ms S since 2015:
[50] Paragraph 27(e) of the Father’s written submissions properly conceded that the effectiveness of the Father’s counselling “was in question”.
There is no evidence that since re-partnering with Ms S, the Father has engaged in any acts of family violence towards her, or any other acts of violence towards others.
Conclusion as to risk posed by the Father:
I find that the Father’s family violence and anger management issues have been longstanding and have never been treated. He concedes a history of using violence as a conflict management strategy but in my view he remains in denial of the full extent of such problems. He lacks insight or remorse and is unwilling to accept full responsibility for his actions.
Notwithstanding that he has not engaged in acts of violence since being with Ms S, in my view there is an unacceptable risk that the Father will, in future, perpetrate further acts of family violence and/or violence towards others.
I consider that orders which leave the children in the primary care of the Father would place them at unacceptable risk of harm on a number of levels as identified by Mr N. The risks include physical harm and emotional harm in the form of fear, insecurity and poor role modelling.
s.60CC(2)(b) – risk case against the Mother & Mr L:
The Father’s risk case against Mr L primarily related to his alleged excessive physical disciplining of [X].
The Father’s allegations were that:
(a)[X] disclosed to him in June 2017 that Mr L had thrown her in anger onto her bed (“disclosure 1”);
(b)[X] disclosed to him on or about 19 September 2017 that Mr L had again thrown her in anger onto her bed, this time causing her to hit her head (“disclosure 2”);
(c)[X] disclosed to him on or about 31 October 2017 that Mr L had “hit her hard on the leg” resulting in bruising, which he photographed and which colour photographs became exhibit F-1 (“disclosure 3”).
The evidence about disclosures 1 and 2 is intertwined. It is convenient for me to deal with those two disclosures together.
Disclosures 1 & 2:
The Father deposes in his trial affidavit that [X] made disclosure 1 following a weekend visit with the Mother.[51]
[51] Paragraphs 89 – 91 of the Father’s trial affidavit
The Father deposes that he let the matter go at that time, because although he considered physical discipline unacceptable, he understood that [X]’s behaviour could at times be difficult and he was hoping Mr L’s actions were a “one-off”.
The Father deposes that disclosure 2 followed another weekend visit with the Mother. This time Mr L told the Father that she had hit her head as a result of being thrown. The Father then spoke to [Y] who agreed that he and [X] had gotten into trouble for being messy, that Mr L had sent him out of the bedroom and then he heard yelling and a big bang.[52]
[52] Paragraphs 93 – 95 of the Father’s trial affidavit
The Father, the Mother and Mr L were all cross-examined as to disclosures 1 and 2. A picture of risk did emerge but the details and the chronology were somewhat confusing.
The Father admitted that he never raised disclosure 1 with the Mother at any time.
As to disclosure 2, the Father conceded when it was pointed out to him, that he may have inadvertently caused [X] to say she was thrown onto the bed by use of the leading question:
“What happened? Was it like last time when he was angry?”
There is force in the suggestion that the Father may have, by that leading question, inadvertently caused [X] to merely repeat disclosure 1 – but this time with the extra detail that she hit her head. That extra detail prompted the Father this time to take action.
On the weight of the evidence, I consider that disclosure 2 was a reference to one and the same event the subject of disclosure 1.
In the Family Report interviews, [X] told Mr N that Mr L had thrown her on the bed by picking her up by her leg and arm, and that she hit the back of her head on the wall. She appears to be referring to one (1) event. So does [Y].[53]
[53] Family Report, paragraph 87; exhibit FR-1
In their respective affidavits, the Mother and Mr L each refer to one (1) event.
The Father’s evidence that he feared that disclosure 2 represented an escalation of Mr L’s “bed throwing” behaviour is inconsistent with his actions in making no reference to disclosure 1 either when he spoke to Police, or when he instructed his solicitor to write to the Mother’s solicitor.
In cross-examination, the Father explained that he had in fact had a number of discussions with [X] about disclosure 2 – to satisfy himself that they were two (2) different events. So he was alive to that prospect. But none of these alleged conversations with [X] were set out in his trial affidavit.
That said, both the Mother’s and Mr L’s evidence as to the “bed throwing” incident were unsatisfactory.
In cross-examination, the Mother admitted that Mr L had telephoned her at work after the event, upset and admitting he had “lost his cool” with [X]. She left work shortly after the call to go home and check on [X]. I accept that evidence, which is effectively an admission, but it is regrettable that none of that detail was in her trial affidavit or disclosed to Mr N.
Worse, through her solicitor’s correspondence of 29 September 2017, the Mother had wholly denied the “bed throwing” allegation.[54]
[54] Annexure “C” to the Mother’s trial affidavit – responding to annexures “A” and “B”
During the Family Report interviews, the Mother admitted to Mr N that Mr L “got rough with [X], he threw her onto the bed”.
Mr L’s affidavit significantly minimised the event. According to him, he “guided [[X]] into her room to have some time out”. He makes no mention of throwing her onto the bed, in fact going as far as to depose “I deny at all times that I used any force on [X] or discipline that was either unreasonable or harmful to her.”[55]
[55] See paragraphs 17 – 23 of his affidavit in particular
Yet, like the Mother, Mr L also admitted to Mr N that he had thrown [X] onto the bed.[56]
[56] Family Report, paragraph 66 [exhibit FR-1]
Having had the benefit of seeing the Mother and Mr L give evidence, my view is that each of them felt embarrassed about what Mr L did. They both wanted to put the event behind them. I do not consider that the Mother or Mr L were being deliberately dishonest. But they did downplay the event.
One “loose end” in the evidence of the Mother was that the bed throwing event, or a similar event, occurred in March 2017. The Mother’s evidence was somewhat confusing and hard to understand on this point. Her trial affidavit made no mention of any March 2017 event and I consider that the Mother was likely confusing dates. While not intending to be disrespectful, she did confuse a number of dates in her affidavit.
It is common ground that no charges were ever laid by Police against Mr L in respect of the bed throwing event.
In the end I am satisfied that on one occasion, Mr L threw [X] onto a bed - resulting in her hitting her head. He used excessive force but he did not deliberately set out to injure [X]. He was upset with himself after the event which is why he rang the Mother. It was a “one-off” aberrant event of which Mr L and the Mother are embarrassed.
Disclosure 3:
The Father deposes[57] that on or about Tuesday 31 October 2017, following a weekend visit with the Mother, [X] disclosed that she and [Y] had been play fighting in their room, that Mr L had entered the room, started yelling at them and wouldn’t listen when [X] told him it was only a game. He had allegedly sent [Y] outside, shut the door and then hit [X] “so hard on the leg” as punishment.
[57] Father’s trial affidavit, paragraphs 98 - 102
[X] showed him a bruise on her leg, which he then photographed. These photographs became exhibit F-1, and they depict a modest sized bruise, approximately the size of a fifty (50) cent piece.
The Father deposes that he then asked [Y] about the injury and [Y] corroborated that he had been sent outside the room, and he then heard [X] cry. He asked [Y] if they had told the Mother, to which he said that she “never listens…she always believes Mr L that it was us being naughty not him.”
The Mother’s trial affidavit deposes that no such event occurred. Her evidence was that she took the children to a party at at Town D on the Saturday (28/10/17) and Mr L was ill and stayed home. The Mother deposes that while they were at (the party), [X] told the Mother that she had fallen over. She showed the Mother a red mark on her leg the size of a fifty (50) cent piece. The Mother thought nothing further of it until Police contacted her on 2 November after the Father made a complaint.[58]
[58] The Father then suspended the Mother’s time for a period. See paragraphs 102 – 110 of the Mother’s trial affidavit
In the Family Report interviews, Mr L denied smacking [X]. His affidavit denied any such event, and corroborated the Mother’s account. He also asserted that [X] had shown him the red mark on her leg that weekend and had told him about falling over at the play centre.
During cross-examination, the Mother admitted that she had never put [X]’s allegation to Mr L. Her explanation was that she did not need to, as she was there with the children at all times over the weekend (except for when she was asleep). She already had a contemporaneous explanation for the injury from [X] herself.
Watching her give evidence, my strong impression was that she thought that the Father was “crying wolf” on this occasion. Still, I consider that her failure to even talk to Mr L about it was not appropriately protective of [X].
Mr L maintained his denial when he was cross-examined.
The Father admitted in his cross examination that when he took [X] to the Police to report the alleged assault, it was possible that he only asked the Police to make a “report” of the matter. The Father also agreed that [X]’s bruise was not consistent with an open hand smack (which would likely have resulted in a more widespread bruise) but more consistent with being punched. The Father opined that Mr L could perhaps have hit her with just one knuckle.
I find it inconceivable that the Father would not have asked Police to take more robust action than merely making a “report” if he genuinely thought that [X] might have been hit with a knuckle or “punched” by Mr L. Notably, the Police took no action and laid no charges.
I accept the evidence of the Mother and of Mr L. I find that [X] injured herself at (the party) at Town D. Mr L did not strike her.
That said, I am not critical of the Father for taking action about the disclosure particularly given that [X] had a visible injury.
The major risk here is in fact the Mother’s failure to even ask Mr L about whether he had hit [X] – but that failure is tempered by the fact that the Mother already had a contemporaneous explanation for the injury from [X].
Conclusion as to risks raised in disclosures 1, 2 & 3:
The “bed throwing” event was likely an assault, thus abuse as defined in s.4 of the Family Law Act. Mr N also thought so. That said, it was a “one-off” aberrant act.
On 31 October 2017, the parties entered into a consent order enjoining them from permitting any third party to physically discipline the children. That injunction has never been breached. In his oral evidence, the Father conceded that if the restraint against physical discipline of the children continued as a final order, then from his perspective any risks posed by Mr L to the children, and [X] in particular, would be removed.
The Mother’s failure to question Mr L about disclosure 3 does give rise to some concerns but the circumstances of that event are somewhat unusual.
Father’s concern about Mr L confronting him in front of the children in December 2016:
Upon arrival at the Father’s home on 8 December 2016, Mr L and the Father had an ugly argument. The children witnessed it and were upset by it.
I agree with Mr N that Mr L was in his view ‘overstepping his role’.
I note that Mr L had never before intervened in the parental dispute. His actions in approaching the Father that day were out of character and only occurred as a result of the Father’s previous threat.
Both the Mother and Mr L were remorseful about their actions. I do not consider it likely they would act this way again. I also note that the Mother has since undertaken a Parenting after Separation Course.
Other risks specifically relating to the Mother
The Father deposes in his trial affidavit[59] that the Mother can have a “fierce temperament.” He gives an example where he says she lost her temper and threw a brush which hit [Y] in the forehead and he had to have the cut glued. But the Father’s Notice of Risk filed 15 December 2016, expressed no such concerns, nor did the Father allege any abuse or family violence by the Mother whatsoever. Like the Mother’s allegation of the Father hitting [Y], this allegation was not pursued at trial and in the circumstances the allegation does not go anywhere.[60]
[59] Paragraph 61
[60] The alleged event is not referred to in the Father’s written submissions.
In March 2015, [Y] complained to a staff member at the school sick bay that he had a sore finger as a result of the Mother having bitten him when she was angry.[61] No injury was observable. As a mandatory reporter, the school contacted DoFACS but they took no action. The Mother initially denied this event but after it was suggested to her that she may not have been coping very well with him at the time she ultimately conceded that is was possible that she had bitten him. While inappropriate, if it occurred it was on any view a “one-off” and the absence of any discernible injury limits its significance. In any event the Mother has since undertaken the Building Connections Program and has better learned to manage her anger / frustration with the children.[62]
[61] Exhibit F-3
[62] See Family Report, paragraph 29; exhibit FR-1
The Mother admitted to Mr N that she attempted to overdose on twenty (20) Panadol in the latter part of 2010 because of the ongoing conflict in the parents’ relationship, but that she vomited the Panadol and did not ultimately require medical intervention. She has no other history of engaging in suicidal behaviour at any time.
As noted earlier, Mr N accepted that there were some concerns arising in relation to the Mother’s mental health. Mr N did not consider that the Mother’s parenting capacity was compromised as such. His mental health recommendations were of a prophylactic nature.
Conclusions as to risk posed by the Mother and Mr L:
I do not consider the risks posed by the Mother and Mr L to be unacceptable in the event that the Mother was to become primary carer.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS:
I will only refer to the additional considerations that are relevant.
The views of the children:
The children enjoy being in both parents’ households.
The Father acknowledged that in the Child Inclusive Conference, the children expressed concerns about how their Father would react when they tell him things.
Notwithstanding [X] has spoken to the Father about spending 50/50 time with the Mother. His response was to dissuade her from such view.[63]
[63] Family Report, paragraph 82; exhibit FR-1. The Father denied telling Ms S that such an arrangement “would not be good”; rather he says he told her that it would be “unlikely”. Yet the Father refused to mediate in this matter precisely because the Mother wanted equal time. In my view, the Father did tell [X] that equal time “would not be good”.
[X] would seem to want to spend more time with the Mother.
Nature of children’s relationships:
I am satisfied that the children have a loving relationship with both parents.
I also find that:
(a)the children have an appropriately warm relationship with their stepmother Ms S. Ms S does most of the cooking in the household and usually makes the children’s school lunches and I accept the Father’s evidence that the children both love Ms S and show her affection;
(b)the children have an appropriately warm relationship with Ms S’s son [B] who they regularly play and interact with;
(c)the children have an appropriately warm relationship with their stepfather Mr L. I am satisfied that [X]’s past expressed concerns about Mr L have now abated;
(d)the children have an appropriately warm relationship with their infant half-sibling [A]. I have no doubt that the children are delighted about having a new baby sister, particularly noting [X]’s excitement about [A]’s upcoming birth when she met with a counsellor on 12 February 2018.[64]
[64] Exhibit M-11
Parental participation in children’s lives:
I am satisfied that the Father has always been an active and devoted parent. He has been their primary carer now since August 2014. He has consistently attended to their medical, educational and day-to-day needs.
I am satisfied that the Mother was an active and devoted parent during the parent’s relationship; that post-separation her experience as a victim of the Father’s family violence made her vulnerable to the Father’s controlling and limiting behaviours; that her will was to a large extent overborne and she felt intimidated; that she was afraid to commence proceedings but nonetheless should have instituted parenting proceedings earlier. I find that since re-partnering with Mr L, the Mother has actively done all she can to fully participate in the children’s lives once again and she has taken steps to better herself as a parent by undertaking a Parenting after Separation Course and a Building Connections Course.
Parental obligations to maintain the children:
Both parents provide for the children’s needs. The Father has provided most of their financial support since separation.
Likely effect of any changes in circumstances:
The children have lived with the Father since separation. I accept they will feel some sadness in the short term in leaving his home.
The Mother’s evidence is that she will not be moving to the Region 1. On her proposal the children will therefore be living with her at Town C and changing schools.
I accept that this would involve some disruption to the children in the short term. However, the children’s transition will be assisted by the Mother’s full-time availability at home for the foreseeable future. She is also supporting [X] with some counselling and I accept her evidence that this has been of assistance to [X], that she will continue it for as long as the counsellor considers necessary, and that if necessary [Y] could see the same counsellor in the future.[65]
[65] Mother’s trial affidavit, paragraphs 129-131
The children have been attending Town E Public School. [X] is in year 4 and [Y] is in year 3. [X] has a past history of behavioural issues at school and there is something to be said for a ‘fresh start’.[66] I would add here that the Father was himself quite willing to change the children’s schools in 2015.
[66] [X]’s “negative incident reports” are annexure “J” to the Mother’s trial affidavit and reveal some violent and dishonest behaviours at school
One marked benefit to the Mother’s proposal is that the children would have the opportunity to develop their sibling relationship with [A] to the fullest extent.
Practical difficulty and expense:
There is some geographical distance between their homes as the parties are living approximately an hour apart.
Each parent’s proposed order provides that the other parent spend alternate weekend and holiday time with the children. This appropriately reflects the practical difficulties and costs of travel involved. It is however feasible for the Father to have the children to the Tuesday on alternate weekends given that the Mother has been able to do so, and given the flexibility of the Father’s work hours.
Parental capacity and attitudes:
The Mother has the capacity to properly parent the children. The Father conceded as much in his oral evidence.
The Father is well able to provide for the day to day needs of the children but his parental capacity is questionable insofar as he has a past history of perpetrating family violence and untreated anger management issues.
In the Child Inclusive Conference in February 2017, the children were anxious about what the Father’s response might be to anything they say about the family. Both children indicated that they could not freely express themselves to the Father and they worried about repercussions from him at times. The Father conceded in the witness box that he must have done something to make them feel this way.
No such concerns were expressed about the Mother and I accept the Mother’s submission that the Mother is more equipped to insulate the children from the conflict and to give the children emotional permission to enjoy a relationship with both parents.[67]
[67] Mother’s written submissions, paragraph 53
That said, the Mother’s attitude to parenting in the period post-separation is also a cause for some concern. While I am satisfied that to a significant extent her will was overborne by the Father, she nonetheless could have taken more active steps to involve herself in the children’s lives. This was the children’s right and her responsibility – even in the difficult situation she found herself in.
The court does not consider that the Father will properly foster and promote the children’s relationship with the Mother if he remains their primary carer.
Post-separation, the Father consciously limited and controlled the Mother’s time with the children, reflecting a need for control on his part rather than a focus on what was in the best interests of the children. Absent court orders, in all likelihood the Father would still be dictating parenting arrangements to the Mother.
On 21 July 2015 when the Father filled out an application to enrol the children at School 1 Public School, [68] he crossed out the Mother’s contact details. The emergency contacts were his then partner Ms C first, the Father second, and the Father’s sister Ms S as the “additional emergency contact”.[69]
[68] Exhibit M-5. NB – one of Ms C’s children attended School 1 School at the time
[69] Ms C signed the enrolment form as “stepmother”. The Mother did not sign the form.
In passing, I reject the Father’s self-serving account of how this situation came to be. I accept the Mother’s version of events as being far more likely.[70]
[70] The Father claims to have asked the Mother “if he could have care of the children full-time” in circumstances where he already did.
I am greatly troubled by the Father’s actions on this occasion – in my view he displayed contempt for the Mother’s relationship with the children. The enrolment form speaks to the Father’s sense of domination and control over the Mother.
My concerns about the Father are fortified by [X]’s Family Report interview, in which she made the unsolicited statement that the Father “doesn’t want me to like my mum or Mr L”. [X] also told Mr N that the Father denigrates Mr L, calling him “disgusting, stupid and an idiot”.[71] I am satisfied that the Father has conveyed such views to [X], who has repeated similar things to Ms S.
[71] Family Report, paragraphs 78 & 79 [exhibit FR-1]
[X] also told Mr N that the Father had said she didn’t need to listen to him. Although [X] has a propensity for making up stories and is not always a reliable historian, her statement rings true to me.
The Father was unable to put aside his ill-feelings towards the Mother for the children’s sake on Christmas Day 2017. He ignored her polite email requesting a ten (10) minute phone call with the children on that day.
I accept the submission by the Mother’s counsel that the Father’s actions on that occasion were “a needlessly mean-spirited and obstructive approach to the children’s relationship with the Mother.”[72]
[72] Mother’s written submissions, paragraph 44
The Father collected the children from school early on Friday 23 March 2018 just after [A]’s birth. According to a subpoenaed record from Town A Public School,[73] [X] expressed anxiety to her class teacher about going home with the maternal grandparents that day, saying that she and [Y] had been instructed by the Father that they were not to go and that the Father was following up the orders with his solicitor. The school checked the orders and told the Father they could not stop the grandparents from collecting the children. In the result, the Father picked the children up early.
[73] Exhibit M-8 (23/03/18)
This was “overkill” by the Father. While he cited protectiveness as the reason for doing so, I am comfortably satisfied that a large part of his motivation was his ill-will towards the Mother and the maternal family. I consider that the Father likely felt threatened by the arrival of the new baby.
The Father acknowledged in the witness box that in his communications with the Mother, he had at times been rude to her, unnecessarily combative and less than cooperative.[74] He may have benefitted from undertaking a parenting course as recommended in the Family Report.[75] Yet he chose not to. Tellingly, his evidence was that things had somewhat improved between he and the Mother because she had undertaken a parenting course. The Father seems oblivious to his own parenting deficits, one of which is his propensity to marginalise the Mother in the children’s lives.
[74] See for instance the communications set out in annexure “H” of the Mother’s trial affidavit
[75] Family Report, paragraph 102; exhibit FR-1
Ms S’s presence should arguably be a protective factor here – but she has not in any real way reined in the Father’s behaviours and attitudes. Moreover, she genuinely considers that Mr L is the cause of [X]’s behavioural problems. In those circumstances I am not satisfied that her presence in the household in any way safeguards the promotion of the Mother’s relationship with the children.
I have more confidence in the Mother’s capacity to promote the Father’s relationship.
While the Mother acknowledged having previously denigrated the Father to the children, I accept her evidence that she stopped doing so after the Child Inclusive Conference.
One difficulty is that the children well know about the high conflict between their parents and it is troubling that [X] in particular says negative things about the Father when she is with the Mother.
One example is the subpoenaed counselling note for [X] of 26 March 2018.[76] On that occasion [X] offered up a series of entirely negative statements about the Father.
[76] Exhibit F-5
In May 2018, [X] told the Mother that the Father had struck her in the ribs. After complaints of worsening pain, the Mother ultimately took [X] to Hospital for examination. According to the relevant subpoenaed hospital record,[77] [X] attended in some distress and the Mother was wanting them to provide a report. The Mother accepted this in the witness box. In fact, I consider that [X] made up this event entirely, as the Mother herself acknowledged in her email to the Father of the next day.[78]
[77] Exhibit F-2
[78] Annexure “I” to the Mother’s trial affidavit
In cross examination, the Mother agreed that [X] was ‘torn’ in the dispute. I accept her evidence that she had a low view of the Father as a person and that the children know she does not like him.
I am satisfied that Mr L holds no particular affection towards the Father; he sees him as a bully.
The Mother has undertaken a Parenting after Separation Course. She communicates respectfully with the Father. I accept the Mother’s evidence that she tries to put a positive light on the Father to the children.
Unlike the Father, the Mother has at no time treated the Father’s parenting role with contempt. Her holding over in December 2016 is the “high water mark” insofar as such matters go and that decision was an emotional and reactive one responsive to his threat.
In the end, I consider that the Mother does have the capacity to foster and promote the Father’s relationship with the children.
Family violence & relevant orders:
I have already addressed these matters at length. I note that there was an interim Apprehended Domestic Violence Order in place for around three (3) months in 2010 which protected the Mother from the Father.
Orders least likely to lead to further proceedings:
I cannot make orders which foreclose the risk of future proceedings. Making an order for the Mother to have sole parental responsibility would extinguish one potential area of conflict.
PARENTAL RESPONSIBILITY:
The Father’s history of coercive family violence engages s.61DA(2) of the Act.
The parties struggle to communicate effectively. The Father conceded that some of his correspondence with the Mother had been unnecessarily rude and combative.
Having regard to my other findings, I am not satisfied that an order for equal shared parental responsibility is in the best interests of the children. In my view, their best interests are served by making an order that the Mother have sole parental responsibility in circumstances where the children will be living with her.
Such an order minimises the risk of future conflict – something of which both children are well aware and need to be protected from.
CHILDREN’S LIVING ARRANGMENTS
The children’s best interests would be serviced by an order that they live with the Mother. Given the timing of this judgment in proximity to the end of the term three (3) school holidays, I propose the children stay with the Father until the Wednesday of the first week of the holidays so as to minimise any unnecessary disruption to them. They can then settle with the Mother in preparation for term four (4) at Town C.
SPENDING TIME WITH THE FATHER
The Mother proposed that the Father should spend alternate weekends with the children from the Friday until the Monday. In my view the children’s best interests would be served by spending an additional night with the Father so that his weekend ends on the Tuesday.
I also consider it appropriate to make special provision for Father’s Day and Mother’s Day.
Neither party sought any special provision for the children’s birthdays, the parents’ birthdays or Christmas Day. Nor did they proposes that there be any telephone communication. In the circumstances I do not propose to make any such orders although I would think that in time, given the ages of the children, they will be wanting to communicate with the other parent by telephone or electronic media on occasions and I would expect that the parents would facilitate it. I am more confident in the Mother’s capacity and willingness to do so then the Father’s, but in any event I am making no specific orders about it.
It follows from the above that I do not consider that the risks posed by the Father to the children identified earlier in these reasons are relevantly ‘unacceptable’ in so far as the children will only be spending much more limited time with the Father on my orders. His opportunity to present a violent role model to them is greatly diminished by these orders and although some risk inevitably remains it is not at the level that I would consider ‘unacceptable’.
INJUNCTION AGAINST PHYSICAL DISCIPLINE
Mr N recommended that the court restrain the use of corporal punishment on the children.
The Mother supported a continuation of the existing injunction restraining the parents from allowing third parties to physically discipline the children. The Father in his oral evidence seemed to think that the existing injunction would continue even after the making of final orders and he did not object to it continuing.
On the facts of this case, it is the court’s view that the appropriately protective order is the blanket prohibition suggested by Mr N.
INJUNCTION AGAINST THE MATERNAL GRANDPARENTS
The Father sought an order that the parents be restrained from allowing the children to spend any unsupervised time with the maternal grandparents.[79] “Supervision” has a clear meaning in this context – yet he did not nominate who he considered an appropriate supervisor.
[79] Case Outline, page 3
The Mother opposed the injunction.
The maternal grandparents live in the Town B region. The conduct alleged against them dates back to the Mother’s younger years. I reject the allegation that the maternal grandfather assaulted the Mother in 2010.
In terms of risk management, I propose to make orders restraining the use of physical discipline – which addresses a key risk potentially posed by the maternal grandparents.
I otherwise consider it unnecessary and inappropriate to impose the injunction sought by the Father, which I am not in any event satisfied has been sought for entirely child-focussed reasons. I consider that the Mother will appropriately protect the children.
CHANGEOVER LOCATION
Given that I have adopted the Mother’s proposed order for residence, I consider it appropriate to adopt her proposed changeover point.
CONCLUSION
For the reasons given I make the orders set out at the commencement of these reasons. I consider them to be in the best interests of [X] and [Y].
I certify that the preceding two hundred and ninety (290) paragraphs are a true copy of the reasons for judgment of Judge Betts
Date: 27 September 2018
Key Legal Topics
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Family Law
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