Pattinson & Denholm
[2022] FedCFamC1F 506
•8 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Pattinson & Denholm [2022] FedCFamC1F 506
File number(s): NCC 1279 of 2017 Judgment of: SMITH J Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – PARENTING – Family violence – Mental health – Substance addiction and abuse – Child suffers significant ongoing psychological trauma – Father seeks four professionally supervised contact visits and two cards a year and school reports – Child 13 and does not wish any contact with father – Child’s expressed views genuine and not coached by the mother – Issue as to extent of family violence – Child’s psychological trauma consistent even with admitted family violence – Father poses an unacceptable risk to child of further psychological harm even with supervised visits. Sole parental responsibility to mother – Child to live with mother – Child to have not time or communication with father – Father not to access school reports – s68B injunction against father consented to by father Legislation: Evidence Act 1995 (Cth) ss 79, 108C, 140.
Family Law Act 1975 (Cth) Part VII, ss 4AB, 60CA, 60CC, 60CG, 64B, 65AA, 65D, 68B.
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9.
Cases cited: A & A (1998) FLC 92-800
B & B [1993] FLC 92-357
Briginshaw v Briginshaw (1938) 60 CLR 336
G & C [2006] FamCA 994
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark in [2009] FamCAFC 92
Stott and Holgar and Anor [2017] FamCAFC
Division: Division 1 First Instance Number of paragraphs: 192 Date of hearing: 4-6 July 2022 Place: Sydney by Microsoft Teams Counsel for the Applicant: Mr Wilkinson Solicitor for the Applicant: Winder Lawyers Counsel for the Respondent: Mr Willoughby Solicitor for the Respondent: Braye Cragg Solicitors Solicitor Advocate for the Independent Children's Lawyer: Ms Blackman Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 1279 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DENHOLM
Applicant
AND: MR PATTINSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
8 July 2022
THE COURT ORDERS THAT:
1.All previous parenting orders concerning the child, X, born 2009, (“the child”) be discharged.
2.Ms Denholm born 1978 (“the mother”) have sole parental responsibility for the child.
3.The child is to live with the mother.
4.The child is spend no time and have no communication with Mr Pattinson born 1980 (“the father”).
5.The mother may provide a copy of this Order as sealed by the Court to the child’s school, any extra-curricular activity to which the child attends, and to any health or medical practitioner to whom the child is referred or may attend, including any medical doctor, psychologist, counsellor, mental health nurse, social worker or other health or social work professional.
6.Pursuant to s 68B of the Family Law Act 1975 (Cth) Mr Pattinson born 1980 (“the father”) is restrained, and an injunction shall issue, prohibiting him from doing any of the following:
(a)attempting to contact the child or mother by any means, including through a third party;
(b)approaching or coming within 100 metres of any place where the child or mother might reside from time to time;
(c)approaching or coming within 100 metres of any place where the child might attend day care or school from time to time;
(d)knowingly approaching or coming within 100 meters of the child or the mother at another location.
7.Pursuant to s68C the injunction in Order 6 above pursuant to s68B of the Family Law Act 1975, is for the personal protection of Ms Denholm born 1978 (“the mother”) AND X born 2009 (“the child”).
8.If a Police Officer believes on reasonable grounds that Mr Pattinson born 1980 (“the father”) has breached the injunction that Police Officer may arrest the father without warrant.
9.The matter be removed from the list of matters awaiting finalisation.
THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
B.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pattinson & Denholm is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
Introduction
Preliminary
These proceedings are about what parenting orders are in the best interests of X (“X”) born in 2009. X is almost 13. That decision is to be made according to the principles set out in the Family Law Act 1975 (Cth) (“the Act”).
The parties to the proceedings are the Applicant mother Ms Denholm, born in 1978 and aged 44, and the Respondent father Mr Pattinson, born in 1980 and aged 42. The matter was before me over two days on Monday 4 and Tuesday 5 July of this week for trial. Both parties were legally represented at the trial. An Independent Children’s Lawyer (“ICL”) was also appointed and appeared at the trial.
It was agreed that X should live with the mother and that the mother should have sole parental responsibility. The major issue was whether X should have no time and no communication with the father, or whether there should be four professionally supervised contact visits a year.
In view of the very narrow issues involved as the Trial developed and concluded, I consider this is an appropriate matter in which to give oral reasons for decision, rather than reserving the matter for the period of months that might be involved in providing written reasons.
Background
The parties commenced a relationship in approximately 2007 and commenced cohabitation soon thereafter. They had X in 2009 and separated in about 2013. After that separation, the parties co-parented in an informal arrangement for a number of years, with X living with the mother and spending regular time with the father.
The mother raises issues of neglect in that period due in part to the father’s financial position, noting he is on a disability pension, and also she says due to his mental health issues. It appears that, whether or not it was really in X’s best interests at the time, the parties were content to proceed on this basis until about 2016, when simmering conflict between them then increased.
On 3 May 2017, the father commenced parenting proceedings.
X and the mother identify as indigenous Australians, although the mother told the Court Child Expert, Dr B, that this is not a significant focus for her, and X’s indigeneity was not an additional consideration referred to in closing submissions.
X and her mother live in a rented two bedroom property. The mother does not have a new partner and is not currently in paid employment. The mother has a son from another relationship, whose name is Mr C. Mr C is 20 and is a full time university student. The mother, X and Mr C spend time together about once a month. X’s maternal grandmother lives nearby and spends time with X each week. X’s maternal grandfather, who lives in City T, also spends regular time with X when he visits the mother. It seems that these maternal relationships provide X with some support.
The father lives by himself in a rented two bedroom premises and does not have a new partner. The father told the Court Child Expert that there were no important relationships for X on his side of the family.
It is common ground that there was extensive family violence, as defined in the Act, between the parties, and that X was exposed to at least some of this family violence. The extent of the family violence was hotly contested, and much of the hearing time was spent on this issue, but I note that even the conceded family violence was significant.
In particular, there was an event, which was referred to throughout the hearing as the April 2019 event, which occurred for a period of it either five or seven days from the end of March until 3 April 2019.
Whilst I will go into the competing evidence about the April 2019 event in more detail later, it is clear on any version of events that during the April 2019 event the parties and X stayed, for reasons which are contentious, within the home and did not depart for a number of days. X did not attend school. It’s not contentious that the parties argued. The father admits to significant acts of family violence during this incident, including destroying at different times the mother’s iPhone, iPad and computer. However, the father denies the alleged acts of choking, sexual assault, other direct physical assaults including holding a machete to the mother’s throat. As I said, I will go into this event in more, detail but even on the father’s version of events, there was significant family violence involved.
Troublingly, it is also agreed that X, then nine, destroyed her iPad and burnt her fingers in the event. There is a dispute about whether she did this because, as the mother says, the father told her to or because, as the father says, X wanted to stop the mother using her iPad to call people to come around and bash the father.
Either way, the fact that a nine year old girl was placed in this position, where she felt that she had to or was directed to destroy her own iPad, injuring herself in the process, indicates the significantly traumatic nature of the event.
At the end of this event the father checked himself into a mental health ward. X has not seen the father since and she tells the Court Child Expert, who prepared a child inclusive conference earlier in 2020, and also her counsellors that she does not want to see the father again. I understand that is the position X has taken with the ICL and which the ICL puts as X’s view.
It is also common ground that the father has a diagnosis of a mental health disorder and that he has been unable to work, and has received the disability pension, since 2012. The father told the Court Child Expert who prepared the child inclusive memorandum, which I will come to later, at [27], that he had also been diagnosed with a second mental health disorder.
There was no medical evidence called by the father about his mental health. It is not known precisely what factors or traits relevant to diagnosing his mental health disorder were found to be present to justify this diagnosis, which it is assumed was given under the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) (version was then operative), however, as noted the specific factors which were found to be present to justify the diagnosis are not known.
The father says that he suffers anxiety and depression which lead to the diagnosis. The mother points to the fact that impulse control is often a trait of this disorder and, in particular, she relies upon the history of family violence in any event, which I will consider later with regards to this issue.
The mother says that where the father has a diagnosis of this mental health disorder, and given the events which are agreed, the absence of evidence from the father in this case as to the current state of his mental health is a matter which would give the Court great cause, for concern and adds to her case on risk.
I also note, in passing, that the father was cross-examined on a note from Dr D of 30 November 2011 in the joint tender bundle [MFI7] at page 40 (PDF page 42), which referred to “chronic mental illness – personality/narcissistic personality”. However, there is no other evidence to support a finding that the father suffers from narcissistic personality disorder and I note that the Court Child Expert, when asked about it, said that it is quite a different diagnosis.
The diagnosis does not define the person. The question for the Court is not to determine the father’s diagnosis, which is fortunate as there is not evidence upon which the Court could make such a finding. The issue for the Court is to assess the father’s past behaviours, which appear to arise from or be related to his mental health condition, and which appear to have led to the diagnosis, and to assess the likelihood that his ongoing mental health issues will cause him to act in the ways which will, or might, create risks for X.
I note that the mother and father both appear to have a history of illicit substance use. They both agreed to orders for voluntary drug testing. The mother undertook this testing. She provided a clean drug test for illicit substances with the sample collected on 4 February 2021 [Exhibit 2]. Although it did contain rather a high level of codeine, it was not submitted by anyone that this was a matter of concern for the Court.
The father says that he has been clean for a couple of years now. He was cross-examined on the clinical notes of Dr D on 3 June 2020 at page 85 (PDF Page 87) or MFI7 [Exhibit ICL2] where he gave a history of having:
…done drugs 3 times –
gram of ice, then twice MDMA
wk before his birthday done ice and cocaine – tiny amount
doing drug and alcohol counsellor-
In cross-examination the father denied using “ice” despite the contemporaneous record of the admission to his doctor, and there being no reason that the doctor would have made that up. There was also a concession by the father when he spoke to the Court Child Expert who prepared the Child Inclusive Memorandum [Exhibit 1], set out at [23] that:
The father conceded that he had previously used MDMA and ICE recreationally. He reported that he has not done this for close to 2 years and is prepared to undergo hair strand testing if required.
The father’s firm denials in oral evidence that he had ever used ice do not reflect well on his credit.
Significantly, unlike the mother who consented to orders for drug testing and then undertook the drug testing, the father did not undertake the ordered drug testing. Given the father’s history of conceded use of MDMA and ice, which I find is likely to have occurred despite his denial about ice as it recorded as having been said by him both by his GP and by the Court’s own expert.
Where someone has a long term history of drug use the mere statement by them that they are no longer using must be treated with some caution, given the nature of drug use and addiction. The fact that the father elected not to undertake testing, which would have given the Court some comfort that he is in fact abstinent or clean, is also an issue that creates doubt about whether or not he is clean. The mother relies upon the father’s history of drug use, and his lack of candour with the court, and the absence of testing as giving rise to a risk that the father is still using. This risk of ongoing drug use presents a risk to X given the father’s past behaviours of family violence which appear to be associated with substance use as well as with and his mental health issues.
Proposals and positions
The issues had narrowed considerably prior to the commencement of the Trial. The father filed an amended response on 20 June 2022 abandoning his position that X would spend substantial and significant time with him. He proposed instead that orders should be made that X should live with the mother and that the mother should have sole responsibility.
Indeed, the father went so far as to consent to an order pursuant to section 68B of the Act, which is a family violence protection order, which would restrict him from approaching within 100 metres of X’s residence or school.
While the mother moved on her initiating application, filed 23 August 2019, the orders she ultimately sought, as I understand it, were the orders that were proposed by the ICL in the ICL’s Case Outline, which was MFI6 Aide-mémoire 3, and those orders, as with the father’s, were that X should live with the mother and that the mother should have sole parental responsibility.
The ICL proposed a 68B order which is broader than that proposed by the father as it would include the mother as well as X. Significantly, the major point of difference was at order 4 of the ICL’s proposal. That orders, which the mother supported, was order that:
The child spend no time and have no communication with the father.
The outstanding issue in the father’s application was his proposal that whilst X would live with the mother and the mother would have sole parental responsibility, his proposed order 3 was that X spend time with him four times per year, supervised by E Contact Service, for no less than two hours. My understanding is that he would propose this occurs each school holidays. That order is opposed by the mother and the ICL.
I note that it was common ground that E Contact Service is an organisation that does supervision in the community, so it would not be at a supervision centre.
The father also sought, at his order 4, that he be at liberty to obtain school reports pertaining to X, with the mother to keep him informed.
The ICL and the mother both opposed that order. They submitted that X would know that the father was being informed about her and that this would not be in her best interests. I will come to the reasons why that submission was made in due course.
The father also sought, at order 6, that he be at liberty to send X one letter for each birthday and at Christmas, such letters to be delivered by post to an address nominated in writing by the mother. That order is also opposed by the mother and the ICL, on the basis that the emotional trauma X has suffered as a result of her exposure to the family violence at the father’s hands means that even this level of communication would create an unacceptable risk for X of ongoing psychological harm by being forced to have to deal with the emotional consequence of having a relationship with the father.
He also proposed, at order 7, that he engage with treating medical professionals; at 8, that the mother be restrained from having illicit drugs; and at 9, that the ICL explain the orders to X.
The ambit of the dispute on the orders is relatively narrow. The question is should X see the father four times a year, should he be able to know what is happening at her school with access to the documents, and should he be able to send her two letters a year.
The other matters raised, for reasons I will come to, are not germane.
The ICL and the mother say that the emotional trauma X has suffered as a result of her exposure to the father’s family violence, which they say is still impacting her and causing her to have a trauma response which needs treatment, means that any further exposure to the father against her stated views, to which I will consider in due course, gives rise to an unacceptable risk of psychological and emotional harm.
That applies both to having to spend time with the father, even in the context of professional supervision, and to receiving gifts from him and to knowing that he is aware of her schooling and has an involvement in her life in that way.
The father has, of course, made significant concessions about the appropriate orders, and these concession were obviously made in the context of his acknowledgement of his conduct.
I will note again that whilst the father disputes the most serious allegations, even on his version of events there seems to be no doubt that X has been exposed to significant family violence and trauma.
However, the father says that he considers that, on a proper analysis of the evidence, when one looks at the period after the events of April 2019, and considers the fact that in September 2019 X chose to send him a Father’s Day card, and then comes to the views as expressed by X to the Court Child Expert that she worries that he will try and kill her, that this shows a hardening of her views which suggests she has been speaking about the matter with the mother and been influenced by the mother.
There is no doubt, on the mother’s evidence, that X has been speaking with the mother about her concerns. The father says that, whether intentionally or not, the mother’s views have influenced X, and this means that X’s expressed views that she does not wish to see the father and fears him are not necessarily a genuine reflection of X’s own genuinely held views. I will consider that as I go through the evidence.
In case the parties are listening, and to avoid more unnecessary strain awaiting the recitation of my reasons, I think it appropriate to indicate now that for the reasons I am about to give, I have, after reviewing the evidence carefully over the last two days come, with some sadness, to the view that X’s best interests unfortunately require me to effectively adopt the orders proposed by the ICL and the mother.
I believe it is in X’s best interests that she have no time and no communication with the father and that he should not be allowed to have access to her school material.
I believe and find that she has suffered trauma, that her views are genuinely held, and that she does not wish the father to be involved in her life or to have to deal with him.
I have formed the view, for reasons I will go into, that making orders that require her to remain involved with the father pose an unacceptable risk to her of suffering ongoing and future psychological trauma.
I will now give more detail about the evidence and the process of reasoning which has caused me to reach that conclusion.
Procedural History and Hearing
These proceedings were a second iteration of proceedings. The first iteration was commenced by the father in 2017 and was finalised consent orders on 31 May 2018.
Those consent orders broadly provided that the parties have equal shared parental responsibility for X, and that X live with the mother and spend time with the father each alternate weekend, or after school Thursday until the commencement of school Monday and half of school holidays. The Orders further provided that X transition to living with the father and the mother on an equal time basis from the beginning of Term 4 of the 2018 school year.
The mother says she regrets entering into those orders, and given the history of family violence which preceded them, I accept her on that.
On 28 August 2019, in the context of the April 2019 incident, the mother filed a new Application for Final and Interim orders commencing this iteration of the proceedings.
On 15 October 2019 the matter came before a Judge of the then Federal Circuit Family Court of Australia. The previous orders from 31 May 2018 were suspended and, in effect, X was ordered to have no time or communication with the father. X has not seen or communicated with the father since April 2019, except for sending him the Father’s Day card in September 2019.
The Child Inclusive Memorandum prepared by Ms F dated 27 August 2020 was produced, an ICL was appointed, a Court Child Expert was appointed and a s 68B order was made protecting X.
The matter was set down for a three day final hearing on 4 July 2022. I note that for reasons relating to judicial availability on 3 June 2022 the matter was transferred to Division 1 and allocated to me.
At the hearing, the mother relied upon an affidavit filed on 15 June 2022 and her Case Outline [Aide Memoire 1]. The father relied upon his amended response filed 20 June 2022, his affidavit filed on 20 June 2022 and his Case Outline [Aide Memoire 2].
The ICL tendered, without objection, the family report of Dr B, a clinical psychologist, dated 26 November 2021 and relied upon a Case Outline [Aide Memoire 3]. The Child Inclusive Memorandum of Ms F dated 27 August 2020 was also admitted into evidence.
The ICL provided a joint tender bundle [MFI7] from which various documents were tendered by the ICL and the parties’, in particular the father’s criminal history, a variety of COPS records which I will be referring to, certain medical records relating to the father, and a variety of counselling records for X. I will refer to and treat as being read onto the record the relevant parts of these documents which I will identify in due course.
The mother, the father and the expert were required for cross-examination.
Father’s prior history of Violence
Before I come to the history, particularly of family violence, I will note that family violence is defined in section 4AB of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.”
That definition of family violence is, by clear statutory design, both broad and inclusive. It includes but it is not confined to conduct which would attract a criminal sanction. It goes far beyond that. It encompasses behaviours which would include deprivation of liberty, stalking, taunting, damaging property, denying financial autonomy and other such matters.
The father’s conceded behaviours involving the destruction of property on a number of occasions, and there have been convictions for a number of these matters, clearly constitute family violence as defined by the Act and are clearly the kind of behaviour that the legislature had in mind when defining family violence.
23 December 2006
I note that the father was convicted in 2006 in respect of certain events that occurred on 23 December 2006 of stalk and intimidate. The conviction does not make it clear, nor were there submissions about who the victim was. It is not clear that it was the mother. Given the uncertainty about what was involved I do not give weight to that. I do not think it is necessary to deal with that further.
Family Violence and neglect IN THIS CASE
2013 - 2016
The parties’ affidavits were extremely concise. Much of the detail of the evidence of family violence comes from the family report and from the police records. Given the nature of the orders I make, which doubtless the father will see as severe, and he may even see them as punitive, although that is not the intention, I think it will be necessary to treat as being read onto the record substantial portions of the documentary evidence in order to fully explain what is said to have happened so that my findings as to the trauma, which I accept X has suffered, can be understood.
As I have said, between 2013 and 2016, the parties did seem to manage to co-parent. The mother raised issues of neglect, and X later raised some issues of family violence with the father but those were difficult to properly explore given the way the evidence came out.
2016 – First AVO
In 2016, events occurred which led to the first of three apprehended violence orders. The material in the mother’s affidavit was extremely slim but it seems that the summary from which the parties both worked is as set out at page 33 (PDF Page 35) of MFI 7 [Part of Exhibit ICL2]:
About 1:20pm on […] May 2016, the victim was walking home to …… [Suburb G] from the IGA on …… Street [Suburb G]. When the victim crossed the road she could see the accused waiting out the front. When the accused notice the victim he stormed towards her, his face was red and clenched and he was moving quite fast, swinging his arms. The victim could instantly tell he was angry. When the accused has reached the victim he yelled “We need to speak for 5 minutes” The victim replied "No go away". The accused said "We need to speak about [X]”. The Victim repeated “No go away, leave me alone” The accused started swearing and cursing about an unrelated assault between the accused and the victims previous ex partner. The accused said “You fucking lied in your statement. You're an ice addict and a slut”. The victim kept walking down her driveway to her unit. The Victim said “You need to leave, just go away”. The accused stopped at the front of the driveway as the victim walked away, however, the accused continued to yell out abuse. The accused yelled "You're nothing but a lying slut, you deserved to get raped. You better give me [X] on Thursday or there'll be trouble. I'll never leave your life or leave you alone". The victim turned around and said "You're sick, you need to go". The accused has then ran down the driveway towards the victim and looked angry. The victim said “Go home”. The accused replied "No wonder you've got no friends you're an ice addict". The victim told the accused to go, the accused said "You've committed perjury and i've [sic] got evidence on my phone for court". The accused has then left the location. The victim went into her unit and locked the door.
The father was cross-examined on this. He pointed out that it was his birthday and he said that he had gone to see X for his birthday and it was in the context where the parties were going to a criminal Court because the father said that the mother’s ex-partner had king hit him.
The father was asked whether he had said these things to the mother, including calling her a slut, and he said no he did not, but he had said certain other things to her. He was asked what he had said and he said words to the effect of “I told her I was bugging her phone to play with her psychological fear.” When he was asked more about it, he said that he “did that to play with her mind.” He was asked whether he intended to create fear in the mother and he said yes.
When questioned further on tactic of saying to someone he is having a domestic dispute with that he was bugging her phone for the purpose of creating fear and messing with her mind, he then sought to justify it, saying he just wanted to mess with her head because she would not let him see X.
Dr B, when asked about the father’s evidence on this, described it as manipulative and intended to create fear and obtain compliance. She said it fell within the realm of controlling and coercive behaviour.
I must say that the father’s evidence on this matter was concerning to me. It showed a lack of insight into the impact of his conduct on the mother and what constitutes acceptable behaviour.
The father has also said that he felt his behaviours were not justified but also that people did not understand his reasons for it. A theme in the mother’s and ICLs case was that the father, although he says he recognises the inappropriateness of his conduct, does not really, and that really he believes he is justified, so that if he feels he has been wronged, he is justified in engaging in family violence.
Unfortunately, this passage of evidence from the father was supportive of that proposition by the mother and the ICL.
13 May 2017 – First Proceedings
The parties’ relationship seems to have deteriorated across 2016 and on 13 May 2017, the father commenced the first set of proceedings.
1 February 2018 – Car Window
On 1 February 2018, there was an incident of domestic violence, set out at pages 27 and 28 (PDF Page 29 and 30) of MFI 7 [Part of Exhibit ICL2]:
On Thursday, 1 February, 2018, the accused and victim had their matter before the Family Court. They travelled to and from the Court in the victim’s car. Both parties later told Police that they were late for court and the matter was adjourned. They also both said they argued in the car all the way back to [Suburb G]. About 3.40pm they arrived at the accused address where the argument continued. This involved both parties yelling abuse and insults at each other. This continued even as the victim went to drive off. After the accused yelled his last abuse at the victim, the victim has retaliated by called the accused a paedophile. This has angered the accused who later stated to Police he punch and smashed the window. The victim then drove home. Police arrived at 3.55pm and spoke to the accused. Straight away he admitted smashing the window. Police immediately cautioned the accused. Under caution the accused continued to admit smashing the window out of frustration from the Family Law Court proceedings and being called a paedophile. Whilst talking to the accused he was open and honest about the incident and his past history. Police then attended …… [Suburb G] and spoke to the victim. She confirm the story that the accused had told Police. This included the paedophile comment which she had no evidence to support this. Police are of the belief the comment was meant to upset the accused.
The complex nature of the parties’ then relationship is evident from the fact that they drove to and from the Family Court together where they were in a dispute about parenting orders. That is not something one commonly sees.
Whilst the father’s evidence left much to be desired, unfortunately, so did the mother’s. The mother, in cross-examination on this event, denied calling the father a paedophile and she was quite strident in that evidence. Unfortunately, that evidence does not sit comfortably with the contemporaneous police history which specifically stated that they spoke to her, that she confirmed the story, and that her confirmation included the fact that she called him a paedophile.
That is not to say that the mother was being intentionally dishonest but her evidence was, at times, on this and other issues difficult to follow. It is not clear to me that she was always able to separate out different events. I keep in mind the fact that I think the events of April 2019 in particular would have likely created significant trauma for the mother, but it does mean that I must be cautious when I come to the question of what I can and cannot find.
I note that X was asked about things she had experienced and she referred to this event in the family report at [132]:
[X] reported that there was one incident that scared her. She stated that she was walking home from school towards her dad's house and when she arrived home, she went inside to get changed. She stated that her mum had arrived, she couldn't recall why, however she overheard her parents arguing. She stated that she went outside to see what was happening. She stated that she saw her dad punch a hole in the window of the car and then reach inside to pull her mother's car keys out. She stated that he then threw the car keys down the drain so that her mum could not leave. She stated that eventually he had to pull the bars off the drain and reach his arm in to get the keys out. She stated that she doesn't know what happened after that because she was told to go back inside. She stated that she ran inside crying because she was scared and didn't know what was happening.
The fact that X appears to be the only person who mentioned the drain was put to the Court Child Expert in oral evidence, as suggesting that X had made this story up. The Court Child Expert did not accept that. I note that it was not put to the mother that this did or did not happen.
The Court Child Expert said that this may just be X, as a young child, getting the details wrong.
More significantly to my mind is that the father basically accepted this event occurred. He was convicted to two counts of stalk / intimidate with intent to cause fear and destroy property. He received a section 9 bond under the Crimes (Sentencing Procedure) Act 1999 (NSW) and also an intensive corrections order.
12 April 2018 - H Shopping Centre
Matters did not improve, and on 12 April 2018, just over two months later, there was an incident at the H Shopping Centre. Again, the parties’ evidence is relatively narrow but it is the police material that seems to be the most reliable statement of what each party said at the time has occurred [page 26 (PDF Page 28) of MFI7 [Part of Exhibit ICL 2]]:
On 12 April 2018 at about 10.45 am the victim and the accused had been shopping at Coles supermarket, [H Shopping Centre]. Here whilst doing the groceries they have been down the baby aisle which is aisle 10 within the supermarket. Here the accused has begun berating the victim In relation to what and how much she was placing into her trolley. This seemed to annoy the accused and he continued to make an issue about it. The accused language and abusive manner increased and he continued to talk down toward the victim. It was here that whilst the accused was abusing the victim as she was standing at the rear/side of the shopping trolley the accused has approached her closer and he pushed her to the upper chest. As a result this has caused the victim to fall onto the trolley which has in-turn caused skin to break on the victim underneath where her bra would sit. It has also caused her clothing to tear. Arguing has continued and at some point the victim has given the accused keys to her car and he has left to retrieve some belongings from within it. A short time later as the victim was at the checkout area the accused has returned. Here he has approached the victim pointing his finger at her and has come to be within inches of her face. The accused continued yelling at her with the victim stepping away from him as he continued to yell toward her. The accused left and the victim was left upset and in shock of what had been occurring. Supermarket staff have contacted police and police have met the victim in the car park of the shopping complex at her vehicle. Here the victim has agreed to provide police with a statement in the matter. The victim has agreed to a DVEC recording. At the completion of the interview police have attended Coles supermarket and attempted to obtain CCTV footage of the incident. Unfortunately cameras did not cover the area of the alleged assault but did capture the checkout area where the accused returned and begun yelling toward her. Police have obtained copy of that footage.
It is significant that the mother has also said, in her evidence, that there was an attempted choking. She stridently maintained that position, that there was an attempted choking, in her evidence. The difficulty is that, given that the police history of the events of what happened in the aisle where the CCTV did not cover appears to have come from the mother, and that the mother did not give a history at that time of choking.
The father raises the questions about the reliability of the mother’s recollection of this event and her allegations of choking.
Again, this inconsistency that does not necessarily mean that the mother was being intentionally untruthful. Her evidence did at times however did, unfortunately, become a disorganised and inconsistent.
Again, while there was much made of the question of the more serious allegations of choking not being mentioned at the time, one cannot understate the fact that this was a clear incident of family violence.
The father was convicted of stalking / intimidating with an intent to cause fear. He was also convicted of the common assault and a contravention of the ADVO.
It is the pattern of a lack of control which is concerning. I note in this regard that these events, which were occurring outside the home, also strike me as being particularly concerning because they show a degree of disinhibition and dysregulation by the father. Often predatory violent offenders are very careful to restrain their conduct to places where they cannot be seen, but the father’s disinhibition and lack of impulse control meant that he was willing to commit an assault, for which he eventually pleaded guilty and was convicted, in a public place, in a supermarket surrounded by other shoppers and people who worked there. It did not seem to trouble him.
Now, whilst each of the different kinds of family violence has its own difficulties, the fact that the father is so disinhibited when he loses control of himself that he is not concerned about whether someone sees him or not, does suggest to me that the lack of impulse control, which is so commonly associated with a borderline personality disorder, does appear to be something that is present in the father.
The risk that creates is that he might not be able to regulate his behaviours in front of X, even in front of a supervisor.
31 May 2018 – Consent Orders
Somewhat surprisingly one might think, given what has occurred in February and April 2018, on 31 May 2018, the parties entered the consent orders which I have spoken about previously.
They clearly had a complex relationship. The mother says that, in hindsight, she does not think this was a good idea, but that she felt, in effect, overborne to some extent.
January 2019 – Father moves back in
Now, in January 2019, the father moved back in with the mother. There was a factual contest about the circumstances in which the father moved back in. The father said the mother wanted him to move back in, she said that he got sick of not having any money and decided he would sell his things and move back in and, in effect, just put himself in that situation.
There are difficulties making factual findings about what occurred. However, I note one of the reasons the father says the events of April 2019 occurred was because the mother was in a sexual relationship with another person, which would tend to support the mother’s case that the father moved in despite her not wanting him to. Again, I’m not sure I am able to, or need to, make a finding, given my view on the uncontested facts.
3 April 2019
We then get the events of the week leading up to 3 April 2019.
The mother described the father moving in. She said he was acting quite strangely, abusively and aggressively.
At [53] to [61] of her affidavit, she says:
53. On the following Monday I was assaulted by the father in the presence of [X].
54. By this I mean he chocked me, he even held a machete to my throat along with a large kitchen knife.
55.1 yelled for help. The father tried to stop me by placing his hand over my face and mouth.
56. He pushed me against the wall and pinned me against the wall.
57. He then pushed me to the ground and hit my head on the tiled floor.
58. The father eventually released me.
59. He then went about smashing thing in the house. He even forced our daughter to smash the iPod and mobile phone with a hammer.
60. He then took money from my handbag and left the house. Later that day the police attended.
61. Unfortunately our daughter was present and witnessed what the father did.
More detail is provided in the mother’s statements about this event when she spoke to the Court Child Expert.
At [101] to [103] of the Family Report [Exhibit ICL1] it was recorded that:
101. The mother stated that for the ten weeks the father remained in her home he slept on the couch. The mother constantly pleaded with the father to move out of the home. The mother stated that the father was fixated on reconciling and did not appear to take any notice of the mother's views or opinions on the matter. The mother stated that their conflict escalated and resulted in a five-day incident of severe family violence. It commenced on the 27/03/19 and ended on the 03/04/19.
102. The mother stated that during this time the father would not allow the mother to leave the home and he violently assaulted her multiple times and in front of the child. The mother described this in her affidavit paragraphs 34 - 42.
103. The mother reported during the family assessment interview that for the following five days and nights the father smashed the house and assaulted the mother. The mother stated that the father smashed a window, he held a machete to the mother's throat, he choked and suffocated her. He also forced the subject child to smash an I-pad which resulted in the child burning her fingers. According to the mother during this time none of them slept and there was no food in the house so they also barely ate. The mother reported that on the 03/04/19, the father told the mother that the three of them were going to the supermarket to get some food. The mother stated that while outside, they argued about which shop to go to and the father grabbed the mother and dragged her, the mother was holding on to the child for fear that the father would take the child however the father was able to take hold of the child and left with her. The mother stated that neighbours saw and a passing car stopped to offer assistance. The mother stated that someone called the police.
As I understand it, what she said to the Court Child Expert was relatively consistent with what she said in the criminal prosecution of the father in respect to these matters.
In cross-examination the mother broadly maintained her version of events.
The father’s evidence was very short. He says at [30] to [32] of his affidavit:
30. I deny the incident as alleged by [Ms Denholm]. I deny that I choked or physically assaulted [Ms Denholm]. This matter was before the [J Town] Local Court on […] 2020, whereby I was found not guilty for the alleged assault on [Ms Denholm], including the alleged choking and threatening behaviour.
31. To the best of my knowledge, [X] was not present when these arguments happened.
32. I acknowledge that I entered a plea of guilty in relation to the charges of intentionally or recklessly destroying [Ms Denholm’s] iphone [sic] and laptop. I also entered a plea of guilty to intentionally or recklessly destroying the front windowpane of the property.
The father also spoke to the Court Child Expert about this event it is recorded at [110] to [112] of the Family Report:
110. The father concedes that thing [sic] got out of hand in 2019. However, he had great difficulty discussing the incident and describing his version of the events. He appeared to feel extremely uncomfortable that this was being discussed and he noted that he had hoped this would not be a focus of the interview. He repeatedly said that he has learnt from his mistakes and is moving forward. He did not want to dwell on the past.
111. However, when pushed, the father stated that the final incident was an argument that went on and on and on. He stated that he did not choke the mother, however conceded to verbal abuse and damaging property. The father stated that there is no justification for his behaviour, however he is a male in the system and cannot win. He stated that there were reasons for him to lose his temper however no one seems to think they are valid.
112. He stated that the mother kept threatening the father that she would call the police and have the father put in gaol. The father stated that he did smash the mother's I-phone and house window and he plead guilty to this. He also stated that the subject child was home and she heard the mother threaten to get people to bash the father. He then stated that the child smashed the I-pad because she was trying to stop the mother from calling people to bash the father.
It is significant to note that at the end of this event the father chose to check himself into a mental health unit. I do not seek to criticise the father for doing that, and it is always very difficult dealing with poor mental health, but the father’s perceptions of what occurred over those days may have been skewed if, as it appears, he was in the course of having a mental health event which required him to be hospitalised.
At Page 29 (PDF Page 31) of MFI 7 [Part of Exhibit 2], it is recoded in the COPS entry that:
On the 3rd April 2019 the victim and the accused have been together where they have gone to the bus stop located outside of the …… Service Station on [K Street, Suburb G]. Here the victim states that she wanted to go to [H Shopping Centre] and the accused has wanted to go to into [City L]. Things have become heated with the accused getting into the face of the victim whom started yelling toward her in a rage. The yelling continued from the accused and at some point the accused has told the victim and their daughter [X] to go as he could not handle it any more. The victim and [X] have left and crossed the road. They have got to the concrete medium strip in the middle of the road and the accused has chased the victim. They have all got to the other side and here the victim has asked a lady at the bus stop on the Northern side of the road to call police but this was unsuccessful. The victim has come to be in [M Street, Suburb G] and the accused has grabbed the victims bag from her. The victim recalls falling over. The accused has taken her purse and money out of her bag and run off. The victim returned to her premises and asked for people/anyone to call police but without success. The victim then went ……Street, that of…… (resident) who has called police for the victim. Police arrived at about 2pm and have found the victim to be upset and erratic in behaviour. After a brief conversation and attempts to find out what had occurred, Police have checked the conditions of the ADVO and have have determined a breach had occurred by way of contact. The victim has agreed to provide police with a DVEC recorded statement of the incident. The victim expressed numerous concerns regarding the accused stating that she feared for her safety and feared for her life if he was to come back. The victim made other claims about the accused during the DVEC including a Malicious damage to the front window of her premises, a choking on her by the accused and other assaults. The validity of these accusations is unclear as the victim appeared to be erratic and changing from scenario to scenario. The victim stated though that the accused had been residing with her for approximately 8 weeks with the past 6 days being the issue.
On 4 April 2019, the police received a phone call from City L Mental Health Unit and spoke with the father who declined to be interviewed but was charged.
On 9 April 2019, the police spoke with a coordinator from N Service, where the mother and child were, in relation to the alleged sexual assault and strangulation offences. The police record that the coordinator told them on 4 April 2019 [Page 31 (PDF Page 33) [Part of Exhibit ICL2]] that:
…as a result of the difficulties she was having with talking and an alleged strangulation, arrangements were made for the victim to be taken by ambulance to the [P Hospital] with concerns for her physical wellbeing.
On 15 April 2019, the police records noted that they saw [Page 32 (PDF Page 34) [Part of Exhibit ICL2]] “Medical discharge summary from [P Hospital] dated 4 April 2019.”
Unfortunately, only part of that Medical discharge summary document was available at Trial, and it was not able to be admitted before the Court.
Nevertheless, there is some evidence that the mother complained of having difficulties talking and that she saw hospital staff and that there was a medical discharge summary and, in that context, that the police charged the father.
X
I think it is also relevant now to come to what X says she saw. Some of X’s counselling notes from Q Service were tendered. The first appointment appears to be on 4 November 2019. The mother, I note, says that as that is seven months later, this is relatively contemporaneous. The father says at seven months later, it is not relatively contemporaneous and that in that time X had been influenced, intentionally or not, by the mother.
Since this goes both potentially to what occurred but more significantly perhaps to X’s perceptions of what occurred, it is appropriate that that material, lengthy though it is, starting at page 113 (PDF Page 115) of MFI7, be read onto the record:
… D was choking Mum – got upset, go to room or outside, I felt like he was an awful person. Don’t see him now. Would be scared if saw dad, worry about what would hurt mum. Don’t thing he would hurt me – he promised. Promised me - we would move & live like a happy family & he didn’t. He might break his promise and hurt me - he threatens to hurt mum. He would hurt [Mr C] – Glass broken, smashed window in car, dropped mum’s keys down the drain. Heart beating fast, brain spinning around shivering & shaking, crying – very upset, all expressions of crying. 8mths ago – Dad told me to smash my ipad & did it & burned fingers on the battery – mum ran them under cold water – went to neighbours – hospital next day – mum’s throat sore from choking & she couldn’t talk & she couldn’t breathe properly – felt upset & disappointed in Dad – hut feelings. Not able to sleep could hear sounds in my brain – bad dreams –[Dad yelling at mum] flashback like a movie reel – have panic attack -> dizzy, think dad is in front of me – feel frightened – could happen if I’m journaling – talk it over with mum. Concentration levels low in class, forget things like day/time, who friends are, forget people’s names – Teacher will call up school counsellor & she will come & get me. Panic attacks in class – bullying about dad’s attack – say that he kills people – kind hearted, good girl, get along with anyone. 16 days in [N Service] then hotel now in Temp Accom at [Suburb O] – Ab service – they helping us find perm accommodation. Feel upset & crap. Wake up with a jolt – fright! Singing, reading loud, colouring in mindfellness.
Those are very disturbing notes. They are broadly consistent with the mother’s version of events. I note that X was only nine, and she clearly had been speaking with her mother about the occasion on the mother’s oral evidence, but the father relies on this note in the context where it occurs two months after X sent him a Father’s Day card, an act he places enormous weight upon.
He says, well, you would look at where she says “Don't think he would ever hurt me” and then ask how is it she says when she speaks to the Court Child Expert in 2021 that she thinks he might kill her? However, when one reads the entirety of the document, whilst she said she did not think he would hurt her, she also said “he might break his promise and hurt me.” It is not as simple as her saying he would not hurt me in 2019 and changing his mind and saying that he will hurt me in 2022.
When one also reads that in the context where she said that the father told her to smash her iPad, and she did it and burnt her fingers, consistent with the mother’s version of events, it puts paid to the argument that X went from being his daughter who loved him in September 2019 and sent him a card to someone who thinks he will kill her in 2021 and that the only reasonable explanation for that is because the mother has influenced her.
X saw Ms F, the Court Child Expert, for the Child Inclusive Conference on 27 August 2022 and states at [35] to [38] to Exhibit 1:
35. [X] described some of her experiences of being in household with family violence. She reported that she had seen the father “strangle” the mother and hold a machete to her. She said that she would often leave the house to go outside with her local friends to escape the environment. She reported often coming back to the home and finding a “big mess”, describing household items broken and thrown around and she repeated a few times that there was “medicine and cigarettes everywhere”. She also described remembering seeing blood on the ground. She reported that her sense was that events like this would go for “hours and hours” and that she was sometimes “annoyed” and sometimes “terrified”.
36. Some of the things that [X] discussed, she reported the mother had told her. For example she said the mother had told her that when she was a baby, the father had put a syrup in his drink and she had tried to sip some.
37. [X] continually referred to her physical responses about seeing the father which were indicative of the trauma she has experienced. [X] reported seeing the father about 3-5 times since he left the home (for example driving past him) and the experience of this making her uncontrollably cry….. [X] reported that she refers to the father as “[Mr Pattinson]” because saying or hearing “dad” makes her “feel sick”.
38. [X] reported that she would not like to see the father until she was an adult.
This is a concerning history of the events which shows how traumatic X perceived it as being.
X spoke to Dr B about the event and her history to Dr B and that commences at [133] the Family Report:
133. The Report Writer notes that throughout the child's interview she had continually referred to “the violence”, however this had not been discussed in detail. At this stage of the interview the Report Writer asked [X] if she wanted to talk about what had occurred at her home. She replied that she has no problem talking about it, she stated that talking about it has helped her to feel better. She described the incident in the following way:
134. She stated that she came home from school and her dad was sitting on the lounge. He told her that he was moving back in. She stated that she was happy because she thought her parents were going to get back together and she stated that this meant "she would be able to have them both full time". She stated that he lived in the house with them for about 12 weeks, however she stated that he slept either on the lounge or on a mattress in her room. She stated that during the 12 weeks her parents argued a lot. She stated that it was often in the middle of the night or at 3.30 in the morning. She stated that she was often woken up by their arguments. She stated that at the time her mother had a new boyfriend and that is what the arguments were about, her mum wanted her dad to leave, and her dad wanted her mum all to himself.
135. She stated that there were 2-3 nights in a row where this happened. She stated that she used to wake up to the shouting and she would creep out and sit at the top of the stairs. She stated that from the top of the stairs she could see straight into the kitchen where her parents were. She stated on the 4th night it was really bad. She stated that on the fourth night she saw her dad put his hands around her mum's throat and his other hand covered her mouth and he was screaming at her. [X] stated that she was so scared that she couldn't move. She stated that she wanted to go and help her mum however she was frozen.
136. [X] stated that on the 4th and 5th night and during the day, her father tried to choke her mum many times. [X] stated that there was constant arguing and choking. She stated that she did not go to school because she was so tired from being awake all night. She stated that she was also too scared to leave her mum because she thought her dad might kill her.
137. [X] reported that on the 4th and 5th day she she [sic] was sitting on the bottom of the stairs just near the garage. She stated that she watched her dad walk into the garage and he came out with a knife. She stated that her mum was struggling to breath and he put the knife to her throat and he threatened to kill her. [X] stated that she does not understand why he did that.
138. [X] stated that she tried to find a phone so that she could call someone for help. She stated that she looked in her mum's room and in her brother's room and she could not find it anywhere. She stated that she thinks her dad had it in his back pocket.
139. [X] stated that there was one time when her mum was sitting on the lounge and she couldn't breathe and [X] thought she might die. She stated that she sat next to her mum and was trying to help her, and then she saw her dad smash her mum's phone with a hammer. She stated that her mum was crying and trying hard to take a breath, and her dad was yelling at her. She stated that she was not crying because she was in shock. She stated that she was thinking "what the heck is going on".
140. [X] reported that she can recall another time when she was in bed asleep and she woke up and her dad was standing next to her looking at her I-pad. She stated that he read some messages on it that were from her mum's boyfriend. She stated that the next day her parents kept arguing and mum kept asking him to leave and he wouldn't.
141. [X] stated that on the 5th day she woke up at 1.00am, her parents were still arguing, there was more choking, and mum was screaming at dad and telling him to leave. She stated that she sat at the top of the stairs and she saw her mum and dad flushing each other's medicine down the sink. She stated that she does not know why they were doing that.
142. [X] reported that she walked into the kitchen and she was standing next to her mum, next to the fridge. She stated that her dad put his hand on her shoulder and said "honey, go and get your I-pad" she stated that she went to her room and she brought down her I-pad. Her dad then told her go into the garage and smash it. [X] stated that she did not understand what was happening however she did it. She stated that when she did, the garage filled with smoke. She stated that she had hit the battery or something, and she was crying and could not breath [sic]. She stated that when the smoke cleared, she tried to clean up the broken glass and when she picked up the broken I-pad she touched the batteries and burnt her fingers. She stated that she was crying so much she couldn't get a breath. She stated that she went back to her bedroom and wrapped her fingers up in her baby blanket (she did not use the term baby blanket, she had a particular name that was difficult for the report writer to decipher, however she described it as a childhood toy that had some material attached).
143. [X] stated that after this, her dad left the home and took her with him. He took her to his friend's house ([Mr R]) and he wanted to leave her there. She stated that he told his friend that her mum was crazy. The father then took her to another friend's house ([Mr S]) she does not know why, however he kept saying that her mum was crazy and an alcoholic. [X] stated that they then went to a third persons [sic] house who was a neighbour and the father left her there.
144. [X] reported that she could not stay because she was so worried about her mum, she stated that she then heard her mum screaming and so she left the neighbours [sic] house and ran back to the home. She stated that when she arrived, she saw her dad outside the house and her mother inside the house. She stated that her father had smashed a hole in the window and was climbing inside. He then grabbed some things and he left again. She stated that she then ran inside to her mum.
145. [X] stated that she was trying to clean up the glass on the floor from the broken window. She stated that there were huge chunks of glass under the lounge. She stated that while she was doing this her father arrived home again and told her to stop, which she did. She stated that eventually everyone went to bed.
146. [X] reported that the next day there was no food in the house and everyone was hungry because they had not eaten properly for the 5 days that the fighting was happening. She stated that they all left to go to the shops to get food. She stated that that her parents kept arguing and her father grabbed her mother's purse and took her money and then grabbed [X's] arm and dragged her away.
147. [X] stated that she does not know what happened to her mum after that as she was no longer with her. She stated that she and her dad got in a taxi and went to her nan's house (the paternal grandmother). She stated that her fingers were still burnt and were hurting.
And later commencing at [169] of the Family Report:
169. The narrative that the child provided during her family interview was shocking to listen to and there is no doubt in the mind of the Report Writer that even if she has been inappropriately influenced in some ways by adult views, this does not discount the significance of her own experiences of family violence. Her experiences appear to be substantial and have caused her trauma, fear, and has interrupted her appropriate development.
170. The father has not accepted responsibility for what he has done, he has minimal insight into the impact his behaviour has had on the child, and the changes that he believes he has made do not appear to the Report Writer to indicate he is no longer a risk of substantial harm to the mother and child.
171. The father reported that the mother is unreasonably attempting to undermined [sic] his relationship with the child. However, the Report Writer does not agree with this description. The mother facilitated the child's time with the father consistently from the time of the parents' separation in 2012 until 2016. The mother did this despite her concerns for the child's wellbeing while in the father's care. Further, the parents agree that the mother often provided the father with assistance by providing money, clothes and food for the child.
This is what X has told Dr B. The father, in cross-examination, was taken to X’s history to the Court Child Expert and he said that he thought X was influenced by the mother.
He does not seem to be open to the possibility that X is correctly recalling the events, perhaps coloured or influenced by the fact that she was only nine and that she may have been affected by trauma.
Convictions
I note that the father was convicted of the offences of contravene AVO, stalk, intimidate, steal from a person (in terms of the money he took from the mother’s purse), and of three counts of destroy, damage property. However, significantly, after a full contested hearing before a magistrate, the father was found not guilty of common assault and intentionally choke without consent. The mother says the police did not lead all the relevant evidence.
I do not know what occurred in the trial, however, I must take into account that fact that the father was tried and that the evidence before a Court was held not to satisfy the criminal standard of proof.
In respect to the allegations the husband contests the standard I must apply is section 140 Evidence Act 1995 (Cth) (“the Evidence Act”), keeping in mind section 140(2) and the principles that articulated in Briginshaw v Briginshaw (1938) 60 CLR 336. That is a lower threshold test. However, given the mother’s difficulty in giving evidence, that the only independent witness is X, and that she was only nine, that she has suffered from trauma, I would not be satisfied that I could find to the relevant standard that the additional events the mother refers to, including strangulation and common assault, have been proved.
That does not, however, mean that there is no risk. Indeed, there is a possibility that these additional more serious matters occurred, but more significantly in this case, I rely upon the clear and obvious facts that there was an event during which the father had a mental health episode and the family was locked in that house for five days, the parties were arguing, X was watching it, the father was breaking property, and X, for whatever reason, was driven to destroy her own iPad injuring herself. That trauma alone, that exposure to family violence alone, in my view, is sufficient to support the conclusions I have come to without the need to find that there was also the additional physical violence alleged.
Father’s Day Card – September 2019
I note that the father, as I have said, places great weight upon the fact that in September 2019 X sent a Father’s Day card which she had made at school, together with some small items which look like rocks, which were a present.
As I said elsewhere, the father places significant weight on this in his case that X has been influenced to lie about the April events and the father.
However, X clearly has conflicting views about the father. On the one hand, as is absolutely clear from the family report, she loves him or loved him and when asked about the father she did not give black and white evidence. I will not go through all the material in the family report, but she talks about the good times as well as the bad and she is able to understand that on the one hand she loves him and on the other hand she fears him.
It is not uncommon for children, or adults, to be in a situation where the person they love is also the person they fear, and I do not see any inconsistency between her sending a Father’s Day card in September 2019 and saying in November 2019 that she does not think he would hurt her but that, given what she has seen, she’s worried he might.
Although she does not appear to have been the focus of the father’s anger and conduct in April 2019, she clearly also has grave fears for her mother’s safety and those are also relevant to the trauma that she feels and the fear she feels about the father.
Accidental meeting at H Shopping Centre
The parties had an accidental meeting at the H Shopping Centre supermarket in early 2020 and X’s feelings about that were recorded on 17 April 2020 when she spoke to her counsellor [Page 116 (PDF Page 118) of MFI 7 [Part of Exhibit ICL 2]]:
17.4.20 saw dad at [H Shopping Centre] – freaked out – wanted to vomit – couldn’t breathe – held onto mum so tight – he called me over – started crying – mum told him to go away – he left – everyone was looking at me – upset & embarrasses – fight/flight breathing slowly – write feelings in notebook – make a plan – if that happens again I will…
That is consistent with a child suffering real trauma, saying she wanted to vomit and could not breathe when exposed to the father.
It is an unfortunate result but, again, it seems to me perfectly consistent to being in a situation in April, which the mother, in one of her notes to a counsellor, referred to as being like a “hostage situation”. I think that is not an unreasonable way of putting it and it certainly must have seemed that way to X.
X’S VIEWS
The father says that he doesn’t think X’s views are genuine; however, in submissions, it was conceded that given she is almost 13, if the Court accepts that the views X is said to have expressed to the Court Child Expert, Dr B and previously to the Court Child Expert, Ms F, to her counsellors, and as I understand it to the ICL, if the Court accepts these are a true reflection of her genuinely held views, then the Court would need to give significant weight to those views.
If X is likely to refuse contact, she is of an age where the mother would have difficulty in compelling her to attend as might be able to be done with a younger child. That was conceded for the father to be separate to the issues of unacceptable risk and I think that is correct.
I note the extracts from X’s counselling notes I have already read. There are substantial notes set out from page 116 through to 119 (PDF Page 118 to 121) of the MFI7, which are notes which repeatedly express X’s grave concerns and fears about having to spend time with the father.
In that material are also references to X referring to the father as a paedophile. The father says a child of that age would not use those words. I am not sure if that is right. Children of 10 or 11 or 12 certainly seem to be much more familiar with this concept now than might once have been the case. She was talking about the fact that her father would shower her and dry her like a baby and used the word in that context.
The father was cross-examined about this. I must say, his answers to me struck me as being more consistent with someone who just did not realise that the towelling assistance that would be entirely appropriate for a four year old, even a five year old, was entirely inappropriate for, say, an eight year old. In that regard, it may go to parenting competence but I was not asked to address the risk of inappropriate sexual behaviour by any party and I am satisfied that it is not necessary or appropriate to do so given the conclusions I have reached.
I also note that the father says that X has clearly been involved in the court case by the mother. I think there is no doubt that that has happened. X tells people that she likes to talk about the situation and the history because it makes her feel better, but I also note at page 148 (PDF Page 150) of MFI7, on 2 June 2022, X was talking about her mum’s solicitor wanting a new affidavit about her progress, and also talking about the fact that her father had not paid any child support, which was an issue.
It is unfortunate that X has been involved in the proceedings but, weighing all the material, that doesn’t necessarily mean that what she has described reasonably consistently from November 2019 are not her genuine observations and views.
In that regard, I note that the Court Child Expert was very much alive to the issue. In her report, she noted commencing at [123]:
123. The father has expressed the view that the mother has provided [X] with a false narrative regarding the adult conflict. However, [X] appeared authentic when describing her experiences and she did not present as coached or rehearsed. Further, she described one specific event in a great deal more detail than the mother did and from what appeared to be a unique child's perspective. In addition, she described events that had occurred when the mother was not present and that the mother did not identify during the assessment interview.
124. It is not unusual or uncommon for children to overhear adult conversations and be inappropriately influenced by their parents' opinions, it appeared to the Report Writer that [X] was primarily expressing her own views based on her experiences.
Dr B is a person who has specialised knowledge relating to child development within section 79 Evidence Act and is also a person whose expertise qualifies her, in that context, to give an opinion about the credibility of X’s evidence, pursuant to section 108C of the Evidence Act. Even to the extent that they may not apply to these proceedings, the fact that she would be such a person, in my view, means that I can give considerable weight to her view that X is giving her own true views.
I also note what was said at [128] to [131] of the Family Report and it seems to me that that is not likely to be evidence of a child who has been persuaded of a particular narrative. X talks about the good times and she’s able to distinguish between past good times and bad specific events.
X told the Court Child Expert at [151] of the Family Report “I don’t want to see him; He will kill me.”
That very firm expression is where the father says she has been influenced and her view has changed between late 2019 and 2021. It may be that her view has changed or firmed but that does not mean that it is as a result of the mother persuading her.
The Court Child Expert, in cross-examination, was asked whether she was convinced that these were X’s views and she said that, X was emotionally detached when she described that view to her, in that X did not have the physical or emotional expression to support that level of fear. The Court Child Expert nevertheless felt that X had a genuine fear that the father could harm her and could kill not just her but her mother.
The risk to her mother is also relevant. Whilst the Court Child Expert was not sure how deeply convinced X was of a threat to her own life, the Court Child Expert was satisfied that X was quite traumatised and needed support.
I also note that, whilst the father posits the possibility that X has firmed her views because of what the mother thinks, it may also be that, whilst as a nine year old it was all very confusing, as a 13 year old she may look at it and, quite reasonably, understand the danger that she was in much more clearly in the April event, and that this was tantamount to a hostage situation, and that things could have gotten much worse.
It may just be that she has, as a 13 year old, realised just how dangerous this was, when she may not have fully appreciated that when she was only nine.
Expert evidence
I have considered much of the Court Child Expert Dr B’s evidence already. She considered X’s story to be entirely believable. I note her recommendations are set out commencing at [177] of the Family Report:
177. If the Court finds that the mother's allegations of family violence are accurate, and the Report Writer suggests that this is highly likely, then it is recommended that the child live with the mother, that the mother have sole parental responsibility and that the child does not have any time or communication with the father.
178. It is recommended that the child continue to access trauma informed psychotherapy.
She was cross-examined on the contest as to the extent of family violence. Dr B’s evidence was that, even on the admitted circumstances of family violence by the father, with the parties trapped in the house for five days, X burning her fingers, and X witnessing the father smash various items, that this was more than sufficient to explain X’s trauma.
She maintained her view that though X may have been influenced to some extent by the mother’s experience, that X was expressing her true views.
Factual findings
On the extent of family violence, I am not in a position to make any findings to the requisite standard in section 140 Evidence Act are required to establish the choking, the use of the machete, the physical assaults.
However, I am comfortably satisfied and find that the events which clearly occurred, with the father apparently having a mental health episode, breaking the iPad, breaking the computer, breaking the iPhone, the arguing and shouting, the circumstance where, whether it was because the father told her to, as she said, or even if it was because she felt she had to break her own iPad because she was worried it would be used to call people to beat the father, that the agreed events in April 2019 are more than sufficient to explain the terrible trauma that it appears from the notes that X is suffering.
I find that X is having panic attacks. She is having difficulty concentrating. I accept Dr B’s view that X is suffering from trauma and that she needs assistance.
The fact that she has sent her father a card in September 2019, and then said in November 2019 she did not think he would hurt her, must be taken into context of all of the evidence. In November 2019 she also said was scared he might hurt her. She says she still is. As I have said, it is equally an explanation that, at the age of 13, she looks back and realises that she never really appreciated how dangerous it was.
In those circumstances, I am satisfied and find that X has experienced real trauma as a consequence to the family violence between the parties, and, in particular, because of the conduct of the father, and, in particular, as a consequence of the events of April 2019.
I am satisfied and find that X’s views that she strongly opposes being required to see the father, whether she thinks he will try and kill her or not, is a reflection of her genuinely-held view that she does not wish to see the father, and that it is consistent with the panic attack she complained of to her counsellor when she accidentally saw the father, which is of great concern.
I am satisfied and find that having a professional supervisor present is not going to be sufficient to stop her suffering from such panic attacks. I am satisfied, on balance, that, given her age and the strength of her expression of views, there’s a real risk that she would not go to a session in any event, but also that orders requiring her to attend, even if she does not ultimately go, is on balance, likely to cause her psychological distress and to add to her trauma, and to interfere with the process of treating her trauma, and so as likely to cause her psychological harm if an order is made that she is required to attend.
I note that each party and the ICL seeks parenting orders as defined in Part VII, Division 5, and see section 64B of the Act, and the court’s powers to make those orders, see section 65D. The presumption of equal shared parental responsibility clearly does not apply. There have been convictions for family violence. There is agreement on parental responsibility, and the agreed order is clearly appropriate.
The issues are very narrow. The question is - is it in X’s best interest to spend supervised time with the father four times a year, to receive cards and presents from him, and to have him have access to her school records, which I think she is likely to find out about if it occurs.
The Court is required to make these orders having regard to X’s best interests as the paramount consideration when making parenting orders. I note section 60CA and 65AA of the Act.
The fact that these orders will be upsetting to or even traumatic for the father are not the paramount consideration.
The two primary considerations, as set out in section 60CC, are, firstly, the need to protect X “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” and, secondly, the benefit to X of having a meaningful relationship with both of her parents.
I note also, section 60CG of the Act, that the Court is to seek to avoid making orders which expose any person to an “unacceptable risk of family violence”, and the mother’s case raises the fact that she does not want to be in a circumstance where she has to continue being exposed to the father, also noting her own trauma.
I note what was said about a meaningful relationship in McCall & Clark in [2009] FamCAFC 92 at [108]-[122], citing with approval Brown J in Mazorski & Albright (2007) 37 Fam LR 518 at [26] and Bennett J in G & C [2006] FamCA 994 at [72]):
... the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The ICL and the mother say that requiring X to spend any time with the father would out put her in an unacceptable risk of psychological harm, and that the father’s proposal cannot, in any event, give rise to X having a meaningful relationship with him.
I note what was said in the leading case of M v M (1988) 166 CLR 69 particularly at [25]:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
I note that, while deciding the context of the risk of sexual abuse, the principles apply equally to other issues of risk (see A & A (1998) FLC 92-800), I note what was said by the Full Court in B & B [1993] FLC 92-357:
…In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
I also note what was said in Stott and Holgar and Anor [2017] FamCAFC 152 at [37] about turning unacceptable into acceptable risks with safeguards:
…unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’
Further I note the Full Court’s recent decision in Isles & Nelissen [2022] FedCFamC1A 97 at [7]:
M v M put beyond doubt the proposition that courts exercising jurisdiction under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) must protect children from credible risks of harm due to sexual abuse. Such risks, like all prospective events, are capable of classification in only one of three mutually exclusive categories: possibilities, probabilities, or certainties. Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances.
Based on the conceded family violence, and, in particular clear conceded events of April 2019, in relation to which the father pleaded guilty and was convicted, and taking into account the father’s history of poor mental health, and the absence of any evidence from him to show that he is not presently suffering from that, the father’s history of drug use, the absence of evidence as ordered and consented to by the father by way of testing, and noting my findings concerning X’s express views and the evidence of Dr B, I am satisfied that it goes beyond a possibility, and, in fact, is a probability, that if X is ordered to spend time with her father, even supervised, then, knowing about the order, and particularly if she attends, this will expose her to risk of psychological harm, and I consider each of these risks unacceptable.
The presence of a supervisor would ameliorate the risk of physical harm, but it will not, on the evidence of X’s current state, ameliorate the risk of psychological harm.
Similarly, given her response to even seeing the father at Hs and her grave concern about what is going on in the court proceedings, noting her trauma symptoms, I consider that the receipt of cards and birthday gifts will also possibly expose her to risk of psychological harm, and, in that context, I think that possibility alone is still one which gives rise to a risk of harm which is unacceptable. I make the same finding in respect of access to school records. I think she is likely to find out about it, and that, given her sensitivity, it will add to her trauma. That is an unacceptable risk.
The issue of whether orders should be crafted to allow X the choice to spend time with or communicate with her father, if she desired in future, was raised. I note there is always a risk that even though X has stated she does not want to deal with the father, that she may, ultimately, feel issues of abandonment, and that that might be ameliorated by allowing her that choice, but both the ICL and the mother strongly oppose this, as they submitted it placed an undesirable and unreasonable burden on X who, at 13, is already suffering from trauma.
Whilst the mother said she would support X reaching out to the father when she is older if X wanted to, I must make orders that are appropriate now, and, on balance, given X is only 13, given the nature and extent of the trauma that she seems to have suffered, the fact that it is ongoing, and her sensitivity to trauma, I accept the submission that it would not be appropriate to put X in a position where she is told it is still a matter for you.
There are a range of other considerations: those involving risks, including a history of family violence, family violence orders, and the need to protect X from harm, noting section 60CC(3)(j) and (k), are covered by the discussion of family violence discussed elsewhere.
The father’s parenting capacity is significantly impaired, as demonstrated by the events of April 2019, and it appears likely that both his mental health history and history with drug use impact these. The only person X will lose relationship with on the father’s side is the father, as mentioned before.
The father told the Court Child Expert that, with the exception of the mother’s attempts to interfere with his relationship with X, the mother is a good mother who cares well for X. I note that the mother also addressed the drug use issue. There were previously orders about a person associated with the mother not spending time with X, but no one raised that with me, and, in the circumstances, whether there was an ICL and it wasn’t raised, I will not address that.
Obviously, the other very significant issue is X’s views, as in 60CC(3)(a). As I said, Counsel for the father properly conceded that given her age maturity and the expression of her views, if I found X’s views as expressed represent her actual views, which I do, then that would be a significant factor which must also be given great weight and would, or could, alone, and even without the finding as to unacceptable risk, justify the orders sought by the ICL and the mother. That also supports my orders. I note that those views are intrinsically tied up with the question of risk, given that the risk is of psychological harm and further trauma.
I note there will be no change to X from the position she has experienced since April of 2019, which is a position she wishes to continue from the proposed orders. There are no practical difficulties with the proposed orders.
In summary, I am satisfied and find that X would be exposed to an unacceptable risk of psychological harm by the orders for time, communication and access to school materials proposed by the father, and that this would not be in X’s best interests. I find considerable weight should be given to X’s views, and this is also a basis on which the father’s proposed orders for time and communication and access to her school records should not be granted and the orders I make be made.
Decision AND ORDERS
The orders about the father seeking medical treatment are a matter for him and do not need to be made. The orders about the mother, I do not think are appropriate.
Accordingly, I am satisfied that it is in X’s best interests to make the agreed orders that the mother have sole parental responsibility and that X live with the mother.
I will make a section 68B injunction against the father for both X’s and the mother’s protection in terms of the order proposed by the independent children's lawyer, and I will make the order proposed by the independent children's lawyer that the father have no time and no communication with X.
If any party seeks to make an application in respect of costs, including the ICL, they should file an application in a case and supporting affidavit within 28 days in the usual way, otherwise each party should bear their own costs.
I will make an order also that the mother may provide a copy of this order that I make today to X’s school, or any extracurricular activity, or treating practitioner, or other person, as proposed by the independent children's lawyer.
Those are my reasons.
I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 4 August 2022
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