Perceval and Anor and Perry

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERCEVAL & ANOR & PERRY

[2014] FCCA 911

Catchwords:
FAMILY LAW – Parenting – application by father and paternal grandmother to spend time with father's children – family violence – father convicted of sexually assaulting and indecently assaulting mother – father and members of father’s family maintain father's innocence – mother's evidence unchallenged and uncontradicted – effect on children if told the father gaoled on mother's lies – effect on mother, and through her on the children, of order that children spend time or communicate with father and members of paternal family – effect on children of not seeing or communicating with father and paternal family.

Legislation:

Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB

Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296
MRR & GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424

First Applicant:

MS PERCEVAL

Second Applicant:

MR PERCEVAL

Respondent:

MS PERRY

File Number:

PAC 3779 of 2010

Judgment of:

Judge Halligan

Hearing dates:

1, 2, 3, 11 and 12 July 2013, 3 April 2014

Date of Last Submission:

3 April 2014

Delivered at:

Parramatta

Delivered on:

15 May 2014

REPRESENTATION

Counsel for the Applicants:

Both In Person

Counsel for the Respondent:

Ms Lawson

Solicitors for the Respondent:

Horizons Community Legal Centre

Counsel for the Independent Children's Lawyer:

Mr Weaver

Solicitors for the Independent Children's Lawyer:

Mahony Family Lawyers

ORDERS

All prior parenting orders in relation to X born on

(omitted) 2002 and Y born on (omitted) 2006 (the children) are discharged.
Ms Perry (the mother) shall have sole parental responsibility for the children.
The children shall live with the mother.
The children shall spend no time with Mr Perceval (the father) or Ms Perceval (the paternal grandmother) and shall not communicate with the father or the paternal grandmother.
Pursuant to section 68B, Family Law Act 1975, the father and the paternal grandmother are each restrained from:
(a)communicating with or approaching, or attempting to communicate with or approach, the mother or either of the children;
(b)attending or attempting to attend the place of residence or the place of work of the mother, or being within 1 kilometre of the place of residence or place of work of the mother; and
(c)attending or attempting to attend any school or before or after school care centre or any other service attended by either of the children, or being within 1 kilometre of any such school or before or after school care centre or other service.
The preceding order is an injunction under section 68B, Family Law Act 1975, for the personal protection of the mother to which the power of arrest without warrant attaches under section 68C, Family Law Act 1975, in the event that a police officer believes, on reasonable grounds, that the father or the paternal grandmother has breached the injunction by-
(a)causing, or threatening to cause, bodily harm to the mother; or
(b)harassing, molesting or stalking the mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3779 of 2010

MS PERCEVAL

First Applicant

MR PERCEVAL

Second Applicant

And

MS PERRY

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings under the Family Law Act 1975 concerning two children, X aged eleven and Y aged eight. The applicants are the children’s father and paternal grandmother. The respondent is their mother.
The applicants, who conducted the proceeding without legal representation, sought orders that the children live with the mother and spend time with the paternal grandparents, the children’s two paternal aunts, the father and three other named members of the father's extended family-
a)for two hours every second weekend supervised by a “family counsellor” for three months;
b)then for two hours every second weekend unsupervised for three months;
c)then for three hours unsupervised every weekend for three months;
d)then for five hours unsupervised every weekend for three months;
e)then after twelve months “when the children feel comfortable with the paternal family and their father”, each alternate weekend from 5.00 pm Friday to 4.00 pm Sunday, for half of all school holidays, on the children’s birthdays for three hours if falling on a week day or five hours if falling on a weekend, plus unspecified time “on family birthday dinners, baptisms and special occasions”.
The applicants also sought that the children spend time with the father on the Father's Day weekend and “on the day of his birthday and/or birthday dinner” for four hours if falling on a week day or for seven hours if falling on a weekend, public holiday or school holiday.
The applicants also sought that the children have telephone communication with the paternal family each Monday commencing

8 July 2014, and with the father each Saturday and Sunday commencing 7 July 2014.
The applicants proposed changeover arrangements that included a restraint of the mother being present at changeovers, and sought orders to permit the father and members of his family attending the children’s schools for events that parents may attend with a restraint on the mother being present when the father is at the children’s schools or “outside curriculum activities”.
The applicants sought other incidental orders in relation to non-denigration, exchange of information about the children’s health and education, and placing conditions on each parent’s ability to take the children away from “their normal place of residence” for more than 48 hours.
Although not dealt with in their amended application, the applicants agreed that the mother should have sole parental responsibility for the children.
The mother sought orders that were to similar effect to those proposed by the Independent Children's Lawyer.
The mother sought and the Independent Children's Lawyer proposed that the mother have sole parental responsibility for the children and that the children live with the mother. The mother sought orders that the father and the paternal grandmother spend no time with the children. The Independent Children's Lawyer proposed that the children “have no contact with” the father or the paternal grandmother. It was clearly the position of both the mother and the Independent Children's Lawyer that the father and the paternal grandmother should not spend any time or communicate with the children.
The mother sought an injunction restraining both the father and the paternal grandmother from contacting, approaching or coming into contact with the mother or the children in any way, and sought that the order to this effect be expressed to be for the personal protection of the mother and the children to which the power of arrest without warrant attached pursuant to s.68C, Family Law Act 1975.
The Independent Children's Lawyer sought injunctions to restrain the father from:
a)communicating with or approaching, or attempting to communicate with or approach, the mother and the children;
b)attending or attempting to attend the place of residence or place of work of the mother or being within one kilometre of the place of residence or place of work of the mother; and
c)attending or attempting to attend any school, preschool or day care centre or any other service attended by the children, or being within one kilometre of any such place.
The Independent Children's Lawyer sought that these injunctive orders be expressed to be for the personal protection of the mother and the children to which the power of arrest without warrant attached pursuant to s.68C, Family Law Act 1975.

Background

The father is 32 (born (omitted) 1981), the paternal grandmother is 55 (born (omitted) 1958) and the mother is 28 (born (omitted) 1985). The parents commenced cohabitation in about late 2002. There were a number of separations before the final separation, the date of which is in dispute. For reasons I will shortly set out, I am satisfied the parents finally separated at about the end of March 2008.
X was born on (omitted) 2002 and Y on (omitted) 2006.
On 22 September 2009 the father was convicted on two counts of sexual intercourse with the mother without her consent on 8 November 2008 and one count of assault on the mother with an act of indecency on 8 November 2008, for which he was sentenced to a total of four years and six months with a non-parole period of two years and six months.
The father was eligible for parole on 15 March 2012, and his full sentence expired on 15 March 2014. He served the full term of his sentence. He twice applied for parole but was unsuccessful each time as he refused to complete a sex offenders program because to do so would be an admission that he sexually assaulted the mother. The father, the paternal grandmother, the paternal aunts and Mr A, a friend of the father and the children’s godfather, all maintain that the father is an innocent man convicted on the lies of the mother.
The mother married on (omitted) 2009. She and her husband have a three year old child. She and the children moved some distance away from the Sydney area with her husband when they married, and the mother expressed fear of the father as the reason why she has sought to keep her current location secret from the father and his family.

Credit of witnesses

The witnesses in the applicants’ case were Ms P and Ms V, the children’s paternal aunts. The mother was the sole witness in her case. The only other witness was the Family Consultant who prepared the Family Reports. No issue arose as to the credit of the Family Consultant.
The mother did not call her husband as a witness in her case. However, the mother is the unchallenged primary carer of the children, and no issue arose on which he could have given evidence.
It emerged in cross-examination of the father that he had repartnered. The relationship commenced before he was incarcerated. She was at court with him, but was not called as a witness in the father's case. The father did not mention the fact of his repartnering in his affidavit evidence, because, he said, he did not see it as relevant. However, he conceded that she would play a significant role in his life on his release from gaol. I am not satisfied that the failure to call the father's partner was satisfactorily explained, but on the facts of this case, I am satisfied that ultimately her absence as a witness is irrelevant to the decision I must make.
The only member of the father's immediate family who was not a witness in the applicants’ case was the paternal grandfather, although he attended court on some days of the hearing. It was the applicants’ case that the mother had admitted to the paternal grandfather that she lied about the sexual assaults. He was therefore a witness that the applicants would be expected to call. He was not called at the father's criminal trial either.
The paternal grandmother said he was not called in the hearing before me because she did not understand legal procedures. However, the significance of the evidence it was alleged the paternal grandfather could have given is so obvious that it is a matter of common sense, not legal knowledge, that one would expect the paternal grandfather to be a witness in the applicants’ case, especially when he was the only member of the father’s immediate family who did not give evidence. I am satisfied that his absence is not satisfactorily explained, and I am satisfied that it is appropriate to draw the inference adverse to the applicants that had he been called as a witness by the applicants, his evidence would not have assisted their case.
I will deal with the credit of each of the lay witnesses in turn.

The paternal grandmother

In an affidavit sworn on 20 June 2012, the paternal grandmother said-
“I have accepted that under the Australian law my son has been found guilty and we as a family take full responsibility for his actions”
She at no point in any affidavit she relied on in this hearing acknowledged what it was that the father had been found guilty of, and what she and her family took full responsibility for.
In cross-examination, the paternal grandmother admitted that in the quoted passage she was trying to create the impression that she accepts that the father is guilty of sexually assaulting the mother when in fact she does not. This admission came at the end of a passage of cross-examination marked by the paternal grandmother’s constant prevarication and evasion of questions attempting to establish whether she believed her son was guilty.
In fact, the paternal grandmother has an unshakeable belief that her son is innocent despite never having spoken to him about the mother's allegations or the charges he faced because, she said, she did not like to talk about it.
The paternal grandmother joined with her daughters, Mr A and other supporters of the father in posting messages on Facebook alleging the mother was a mentally unstable liar who made the allegations of rape against the father for money. When cross-examined about this, the paternal grandmother said at first that it had occurred to her when posting these messages that the mother might read them. She said she did not care and it did not concern her that the mother may be distressed that the paternal grandmother was naming the mother on the internet as mentally ill and a liar who falsely accused her son of sexual assault, saying it was a mother’s rage. When questioned about whether it ever occurred to her that parents of children at her granddaughters’ school may read these messages and that it might result in the children being teased at school, she at first said it did, but then said she had not thought of this. When questioned about why she had taken no steps to have her messages taken down even after reading the mother's affidavit that the messages were still there in 2013 and that they embarrassed and upset the mother, she prevaricated and then said it did not occur to her that the messages might upset the mother, directly contradicting her earlier evidence that it had occurred to her that the mother might read her posts and be offended by them, and that she did not care.
When cross-examined about her knowledge of fights between the parents while they lived at her home, the paternal grandmother admitted seeing the mother crying a number of times. When asked what did she do when she saw the mother crying, the paternal grandmother said “Nothing, what could I do?” When it was suggested she could have asked the mother why she was crying or consoled her, the paternal grandmother then said she did, and her first answer was a “mistake”.
In her evidence in chief, the paternal grandmother denied that the mother spoke to her about the father's violence and that she told the mother to go and live with her father. In cross-examination, she said the mother told her the relationship with the father was not working, and she told the mother to think about living with her father, who lived in Queensland.
When the paternal grandmother denied the proposition put to her in cross-examination that the father was a violent man, it was then put to the paternal grandmother that the father had been charged with destruction of the mother's property, to which she responded that she did not know as she was not there. In fact, the paternal grandmother in her evidence in chief said this incident, which occurred in May 2008, occurred at her home and she witnessed it, but she gave a version different to the facts admitted by the father in the criminal proceedings resulting from the incident, which in fact occurred at the mother's home.
The paternal grandmother was also evasive and prevaricated, refusing to directly answer questions about the father's breaching of AVO’s. While not prepared to admit she knew that the father had done so and was convicted for two breaches of the AVO, she suggested that he had wanted to see his children, and further suggested that as an excuse for breaching court orders.
When questioned about X’s presentation when she saw her for the observation for the Family Report, the paternal grandmother said she was shy and “a bit scared” at first. A little later, she said X was “very scared”. When challenged about the inconsistency, the paternal grandmother said X was “a bit scared”. When challenged why she had said X was very scared, the paternal grandmother said it was because of X’s presentation. When asked again whether X was a bit scared or very scared, the paternal grandmother said she was very scared.
The paternal grandmother proved to be an unsatisfactory witness, and I am satisfied she intentionally sought to mislead the court. She proved herself prepared to alter her evidence and directly contradict herself to attempt to present herself in a more favourable light with little or no regard for the truth. I am satisfied she is prepared to say whatever she thinks is necessary to achieve her goal in these proceedings, and in fact her dishonesty under oath in my view extends to at least one of her goals in these proceedings, one she has attempted to obfuscate, and that is to ensure her granddaughters know “the truth” as she sees it about their father and mother.

The father

The father said he had never wished the children to visit him in gaol. However, he signed an amended application as joint applicant for an order that the children see him in gaol. The paternal grandmother also said she and the father had discussed these proposed orders before filing that amended application, and the father said he supported the orders his mother wanted.
The father said the parties separated in November 2008. The potential significance of this is that it was the month in which the offences for which he served four and a half years gaol occurred, offences of which he maintained his innocence.
The mother called the police about the father's behaviour on 15 April 2008. The police record for this event indicates they were informed that the parties had been separated for about two weeks, and that the mother just wanted the father to leave her alone to live her own life. The mother called police again on 1 May 2008, reporting that they had separated about four weeks before and alleging that the father had threatened her and some of her friends. The police report of this incident indicates that the mother told police the father had previously been violent to her, but she had not reported it to police. Then on

14 May 2008, the police were again called by the mother after the father kicked both side mirrors on her car, damaging both. The purpose of the father's attendance at the mother's home was recorded in the police record as being to see the children, with a notation that the parties had been separated for about six weeks. Community Services officers interviewed the parents at the mother's home on 4 July 2008. They recorded that both parents indicated they had no relationship with each other beyond co-parenting their children, and so did not need relationship counselling.
The records of these four interventions were put to the father. He said he could not recall telling the Community Services officers he had no relationship with the mother other than as parents of their children, but accepted that is what he said and assumed it was correct and they were not then in a relationship. Nonetheless he denied the parents separated in March 2008, and denied that his affidavit evidence that they separated in November 2008 was incorrect.
Beyond asserting that the parents were “on and off” for a long time, the father could not explain why he told Community Services he and the mother had no relationship other than as parents in July 2008, but maintained they did not finally separate until four months later. He gave no evidence of a resumption of cohabitation after July 2008.

I am satisfied that the father had no reasonable basis for asserting that the parties did not finally separate until November 2008. I am satisfied he sought to misrepresent the date of final separation in his evidence.
The father said in cross-examination that he could not remember having thrown the mother’s mobile phone down and it falling apart. However, in an affidavit he swore on 26 June 2013 but did not rely on in this hearing, the father admitted the mother's evidence in chief that after separation, the father came to her home to see the children and picked up her phone, saw a photo of the mother with another man, and took the phone outside and threw it against a brick wall smashing it. In that affidavit he added that he believed the mother was “cheating” on him. I am satisfied that the parties were then separated.
The affidavit containing this admission was sworn only 15 days before he said in cross-examination that he could not recall smashing the mother's phone. I am satisfied that in saying he could not remember, the father sought to evade giving an honest and direct answer to the question whether he intentionally broke the mother's phone.
The father said he did not believe the children were ever present when he and the mother argued. However, he admitted that after separation, he attended the mother's home, smashed her mobile phone, kicked the front screen door repeatedly until it broke, and then kicked the front main door repeatedly until it splintered, while the children were inside the premises with the mother.
The father said he did not think he had done anything to make the mother scared of him. However, he admitted having in anger:
a)smashed the mother's phone;
b)kicked the mother's front security screen door repeatedly until it broke while the mother was inside;
c)kicked the mother's front main door repeatedly until it broke while the mother was inside;
d)kicked both side mirrors on the mother's car breaking one and causing the other to become completely detached from the car; and
e)twice breaching an AVO by approaching and contacting the mother in contravention of the provisions of the AVO.
I am satisfied the father did these things to frighten the mother and to coerce her to do what he wanted. Their purpose was to scare the mother. Thus, without going to acts of violence and threats to kill that the mother alleged and the father denied, but just relying on facts the father admitted, I am satisfied that the father lied when he denied doing anything to make the mother scared of him.
The father said that if the children asked him why he was in gaol, he would tell them the truth. His “truth” is that the mother lied about the sexual assault and had him gaoled for four and a half years. However, when questioned about what he would say to the children, he said he would tell them it was something that happened between him and the mother. He said that if one of the children asked him if he did something wrong to the mother, he would say yes. When asked what he would say if one of the children asked him what he did to the mother, he said he would not know what to say. However, he added that he did not do anything wrong to the mother.
In this evidence, I am satisfied that the father was seeking to mislead the court about what he would tell the children. I am not satisfied he would ever tell the children he did something wrong to the mother. He has never acknowledged he did, and refused to qualify for release on parole by doing a sex offenders program because he was not prepared to do anything that would admit his guilt, even though that meant spending another two years in gaol, two more years when he could not hope to see the children he said he so dearly loved and sorely missed. I have no doubt that the father is very keen indeed to tell his daughters what he claims their mother did to him, as, I am satisfied, are his mother and sisters.
I am satisfied that the father is an unreliable witness, who, like his mother, was prepared to say what he thought the court needed to hear to get the orders he sought.

Ms P and Ms V

On the view I take of the evidence of the father and the paternal grandmother, the credit or reliability of the paternal aunts is largely irrelevant. I accept their evidence to the extent that it confirms that the paternal family has discussed informing the children that the father was gaoled on the mother's lies. While they suggested there was agreement that the father alone would do so when the girls were “older” and with the assistance of a psychologist, I am not satisfied that either the father or the paternal grandmother intend to wait, or seek such professional assistance, to tell the children the “truth”, which as I will later set out, I am satisfied is in fact a lie.

The mother

I was not satisfied any issues arose reflecting on the mother's credit. I was not satisfied that any inconsistencies in cross-examination by counsel for the Independent Children's Lawyer with her evidence in chief went to the substance of what she asserted. In any event, it related to an incident where the father admitted the mother's evidence in chief. The mother readily made concessions in cross-examination. I accept the mother as an honest witness and a reliable witness.

The evidence

Child care and involvement of the paternal family

It is not disputed that the mother has been the children’s primary carer from birth. There is no dispute that the father and the paternal grandparents and paternal aunts were involved with the children, although the extent of that involvement is in dispute.
The mother conceded that the father was a good father. The parents and the children lived with the paternal grandparents and paternal aunts at times. I accept that until November 2008, the children had a close and loving relationship with their father, their paternal grandparents and their paternal aunts.
I note that on the 8 November 2008, before she was sexually assaulted, the mother had sought to persuade the father to continue an involvement with the children. She could obviously see a benefit to the children of the father's continued presence in their lives at that time, despite incidents of family violence that had already occurred, some of which the children had witnessed.
However, the children have not seen the father or members of his family since 8 November 2008, and so the relationships the children had with the father and members of his family then have changed very significantly. There is no issue that Y has no recollection of her father or members of his family. Until after the interviews for the updating Family Report in March this year, Y believed her step father was her biological father. The mother informed her who her biological father was later on the day of the observations of the children with the father for the updating Family Report.

The date of the parents’ separation

The paternal grandmother said that from her observation the parents separated in November 2008. However, she gave no evidence of what she observed to lead her to draw that conclusion or form that opinion. In the absence of evidence of what the paternal grandmother observed about the parents’ relationship, the court can place no weight on the paternal grandmother’s opinion about the date of separation.
The father said the parents ended their relationship in November 2008. He said he and the mother lived together on and off, but did not particularise the periods of cohabitation and separation. He gave no evidence of the parents’ asserted cohabitation immediately before November 2008 and gave no evidence about the asserted separation in November 2008.
The mother gave specific evidence as to the dates and places where the parents cohabited, and the dates and places she lived apart from the father. The mother's evidence was specific and detailed, and was unchallenged. The mother's evidence is also corroborated by police and Community Services records from 2008 already referred to, including notes of an interview Community Services officers had with both parents on 4 July 2008 when both parents said they were not in a relationship other than as parents of their children.
I therefore accept the mother's evidence and find that the parties finally separated around the end of March 2008 and thereafter did not resume cohabitation

Family violence

The mother made general allegations of family violence, including verbal abuse and denigration, pushing, damage to her property and threats to kill her. She also particularised specific incidents of family violence that occurred after separation.
I will deal first with the specific incidents alleged by the mother, and then with the general assertions of family violence.
I note that for these proceedings, family violence is defined by the Family Law Act 1975 as follows (s.4(1))-
“family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note:A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”

2008, after separation

The mother said that in 2008, after separation, she and the father were arguing in the driveway of her residence. She said the father pulled the aerial off her car and hit her with it, scratching her back and bruising her shoulder. She said the father then pushed her against the car and poured water over her from a bottle. She said the children were inside, but she saw X looking out the window as this occurred, and X later told her she had seen the father hit her with the antenna and pour water over her.
The father denied hitting the mother with a car aerial.
I prefer the mother's evidence over the father's evidence, as I am satisfied the father was not candid or truthful in his denials of being violent towards the mother. I am satisfied that damaging the mother's car was one way the father sought to coerce the mother into complying with his demands. It was something he did more than once, and was convicted of doing so in May 2008, as I will relate shortly.
I am satisfied this was an incident of family violence by the father towards the mother.

2008, after separation

The mother said that sometime after the preceding incident, the father came to her residence to visit the children, and she let him in. She said he picked up her mobile phone and saw a photo of the mother with another man. She said the father took her phone outside and smashed it against a brick wall.
The mother said when she saw the father smash her mobile phone, she went inside and locked the screen security door and the main front door, and sat leaning against the door. She said the father began kicking the security door and continued doing so until it broke. He then began kicking the main door, splintering the wood and damaging the door frame. She said the father eventually left. She said the main door and security screen door both had to be replaced.
The mother said both children were in her residence when the father was kicking the front door in. She said when she went to look for them, she found them under the mother's bed crying, and X repeating “Please God! Please God! Please God!”
The father agreed with the mother's version of this incident in an affidavit he swore but did not rely on at the hearing.
I am satisfied this incident occurred as deposed to by the mother.
In the affidavit not relied on by the father but containing the admission about this incident, the father sought to justify his actions on this occasion by asserting he believed the mother was “cheating” on him. But this incident occurred when the parents were separated. It must be said that in any event, even if the parties were then in a relationship and the father had valid grounds to believe the mother was “cheating” on him, that would afford no justification for his violence directed towards the mother. The fact the children were present in the house when he smashed the mother's phone and damaged both the security screen door and main front door of the mother's premises only exacerbates the seriousness of the father's behaviour.
The father's admitted violence on this occasion and his attempted justification for it is entirely consistent with the mother's evidence about the father's treatment of her during the relationship, including attempting to control her and coerce her to do what he wanted. The sense of “ownership” of the mother and of entitlement to treat the mother this way evinced by the father's supposed justification for his actions is extremely concerning. It evinces an attitude by the father towards women that is an appallingly bad role model to expose his young daughters to.
I am satisfied this was an incident of family violence by the father towards the mother.

14 May 2008

The father came to the mother's residence on 14 May 2008 and kicked both the external mirrors on her car, causing $90 damage. The mother informed him of the cost of repairs and the father paid it to her.
The paternal grandmother said in her evidence in chief that this incident occurred at her house, and involved the parents getting into a “discussion” during which the mother “keyed” and scratched the father's car and the father broke “the side mirror” on the mother's car.
The father gave no evidence in chief about this incident.
The mother reported this incident to the police and the father was subsequently convicted of destroy or damage property, and fined $100.
The fact sheet placed before the court in relation to this charge, which indicates that the father made full and frank admissions about the incident, is inconsistent with the paternal grandmother’s version of the event in three significant respects. First, it indicates that the offence occurred at the mother's residence, not at the paternal grandmother’s residence, and so she could not have witnessed it as she claimed. Second, it makes no mention of the mother having damaged the father's car, either before or after the father damaged the mother's car. And third, it indicates the father kicked and damaged both side mirrors on the mother's car, not one. In fact he kicked one so hard it was broken off the side of the mother's car.
I accept the mother's version of this incident. I am satisfied this was an incident of family violence by the father towards the mother.

8 November 2008

It was the events of 8 November 2008 that resulted in the father's conviction for sexually assaulting the mother twice and for indecently assaulting her. The mother gave detailed evidence of the events of that evening in her evidence in chief. The father gave no evidence of what he said occurred, and nor was the mother cross-examined about what she said occurred. No witness in the applicants’ case even acknowledged why the father was in gaol.
It was suggested by the witnesses in the applicants’ case that the mother admitted lying about the events that evening to the paternal grandfather. However, it was not put to the mother in cross-examination that she had admitted lying about the rape to the paternal grandfather or to anyone else. I have already noted that the paternal grandfather, despite being available, was not called as a witness in these proceedings or in the criminal proceedings.
Based on the evidence before this court about the events of

8 November 2008, I am satisfied that the father sexually assaulted the mother twice and indecently assaulted her on 8 November 2008. That evidence satisfies me to the highest degree on the civil standard of proof, and in fact beyond any reasonable doubt, that the father did what he was found guilty of at his criminal trial.
Yet the father, the paternal grandmother, the paternal aunts and the children’s godfather maintain the father's innocence.
In circumstances where the mother's evidence about what the father did to her on 8 November 2008 is uncontradicted and unchallenged, it is unnecessary to set that evidence out in any detail to support my findings. However, it is in my view appropriate to do so to put in context the mother's fear of the father and extreme anxiety for her safety. It is also appropriate in light of the campaign of abuse and vilification of the mother waged by the paternal grandmother, the paternal aunts, the children’s godfather and other supporters of the father on the internet, that this court record what it was that the father did to the mother that night, and his callous disregard not only for the possibility the children would awake and enter the room where he was assaulting the mother, but also for the effect on his daughters of what he did to their mother.
It is also appropriate to set out what occurred because parts of what occurred are entirely consistent with the mother's evidence about things the father said and did on other occasions.
On the evening of 8 November 2008, the parents had agreed to go out for a coffee with the children. When the father arrived at the mother's residence, the father objected to what the mother was wearing, saying she looked like a “hussy”. This is consistent with the mother's evidence that throughout their relationship, the father sought to control her, including what she wore. It is particularly significant that the father did so on this occasion, after the parties had finally separated.
The father then left with the girls with the mother's agreement. He returned the children shortly after. He was distressed, telling the mother he could not bear seeing her when he came to see the children, and would not see the children again. The mother sought to persuade him to maintain a relationship with his daughters. The father continued to be extremely distressed. Ultimately, the mother agreed when the father asked to stay the night.
The mother said the children had gone to sleep in her bed, where they then usually slept, but Y awoke during the parents’ conversations. After agreeing to the father staying the night, she lay on the bed to comfort Y. She was fully clothed. She said the father lay on the other side of the bed beside X. She said she fell asleep, and awoke to the father caressing her face and hair. She told him to stop. In response, the father took her from the bed into an adjoining bedroom by force and over her objections and raped her. He first digitally penetrated her and then he had penile intercourse with her without her consent.
During the father's attack on the mother, she screamed as loud as she could to try to attract neighbours’ attention and to stop the father. She resisted him but was physically overpowered by him.
She eventually persuaded the father to let her leave the room to get a drink. She instead ran naked to the kitchen and armed herself with some knives and confronted the father and demanded that he get out of her house. As he backed out of the house, effectively at the point of a large kitchen knife wielded by the mother, the mother grabbed a rug on the lounge to wrap around herself.
When the father walked away from her residence, the mother went to neighbours’ front doors, banging and screaming for help, naked but for the rug. She then saw a man beside a truck in a service station nearby who was using a mobile phone, and she prevailed on him to let her use his phone to call 000.
While making the 000 call, the mother saw the father drive past in his car. The mother was extremely frightened. The operator told the mother to return to her home and lock the door until police arrived. While she was waiting for the police, the father phoned her. When the mother told him she had called the police, the father told her they would take the children away from her. This is consistent with what the mother said the father would say to her during their relationship if she threatened to call the police about his violence and threats to kill her.

After the father was charged, the paternal grandparents sought to persuade the mother to drop the charges against their son. They also contacted the mother's parents to ask them to persuade the mother to drop the charges against their son.
As mentioned, the paternal grandmother and both the paternal aunts are convinced of the father's innocence, and asserted that the mother lied to have the father put in gaol, and that she had told the paternal grandfather that she had lied in her statement to the police to try to frighten the father, and that he would get out of it.
This latter assertion is inconsistent with the mother’s refusal to withdraw her complaint when the paternal grandmother later begged her to do so. If the mother's complaint to the police was just to frighten the father and she believed he would get out of it, it is inconceivable that the mother would persevere up to the point of giving evidence in public at the father's trial, exposing herself to cross-examination by the father's legal representatives, and running the gauntlet of the verbal abuse from the paternal family and other supporters of the father at the court during the father's trial to do so. I accept the mother's evidence that members of the father's family and his supporters swore at the mother in Spanish outside the court during the trial.
In any event, as already noted, based on the paternal grandmother’s and paternal aunts’ story, the paternal grandfather was the one member of the father's immediate family who could have given evidence of this alleged confession by the mother and yet was the only member of the father's immediate family who did not give evidence, either before me or at the father's criminal trial, even though he was available to do so.
It is therefore appropriate that I record in these reasons that the father and his family, having had another opportunity in these proceedings to put evidence before a court of the father’s asserted innocence and of the mother's alleged lies that resulted in the father serving four and a half years in gaol, have failed to provide any evidence inconsistent with the mother’s version of this incident, have failed to provide any evidence that the mother lied about being raped by the father, and have failed to provide any evidence that the mother admitted lying when she said the father raped her, despite that evidence, if it ever existed, being readily available.
The father's sexual and indecent assaults on the mother on 8 November 2008 constituted not only serious criminal offences, but were also incidents of family violence perpetrated by the father on the mother.
In my view they are instances of family violence that are of particular significance in this case. The father had previously perpetrated family violence against the mother. I will shortly address the mother's general allegations of family violence during cohabitation and indicate why I accept her evidence. That evidence indicates a pattern of controlling and coercive behaviour by the father towards the mother during their cohabitation. As indicated above, there were a number of incidents of family violence after final separation, involving damage to the mother's property. This occurred again in the context of the father seeking to control and coerce the mother to his will, even after separation.
Despite this, the mother still saw the children’s relationship with the father as important to them and something to be encouraged. The inference is that while she was anxious about the father's family violence and threats, up to 8 November 2008 the balance in the mother's mind fell on the side of facilitating and encouraging the children's relationship with their father over her own self-protection.
I am satisfied that the mother's attitude completely changed after the father's sexual assault on her. I am also satisfied that objectively it was right that it should. The sexual assault was a very serious form of physical assault on the mother, far worse than anything the father had perpetrated on her before. It entailed the father by physical force seeking to coerce and control the mother and to bend her to his will. It demonstrated he was prepared to commit serious criminal offences to do so. It in my view provided a reason to take the father's previous threats to kill the mother very seriously indeed.
The sexual assault had a profound effect on the mother. It caused her to suffer symptoms consistent with PTSD, including very severe anxiety. She was fearful of the father, and rightly so. That fear and anxiety was such as to cause the mother to drive her car into a tree in a suicide attempt when faced with the prospect of facing him in court in the criminal proceedings. It was such as to cause the mother to be physically ill at the prospect of being cross-examined in these proceedings with the applicants acting in person.
As the father and the paternal grandmother acknowledged, if the mother is extremely anxious, the children will be aware of this and it will be detrimental to them. Although the mother has not burdened X with any details of what the father did to her to result in his incarceration, she informed the child the father did something bad to the mother, and X has witnessed and can remember the father's previous violence towards the mother. It is quite possible, if not likely, that X heard her mother's screams while she was being raped by the father in an adjoining room on 8 November 2008. X presented at both sets of interviews for the Family Reports as fearful not only of the father but of the paternal grandmother as well, expressing concern that the paternal grandmother may take her away from her mother.

Breaches of AVO

On 11 November 2008, after the father was charged with raping and indecently assaulting the mother, an interim AVO was made against the father for the protection of the mother and the children that prevented the father contacting the mother and the children or coming within 200 metres of their residence. Despite this, he phoned her on 15 January 2009, and on 21 January 2009 stopped his car in the road blocking traffic as the mother came home with the children, revved the engine of his car, leaned out the window and mouthed a threat to kill the mother. X was with the mother. She saw the father and said “There’s Daddy. I’m scared”, and ran into a neighbour’s home.
While the father denied stopping his car, revving the engine or making any threat to the mother on this occasion, I accept the mother's evidence, as I am satisfied she is a far more reliable witness than the father.
The father was convicted on two counts of breaching the AVO in relation to these incidents, and fined $350 on each charge.
Despite this, the father continued to communicate with the mother, including by sending her Facebook messages, one of which, sent on

4 September 2009, falsely said he had pleaded guilty to the sexual assault charges that day.
A final AVO was made against the father for the protection of the mother and the children on 5 March 2010 for a period of three years. Among other things it restrained the father from going within 200 metres of the residence of the mother or the children, and from approaching, contacting or telephoning the mother or the children by any means except through his legal representative or as agreed in writing or as permitted by an order under the Family Law Act 1975 as to counselling, conciliation or mediation. That order has now expired and there is no AVO currently in force.

General allegations

The mother said that when the parents began their relationship, the father was jealous and controlling of her. She said he did not want her to have a close relationship with her parents and did not like her friends, making threats against them. She said he sought to further isolate her by discouraging her from getting her driver’s licence.
She said if she went out he demanded to know where she went and who she was with. She said he sought to control the clothes she wore. She said he abused her if they were out and he thought she was looking at another man, and he would verbally abuse and threaten any man he thought was looking at her.
The mother said that after X was born, the father was verbally and physically abusive of her. She said the children were regularly present when he verbally abused, denigrated and belittled her.
The mother said the father often physically pushed her during arguments. She said the children were sometimes present, and Y would wipe away her tears and cuddle her if she was crying, and X would scream out and cry “Stop Daddy”. She said that on some occasions when these violent arguments occurred, X would take Y out of the room and she would later find the children in another room, sometimes crying. The mother also said that during arguments the father would hit and damage her car. She said she had to replace mirrors on her car five times after the father damaged them. The mother particularised one such incident after separation, as I have already detailed.
The mother said she and the father lived with the paternal grandparents from the commencement of their cohabitation in late 2001 or early 2002 until August 2003, from December 2004 to February 2005 and from October 2006 to March 2007. She said that she would often cry in front of the paternal grandparents and inform them of “what was going on”. She said they often replied that they could not help her and that she should go and live with her father, who lived in Queensland. She asserted that the paternal grandparents heard “fights” between her and the father when they were living with the paternal grandparents, but usually ignored them, although on a couple of occasions she said the paternal grandfather intervened to stop the father when he was in a rage and swearing at the mother.
The paternal grandmother in cross-examination said that she and her husband mainly ignored the parents when they were arguing, but said that on more than one occasion her husband spoke to the parents when they were fighting, but denied he intervened in any fight between the parents. She admitted seeing the mother crying after arguments between the parents, and gave inconsistent evidence as to whether or not she ever asked the mother why she was crying.
The paternal grandmother said that the children did not see any domestic violence except for one occasion when the paternal grandmother said the mother scratched the father's car and he broke the side window of the mother's car on 14 May 2008. As already mentioned, the paternal grandmother’s evidence about this incident is inconsistent not only with the mother's evidence but also with admissions made by the father in consequent criminal proceedings for damaging the mother's property.
I prefer the mother's evidence over the paternal grandmother’s evidence where their evidence differs.
The mother said throughout their relationship, the father threatened to kill her if she ever left him or met another man. She also said that the father told her if she reported the family violence, Community Services would take the children away from her. She said because of these threats, she was always too afraid to report the father's violence.
The paternal grandmother said that the father was often angry due to the mother “leaving with the children”.
The paternal grandmother agreed that the mother was scared of the father. She said the mother always said she was. She gave inconsistent evidence as to whether or not she ever asked the mother why she was scared of the father. She said she never asked her son why the mother was crying after their arguments because she could not get involved in their relationship. Yet the paternal grandmother initially commenced these proceedings as the sole applicant to seek to spend time with the children so she could take them to see their father in gaol, and thus was prepared to get involved in matters between the parents in the interests as she saw them of her son. I am satisfied that the paternal grandmother was well aware of the violent arguments between her son and the mother, and she did not intervene to protect the mother and the children when they lived in her house because to her, her son could do no wrong.
The father did not address the issue of family violence at all in his evidence in chief, not even to give his version of events on

8 November 2008 that led, according to him, to his being wrongly convicted of serious crimes against the mother.
The father denied in cross-examination that he had tried to control the mother, pushed her, or threatened to kill her. He admitted the parents had heated arguments. He admitted becoming so angry that he hit the mother's car and being convicted of breaking the side mirrors on her car, but denied breaking her side mirrors five times.
The mother contacted police five times between final separation and her complaint about the father raping her, on 14 April 2008, 30 April 2008, 14 May 2008, 29 May 2008 and 6 September 2008. One related to the father damaging her car. The others related to arguments between the parents or the father's harassing phone calls. On one of these occasions, the mother informed police that the father had been violent to her in the past but she had not contacted police at the time.
In a statement the mother made to police on 13 January 2009, after the father had been charged with raping her, the mother stated that-
“(The father) had a temper. He was not physically violent but always tried to control me.”
The mother said she stated the father had not been physically violent because she felt embarrassed and afraid about telling the truth. She made this statement after having given the police a statement about nine weeks earlier, on 9 November 2008, in which she particularised the full detail of the father's rape and indecent assault of her the previous day.
The mother said that throughout her relationship with the father, she felt very intimidated by the father and always lived in fear of him. She said there were so many fights she could not remember the details of “most incidents”. However, she in fact failed to provide evidence specifically identifying any incident before final separation.
The allegations by the mother of family violence by the father before separation are serious. The court should be slow to make findings that the father behaved as the mother generally alleged where the mother gives no evidence of any specific instance of abuse with sufficient particularity for the father make any specific response, and where she asserts the father was violent but informed the police in January 2009 that he had not been violent.
Despite the inconsistency between the mother's evidence and her January 2009 police statement, I am satisfied that the mother was a reliable witness. The paternal grandmother corroborated that the father was very angry with the mother on occasions, that they fought reducing the mother to tears, and that the mother regularly said she was scared of the father. This is all consistent with the picture the mother painted in her evidence.
Further, there is a consistency between aspects of the father's proven behaviour towards the mother in incidents after separation and the mother's assertions about his behaviour towards her before separation, including-
a)his trying to control her as to what she wore and who she socialised with despite them being separated;
b)his attempt to justify his violent destruction of the mother's property by saying he believed the mother was cheating on him even after separation; and
c)his threat after raping the mother that because she reported the matter to police, the children would be taken away from her.
Taken with the fact that the father gave no evidence in chief to contradict the mother's allegations against him, and my findings as to the mother's reliability as a witness and the unreliability of the father and the paternal grandmother as witnesses, I accept the mother's evidence and find that during the parties’ cohabitation the father sought to control and coerce the mother by isolating her socially, damaging her property, verbally abusing and denigrating her, physically pushing her, threatening that if she reported his actions to the police the children would be taken away from her, and by threatening to kill her if she left him. I am satisfied that the father intentionally engendered in the mother a fear of him as a means of controlling and coercing her to his will, and that his actions did in fact cause the mother to fear for her own safety and for her children. I am satisfied that the mother's fears were objectively reasonable. I am satisfied that all these actions satisfy the definition of family violence under the Family Law Act 1975.

The Family Consultant’s evidence

At the time of preparation of the initial Family Report, the interviews for which were held in April 2013, what the applicants wanted was somewhat unclear. The then most recent iteration of the applicants’ amended application, filed on 7 November 2010 and signed by the father, included orders that the children see the father in gaol every four to six weeks. However, the father told the Family Consultant that although he supported his mother's application, he had never wanted the children to visit him in gaol.
The applicants advised the Family Consultant that they intended seeking orders for the children to spend some time with the paternal grandmother until the father was released from gaol, when the father would make his own application for time with the children.
I note that the applicants have been unrepresented throughout the proceedings, and hence are unlikely to have been aware of the difficulties for the father, having been an applicant for parenting orders in determined proceedings, then bringing further proceedings for different orders without there having been any significant change in circumstances affecting the children. While his release from gaol would be a relevant significant event, he knew the date of his release at the time of the interviews for the initial Family Report, in less than 12 months, and this could be catered for in any orders made in the first proceedings.
The applicants were thus indicating to the Family Consultant that there would be two separate sets of proceedings, the first being the current proceedings in which orders would be sought for the paternal grandmother to spend time with the children, and the second, to commence after the father's release from gaol, to seek orders for the father to spend time with the children. Further, both applicants indicated that they accepted that their respective times with the children would need to commence with limited supervised time.
Because of the somewhat tenuous relationship the Family Consultant assessed the children had with the paternal grandmother, the likely imminence of a further application from the father, the distance the paternal grandmother would need to travel for initially limited supervised time with the children, and the prospect of the children having to go through two sets of supervised time in quick succession, the Family Consultant recommended that no orders be made for the paternal grandmother to spend time with the children, and that a determination await the father’s released from gaol and his own application.
The hearing commenced while the father was in gaol, with the father attending court under guard. After the cross-examination of the witnesses other than the Family Consultant had been completed, the hearing was adjourned to conclude after his release, with an order for an updated Family Report to be prepared on the father's release. The interviews for that updated Family Report, when the father was observed with both children, were conducted on 18 March 2014, a few days after the father's release from gaol
When observed with the paternal grandmother for the initial Family Report, and when observed with the father for the updated Family Report, Y did not know they were her paternal grandmother and father.

X recognised both her paternal grandmother and father, and was quite anxious about seeing them, insisting on the Family Consultant being in the room with her at all times with each of them. She said she was scared that the paternal grandmother wanted to take her away from her mother, and appeared to the Family Consultant to be “alarmed” when told she was to see her paternal grandmother. X was also aware that Y did not know her real paternal grandmother and father, and appeared to the Family Consultant to be “relieved” when told Y would not be introduced to the paternal grandmother as her grandmother.
When observed with the paternal grandmother, X looked far from relaxed. She was tentative and unresponsive to her. Y was introduced to her paternal grandmother using her given name, the name she preferred the grandchildren to use in an event. She appeared comfortable with the paternal grandmother, albeit she had no recollection of her.
X was aware of the possibility of seeing her father when she attended for the interviews for the updated Family Report. She told the Family Consultant she did not want to see him. She was unable to give a reason for this. As with her paternal grandmother, X was concerned about Y seeing her father until assured he would be introduced by his given name.
Y said nothing during the observation session with the father, and did not interact with him. X gave muted responses to the father's questions and otherwise stood just inside the doorway to the observation room. When the Family Consultant ended the session for Y prematurely (as to which, see later), X remained standing inside the doorway and began to cry quietly. She was unable or unwilling to tell the Family Consultant or the father what had upset her. She remained silent. She declined her father's request for a kiss and a cuddle. She seemed to recover quickly on returning to the childcare room after the observation session.
The observation session was described by the Family Consultant as “brief”, the father seeming to be concerned when X became distressed when Y was returned to the child care room, and agreeing to end the session prematurely.
In the initial Family Report, the Family Consultant stated that the paternal grandmother said she accepted what her son had done. I am satisfied that the paternal grandmother was being dishonest in saying this. She remains convinced her son is innocent of the charges on which he was convicted.
The Family Consultant observed that the paternal grandmother’s capacity to refrain from defending the father and criticising the mother to the children was very much untested.
The Family Consultant reported in the updated Family Report that the father realised he needed to reconnect very gradually with his children, who had not seen him for many years, suggesting that initially they see him for a couple of hours each fortnight under supervision. The father indicated to the Family Consultant that he would like to help the mother in raising their children, claiming she meant a great deal to him as the mother of his daughters, and saying the mother needs to be “okay” for his daughters.
I agree with the father's statement that the mother, the only biological parent with whom these children presently have any positively significant bond, needs to be “okay” for the children. In other words, if any particular regime for the children to spend time or communicate with the father or members of his family will have a significant adverse impact on the mother’s psychological or mental wellbeing, this will impact adversely on the children. I was otherwise unconvinced about the sincerity of what he told the Family Consultant.
The Family Consultant said the father calmly accepted it would be inappropriate for him to give the girls the gifts he brought for them inscribed to indicate he was their father as Y did not know he was her father. However, the Family Consultant terminated the observation session for Y early when the father “slipped” and asked if she remembered him. The Family Consultant said in cross-examination that this “slip” by the father did not concern him.
The Family Consultant said the father was shocked at the children’s reaction to him, and wondered whether he needed to reconnect with them even more gradually than he had thought, speculating whether he might first need to write to them and talk to them by telephone. I note that the orders ultimately sought by the applicants provided for immediate face to face time, albeit of short duration and under supervision, and proposed that a total of six other members of the paternal family accompany them. Thus, he did not carry through with what he postulated to the Family Consultant may be the more appropriate way to proceed.
When interviewed for the updated Family Report, the mother informed the Family Consultant that she felt safer when the father was in gaol, and became tearful at that point. When the Family Consultant tried to inform the mother that the father had spoken positively about her, the mother blocked her ears and said she did not want to know what the father said.
The mother told the Family Consultant the father had never hurt the children, and she was confident neither the father nor the paternal grandmother would harm the children physically.
The Family Consultant expressed the opinion that the mother seemed unable to separate her relationship from the children’s relationship with the father, and hence was highly unlikely to provide the children an opportunity to explore the possibility of developing a relationship with the father.
He said that the father seemed sensitive to the children's needs and committed to their comfort with him re-entering their lives. However, as noted, one aspect of that sensitivity was not reflected in the final orders actually sought by the applicants. The Family Consultant expressed the opinion that the father did not appear to pose any threat to the children’s “safety or wellbeing”.
The Family Consultant did not raise with the father or the paternal grandmother what they would say if either of the children asked them why their father was in gaol or what he did to their mother, despite the father making it clear to the Family Consultant that he maintained his innocence. The Family Consultant said in cross-examination he considered the father’s refusal to undertake the sex offenders program to qualify for parole “incongruous”. He said that if the father or members of the father's family were to tell the children that their father was put in gaol on the lies of their mother, it would be abusive of the children and could disturb their relationship with their mother. He said he would have concerns about the children either spending time or communicating with the father or members of his family, and that he could see no benefit to the children seeing the father or members of his family, if they will tell the children about the mother's alleged lies that put their father in gaol.
In any event, the Family Consultant was of the opinion that it was not feasible for the children to spend any time with the father without some prior therapeutic intervention. He said that without a considerable shift in the attitude of the children and the mother towards the father having a presence in the children’s lives, the children are highly unlikely to benefit from seeing him. He suggested a program such as Keeping Contact may be of assistance to enable the children to explore the possibility of a relationship with their father.
The Family Consultant said in cross-examination that there was no guarantee of success in attending a program such as Keeping Contact even if the mother was motivated. He said that if the court ordered the children to spend time with the father, the effect on the mother would depend on whether she sought therapeutic help to become “more robust” in dealing with the effects of such an order on her. He said that the mother's ability to become “more robust” was unknown to him, and he conceded that if the mother had PTSD, then some of the symptoms of that condition may not be able to be mitigated by therapeutic help. I note the psychological assessment of the mother indicating that the mother had symptoms, including very severe anxiety, consistent with PTSD.
The Family Consultant expressed the opinion that the paternal grandmother spending time with the children hinged on the father spending time with them.
The Family Consultant recommended that the parents participate in a program such as Keeping Contact, that the mother provide the father with a mailing address through which he could communicate with the children and that the mother ensure the children receive all correspondence from the father.
In cross-examination the Family Consultant said that the evidence of the father, the paternal grandmother and the paternal aunts about how they would respond if the children asked why their father was in gaol or what their father did to their mother weighed against there being any communication between the children and their father or members of his family. He said he had the impression that the mother had not told the children why their father went to gaol, other than informing X that he had done bad things to her (the mother), and it would be abusive of the children to expose them to the views of the father and paternal family.
When asked about the alternative of an order permitting communication by the father and members of his family to the children through the mother, with the mother having the right to withhold from the children any inappropriate communications, the Family Consultant said that he was uncertain whether the mother could do this, and if the father used such an order as a means of communicating with the mother it would be disastrous.

The parties’ proposals

The applicants seek a graduated regime of time for themselves and several other named members of the paternal family with the children, beginning with limited supervised time, and progressing to unsupervised overnight time.
Where the applicants proposed the children spend overnight time with them was not dealt with in their evidence. The father has repartnered but his new partner was not a witness in his case. Aspects of the applicants’ proposals would clearly cause problems, including the changeover arrangements and the proposal that if the father or members of the paternal family attend any school or extracurricular activities for the children, that the mother not be permitted to attend. Despite the applicants saying they did not intend the admitted consequences of these orders, they nonetheless asked that they be made in those terms.
The father suggested to the Family Consultant that having seen the children’s reaction to him at the observation for the updated Family Report, he may need to first use communication with the children to attempt to gain their trust and confidence before beginning to spend time with them, but that is not what the applicants sought.
The mother sought and the Independent Children's Lawyer proposed that the children spend no time and have no communication with the children, and that they be restrained from contacting or approaching the mother or the children in any way.

The applicable law

The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders. As the proceedings commenced before 7 June 2012, most of the amendments to Part VII of the Act and to definitions for that part that commenced on that date do not apply to these proceedings.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about these children, so s.65DAB is not relevant.
In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). Section 60CC indicates how the court determines the children's best interests. Section 60B sets out the objects and principles of Part VII.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
If the court is to make an equal shared parental responsibility order, the court must consider whether the children spending equal time with each parent would be both in the children’s best interests and reasonably practical, and if so, must consider making such an order. If the court does not make an equal time order, it must next consider whether the children spending substantial and significant time with each parent would be both in the children’s best interests and reasonably practical. If so, the court must consider making such an order (s.65DAA and MRR & GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424).

Assessment of primary considerations (s.60CC(2))

(a) The benefit to the children of having a meaningful relationship with both of the children’s parents

I am satisfied that until November 2008, the children benefitted from a meaningful relationship not only with their father, but also with their paternal grandparents and paternal aunts as well. It is significant in my view, as already noted, that on 8 November 2008, before the father raped the mother, the mother tried to encourage the father to maintain his relationship with the children when he said it was too painful for him to see the mother when attempting to see the children so he would not see the children anymore, and that she did so despite his prior family violence which the children had witnessed.
However, I am satisfied that affording the children an opportunity to reconnect with the father and members of the paternal family, so the children might have an opportunity once again to have a meaningful relationship with, in particular, their father, would come at a very significant cost.
I am satisfied that the father, the paternal grandmother and the paternal aunts want to tell the children that their mother put their father in gaol by lying about him. The children’s godfather, Mr A, a close friend of the father, posted on Facebook, where he called the mother a “scumbag”-
“As the godfather of both his kids I shall tell my goddaughters the truth of all the lies their mother has made and the damage she has done not only to him but to his family and friends”.
Even if it were true that the mother lied about the father raping her, telling the children would be very harmful to them and their relationship with their mother. The mother has not told them that the father raped her. But what the father and his family and friends assert and want to tell the children is not true. The mother did not lie about the father raping her. Thus, what I am satisfied the father, members of the paternal family and the children’s godfather want to do is to tell the children a lie about their mother that would have a serious adverse effect on them and their relationship with their abused mother, and, as the Family Consultant said, would be abusive of the children.
I am therefore satisfied that for the children to have an opportunity to have a meaningful relationship with their father, there would be a very significant detriment to them in the damage likely to be done to their very important relationship with their mother, the one parent with whom they currently have a close relationship. While they may also gain benefits from being able to have a meaningful relationship with their father, who X remembers and fears, and who Y does not remember, I am satisfied that the detriments outweigh those benefits, as I will elaborate in dealing with the additional considerations.

(b) The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

I am satisfied the father perpetrated persistent controlling and coercive family violence on the mother throughout their relationship and after their final separation, culminating in him raping her. The children witnessed some of the family violence, and I accept the mother's evidence of the effects of doing so on the children at the time. I am satisfied that X if fearful of the father to a significant degree because she has witnessed his violence towards her mother, and has on occasions tried to protect her mother and on others to protect her younger sister when the father has been violent to the mother. I am satisfied that it is more likely than not that X has also picked up on the mother's very serious anxiety about and fear of the father, and that this has contributed to her fear of her father, but I am satisfied that this is consistent with the child’s experience of her father and is not the only significant contributor to her fear of him.
The father has demonstrated himself unconcerned about the children being aware of his violence towards the mother. The mother screamed very loudly trying to attract the attention of neighbours when the father was raping her. The two children were in bed in an adjoining bedroom, but the father continued his violent attack on the mother with no regard for the effect on the children of hearing their mother's screams or even on them of coming into the room where he was raping their mother.
The father has, I am satisfied, threatened to kill the mother, and in light of the marked escalation of his violence to her in the rape on

8 November 2008, I am satisfied these threats must be taken seriously.
I am therefore satisfied that there is a very real risk to these children of being exposed to their father's violence to their mother and/or her current husband if the father could find them. And if the children spend time or have voice communication with the father or members of his family, I am satisfied there is a significant risk that the father will find out where the mother and the children live, exposing the mother, and through her the children, to the father's violence again, violence that markedly escalated after the mother left the father.

Assessment of additional considerations (s.60CC(3))

(a) Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.

I am satisfied that X is fearful of the father and most apprehensive about any contact with him. I am satisfied she does not want to see him or members of his family. I am satisfied that X’s views are formed by both her own witnessing of the father's violence and abuse of her mother, and by her being sensitive to the mother's understandable extreme anxiety and justified apprehension for her safety from the father. Considering the child’s age and the reasons for her views, I am satisfied her views should be given significant weight.
Y does not remember the father, and I am satisfied has no view one way or the other about seeing him.

(b) The nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the children)

As already indicated, I am satisfied that both children had a good relationship with the father, the paternal grandparents and the paternal aunts until November 2008. However, Y is now fearful of the father and the paternal grandmother. Her relationship with both of them is thus now a negative one marked by fear and apprehension.

Y has no memory of the father or members of his family and currently has no relationship with any of them.

(c) The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent

I am satisfied that because of the mother's extreme anxiety and fear of the father, she is unwilling and unable to facilitate a relationship between the children and their father. This is a result of the effects of the father's raping the mother on 8 November 2008.
I am satisfied that the mother's fear of the father is well-founded and justified. He has threatened to kill her, and after final separation continued to seek to control and coerce the mother, culminating in his raping the mother. Even when told by the mother that she had reported the rape to the police, he continued to threaten and attempted to coerce her by telling her that her children would be taken away from her.
While the Family Consultant suggested the mother's inability to facilitate and encourage a relationship between the father and the children indicated that the mother could not differentiate between her relationship with the father and her children’s relationship with their father, this ignores the reality of the situation. It was conceded by both applicants that if the mother is anxious and upset, it will adversely affect the children. They conceded the mother is scared of the father. I am satisfied she is rightly concerned that the father may attempt to harm her or kill her if he finds out where she lives.
If the mother is made more anxious and apprehensive for her personal safety by the children seeing their father and him potentially thus finding out where she lives, this must be detrimental to the children. But it would be disastrous for these children if their mother was again attacked by their father.
Thus, the children’s wellbeing is inextricably bound up with the mother's wellbeing, and I am satisfied that the mother cannot be criticised in the circumstances of this case for her unwillingness and inability to foster a relationship between the children and their father, when to do so would place the children’s welfare in serious jeopardy. In my view, the mother's approach is in fact child focussed, whether coincidentally or intentionally, and in this case what is good for the mother, in the sense of protection from the father, is good for the children.

(d) The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living

This consideration in my view is very significant and is determinative of this case. There are several aspects of it, including the effect on the children of being denied a relationship with their father, the effect on the mother, and through her on the children, of an order for the children to see the father, and the effect on the children of exposure to the views about the mother held by the father, his family and friends in relation to the reason for the father's incarceration.
The father admitted in cross-examination that his spending time with the children will likely make the mother extremely anxious. He agreed that the mother being afraid of him may make the children afraid of him. He agreed X was old enough when he broke the side mirrors on the mother's car that she may have realised what was happening. This occurred in 2008, when X was about five and a half. Since the incident when the father smashed the mother's phone and kicked both the mother's front security screen door and main front door until both broke occurred in the same year as the father breaking the mother's side mirrors, I am satisfied X would be likely to have understood what was happening then, too.

Effect on children of having no relationship with the father

Loss of any relationship with the father, and through him with the extended paternal family, obviously risks significant long term adverse effects on the children, including loss of part of their parental heritage and sense of identity, and loss of self-esteem and sense of self-worth, particularly if the children believe they are not worthy of their father's love. This in turn may engender in the children insecurity and depression, and have lifelong effects, including on their ability to form stable, mutually respectful and nurturing personal relationships into adult life.

Effect on mother and through her on the children of the father seeing the children

As already mentioned, the mother was assessed as having symptoms consistent with PTSD, marked by a very high level of anxiety. The Family Consultant commented on the mother's anxiety, and suggested heightening the mother's anxiety may adversely affect the children.
The mother clearly remains frightened and very anxious about the father. Her demeanour in court throughout the hearing was one of abject terror. One occasion when she said he threatened to kill her that she recalled was when they were watching a movie in which there was cheating. He smashed her phone and broke a security screen door and a main front door she was hiding behind when he suspected her of “cheating” on him, even though they were then separated. She was frightened the father would come after her after his release from gaol. When being cross-examined by counsel for the Independent Children's Lawyer about some of the violence and threats by the father after separation, the mother became extremely distressed and could not continue. Even on resuming the mother was crying and very upset, but said she wanted the cross-examination to continue so it would be over.
I am satisfied that the mother is genuinely deeply concerned for her personal safety. She has sought to keep her current location secret. I am satisfied that in the circumstances of the father's assaults on the mother and threats to kill her, her fears are not only genuinely held, but are entirely justified.
Any order that the children spend time, even supervised time, with the father will significantly heighten the mother's fears and anxiety because of the risk that the children will say something to enable the father to find out where she lives. I note that despite the father agreeing not to do or say anything to indicate to Y that he was her father during his observation with the children for the updated Family Report, the Family Consultant had to remove Y from the observation prematurely when the father asked a question that could clearly have resulted in Y learning he was her father.
I also note that the father has been prepared to breach AVO’s for the sake to seeing his daughters, despite the AVO prohibiting him from approaching not only the mother but the children as well. I am therefore satisfied that the father would be unlikely to comply with an order restraining him from making any enquiry of the children about their location. Even if he was unlikely to directly enquire of the children about their location, it is highly likely that if the children spend time with the father, even supervised time, eventually they will say something unbidden that would disclose their location.
I am satisfied that any order for the children to spend time with the father or any member of his family would significantly heighten the mother's anxiety, that the children would be aware of this, and that this would be detrimental to the children. I am satisfied that the level of anxiety and distress an order for the father or any member of his family to spend time with the children would be likely to engender in the mother would be likely to have a significant adverse effect on the mother's ability to care for the children and on her ability provide a calm and secure home environment for them, and hence would be detrimental to the children.

Effect on children of exposure to views of mother held by the father, his family and friends

As mentioned, I am satisfied that the father, the paternal grandparents, the paternal aunts, and the children’s godfather intend to tell the children, given the chance, that their mother put their father in gaol by lying about what he did to her. I am satisfied that this would be very harmful to the children. The Family Consultant said it would be abusive of the children, and I accept his opinion. It would jeopardise the children’s relationship with their mother, who has always been their primary carer and primary attachment figure, and the only parent with whom they currently have a close and beneficial relationship.
It was the Family Consultant’s opinion that if the father or members of his family intend telling the children their mother put their father in gaol by lying, then the children should spend no time and have no communication with the father or members of his family.

(e) The practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis

The mother's current residence was not disclosed, but it is some hours from Sydney. The regime of initially limited supervised time and then limited unsupervised time that gradually increases in duration would thus entail significant travel for what at least initially would be limited time. However, I am not satisfied that this is a significant factor in the decision I must make.

(f) The capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs

I am satisfied that the mother has met the children’s needs and will continue to do so. I am satisfied that in denying the children any contact with the father or the paternal family since November 2008 she has met the children’s needs, for the reasons given above in dealing with the mother's willingness and ability to facilitate the children’s relationship with the father.
I am satisfied that neither of the applicants have the capacity to meet the children's needs where they are inconsistent with the needs or wants of the father.
An amended application filed by the applicants in November 2010 sought orders that the children spend alternate weekends overnight with the paternal grandmother, and that once every four or six weeks, on the paternal grandmother’s weekend with the children, that the children spend time with their father. He was then serving his sentence in the (omitted) correctional facility. The paternal grandmother said she had discussed the orders being sought with the father. I note that as joint applicant, the father signed this amended application.
If the orders then sought had been made, the paternal grandmother said she intended taking the children on a 900 to 1,000 kilometre road trip to see the father, preferably every four weeks. She said it was her intention that she and her husband would leave with the children around 6.00 pm on Friday to begin the journey to (omitted), stopping after around three hours to spend the night at (omitted) where they would have dinner. When challenged at the appropriateness of the children, in late 2010 aged eight and four and a half, not having dinner until after 9.00 pm, the paternal grandmother said she would take food with her in the car. When it was suggested this was irrelevant if they were not stopping for dinner until 9.00 pm, she then said they would have dinner before leaving her home. When challenged on the inconsistency in her evidence, she admitted that she had not in fact really thought how the orders she and her son were then seeking might be put into effect. Thus, the paternal grandmother, who admitted that what she was attempting to do was to make her son happy, had not considered the impact of what she sought on the children.
The father demonstrated a lack of understanding of the children's needs. While acknowledging that X in 2008 would have been old enough that she may have understood what was happening when the father damaged the mother's car, phone and front doors, he professed not to be sure how it might have affected her. The father's actions were violent, they were directed at the mother, and X was present in the premises when they occurred. X would have seen the damage to the mother's car, and to the front security screen door and main front door when the father damaged them. She was inside the premises when the father repeatedly kicked both doors to the point of breaking them, and it is inconceivable that she could not have heard the noise.
The father denied that on the occasion he contravened the AVO by approaching the mother's home that he threatened the mother. He said he was on the way to a friend’s home and decided he would drive past the mother's home on the off chance he might see the children as he drove past. He said at that time X had a close relationship with him. However, he said he had not thought that if X saw him drive past without stopping it might upset her. He admitted on that occasion he was thinking only of himself, and not of the children.
But in my view the most significant aspect of this case demonstrating the father's unwillingness to put the children’s needs ahead of his own is the circumstances around the rape of the mother, when, as mentioned, the father continued his attack with no concern for the effect on the children of hearing their mother’s loud screaming in the next room or possibly entering the room during his attack on the mother.
I am also satisfied that the intention of the applicants, as well as the paternal aunts and the children’s godfather, to tell the children, if they have the chance, that the mother put the father in gaol on a lie, also demonstrates that all of them are concerned with vindicating the position of the father in relation to the rape of the mother, albeit his position is totally untenable, regardless of any adverse effect on the children. I am satisfied that the father and the paternal grandmother sought to mislead the court as to their intentions in this regard, so strong is their desire to tell the children. That fact satisfies me that they are aware that what they seek to do is harmful to the children and would not be sanctioned by the court, but they seek to carry their plan out nonetheless.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant

I have already commented on this in relation to X’s views.

(h) If the children is an Aboriginal child or a Torres Strait Islander child, the children’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

The children are of (country omitted) heritage. This consideration is irrelevant.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

I repeat in relation to this consideration what I have already said in relation to the parties’ ability to meet the children’s needs.

(j) Any family violence involving the children or a member of the children’s family

I have already dealt with this issue.

(k) Any family violence order that applies to the children or a member of the children’s family, if the order is a final order or the making of the order was contested by a person

I have already dealt with this issue. There is no family violence order currently in force between any of the parties.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

I am satisfied that the orders sought by the mother and proposed by the Independent Children's Lawyer would be less likely to lead to further proceedings than those proposed by the applicants. I am satisfied that making orders less likely to lead to further proceedings would be beneficial to the children, in that further proceedings would heighten the mother's anxiety and concern for her safety, with adverse consequences through her for the children.

(m) Any other fact or circumstance that the court thinks is relevant

There is no other relevant matter, other than as dealt with below in relation to s.60CC(4) and (4A).

The extent to which the parents have been involved with the children and have facilitated or failed to facilitate the involvement of the other parent, in particular since separation (s.60CC(4) and (4A))

I am satisfied that until November 2008, each of the parents have appropriately sought to participate in decision making about the children, spend time with the children, communicate with the children and provide material support for the children, and have facilitated the other parent doing so. The mother sought to dissuade the father from withdrawing from involvement with the children when he said he intended doing so on 8 November 2008, before he raped her.
Since November 2008, he father has not been able to be involved with the children, both because there was an AVO in force until March 2013 preventing him doing so, and because he was incarcerated until March 2014. He has however pressed for orders to see the children in these proceedings. While he has been incarcerated, he has had no income with which to contribute to the material support of the children.
Since November 2008, the mother has prevented the father from having any involvement with the children. For reasons already given, I am satisfied this was appropriate.

Assessment of competing proposals and other options

As mentioned, the effect of changing the children’s circumstances compared with not changing them is in my view determinative of these proceedings.
The proposals of the applicants would give the children an opportunity to renew their relationship with their father and his extended family, and thus have knowledge of their paternal heritage and know that they are loved and valued by both parents. However, it will come at the very considerable cost of exposing the children to abuse by being told, falsely, that their mother put their father on gaol on a lie, thus risking significant damage to the children’s relationship with their mother. I am satisfied it will also significantly heighten the mother's anxiety and apprehension for her personal safety, to an extent that will affect her ability to parent the children. I am satisfied the children will pick up on their mother's anxiety and this will itself unsettle the children. I am also satisfied that the applicants’ proposals will lead the father to discover the mother's whereabouts and will expose her to the very real risk of serious violence by the father, who has threatened to kill the mother. It would be disastrous for the children if the mother was subject to serious violence.
On the other hand, denying the children any contact or communication with the father and the paternal family, as proposed by the mother and the Independent Children's Lawyer, will deny the children any knowledge of their paternal heritage, and may lead the children to believe they are not loved by their father, and perhaps are unlovable. This may have significant long term negative effects on the children’s sense of self-worth and self-respect, and could lead to a range of problems in adolescence and adulthood, including depression and difficulty forming strong, stable and mutually respectful and supportive personal relationships.
However, it will have the benefit for these children of protecting their relationship with their mother, which is the only enduring strong parental bond either child currently has, by preventing the father and members of his family telling the children falsely that their mother had their father put in gaol on a lie. It will also benefit the children by reducing the fear and anxiety the mother rightly has for her own safety if the father were to locate her. It will significantly reduce the risk of the children being exposed to further family violence if the father were to locate the mother, and it will protect the personal safety of the children’s unchallenged primary carer.

Taking these matters into consideration, and where X’s present relationship with her father and the paternal grandmother is a negative one and Y has no relationship with either, I am satisfied that in the particular circumstances of this case, it is in these children’s best interests that they spend no time and have no communication with the father or the paternal grandmother or with other members of the paternal family.
I have considered whether some communication from the father and members of his family to the children may safely be provided, so the children know that their father and his family love them and are concerned for them. However, any form of voice communication will risk disclosure of the mother's location, any form of uncensored written communication will risk the children being told their mother put their father in gaol on a lie, and any form of censored written communication would have to be screened by the mother, and it may expose the mother to abuse and threats, such as the paternal grandmother, paternal aunts and the children’s godfather have previously engaged in on social media, with a consequent risk to the mother's equanimity and sense of security, which would adversely impact on the children.

Decision

For the foregoing reasons, I am satisfied that it is in the children’s best interests that they spend no time and have no communication with the applicants.
I am also satisfied that it is in the children's best interests to protect them and their mother in the terms of the injunction sought by the mother and proposed by the Independent Children's Lawyer. I am satisfied that the injunction should apply to both the applicants as the mother sought and not just to the father as the Independent Children's Lawyer proposed, because the paternal grandmother has clearly taken action in the past either explicitly on behalf of her son or that she thought was for the benefit of her son.
However, I am not satisfied that the injunction can justifiably be expressed to be an order for the personal protection of the children for the purposes of the power of arrest without warrant under s.68C, Family Law Act 1975, as both the mother and the Independent Children's Lawyer proposed.
The evidence is that neither the father nor the paternal grandmother poses any direct threat to the physical safety of either child. The mother conceded as much. The children therefore are not in need of personal protection from the father. However, their welfare and wellbeing is clearly under threat because of the risk of the father and members of his family wanting to tell the children their mother had their father gaoled based on her lies, and because of the father's threats to kill the mother. The injunctive orders are for the personal protection of the mother, including the restraint on the father and the paternal grandmother approaching or contacting the children, because of the risk of the children disclosing the mother's whereabouts and thus putting her personal safety at risk.
I will therefore express the injunction as being for the personal protection of the mother for the purposes of ss.68B and 68C.

I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Associate:

Date: 15 May 2014

[2014] FCCA 911

15 May 2014

Key Legal Topics

Areas of Law

Family Law

Criminal Law

Legal Concepts

Injunction

Remedies

Charge