PAVE & HANNEGAN
[2018] FCCA 3488
•30 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAVE & HANNEGAN | [2018] FCCA 3488 |
| Catchwords: FAMILY LAW – Parenting dispute as to living arrangements of young child significant family violence perpetrated by applicant whether family violence also a relevant consideration under s.65D of the Family Law Act 1975. FAMILY LAW – Parenting dispute as to living arrangements of young child significant family violence perpetrated by applicant whether a child in utero can be subject to or involved in family violence within the meaning of the relevant statutory definition. |
| Legislation: Family Law Act 1975 (Cth), Pt.7, ss.4AB, 60B, 60CC, 60CA, 61DA, 65AA, 65D, 65DAA, 65DAC |
| Cases cited: In the Marriage of Rice v Asplund (1978) FLC 90-725 |
| Applicant: | MR PAVE |
| Respondent: | MS HANNEGAN |
| File Number: | MLC 11187 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing dates: | 12, 13, 14 February 2018, 7 & 8 March 2018, and 2, 3, 4 July 2018 |
| Date of Last Submission: | 4 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 30 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Siggins |
| Solicitors for the Applicant: | Lanham Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Hutchins |
| Solicitors for the Respondent: | Schembri & Co Lawyers |
ORDERS
All previous orders in these proceedings be discharged.
The mother have sole parental responsibility for the child [X] born 2014 (“the child”).
For the purpose of order 2 herein:
(a)before any long term decisions are made in respect of the child:
(i)the mother shall advise the Father by Our Family Wizard of her proposal relating to the child; and
(ii)if the father wishes to comment on the mother’s proposal (or if the father has any proposal he wishes to make relating to the child on this issue) he shall, within 7 days after the date of the mother’s notice, advise the mother by Our Family Wizard of his views;
(iii)upon receipt of any comment or proposal by the father, the mother shall give consideration to the father’s views;
(iv)after the mother has considered the father’s comments, she shall make a decision and advise the father by Our Family Wizard of the outcome immediately after making that decision; and
(v)if the father does not respond as provided in order 3(a)(ii) hereof, the mother shall be entitled to presume that the father does not wish to be involved and she may decide the issue.
The child live with the mother.
The father spend time with the child, supervised by a contact centre (or a private professional contact service or supervisor as agreed with the mother) on 4 occasions per annum, for a period of up to 4 hours duration, such time to occur within 14 days of Christmas Day, Easter Sunday, the child’s birthday and 1 July, AND THAT:
(a)The father request in writing, 28 days prior to Christmas Day, Easter Sunday, the child’s birthday and, 1 July, the specific date he seeks for time with the child;
(b)The mother notify the father within 7 days whether the child will be available at the time nominated by the father, and in the event the nominated time is not suitable, the mother nominate an alternative time between 9.00am and 5.00pm on a Saturday or Sunday within the relevant period.
For the purpose of changeover:
(a)The father attend the contact centre 15 minutes prior to the scheduled time and that the mother, and/or her agent, deliver the child to the contract centre at the scheduled time; and
(b)That 15 minutes prior to the conclusion of the scheduled spend time period, the mother, and/or her agent, attend at the contact centre and the father deliver the child to the contact centre at the scheduled conclusion of time.
The father meet the costs of the supervised contact in order 5.
The father be restrained by injunction from residing at, attending at or remaining at any place within the area, defined in the map annexed to the orders made 4 July 2018 (and annexed to these orders) around the mother’s residence at Property A, save as follows:
(a)If he is required to accompany his mother to a medical appointment he be permitted to attend at the said appointment in the company of his mother for that sole purpose; and
(b)To attend at his parents’ residence at Suburb M; and
(c)He be permitted to drive along (Road) if driving to or from work provided he does not alight from his vehicle.
Order 8 continue in full force and effect until such time as the mother relocates from that area AND provides notice in writing to the father that she has relocated to a place outside that area, and in the event that the mother relocates and refuses or neglects to give notice in writing the father have liberty to apply to the court to discharge the order.
The parties communicate via the communication application “Our Family Wizard”:
(a)solely in relation to providing comments to the mother in accordance with order 3; arrangements regarding the father’s time in order 5 or changeover arrangements in order 6; and/or
(b)for the father to provide details of his current residential address and advise of any change to his residence within 24 hours of such change.
The father, his servants and agents be and are hereby restrained by injunction from
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother, and
(b)discussing these proceedings,
to or in the presence or hearing of the said child and from permitting any other person so to do.
The mother, her servants and agents be and are hereby restrained by injunction from
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the father; and
(b)discussing these proceedings,
to or in the presence or hearing of the said child or any of them and from permitting any other person so to do.
The mother be authorised and permitted to travel internationally with the child.
The mother be authorised and permitted to apply for and receive an Australian passport for the said child without first obtaining the written consent of the father.
The parties be permitted to provide any of the following documents to any counsellor engaged:
(a)These reasons for judgment;
(b)The Family Reports of Mr P dated 1 April 2016 and 7 April 2017; and
(c)The Report of Dr A dated 24 March 2016.
Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Pave & Hannegan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11187 of 2014
| MR PAVE |
Applicant
And
| MS HANNEGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings concern parenting arrangements for [X] born 2014 (‘the child’). At the core of the proceedings were allegations by the respondent mother that the applicant father was the perpetrator of family violence towards her throughout their relationship, and that violence continued after the relationship ended. The father denies any propensity to commit family violence and specifically denies the allegations of family violence made by the mother. The father claims that the only violence in the relationship was that perpetrated by the mother and that he had attempted to restrain her from hurting herself or him.
The father sought orders that the child live with the mother and spend time with him every second weekend, on Wednesday afternoons, and on special days. The orders sought extended the start and finish times for these periods when [X] starts school and for half school holidays.
On the first day of trial, the father sought to rely on a Further Amended Initiating Application filed 9 February 2018 (the Friday before the commencement of the hearing). The orders were substantially the same, save that he reversed the parties’ roles so that the child would live with him and spend time with the mother. It appears that this change of position was based upon a new case theory; that the mother was unable to facilitate a relationship between him and the child which was necessarily grounded upon the proposition that the mother’s allegations of family violence were false or not well founded. Leave to rely upon this late filed amended application was refused as there was no real basis for explaining why this significant change in position had occurred so close to trial. Further, a significant volume of material was only served on the mother’s solicitors one business day before the final hearing (despite orders providing for material to be filed at least 21 days before the hearing), and the expert opinion had been obtained on the basis that the real issue was the arrangements for time with the father and not with whom the child should live.
The mother sought orders for the parties to have equal shared parental responsibility for the child save for education matters where the mother sought sole parental responsibility. After the father’s case had closed, the mother sought to amend her Response to seek orders that the father only spend time with the child at a contact centre or as supervised by a private supervisor. The mother seeks these orders based upon the father’s evidence and his lack of acknowledgement of the serious family violence which the mother said he perpetrated.
There is no question that the issues of family violence were clearly articulated well before the trial, indeed so clearly identified that they appear to have prompted the father’s late application to seek residence of the child. The unfolding evidence provided a proper foundation for orders that the father’s contact be more restricted than the mother initially offered. In the circumstances it was appropriate to allow such amendments. Such was the nature of the evidence that had the amendment not been sought the court would have had to put the parties on notice that the breadth of orders being reasonably contemplated by the court in the broad discretion under Part 7 of the Family Law Act 1975 (Cth) (‘the Act’) necessarily included orders restricting the father’s contact to limited supervised time, even if the mother had not sought such orders.
Background
The parties commenced cohabitation in 2010 and married in 2014. Final separation occurred in early July 2014. Their child was subsequently born in 2014.
After the birth, the mother advised the father that she believed that another man was the father of the child, as a result of a brief encounter during a holiday to (country omitted). Parentage testing subsequently concluded that the applicant is in fact the father of the child.
The father commenced proceedings on 10 December 2014. As is not uncommon in cases concerning such young children, there have been many interim orders due to the young age of the child, and the attempts by the parties to find parenting arrangements that may be workable in the longer term.
A great deal of the hearing time was focused upon the many specific allegations of violence.
Orders sought by the parties
The orders sought by the father, are set out in his documents. In substance he sought equal shared parental responsibility and contact arrangements for regular unsupervised time with the child.
The mother ultimately sought the orders as set out in her Amended Response filed 4 July 2018, including but not limited to that:
a)The mother have sole parental responsibility for the child;
b)The child live with the mother;
c)The father spend time with the child supervised by a private professional contract service/supervisor (to be paid for by the father);
d)the father engage in therapeutic counselling with a psychologist, and there be an updated psychologist report not before 12 months from the date of these orders.
Evidence relied upon
A large amount of material was filed in the proceedings. Some witnesses were not required for cross examination. Some matters were not ultimately in dispute. As a result of issues that arose during the trial some further material addressing specific issues was filed and relied upon.
Submissions
The father’s counsel made well prepared submissions supporting the father’s case. I have been mindful of the matters set out in s.140 of the Evidence Act 1995 (Cth) and have borne these matters in mind in making findings of fact.
The evidence in the case was detailed and voluminous. It is not possible to refer to each every fact and matter raised in these proceedings and it is not necessary to do so. I have read the parties’ affidavits and heard the evidence. I have taken all the evidence into account. If I have not referred to a particular passage of evidence, it does not follow that I have not had regard to that evidence.
In these reasons, a statement of fact is a finding of fact, unless it is clear from the context that I am reciting a party’s position.
Counsel for the father referred to the minor differences in events that were recounted, which I take into account. However, the overall impression of witnesses is important. Identical evidence is rarely given by two witnesses to a distressing event, and even a single witness’s evidence can vary slightly over time and with reflection. The greater the variations in versions, the less confidence a court can have in the evidence. However, assessment of witnesses must be undertaken on the basis not only of a textual analysis but observations of them in the witness box and in the context of the events the subject of evidence. I have borne these matters in mind.
For the reasons discussed below, I do accept the submissions that the mother also engaged in arguments and at times became intemperate. This may have been provocative for the father, however, even at its highest, does not justify the level of family violence that has occurred in this case. In the context of this case it appears to me to be a distraction to attempt to analyse each of the incidents through the framework of the law of criminal offences, rather than considering the overall conduct of the parties in accordance with the Act. It is a family law proceeding between intimate partners. It would be a mistake to think that issues of family violence should be analysed simply on the basis of determining whether criminal offences had been proved to the civil standard.
Counsel for the father did highlight the absence of evidence that the events had resulted in any psychological condition diagnosed with respect to the mother that interfered with her parenting, nor evidence that mere exposure to the father would induce a condition impeding parenting. As Dr A recounted, the mother had taken more sick days during the relationship than she had either before or after the relationship. I am of the view that in this case the mother does not suffer a mental health condition. I am also of the view that whilst she has been particularly distressed by the events, and remains quite fearful, this is not a response manifesting as a mental illness, rather it is a rational reaction to the events that have passed between the parties.
In closing submissions for the mother, counsel canvassed the specific incidents of family violence and submitted that the evidence leads to findings of:
a)‘significant violence, abuse and intimation’ perpetrated by the father towards the mother;
b)A lack of insight by the father into his behaviour;
c)A lack of support by the father’s family towards the mother; and
d)An impulsivity and incapacity on the part of the father to self-regulate.
It was submitted by counsel for the mother, that such findings would lead the court to conclude that if the father were to spend any time with the child, it should only be under the condition of professional supervision. For the reasons that follow I accept the thrust of these submissions.
The Witnesses
Not all of the witnesses were required for cross-examination. Of those who gave oral evidence, my assessments of them as witnesses are as follows.
The Father
The father gave evidence that he believed that the mother suffered from borderline personality disorder and bipolar disorder (claims he had also made to Dr A). Whilst he conceded little understanding of these diseases, he acknowledged reporting his suspicions to both Dr A and Mr P, although denied the purpose.
The mother’s counsel cross-examined the father at length about the history of violence in the relationship. The father’s position, from which he did not deviate, was that to the extent that there was any physical violence in the relationship, it was perpetrated by the mother and any physical force that he used was in an attempt to restrain her. He contended that he was the victim of family violence and accepted descriptions of himself as ‘placid’ with ‘no aggression’.
The father denied having anger management issues or controlling behaviour towards the mother. His position was that his actions were always in retaliation to the mother; for example, damaging her car because she had damaged his car windscreen. The father was asked to what he extent he had addressed problems with anger management. Whilst he did not concede he had any anger management problems, he conceded he went to a Tame your Dragon parenting course and saw the court-appointed psychologist, Mr F.
Throughout the father’s evidence he continued to repeat his feelings towards the maternal grandmother as ‘let down’. It was his position that he and the maternal grandmother were going to address the mother’s mental health issues together and, to this extent, the maternal grandmother had ‘turned her back on me’. Further, it is his position that the maternal grandmother is disputing the parenting arrangements by being obstructive at changeover and not accurately relaying child-related information to the mother. He believes the maternal grandmother wants to ‘keep the mother and [him] at odds over our son and keep her in a position of power’. This is not the impression that one forms when viewing the witnesses and the evidence as a whole.
The father was cross-examined about his disregard for authority. Examples of various traffic infringements and breaches of the consent orders were put to the father. However, as Dr A pointed out, the father:
…denied any significant history of substance misuse although he did acknowledge having two drink driving charges, which led to him losing his licence. He has also been charged with driving without a licence on a number of occasions, which led to him receiving a six month suspended sentence, a $2,500 fine and the loss of his licence for two years. This behaviour suggests a degree of impulsivity and poor judgment.
The father gave evidence that he breached consent orders, in that the child was collected from the changeover point and he then proceeded to take the child home in a motor vehicle driven by his partner (contrary to court orders). His evidence in respect to this breach was that it was a ‘technicality’ and that was how the court should view it.
A number of specific events were put to the father. Three occasions demonstrate the father’s inability to put the mother’s and the child’s needs before his own. What is significant about these three occasions is that the first (‘the smothering incident’) is the event that lead to the relationship breakdown, the second (‘unannounced attendance’) occurred shortly after the child’s birth and the third (‘changeover incident’) occurred relevantly recently. The father has continued to deny any issue with family violence.
It was apparent throughout his evidence, that the father was giving a version of events that best suited his case. Whether he genuinely believes all of his evidence or not is unclear. It is clear that he was distressed during the relationship with feelings of jealousy about the possibility of the mother having an affair. That this may not have been well founded did not reduce his concerns. I have little doubt that the loss of the relationship, and potential loss of time with the child are also distressing for him.
Overall I found the father to be remarkably calm and controlled in the witness box, almost cold in his demeanour. I did not find him an impressive witness, nor was I persuaded that he was reliable in the evidence that he gave.
Ms T
Ms T is the child’s paternal step-grandmother. She relies on an affidavit filed 27 January 2017 in support of the father’s case. She was required for cross-examination and gave evidence on 14 February 2018.
Ms T’s evidence was difficult to rationalise. She gave evidence in cross-examination that there was nothing about the parties’ relationship that made her perceive violence. She denied ever seeing the mother with a black eye, although clearly the mother had suffered facial injuries during the relationship (as was even admitted by the father, although denying the mother’s allegations of the mechanism).
Ms T gave evidence that on the date of separation, the mother arrived at her property in only a dressing gown and underclothes and was crying and distressed. Ms T said that the mother had alleged the father had kicked her off the bed, but that she doubted these claims. Whilst she conceded that she would have subsequently spoken to the father about the incident, remarkably, she was unable to recall what his response was when she asked if he kicked the mother.
When shown a photo of the mother with a black eye, and told of the claim that it was caused by the mother’s head hitting a door jam, she appeared unshaken in her claims that she did not perceive there to be any violence in the relationship.
Ms T also suggested that the mother had mental health issues and was ‘childish’ in her behaviour. In support of this view, she relied on her (and her partner’s) attendance at the mother’s property shortly after the child’s birth. She said that whist she did not speak to the mother or see the mother, she heard the mother scream ‘get off my property’. To arrive unannounced at the home of a mother only just home from hospital, as the in-laws, in circumstances where the parties had separated (with such difficulties that they had dropped off the father down the road so that he would not be there) is remarkably rude, at best. The mother’s alleged distressed reaction, in the context of this case, seems entirely predictable. Rather than indicating a problem with the mother, this incident leads me to have real reservations as to the insight of this witness.
My impression is that Ms T is entirely aligned with the father, and that her evidence is, at best, unreliable. I am not persuaded that her lack of concern about violence in the relationship between the mother and father can be anything but alignment with the father, or wilful blindness.
Mr R
Mr R is the paternal grandfather. He relied on an affidavit filed
27 January 2017 in support of the father’s case. He was required for cross-examination and gave evidence on 14 February 2018.
Throughout cross-examination, Mr R denied a number of suggestions that the father had hit or punched the mother. It was his evidence that he did not enquire with the father about the events that occurred on the date of separation. That he would not have enquired of his son as to the events, when his pregnant daughter-in-law arrived at the house distressed and wearing a dressing gown, complaining of the father’s behaviour, is simply not credible.
The paternal grandfather appeared to blindly support the father. He described the mother and the maternal grandmother as ‘accomplished liars’. I reject this claim entirely. It was telling, although not surprising in light of his views of the mother and maternal grandmother, that he could not identify one positive attribute of the mother.
As with Ms T, the paternal grandfather participated in the unannounced visit at the mother’s home after she had given birth. My observations apply equally to him in this regard.
Mr R denied the father had any problems with anger management. He empathised with the father’s actions at changeover on 25 June 2016, demonstrating a lack of insight into the seriousness of the underlying difficulties that this type of conduct demonstrated.
Mr R’s calm, if not detached, presentation in the witness box together with his unqualified support of the father in circumstances where he must have been aware that there were significant difficulties, lead me to place no reliance upon his evidence.
The Mother
The mother gave evidence commencing on 7 March 2018 and continuing for three days. The mother was cross-examined at length. She presented as a credible witness. To the extent that her evidence varied from others’ it was with respect to details, which, on my view of the evidence as a whole and the violence of the relationship, do not lead me to doubt her evidence. I generally accept her evidence.
In examination in chief she sought to rely upon a Further Amended Response arising from evidence given by the father. That response sought that the father’s time with the child occur at a children’s contact centre or as supervised by a private supervisor.
In support of the mother’s further amended response, she had made contact with Community West located in Suburb N. That centre can commence mid-week supervision immediately and weekend supervision in about five months. Supervised visits are of two hour duration over eight sessions and the cost is $15 per parent each visit. The mother proposes the father commence the mid-week visits and, at least until weekend supervision becomes available, engages a private supervisor. She proposes Aiding and Caring as a private supervisor, located within the mother’s area of residence, and available immediately at a cost of $80 per hour.
In support of the supervised arrangement, the mother proposes the maternal grandmother would drop the child off 10 minutes before the father arrives so there is no need for contact between them. The mother contended in examination in chief that the paternal grandfather and step-grandmother were unsatisfactory supervisors of the father’s time as a result of their evidence and lack of recognition of the father’s violence against the mother.
The mother gave evidence in examination in chief that throughout the relationship, the father’s pattern of violence seemed more and more planned in that he would assault her in places which did not leave an obvious mark.
In examination in chief, the mother was asked her version of events in respect of the various incidents of family violence that were put to the father. It was her evidence that there was a pattern of violence in the relationship; the parties would argue, the father would assault the mother, they would break up and get back together after a period of time. Her evidence was that this cycle continued to occur until the date of separation.
On the sixth day of trial, the mother witnessed Exhibit ‘5’ which was photographs from her computer of injuries allegedly sustained by the father. Her evidence is that the photographs demonstrated a progression of the injuries sustained from the May 2011 assault (‘the rugby league player incident’). Ms C was a witness of the injuries and is depicted in one of the photographs.
My overall impression of the mother is that she is a capable mother able to provide for her child. She is particularly fearful of the father, and that her subjective fear is neither irrational nor outside a reasonable range that one may expect given the events that have occurred. Despite this, she has demonstrated a commitment to finding some way for the child to have a relationship with the father: she simply wants safety and to be free of the father in her own life. I am not persuaded that she is attempting to remove the father from the child’s life. Even at the end of the case when Mr P suggested that if time was to be supervised on a long term basis then two sessions per year would be appropriate, the mother nonetheless offers four.
Ms D
Ms D is the child’s maternal grandmother. She gave evidence in support of the mother’ case and relies upon her affidavit sworn 1 February 2017. Ms D presented as a generally happy, rather talkative, and open person. My impression is that she is not only supportive of the mother but a doting grandmother: I have real difficulties accepting that she would conduct herself in a way that may make [X] unhappy. I accept her evidence as honest and credible.
The maternal grandmother’s evidence was to the effect that she was aware of the arguments in the parties’ relationship and the father had called her and asked her to come round following an argument. She denies that the father has called her because the mother was acting erratically or in a volatile way as was suggested to her.
She gave evidence about an occasion in June 2014 where the parties and the maternal grandmother were eating dinner. On that occasion, an argument ensued and the father stood up and grabbed the mother. The maternal grandmother’s evidence was that she thought the father was going to hit the mother.
In respect to the smothering incident (July 2014), the maternal grandmother gave evidence that the mother called her and told her the father had hit her. The mother asked the maternal grandmother to go around to the home and get the father to leave.
Following that event the maternal grandmother lived with the mother for about 15 months.
The maternal grandmother’s evidence was that she encouraged the child at changeovers and that the child was generally happy.
The maternal grandmother was a talkative witness, whose commitment to [X]’s happiness and wellbeing is obvious. I generally accept her evidence.
Ms R
Ms R is a close friend of the mother’s, she was required for cross-examination and relied upon her affidavit dated 31 January 2017.
She said that whilst she did not witness physical violence between the parties, the mother confided in her on multiple occasions that the father had mentally and physically abused her. She deposed to receiving telephone calls from the mother where the mother had just been assaulted by the father and had been told by the mother that the father denigrates her job, such as describing her as ‘just a (occupation omitted)’.
On one occasion she went around to the parties’ house following a phone call from the mother that the father had just hit her. On another occasion, Ms R noticed a black eye on the mother and the mother told her the father had hit her.
Ms R presented as a credible witness. She did not appear to want to give evidence in the matter, and was careful to recount only what she had seen and heard. Much of her evidence is of the mother recounting events to her, which shows that the allegations are certainly not a recent invention of the mother, and is consistent with the events having occurred. Had she set out to provide false evidence to aid the mother, her version could easily have been more damning of the father. I accept her evidence as honest careful and reliable.
Ms C
Ms C is a friend of the mother who gave evidence in relation to the night of the rugby league player incident.
Her evidence was that she and the mother went out to a nightclub at which point the mother was fighting with the father via text message and she and the mother later returned to the father’s property. Upon arriving home, the mother took Ms C to a made-up couch to sleep upstairs and the mother returned downstairs. Ms C’s evidence was that it was ‘awkward’ because she could hear the parties arguing downstairs. Her next recollection was the mother waking her and telling her they had to leave. Ms C proceeded to the front door and turned back to see the mother holding a laptop or a camera above her head (in a way that indicated the mother may be going to smash it) and seeing the father lunge at the mother. Ms C did not see what happened next but ‘heard a thud’. Ms C and the mother then left and stayed at Ms C’s brother’s property.
Of the mother’s injuries, Ms C said the mother ‘had a really big black eye and very sore ribs’. Her evidence was that the mother told her she sustained it by being pushed into the wall by the father and she obtained the black eye by being hit in the face.
Ms C’s evidence of the mother’s emotional state is that she appeared frightened of the father (and she was crying and screaming).
Ms C’s evidence was that following the event, she and the mother stayed with friends and the mother obtained an Intervention Order (‘IVO’) against the father. Following the expiration or termination of the IVO, Ms C’s evidence was that the mother turned up at her house with a cut lip on one occasion, and bruising on the back of her head on another occasion. Ms C cut off her relationship with the mother when the mother announced her engagement.
As with Ms R, Ms C presented as a careful witness who would have preferred not to have to give evidence. She too was careful to recount only what she had seen and heard. Her conduct in not pursuing her friendship with the mother after the mother continued with the relationship is entirely credible and demonstrates a considered balance between supporting a friend and not being drawn into the difficult and violent relationship of the parties. I accept her evidence as honest and reliable.
Mr P
By Court order made 6 November 2015, the parties and child were ordered to undertake a family report assessment by Mr P. Mr P is a Clinical Psychologist who specialises in psychological assessment and intervention.
Mr P’s report is dated 10 March 2016 and is annexure ‘P 1’ to his affidavit filed 1 April 2016. At the time of assessment for the family report, the child resided with his mother and spent supervised time with his father for two hours on a Thursday and two hours on a Sunday.
In the opening of the report, Mr P considered the ‘allegations of family violence abound, albeit that these are vigorously denied by Mr Pave, who instead, describes Ms Hannegan as erratic, violent and unstable’: see p.2, [5] of the report.
Mr P observed the child on separate occasions with both parents and, in both regards, observed the child to be ‘happy and well-adjusted’: see p.12, [29] of the report.
Mr P considered that the allegations of family violence were central to the parties’ dispute. He considered, generally, the various types of family violence and assessed the violence between the parties (at p.21, [44]):
...falls more in the category of conflict instigated violence, or common couple violence, with features of violent resistance. It is certainly not my intention to minimize the seriousness of the violent interchanges, but I note the disparity of allegations, the overlap and the concerns, but also highlight that to a large extent it appears that [X] has been insulated.
Mr P qualified this finding by noting ‘that a testing of evidence and new information in particular around the severity of the violence might alter these recommendations significantly’: see p.21, [45] of the report). Mr P’s initial recommendations, although clearly subject to findings by the court about family violence, about a contact regime that would be otherwise appropriate given the age of the child and the other circumstances in this case: see [46].
Following the orders of 15 February 2017, Mr P provided an updated family report to the Court on 7 April 2017. In his observations for the updated family report, Mr P noted ‘the very clear impression from Mr Pave was that Ms Hannegan was simply seeking to create problems’ (at p.7, [11]) and that the father ‘continues to vigorously deny the allegations of family violence other than to note his claims that the conflict between them was reciprocal’: see p.7, [12]. Mr P considered the mother’s case to be two-fold; allegations of family violence (with significantly more evidence in support thereof) and her ongoing concerns for the child’s safety whilst in the father’s care.
Mr P considered the claims of family violence and assessed (at p.11, [34] – [35]):
34. A pattern of intimate partner violence along a continuum of being coercive and controlling is the highest risk to child welfare. This is the most extreme end of family violence and is characterised by unilateral and entrenched pattern of threatening, coercive, controlling, intimidating and dominating behaviour. In the case of male perpetrators, this is often associated with a deep-rooted misogynistic attitude towards females, that seeks to evoke fear, compliance and submission. This behaviour is always emotionally, and often physically associated with violence, and is typically associated with mental health problems in the victims who are almost always women.
35. In my previous report, I suggested that the conflict between Ms Hannegan and Mr Pave seemed to fall more within the framework of common couple violence. The important distinction is that this type of violence does not stem from the dynamic of power and control, but rather involves an inability to aptly resolve conflict, and is more often associated with expressions of anger and typically results from an escalated argument.
In conclusion, Mr P affirmed his views in the family report that ‘Mr Pave should be spending time with [X], and that ultimately it should increase in the manner foreshadowed in my previous report’: see p.12, [37]. He qualified this by stating ‘It is not in my view practical for there to be unending supervision. If there are such concerns about the safety of [X], then I question the viability of contact at all.’: see p.12, [38].
Mr P was called as a witness of the Court so that both parties could cross-examine him. In his oral evidence, Mr P noted that the particulars of family violence and the mother’s trust in the father to be significant matters in the proceedings. He considered it extremely likely that the mother did not trust the father and that she is now ‘very anxious and apprehensive’. He was of the view that in these circumstances the parties and the child ‘would benefit enormously from really immutable, very sanction-driven court orders that try and provide some structure and routine and assistance for all concerned’.
The specific allegations of family violence during the relationship and the father’s change of residence (to 350 metres from that of the mother) were put to Mr P. He was asked to consider, that were his Honour to make a finding that all the instances of family violence occurred and to give his opinion. He considered the acts alleged to be at the ‘much more severe end’ of the violence spectrum. He considered the pattern to be a ‘cycle of violence’ demonstrated by ‘the escalation, the qualified apology, the reconciliatory….’ Mr P considered the father was explaining, justifying, minimalizing and rationalising his behaviour and based on that ‘there’s never any likelihood of change’.
Mr P also recognised as a significant feature of the case the father’s disregard for rules, norms, sanctions and consequences leading to the view that this behaviour had an ‘antisocial kind of quality to it’.
When considering the father choosing to move to premises so close to the mother, Mr P considered this action to be provocative and passively aggressive. He considered it was impossible to imagine how the mother would not consider the father doing this as ‘a clear message, a threat and a clear act of intimidation’. Mr P considered that based on this information, he was now less focused upon ‘issues of coercion and control’ and more concerned about the ‘threat of violence and intimidation’.
Mr P was asked whether his view may change if the court did not accept all of the allegations, but only the majority of them. Mr P’s view did not change as he considered the father’s behaviour to be at the severe end of the spectrum of violence and considered it could escalate significantly.
Mr P was asked whether the child would pick up ‘inappropriate signals’ from the paternal grandfather. To this extent he was cross-examined on the father’s ‘blind loyalty’ to his own father (the paternal grandfather of [X]). Mr P considered it would be significant if the child lived with the father but in circumstances where the child lived with the mother, he considered the likelihood of this happening to be significantly less.
Mr P was asked to consider whether the father should spend supervised time with the child (supervised by an independent supervisor) and further, what level of contact the child should have with the father (if any). Whilst stressing that he did not minimise the significance of the family violence, Mr P considered that the child would not be at as much risk of the father’s emotional dysregulation as was the mother. He considered the father would more likely ‘idolise’ and ‘indulge’ the child.
When asked to comment on the possibility of long term supervised contact, Mr P questioned its viability. Alternatively, Mr P recommended that the father have supervised time with the child on a couple of occasions per year so that the child maintains a ‘kinship connection’. He considered that there would have to be ‘clear immutable boundaries’ about the practicalities of the father’s time including pick up and drop off times.
Mr P considered that the various proposals had ‘problems’, but noted that a considerable factor was the needs and security of the mother as the child’s primary carer. Mr P considered that the emotional risk to the child resulting from him spending time with the father would not likely come directly from the father but rather from the mother’s anxiety about the child spending time with the father. He considered that the current situation undermined the mother’s capacity to properly parent the child.
Mr P’s evidence and views developed as the evidence of the extent and impact of the family violence became apparent. His evidence was given in a thoughtful and logical manner and he offered many insights. Whilst I place significant weight upon his evidence, it must be tempered by the reality that he did not have access to all of the trial evidence and findings of fact that have only be made in this judgment.
I also note that there are categories of family violence that have started to emerge in some social science literature, which can, in appropriate contexts, assist in describing the nature and impact of family violence. Whilst these categories may provide a useful prism through which to view family violence issues in some contexts, they are not categories used in the legislation, nor do they provide answers to individual disputes. For these reasons I do not propose to examine such categories, but rather make findings about the particular facts in this case and then assess the facts and circumstances through the prism of s.60CC, as required by the legislation. To do otherwise leaves open the possibility of becoming distracted by taxonomies more appropriate for policy and research considerations than determining this matter as a specific individual case.
Witnesses not required for Cross-examination
A number of witnesses who provided affidavit evidence were not required for cross-examination.
Ms G
The father relied on the evidence of Ms G provided in her affidavit filed 29 October 2015. She is a longstanding family friend of the father’s family and her husband is the father’s godfather.
Ms G gave evidence that on two occasions (9 August 2015 and 13 August 2015), changeover for the child’s time with the father did not take place. Her evidence was that the maternal grandmother would not handover the child because Ms G was the supervisor and not one or both of the parental grandparents. When she advised the father of this on the day, she says he was disappointed but was not yelling or abusive towards the maternal grandmother. At that time, the orders made 25 May 2015 provided for the father to spend time with the child at (play centre) as supervised by the maternal grandmother and either or both of the paternal grandparents.
I accept Ms G’s evidence.
Ms E
Ms E swore an affidavit on 30 July 2017 in support of the mother’s case. Ms E is a friend of the mother’s and her evidence relates to her observations of the mother during their friendship. She set out that the mother made previous consistent statements, telling her that the father had assaulted her and that she witnessed the mother with a black eye. Following 2011, Ms E lived with the mother for a period of 12 months when the mother had an intervention order. Ms E observed the mother spending time with the father during the period of the intervention order. As a result of this conduct, Ms E ended her friendship with the mother. The mother and Ms E reconnected their friendship in 2015.
I accept Ms E’s evidence.
Mr S
Mr S is a private investigator who was engaged by the mother to conduct surveillance of the father at changeover on 25 June 2016 when the father breached the orders that were in place at that time. In cross-examination, the father conceded that he had breached the orders on that day, as described.
I accept the evidence of Ms S.
Dr A
Both parties rely upon the affidavit of Dr A filed 4 April 2016. Dr A is a forensic psychiatrist. Dr A’s affidavit annexes a psychiatric report of the mother and the father.
In his report, Dr A considered the history of the parties’ relationship, the material before the Court and interviewed both parties. Dr A summarises his findings at p.16 of the report. Dr A noted the ‘considerable disagreement…about the nature of the [family] violence in the relationship’.
In respect of the father, Dr A considered (at p.17) of his report:
Mr Pave …appeared slightly dishevelled, however there was insufficient evidence on the history provided, or at interview, to diagnose an underlying mood or anxiety disorder.
…it does appear that Mr Pave has some difficulty managing conflictual situations without resorting to physical violence.
Dr A also considered that the father would benefit from a post separation parenting program and some educational experience about the developmental needs of children.
In assessing the mother, Dr A considered (at p.18):
Ms Hannegan presented as an articulate, intelligent 31 year old woman who showed no evidence of an underlying mood or anxiety disorder. She did become distressed when recalling her abusive relationship with Mr Pave and her ongoing fear of him, however there was no suggestion that she is suffering from Post-Traumatic Stress Disorder.
I accept the evidence of Dr A.
Specific Issues
This case involves a large number of factual issues the subject of specific evidence. Given the seriousness of the matters, and the cumulative effect of these incidents, it is appropriate to deal with each of them.
Bear Hug Incident - February 2011
The mother’s evidence in examination in chief was that this incident was the first time the father assaulted her. She said that they were arguing at the top of the stairs and he grabbed her in a bear hug. She thought, ‘because he had a very angry look on his face and he was in an aggressive mood’ that he was going to push her down the stairs.
The father admitted the parties argued and he bear hugged the mother. Implicit in that description is that the ‘bear hug’ was not pleasure, but a restraint. He denied any intent to throw the mother down the stairs. He agreed that the paternal grandmother, maternal grandmother and two friends were at the home when this occurred. The father denied being told by his own mother ‘Mr Pave, you don’t hit people’. I prefer the evidence of the maternal grandmother on this issue, and accept that he was told words to the effect that you don’t hit people.
The father explained his behaviour that ‘the bear hug was due to [the mother’s] behaviour’. I do not accept this explanation. I do not accept that the mother’s behaviour was so erratic that physical constraint by the father was necessary for the mother’s own protection.
It was put to the father that his response in altercations were far more extreme than the mother’s given his size and weight. The father denies this and maintained that ‘all I did was wrap my hands around [the mother]’. The bear hug was a controlling behaviour. I accept that the evidence does not show that he threatened to throw the mother down the stairs, but I also accept that the incident led to the mother holding a reasonable fear that this may occur.
Cauliflower ear incident
The mother gave evidence in examination in chief that in February or March 2011 the parties had an argument and the father struck her in the ear and it flared up. The injury subsequently became a ‘cauliflower ear’. Her evidence was she was embarrassed to leave him because the parties had just moved in together. When the mother told the father about her ear she alleges the father said ‘It’s your fault, and it’s only a cauliflower ear’.
The father denied the incident occurred. He asked counsel ‘what’s a cauliflower ear’ and, despite having played football, denied knowing what the term meant. I do not accept that the father, who has played football and continued to be involved in a football club would not have heard the common footballing term ‘cauliflower ear’.
I accept the evidence of the mother that she was struck in the ear by the father, resulting in a cauliflower ear.
Rugby league player incident
The parties agree they were both out at separate events and that an altercation started at about 1am after they had returned home.
The mother says that when she returned the father was angry, accusing her of speaking to other men that night. He checked her phone and saw a photo of her posing with a well-known rugby league player. She says that the father went into a rage and accused her of sleeping with the footballer. She says that he then hit her in the left eye and she ran from the room and crouched into a ball. She says the father continued to hit her in the head, face and ribs.
The father said that the mother’s claims were without evidence and completely ‘made up’. The father says that the mother saw a photo of him with another girl and accused him of cheating and she subsequently caused significant damage to the father’s property. He says the mother damaged his property because he had locked himself in the bedroom for 40 minutes as a result of the argument. He says that she tipped water on his laptop, took picture frames off the wall and pushed the TV over. He agrees that the mother’s friend, Ms C was in the home.
The mother denied damaging the father’s property or entering into a tirade of abuse directed at the father. In examination in chief, her evidence was that she was at a nightclub when she received a text message from the father alleging she was talking to other ‘boys’ (referring to men at the nightclub). The mother returned home with her friend Ms C (who went to sleep on a couch). The parties started arguing and then the father hit the mother in the eye, she ran downstairs and the father started hitting her in the ribs. The mother sustained a black eye from the father’s punch. It was her evidence that she and her friend then left the home for her friend’s brother’s house, and that the father did not escort her out.
The mother produced photos of her black eye, and medical records. The father’s explanation of the mother’s black eye was that when he came out of the bedroom and confronted the mother and physically removed her from the property, and that she sustained a graze on the eye from the front doorframe. Nothing about the appearance of the injury in the photo appears consistent with hitting the vertical edge of a door frame.
The evidence of Ms C is set out above. Her evidence is not consistent with the father’s claim that the argument led to him lock himself in the bedroom as Ms C could hear the parties arguing downstairs. However, Ms C did give evidence of seeing the mother holding a laptop or a camera above her head and seeing the father lunge at the mother. This is consistent with the mother’s version and the father’s claim that the mother damaged property.
I am satisfied that the mother and father had an argument that night as a result of the father’s worry that the mother had had inappropriate relations with a footballer she had met that evening. It seems it was a quite irrational concern given that the mother was out with her girlfriends (one of who returned home with her), and that it is common for people to want to take photos of themselves with football celebrities (particularly in families that follow and participate in football). I do not accept that the father locked himself in the bedroom. I am satisfied that the argument became very heated and that the mother did damage some property. I am also satisfied that the father punched the mother causing a black eye and bruised ribs.
The assault on the mother was not only completely unacceptable behaviour, but greatly aggravated by the mother being left in the very embarrassing position of having to disclose this to her employer and take three weeks off work as she could not work as a (occupation omitted) with a black eye. The mother is fortunate that her employer was appropriately supportive of her, which indirectly tells in favour of her being viewed as a valuable staff member in her position.
As a result of this incident she issued an application for an IVO against the father which was subsequently withdrawn. She said she withdrew it because she wanted the father to change. The withdrawal of the IVO appears based upon a hope that conflict would reduce, not that the claims in the application were untrue. This is not an uncommon pattern in violent relationships.
(country omitted) incident
In 2012 the parties went to (country omitted) for a holiday. It was the mother’s evidence that they were in (country omitted) with her friend. She says her friend was talking to ‘boys’ and she offered to take a photo of them; the father got aggressive because of this, accused her of looking at another man and that he then then went and punched the man. She said that the father remarked that ‘they were making smart aleck comments’.
The father denies the incident occurred at all. I accept the mother’s evidence on this issue.
December 2012 Black Eye
The mother says that in December 2012 she was living in Suburb O with two other women. She said that one of her housemates heard the altercation but did not come out of her room. She said the father had come to visit, the parties argued and he hit her in the eye and side of the face bruising her check. The mother produced a photo of the injuries she received.
The father denies the event and then said he could not recall the event. The father was shown the photo and asked how the mother may have sustained the injuries. His responded was he was ‘unsure’ and that ‘altercations happened. I restrained her. She has got bruises before from it’.
I accept that the photo was taken at the time and that it shows the injuries. I do not find the fact that the housemate did not come out of her room tells against the mother’s account: it is equally consistent with the mother’s account that her housemate would not feel sufficiently safe to attempt to intervene. I accept the mother’s account.
Bedroom argument
On 1 June 2013 the mother says the parties argued in the bedroom and she eventually became fearful and ran into the bathroom. She says that the father followed her in and hit her in the head and body whilst she crouched beside the wash basin. Her evidence is that she sustained injuries to the back of her hands which were protecting her head.
The father denied the event occurred. He conceded that the parties had altercations and that ‘a fair few’ (not ‘most’) of the altercations become physical. He said that these ongoing difficulties led to him calling the maternal grandmother before the fights escalated.
I accept the mother’s evidence with respect to this event. I also accept that the father did start telephoning the maternal grandmother. On the evidence as a whole, this was part of a set of behaviours whereby the father was re-framing his escalation of arguments with the mother by committing family violence against the mother, as the mother suffering a mental illness: a re-framing with which his family had already been easily enlisted.
Couch incident
The parties argued on 12 October 2013 as the father wanted the mother to attend an engagement party with him and she refused. The father punched the mother in the right eye. Subsequently, the maternal grandmother arrived and the father told her the mother had hit her eye on the side of the couch.
The father conceded that the event happened but denied that he punched the mother in the eye. His evidence was; he called the maternal grandmother ‘to come and help me because things are escalating and I – I did restrain her to the couch.’ It was his evidence that whilst restraining her ‘she hit her head on the couch’. He said that he subsequently apologised to the mother.
I am not at all persuaded that the mother’s injury was caused by the father attempting to restrain her on the couch, but even if it did, she was clearly not consenting to any physical restraint by him, which leaves even his admitted actions as a violent act on the mother.
The father was asked what would happen if he did not intervene. His evidence was that the situation got ‘really aggressive verbally’ and that it ‘made things worse’ and that this was ‘the common occurrence. This part of the father’s evidence I do accept – that the arguments between the parties would be extremely heated and involving much shouting and screaming. However, on the evidence as a whole, it appears that the father was not attempting to calm a difficult situation, but resorting to violence to exert his dominance over the wife, resulting in her suffering numerous injuries during the relationship.
Bed incident
On one night in December 2013, the mother alleges the parties were in bed when at approximately 2am the father received a telephone call from a friend. The mother overhead the call (as she was in bed with the father). The call she overheard was from a work colleague who explained he would not be at work because he had been locked up and was asking for the father’s help. The father then told the mother that she was wrong and that it was a call from a work colleague with sick children calling to say he couldn’t go to work. An argument ensued as a result of the father telling the mother that she shouldn’t be questioning him. The mother says that the father kicked her and she fell out of bed. She ran into the bathroom and crouched between the sink and the cupboard with her hands behind her head whilst he punched her in the back of the head. The father followed her into the bathroom and kicked her in the ribs and head multiple times. She sustained bruises on the back of her head, a lump on the back of her head and a persistent headache for a few days.
The father said he did receive a call in the night, but denied he told the mother she shouldn’t be questioning him and further denied any physical altercation. He said that the altercation was ‘just more argument and verbal abuse’. The mother was asked why, at 3am, she said to the father that she ‘could hear the conversation’. It appears to me to be a natural reaction when someone tells an obvious lie, to tell them that one had heard the actual conversation.
I prefer the mother’s evidence on this issue
Football club incident
It was put to the father that during the day on the 31 May 2014, he had run into the mother’s ex-boyfriend at the football oval. The mother was not present at the football club that day. At the time she was five months pregnant. The father went to watch his friend play football.
That evening the parties were in the car on the way to the mother’s friend’s birthday celebrations. She recalls that the father was in a bad mood. She asked him why he spoke about how the mother’s ex-boyfriend had been at the football. She says the father got ‘more and more angry and he struck his hand which knocked my rear vision mirror and also my indicator stick broke and was hanging by the cords’. The mother says she dropped the father at the event and then went home. The mother said that the father became enraged because he had seen her ex-boyfriend play football and said it was her fault that his friends were friends with her ex-boyfriend.
The father agreed that the mother’s ex-boyfriend had attended his football club, but said that it was in the company of ‘two Hells Angels bikies looking for me because I was back and forwards with – with Ms Hannegan’. He denied damaging the mother’s windscreen later in the day although said that he could not recall being in the car with the mother or meeting up with her at the end of that day. He later conceded that he had damaged the mother’s car saying it was in retribution for her damaging his car. He said ‘I went to her car and put pressure on it and cracked her windscreen just because I was sick of my stuff being broken all the time.’
I prefer the mother’s version of events.
The smothering incident
The mother says that on 6 July 2014, the father smothered her with a pillow whilst she was seven months pregnant. She said that she was sitting on the edge of the bed with her back to the father when he smacked her with his left hand on the left side of her head. The mother stood up and told the father to leave, she started packing a bag for him. She said that the father became increasingly angry and she curled up on the bed to protect her stomach. The father lurched at her and pushed her face into a pillow so she couldn’t breathe. This continued for approximately 15 seconds. When the father stopped, the mother grabbed her dressing gown and Ugg boots and left the former home for the paternal grandparents’ home for assistance. She returned to the former home after the father had vacated the premises and she was accompanied by her mother. This incident lead to the parties’ final separation.
In cross-examination, the father conceded the parties had argued and he subsequently left the premises. The father’s recollection of the events were that the mother was standing in front of a mirror saying she wanted the baby out of her stomach and complaining it made her fat and ugly. The mother conceded that she was concerned about her body shape but denied it was a problem and denied she took any action during the relationship to self-harm. The father agreed that the parties argued and that the mother left the home for the paternal grandparents’ home. Shortly after, the father said he received a call from the paternal grandfather which prompted him to leave the former home.
The mother gave evidence in examination in chief that when she attended upon the paternal grandparents’ home, she told them that the father had assaulted her and what had happened. The paternal grandfather and paternal step-grandmother denied the mother had disclosed an assault. As discussed above I found the evidence of the paternal grandparents less than convincing.
When the mother was asked why she attended upon the paternal grandparents’ home that night, her response was that she ‘thought if they knew and I told them the relationship was over, that they could get him some help’. When the father was asked if the mother’s version of events were upsetting he said ‘well, if – if – if it happened, I – I would probably be upset. But, like said, I’ve – I’m – I’m used to the allegations.’
I prefer the mother’s version of events. I do not accept that the mother would not have told the paternal grandparents a version of events to explain her attending in the night in a dressing gown when she was pregnant. Similarly, I do not accept that without some explanation they would ring and direct the father to leave the home, nor that he would do so without some discussion. There is nothing to indicate that the mother has ever engaged in self harm or contemplated harming her unborn child. I am satisfied that this is nothing more than a malicious invention by the father to justify his conduct on that night and advance his attempts to re-frame their mother’s evidence and experiences as the consequence of mental illness on her part.
Unannounced attendance
Shortly after the child’s birth (between two and four days), the paternal grandfather and step-grandmother attended unannounced upon the mother’s home whilst the father remained up the road. The father denied any suggestion that this would have been likely to have upset the mother as he was ‘up the road in the car’.
The incident is remarkable for a number of reasons. First, it seems incredible that in a case where there has been so much acrimony between the parties, and significant allegations of violence by the mother, that the father’s family would decide to attend unannounced at the mother’s home shortly after the child’s birth. Clearly they were aware of the difficulties, hence leaving the father down the road, however he was nonetheless in the vicinity. Secondly, when the mother reacted badly, which was entirely predictable, the grandparents saw this as an example of her having poor mental health
Ordinary respect of family members that still have a loving relationship would demand a telephone call to a mother who had just given birth to enquire about whether she was taking visitors and when may be a convenient time to call upon her. At best, it was an event that was utterly without insight, and at worst an attempt to continue to exert control over the mother by not allowing her the choice of whether to see the grandparents, and if so the time and circumstances of that meeting if she chose to allow it to take place. I have no hesitation in accepting that the mother’s conduct was entirely within the normal range of reactions to the situation she was confronted with at that time in her life.
The changeover incident
Following separation, the parties reached consent orders that the father’s time was to be supervised by the paternal grandfather and step-grandmother, or one of two other nominated supervisors. The supervisors were to be in substantial attendance during the father’s time and, importantly, only the supervisors were able to drive a vehicle carrying the child and that the child had to be appropriately restrained. On occasion the paternal grandparents were overseas and as such two substitute supervisors were arranged.
On one occasion, on 25 June 2016, the paternal grandparents were away and no alternate supervisor had been arranged. The father’s lawyer contacted the mother’s lawyer and requested an amendment to the orders seeking that the father could be permitted to take the child from the McDonald’s changeover point back to his house (although never offering to use a taxi). The mother denied the request. The father gave evidence that he understood this was the mother’s position and he deliberately breached the order.
On the day of the changeover incident, the father and a nominated supervisor attended at the McDonald’s changeover and collected the child. They then walked across a field and down a side street to meet his partner who was waiting in the car. The father and child got into the car and the father’s partner drove home. The father was aware this was a breach of the order and knew that the mother did not consent to an alternate driver.
In cross-examination the father rationalised his behaviour as a result of a ‘technicality’ and justified it on the basis that he breached the orders ‘so [the child] didn’t have to stay at McDonald’s for seven hours’. Whilst the father could not recall whether he informed his partner that this was a breach of the orders, he admitted that he arranged to meet her in a side street and that she participated in the breach of the orders.
The father viewed the incident on the basis that he would get ‘a dressing down’ from the Court but justified his actions as reasonable and based upon a mere technicality. It was pointed out to him that it is not the role of the court to give someone a ‘dressing down’ in the context of a case such as this, but determine what orders are in the child’s best interest given the conduct and capacity of the parties.
The incident itself was a minor and relatively technical breach of restrictive orders, however it is the context of the breach in the circumstances of this case that gives it significance. This incident demonstrated not simply that the father cannot be relied upon to comply with court orders, even when the proceedings are still pending, but that he was prepared to plan a method of breach by deception. This leaves one without confidence that orders will be respected by him, and quite reasonably leads to the mother having no confidence that the father would comply with orders if they did not suit him. This significantly undermines the confidence that the mother could have in him complying with any orders that did not suit him.
The father’s relocation
The father’s evidence on 13 February 2018 was that he intended on renewing his lease at a property at (Road) Suburb P (a respectable distance from the mother’s home). The father then relocated to Suburb P, an address remarkably close to that of the mother’s home (around 350 meters away). That the father would move so close to the mother during the pending trial, in the face of the litany of violence allegations is simply astounding. His explanation that the home was of a suitable size and that his local shopping centre was 300 meters away, was unconvincing.
A number of affidavits were filed about this issue. It transpired that after searching for a new property (and looking at around 50 properties online) the lease for the Suburb P property was signed on 16 or 17 March, in order for the father and his partner to take possession on 29 March 2018. By 2 April 2018 he was sleeping at the new property, yet no notice to the mother or her solicitors of the move occurred until much later. He conceded that he had been negotiating his current lease arrangements well before that date (as one would expect). The father only notified his solicitors on 9 or 10 April 2018 of his move. He sought to explain this on the basis that he had been ‘in between both properties’.
Unfortunately, the situation was made worse as his solicitors had not realised the significance of such move (and the requirements in previous orders to notify a chance of address to the mother). The mother, no doubt to avoid unnecessary complications at trial, pursued the point only on the basis of the delay by the father in notifying his solicitor, not the delay by the solicitor. Although I note that the father’s notice to his solicitor was without any mention or prompting to his solicitor of the need to notify the mother’s solicitors, despite the father being aware of this requirement.
The proceedings were resumed on 8 March 2018, however the father did not notify the Court that there was likely to be a change in his residence at that hearing, nor when the new lease was signed, nor when he first started sleeping at the new property. He was asked about his understanding of the purpose of the orders requiring him to notify the mother of any change of address and said ‘Just in case, I guess, if I move closer .....or something, yes, along those lines, I believe.’ He went on to say that ‘Well, I haven’t tried to be sneaky about anything.’
When considering the evidence and conduct of the father, I am persuaded that the father chose a property close to the mother’s residence as a means of intimidating the mother. He did not tell his solicitors until the last day he thought he could justify (the day he finally relinquished the keys to the former property) and notified his solicitors in a way that would not alert the solicitor to the requirements of the order, nor did he instruct the solicitor to give notice as required under the order. The solicitor’s failure to recognise the significance of a change of address in a case with orders concerning addresses and significant violence allegations is not excusable, however, the form of notice to the solicitor provided no indication by the father of the need to comply with an order.
To use the father’s words, I am persuaded that he was being ‘sneaky’ and hoping to have the move completed and residential arrangements for his ill mother (who lives with him) entrenched before the mother became aware that he was living so close to her. This is an example of intimidation of the mother by the father, done during the pending trial and therefore having the effect of undermining any confidence that the mother may have in obtaining effective protection from court orders. That the father would behave this way during proceedings causes real questions as to the limits (if any) he may place on his conduct after the court proceedings are over.
Orders were made on the last day of trial to the effect that the father vacate the Suburb P premises on or before 17 July 2018. Further, that the father be restrained from residing, attending or remaining within a reasonable distance of the mother’s house (set out specifically in the map annexed to the orders made 4 July 2018).
Changeovers with the maternal grandmother
The father says that that the current arrangements with changeover, including the involvement of the maternal grandmother to facilitate changeovers, is unworkable. He is not convinced that the maternal grandmother is properly facilitating the changeovers nor supporting his parenting. I am not persuaded by the father’s claims as to the events at changeovers, but accept that in the circumstances of this case it is no longer realistically workable for changeovers (or indeed time, as discussed below) to be at a place other than a supervised centre.
It is unrealistic, in light of the many incidents of violence, to expect the mother to attend at changeovers. Even the father’s suggestions of counselling, to the extent that it involves indirect contact between the parties, is unrealistic in the context of this case at this time.
Parents current circumstances
The father resides in rental accommodation with his girlfriend and his terminally ill mother. The father pays child support of $380 per fortnight and earns an income of around $90,000 per annum.
The father was not opposed to changeovers occurring at a children’s contact centre, provided that he could leave the centre with the child. The father was not prepared to fund supervised visits which were estimated to cost around $200 a week (less on the mother’s recent enquires at Community West). Whilst he denies denigrating the mother and the maternal grandmother in the presence of the child at changeover, he conceded that these problems would disappear if changeover occurred at a contact centre.
The father sought a change in the child’s surname from that of the mother to a hyphenated surname including his surname. He argued that it was a means for the child to connect with his past. It was put to the father that this was another attempt to control the mother, which he denied. I accept that surnames are a strong indicator of identity and family connection for children, and that in many cases a hyphenated surname is a suitable option (at least until the child reaches adulthood and can make their own choices) – I have made many such orders in parenting cases. I also accept, however, that in the context of this case the request could also be perceived by the mother as another form of controlling behaviour.
The mother was cross-examined about her understanding of sole parental responsibility and equal shared parental responsibility. Not surprisingly given the complex provisions in the legislation, the mother’s answer was not that which a lawyer would give. She said:
Well the sole parental I’m asking just for the medical and the education so that we’re not in back and forth battles onto things because small issues between us obviously don’t get resolved. The father and I aren’t in talking terms. Everything is done through the lawyers. I’m just thinking of major issues that would be easier if – because [X] lives with me currently most of the time and he has time with the father which is supervised, so I just gathered that as it’s – the major of the time with me that it’s easier to make the decisions because I see his day-to-day and what would … be easier for where he’s living.
…
Well the sole would be that I decide everything and equal would be that we share the major things between us
…
But with schooling, if we’re not in agreeance with schooling, we will be going through the lawyers again. Mr Pave and I don’t agree on many issues.
What became apparent was that the mother’s opposition to the father having joint responsibility was her recognition of the fact that the parties are simply unable to agree. This was the main focus of her answer, not any attack upon or undermining of the father.
The mother was asked to consider the future and conceded that it remained untested about whether the parties may be able to share parental responsibility for long-term decision making issues regarding the child in the future. Her position was, given the parties’ history, she does not wish to have any contact with the father. In response to whether she would be open to communicating with the father in the future, her evidence was:
I’m not there in five years’ time. I don’t know my feelings. Because at the moment how I feel, I feel sick having to sit in the court with them. I feel unwell and I don’t like it. I feel intimidated every time I’m in the court, when I leave court. I don’t feel comfortable. I’m just telling you how I feel at the moment. I don’t know how I will feel in five years’ time. I’m trying as hard as I can. I try and write please just write [X]’s food and sleep and he starts communicating on about things. I don’t want to communicate with him.
I accept that this genuinely reflects the mother’s feelings.
The mother has little financial capacity to contribute to supervision. She works as a part time (occupation omitted) earning around $26,000 per annum. She is clearly careful with her funds (and has been in the past) as she has purchased her modest residence and is paying it off.
The mother was asked about the current relationship between the father and the child. Her evidence was that in the last two and a half years there have not been any instances of violence towards the child ‘but it’s always been supervised’. The mother acknowledged that there will come a point when the child spends one on one time with the father. The mother’s subjective fears (no doubt a result of her own experiences) clearly underpin her concerns for the child in the father’s care.
The relevant considerations under the Act
Part VII of the Act contains the relevant provisions governing parenting decisions. Section 65D provides for a court to make ‘such parenting order as it thinks proper’. Whilst this section provides a broad discretion, there are many other relevant provisions in the Part that require consideration. Firstly, the objects and principles of the Part are set out in s.60B. Section 60CA makes clear that the best interests of the child are the ‘paramount consideration’ (which is repeated in s.65AA), and s.60CC provides a lengthy list of relevant considerations when determining the best interests of a child. Issues relating to parental responsibility are dealt with in Division 2 of Part VII of the Act. In this case, as a result of the findings that the father has engaged in family violence, the presumption of equal shared parental responsibility in s.61DA does not arise. The nature of the conduct in this case is squarely within the definition of family violence in s.4AB.
Best Interest of the child
As s.60CC contains primary and additional considerations, many of which overlap, it is convenient to consider each of the additional considerations before turning to the primary considerations.
Additional considerations under s.60CC(2)
In this case the child is too young to express any significant specific views or preferences. On the material available I proceed on the basis that the child would prefer to continue his primary attachment with the mother and that he has a good relationship with the father that he would wish to maintain.
I am satisfied that the child has a good relationship with the parents, the maternal grandmother, and the other members of his extended family.
I am satisfied that both parents have participated in the child’s life to the extent reasonably available in the context of this case.
I am satisfied that the parents have fulfilled their obligations to maintain the child.
In this case I must carefully consider the likely effects upon the child of orders for limited supervised time with the father. Such an order will severely constrict the relationship with the father. The child would be denied many of the parent-child interactions that most children take for granted. It will also severely limit the child’s development of relationships with members of the father’s extended family.
There are no practical problems with parenting arrangements, save the extent to which family violence impacts upon the arrangements which I discuss below.
The capacity of each of the child's parents to provide for the day to day needs of the child are not in doubt. The capacity of the parents to meet the child’s emotional needs is a more difficult question. The conduct of the father has left the mother fearful for the child’s and her own safety – this can only have the effect of reducing her capacity to meet the child’s emotional needs. Orders that remove, or significantly alleviate those fears will improve the mother’s capacity to meet the child’s emotional needs. Absent the fears as a result of the family violence I am satisfied that the mother has more than adequate capacity to meet the child’s needs. The father’s capacity in this regard is questionable: his conduct toward the mother shows: (a) a lack of capacity to meet the child’s needs through supporting the child’s primary carer’s capacity; (b) in the long term, the father’s behaviour patterns toward the mother demonstrate an attitude toward partners that provides modelling that would undermine the capacity of the child to develop appropriate emotional boundaries, trust of partners and emotional intelligence; and (c) his conduct towards the mother, both historical and ongoing, show an incapacity to meet the child’s needs by continuing to have [X] experience and to be exposed to the mother’s ongoing fear and insecurity, an effect of family violence: see s.4AB(4). The incapacity of the paternal grandparents to even acknowledge that the relationship between the parties had become violent shows a real likelihood that they would be unable to meet the child’s emotional needs.
The maturity, age and background of the parents and child are noted above: they do not call for particular comment in the context of this case beyond noting the young age of the child.
There are no particular cultural issues that are significant in this case.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents are significant in this case. Whilst both parents have demonstrated appropriate attitudes to the child in their current interactions directly with the child, the same cannot be said of the issues relating to the responsibilities of parenthood. The responsibilities of parenthood include working toward a loving and supporting environment for the child, which necessarily involves avoiding undermining those who are involved in caring for the child. The family violence discussed below tells strongly against the father in this regard.
Family violence is a specific factor that must be considered under s.60CC of the Act. The findings above demonstrate significant and repeated incidents of family violence against the mother by the father. The family violence in this case is not limited to the physical assaults upon the mother, but includes the fathers attempts to reframe the events as demonstrating that the mother suffers a mental illness, his surreptitious breach of spend time orders, his renting a residence very close to her and not even notifying a change of address until after it was a fait accompli. All of these matters lead to the conclusion that the family violence in this case is insidious and that the father is engaged in an ongoing campaign to destabilise the mother.
Whether a child in utero can be ‘exposed to’ or ‘involved’ in family violence within the meaning of the statutory provisions is an interesting question that arises on the facts of this case. There is no doubt that children in utero can be affected by events outside the womb as varied as soothing music, to a car accident. Similarly, they are affected by the mother’s emotional and physical health. I am of the view that a child can be exposed to or involved in family violence even if in utero. As a result, I proceed on the basis that even though the parties separated before the child was born, the child was nonetheless ‘exposed to’ or ‘involved’ in the incidents of family violence prior to his birth, within the meaning of the statutory provision.
Whilst the mother has no mental health sequelae arising from the conduct of the father, this does not mean that she is not suffering the impacts of ongoing fear for herself and the child. I accept that the fears are genuinely held, are severely troubling for her, and are not an irrational response to the conduct of the father. Interactions with the father are likely to be very destabilising for the mother and impact upon her capacity to parent as a result of her own fears and fears for the safety of the child.
Whilst I am not persuaded that the child is at immediate risk of direct harm from the father, there is a real risk that as the child grows older his love and respect for his mother would be undermined by the father and he will be exposed to (and perhaps model) attitudes and behaviours that have resulted in the family violence the mother has suffered. I am also of the view that whilst the father may idolise his child now, he may take the opposite view when the child is old enough to engage in oppositional behaviours.
The two primary considerations under s.60CC are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In essence this case focusses upon the tension between the constriction in relationship between the father and child (and his extended family) and the potential impacts of the father’s behaviours. It is always a difficult balance when weighing these factors, both of which present real risks to the child’s development. There is much importance in ensuring that the mother’s and child’s bond remains secure, in both the short term, and the longer term, and is not undermined. Just as the constriction of the relationship with the father will be likely to have negative impacts upon the child in the longer term, so too would a child growing up in an environment where they began modelling their own behaviours on any of the domestically violent behaviours (including the controlling and manipulative behaviours) discussed above.
Appropriate orders with respect to parental responsibility must be considered. The statutory presumption that it is in the best interests of the child that there be orders for equal shared parental responsibility does not apply in this case as a result of there being reasonable grounds for believing (and in this case positive findings) that a parent has engaged in family violence: see s.61DA(2). Whilst the presumption does not apply, it is still necessary to determine what orders should be made with respect to parental responsibility.
If orders are made for equal shared parental responsibility, the provisions of the Act contain no specific mechanism for resolving differences of opinion about issues between the parties. Section 65DAC requires decisions about ‘major long-term issues’ to be made ‘jointly’ and the parties are required by s.65DAC(3) ‘to consult’ and ‘make a genuine effort to come to a joint decision’. The relationship between the parties in this case makes shared parental responsibility unworkable. The interactions necessary for sharing parental responsibility would provide a forum for the father to continue to interact with the mother and attempt to exert control over her. In this case orders for equal shared parental responsibility are not in the child’s best interests. As a result the requirements of s.65DAA do not apply in this case.
When standing back and looking at the evidence as a whole, orders for very limited supervised contact with the father appear to be the appropriate outcome in order to meet the child’s best interests. Such orders would have the effect of ensuring the security of the child’s relationship with the mother, protecting the mother’s capacity to meet his needs, and limiting exposure to behaviours that have proved so destructive between the mother and father.
Whilst the child’s best interests are the paramount consideration they are not the sole consideration under s.65D. The law with respect to other relevant considerations is not well developed. The interests of parents cannot be ignored, hence the arguments in some cases concerning the relevance of a parent’s right to freedom of movement. Of course, many rights of adult citizens are necessarily constrained when they have responsibility for children, and as a result issues about factors beyond the child’s best interests are not often argued. In this case, however, to the extent that the mother’s sense of safety and security does not impact upon the child in a way that brings it within the ambit of the concept of the best interests of the child, I am of the view that it nonetheless remains a relevant consideration under s.65D of the Act. Put simply, a person’s interests in living without interactions with another person who has been violent towards them are legitimate and therefore relevant (although not determinative) under s.65D. There are no other significant factors that have been argued in this case that would potentially fall within the broader range of factors that may be relevant under s.65D.
Whether in years to come the father is able to adequately address his conduct remains to be seen, although significant work would need to be done. Having regard to his conduct over the course of the trial in denying the mother’s claims (which have been accepted) and in his actions during the course of the proceedings, it is difficult to see how the mother could be in a position, at least in the short term, to consider any material he may provide to show changes he has made so as to alleviate her concerns. The mothers fears of security and safety requires an initial significant period without being subject to the father’s conduct and reappearance in her life or around the area in which she lives in order to optimise her parenting capacity and alleviate the child’s exposure to and experience of the violent nature of his mother’s relationship with his father. Only then could consideration be given to the father spending any more than limited supervised time with the child.
As a result, orders should be made as ultimately sought by the mother that limit the father to supervised time only.
The difficulties between the parties are such that the evidence does not show that it is in the child’s best interests for his surname to be altered in this case. Given the difficulties that the parties have in communicating, the mother should have sole parental responsibility, but subject to a requirement to consult with the father prior to making significant long term decisions.
The mother should have the protection of injunctions restraining the father from attending in the area of her residence in the long term.
There is nothing to indicate any difficulty with the mother traveling with the child, and the opportunity is likely to arise given her occupation as a (occupation omitted). It is appropriate that she be permitted to travel with the child and obtain a passport without needing to obtain the father’s consent.
I am persuaded that orders restraining the denigration of the parents to the child (and discussion of the proceedings) are appropriate to ensure that any supervisor is alerted to the significance of such conduct and has a clear basis to terminate time if such conduct occurs. Whilst I am not persuaded that the mother is likely to engage in such conduct, she does not oppose orders in the same form applying to her.
The mother submitted that it is appropriate to make a number of orders requiring the father to engage in counselling and the matter to return to court after a fixed, albeit relatively brief period. Orders were suggested in these terms:
The father forthwith attend for reportable therapeutic counselling with such psychologist as nominated by the mother, and such counselling to have regard to the father’s anger management, lack of insight into the appropriate care for the child and the need to protect the child from psychological and/or physical harm.
For the purpose of the counselling in order x, the counsellor is to be provided with a copy of the mother’s affidavits sworn 1 February 2017, 28 January 2018 and 26 June 2018 as well as a copy of this judgment.
Not prior to 12 months from the date of these Orders, the parties and the child attend upon Mr P, or such family consultant as nominated by the mother, for the purposes of the preparation of a further family report as to the appropriate time the father should spend with the child thereafter.
The psychologist engaged for the purpose of order x herein, provide six monthly progress reports to the parties and to the family consultant nominated.
The principles discussed in In the Marriage of Rice v Asplund (1978) FLC 90-725 prevent further applications to the court unless there have been sufficient changes in circumstances to warrant further proceedings. The draft orders set out an approach that the father may adopt to address the issues that have arisen. However, it is a matter for the father how he proceeds following this judgment. If he is committed to change then he would be wise to seek assistance. However, I am not persuaded that orders should be made to force the father to counselling, nor to force the mother to further family report interviews in the foreseeable future.
If the father chooses to take up the mother’s suggestion of such a process that is a matter for him. It will be important for each party, should they seek assistance from counsellors or the like that they provide a counsellor with a copy of this judgment.
I therefore make orders accordingly.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 30 November 2018
Key Legal Topics
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Family Law
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Negligence & Tort
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Injunction
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