Pitman & Bond
[2014] FCCA 2126
•12 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PITMAN & BOND | [2014] FCCA 2126 |
| Catchwords: FAMILY LAW – Parenting – the father has history of family violence in several relationships – children of this relationship aged 8 and 10 live in Darwin with the mother – father lives in South Australia – whether or not father should spend any time with children and if so on what basis. |
| Legislation: Family Law Act 1975 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) |
| Pitman & Bond (No.2) [2008] FMCAfam 1316 T v S (2001) 28 Fam LR 342 M v M (1998) FLC 91-979 Murphy v Murphy [2007] FamCA 795 Tindall v Saldo [2012] FamCA 1156 Watkins v Dermott [2012] FMCAfam 1301 Dylan v Dylan [2008] FamCAFC 109 Moose v Moose (2008) FLC 93-375 Millburn v Wallow [2013] FamCAFC 191 Slater v Light (2013) 48 Fam LR 573 |
| Applicant: | MS PITMAN |
| Respondent: | MR BOND |
| File Number: | DNC 656 of 2007 |
| Judgment of: | Judge Harland |
| Hearing dates: | 7, 8, 9 & 18 July 2014 |
| Date of Last Submission: | 18 July 2014 |
| Delivered at: | Darwin |
| Delivered on: | 12 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Holtham |
| Solicitors for the Applicant: | Story & Associates |
| Counsel for the Respondent: | Ms Morgan |
| Solicitors for the Respondent: | Hunt & Hunt Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Elliott |
| Solicitors for the Independent Children's Lawyer: | Marris & Co Solicitors & Barristers |
ORDERS
That all previous parenting orders be discharged.
That the children X born (omitted) 2003 and Y born (omitted) 2006 live with the mother.
That the mother have sole parental responsibility of the children.
That the father be restrained from spending any time with or communicating with the children except as allowed for in order 5.
That the father be permitted to send to the mother, at a postal address nominated by her, such letters, gifts and photographs as are age appropriate for the children and subject to the mother being satisfied that they are age appropriate and do not denigrate her, she shall give them to the children.
That the mother shall assist the children to write to the father should they express a wish to do so.
That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each child’s school reports to the father at the father’s expense.
That each party be restrained from denigrating the other to the children or in the presence of the children or permitting anyone else to do so.
That each party provide to the other their postal addresses and advise of any change within 14 days of the change occurring.
IT IS NOTED that publication of this judgment under the pseudonym Pitman & Bond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNC 656 of 2007
| MS PITMAN |
Applicant
And
| MR BOND |
Respondent
REASONS FOR JUDGMENT
X is ten years old. His sister Y is eight years old. They live with their mother in Darwin. The father lives in South Australia. Their parents are in dispute as to how much time the father should have with the children during school holidays.
The father concedes that the mother should have sole parental responsibility for the children. It was telling that both parents indicated when cross-examined that the orders they seek in their case outlines are not what they really want but what they felt they had to seek in order to retain their grants of legal aid.
The father has been in several relationships which have been characterised by violence. It is a very concerning pattern where he is the common denominator.
The father says he is a changed man after spending six months in jail for violently assaulting his former partner Ms M. He has family proceedings with Ms M in Western Australia concerning their child Z who is now aged three. Those proceedings were initially started in Darwin but neither Ms M nor the father live in the Northern Territory. The court transferred the proceedings to Western Australia.
The parties separated in August 2005. The mother did not have any other children. The father has a daughter A who is seventeen years old, Z three and B is a few months old.
The mother first commenced court proceedings in November 2007. She says she started the proceedings after she found out from the father’s then partner Ms W that the father had assaulted her. She also discovered that the police had found cannabis and amphetamines at the father’s home. As a result of this information the mother suspended the father’s time with X and Y.
Terry FM[1] (as she then was) delivered a judgement after a contested final hearing. At paragraph 11 she noted that the father stated that he had already undergone counselling with respect to the violence in 2007 and that he had learnt from it. He said that he had not re-partnered and the children were not at risk of being exposed to family violence in his care.
[1] She will be referred to as Judge Terry.
The mother suspended the father’s time again in October 2011 after Ms M contacted her and told her that the father had been violent towards her and regularly smoked cannabis when the children were in their care.
The court is faced with stark choices. At the end of the hearing the Independent Children’s Lawyer (ICL) submitted that the father’s time should not be any greater than the supervised time in Darwin because of the following issues:
a)family violence;
b)the father’s treatment of animals;
c)the father’s minimisation of his role in family violence;
d)father’s non-acceptance of facts put by others;
e)a repeating pattern of family violence in the father’s significant relationships over a period of many years.
At the end of the hearing the mother submitted that there should be no time between the father and children at all. The mother feels that it is only a matter of time before the father is violent again and it is better to end the relationship now rather than in a year or two’s time.
The father submitted that there should be significant time with him and the children in South Australia during school holidays. He acknowledged the issue for the court is weighing up the risks against the benefits.
For reasons which I will detail in this judgment only the ICL’s or the mother’s proposal are viable. It is a difficult choice to make.
Family violence in the relationship between the parents
The mother says that her relationship with the father was abusive. She says he would call her names and put her down. She also says he was controlling and in the later part of the relationship physically assaulted her and damaged her car.
The father’s treatment of animals
The father’s alleged mistreatment of animals was raised in the 2008 hearing. Judge Terry was not satisfied on the balance of probabilities that the father was deliberately cruel to animals based on the mother’s evidence which relied on, in one instance, an account by A who was about six at the time (some five years before the hearing), and notes from a domestic violence counsellor about an incident in 2003 which the mother could not independently recollect.[2]
[2] [54-56] Pitman & Bond (No.2) [2008] FMCAfam 1316
Ms M says that she saw the father mistreat his dogs. She saw him hit them and leave them tied up. He hit them if they went into the bush chasing wallabies and did not come back when the father called them. She says in June 2010 the father told her that the male dog had bitten him so he bit the dog back. She says she saw the dog the next day with a 1 cm piece missing from the tip of his ear. She describes other incidents of mistreatment in detail in her affidavit.
Ms M says she did not ring the RSPCA or take the dogs to a vet because she was threatened by the father as well and the father would get quite upset.
The ICL cross-examined Ms M further about the father’s mistreatment of animals. She said that on more than one occasion Y became distressed by the dogs yelping after the father mistreated them.
Ms M says that when she was four months pregnant the father booked himself into (omitted) to get off alcohol. She says he did not mention going there for his drug problem. She did not know if he stayed at (omitted) or not.
The mother was concerned when she saw X acting aggressively and mistreating animals in late 2011. Her concern was X may have been modelling the father’s behaviours.
The mother says that during the period X did not see his father as he was in jail, he treated animals with respect.
The father denies mistreating animals. He says he and his current wife have several animals on their property. His current wife says that she has never seen the father mistreat animals.
The family report writer gave evidence that if the court finds that the father has mistreated animals this can create possible disturbing attitudes in the children towards their own treatment of animals and lead to the children having a lack of empathy with other creatures.
The mother expressed real concern about X modelling himself on his father and refers to her seeing X being cruel to animals. She was concerned about the father being a poor role model for the children. She expressed concerns that she did not think the father would be able to change in the future.
I find on balance of probabilities it is likely that the father has at times mistreated the animals when he has lost his temper. I think this is likely to be intermittent behaviour rather than constant.
The Father’s minimisation of his role in family violence
It is clear from the report prepared by psychologist Mr M dated 13 September 2013 that the father minimalized his role in the violent incident where he bit Ms M’s ear off. Mr M reports that the father takes “full responsibility for his actions”.[3] I do not accept that the father has accepted responsibility. In my view the father knows what he is expected to say and he will repeat that. He is also aware of what he has to concede because of the evidence against him but he goes no further than he absolutely has to. The report is a shallow one. Mr M was not available for cross-examination. I do not place any weight on his opinions. The significance of the report is the father’s reporting of the violent incident with Ms M.
[3] The report is Exhibit 2.
The report is also of interest with respect to the comment about the father’s low motivation for treatment. He notes if the father did engage in treatment an area for attention or concern could include “he may not feel that any personal changes are needed or may be reluctant to discuss personal problems”.[4]
[4] See annexure A of Exhibit 2.
It is significant that the father claims that even his psychologist got things wrong in his report when faced with contradictory versions of events. He claims not to have sought that the psychologist correct his report because it would cost money. Given the importance of the proceedings the father’s explanation is not credible. It is more likely that Mr M accurately recorded what the father told him.
The father still maintains that he was acting in self-defence of Ms M’s aggression but went too far. He denies other instances of violence.
In his affidavit the father addresses family violence, paragraphs 39 to 45, in a cursory manner. He says that he has not harmed X or Y. He goes on to say that he understands about the impact of family violence can have on children as he did courses in jail about it. It is not true to say that he has not harmed X and Y because they have been exposed to his family violence. Children are impacted by family violence whether or not it is directed to them or one of the family members and whether or not they witnessed it directly or are exposed to it in the household.
The father sought to alleviate the mother’s concerns about him exposing the children to violence with his proposal that his wife Ms J supervise his time with the children.
He said the following at paragraphs 44 and 45:
“I have committed domestic violence in the past. I cannot deny this. I believe however that I have learned from my mistakes and have benefited from Ms J keeping me on the straight and narrow.”
“I am not going to go into detail about the violence I have committed. As I have said I admit this. I’m not proud of what I’ve done. But I sincerely believe I have changed since meeting Ms J. I have the strength and commitment from that relationship and from my new family to do the right thing by all my children and this includes not harming them or anyone close to them in any way whatsoever.”
The court does not derive any comfort from these statements. The father does not say what violence is committed and what he takes responsibility for. It is clear from his psychologist report and the transcript in the judgment from the criminal proceedings that the father continues to downplay his responsibility for violence and blame others. I have the impression that the father having now attended several counselling sessions and other courses that he is aware of the things that he should say in order to attempt to reassure the mother and the court that he is a changed man. It is reminiscent of the 2008 proceedings and it is significant to note that rather than the father not committing any further violence since that period he committed a violent act which caused him to be imprisoned which is an escalation of his previous violence.
Ms Elliott cross-examined the father about his violence towards Ms C. Ms Elliott put to him that he broke Ms C’s nose. He replied “that’s what the report says.” When asked again he said yes. This is typical of his attempts to avoid and minimise his responsibility. The ICL described the father’s attitude well which is that he only accepts the violence on his own terms.
The father’s drug use
Ms M gave evidence that the father smoked cannabis consistently and heavily during her relationship with him from early 2010 until February 2012. I do accept that the father smoked outside when the children were in his care and did not smoke in front of them. Ms M said in cross-examination that he was careful about this because of the order but she also said in her affidavit that he would ask her to keep an eye on the children so he could smoke outside. The point of the order was that the father not be under the influence of drugs whilst the children were in his care.[5] The important point is that he was under the influence when the children were in his care.
[5] See Order 10 of the orders made 10 December 2008.
I do not accept the father’s evidence as to when he stopped smoking marijuana. If that were the case he would not place so much emphasis on one of the positives about going to jail being it helps him stop his marijuana habit.[6] The paternal grandfather contradicted the father’s evidence stating that he believed his son stopped using drugs when he was incarcerated. The father told the family consultant in the Western Australian proceedings the father saying he has not used any illicit drugs since he was incarcerated.[7] The father was very defensive when cross-examined about the fact that he claims that he stopped using cannabis in mid to early 2011 yet he refers to his imprisonment as helping him stop using drugs. I find that the father continued to use cannabis until he went to prison. There is no evidence that he is currently using drugs.
[6] See for examples paragraph 16 of Mr Schafer’s report.
[7] See Exhibit 3.
Father’s repeated pattern of family violence in several relationships
The father was in a relationship with Ms C. They have a daughter A who is aged 17.
The father had a relationship with Ms W. The mother says that in November 2007 Ms W told her that the father had assaulted her. The mother also found out that the police had discovered drugs at the father’s home. The mother suspended the father’s time with the children and commenced court proceedings.
The 2008 judgment of Judge Terry is relevant here. At that hearing the mother proposed that the father undergo counselling with a qualified psychologist and about domestic violence, respectful treatment of women, emotional responsiveness and illegal drug use. The father said he had already undergone counselling after the event in 2007 and that he had learnt from the counselling. He also said he was not in a relationship with anyone else the children were not at risk of witnessing any violence when in his care.[8]
[8] [8-9] Pitman & Bond (No.2) [2008] FMCAfam 1316
During the 2008 hearing the father admitted that he was a violent towards Ms C who is the mother of his eldest child A. The father filed an affidavit by Ms C that she was not available for cross-examination and the extent of the violence was not able to be explored.
Ms W also gave evidence and also alleged that the father was violent towards her during her relationship with him. Judge Terry found that Ms W’s evidence “was not entirely reliable”. The father did admit to grabbing Ms W and pushing her on one occasion but claims he was provoked. Judge Terry was satisfied that the mother did see bruising on Ms W in September 2007[9] and considered that the father’s violence was likely to be much greater than he was willing to admit.
[9] This is a typographical error in the judgment which refers to September 2009 instead of 2007.
Paragraphs 69 to 72 of the judgment are significant and are set out in full:
69. I finally note that while the father made some admissions to having committed acts of family violence, and voluntarily commenced domestic violence counselling after separation from Ms W, during his evidence the father on many occasions placed blame for what had occurred on the relevant female partner, who he alleged had acted in a provocative or offensive manner or had been physically violent to him first.
70. I do not accept that the father’s past family violence was ever justified. I am satisfied that the father is minimising the extent of the past family violence he has committed, and that he has not yet reached a point of fully accepting responsibility for his actions.
71. Dr B conducted a psychiatric examination of the father. He said that in his opinion the father was not suffering from any psychiatric illness. Dr B said that the father was somewhat cut off from his emotions, but not to such an extent that Dr B would consider a diagnosis of antisocial personality disorder.
72. Dr B’s opinion was that the family violence perpetrated by the father was likely the result of the father failing to deal with his emotions and lacking a range of strategies to deal with conflict.
The mother alleged in the 2007 hearing that the father was controlling and intimidating and subjected her to verbal, emotional and psychological abuse. She also gave evidence about two physical instances of violence. Judge Terry was satisfied that the father was physically violent towards the mother on two occasions and also deliberately damaged the mother’s car.[10]
[10] [50] Pitman & Bond (No.2) [2008] FMCAfam 1316
At paragraph 51 of the 2008 judgment Judge Terry stated that she could not be satisfied:
“that the mother was the victim of a one-sided is controlling and abusive relationship however, rather than a party to a sometimes unhappy relationship in which verbal arguments and yelling occurred from time to time…”
Paragraphs 77, 78 and 80 of the 2008 judgment are also set out in full:
77. Given the history of the father committing acts of violence in three past relationships, and Dr B’s evidence about his personality, I certainly cannot be satisfied that there is no risk whatsoever of the father committing acts of family violence in the future in a new relationship. This is not a case where one bad relationship brought out the worst in a person not normally prone to violence.
78. I do take into account however that there have been no further incidents of violence since November 2007, and that the father has not re-partnered. Mr S pointed out that “the current litigation is likely to have instilled in [the father] a stronger awareness of the mother’s unwillingness to tolerate the children’s exposure to such violence and provided him with a warning about the serious implications that this may have for his contact with his children in the future.” The father is squarely on notice that if he transgresses again his time with his children, to whom on any view of the evidence he is devoted, could be jeopardised.
80. The father voluntarily attended counselling after his separation from Ms W. He has received a wake up call as a result of the commencement of these proceedings, and he does not want to lose his children. In my view there is reason to be cautiously optimistic that the father will do everything in his power to ensure that his children are not exposed to him perpetrating family violence in the future.
The father was adamant during the 2008 hearing that he was not at risk of committing further violence and that there had been periods in his relationships where he had not been violent.
Judge Terry rejected the father’s submission that the mother was being overprotective and unjustifiably attempting to restrict his time and trying to marginalise him. Paragraphs 108 and 109 are set out below:
108. I do not accept that this is so. Insofar as the mother does not wholeheartedly support the children having a relationship with the father, it is because she reasonably fears that the children might be exposed to family violence and illegal drug use in the father’s care.
109. The father would do well to bear in mind the opinion expressed by Mr S, as follows:
“Although Ms Pitman’s willingness to take a stand on safety and parenting issues has perhaps prompted the current litigation, and caused considerable stress to each parent, it is my opinion that her stance is likely to promote an improved level of care for the children and an awareness of how vulnerable children are when exposed to the failings of adults. In my opinion Ms J would do well to acknowledge the legitimacy of the mother’s concerns and to respect her right to speak up in advocating for the safety and protection of their children.”
Judge Terry was satisfied that the father had committed acts of family violence against Ms C, the mother and Ms W and that the children were present on at least one occasion with respect to Ms W, also with respect to the mother and the father damaging the mother’s car.[11] Judge Terry was “cautiously optimistic” about the father not committing violence in the future.
[11] [136] Pitman & Bond (No.2) [2008] FMCAfam 1316
Ms M
Ms M says that during her relationship with the father she saw him smoke cannabis heavily. He started smoking in the morning and smoked at night after work.
At paragraph 41 of the affidavit Ms M details incidents where she says the father was physically abusive towards her when she was nine months pregnant with Z, in September 2011 and October 2011.
The police records of the incident between the father and Ms M on 16 October 2011 notes that X and Y were present. When the father was asked about this he said he could not remember. I am satisfied that the children were present and were directly exposed to the father’s violence.
She details the incident where the father bit off part of her ear at paragraphs 56 to 59 of her affidavit.
Ms M was cross-examined about the incident where Y fell out of her father’s car. She says the father yelled at Ms M fussing over Y and said that Y was being a ‘wuss’ when she was trying to check Y’s injuries. Y had scrapes on the right side of her body on her elbow, thigh and knees and was very dirty. Ms M was able to give detailed incidents when she was cross-examined. She was a credible witness.
Ms M was due to give her evidence by videolink but due to technical difficulties the video link did not proceed. This does place limits on the court’s ability to assess her demeanour. Ms M said she did not have her affidavit in front of her when she was cross-examined. She gave her evidence in a clear and consistent manner. Her evidence was consistent with her affidavit. She was not shaken during her cross-examination. She was a credible witness.
Ms M sets out the instances of where she says the father was physically abusive towards her in paragraph 41 of her affidavit. She refers to several incidents in some detail. These do not include the incident where the father bit off part of her ear. She was cross-examined about the incident of violence between her and the father in October 2011. She referred to there being other minor physical instances. Any physical violence by one person to another is serious. I accept Ms M’s evidence there were several instances where the father was physically violent towards her as well as there being other instances of emotional and verbal abuse.
Exhibit 3 is the child dispute memorandum from the Western Australian Family Court proceedings between Ms M and the father concerning their child Z, who will be 3 in August. It is significant that the father reported to the family consultant that there was ‘normal’ verbal abuse between Ms M and himself and only one violent incident. The consultant also records that the father “claimed there was not any violence in any other relationship he had or is currently in.” This simply is not true. I acknowledge that the author of the memorandum has not been cross-examined. The father says the family consultant must have mis-recorded what he said and that he thinks he was asked if there was any violence in the present relationship. I do not accept the father’s evidence.
The descriptions the family consultant records in that memorandum are consistent with the father making admissions to the extent he has to because of there being objective evidence he cannot contradict. For example, he says there that was only one violent incident between him and Ms M. He admits that Z was present. I accept Ms M’s evidence that not only was Z present but Z was in Ms M’s arms when the father assaulted her. This would have been terrifying for Z.
Exhibit 4 is the transcript of the father’s criminal sentencing and the judgment about the disputed facts with respect to the father’s guilty plea. It is clear from Exhibit 4 that the father sought to minimise his role in the assault claiming it was self-defence. The Judge preferred Ms M’s evidence to that of the father. He said noting the build of the Ms M and the father it was “near ludicrous to suggest that the offender could have been or could have thought that he was in any danger at her hands.” When cross-examined about the criminal proceedings it was clear that the father disagrees with the findings. The father does not take responsibility for his actions. He denies being violent towards Ms M in 2011. I do not accept his denials.
It is also significant that when Mr S interviewed the father in 2012 the father denied all claims of violence against him and complained that the mother and Ms M colluded against him. The father now says that he was wrong. The father cannot sustain any other position in light of his criminal conviction.
I think the father has learnt to say what he thinks are the right things. An example of this is when he says that he has changed his attitude from the time in 2012 when the father told Mr S he had made poor choices in partners to the current time when he said when cross-examined that he has perpetrated violence against women. It is clear that when the father is asked to comment in detail he continues to minimise his responsibility for family violence as is most evident with respect to his violent conduct towards Ms M. It is also evident in what he told the Western Australian family consultant and his own psychologist.[12]
[12] See exhibits 2 and 3.
I prefer Ms M’s evidence to the father’s wherever they conflict.
The father’s relationship with the children
The father has had limited involvement with the children. Despite this the children appear to enjoy spending time with him and X in particular wants a relationship with him.
Judge Terry made orders for the parties to have equal shared parental responsibility, the children live with the mother and spend time with the father three nights a fortnight. The father was restrained from using illicit drugs while the children were in his care.
Ms M says that while she was in a relationship with the father she spent a lot of time with the children when they came to stay even during the period before the father moved into her home. She says at that time the children seemed happy. She comments on the father showing favouritism to X and says he would spend a lot of time playing videogames whilst she spent time with Y in the garden.
The mother stopped the father’s time in October 2011 after Ms M contacted her about the father’s violence towards her.
The father filed a Contravention Application after the mother stopped his time. Judge Turner found that the mother had contravened the orders but had a reasonable excuse. She suspended the 2008 orders and ordered the father to spend supervised time with the children at CatholicCare.
The mother complains that the father has shown favouritism towards X. Certainly X has a stronger relationship with his father but that can be explained by the age difference and when their relationship ended. The CatholicCare notes did not reveal any signs of favouritism except for the gift of the shirt for X which the father was unable to explain. It is not surprising however that the father would not show favouritism when being supervised. Ultimately I do not need to determine this issue.
The father did not see the children at all during the nine months he was in jail. He spoke to them by telephone.
After the father was released from prison in June 2013 he moved to Queensland. Since then the father has spent time with the children on the following occasions:
a)On 6 October 2013 for two hours at CatholicCare;
b)On 20 October 2013 for two hours at CatholicCare;
c)On 31 October 2013 for two hours at CatholicCare;
d)On 15 November 2013 for two nights supervised by the paternal grandmother (after commencing for two hours at CatholicCare);
e)For three nights in December 2013 in (omitted) supervised variously by the father’s parents.
It would be wrong to say that the children have not been affected negatively by their father’s violence. The mother arranged for both children to engage in play therapy to help them deal with the end of the father’s relationship with Ms M and the father going to prison. The mother says the children saw Ms M with bandages. She says the children asked what happened and if their father did it. She says she had to explain to them what happened. The children were close to Ms M and know that the father assaulted her. Children do not need to witness violence to be affected by it.
It was telling that the father required the mother to pay for the tickets for the children’s rehearsals for an upcoming school concert in order to take them to the rehearsal on his weekend instead of appreciating that it was something the children wanted to do and it being an opportunity for him to participate in something the children are involved in and which is important to the children. The father admitted that he told the children they would not go if the mother did not pay for the tickets. When cross-examined about this the father raised his voice and complained that he has asked the mother to swap weekends and she refused. He accepted that it was important for the children to attend.
It is also significant that he did not tell the mother he moved to South Australia and let the mother find out from the children. This indicates a lack of insight. The mother had to deal with any questions the children had about that without any warning. When the father was asked why he did not tell the mother he said it is “I’m not compelled to tell her”. He claims however that in the future he would text or email her about any changes to his residential details. When the ICL asked him about this he said “I can’t control what the children tell their mother”. He is dismissive of the mother. He shows a lack of understanding of the responsibility of parenthood.
The father also became agitated and defensive when he was cross-examined about his behaviour at CatholicCare including the incidents where he complained about having to wait 15 minutes after the mother left. It was put to him that it would be easier for him to wait rather than the mother having to wait which would involve the children waiting as well. He said in hindsight that was the case and then pointed out that he thought this was before he went to prison. The father places much emphasis on going to prison as being changing point in his life.
Ms Holtham referred the father to the 2008 proceedings where he told the court that he had learnt about the effects of family violence on children but continued to perpetrate family violence after that. He conceded that was true. When asked what makes this time so different he replied that his time in prison made him think about it. When asked about the impact of family violence on children the father said that the children were never there directly but that can affect them by making it hard to cope at school and the conflict between parents is not good for them. He said he was not sure that X had in fact said to his mother that he wished Ms J had not had the baby but that if X did say that he is ashamed that X would think that he could harm his baby. He says he believes the children have picked things out partly from the talk around them and partly from what he did. I accept the mother’s evidence about this. It is not surprising that X would express this concern given the father’s violence towards Ms M when Z was a baby.
Both the mother and Ms M complain that the father has been irresponsible when the children were in his care. The best example of this is the father’s attitude towards the children’s asthma. The mother says in 2011 she gave the father the children’s asthma medication, including their preventers with instructions. The preventer must be taken every day to avoid asthma attacks. The father says he used the preventer until it ran out. He did not tell the mother that the medication ran out. He did not get new medication. The father is a long term asthma sufferer which makes his behaviour harder to understand.
The (omitted) visit and the father’s parents
The mother’s distrust of the father was heightened by the fact that he was not supervised at all times by one of his parents during the children’s visits at Christmas time. It became clear during the course of the hearing that the father and his parents did not understand that supervision requires one of the supervisors to be present at all times. It was not effective supervision for one of his parents to travel in a separate car to the father and children. I do not find that this was a deliberate disregard by the father and his parents but a lack of understanding. The mother’s concerns about this is reasonable and it does raise a question mark about whether or not they are effective supervisors.
Both of the father’s parents gave evidence in these proceedings.
The father’s father Mr C also affirmed an affidavit filed on 26 June 2014. He only provided supervision for a couple of hours. He could not say who was supervising the father when both he and Ms E were present on the Sunday afternoon. This is an indicator of him not taking the role of supervisor seriously. The paternal grandfather made it clear in his affidavit and in evidence that he has no time for the mother. He also says in his affidavit that the father has done “stupid things in the past but he is good dad and would never hurt his children”. He has had little opportunity to observe the father with his children. My sense from both the father and the paternal grandfather is that they do not have a close relationship. He could not be relied on as a supervisor in the future. It was telling when he said he does not ring any of his grandchildren “and the door swings both ways”. He has only met X and Y a couple of times.
The father’s mother Ms E affirmed an affidavit which was filed on 26 June 2014. She describes the visit she supervised in Darwin and the visit in (omitted). She says that the father is a wonderful father and would never harm his children. She says his love for the children is obvious and it is clear that the children felt the same way.
Ms E was cross-examined. She was asked if she was aware that her son had been violent in four of his five major relationships. She said she had not seen it but was aware of it and talked about the difficulty of having a son going to prison. She said she did not condone the “stupid and unforgivable things” he did in the past. She says the prison system worked for him and that he has emerged as a better person.
Ms E gave evidence about her understanding of the incident between the father and Ms M. She was there during the criminal proceedings and heard the differing versions and the judge’s comments favouring Ms M’s version. Ms E said she was not there so she could not know what Ms M did. This is suggestive of Ms E minimalising violence and enabling the father to do so. Ms E said that she has said to the mother in the past that no matter what happens between partners it does not have anything to do with the children. This shows a fundamental misunderstanding about the impact of violence on children. It is clear that Ms E (with the exception of the father biting off Ms M’s ear) does not accept that the father has been violent towards women at other times. Her answer is that why would she believe it if she has not witnessed it herself.
It is not surprising that the father’s parents are loyal to him. It is apparent however that they do not appreciate the seriousness of their son’s behaviour and are probably not aware of the extent of the father’s violent behaviour in his previous relationships. I think Ms E is well meaning and clearly wants to have a relationship with all of her grandchildren but in light of her evidence she will not be an effective supervisor in the future.
Whether or not the father’s wife is a protective factor for the children
The father’s new wife Ms J affirmed an affidavit which was filed on 26 June 2014. She was initially in a relationship with the father after he split with Ms M at the end of 2010. The father and Ms M then reconciled. Ms J says she recommenced her relationship with the father in March 2012. She supported the father throughout his criminal case.
They moved in together upon the father’s release from jail and they got married on (omitted) 2013. They have one child together B born on (omitted) 2014. Ms J also has a child C aged eight from a previous relationship. They moved to Queensland in July 2013 where the father’s extended family lives. They moved to South Australia where Ms J’s family lives earlier this year.
Ms J says that the father is a great help with their baby B and also has a good relationship with her daughter C. She has only seen X and Y once when they stayed in Queensland from 20 December to 22 December 2013. She says that she observed that the children have a strong bond with the father.
She says she has no tolerance for violence and would leave the father if he hurt her in any way. She says at paragraph 35 “I think prison changed Mr Bond’s outlook on life. Although I must point out that Mr Bond has never displayed any violence towards me in the whole time I have known him.”
She says she has not observed the father being violent towards any person or animal. Her relationship with C’s father was a violent one. She says that the mother’s concerns are reasonable based on her experiences and for this reason she is prepared to initially supervise the father’s time.
Ms J referred to an incident on 4 May 2012 when the father was supposed to see X at CatholicCare but it was cancelled as X had a soccer game. The father found the time and place of soccer game and attended. She says the father rang the mother to let her know he was there. He said he approached the mother for a few seconds and then walked away. She says the mother did not appear distressed. The father approached X after his game. She says it was an innocent incident and she could not understand why the mother was upset. This is of some concern given that she is nominating herself as the supervisor. She conceded she knew the father was only having supervised time at CatholicCare when he attended X’s soccer game. The father was only having supervised time during this period. He should not have attended the game without seeking the mother’s permission first and certainly should not approach the mother or X. I was not impressed that Ms J had a good understanding of the requirements of supervision.
When the mother was cross-examined about Ms J supervising the father’s time with the children the mother said that she does not feel comfortable about Ms J supervising because “she is a woman and that’s who he perpetrates against”. Ms Morgan referred the mother to Ms J’s statement in her affidavit that she will not tolerate violence. The mother replied that Ms J supported the father during his criminal case and past behaviour and that is supporting violence.
The father said when asked that Ms J is not fully aware of the details of his past violence. He denied seeking to minimise the violence. He told her his version of the incident on 25 February 2012 when he bit off part of Ms M’s ear. He then said that she also heard the sentencing comments in the criminal proceedings.
Ms J said the father admitted to the incident with Ms M straight away. It is clear that what he admitted was his version, not the version accepted by the Criminal Court. He has not told her much about the mother. Again this is consistent with the father only admitting to what he cannot reasonably deny because of other evidence.
Ms J shows poor judgment and insight by lying to her husband’s mother about his attending counselling in South Australia as does the father himself. Her response to the incident at X’s soccer game also shows poor judgment.
I am not satisfied that Ms J would be an effective supervisor and protective factor for the children. I did not find Ms J to be a credible witness in many respects. She is very supportive of her husband and that is understandable. It is also clear that she is not aware of the full extent of her husband’s violent past.
Credibility of the father
At several points during cross-examination the father said he could not remember when asked questions about the incident with Ms M or what he told the family report writer in 2012 and 2013 at the family report interview.
I find that the father is someone who can portray himself positively. At times he loses his temper and mistreats people and animals. This is intermittent conduct by him rather than constant.
Evidence of the family report writer
Mr S was the family report writer in the 2008 proceedings and also prepared two reports in the current proceedings.
The first report is dated 6 June 2012. The time of the first report Mr S noted that from the mother’s perspective the issues before the court were a continuance of the concerns and issues that were canvassed in the 2008 proceedings. The father denied all claims against him and argued that the mother and Ms M were in collusion together against him.
At paragraph 17 of his 2012 report he noted that the mother presented as “acquired, thoughtful and who was genuinely concerned for the welfare of her children.” He noted that the concerns were the same that she raised in his 2008 family report but that things had deteriorated since then and there appeared to be more evidence to support her concerns.
Mr S described the father as a “confident, persuasive individual who denied many of the claims levied against him.” He was highly critical of the mother and Ms M in the first report. Whilst taking some responsibility for the violent incident with Ms M, it was clear he was at pains to say that she was equally responsible and that he should have handled it better but that she had assaulted him and destroyed his possessions. The father did not see himself as having problems with violence against women. Mr S noted that the father had spoken to a counsellor in Queensland about family violence but it appeared that he was minimising his role in that if he was reporting the comments of the counsellor accurately, the counselling might be actively assisting him in avoiding responsibility for violence rather than dealing with it.
Mr S interviewed the children and noted they were shy and awkward when talking about the family situation but otherwise presented as happy and active young children. He noted that the children thought highly of Ms M and missed her. The children knew that they were no longer together because the father bit off her ear. He said Ms M told him he saw the bandaging. He was not able to observe the children with the father which was a limitation of his report.
The report writer noted that the fact the father had been involved in family violence with four of his former partners, and has been engaged in counselling in 2008 and more recently. He noted the father’s comments about counselling, and said they:
“provide little encouragement in assessing the father’s capacity to effectively address issues of violence towards women in the future. The likelihood of benefiting from further counselling and/or education is in my opinion unlikely.”
At paragraph 53 Mr S says:
“The father’s claim that the children have never witnessed violence against women requires some comment. I am not aware of any specific incidents concerning the children having directly witnessed domestic violence involving the father, although they are well aware of the nature of the recent assault upon Ms M. However, it should be acknowledged that there is often a pattern involved in the conduct of such relationships that involve coercion, control and intimidation of a partner that in itself models relationship dynamics that are not a healthy example for children of how to maintain a respectful and positive relationship. The exposure of children to such negative models may well increase the possibility of them adopting gender roles based on what they have witnessed and highlight the likelihood of their own involvement in abusive relationships in later years.”
Mr S also said that there “is a feint perception that counselling may be used by the father as a strategic means of convincing others of the progress he has made in addressing the real concerns that may be held by others.” I think this is likely and it is also very telling that the father and his current wife lied to his mother about the father attending counselling in South Australia.
Mr S was not supportive of the children having no contact with the father at that point in time. He noted that much would turn on the evidence of Ms M and the need to fully assess the evidence.
Mr S’s second report is dated 12 August 2013. The father reported to Mr S that he had been in a relationship with Ms J since early 2012 (which contradicts his statement to Mr S where the first report said it was not a relationship). The interviews for the 2012 report took place late May and early June 2012.
The mother’s position remained unchanged. She did not want the father to see the children. The mother reported that both children were engaged in play therapy through their school.
The father again presented as confident and persuasive and stated that he believes that the children want to see him and have a relationship with him. The father commented on the previous family report and said that he had not sought to minimise or deny the violence in his relationship with women but that he felt stressed at the time of the interviews and felt the need to defend himself. He also said that he would not deny his guilt with respect to the assault on Ms M. It is significant to note that by this time the father had been convicted and had served nine months in jail. In those circumstances it is impossible for him to credibly continue to deny responsibility.
The father argued that in light of the changes in his life which included his experiences in jail, being on a three-year good behaviour bond and his relationship with Ms J, as well as moving to Queensland with his family, that he should be given another opportunity to maintain and develop a relationship with the children, critically as the children want a relationship with him.
Mr S was able to observe the father with the children and noted positive interactions between the children and their father. Mr S identified that X in particular appears to need a relationship with his father whilst Y is not as needy which could be due to her younger age at the time the parents separated and having less opportunity to bond with the father. He also acknowledged the possibility that the father favours X over Y as alleged by the mother and Ms M.
Mr S again said he was troubled by the proposals of the father having no time with the children and again emphasised “at this point in time”. He refers to the changes in the father’s life. He has more confidence in those changes than the court does. He did pose the question of how many chances a parent should be given to demonstrate their commitment and capacity to care for children.
Mr S talks about in the event of the children being exposed to violence whilst in the father’s care where the father is found to have used illicit drugs or engaged in alcohol related offences that then there would be “ample reason to review any arrangements for the children to spend time with him, and to reconsider that possibility he is not a suitable role model for the children.” As Mr S noted himself previously that was not the first time these issues have arisen and it is the question of whether or not the father should be given yet another opportunity to prove himself is of real concern to the court.
Mr S was asked about the impact on the children if their mother is concerned and fearful of the children spending time with their father. Being aware of their mother’s hesitancy or reluctance may promote the children’s own anxiety and insecurities.
Mr S observed some anxiety in the children when observed with their father but this was understandable as they had not seen their father for a considerable period of time. It was a controlled environment and then they settled and had a good time with their father.
Mr S noted that for the first report interviews the father tended to minimise and rationalise his violence against Ms M. For the second interview he more openly acknowledged he had done the wrong thing but he still attributed some blame to Ms M.
Mr S confirmed that the greatest predictor of future violence is past violence. He comments that cruelty to animals shows a lack of empathy and is one of the factors showing a willingness to perpetrate violence against others.
Mr S acknowledged that there are substantial factual issues in dispute.
The ICL put to Mr S that the transcript from the criminal proceedings show that the court had a different view to the father as to his responsibility for the violence and that the father’s actions were much more serious than the father says. Mr S acknowledged that there is an element of minimisation and rationalisation by the father. The father presents it in a positive and persuasive way. He also noted that it is not uncommon for people to use counselling strategically and this is consistent with the father wanting to present persuasively and positively.
Mr S commented on the Queensland psychological report where it was noted that the self-concept of the father was positive. The father may not feel any personal change is needed. He was not surprised to hear that the father, through his wife, reported to his mother that he was undergoing counselling when he was not. Mr S said this did not surprise him because of the father’s tendency to present himself positively. It undermines the father’s credibility.
During cross-examination Mr S still expressed discomfort with there being no time between the father and children. His observation of the father and the children was positive. The father has issues with credibility but foremost is the impact on the children if they have no contact with their father at all.
Mr S said that supervised time in Darwin would give the children a very limited relationship with their father. Unsupervised time in Darwin would provide the potential for the children to develop a better relationship with their father but he expressed concern about the father becoming a marginalised figure in the children’s lives.
When asked what if the father’s behaves in the same manner he has in the past Mr S says he raised this in his report and questions how many opportunities do you give him and given the changes in his family situation and the observations of him with the children he was prepared to give him the benefit of the doubt. I have difficulty with this position as it is clear that the father has been given the benefit of the doubt previously. The findings in the 2008 judgment should have been a real warning to him yet his violence escalated after this and was not isolated as the father seeks to suggest.
Mr S says that Ms J supervising the father’s time would be beneficial to the children, even though they don’t know her, because they would be in a more natural setting with their father.
Mr S wrote two family reports and gave evidence in Ms J’s family law proceedings and he feels she would be very protective of C.
In response to the father’s proposal for time Mr S said that the father’s proposal was “jumping a long way ahead” from supervised time of a few days with extended family to a three week block. He said he would be more cautious and recommend a one week block at the most. Mr S agreed that this is assuming that the father is as he says he is. He acknowledged that the father is asking the court to trust him and says there is evidence to suggest that some change has occurred. Mr S was not asked to expand on this point. I do not share Mr S’s interpretation of the evidence.
Mr S acknowledged that the children could become anxious because of their mother’s worry about them going to South Australia. This could happen wherever the contact happens. The children are aware of their mother’s anxieties but did not show overt anxiety themselves. The children are caught between their parents.
Ms Holtham cross-examined Mr S about his comments in his first report that if Ms M was found to be a credible witness the allegation is so serious there should be no contact. He agreed he made that point but said that the children had not observed the father’s assault. The father’s conduct should be condemned but it needs to be considered in the context of the overall issues of the best interests of the children and the children’s rights to maintain a relationship with both parents if it is safe to do so. He said he was deeply concerned about that assault.
Ms Holtham asked if there was less chance that the father has reformed if he still does not accept full responsibility for his actions. Mr S replied that is the issue of reform and change is difficult. There is no acceptance of sole responsibility by the father. The father is in a position where he is attempting to explain himself and it is natural for anyone in that position to attempt provide a positive explanation. I disagree with Mr S’s position on this point. I think the father goes further than simply trying to present himself in the most positive light. Mr S conceded that the father only made admissions in circumstances where it is fairly obvious what has taken place.
If there is another incident of family violence the mother will be concerned about the impact on the children. Mr S said there would be a negative impact on the children and asked where do you draw the line? He then said if there is any violence especially with one of the children there should be no contact. Ms Holtham pointed out that this is the same situation as in 2008. Mr S said things had moved on since then. What is difficult to reconcile about Mr S’s views here is that the incidents of violence and the consequences are more serious not less. Mr S acknowledged that there is a theme here but felt that Ms J as being a positive factor and highly protective of her own daughter. I am not as impressed with Ms J as Mr S is. I am concerned that Ms J and the father lied to his mother about him continuing counselling in South Australia. It may be that she is intimidated or dominated by the father and certainly when she was being cross-examined about it initially she kept looking at the father until he left the room after Ms Holtham complained about it. It may also be that she minimises or fails to appreciate the nature of violence not just being physical violence. In many regards controlling and coercive violence is more insidious and even more damaging than physical violence.
Mr S acknowledged reading in the mother’s affidavit X’s comments about the father’s new baby. In terms of X’s exposure to family violence in the past it is reasonable and said that he would have those concerns.
Mr S also conceded that it is concerning that the father entered into a relationship with his wife within a month of the assault on
Ms M.
Mr S says that the father spending limited time with the children in Darwin twice a year would really restrict the relationship between the children and their father and it would be fairly meaningless. He also acknowledged that it is very likely that X was exposed to violence in the father’s and Ms M’s household as indicated by police reports.
When asked how many chances a parent should have he said it is hard to quantify and that he has wavered about no time. He says that any violence between the father and the wife would cross that line. He also agreed that it would be safer for the children to have time in Darwin rather than in South Australia but that over the course of time particularly if this for several years it would impose real restraint on the promotion of a positive relationship between the father and children.
The father’s lawyer asked about the impact on the children if there is no time now or in a couple of years’ time. He said involved speculation and is hard to answer. The children have a positive relationship with the father at this stage. There could be significant long-term implications for their psychological and emotional development if they are denied a relationship with their father but on the other hand if they exposed again to violence and that also has a significant impact on them and it is hard to say which is better at this point.
In terms of favouritism being shown to one sibling or another
Mr S said that it can cause difficulties with the perception of self and identity, confusion and anxiety and it can also be destabilising for the relationship with the other sibling.
Ms Morgan then cross-examined Mr S. Mr S commented that it is important for the children to maintain relationships with their siblings and that it in terms of B it could only be face-to-face because of his age.
He said whether or not the time is during the day or only overnight it does not have a huge impact, it is really the frequency.
Mr S said that severing the attachment children have with their father can leave them confused perhaps frustrated and longing for a relationship with him. They may experience grief and loss which they struggled to accept. It will also depend on how it is explained to them. Particularly given X’s age he may experience a sense of loss and confusion when he says that he wants to see his father.
Mr S acknowledged that he does not think the mother can ever feel that any arrangements will be safe for the children based on her experience both directly and indirectly.
Telephone communication only would not promote a strong relationship between the father and the children. It would only maintain a linkage. It is the same with written communication. It is more symbolic than anything.
I asked Mr S about the benefits the children seeing their father only for the purposes of identity time. This refers to the children seeing the father under supervision on a very limited basis purely so they maintain a sense of who he is. He said it can maintain a link but it can also have the potential for conflict. I have had the benefit of assessing the whole of the evidence and have been able to assess the witnesses. Mr S has not. I do not accept that there has been significant change for the father since 2008 that means the children are not at risk of being exposed to further emotional abuse because of family violence.
The law and its application to the facts of this case
The current proceedings were commenced by the mother on 13 December 2011. Consequently the amendments made to the Family Law Act 1975 by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) do not apply.
Parental responsibility
Judge Terry made an order for equal shared parental responsibility in 2008. The mother now seeks an order for sole parental responsibility. The father agrees to the mother having parental responsibility but wishes to be informed of decisions. The mother concedes that that is appropriate if the children are to spend time with the father. If the children are not to spend time with the father she does not see the value in this.
Primary considerations
Currently the children have a meaningful relationship with both their parents. In the father’s case this is in spite of the limited time he spent with the children in the past two years.
In the circumstances of this case the need to protect the children from physical or psychological harm from being exposed to family violence must outweigh the consideration of the benefits to the children having a meaningful relationship with both their parents.
Family violence
The father has engaged in family violence in four of his previous relationships. These were his only significant relationships the father had prior to his current one. These relationships span the course of many years. Although he has not been violent in his current relationship that does not mean that there is not a real risk that he will be in the future based on his past conduct. It is clear that there are periods in the father’s relationships where he was not physically violent. It is also the case currently that the father is on his best behaviour in the knowledge that he is under scrutiny of both the Federal Circuit Court in Darwin and the Family Court in Western Australia as well as being on a good behaviour bond.
Mr S gave evidence about the potential impact of family violence on children generally. It can impact on children’s development and can be very negative and cause them to have emotional and behavioural difficulty whether children are exposed directly or indirectly to family violence. It can cause children to have heightened anxiety, insecurity and disrupted attachments. There can be a range of possible consequences. It depends on the children’s personalities.
When cross-examined the mother said that orders being made requiring the father to give the children their asthma medication, to refrain from violence and taking drugs would give her no comfort at all because Judge Terry made orders restraining the father from using cannabis when the children were in his care. It is clear from Ms M’s evidence, which I accept, that the father continued to use cannabis when the children were in his care although he did not smoke in front of them. The point is he was under the influence of cannabis during periods he was caring for the children.
The mother will never feel confident about the father being able to care for the children appropriately. Her position is entirely understandable. The mother has taken appropriate protective actions for the children’s welfare in commencing these proceedings and the previous proceedings.
It is clear from the mother’s cross-examination that she thought she had to propose supervised time because of the family report recommendations but this is something she is not comfortable with. The mother was emotional giving her evidence from the time she was first giving evidence. I find her concerns for her children’s safety is genuine. One of the issues I have to consider, although it was not argued directly before me, is the need to ensure that the mother is not compromised in her parenting of the children by her concerns for their wellbeing if the father spends time with the children, particularly if that time is unsupervised. The Full Court has recognised this as a relevant consideration: see for example T v S (2001) 28 Fam LR 342.
The issue is one of assessing whether or not there is an unacceptable risk to the children. The concept of unacceptable risk has been discussed by the courts on many occasions starting with most notably M v M (1998) FLC 91-979.
The mother does not trust the father. She believes that he will be violent again in the future but thinks he will be on his best behaviour during his parole period. Her position is a reasonable one. The mother had to consider this in 2008 and unfortunately the father’s violent conduct was even more serious than his previous conduct.
At paragraph 206 Judge Terry noted that the father “is on notice that if he transgresses again in regard to family violence or drug use his future time with the children will be in jeopardy.”
Children’s views
I turn to the relevant section 60CC(3) factors. X and Y are now ten and eight. In both family report interviews they were reluctant to express the views or indeed to discover their family situation. This is not a case where the children’s views factor into my decision.
Nature of the children’s relationships with their parents and significant others
The children have a close and loving relationship with their mother. She has been their primary carer throughout their lives.
The mother had extensive family support in Darwin. Her parents live in (omitted). She also has three brothers living in Darwin all of whom have children. The mother says the children play with their cousins all the time.
The father does not have relatives in Darwin.
I accept that the children enjoy spending time with their father. The children have a close and loving relationship with their mother. The children have extended family on both sides and I accept that they enjoyed spending time with their extended paternal family in (omitted).
I am not satisfied that the children have a particularly close relationship with the father’s side of the family. My impression of the paternal grandfather is he will make no effort to maintain contact with the children and expects that people should make the effort to maintain contact with him. The paternal grandmother has made a greater effort to maintain a relationship with the children.
In the circumstances of this case the mother cannot be criticised for not wanting to encourage a close and continuing relationship between the children and the father. I am satisfied that the mother will comply with orders of Court. She has done so in the past and has only breached the orders when she had well-reasoned concern for the children’s welfare. If the Court orders the children spend time with the father I am satisfied that she will comply with those orders but it would be unrealistic to expect her to be anything other than anxious about the children spending time with their father. This is something that the children are likely to pick up on given their close relationship with their mother. This is not because I am concerned that the mother would inappropriately confide in the children about her concerns but that will be impossible for her to hide her concern and anxiety entirely from the children despite her best efforts.
The children have only spent a very limited time with their father in the past two years. I find that there would be an unacceptable risk of harm to the children if they were to spend significant time with the father interstate. Therefore the proposals the Court are left with is the father to either have limited supervised time with children in Darwin or no time at all.
The willingness and ability of each of the child’s parents to facilitate, and encourage a close and continuing relationship between the child and the other parent
In the circumstances of this case it would be unreasonable and unrealistic to be critical of the mother for not wanting to facilitate the children’s relationship with their father. I accept that the mother is convinced that it is only a matter of time until the father is violent again. She cannot see the benefit to the children in maintaining a relationship with their father in these circumstances.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either parent, child or any other relative with whom the child has been living
X and Y have three half siblings, A, Z and B. They have had limited contact with A when they spent a few days with their father’s family at Christmas. There is no evidence that they have any significant connection with her.
X and Y have met Z. Ms M and Z live in Western Australia which limits the time the children can spend together. Ms M and the mother are on positive terms and I am satisfied that they will encourage the 3 children to have a relationship with one another to the extent it is reasonably practicable. X and Y have not met B although presumably they know about him. I accept the orders I am going to make will mean that the children will not have the opportunity to develop a sibling bond with B. They will not have a meaningful relationship with B for many years if at all. This is sad for the children and B but cannot be helped given the circumstances.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The father says that if he gets what he wants, which is two three week blocks with the children in South Australia a year, he will pay the costs. He conceded that the mother has almost 100% financial responsibility for the children “at the moment”. He says he cannot afford to pay half the costs for all the holidays.
The capacity of each of the children’s parents and any other person to provide the needs of the children including emotional and intellectual needs
I have no concerns about the mother’s capacity to provide for all of the children’s needs including their physical, emotional and intellectual needs.
Whilst the father does have positive qualities to offer to the children, there are serious limitations on his capacity to provide for the children’s emotional and psychological needs.
The attitude to the child and responsibilities of parenthood demonstrated by each of the children’s parents
The mother has demonstrated that she understands the responsibilities of parenthood. She has taken appropriate protective actions for the children’s benefit.
The father has not demonstrated that he truly understands the responsibilities of parenthood. He is dismissive of the mother and there are several examples of his conduct being irresponsible quite apart from his violence. I accept that the father loves his children and would not deliberately harm them but he lacks insight into the impact of his actions on others. I am not satisfied that the time the father spent in prison has truly led to the watershed change in his life and to his attitude. If this was the case he would not continue to minimise his role in family violence. I have no doubt that prison was confronting for him but I think he has learnt how to better say the right things rather than truly experiencing a change in attitude.
Any family violence involving the children or a member of the children’s family
I have addressed this extensively elsewhere in this judgment.
Any family violence order
There is no current family violence orders in place.
Whether it be preferable to make orders that would be the least likely to lead to the institution of further proceedings
If I made orders for the father to spend significant periods of block time with the children I think that would likely lead to further proceedings because there is a real risk that the father will commit further violence in the future. If I order supervised time there is a prospect of further proceedings as long term supervision orders are rare and the father may seek to remove that requirement in the future. The orders I am going to make are less likely to lead to further proceedings.
The parties and the children have already been through two trials and three family reports. A third trial would benefit no one.
Conclusions as to the father’s time
Ms Morgan referred to a decision of Carmody J in Murphy v Murphy [2007] FamCA 795 and in particular paragraph 318 when he says when talking about sexual abuse that past conduct is not always an indicator of future conduct as people can change. He goes on to say that the unacceptable risk inquiry involves a consideration of the particular facts of the case and whether or not they run an unacceptable risk. I do not accept Ms Morgan’s submissions that the father has changed for reasons I have given elsewhere. The father is currently on his best behaviour and is likely to remain so whilst he is bound by a good behaviour bond and risks a return to prison if he reoffends.
Ms Morgan submits that the benefits to the children of maintaining a relationship with their father outweigh the risks because of the father’s change of circumstances. Ms Morgan submits there has been no recent incidents of violence, the father has a new child and the father has new employment. My difficulty with this submission is that all of these factors have been present before, post 2008. Ms Morgan also referred to the single judge decisions of Tindall v Saldo [2012] FamCA 1156 and Watkins v Dermott [2012] FMCAfam 1301.
Ms Morgan referred to the Full Court decision of Dylan v Dylan [2008] FamCAFC 109. That case concerned children’s wishes. The circumstances of that case were very different.
Ms Morgan referred to how time is spent and experienced is important. She says that time at a contact centre long term is not meaningful such as to benefit the children. I accept this. In the circumstances of this case I am satisfied that the need to protect the children from harm is the overriding concern. This is not about requiring the father to be a model parent. No parent is perfect. The concern is that the Court cannot be satisfied that the children will not be exposed to an unacceptable risk of emotional abuse.
I have to decide whether or not there is an unacceptable risk of the children being exposed to family violence if the father spends block time with the children in South Australia. I find that there is an unacceptable risk. I accept the ICL’s submissions that the greatest predictor of future violence is past violence. The father’s history is troubling. It is particularly troubling that the four significant past relationships he has had have been characterised by the father’s violence. I find that the father has been verbally and physically violent. The father’s current wife is not a suitable supervisor for the reasons I have discussed. Her presence does not reduce the risk of the children being further exposed to family violence. The father continues to minimise his responsibility for his past conduct. I have no doubt that prison was a sobering and difficult experience for him but I am not satisfied that that experience has truly changed him. His words do not support that. I do not think that further counselling and/or courses will change the father because deep down he does not see that there is any need to.
It is significant that the father was given a chance to change in 2008. He was clearly warned by the Court then that if he committed further violence he may lose his relationship with his children. This is not as a punishment to the father but because the positives the father offers the children are outweighed by the risk of the children being exposed to further harm.
The father asks the Court to trust him and give him another chance. He was given that in 2008 and his violent conduct escalated.
The issue that I have to determine is whether or not it would be better for the children to have no relationship at all with the father or a limited and superficial one.
The choice as I see it is between limited supervised contact in Darwin or no contact at all. I accept Mr S’s evidence that such restricted contact will mean that the father will become a marginalised figure in the children’s lives.
The Full Court has made it clear that the orders are made for long-term supervision cogently need to be given.[13] The concern is, naturally enough, about providing some sort of mechanism for moving forward from supervision.
[13] Moose v Moose (2008) FLC 93-375: Malburon v Waldlow [2013] FamCAFC 191: Slater v Light (2013) 48 Fam LR 573.
This has been an extremely difficult case to determine. I am mindful that the orders that I am making an effectively ending the relationship between the children and their father. They may seek to connect with him when they are adults. By then they will make their own judgements about him will be able to protect themselves. I am mindful that X in particular may find this decision difficult as the risks to his welfare too great if I were to allow unsupervised time and the benefits to X and Y of long-term very limited supervised time are too little.
I am going to make an order permitting the father to send children letters and gifts. I will require the mother to give them to the children provided they are age appropriate. I will also require the mother to assist the children to write to the father if they express a wish to do so. I accept that this will not enable the children and father to have a meaningful relationship with one another it will enable a limited link to be maintained and will allow the children to know that the father maintains an interest and love for them. I will also require the mother to authorise the children’s schools to send the children’s school reports to the father which will give him some knowledge of how the children are progressing and will enable him to comment on their progress to the children. These orders will be a limited link between the father and the children. In the circumstances of this case I am satisfied that the orders I am making are in the children’s best interests.
I certify that the preceding one hundred and eighty-three (183) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 12 September 2014
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