PENDER & PERCIVAL
[2019] FamCA 303
•14 May 2019
FAMILY COURT OF AUSTRALIA
| PENDER & PERCIVAL | [2019] FamCA 303 |
| FAMILY LAW – CHILDREN – Final parenting proceedings FAMILY LAW – BEST INTERESTS OF CHILDREN – Where the Mother seeks an order for sole parental responsibility – Where Father perpetrated significant family violence – Where lethality of family violence combined with future risk of re-offending strongly indicate no benefit to children of maintaining a relationship with the offending parent – where the primary considerations outweigh any consideration of section 60CC(3) considerations. |
| Family Law Act 1975 (Cth) s 60CA and 60CC |
| Browne v Dunn (1893) 6 R 67. |
| APPLICANT: | Ms Pender |
| RESPONDENT: | Mr Percival |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs J Lloyd |
| FILE NUMBER: | CAC | 2052 | of | 2016 |
| DATE DELIVERED: | 14 May 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 25-27 July 2018, 31 July 2018, 1 August 2018 and 17 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Houghton |
| SOLICITOR FOR THE APPLICANT: | Infinity Legal |
| SOLICITOR FOR THE RESPONDENT: | Self-representing |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Jeanine Lloyd & Associates |
Orders
All former orders relating to the children B, born … 2005, and C, born … 2011 (“the children”) are discharged.
The Mother shall have sole parental responsibility for the children.
The children shall live with the Mother.
These Orders do not in any manner provide authority for the Father to spend time with or contact the children and prohibit him from spending time with or contacting the children directly or indirectly.
That the Father be restrained and an injunction is hereby granted restraining him from:
(a)enquiring of any person or entity (including the children, any business or educational establishment or medical practice) as to the address of the children;
(b)enquiring of any person or entity (including the children, any business or educational establishment or medical practice) as to any information that would be reasonably likely to disclose or otherwise enable the father to identify the residence, medical practice or educational establishment pertaining to the children;
(c)sending the children gifts or presents, even through a third party;
(d)approaching or initiating any direct contact with the children;
(e)initiating any indirect contact with the children through a third party, social media, online platform or by way of electronic communication;
(f)approaching or initiating direct contact with the Mother except through her legal representative;
(g)coming within 500m of any place at which the Mother may live or work;
(h)coming within 500m of any place at which the children attend school or any co-curricular activity;
(i)assaulting, molesting, harassing, threatening, stalking, intimidating, or otherwise interfering with the Mother or children or any member of the Mother’s household or family; and
(j)publishing any matter on social media which would or could reasonably be inferred to be related to these proceedings and/or the Mother or the children.
That, pursuant to s 68C of the Family Law Act 1975 (Cth) if a police officer believes on reasonable grounds that the father against whom the injunction is directed in Order 5 above has breached the injunction by causing or threatening to cause bodily harm to the children or harassing, molesting or stalking the children that a police officer may arrest the father without a warrant.
That Orders 5 and 6 are orders made for the personal protection of the Mother and the children and any member of her household or family pursuant to s 68B of the Family Law Act 1975 (Cth).
Pursuant to ss 7 and 11 of the Australian Passports Act2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the Father to enable the children of the relationship B, born in 2005, and C, born in 2011 to obtain an Australian Passport to travel internationally, the Court makes the following orders:
(a)The Mother of the children be permitted to apply for an Australian Passport to enable the children, or any of them, to travel internationally notwithstanding that the Father of the children has not signed the passport application form and furthermore the said children, or any of them, be permitted to travel internationally without the permission of the Father.
That the Mother be permitted to relocate the residence of the children without reference to or the consent of the Father.
That the Mother be permitted to change the children’s names without reference to or the consent of the Father.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pender & Percival has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 2052 of 2016
| Ms Pender |
Applicant
And
| Mr Percival |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant Mother in this case is Ms Pender born in 1980; the Respondent Father is Mr Percival born in 1979. There are two children of the relationship, B, born in 2005, and C, born in 2011. The parties were in a relationship from 2002 until 2014.
Following separation and a serious incident of domestic violence against the Mother that occurred in 2014 the Mother filed an Initiating Application on 13 December 2016 seeking sole parental responsibility for the children, that the children live with her, that the Father be restrained from removing the children from the Mother’s care and that he be restrained from being within 100m of the children and the Mother. Those orders were made by this Court 20 December 2016 on an interim basis.
This matter was heard over six days on 25, 26, 27, 31 July and 1 and 17 August 2018 to determine parenting arrangements on a final basis.
Although not the sole aspects of the case, the central facts identified by the parties are that the Father attempted to kill the Mother in September 2014, that after that (with some exceptions) he spent; firstly substantial and significant time with the children, then equal time with the children until the Mother unilaterally ceased his contact with the children in August 2016.
The Mother’s case revolved around severe physical violence on the part of the Father against her, physical abuse of the children by him, and the consequences of these. For the Father it revolved primarily around the Mother’s ending of his time with the children, and her alleged manipulation of the proceedings to effect this.
The Mother indicates that over the course of the proceedings the Father has continued to direct aggressive and abusive behaviour towards her solicitor and other people involved in the Court proceedings because he can no longer direct his anger toward her. She says she is concerned that once the Court proceedings are finalised he will redirect his anger toward her.
For the purposes of the final hearing the Mother appeared in the proceedings by video link. It is apparent that she and the children no longer live in the Canberra district. Her address was neither disclosed nor sought during the proceedings. She has said that she will in any event comply with orders that may be made for the Father to spend time with the children.
Material relied upon:
Material relied upon by the parties appears at endnote[i].
Orders sought
The Mother sought orders as set out below:
1.That the children, [B][, born … 2005 and [C], born … 2011, (“the children”) live with the applicant Mother.
2.That the applicant have sole parental responsibility for the children.
3.That the father shall spend no time with the children nor communicate with the children or either of them by any means whatsoever.
4.That the father be restrained and an injunction is hereby granted restraining him from:
a.enquiring of any person or entity (including the children, any business or educational establishment or medical practice) as to the address of the children;
b.enquiring of any person or entity (including the children, any business or educational establishment or medical practice) as to any information that would be reasonably likely to disclose or otherwise enable the father to identify the residence, medical practice or educational establishment pertaining to the children;
c.sending the children gifts or presents, even through a third party;
d.approaching or initiating any direct contact with the children;
e.initiating any indirect contact with the children through a third party, social media, online platform or by way of electronic communication;
f.approaching or initiating direct contact with the Mother except through her legal representative;
g.coming within 500m of any place at which the Mother may live or work;
h.coming within 500m of any place at which the children attend school or any co-curricular activity;
i.assaulting, molesting, harassing, threatening, stalking, intimidating, or otherwise interfering with the Mother or children or any member of the Mother’s household or family; and
j.publishing any matter on social media which would or could reasonably be inferred to related to these proceedings and/or the Mother or the children, or any member of the Mother’s household or family, even through a third party.
5.That, pursuant to s 68C of the Family Law Act 1975 (Cth) if a police officer believes on reasonable grounds that the father against whom the injunction is directed in Order 4 above has breached the injunction by causing or threatening to cause bodily harm to the children or harassing, molesting or stalking the children that a police officer may arrest the father without a warrant;
6.That Orders 4 and 5 are orders made for the personal protection of the Mother and the children and any member of her household or family pursuant to s 68B;
7.That pursuant to s 11 of the Australian Passports Act 2005 (Cth), upon the Mother’s application to apply for or renew passports for the children, such passports shall be issued to the Mother notwithstanding that the father does not consent;
8.That the Mother be permitted to relocate the residence of the children without reference to or the consent of the father;
9.That the Mother be permitted to change the children’s names without reference to or the consent of the father.
That is, the Mother sought orders that would exclude any possibility of involvement by the Father in the children’s lives.
The Father was asked to identify the orders that he seeks. He initially seemed unable to do so, questioning whether the Court proceedings had the authority to produce orders that will be binding on the parties. Eventually he identified that the orders that he seeks are that the children live on a week on week off basis between he and the Mother and that he be able to make decisions in relation to the children. If he is not able to have week about time, his position is that he should be able to have a minimum involvement with his children so that he might be able to spend time with them and communicate with them.
The Independent Children’s Lawyer (“ICL”) expressed no view at the start of the proceedings as to what orders would be appropriate. At the end of the proceedings the ICL sought the following orders:
1.That the Applicant Mother have sole parental responsibility for the two children, namely [B], born …2005, and [C], born … 2011 (“the children”).
2.That the children live with the Applicant Mother.
3.That the children spend no time and have no communication with the Respondent Father.
In submissions the ICL supported the orders sought by the Mother.
Principles
Further discussion of principle occurs later in this judgment. At this stage it is useful to note that the determination of the parties’ applications will be on the basis of what is in the children’s best interests. These will be determined through the considerations set out at s 60CC of the Act. Of those considerations, it is the two primary considerations that have the most significance in the circumstances of this case. These considerations draw attention to issues of the benefits that the children might receive from meaningful relationship with their parents and the need to protect the children from harm flowing from exposure to family violence. These are the matter focussed upon by the parties.
The Father’s presentation and material
The Father was aggressive and argumentative throughout the proceedings. He was non-compliant with multiple directions to desist from that conduct. He appeared unable to desist.
The Father’s affidavit material varied from rambling, to at times nonsensical, to the abusive. There were, however, significant areas of importance dealt with within his affidavit material, where he conceded alleged behaviour, in particular to the Mother, and also revealed his thought processes about the Mother, the children, and various court proceedings.
The affidavit material presented by the Father was consistent with his erratic and aggressive conduct in the courtroom. One example was as follows:
… mental health records supeoned for criminal charges against my instructions, “need family crt permission first” “No” stick’s finger’s up at Gill, ask me cunts! Hugh why didn’t you supeona my [D Centre] records for my viewing? as discussed Fuck you Justice Gill you have removed the mental health worker’s from me when I need them any thing I say to them is given to [Ms Pender]![1]
[1] At pg.21 of annexure A of the Father’s affidavit of 25 July 2017.
Despite being advised at the start of his evidence of his obligation to answer the questions asked of him, and having this direction repeated on a number of occasions, the Father persistently failed to answer the questions put to him on behalf of the Mother. He was both highly argumentative and highly evasive in relation to her questions, including at times indicating that he would give the answer to the Court but not to the Mother’s counsel.
During the hearing the cross-examination of the Father was cut short due to persistent non-responsive and argumentative matters being raised by the Father. The Father was cautioned that if he persisted with this conduct his cross-examination would be brought to an end and the other parties would be relieved of the obligation to ask him about matters they would ultimately say are against him in the case (see the so called rule in Browne v Dunn).[2] Despite such notice to the Father he continued to provide non-responsive and argumentative answers, such that no true cross-examination occurred and accordingly the cross-examination was brought to an end.
[2] (1893) 6 R 67.
The matter was further interrupted during the tender of various items on behalf of the Mother, following the evidence of the Family Report writer. Again the Father persistently interrupted both counsel for the Mother and the Court. He was warned that if he continued to interrupt he would be required to leave the Court. The behaviour continued, resulting in a direction being given that he leave the courtroom. He refused to comply with the direction, resulting in a request that firstly the court security officer remove him and, when that did not occur, that the police be called. At that point he left the Court room, having been advised that he would be able to return in approximately ten minutes for submissions to be made so that the Court could hear what he had to say about the case. The request for the police was revoked when the Father left the courtroom.
Subsequently the Court was advised that the Father had been arrested and taken into custody. Enquiries of the Australian Federal Police were made by the Marshall, revealing that the Father was in custody and thereby unable to continue with the presentation of his case. The case was then adjourned to another day for final submissions.
The Father chose to absent himself from the courtroom for the Mother’s and ICL’s submissions.
At the end of the proceedings the Father emphasised a complaint made earlier in the proceedings that the case had not been heard properly, and was not being determined on a “case by case basis.” As best as could be understood this complaint related to the introduction of events and evidence relating to incidents dealt with in other proceedings, for example criminal proceedings conducted in respect of the Father in the Magistrates Court.
When asked about his conduct, and the significance of his conduct through the proceedings he accepted that he was angry, a matter that he attributed to his mental health. His conduct through the proceedings demonstrated an inability to control himself when angry, even in the formal confines of the courtroom.
This volatility spoke to both the potential risk that the Father poses, in particular to the Mother, and also to deficiencies in his capacity to parent in a consistent manner.
Events following separation
The events following separation were those focused upon at trial.
On the Mother’s account the parties separated in about July 2014. The Father says that separation did not occur until September 2014. The difference is not of significance. The parties agree that about the point of separation the Father moved into the garage.
The Mother says that initially the children moved between the house and the garage, staying for one overnight in the garage with the Father. At this time the parties entered into an informal parenting agreement that provided for the children to spend time with the Father. This arrangement continued until the Father assaulted and attempted to kill the Mother in September 2014.
Father’s Attempt to Kill the Mother
The Father accepts that he attempted to kill the Mother in September 2014.
In describing the incident the Mother says that she was having a cigarette, and the Father was packing his car. He threw a bag at her and she ran into the house but was unable to close the door and he bashed her repeatedly with his fists. The Mother does not remember the whole attack, but recalls at one point being strangled and feeling “as though I was going to drown in blood.” She says that the Father later said to her “after you became unconscious I went to the shed to get a metal baseball bat to finish you off, but then decided it would be more satisfying to do with my own hands.”
The Mother described to the Family Report writer that the Father repeatedly bashed her with his fists, attempted to strangle her, and left her unconscious. She stated that her injuries included bleeding heavily from the face, a fractured jaw, loss of her two front teeth, bruising, swelling, and a broken nose.[3] The Mother stated that she was absent from work for a period of two months in 2014, as a result of the Father’s assault upon her.[4]
[3] At [67] of the Family Report of Ms G dated 24 October 2017.
[4] At [32] of the Family Report of Ms G dated 24 October 2017.
The Father was criminally charged in relation to this incident. He was convicted of two counts of assault occasioning actual bodily harm. The Father expressed a view that he had not been charged commensurate with the nature and gravity of his criminal offences.
In his affidavit he said:[5]
I was originally charged with attempted manslaughter but was dropped to Grevious bodily harm them actual bodily harm x 2 (charges relating to Ms [Pender]) I agree with original charge… I stood in court and told them the charges didn’t reflect the event…
[5] At pg. 71 of annexure A of the Father’s affidavit of 25 July 2017.
And:[6]
I stood in court and said the story/charges was wrong “I tried to kill her” but everyone chose to be ignorant therefore was no corrective behaviour strategies, non fitting punishment except from myself…
[6] At [144] of the Father’s affidavit of 27 October 2017.
And further:[7]
A confession is/should be enough to convict a person as it was I stood in court after charge were read and given the opportunity to speak said “No that is not what it was I tried to kill her” (I will get the transcripts) the court ignored this statement and in my opinion made ridiculous discussions…
[7] At [21] of the Father’s affidavit of 27 October 2017.
The Mother says that she did not participate in the proceedings, either to provide a witness statement or a victim impact statement. She says that she has not even seen the initial statement that she gave to the police.
In discussing the event in his affidavits, the Father acknowledged that there had been an incident of “horrifying DV in 2014 sept” and that there was “no excuse for what I did”. He stated that his actions had caused “an effect of fear and mistrust” for the Mother, but that he had “taken steps ever since that day to ensure I never get in that position ever again”.[8] He went on to say that he acted “with violence at Ms Pender in a time of high stress, tension, loss, grief”.[9]
[8] At pg. 71 of annexure A of the Father’s affidavit of 25 July 2017.
[9] At pg. 73 of annexure A of the Father’s affidavit of 25 July 2017.
The Father described the incident as follows:[10]
My mental health/life had had a very destructive week and on the day an even worse day, we had got home I was pacing my car balling my eyes out contemplating suicide again (I never had thoughts of hurting anyone but myself especially Ms Pender) is hard to go one here, I can only describe my triggers for the attack I was already thinking death for myself was the only option…
[10] At [53] of the Father’s affidavit of 27 October 2017.
The Father went on to say:[11]
DPP 1 sep 2017 MH records Dr [F] report pg 5-6 lines 100-160 in DPP (fools) opinion says “I wanted to kill her” as I say DPP interpretation Want and tried are 2 different things, I tried but couldn’t Was capable but couldn’t, MH records now exhibit 3.
[11] At [142] of the Father’s affidavit of 27 October 2017.
The Father described the incident in his affidavit of 27 October 2017 as:[12]
attempted to kill Ms [Pender] once myself twice all on same day lucky to be alive yes I kicked myself back into gear and left Ms [Pender] in lateral recovery position…
[12] At [21] of the Father’s affidavit of 27 October 2017.
The Father again described himself as being suicidal at the time of the incident, stating:[13]
I was also charged with negligent driving for driving my car into a bridge trying to end my life, How could I live with the act I just committed!?!!
[13] At pg. 72 of annexure A of the Father’s affidavit of 25 July 2017.
In relation to the same event, in a later affidavit, he stated:[14]
Death was the original intention for myself was packing car to go commit suicide, then I turned at Ms [Pender], then went an tried to kill myself I do wish I had succeeded on myself in first instance would be better than living with what I do today.
[14] At [22] of the Father’s affidavit of 27 October 2017.
The Father states that he “left her [the Mother] for dead”[15] in the aftermath of the event, where eight police officers were required to restrain and detain the Father.
[15] At pg. 71 of annexure A of the Father’s affidavit of 25 July 2017.
He further elaborated to the Family Report writer regarding the incident, saying “I was on the way to commit suicide myself and these intentions turn towards Ms Pender (the Mother) and then kicked back to myself”.[16] He said that, following the assault, he drove away and attempted suicide by crashing his car, before being arrested and incarcerated for the assault.
[16] At [70] of the Family Report of Ms G dated 24 October 2017.
The Father has spoken to the children about his attempt to kill the Mother. In his affidavit of 27 October 2017, he states:[17]
Violence within the family, I have had many a discussion with the kids explaining what I did to their mother (mum) was WRONG this was a hard talk with the kids…
[17] At [183] of the Father’s affidavit of 27 October 2017.
The Father told the Family Report writer that he had told them that he had tried to kill the Mother, saying “I told them it was wrong and it should not have happened and I was very sorry for it”.[18]
[18] At [69] of the Family Report of Ms G dated 24 October 2017.
Events following the attempt to kill the Mother
Immediately following this incident the Father was taken into custody and the Mother thereafter travelled interstate with the children, remaining there until late October 2014. At this time the Father was incarcerated awaiting his hearing for the assault upon the Mother. Once released from prison the Father spent time with the children, initially supervised by his aunt, and then subsequently on an ad hoc basis when he had a suitable place available to see the children. Initially following his release from prison his accommodation was not suitable for the children. There were approximately four overnight periods during this time.
In February 2015 he was sentenced to periodic detention from 13 February 2015 to 12 November 2015 in respect of his attempt to kill the Mother. The order for periodic detention saw him being detained each weekend from Friday afternoon until Sunday afternoon.
During the first part of the detention period his time with the children was again ad hoc and inconsistent, with a period of approximately one month where he did not see them at all. From about July 2015 the children were spending five nights per fortnight with the Father and by January 2016 the parties entered into a verbal informal parenting plan that implemented a week about arrangement.
The Mother says that following the conclusion of the Father’s periodic detention he continued to see the children. She says she believed she was required to make the children available to the Father upon his request, despite her reservations. She says she did not receive any legal advice at this time in respect of the parenting arrangements.
The Mother said of this time that the Father’s behaviour toward her continued to be threatening and abusive including receiving a text message indicating that he wished he had killed her (referring to his attempt to kill her in September 2014).
The week about arrangement continued until August 2016 when the Mother unilaterally determined (contrary to the parties’ agreement) that the children should no longer spend time with the Father. Other than Father’s Day in September 2016 the Father has not seen the children since.
During this period the Mother obtained a Domestic Violence Order on her behalf on the 15 August 2016. The Mother deposes that she did not include the children on the application on the advice of the duty solicitor. A second IDVO was made 2 September 2016 prohibiting the Father from coming into contact with the Mother.
The Father complains that even prior to the ending of his time with the children the Mother manipulated the authorities to frustrate his time with the children. The primary example that he gives of the Mother frustrating his time with the children related to C’s first day of pre-school in February 2015. The Mother called a then friend of the parties, Mr H, and told him that the Father was sending text messages threatening suicide, the result being that police were called and undertook a welfare check upon the Father.[19] The Father states that he was then detained for observation for 12 hours, being released after no one was able to provide the texts in question.
[19] At pg. 37 of annexure A of the Father’s affidavit of 25 July 2017.
Under cross-examination it was put to the Mother that she did not receive any messages from the Father threatening suicide and that she could not produce the text messages because they did not exist. The Mother said she could not recall who made the report (her or Mr H) but they made the report because they were concerned for the Father’s welfare. The text messages were produced at a later period by the Mother’s counsel and the Father tendered into evidence at Exhibit F3 the text messages that the Mother received on 1 February.
Of particular note the Mother received the following text messages on 1 February 2015:
“You’re a cruel lieing cheating dog cunt I wish you never came into my life for all the good times to end in punishment of your actions wasn’t worth it you are not welcome at my funeral you cruel lieing dog cunt.”
“Thanks for destroying me you CRUEL lieing cheating dog cunt”
“Yeah wouldn’t expect you to say nothing in my last I love you tell the children I love them please”
Then on the 2 February 2015:
“Which one of you dog cunts is claiming to be my family? And callin police saying I’m sending messages that I’m commiting suicide cause I don’t want to go to court on Tuesday? Make sure you dog cunts can back your words dog cunts cause I fuckin can if I miss my daughters first day at school you will once again taken something from me I can’t get back ! Own up and take responsibility for your actions !”
There was some confusion between the parties as to when the report and involuntary detention occurred. The Father indicated it was his daughter’s first day of school, which was later corrected to the first day of preschool. The Mother indicated it was the Saturday prior to the Monday of the first day of preschool. The record indicates the text messages were received 1 February 2015 which was a Sunday. Depending on the time of the admission to the Suburb J Medical Centre if detained for 12 hours he may have missed the first day of his daughter’s preschool.
This interaction between the parties and the Father’s account of the incident appears to typify and underpins the Father’s beliefs about the Mother’s efforts to sabotage his relationship with the children.
There were further difficulties between the parties prior to the Mother applying for a domestic violence order in August 2016. The Father related an incident during one of B’s rugby games, following separation. He stated that the Mother approached him and said “what are you doing here cunt?” to which he replied “why did you put him in Union you cruel lieing cheating selfish dog cunt?”[20] The Father stated that this event occurred approximately one week before he was served with the IDVO.
[20] At pg. 81 of annexure A of the Father’s affidavit of 25 July 2017.
The application for a domestic violence order
The shared care arrangement was brought to an end when the Mother applied for an Interim Domestic Violence Order (IDVO) on 16 August 2016, which named herself but not the children. The circumstances and the aftermath of obtaining the domestic violence order were the subject of significant focus by the Father.
The precursor for the Mother commencing the domestic violence proceedings was B’s report to her that the Father was harming C.
B told the Mother, in August 2016 “dad threw C off the couch by her head and then he kicked her, yelled at her calling her a sook and to go to her room” and further “dad keeps the leather belt on top of the lizard tank so that we remember to behave. If we don’t behave he will hit us with it.” B also told the Mother “dad smacks C badly on most days when she is getting dressed because she is not getting dressed properly…on one day she was shaking because dad yelled as her to hurry up because we were running late.”
He alleges that obtaining the order was a manipulation of the legal system by the Mother and complained that this brought his relationship with the children to an end without any court determination of what should happen in the relationship. He said, accurately, that it was inconsistent with the informal arrangement then in place between the parties that allowed for equal time with each parent.
The Father stated in relation to the obtaining of the IDVO:[21]
IDVO … in black and white form is for Ms [Pender’s] own safety, protection, wellbeing but each person involved acted in grey area knowlingly that direction of order is new family plan.
[21] At [18.4AB(2)(i)] of the Father’s affidavit of 27 October 2017.
That is, the making of the IDVO displaced the previously operative agreement between the parties that had the children spending equal time with each of them.
The Father alleged that the true reason for the interim order was to control his time with the children. Whether or not this was the case, there was good reason for the Mother to act protectively of the children in relation to the Father, in particular following what B told her.
The Father claimed in support of his belief that the IDVO was being used as a mechanism to stop his time with the children, that he had been threatened by the Mother’s legal representatives. He said:[22]
Ms [K] has sent threatening mail, txt msg and in person stating that if I don’t consent to IDVO … new family plan in magistrates court I would have a long and costly court case on my hands, costly referring to her costs for Ms [Pender’s] representation.
[22] At pg. 47 of annexure A of the Father’s affidavit of 25 July 2017.
When questioned by the Father as to whether the IDVO brought the relationship with the children to an end, the Mother asserted that it was not the IDVO but that it was her who brought an end to the Father’s time with the children.
The Father says that he was alerted to the existence of the IDVO when he was texted by the Mother words to the effect of “the children hate you and never want to see you ever again read the IDVO …, new family plan”.[23] The Father contended that the obtaining of the IDVO constituted an act of family violence on the part of the Mother as against himself and the children.[24]
[23] At pg. 33 of annexure A of the Father’s affidavit of 25 July 2017.
[24] At [16] of the Father’s affidavit of 27 October 2017.
The Father said that the effect on his mental health was as follows:[25]
Aug 2016 My mental health crash IDVO… new family plan in magistrate court, it has left me feeling vulnerable, useless, powerless, abused, putdown, wrongfully judged, withdrawn, suicidal thoughts…
[25] At [70] of the Father’s affidavit of 27 October 2017.
Further, blocking any attempt to reinstate time with the children, the Father contended that the Mother has refused mediation in relation to the children on three occasions, the first upon separation, the second after having requested it, and after the Father had organised mediation through T Group, and the third following the issuing of the IDVO, whereupon she offered “no compromises”.[26] Given the history, as recited above, it was reasonable for the Mother to refuse to engage in mediation.
[26] At pg. 35 of annexure A of the Father’s affidavit of 25 July 2017.
The parties agree that there was one further occasion when the Father spent time with the children after the imposition of the IDVO. This was for Father’s Day in September 2016.
This visit was not without controversy. The Father sought to retain the children for a longer period than that arranged, on the basis that the children wanted more time. The Mother threatened the Father with the police and eventually the children were returned.
This aspect of the Mother’s account gained added veracity through the Family Report writer’s interview of C, where C described, when asked about anything that caused her to feel sad, worried or frightened, that “I don’t like doing home readers with Dad because he would grab the back of my head and push it down on the ground. He did it most nights, that’s why I liked to hide my home reader but he would always find it”.[27] C said that she feels “calm all the time” when spending time with the Father, except for when she “feels a little bit sad when Dad grabs the back of my head and bangs it on the ground”.[28]
[27] At [79] of the Family Report of Ms G dated 24 October 2017.
[28] At [80] of the Family Report of Ms G dated 24 October 2017.
B was reported by the Family Report writer as saying that should he or C behave inappropriately, the Father “would yell at us extremely loud, which was intimidating and scary, but usually C usually got the really, really bad stuff”.[29] B stated that he was “constantly scared of making a mistake because I would get yelled at”.[30]
[29] At [89] of the Family Report of Ms G dated 24 October 2017.
[30] At [91] of the Family Report of Ms G dated 24 October 2017.
The Father denied the allegation that he ripped C off the couch and kicked her in the head.[31]
[31] At pg. 28 of annexure A of the Father’s affidavit of 25 July 2017; at [16] of the Father’s affidavit of 27 October 2017.
The Father outlined the discipline methods he would use on the children in his affidavit, stating that:[32]
Smacking the kids is used at last instance in mostly extreme cases, or consistent other actions have failed and a smack on the hand is used.
[32] At pg. 46 of annexure A of the Father’s affidavit of 25 July 2017.
In relation to smacking the children, the Father stated:[33]
I do not feel I know my smacks have not left bruises, marks or welts on kids hands marks yes but not for more than an hr, I don’t smack them that hard, not enough to produce a tear.
[33] At pg. 46 of annexure A of the Father’s affidavit of 25 July 2017.
The Father questioned the Mother about when she started to have fears in relation to the children. The Mother said that the concerns for the children had commenced on the occasion that she was punched in the face by the Father, while she was holding B, when he was aged between one and a half and two years old.
Additionally she had a serious fear of the Father’s excessive disciplining of the children and her view that the Father behaved in an unpleasant manner towards the children in order to get to the Mother. She said that she held these fears over a long period, including that the Father might kill her and the children in order to retaliate against the Mother, but that her fears had intensified on B’s report of harm to C. She was concerned that when the children were in the Father’s care, there was no one to stop the Father when he became angry with the children.
On applying for the order the Mother sought no orders in respect of the children. She says that she applied for the order to protect herself and denied that her sole purpose was to support her decision that the Father would no longer spend time with the children. When questioned as to why she did not include the children on the order, the Mother explained that it was because she received advice that she would be unlikely to be successful in her application if she sought to do so.
The Father has subsequently breached the domestic violence order. He described the incident in the following terms:[34]
I called Ms [Pender] a “cruel lieing cheating selfish better person dog cunt” on 2 or 4 feb choose to submit it to family court I call her the same name 9 march she chooses to submit it to magistrate crt Hmmm Ms [Pender] gets to choose what does to which court or when or why is manipulation of the law.
[34] At [105] of the Father’s affidavit of 27 October 2017.
The point sought to be made by the Father in relation to the 2-4 February incident, where he called the Mother a “lieing cheating Better person dog cunt”, is that the Mother did not raise the incident with the police, notwithstanding that it was a breach of the IDVO. Instead, he says that she chose to submit the details of the incident to the Family Court, and that this was in some way indicative of manipulation and dishonesty.[35] The complaint then continues that the Mother reported a later instance of the same behaviour to the police. It is notable that he does not dispute the conduct in breach of the domestic violence order.
[35] At pg. 64 of annexure A of the Father’s affidavit of 25 July 2017.
Rather he says that:[36]
These charges are further manipulation of the law by Ms [Pender] and [Ms K] infinity legal yes I plead guilty to 1/3 charges for the fact that called Ms [Pender] a cruel lieing cheating Better person dog cunt, I did this with purpose and feel if all txt msg were read would be put into context.
[36] At pg. 64 of annexure A of the Father’s affidavit of 25 July 2017.
This, he says is a manipulation of the court processes that has the effect of separating him from the children.
Despite the interim IDVO in place the Father continued to send the Mother messages in breach of the order including:
a)12 November 2016 Final hearing for DV … family plan non day 15/12/2016 in magistrates court I will be taking this to final hearing, when can I have contact with my children next? What time shall I pick them up on Christmas Eve as arranged? Thank you Mr [Percival] (sic)”
b)17 November 2016 “When can I see my children next? Your denial of contact towards me must be distressing for them especially after your and your family’s threats (sic)”
c)2 December 2016 “Ms [Pender] I recommend you go back to legal aid you at least had them wrapped around your finger for both our representation your current lawyer is a waste of time as she describes myself ha ha ha funny, I hope you are prepared for fresh charges for both of use each law has been put in place for a reason I feel you need to show some respect to this come back your words I’m going to walk all over [Ms K] infinity legal good luck see you on 15/12/2016 DV… (sic)”
d)in 2017 (sent to Infinity Legal mobile number) “ Will you be adjourning new family plan DV … on 4 May? That way you’ll be able to take me out of another one of the children’s life events, I would like to say happy b’day to my little girl but she doesn’t want to talk to me any more since 15 aug 2016 glad I took your advice and got legal aid now I got [Ms K] infinity legal representing me from 20 dec 2016 you cruel lieing cheating better person dog cunt (sic)”.
The Mother deposes that some of these breaches were reported and subsequently the Father was arrested on 10 March 2017. He was refused bail and remained incarcerated until his conviction in September 2017. The Father was convicted for breach of the IDVO and sentenced to 14 months imprisonment. The sentence was suspended following time already served and put on a 24 month good behaviour bond. Additionally he was ordered to attend psychological or psychiatric treatment.
I am unable to see how the Mother failing to report each of the Father’s admitted breaches of the IDVO forms a manipulation of the legal system. The more fundamental issue is that the Father was breaching court orders put into place for the protection of the Mother.
The Father also admitted to breaching the IDVO by sending a text message to the Mother in relation to C’s birthday.[37] He stated that the text was sent as a part of a group text.
[37] At pg. 34 of annexure A of the Father’s affidavit of 25 July 2017.
While the Father was incarcerated, for a breach of the IDVO, the Mother was contacted by the custodial facility asking if she agreed to being on the Father’s list of persons that he would be able to telephone in order to allow him to speak to the children.[38]. This request, which must be inferred to have come from the Father, was inconsistent with the IDVO.
[38] At [26] of the Father’s affidavit of 27 October 2017.
The Father alleged that the Mother attended on the paternal grandfather’s house when the Father was staying there several times for dinner, apparently in breach of her own IDVO.[39] The Father also stated that the Mother went to the Father’s house during the period following the issue of the IDVO, and that this prevented him from returning home.[40]
[39] At pg. 64 of annexure A of the Father’s affidavit of 25 July 2017.
[40] At pg. 66 of annexure A of the Father’s affidavit of 25 July 2017.
I am not able to determine whether these events occurred.
Troublingly, the Father also described an incident in October 2016 where, during a meeting with staff from the children’s previous school at Suburb E, he questioned when the children had changed schools.[41] When asked how he knew that the children had changed schools, he stated:[42]
Oct 2016 house is only 3 roads in front of [Suburb E] primary I went 2 wks morn and arvo sitting watching just trying to wave to my kids but never seen them go in or out in that time.
[41] At [108] of the Father’s affidavit of 27 October 2017.
[42] At [108] of the Father’s affidavit of 27 October 2017.
This behaviour is troubling as it potentially placed him in breach of the IDVO, if the Mother brought the children to school and also has the hallmarks of stalking.
The Father questioned the Mother as to whether she thought that the punishment that he received from the Magistrates Court for the assaults upon her in 2014 was fair punishment. The Mother did not think that it was. The Father questioned her as to whether she had ceased his time with the children, in part, as further punishment. She denied that this was the case.
Although not the subject of these proceedings but perhaps consistent with the Father’s conduct in this matter, the Father was more recently charged with damaging property of his brother. He said that the property damage conviction was reached on the basis of “my admission’s alone” and that the police report contained “a lot of lies and perception” and that if the report contained the truth there “would have had more charges against me threaten to kill”.[43] This appeared to be an admission that the Father’s conduct had gone significantly beyond damaging the property of his brother. This conduct appears consistent with the interaction with the Mother and the Father’s belief that people are using the legal system to perpetuate ‘lies’ and incorrect ‘perceptions’.
[43] At pg. 68 of annexure A of the Father’s affidavit of 25 July 2017.
This incident does not provide any comfort that the Father’s behaviour is under control.
Earlier instances of family violence
The Mother deposed to a general description of aggression and control by the Father toward her during the relationship. She described the physical violence as being limited during the relationship, provided that she was compliant with the Father without the need for him to descend into violence.
The Mother deposes that the Father was verbally and emotionally abusive and controlling particularly toward the end of their relationship. She said that he was extremely jealous of her relationship with family and friends and would make derogatory comments about them saying “she’s just a slut you are not going to hang around her and be a slut too” or “why do you want to hang out with a poofter, he is a paedophile and you are not taking my kids near him”.
In respect of the Mother she says that he regularly called her a “cruel, lying, cheating dog cunt” The Mother says this collective behaviour had the effect of isolating her from her friends and family and that, without her support network, her self-esteem plummeted and she became dependent on the Father.
The Mother says that the Father was physically abusive towards the children during their relationship. He would push them, throw objects at them, roughly drag the children from their rooms and leave red welts from smacking them. By 2014 the Mother says that their relationship had seriously deteriorated and her mental health and self-esteem were very low.
The Father asked the Mother how often he belted her during the relationship. She described three occasions, featuring closed fists and kicking and otherwise an unknown number of incidents of pushing by the Father, or bear hugs where he held her tightly and then pushed her away while yelling and screaming at her.
The first occasion of punching or kicking was when B was one and a half to two years old at which point she was punched in the face approximately five times.
The second was at an unidentified occasion when the Mother was punched and kicked when she left to go to her Mother’s place.
The third time was when the Father attempted to take the Mother’s life.
The Mother also described an incident of property damage that involved the Father damaging a door in their home and suspected the Father of slashing the tyres of her car.
The Father recalls an incident in his affidavit where he broke a door in 2014. He says that the door was locked and he needed to use the toilet, and that, after knocking hard on the door, the door ultimately split.[44] The Father stated that the Mother told police that he had kicked the door in, but it was not possible for the Mother to have known this because she had been asleep and around the corner from the door. He denied being responsible for the tyres of the Mother’s car being slashed that same night.
[44] At pg. 79 of annexure A of the Father’s affidavit of 25 July 2017.
The Mother also described a number of non-physical incidents post-separation. On 12 July 2014 the Mother was out with a friend. She received a number of texts from the Father asking where she was. He then referred to the Mother in abusive terms.
The Father described his mental health at this time as follows:[45]
2014 my (july) my mental health took a dive [Ms Pender] cheated on me again I had feelings I’ve never had before, initially I went bush tried/contemplated suicide…
[45] At [53] of the Father’s affidavit of 27 October 2017.
Later, in August 2014, a further incident occurred were the Father abused the Mother by text message:
Does [Mr L] know you’re a cruel lieing cheating dog cunt or you going to wait 12yrs then destroy him?[46]
…
Where was [Mr L] inviting you to stay? Why would I go physco you went out every where with every one for how many yrs you are a CRUEL lieing cheating dog cunt and you think you’re a better person ha ha ha ha[47]
…
Bet your new model boyfriend has nice arms !! Slut[48]
Goin to QLD to have fun with your friends ???? Cruel Lier slut cunt !![49]
Fuck what an ugly hand no wonder 3 mnths out you called it off, 12 yrs cruel cunt[50]
…
Cruel cunt Lier !![51]
…
[46] At pg. 20 of annexure A of the Mother’s affidavit dated 22 February 2018.
[47] At pg. 21 of annexure A of the Mother’s affidavit dated 22 February 2018.
[48] At pg. 22 of annexure A of the Mother’s affidavit dated 22 February 2018.
[49] At pg. 23 of annexure A of the Mother’s affidavit dated 22 February 2018.
[50] At pg. 24 of annexure A of the Mother’s affidavit dated 22 February 2018.
[51] At pg. 33 of annexure A of the Mother’s affidavit dated 22 February 2018.
Mr L’s on his way to help cunt[52]
[52] At pg. 41 of annexure A of the Mother’s affidavit dated 22 February 2018.
The references to Mr L were references to someone the Father thought that the Mother had formed a relationship with. Following the above exchange the Father left the home for a number of days, leaving behind his wallet and telephone. On his return he asked the Mother whether he would be able to stay in the garage and she agreed.
The Father denies that he engaged in controlling or verbally abusive conduct. Of violence against women/domestic violence he said:
“Violence against women is not your right is a view I have had my entire life and detest any form of it, I educate my kid and other’s in the wrongfulness of it, I take a very strong stance against violence against women. IT IS NOT YOUR RIGHT…Why would anyone want to hurt the ones they love? Or the ones closest to them? DV comes in many ways, shapes and forms ad needs to recognised example physical, abusive, deceit, financial. No DV should be tolerated in anyway”[53]
[53] At [16-17]. Father’s Affidavit filed 25 July 2017
His conduct is inconsistent with this sentiment.
For the Father’s part he alleged that the Mother had engaged in family violence towards him during the relationship, stating that she “has displayed anger towards me by slapping or generally throwing things”.[54] I am unable to find that such behaviour occurred.
[54] At pg. 71 of annexure A of the Father’s affidavit of 25 July 2017.
The Father complains the Mother has engaged in financial abuse against him. In particular, he claims that she received full Centrelink payments for the children for a period of time that he had significant care of the children, either at five days per fortnight while he was completing weekend detention, or at seven days per fortnight until August 2016. He alleges that she demanded to receive the full benefit, at $600 per month, or she would take him to court to see what time he would get with his children. The effect of this was that he was trying to care for the children on a substantial basis while only receiving $360 per fortnight via Newstart payments.
The Mother’s evidence was that she advised Centrelink (I am unable to determine when) of the shared care arrangement and was required to make a repayment. By this admission it may be seen that her claims on Centrelink deprived the Father of financial support. She says that the Father, from that point did not receive the benefit because he did not apply for it.
From the circumstances which required the Mother to correct her payment it should be inferred that there was a period of time that the Mother was in receipt of benefits to the detriment of the Father, leaving him in an extremely difficult financial situation. I am unable to resolve whether this was an act of control on the part of the Mother.
Relationships with other siblings
The Father questioned the Mother as to the role of Mr M (his older son) in B’s and C’s lives. The Mother accepts that he is important, and that he has had recent contact with B. She does not presently have a plan for how B and C might continue to interact with Mr M, or Mr M’s baby daughter. The Mother noted that Mr M has her contact details, but has not been making contact with her. Further, when the Mother has visited Canberra, Mr M has been given options for spending time with B and C, but has not taken advantage of those options.
The Mother identifies a practical problem in the children having contact with Mr M, in that it places extra pressure upon them as to what can and cannot be disclosed about the location that they live. At the moment the Father does not know where they live. As children, they are required to be conscious of whether they let information slip that could find its way back to the Father about where they live. Mr M is at present living with the Father.
The Father’s contact with B without the Mother’s knowledge
The Father asserted that since April 2018 he has been in contact with B, without the Mother having any awareness of the contact. While initially he said that this had occurred since November 2017, when challenged as to why there was no reference to it in his affidavit material he asserted that it was because the contact had commenced after his latest affidavit. When it was pointed out to him that his most recent affidavit was at the start of 2018, he changed his evidence to say that his direct contact with B had commenced in April 2018. He said that this contact occurred at a frequency of about every two days and, at its longest, had been for a period of eight hours when B was home alone. He was, unsurprisingly, asked about how the contact was effected. Despite being directed to answer the question, and being advised of a potential consequence of being held in contempt of court, and being advised that his failure to answer questions may undermine his evidence as a whole, he declined to describe how he was contacting B. The justification that was put forward was that to disclose this would be against B’s interests. It may be surmised that the inevitable consequence of discovering how the contact was taking place would be that the Mother would end the contact.
In her affidavit filed 1 June 2018 the Mother said that B told her he had contact with his Father via Mr M’s Facebook messenger on 23 November 2017. She said that B told her that while speaking to Mr M on Facebook messenger B told him to ‘tell Dad I love him.” B said that Mr M then put the Father on the phone and they spoke for approximately 30 minutes. The Mother says that when she checked B’s Facebook Messenger records it showed two calls placed to Mr M, on that day one 30 minutes in duration and the another 90 minutes duration.
The Facebook messenger records as deposed to by the Mother align with the Father’s initial evidence that he made contact with B in November 2017. I find that B had contact with Mr M on two occasion on 23 November 2018.
Given that Mr M currently resides with the Father there is opportunity for the Father to make contact with B if B has contact with Mr M. The Father has, it seems, had contact beyond those occasions the Mother has identified. However I am unable to determine the method or date and duration of the contact between the Father and B.
It may be expected that this contact may undermine the Mother’s sense of security, and impact her capacity to care for the children, noting that the Family Report writer highlighted the Mother’s experiences of family violence as having previously negatively impacted the Mother’s capacity in this regard.
The parties’ alcohol and other drug use
The Father alleged a history of substance abuse on the part of the Mother. He says that the Mother binge drinks, affecting her capacity to care for the children.[55] The Father claims that the Mother would regularly drink heavily, as well as use cannabis, speed and Ice.[56]
[55] At pg. 23 of annexure A of the Father’s affidavit of 25 July 2017.
[56] At pg. 23 of annexure A of the Father’s affidavit of 25 July 2017.
The Father stated in his affidavit that the parties would both use cannabis “every day”, as well as speed and ecstasy, prior to B’s birth, with the Mother stopping just prior to B’s birth. The Father stated that the Mother resumed using cannabis up until around the time of C’s birth, where she stopped for the period immediately before and after the birth.[57] The Father stated that he resumed using cannabis around the time B was three/four years old, and continued using drugs up until around C’s third birthday, whereupon he obtained his truck license and ceased using drugs.[58]
[57] At pg. 43 of annexure A of the Father’s affidavit of 25 July 2017.
[58] At pg. 43 of annexure A of the Father’s affidavit of 25 July 2017.
The Father alleged to the Family Report writer that the Mother used cannabis and “a little speed (methamphetamine)” during the relationship, and that she commenced using “Ice” after separation.[59] The Father says that both he and the Mother used cannabis and methamphetamine during the relationship, over a period of 13 years.[60] The Father stated that they were, at times, “using every day”, and that at other times their use was more sporadic. The Mother stated that she does not use illicit drugs, and only drinks alcohol occasionally. She stated that when she first met the Father, she used small amounts of cannabis occasionally, but ceased to do so upon becoming pregnant with B. The Mother stated that she resumed using small amounts of cannabis for a period in 2008, when her father passed away.
[59] At [31] of the Family Report of Ms G dated 24 October 2017.
[60] At [53] of the Family Report of Ms G dated 24 October 2017.
The Father did, however, state that the Mother has good parenting qualities, particularly when provided with a good support network. He claimed that he had comprised a major part of this support network in the past.[61]
[61] At pg. 53 of annexure A of the Father’s affidavit of 25 July 2017.
The Mother alleged to the Family Report writer that the Father used cannabis daily for the entirety of the relationship, and that his alcohol consumption had increased to daily use from 2010. She alleged that the Father, in the presence of the children, binge drinks from time to time and uses cannabis.[62] The Father stated that he ceased using drugs entirely in 2013, after acquiring his truck license, as his employer had a zero-tolerance policy on drug use. The Father stated that he has not used any drugs since his incarceration in March 2017.[63]
[62] At [23] of the Family Report of Ms G dated 24 October 2017.
[63] At [53] of the Family Report of Ms G dated 24 October 2017.
From each of the parties’ accounts it may be taken that illicit drugs were used by each of them during the relationship. There is a lack of any current evidence as to drug consumption and I am unable to determine that drug use remains an issue for either of the parties.
Family Report
A family report was prepared for the trial of this matter. At the time of preparation the Father was incarcerated at the D Centre in the Australian Capital Territory. The Father was interviewed by the report writer by telephone as a result of his incarceration. He was not seen with the children.
Violence and Abuse
The Mother stated to the Family Report writer that during the relationship the Father was controlling, jealous, and would regularly call her derogatory names with the children present, such as a “cruel, lying, cheating, dog cunt”.[64] She stated that, following their separation in July 2014, the Father made threats to harm her. She stated that the Father did not make threats during the relationship, as his controlling behaviour meant that “he didn’t need to tell me” what was expected.[65] She appeared distressed at times during the interview, particularly when discussing the details of the Father’s alleged abuse of her and the children.[66]
[64] At [65] of the Family Report of Ms G dated 24 October 2017.
[65] At [66] of the Family Report of Ms G dated 24 October 2017.
[66] At [18] of the Family Report of Ms G dated 24 October 2017.
In addition to the attempt to kill, the Mother said that, prior to that occasion, the Father had punched her once, and kicked her once, on separate occasions. She said that the Father’s abuse more commonly took the form of pushing, squeezing and throwing things.[67] She stated that the Father’s violence escalated in the last six to twelve months of the relationship, and that he became more violent as she began to make more of her own decisions.
[67] At [68] of the Family Report of Ms G dated 24 October 2017.
In relation to the assaults as described by the Mother, particularly the incident in September 2014, the Father said that it was unlikely to have affected the children because they were at school at the time of the assault. He however accepted that the children would have been aware of the aftermath and the Mother’s injuries. The Father reported that he had discussed the incident with the children, and that he had told them that he had tried to kill the Mother, saying “I told them it was wrong and it should not have happened and I was very sorry for it”.[68] He further elaborated on the incident, saying “I was on the way to commit suicide myself and these intentions turn towards Ms Pender (the Mother) and then kicked back to myself”.[69] He said that, following the assault, he drove away and attempted suicide by crashing his car, before being arrested and incarcerated for the assault.
[68] At [69] of the Family Report of Ms G dated 24 October 2017.
[69] At [70] of the Family Report of Ms G dated 24 October 2017.
Of the Father’s conduct in September 2014 and subsequent rationalisation of this and subsequent events, the Family Report writer said
“Mr [Percival’s] assault [of the Mother] appears motivated by an extension of his controlling behaviours towards her and the children. That is, in failing to convince Ms Pender to reconcile by other means, Mr [Percival] resorted to extreme physical violence.”
And
“His Affidavit material and his response in the interview, suggests a high level of anger and contains a tirade of accusations that lack logical and rational thinking and appear focused on minimising his own actions, and blaming Ms [Pender] and others for what he perceives as a lack of fairness.”
“Mr [Percival’s] comments…show a lack of insight into how his actions have affected the emotional well-being and safety of the children and their mother. His willingness to tell his children that he intended to kill their mother is a primary example…[his] violent and abusive actions towards Ms [Pender] and the children indicate that his parenting capacity is poor.”
Of the future co-parenting relationship and the Father’s future parenting capacity the Family Report writer said:
“His lack of insight into his actions suggests there is a significant future risk of violence by Mr [Percival] towards Ms [Pender] and the children.
I accept that the Family Report writer’s assessment of the Father’s attitude toward his attempt to kill the Mother and consequential lack of insight. He has on multiple occasions in this Court and through written material presented as angry and focused on his perceived unfair treatment at the hands of other people and in particular the Mother.
The Father did not consider himself to have physically abused the children. He said that when he disciplined the children, for example C, he would “sit her down and talk to her and explain the consequences; the second time privileges would be removed; the third time would be a smack on the hand”.[70] The Father denied the existence of bruises, marks or welts on C, and he specifically denied ripping C from the couch and kicking her.
[70] At [59] of the Family Report of Ms G dated 24 October 2017.
The Father stated that he was a victim of financial abuse at the hands of the Mother. He said that the Mother informed Centrelink that she had 100 per cent care of the children, and, as their shared care arrangement was informal, Centrelink did not pay him any benefits.[71]
[71] At [56] of the Family Report of Ms G dated 24 October 2017.
At the time of the interview, the Father stated that he intends to have the Mother charged with “fraud, financial abuse, emotional abuse and misuse of law” once released from prison. The Father considered that the children being removed from his life was “emotional abuse of me and the children”.[72]
[72] At [64] of the Family Report of Ms G dated 24 October 2017.
Mental Health of the Parties
The Mother acknowledged to the Family Report writer that she has suffered from depression during the relationship, but stated that she is currently in good mental health.[73] The Mother considered her anxiety and depression to be a result of her relationship with the Father. The Mother reported that she began having panic attacks in 2014, and, on one occasion, cut her arm prior to cancelling the parties’ wedding in 2014.[74] The Mother stated that the frequency of her panic attacks has deteriorated, and now only occurs occasionally.[75]
[73] At [24] of the Family Report of Ms G dated 24 October 2017.
[74] At [38] of the Family Report of Ms G dated 24 October 2017.
[75] At [38] of the Family Report of Ms G dated 24 October 2017.
Her evidence in the proceedings was that she has been on anti-depressant medication since 2014. She accepts that she was on and off medication before that, commencing sometime before her relationship with the Father.
She thought that the majority of her mental health issues flowed from the Father’s abusive violence. She denies that she has ongoing mental health issues as she is currently medicated, and the knowledge that the Father does not know where she and the children live relieves the fear and anxiety that would otherwise be continuing. She says that she suffers from a lot less anxiety due to the fact that she is no longer in the same city as the Father. She says that these factors address the majority of her mental health issues.
The Father stated to the report writer that his mental health was generally good throughout the relationship, but had deteriorated following separation. He considered his mental health to currently be good.[76] He stated that in 2014 he experienced “ups and downs but my mental health was fine”.[77] He considered his mental health to have deteriorated following his separation from the Mother due to the “lies” she had spoken about him, stating “lies bring sorrow and destruction”.[78]
[76] At [25] of the Family Report of Ms G dated 24 October 2017.
[77] At [57] of the Family Report of Ms G dated 24 October 2017.
[78] At [57] of the Family Report of Ms G dated 24 October 2017.
However, during the proceedings, in characterising his own mental health, the Father stated “my mental health at the moment is shit”.[79] He attributed this to not being able to speak to his children, the manipulation and lies he had been subjected to by the Mother, and the absence of any support networks.
[79] At pg. 39 of annexure A of the Father’s affidavit of 25 July 2017.
In his closing submissions the Father characterised his anger as being a mental health issue.
In respect of the Father’s presentation, the Family Report writer observed:
“Mr [Percival’s] actions suggest a high degree of rage or extreme emotional instability with a propensity to act irrationally and unpredictably.”
Whether this rage arises as a result of mental health issues was not a conclusion drawn by the Family Report writer. However of the Father’s presentation in respect of his irrational and unpredictable conduct the Family Report writer said
“His lack of insight into the effects of his behaviour on others, suggests that Mr [Percival] is unlikely to change his violent behaviour and negative attitude towards Ms [Pender] and others, without a comprehensive psychiatric assessment and appropriate recommended interventions.”
I accept that the Mother suffered depression during her relationship and after their separation. I accept that she is managing her mental health with prescribed medication and that a good portion of her anxiety is attributable to any potential contact with the Father – in particular since the incident in September 2014. I accept that she has capacity to parent the children and remains a positive and stable influence in each child’s life.
I accept that the Father has in the past and continues to present as angry and has difficultly controlling his behaviour that consequentially increases the risk of aggressive and violent behaviour. On the Father’s own admission he has told the Court that his mental health was not stable at the time of the incident. He continues to exhibit this conduct as reported by the Family Report writer. I cannot conclude that, notwithstanding a brief attempt in 2013 and 2014 to address his mental health, the Father has made any significant attempt to address his mental health such that it would lead me to conclude that he is in control of his behaviour and therefore no longer poses a risk to the children or the Mother.
Parental relationships
The Family Report writer assessed the nature of the relationship between the parents and B and C.
The Mother stated that B “doesn’t like to talk about” the alleged violence perpetrated by the Father against the Mother and the children, and that, previously, the children were “all over the place” emotionally.[80] However, she believes that the children are improving, and are now “more stable emotionally”.[81]
[80] At [41] of the Family Report of Ms G dated 24 October 2017.
[81] At [41] of the Family Report of Ms G dated 24 October 2017.
The Mother stated that, prior to ceasing spending time with the Father, C would not talk to her for approximately an hour after returning from the Father’s care, and that C would make comments such as “you broke Daddy’s heart”.[82] The Mother stated that the Father told the children about his attempt to kill her, whereas she explained her injuries at the time as having resulted from a car accident. The Mother reported that C stated, “Dad tried to kill you but that was a long time ago and we all have to move on now”.[83] The Mother stated that she believes this is indicative of the Father attempting to influence C’s views.
[82] At [40] of the Family Report of Ms G dated 24 October 2017.
[83] At [40] of the Family Report of Ms G dated 24 October 2017.
The Mother has sought to shield and protect the children from the consequences of the Father’s family violence. The Father’s exposure of the children, by his discussion of his attempt to kill the Mother, as reported by the children, is likely to be detrimental to them.
The Family Report writer however also noted the fundamentally positive and supportive relationship between the children and the Mother, demonstrated during the observations. The Family Report writer believed that the children and the Mother worked together in a cohesive and collaborative manner.[84]
[84] At [108] of the Family Report of Ms G dated 24 October 2017.
The Family Report writer described the relationship between the Mother and the children in the following manner:[85]
“The children appear to have an ambivalent relationship with their mother. While they perceive her as providing more safety and security than their father, it seems that the negative effects on Ms [Pender] of experiencing family violence may have caused her to be distracted and emotionally unavailable at times to the children. [B] appears aware of the emotional toll on his mother and the anxiety and depression she has experienced. It seems that the alleged exposure to family violence between the parents has interfered with the children developing stability in their primary relationships.”
[85] At [101] of the Family Report of Ms G dated 24 October 2017.
The Father described his relationship with the children as “close, good, communicative, loving, and open”.[86] He stated that the children are “open to the point they can tell me anything”,[87] and said, as an example, that should B be bullied at school, his response would be to say “I am open and willing and able to talk. I tell them [the children] I’m their Dad and I can fix it and if I can’t I will find someone who can”.[88] He considered his strengths as a parent to be his “foresight around their [the children’s] development, such as, finding options, and (supporting) their education”, and that he said “I call myself a big kid, I’m their friend” and “I enjoy doing the same things they do, looking out for their emotional and physical well-being”.[89] When asked in what aspects he could improve his parenting, the Father replied it would be in relation to disciplining the children, stating that he “started on a journey of removing the physical side of discipline”.[90]
[86] At [60] of the Family Report of Ms G dated 24 October 2017.
[87] At [60] of the Family Report of Ms G dated 24 October 2017.
[88] At [60] of the Family Report of Ms G dated 24 October 2017.
[89] At [60] of the Family Report of Ms G dated 24 October 2017.
[90] At [61] of the Family Report of Ms G dated 24 October 2017.
In his other evidence he described the activities he undertakes with the children, including “bike riding, fishing, friends, gardening, building, learning (school), sports, community.”[91]
[91] At pg. 38 of annexure A of the Father’s affidavit of 25 July 2017.
In assessing the children’s relationship with their Father (notably without a direct observation of the children with the Father), the Family Report writer said that B appears to mistrust the Father, and wishes to maintain a physical and emotional distance from him.[92] The Family Report writer considered that C, thanks to her younger age, holds a limited understanding of the Father’s violence towards the Mother, and has likely been influenced by the Father’s minimisation of the assault. C was, however, able to articulate her dislike and fear of the Father’s alleged violent behaviour towards herself.[93]
[92] At [102] of the Family Report of Ms G dated 24 October 2017.
[93] At [102] of the Family Report of Ms G dated 24 October 2017.
Relationship between the parties
At the time of the interview, the parties had no communication with one another. The Mother was fearful of any contact between herself and the children with the Father, due to his assault in 2014.
The Family Report writer considered the Father’s comments to indicate that he held a different view in relation to the assault, with him viewing the assault as less severe, and minimising the impacts upon the Mother and the children. The Father considered the Mother to be engaging in “character assassination” of him, and of manipulating the Court “to gain full control of access to the children and parenting rights”.[94]
[94] At [72] of the Family Report of Ms G dated 24 October 2017.
The child C’s views
During the interview, C presented as cheerful and articulate. When asked why she had not spent any time with the Father, she said “because Dad tried to murder Mum. I didn’t see it because it was at night. I did hear Mum’s screams and I pulled the blanket over my head and hid under my blanket”.[95] C stated that her parents did not usually argue, as the Father lives in the garage and only comes into the house to shower and change. C stated that she does not know where her Father is currently, and that she was not allowed to see him “because Dad tried to murder Mum”.[96] C said that she would like to see the Father, but that she can’t because they (the Mother and C’s brother, B) were moving. She stated that she “missed” the Father,[97] that when she had nightmares “Dad would let us sleep on the couch with him”.[98]
[95] At [75] of the Family Report of Ms G dated 24 October 2017.
[96] At [76] of the Family Report of Ms G dated 24 October 2017.
[97] At [77] of the Family Report of Ms G dated 24 October 2017.
[98] At [78] of the Family Report of Ms G dated 24 October 2017.
When asked about anything that caused her to feel sad, worried or frightened, C said that “I don’t like doing home readers with Dad because he would grab the back of my head and push it down on the ground. He did it most nights, that’s why I liked to hide my home reader but he would always find it”.[99] C said that she feels “calm all the time” when spending time with the Father, except for when she “feels a little bit said when Dad grabs the back of my head and bangs it on the ground”.[100]
[99] At [79] of the Family Report of Ms G dated 24 October 2017.
[100] At [80] of the Family Report of Ms G dated 24 October 2017.
In relation to the Mother, C said that she feels calm, but that if she feels sad, worried or frightened, she prefers to talk to “[B] or Daddy because he gives you warm and cuddly hugs”.[101]
[101] At [82] of the Family Report of Ms G dated 24 October 2017.
On the basis of this assessment it appears that the Father’s violent behaviour is accepted, by C at least, as a normal part of her relationship with her Father. Further she still views her Father as a safe figure in her life seeking comfort and reassurance from him. The normalisation of violent behaviour should be seen, in itself, as an adverse impact effected by exposure to violence. Without determining it to be the case in this instance, it raises questions as to what expectations C might have in her future conduct of relationships, including what conduct against her that she may unreasonably accept as both normal and acceptable. Similarly, and again without forming a conclusion in this instance, C’s acceptance of her Father as a safe figure, when he is not, bodes ill for her relationships as she moves toward adulthood.
The child B’s views
B presented quieter and more subdued than his sister. He reported that it had been almost a year since he had spent time with the Father, and that he does not spend time with the Father “because he would harm us and he would get extremely angry for no reason. He would hurt us, yell at us and scare us”.[102] B said that should he or C behave inappropriately, the Father “would yell at us extremely loud, which was intimidating and scary, but usually C got the really, really bad stuff”.[103] B stated that he was “constantly scared of making a mistake because I would get yelled at”.[104]
[102] At [89] of the Family Report of Ms G dated 24 October 2017.
[103] At [89] of the Family Report of Ms G dated 24 October 2017.
[104] At [91] of the Family Report of Ms G dated 24 October 2017.
When asked what he enjoyed about spending time with his Father, B replied “I’m not sure… all my Lego was with him and bikes and scooter… we could go fishing. We could walk to the shops and park nearby, and to his friend’s house”.[105] B stated that he feels “excited and happy” when he spent time with his Father and everything was “going right”.[106]
[105] At [90] of the Family Report of Ms G dated 24 October 2017.
[106] At [92] of the Family Report of Ms G dated 24 October 2017.
When asked about anything that makes him sad, worried or frightened when spending time with the Mother, B stated “not really”, but that something he was scared of in both houses was that he seemed to “hallucinate regularly, more at Mum’s”.[107] The Family Report writer linked B’s hallucinations to him “experiencing heightened anxiety”.[108] B stated that he preferred to talk to “mum but no one else” about things that frighten him, and that if he or C were continually naughty the Father would get extremely angry and lose control.[109] B stated that “Dad would get the belt out” and that on one occasion the Father had used the belt to smack him.
[107] At [93] of the Family Report of Ms G dated 24 October 2017.
[108] At [119] of the Family Report of Ms G dated 24 October 2017.
[109] At [95] of the Family Report of Ms G dated 24 October 2017.
Evaluation
The Family Report writer considered the issue of violence perpetrated by the Father as against the Mother to be central to determining the parenting arrangements most suitable for the children. The Father’s assault upon the Mother demonstrated “high-risk family violence that was potentially lethal”.[110] The Family Report writer considered that the Father’s acknowledged intention to end his own life became directed towards the Mother, where he, by his own admission, “left her for dead”.[111] These actions, she thought, are demonstrative of a high degree of rage or extreme emotional instability, with a propensity to act irrationally and unpredictably.
[110] At [110] of the Family Report of Ms G dated 24 October 2017.
[111] At [110] of the Family Report of Ms G dated 24 October 2017.
The Family Report writer considered the Father’s assault upon the Mother to stem from his controlling behaviours towards both her and the children. That is, in failing to convince the Mother to reconcile by other means, the Father resorted to extreme physical violence.[112] The Family Report writer considered that the Father’s affidavit material and his responses in the interview to suggest a high level of anger, containing a tirade of accusations that lack logical or rational thinking, and that appear focused on minimising his own actions, and instead blaming the Mother and others.[113]
[112] At [111] of the Family Report of Ms G dated 24 October 2017.
[113] At [111] of the Family Report of Ms G dated 24 October 2017.
This controlling behaviour is manifested, said the Family Report writer, in the Father being physically and verbally abusive towards the Mother and the children, such as threatening harm with a belt, and pushing C’s head into the floor. Further, the children are aware of the Father’s previous intention to kill the Mother.[114]
[114] At [112] of the Family Report of Ms G dated 24 October 2017.
The Family Report writer considered the Father to have a distorted perception of his relationships with others, perceiving his relationships with the children to be close and positive. B stated that he had to hide his feelings from the Father, whilst C stated that she hid her home readers from the Father lest she be physically punished.[115] The Father’s comments throughout the interview showed a lack of insight into how his actions affect the emotional well-being and safety of the children and the Mother. This may be seen, for example, in telling the children that he intended to kill the Mother.[116]
[115] At [113] of the Family Report of Ms G dated 24 October 2017.
[116] At [115] of the Family Report of Ms G dated 24 October 2017.
Ultimately, the Family Report writer considered the Father’s violent and abusive actions to indicate that his parenting capacity is poor.[117] The Family Report writer considered the Father’s distorted perceptions and lack of empathy to pose a significant future risk of violence towards the Mother and the children.[118]
[117] At [116] of the Family Report of Ms G dated 24 October 2017.
[118] At [118] of the Family Report of Ms G dated 24 October 2017.
In relation to the Mother, the Family Reporter considered her effectiveness as a parent to have fluctuated over time. However, the Mother was candid in reporting her difficulties. Many of the children’s behaviours that the Mother appeared to struggle dealing with stemmed, in the Family Report writer’s opinion, from their exposure to family violence. The Family Report writer also noted that the children appeared unaware of the fact that the Father had been incarcerated for the past seven months, which she thought was a credit to the Mother’s ability to protect the children’s physical and emotional wellbeing.[119]
[119] At [120] of the Family Report of Ms G dated 24 October 2017.
The Family Report writer stated that any requirement on the part of the Mother to maintain contact with the Father, would negatively impact the Mother’s capacity to care for the children.[120] Should the Mother continue feeling unsafe, she would continue to experience high levels of anxiety and ongoing trauma. C’s statements, about feeling that the Mother was not someone she would go to when she felt sad, worried or frightened, likely reflected the fact that the Mother’s experiences of family violence had led her to become emotionally unavailable and distant. However, the Family Report writer stated that the Mother connected well with the children, and provided them with a supportive environment, being cognisant of their needs.[121] The Family Report writer believed that, in order for the Mother to be an effective parent, she required a sense of safety to engage in aspects of everyday life.[122]
[120] At [121] of the Family Report of Ms G dated 24 October 2017.
[121] At [121] of the Family Report of Ms G dated 24 October 2017.
[122] At [124] of the Family Report of Ms G dated 24 October 2017.
The Family Report writer found that the children showed signs of being traumatised by their experiences with the Father.[123] The Family Report writer found B to be fearful of spending time with the Father, and as exhibiting behaviours, such as acting out aggressively and having difficulties at school, common to children who have witnessed or been exposed to family violence.
[123] At [119] of the Family Report of Ms G dated 24 October 2017.
The Family Report writer stated that whilst the best interests of children are served by having a meaningful relationship with each of their parents, in this particular case, the need to protect children from physical or psychological harm, from being subjected to or exposed to, abuse, neglect or family violence, is the paramount consideration. Should the potential lethality of the Father’s violence be accepted, the Family Report writer considered this to place even further weight upon the consideration of the need to protect the children from harm.[124] The Family Report writer recommended that the Mother should have primary care of the children and that the Father should have no contact with the children. The Father’s abusive parenting, his violence towards the Mother, and his lack of insight into his own violent behaviours, suggest that the Father is unlikely to change his behaviour and negative attitudes.[125]
[124] At [123] of the Family Report of Ms G dated 24 October 2017.
[125] At [123] of the Family Report of Ms G dated 24 October 2017.
In relation to written or telecommunication between the children and the Father, the Family Report writer noted that this could allow them to maintain some relationship with the Father. However, given the current circumstances, the Family Report writer stated that any communication between the Father and the children would require the children to keep their location secret, which was an impossible situation to put them in. Therefore, the Family Report writer suggested that the children have no contact with the Father by any means.[126]
[126] At [126] of the Family Report of Ms G dated 24 October 2017.
Discussion
In determining what orders to make in relation to B and C, s 60CA of the Family Law Act 1979 (the Act) requires that the best interests be the paramount consideration. Determining best interests is reliant upon the considerations that are set out at s 60CC of the Act.
The most significant of the considerations in this case are the primary considerations being:
Section 60CC(2)
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act further directs at s 60CC(2A):
“In applying the considerations set out in subsection (2), the court is give greater weight to the consideration set out in paragraph (2)(b).”
The first of the primary considerations involves a consideration of “the benefit to the child of having a meaningful relationship with both of the child’s parents”. It is important to observe that meaningful relationship is not the focus of the consideration. Rather consideration is directed to the benefit derived by the child from having a meaningful relationship with the parent in question. The benefit to the child is the focus of the consideration.
Determining the benefit to the child is not a matter that can be considered in isolation from, but rather is interrelated with, the other considerations set out in s 60CC. For example s 60CC(3)(2)(b)(i) is directed to a consideration of the relationship of the child with his or her parents. The nature of that relationship is a matter that bears upon the benefits potentially derived by the child of a having meaningful relationship with his or her parent.
In this case there is significant interplay between the first of the primary considerations and the second, being “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” Exposure to family violence may, and in this case does, mean that the benefits of a meaningful relationship are significantly reduced.
The Father has engaged in family violence towards the Mother that approached the point of lethality. His stated intention was to kill her. He has told the children this. Whenever they interact with him it may be anticipated that it remains in the back of their minds that he is the man who tried to kill their Mother. It was certainly a matter that was prominent in the children’s thinking when interviewed by the Family Report writer.
Although the children by their own description have enjoyed spending time with their Father in the past when he is not angry, the reality of their experience of him is that of a volatile parent who has engaged in some violence towards them. Despite the children’s perceived positive experience of the Father the Family Report writer assessed they have shown signs of “being traumatised by their experiences of [the Father].”
The Father is strongly committed to having a relationship with the children. He believes that he has a ‘close and positive relationship’ with them. Of the Father’s capacity to have a positive future relationship with the children the Family Report writer said:
“While [the Father] explains a desire to spend time with the children and care for them, his actions demonstrate an inability to consider and prioritise the needs of the children. While [the Father] states that he wishes to be “a role model for the children”, his actions seem to contradict his intended goal”.
In respect of any benefits derived by the children from an ongoing relationship with the Father, the historical family violence and threat of continuing violence reveal that there are few, if any, net benefits to the children from a relationship with the Father.
Moving to a direct consideration of the second of the primary considerations, as referred to earlier it is observed that s 60CC(2A) demands greater weight be placed upon this second rather than the first of the primary considerations.
Section 4AB of the Act defines family violence as follows:
for the purposes of this act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB of the Act defines exposure to family violence as follows:
for the purposes of this act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
The Father has engaged in violent and threatening behaviour towards the Mother more than sufficient to cause her to be fearful. As noted above he assaulted her with the intention to kill her. The Father has told the children that he tried to kill the Mother. They have been exposed to his conduct. They have also been exposed to the consequences and effects of his conduct. They have seen the Mother in her injured state after the Father attacked her. While the Mother told them it was due to a car accident, they must realise, by virtue of the Father telling them that he tried to kill the Mother, that it was a result of his behaviour and not the result of a car accident. A further example, as noted by the Family Report writer, is the Mother’s limitation to make herself available to the children as a consequence of her having been subjected to that family violence. While ever this remains the case the children will continue to experience the effects of what the Father did to the Mother.
The Mother continues to fear the Father. Whether or not her fear is evident to the children (noting that she has made significant attempts to shield the children from family violence by telling the children that she was injured in a car crash rather than assaulted by the Father) it may be expected that such fear has an ongoing impact upon her, and likely forms an ongoing impost upon her personal resources, resources that would otherwise be available for the care of the children.
There is also good reason to believe that there is an ongoing risk of violence either towards the Mother or towards the children. In the Family Report writer’s opinion as noted above “there is a significant future risk of violence by Mr Percival towards Ms Pender and the children”.The Father’s conduct during the proceedings further belied his inability to control his behaviour. He was aggressive in his commentary of the Mother and gave a strong impression he was barely in control or not in control of his anger. He accepted that he had difficulties with his anger which he alleged constituted a mental health problem. Combining this with his history of extreme violence visited upon the Mother, and lesser violence upon the children, there remains a risk connected to a further loss of control by the Father. Given that a consequence of this loss of control, in the past, has been a serious assault upon the Mother with an intention to kill her, even a small risk of repetition is too grave a risk to run.
In the circumstances of this case the combined effect of the primary considerations point to the Father having no time with the children because of the lack of benefit to the children spending time with him and an evident unacceptable risk of harm to the children. No other s 60CC consideration is capable of outweighing the evident risk to the children of spending time with the Father.
While a benefit to the children could be seen in ongoing contact with Mr M, no provision for such should be made in these orders. Previous contact with Mr M has resulted in clandestine contact with the Father. The risks associated with that, and the potential pressure on the children to reveal where they live mean that no provision ought to be made for Mr M.
By the Father’s own admission he says that the Mother has ‘good parenting qualities’ despite being qualified by him to say that she needs a support network (i.e. him). I accept the Family Report writer’s assessment of the Mother’s parenting capacity that although her parenting capacity at times has been affected as a result of the violence experienced she is an effective parent with satisfactory parenting capacity.
I find that the Mother displays the capacity to physically and emotionally care for the children, although this capacity has been eroded by the conduct of the Father towards her.
Conclusion
Orders will be made that provide for the Mother to have sole parental responsibility and for the children to spend no time with the Father, along with injunctions to support the safety of the Mother and children from the Father.
These injunctions will follow the scheme proposed by the Mother. The gravity of the risk, the clandestine contact the Father has had with B, the involvement of third parties in facilitating contact with the Father and the grave pressure these place on the Mother justify such a broad ranging scheme of Orders.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 May 2019.
Associate:
Date: 14 May 2019
[i]
1.The Father relied upon the following:
a)Affidavit of Mr Percival, sworn 2 February 2017
b)Affidavit of Mr Percival, sworn 25 July 2017
c)Response to Amended Initiating Application, filed 27 October 2017
d)Affidavit of Mr Percival, sworn 27 October 2017
e)Affidavit of Mr Percival, sworn 15 January 2018
2.The Mother relied upon the following:
a)Further Amended Initiating Application, filed 27 September 2017
b)Affidavit of Ms Pender, sworn 21 February 2018
c)Affidavit of Ms N, sworn 21 February 2018
d)Affidavit of Ms O Pender, sworn 21 February 2018
e)Affidavit of Ms Pender, sworn on 1 June 2018
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Jurisdiction
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Standing
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