Ressel & Morath (No 3)
[2023] FedCFamC1F 154
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Ressel & Morath (No 3) [2023] FedCFamC1F 154
File number: BRC 12043 of 2020 Judgment of: CAREW J Date of judgment: 15 March 2023 Catchwords: FAMILY LAW – CHILDREN – unacceptable risk of harm – where the father pleaded guilty to stalking and domestic violence related offences against the mother and another – where the father released on parole after imprisonment – where the father repeatedly engaged in abusive and threatening behaviour to the mother, the maternal grandmother, the mothers new partner, a friend and her previous and current solicitor – where the father conceded his conduct was designed to terrify the mother – where the father repeatedly sought to excuse his conduct during trial – where order made for no time and no communication between the father and the child Legislation: Family Law Act 1975 (Cth)
Evidence Act1995 (Cth)
Births, Deaths and Marriages Registration Act 2003 (Qld)
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93–637
Beach & Stemmler (1979) FLC 90–692
Chapman and Palmer (1978) FLC 90–510
Eastley & Eastley [2022] FedCFamC1A 101
Fooks & McCarthy (1994) FLC 92–450
Isles and Nelissen [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93–344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92–655.
Pylarinos & Reklitis (1979) FLC 90–609
Reynolds & Sherman (2015) FLC 93–659
Number of paragraphs: 122 Date of hearing: 6 and 7 March 2023 Place: Brisbane Counsel for the Applicant: Mr Coker Solicitor for the Applicant: Robyn McKenzie Solicitor Counsel for the Respondent: Ms Murphy Solicitor for the Respondent: Damien Greer Lawyers Counsel for the Independent Children's Lawyer: Mr Kalimnios Solicitor for the Independent Children's Lawyer: Queensland Legal Practice ORDER
BRC 12043 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RESSEL
Applicant
AND: MS MORATH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
15 March 2023
THE COURT ORDERS THAT:
1.Ms Morath (“the mother”) have sole parental responsibility for X born 2014 (“the child”).
2.The child is to live with the mother.
3.The child is to spend no time with Mr Ressel (“the father”) (previously known by several names).
4.The father is restrained from communicating either directly or indirectly with the following persons, other than through a legal representative:
(a)Ms Morath;
(b)X;
(c)Ms K;
(d)Mr L; and
(e)Ms M.
5.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother is at liberty to travel overseas with the child.
6.Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the mother is permitted to apply for and obtain the issue and renewal of an Australian Passport (travel document) for the child X born 2014 without the consent of the father Mr Ressel.
7.The mother’s application to change the child’s surname at this time is dismissed.
8.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
IT IS NOTED THAT:
A.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
B.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ressel & Morath has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
Mr Ressel (“the father”) and Ms Morath (“the mother”) have one child, X, who is 9 years of age. X has lived with his mother since his parents separated in late February 2020. The child has not spent any time with his father since early 2020 and has not communicated with him since mid-2020 apart from a supervised video call conducted for the purposes of the preparation of a family report on 18 May 2022.
Prior to and throughout these proceedings, the father has repeatedly engaged in abusive and threatening behaviour, not only to the mother, but to the mother’s partner, the maternal grandmother, the mother’s best friend and the mother’s previous and current solicitor. The mother’s previous lawyer ceased acting for her. The original independent children’s lawyer (“ICL”) also withdrew although the reasons for that are unclear.
I accept the mother’s evidence that the father sent to her in excess of a thousand (combined) emails, text messages, voice messages, WhatsApp messages and Facebook messages during the period mid-2020 to mid-2021, with many of the communications containing abuse and threats of the most heinous kind. Two examples will suffice to demonstrate the father’s appalling conduct:
(a)In early 2021 at 3.26 am, the father sent the mother an email threatening to kill her partner, cut off his penis and shove it into his mouth. The email was accompanied by two graphic photographs depicting a male corpse with his penis severed and in his mouth; and
(b)On the same day, at 3.29 am, the father sent the mother a further email threatening to kill her and accompanied the email with a photograph of a hand gun in a pool of blood.
In mid-2021, the father was arrested for the third time in relation to offences against the mother, however on this occasion bail was refused and he was held on remand until early 2022. The father’s applications for bail on two dates in late 2021 were dismissed. In early 2022, the father pleaded guilty to multiple offences. The father was sentenced to two terms of imprisonment to be served concurrently. The sentencing was for a significant amount of time. The father was immediately released on parole having already served more than 200 days in custody.
After his release from prison, the father sent numerous aggressive and menacing emails to the mother’s solicitor containing veiled threats of harm, the most recent of which was in late 2022.
For the reasons that follow, I find that the father presents an unacceptable risk of harm to the child. Nothing in the father’s evidence persuades me that he is a changed man who can safely have a relationship with his child. The father’s abusive conduct was relentless and extreme. It was, as he admits, designed to terrify the mother, and it did. The father’s repeated attempt to excuse his conduct during the trial, with the constant refrain that he was “depressed” or “having an emotional breakdown” or “distraught at the loss of [his] son” did him little credit. There is no excuse for the father’s conduct. There was no expert evidence to support the father’s assertions that he suffered from depression or an “emotional breakdown” at the relevant time. When the father was sentenced in early 2022 there was no suggestion that he suffered from any mental illness at the relevant time.
During the trial, the father did not demonstrate any capacity to accept responsibility for his behaviour or the consequences of it. The father’s loss of his relationship with his son has come about, not because of the mother or her lawyers or anyone else. The father alone is responsible and until the father can accept that and demonstrate true remorse and empathy, he has no prospect of ever having a relationship with his son. It is a tragedy of his own making.
WHAT PARENTING ORDER IS SOUGHT BY THE PARTIES?
The father is seeking an order for equal shared parental responsibility and regular time with the child, graduating from 15 minute phone calls to alternate weekends and half school holidays. The precise order sought by the father is set out in his Amended Initiating Application filed 6 February 2023. Although not included in his application, the father contended that a “fair” outcome would include significant and substantial time with the child after a few years.
The mother opposes the father spending any time or having any communication with the child. The mother also seeks an order for sole parental responsibility and for her to be at liberty to change the child’s surname to ‘Morath’. The precise terms of the order sought by the mother are set out in the Amended Response filed 23 February 2023. The mother also adopts the ICL’s recommendation for personal injunctions against the father, enjoining him from contacting the child (which the mother contends was what was intended by the order sought in her Response), and also the mother, the mother’s partner, the maternal grandmother and Ms M.
Overall, the ICL supports the order sought by the mother, other than the change of name which was neither supported nor opposed. The ICL further recommends that, given that the father’s parole ends at the end of this year, and the final protection order expires in 2026, the father be restrained by injunction from contacting, directly or indirectly, the protected persons included on the protection order.
ISSUES
With the assistance of the parties, the following significant issues were identified as requiring determination:
(a)Whether the father poses an unacceptable risk of harm to the child arising from his perpetration of family violence towards the mother including in the presence of the child;
(b)Whether the father spending time with the child would impact on the mother's parenting capacity;
(c)Whether the mother has the capacity to support a relationship between the child and the father;
(d)Whether the parents have any capacity to co-parent; and
(e)Whether the child’s surname should be changed.
Before considering the issues it will be helpful to set out some background and identify the legal principles applicable to the determination of parenting disputes.
BACKGROUND
The father is 45 years of age and describes himself as “self-employed”. During cross-examination, he explained that he does “[trade]” via a gig economy platform. The father currently lives in City N in Queensland but expressed an intention to relocate to Brisbane whether or not his application to spend time with the child is successful.
The mother is 36 years of age and employed in the energy industry. The mother has re-partnered with Mr L. They have one son together, who is one year old.
The father and mother commenced a de facto relationship in 2013 and separated on a final basis in late February 2020. They have one child together, X, born 2014.
The child has been assessed by a psychologist, who opined that the child meets the diagnostic criteria for Attention Deficit Hyperactivity Disorder (“ADHD”) and Autism Spectrum Disorder (“ASD”). In a report dated 15 August 2022, the psychologist said:
… [the child] presents with significant delays across most areas of functioning. [The child’s] presentation is quite variable from quiet and withdrawn in class, very impulsive and hyperactive and at times so dysregulated that his ability to control his behaviour, even with the help of his mother seems impossible. [The child] gets a very glazed over look in his eyes, seems to not hear or follow instructions and can become quite destructive. We had an episode like this in my office. In class he was well managed by his teacher and other students seem to be helping [the child] stay on task and help with what to do in class next. It was clear that the scaffolding the school is providing is significant for [the child] and essential.
When told of the psychologist’s opinion, the family report writer, Ms O, also a psychologist, expressed no surprise given her observations of the child for the purposes of the family report on 4 April and 18 May 2022. In her report, Ms O included the following observations:
85. [The child] and his father were observed on the video-call for almost 20 minutes…
86. [The child] responded to his father’s expressions of love with a smile and a loud laugh. However, he seemed somewhat unsure of how to manage the situation and respond in words and began to feel restless within the first 5 minutes. [The child] laughed in a strange and exaggerated way, placed his face close to the image of himself in the corner of the screen, and repeatedly tapped at certain keys on the keyboard until the computer produced a squeaky noise and a message. …
…
88. After approximately 15 minutes, [the child] began to bang at the keyboard in a more uncontrolled way than he had previously. He also made silly noises and laughed loudly and strangely. …
89. After the video-call ended, [the child's] behaviour changed significantly. He returned to the waiting area where his mother was seated, paced crazily, making strange noises, and thrust both of his hands on the glass screen at the reception, two or three times, with quite some force, frightening the receptionist who was seated behind the screen. [The mother] was observed to respond to [the child's] behaviour calmly and skilfully, by encouraging him to breathe in the way his psychologist had taught him. [The child] co-operated with his mother, and engaged in his breathing, but continued to behave in a somewhat agitated manner. The writer encouraged [the child] to show her his breathing technique and he slowly started to calm down. …
…
91.[The child] impressed the writer as a friendly little boy who is extremely energetic and curious about his surroundings. The time I spent with [the child] was quite short, and unfortunately, I am unable to verify [the mother’s] assertion that [the child] has shown indications of ADHD and has acted out at school. Therefore, I wish to acknowledge that my ability to assess [the child’s] presentation, his general capacity to understand and process information about his parents' separation, and his sensitivity to inter-parental conflict or confusing messages, is somewhat limited. However, during the short time I spent with [the child], he appeared to be vigilant of his surroundings and struggled to focus and engage in conversation. In my opinion, if [the child] has the same difficulty at school, he may find sitting still and listening quite difficult, and this could affect his behaviour, his friendships, and his ability to focus and take in information, and achieve academically. …
It seems that the mother is awaiting further investigation by the child’s paediatrician to finally determine whether or not the child does have ADHD and/or ASD. The mother was unsuccessful in her recent attempt to obtain funding for the child from the National Disability Insurance Scheme on the basis of the psychologist’s assessment.
In early 2020, a temporary protection order was made against the father for the protection of the mother and the child. A final protection order was made without admissions by the father in late 2020. The order has been varied on a number of occasions to include other persons as protected persons. The most recent variation was made in mid-2021. The protection order will remain in place until mid-2026. The persons protected by the order are the mother, the child, the mother’s partner, the maternal grandmother and a friend of the mother’s, Ms M.
During the period mid-2020 to mid-2021, the mother received in excess of 1000 unsolicited communications from the father, many of which included threats to harm himself, the mother, the maternal grandmother, the mother’s friend, Ms M, the mother’s current partner, Mr L, as well as the mother’s previous solicitor and her child. During this period, the father also engaged in physically stalking the mother, and using knowledge of her whereabouts in an attempt to intimidate and coerce her into agreeing to him spending unsupervised time with the child.
The father was arrested and charged with numerous offences in mid-2021 including being in possession of a knife.
The father ultimately pleaded guilty to the offences with which he had been charged and was sentenced in early 2022. An agreed statement of facts was tendered at the time of the father’s sentencing and the father did not challenge those facts at that time. Submissions in mitigation were made on the father’s behalf, namely, the father’s early plea of guilty, his expression of remorse, the offending behaviour being “uncharacteristic” and that the father now understood that he was “going about having contact with [his] son in completely the wrong way”.
Notwithstanding the matters raised in mitigation made on the father’s behalf during his sentencing hearing, the father continues to claim that he was “set up” by the mother and that the mother and her partner know how to “press his buttons”. The father also continued to send abusive and threatening emails to the mother’s lawyer as recently as late 2022.
During the trial, the father expressed an intention to challenge the stalking convictions or some of them, and to appeal any parenting decision that does not give him what he wants. The father is, of course, entitled to take any legitimate legal action he chooses.
APPLICABLE LEGAL PRINCIPLES
In parenting proceedings under the Family Law Act 1975 (Cth) (“the Act”), s 43 of the Act requires the Court to have regard to a number of matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, 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, and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, stalking, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 (“M v M”) at 77.
[4] Ibid.
[5] M v M (fn 3); N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the possible risk of future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley [2022] FedCFamC1A 101 at [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93–344 at 81,890, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen [2022] FedCFamC1A 97 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles (fn 7) at [7].
[9] Isles (fn 7) at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[12]
[12] Banks & Banks (2015) FLC 93–637.
I turn now to consider the issues in this matter.
WHETHER THE FATHER POSES AN UNACCEPTABLE RISK OF HARM TO THE CHILD ARISING FROM HIS PERPETRATION OF FAMILY VIOLENCE TOWARDS THE MOTHER INCLUDING IN THE PRESENCE OF THE CHILD
The mother contends that throughout their relationship, the father had a “short fuse” which resulted in him:
(a)frequently yelling at her;
(b)insulting her by calling her “stupid”, “dumb” and a “bitch”;
(c)often walking towards her so that she backed into a wall or a door or a corner while continuing to yell at her and occasionally his chest would physically touch her chest such that she became fearful he would hit her;
(d)frequently removing her phone;
(e)expecting her to have sex with him at his whim and stating words to the effect of, “it’s your duty to have sex with me, you are my wife”;
(f)telling her family and friends that she did not “give him sex”;
(g)throughout 2019 and 2020, losing control of his emotions daily and demanding that she bring him things, e.g. a Coca Cola from the fridge, or that she pick up after him, and if she failed to do so he would “explode in anger, yelling at [her] and insulting [her]”;
(h)frequently saying to her “a wife means washing, ironing and fucking”;
(i)at times saying to her “you need to be upgraded when you turn 35”;
(j)at times when she asked for help with the child, he would respond “that’s your fucking job not mine”;
(k)regularly accusing her of “cheating” on him saying things such as “who are you fucking?”;
(l)accusing her of not caring about the child and saying “if he dies it’s on you”;
(m)near the end of the relationship, frequently yelling at her in front of the child who was two years old resulting in the child screaming and crying;
(n)stopping her from leaving their apartment by blocking the door and grabbing her hand;
(o)when she tried to end the relationship, manipulating her by becoming upset and threatening to commit suicide, saying things such as “I can’t be without you and [the child], I can’t do it”;
(p)insisting that she discontinue some of her friendships; and
(q)incurring debt in her name without her consent.
The maternal grandmother was a witness to some of the father’s controlling and demeaning behaviour towards the mother.
Such conduct by the father, if it occurred, falls within the definition of family violence, in that it variously includes violent, threatening or other behaviour which coerced or controlled the mother or caused her, and at times the child, to be fearful.
Despite filing an affidavit in reply the father makes only a very general denial of the allegations made against him, stating that “some – not all – of the allegations are true”. The mother was not challenged during cross-examination on any of her allegations.
When the mother did leave the relationship with the child in early 2020, the father threatened to commit suicide and accused the mother of kidnapping the child.
In early 2020, the mother and father reached agreement that the child would spend time with the father at a local park from 10:00am to 3:00pm on Saturdays and that the father’s friend, Mr B (“Mr B”), would be present during the father’s time with the child.
The mother filed an application for a protection order in early 2020, and a temporary order was made the same day. The grounds relied upon for the protection order related to the father’s conduct during the relationship (described a [39]) and the father’s repeated threats, after separation, to commit suicide. The protection order contained a number of conditions including the following:
(a)The father was prohibited from electronically monitoring or tracking the mother;
(b)The father was prohibited from communicating with the mother via the internet, including social media; and
(c)The father was prohibited from contacting the mother or child other than through a lawyer (with certain exceptions including if permitted by written agreement or court order).
In early 2020, at a changeover, the father stated that he did not need supervision and accused the mother of stealing the child. The father took the child and made a rude gesture towards the mother. I reject the father’s denial of this allegation. At the changeover later that day the father repeatedly made reference to his lawyers and what they had said to him. After spending time with the father and being exposed to the comments made at the changeover, the child was angry and unsettled for the remainder of the afternoon. The child was aggressive towards the maternal grandmother and said that he was going to kill her and bury her and that she had “stuffed everything up” and that it was all her “fault”. The child was six years old at the time. The child was very upset later that night and cried for about an hour.
A short time later, in 2020, the mother sought an undertaking from the father that Mr B would be present when the child was with him. The father provided the undertaking, without admission, through his then lawyers.
Shortly thereafter, in 2020, the parties attended a mediation and reached an interim agreement that the child would spend time with the father for several hours on Wednesdays, Thursdays and Sundays each week with Mr B to be present subject to certain exceptions. The parties also agreed to continue with individual counselling and to commence family counselling. A specific condition of their agreement was that they would not engage in detailed discussion at changeovers.
Despite the conditions of the temporary protection order and despite the agreement that the father would not seek to engage in detailed discussion with the mother at changeovers, the father repeatedly referred to court action he was going to take against the mother and repeatedly asked her personal questions e.g. are you pregnant?
In early 2020, during a changeover, the father told the mother that he would report her for stealing his furniture. The father complained about his legal fees and called the mother a “nasty bitch”. He accused the mother of taking everything away from him and accused her of not loving the child. I reject the father’s evidence that the child would not have been aware of his comments. When the mother and child arrived home, the child said “grandma is evil”.
Some days later, in 2020, the mother agreed to an extra visit because it was the father’s birthday. Mr B was not present. At changeover, the father said to the child “sorry you can’t stay. Mummy said no” (to the child staying overnight). Such comments placed the child in the middle of the conflict. The father then gratuitously insulted the mother by telling her that she stank.
A day later, in early 2020, at changeover, the father asked the mother about a male person she had been speaking to shortly prior to his arrival. The father then took a call from his solicitor and proceeded to talk to his solicitor about the dispute. Later that day at the return changeover, the father asked the mother about child support costs and said he did not like the agreement and would be going to court.
A short time later, in 2020, at changeover, the father told the mother that the agreement they had reached about him spending time with the child was “bullshit” and said he wanted to change it.
Four days later, in 2020, at changeover, the father started an argument about the child’s schooling. He told the mother to stop going to the police with false statements.
Some short time later, in 2020, the mother received a voice mail message from Mr B but when the mother listened to the message, it was the father’s voice. The voice message initially related to an arrangement about the father spending time with the child but unbeknown to the father the voice message continued recording him and the mother heard the father say in reference to her:
… tomorrow I’ll go to her place and I will shoot her between the head and between the eyes
…
I’m going to get her to lose her job. It’s easy because I’ll tell her work that she is selling stolen items online and blah blah blah and she got upset
…
I’m over it hey. Seriously am. Now I know why women get murdered.
While I accept that people in the middle of an acrimonious separation may say things (even appalling things) that they do not mean, these comments must be seen in the context of the mother’s experience of the father as an abusive and controlling man. The mother was understandably alarmed by what she heard. In his affidavit in reply, the father seeks to minimise the seriousness of his threat by saying he was “extremely frustrated” and the mother was “not meant to hear”. The father adds that he “regretted saying it afterwards”. Nothing in the father’s evidence at trial persuades me that he truly regrets making these threats. During cross-examination the father agreed that the threats were made at a time when there was considerable media coverage concerning a fatal domestic violence situation.
It is perhaps ironic that at the time the threats were made, the father was spending time with the child three times per week by agreement. The threats were inexcusable.
As a result of the threats made by the father, the mother not unreasonably proposed, through her lawyer at the time, that the father spend supervised time with the child at a contact centre.
It is not apparent why the father did not take up this offer in order to maintain his relationship with the child.
Despite the father not spending any physical time with the child, the mother facilitated 14 telephone calls between the father and the child in mid-2020. The telephone calls ceased because of the father’s conduct during the calls.
By way of example:
(a)On a date in mid-2020, during one telephone call, the child said to the father “I wish grandma would die soon” and the father laughed and said “No, no we don’t care about grandma”. The father does not deny saying this but suggests he also told the child not to say that. Even if the father did make the latter comment, his conduct in laughing at what the child said placed the child in the middle of the dispute. The father should have been seeking to protect the child from the conflict;
(b)The following day, in 2020, during what was supposed to be a scheduled phone call between the father and the child, the father attempted to speak to the mother about parenting and property matters;
(c)A short time later, in 2020, during the father’s telephone conversation with the child, he repeatedly questioned the child about whether or not he was being hit by the maternal grandmother. Also on this date, the father drove past the mother when she was out walking and stared directly at her. The mother hid, but her brother video recorded the father driving along the street trying to locate the mother;
(d)Soon thereafter, in 2020, the father yelled over the phone while speaking to the child, “if you hang up I will come over, you are putting my mental state over the edge, I will grab my son off you”.
In mid-2020, the father was arrested for the offences of stalking and contravention of the protection order. He was released from police custody the same day and issued with a Notice to Appear in court in late 2020. As part of his bail conditions, the father was prohibited from having any direct or indirect contact with the mother and was not to approach her (subject to the exceptions contained in the protection order). Notwithstanding his bail conditions and the protection order, at approximately 3:20 pm on the same day, the father made three calls in a row to the mother, and at about 4.15 pm, the mother left her place of employment and observed the father driving past her.
In late 2020, the father drove past the mother on two occasions and menacingly called out to her on each occasion. The child was with the mother at the time and asked his mother who was the “scary man”. The police obtained CCTV footage from a local business to corroborate the mother’s allegations.
Some time later, in 2020, the father was again arrested in relation to his offending behaviour and spent the night in the police watchhouse. Although bail was strongly opposed by police, the father was granted bail and released from custody.
A condition of his bail required the father to remain at a particular address. The father breached that condition when he moved in late 2020. A warrant issued for the father’s arrest in relation to the father’s further offending behaviour and breach of bail.
Prior to the father’s arrest in mid-2021, he sent hundreds of abusive and threatening communications to the mother. In some of the communications the father let the mother know that he was keeping tabs on her whereabouts. The father denies sending the number of emails alleged by the mother, offering an explanation that the mother knew his email passwords and he believes she may have written them to herself. Despite being afforded the opportunity to identify which emails he asserts he did not write he failed to do so. The father nevertheless conceded during cross-examination that he would have sent “around half” of the emails. It should be noted that, during cross-examination, counsel for the wife took the father through a significant number of the emails and the father either acknowledged writing all but three of the emails or could not recall writing some of the emails. I reject the father’s contention that the mother sent some of the emails to herself.
Some examples of father’s emails to the mother are set out below (as per originals):
[…] 2020 at 8:28 pm
It’s game over for you if you keep acting the way you’re acting. I don’t care anymore hey, you pushed me to the limits now.
You ruin my life, I ruin yours.
I see any man with or playing with my son, I promise you I will punch him that hard to his face that every bone will shatter and he will collapse and never wake up again. Just play me, lie about me or set me up, this will happen. No man will be a father figure to my son.
Oh how is [P] going? [a reference to the mother’s then lawyer’s child] wouldn’t like it if it happened to her with her boy.
Just try me.
[…] 2020 at 8.14 pm
Finally got a copy on the incomplete set I ordered.
There was 2 copies sent to school, in June/July and back October. Where is the 2nd set and also the digital copies?
He is my beautiful little boy as well. YOU STOLE HIM FROM ME!
Give me back what is mine. YOU FUCKING STOLE HIM FROM ME. YOU STOLE HIM AND YOUR FUCKING MOTHER AND LAWYER STOLE HIM FROM ME!
STOP STEALING FROM ME. ESPECIALLY MY SON!
YOUR DONE![…] 2020 at 8.29 pm
Read this very carefully
Any male including your fucked up step dad [Mr Q], your brother [Mr R] or any guy your fucking that pretends to be a father to my son, I will personally make sure their life is ruined and you are at fault for it.
Remember this, I am [the child’s] DAD! There was no issues with me being a father before separation, it's only issues as a strategy on your end that now I am a bad person. You make me be like a bad person, I promise you my fucking life, I will be the most dangerous person ever lived. I will alway fight to the fucking blood and bone for my son. You really made a mess of this.
Where ever you go, what ever you do, just be fucking careful.
I won't allow another man to take/replace my spot as a father/step father to my own son while I am still alive! Get that through to your fucking brainless head of yours.
You never give me updates, your never tell me anything about my son, you hide it all from me. You don't deserve to be a mother, your unfit to be a mother, you have mental health issues. I will expose you if you keep doing this to me and my son.
…
[…] 2020 at 11.08pm
…
This time, nothing will stop me except a bullet from a police officer.
…
I will die for my son. Will you? I am prepared to die for him, I am prepared to die for my son, even to see him and contact him, I am prepared…
… I want my son in my fucking life you retarded cold hearted evil person…
You will go to hell.
[…] 2020 at 10.03 pm
…
Like I said, I don’t believe in the protection order or recognise it when my own sons name is on it to be protected from his own father that never did harm to him.
…
But I keep to my word on this, any man trying to be a father figure to my son, he won't breathe again. Only way to stop me is if someone kills me. … I make sure the truth comes out to him on what you and your mother and [Ms S] [the mother’s then lawyer] the stupid corrupt lawyer did when he gets older to understand.
…
[…] 2020 at 12.00 pm
…
[I]t isn't a game anymore. Stop being a selfish retarded bitch. Stop it now. I need to know and stop ignoring the fact my son is your son. You need to give me answers about my son. If I get humiliated again and as always I sort it out, next time I will humiliate you like you wouldn't believe. Test me on this. You have my computer, I hope to god and yourself that you still have it. I owe money but I can't access it without that computer. Your putting a lot on stake here and I been stopping some issues so far but I can't stop it for too long…
They won't come after me…. Just think of that.
…
Time is running out.
[…] 2020 at 10.04 am
…
I make sure now my son is being watched …
Remember, whatever happens it’s all on you and your lawyer and family.
…
[…] 2020 at 12.46 pm
…
… I don’t allow him to stay anywhere but your place with his at unit […]. So don’t play with me anymore.
…
Like I said, this isn't a game anymore! You made me a bad one after separation and when your pathetic evil mother and lawyer [Ms S] got involved. A lot of damage and life changes can happen if they make me the bad one, I may as well be. Don't accuse me of something I am not, especially when I love my son so so much and was always there for him.
If I don't have my son, I have nothing to loose anymore. But people around you, have so much to loose!
Think very closely what I said. You don't give me the updates I want about my son, no phone calls to and from my son.
This is why now it's going to change.
Ball is in your court!
Don't be a evil bitch of a mother. …
[…] 2020 at 1.22 pm
…
The only thing that will stop me is if you or the police kill me. That is the only way.
This is very messed u of the game you pulled with [Ms S] and your mother. … Hard lessons and life changing lessons will be learnt soon.
…
Have fun, especially at dance class tonight!
…
PS this can be a lot easier if we just come to an agreement with our child that’s fair and equal. …
[…] 2020 at 4.46 pm
Do you take my son to [T field], I believe there us to be or still is called [U sporting group]. [V Street, Suburb W]?
Let me know. He is my son. People been seeing you go to [Suburb W] and [Suburb Y] often. Don’t leave my son with anyone, especially your family and another man. I will get him taken away from your family and any man that goes near my son. Like I said, I will keep an eye on my son since you won’t give me updates! Don’t fuck with me [Ms Morath]!
You give me updates or I get others to give me updates.
…
[…] 2020 at 5.23 pm
…
I don’t care anymore about what orders there are.
[…] 2020 at 6.45 pm
Seriously […]!!!
Update on my son now??
[…] 2020 at 10.26 am
…
Sorry, I can't deal with the bullshit and lies anymore with you and your fucking pathetic, evil, money hungry corrupt lawyers and their evil tactics to distant me with my child. I don't give a fuck about you and your stupid DV. …
Like I said, only interaction with the police now, is if they shoot dead. …
You destroyed so much cause you listening to bullshit, like your mother, lawyer and friends which is [Ms K] and [Mr Z].
I will also be getting your legal law firm investigated for the whole outcome. Especially you breaching the mediation and [Ms S] allowing you to sell the items to pay for the legal fees.
So fuck [Ms S] and her law firm.
You have till the weekend. I been patient so long. …
I am ready for any outcome that may happen. …
You have this last last chance now. What will it be??
[…] 2020 at 8.47 am
Seen your car at [BB Street] near the convenience store. So so, what shall I do, I want contact with my son, phone call or something. This isn’t a fucking joke, you have totally alienated me from my son, like I said, you have till this weekend.
All I want is contact with my son, I want proper updates with my son.
After this weekend, nothing will stop me, one by one, people closest to you will pay the price for what they did to me.
…
[…] 2020 at 8.56 am
This will only stop if I get some sort of contact with my son. Get that through to your head.
The biggest mistake you and your mother and lawyer did was to lie and alienated me from my son. Even if I gets me killed by the police, at least all I did was try and get in contact with my son. So really I don't care anymore if your life turns upside down. You caused the bullshit …
[…] 2020 at 8.09pm
Where is my updates and photos/videos.
I wouldn’t ignore it anymore. Just don’t. Where is my updates??
Unit […] right?
Your whole family, including, [Mr R], [Ms CC], your mother and auntie, I know it all, it will be all on you and your mother and lawyer that destroyed it all. Don’t steal my child. You breached every agreement we had. What I have done for you to distant me from my own child. No harm what so ever to my child.
Do the right thing. Like I said, I don’t care anymore. I tried to be patient and reason with you.
You stole my personal possessions, you sold out assets and property value which you weren’t to sell as agreed. You went against every agreement.
A father can only take so much. Our son will be 7 soon.
I’m prepared… are you?
[…] 2020 at 8.22 pm
I will call tomorrow, make sure you unblock my number.
Last thing you want is a knock on your door.
…
[…] 2020 at 9.26 am
You blew it.
I tried to be nice and reasonable.
I’m ready for the police to shoot me dead …
…
You just killed me.
Have a nice life heartless bitch!
[…] 2020 at 10.32 am
…
Police won’t interact with me, if they do, they will now have to kill me. I won’t go to jail. …
…
Think hard what your doing. I did give you till the weekend…
As a consequence of the escalation in the father’s threats, the police arranged for the mother, child and maternal grandmother to move to safe accommodation. The mother and child moved several times over the months following until the father was finally apprehended in mid-2021.
In late 2020, the mother and the maternal grandmother decided to change the mother’s number plates to minimise the prospect of her being followed. When the number plate was removed, a black object branded ‘tile’ was located, and the mother recognised it as a device similar to the one the father had purchased for her car keys when they were still together which enabled remote tracking. I reject the father’s contention that the mother was aware of the tracking device on her car. If she were aware I have no doubt she would have removed the tracking device.
The father’s stalking and threats continued after the mother was moved by police. Examples include the following (as per originals):
[…] 2020 at 10.55 am
Wow, many times going past the police station at the […].
…
If I don’t hear anything or whatever about my son tomorrow, I be very fucking upset. Especially on his birthday…. Don’t be cruel. I have eyes and ears everywhere. I have been telling a few people not to do anything to you or [Mr DD] [[Mr DD] was a male person who added the mother as a friend on Facebook] as yet. So have a heart.
…
[…] 2021 at 7.20 pm
…
You pushed the limits…
Also I did say, no one is taking my fucking spot. No one will stop me. Only way is for you to kill me to stop me from being with my son you evil fucking bitch!!!
[…] 2021 at 7.25 pm
…
Your so evil and cold hearted. I seriously hope the person your fucking, comes home drunk or on drugs beats the fuck out of you. …
You will realise what is true DV. … whatever happens to you, you deserve it.
Sorry but you pushed it too far now …!!
[…] 2021 at 9.04 pm
No man will be a father figure to my son!!!!!!
I promised my life on that. get rid of him now, he not allowed near my fucking son. I make sure if he doesn’t leave and he is under same roof as my son, I make sure he pays the price!!
[…] 2021 at 12.51 pm
…
When I see another man with my son, I will shatter him so hard it will be very slow and painful for the cunt that is being a father figure to my son. That cunt that fucks you in the same bed as my son, under the same roof as my son, I make sure he feels that pain very slow and very painful. Never mess with a father that has the strongest love for his son. Never mess with a father that you stole from and ruined his life.
… I never abused or hurt you. But you have pushed me to a different person now. … Your lawyer will pay the price. For the lies and deceit of what she, your mother and you did to me.
You did this, you set me up. …
…
[…] 2021 at 9.32 am
…
If anyone touches my son I will personally end their life!
…
Just a matter of time, I will have my son and he will know the truth. He will hate you with a passion when he finds out what you did to him when he gets older. …
[…] 2021 at 1.19 pm
…
A piece of paper isn’t going to stop me …
If you want this done peacefully and want a good life, you need to do what’s right. Fair share ok. …
If we don’t sort this out, this will turn out very badly for you …
Don’t test me. I have nothing to lose but you, your lawyer, your mother and your friend [Ms K] have everything to loose, including the dumb cunt your fucking in the same bed as my son. So it’s all in your hands how this will all work out.
[…] 2021 at 3.12 pm
…
If you keep doing this, fuck the DV order, I don’t recognise it, it’s bullshit, I will make your life hell like the way you did to me. Life is an illusion, it’s here one day and gone the next.
…
… your nothing but a piece of rotten cold hearted piece of shit. Nothing but a fucking whore you are.
… I will die for my son …
[…] 2021 at 3.19 pm
…
You want to play bullshit games and accuse me of being bad, I may as well be bad. So quit your job as last thing you want is to be exposed from you lies. …
I want your mother to have a heart attack, a major one. …
… Eyes are watching.
[…] 2021 at 7.24 am
Have fun at your slutty girls night last night with the your friend [Ms K] that goes out with guys for money and gets paid to have sex with her … I bet you fuck for money. That’s who you are these days. …
…
One day time will come for you. It will hit you very very very hard.
[…] 2021 at 3.38 pm
Thanks but not good enough. If he is at your mother’s place I will get him off her ASAP. I know your mother’s address and every o her address you been to.
…
Stop being a fucking bitch.
…
Also quit your job.
[…] 2021 at 4.01 pm
I need more than 1 photo, I need more photos and more videos plus much much more updates. If not, I will change your life in an instant and will be hell for you.
I’m not mucking around anymore. You stole my child cunt!
[…] 2021 at 8.53 pm
Thieving Bitch.
I hate you so fucking much for stealing my son … I make sure your day comes. … you give me my son back and tell your mother to go jump off a cliff that toxic evil cunt she is. …
I make sure your life is hell you dumb cunt of a bitch …
I make sure your work knows exactly who you are …
Have a good week at work while it lasts.
[…] 2021 at 8.51 am
Where is the evidence, you can go to the police station as many times as you want, it won’t stop me. Like I said, the police will have to shoot me dead …
Fuck the DV order. …
[…] 2021 at 2.52 pm
New plates on the car hey. […]
Like I said, you stole my child. I will have eyes watching over my child. including me.
…
Specific threats directed by the father to the mother’s then solicitor, Ms S, include the following:
[…] 2021
… [Ms S] needs to leave Brisbane as I’m back and looking for her.
[…] 2021
… [Ms S] can blame you for her life that’s about to be destroyed and shattered, or did she do that herself…
[…] 2021
… I will make sure [Ms S] is ruined to the ground cause of her evil tactic ways.
[…] 2021
… Just don’t hide anything from me or I will take it out on your mother and [Ms S]…
[…] 2021
… I will make sure [Ms S] pays the price and she be humiliated and I make sure she gets disbarred from being a lawyer.
[…] 2021
… I make sure [Ms S] pays for the damage she has caused.
[…] 2021
… I will also make sure [Ms S] and [Ms EE] pays for what they did to me as well.
[…] 2021
… Time is coming, especially for [Ms S] and [Ms EE]. [[Ms EE] is the principal at the firm where [Ms S] was employed]
[…] 2021
… someone is already going to visit [Ms S] as I blamed her for the bullshit with you.
[…] 2021
... you fucked my life
…
Fuck [the mother]. She is a disease person. We all know she has a STD. We all know she has a mental illness since she was a child. But hey, your a evil cunt, you did this cause I didn't help you when you needed my help with financials many years ago. [The mother] told me how you were struggling with some financial situation back in the days. Your a jealous cunt cause you and your partner didn't like [the mother] and i having a [Motor Vehicle 1].
Well guess what, I loose my son, you will pay the price.
You won’t like [P] to be taken from you would you.
Sort out the mess you have caused.
I don’t deserve to have my son stolen from me when there is no evidence of harm or abuse.
Your a sneaky cunt of a lawyer. I don’t care about you or your family.
Someone is after you and [the mother] …
…
Hold [P] tight. You don’t want to miss out on the major milestones and achievements like I have would you?
Someone came for me, then they realised who I know, now they won’t come to me, but they will come to you, I blamed you for the mess, now you deal with it. …
…
… You should honestly go hang yourself for what you did. You stole my child … I have nothing to loose [Ms S]. You have so much to loose.
...
You have 2 options.
1: You tell [the mother] to do the right thing and give back what isn't hers and also to come to agreement with parenting. You return the funds you have accepted and apologise for what you have caused cause of your tactics and how the system works. You cause this mess so you fix it. Then I put a stop to all of this. We come to an agreement and put it forward to the courts for consent orders and everyone is happy and no more mess or issues so we all can move on. CO-PARENTING is the best for a child in a amicable and respectful way [Ms S]. Resolving out of court is best outcome for all including financially. Read your website [Ms S]. Or is it load of shit?
Or
2: I can't help you and it's out of my hands. It's not me you need to be worried about.
They know everything about you [Ms S], where you work, where you live and what you do in your spare time.
Even if I am locked up, killed or whatever, they will still come after you.
Police and courts can only do so much.
I been warned and now you been warned.
…
Throughout this time, the father repeatedly accused the mother of being mentally ill and threatened to publish her medical records online. He also threatened to publish intimate photographs and videos of the mother that he had taken during their relationship.
Despite the father’s conduct, the mother continued to send weekly photo updates of the child to the father until early 2021. As some of the father’s emails demonstrate, he did receive the updates but complained bitterly about the extent and frequency of them.
The emails and abuse from the father stopped only after the father was arrested in mid-2021.
While the direct communications to the mother did not recommence after the father’s release from prison in early 2022, the father’s attitudes towards the mother and others did not change.
In early 2022, the father told his parole officer that he had been “set up” by the mother. The father is noted to have engaged in “victim blaming” suggesting to his parole officer that the mother “knows how to trigger him” and he also blamed the maternal grandmother for becoming involved. A short time later, in 2022, the father acknowledged to his parole officer that he “went too far” but then stated that the mother and Mr L “know how to push his buttons”.
In mid-2022, the father sent an aggressive email to the mother’s lawyer which included the following (as per original):
…
Don’t make me seem like the bad one. I was pushed so get your facts right before you make a decision. I won’t allow you to steal my child either lies. Understand that ok Harry [the first name of the mother’s lawyer].
… It’s all on you now Harry. …
A short time later, in 2022, the father spoke to his parole officer about the video call he had had with the child during the family report interviews on 18 May 2022. The father recounted that the child had asked him for money for a new keyboard and the father said he felt he should be able to give it to him and then said that he was “willing to go to prison to give his son what he wants and that he sees his son as stolen from him”.
In mid-2022, at 4:13 pm the father sent an abusive email to the mother’s lawyer which included the following (as per original):
… Your a pathetic idiot of a lawyer …
And at 4:32 pm the father sent a further email which included the following (as per original):
…
Just a reminder to let my evil lying ex know that I have evidence from her saying to cancel lawyers and do agreement between her and myself. Meaning, my son and assets.
I will use those as evidence.
[The mother] has manipulated and enticed me.
So this will be sorted out very soon.
Thank you for your time
Remember, your a lawyer that has been taught how to lie. But don't ever ever lie about me and my son. That will draw the line.
…
In late 2022, the father sent an email to the mother’s lawyer which included the following (as per original):
…
I hope you loose everything from your partner, one day it will happen then you will realise.
Have a good day and evening with your so called happy family.
My child has been stolen from evil lawyers like you. But either way, play fair and I be fair. Don’t play with other peoples lives, it can bit back.
A short time later, in 2022, the father sent an email to the mother’s lawyer with the subject line “You owe me” and the content of the email included the following (as per original):
…
This is it. You played me from your evil tactics. Fuck you!
Days later, in 2022, the father sent a series of emails to the mother’s lawyer, the content of which included the following (as per original):
[At 10:05 am]
…
Stop playing games cold heartless professional liar. Isn't that what lawyers are taught to do ..... ?
I also hold you responsible for being in debt with me: you personally owe me compensation for my assets and properties ...
I will be seeking compensation from you shortly.
Have a good day cold heartless prick!
[At 10:13 am]
Also if I loose my son, that will be the last straw.
I don’t give a fuck about [the mother]. I don’t care about her. But my son, he is my world. Anyone destroys that relationship with my son … it’s the last straw.
You have no right nor does anyone else have a right to steal my child from me. …
So think very carefully ok Harry and anyone else that thinks I did wrong by my son, steals my son from my . Last straw … come to some reasonable agreements and conditions, otherwise it’s all on you!
Have a wonderful day cold heartless liars!!!
In late 2022, the father sent an email to the case manager of the Registrar of the Court and copied in the mother’s lawyer. The content of the email included the following:
Hi. Just to let you know the ICL has resigned. [Ms GG].
I am so glad she resigned as she was very biased and caused a lot of stress.
I hope Harry also wakes up and resigns too, it will be very beneficial for him to resign for the stress he has caused.
It's a hint Harry. Resign.
…
The father was the respondent to a previous domestic violence order taken out against him by a previous partner with whom he was in a relationship for five years. The father stated to his parole officer that he left this woman because she “played games with him”.
Material from Queensland Corrective Services contained in exhibit 5, include an assessment that the father’s offending behaviours towards the mother were “high risk” and it was recommended that the father’s relationships are “closely monitored, and that any Domestic Violence behaviours, attitudes or beliefs are challenged and any elevation in risk to be referred to QPS DFVU to allow for safety planning for the victim”. It was further recommended that the father be referred to participate in the Relationships Australia Stopping Family Violence Program. There is no evidence that the father undertook that program. Indeed, apart from a certificate indicating the father completed an ‘Anger Management Action Plan’ in early 2023, there is a complete absence of evidence from any expert the father may have attended upon in relation to his offending behaviours and general attitudes about the mother and others involved in these proceedings. The father’s limited evidence about counselling he has undertaken was inconsistent and unsatisfactory.
During the father’s interview with the family report writer on 20 April 2022, Ms O records in her report the following information provided by the father:
(a)Although describing his mental health as “down to the bottom” he said he had “never thought of suicide, would never end his life” (if this was a reference to past thoughts, it was inaccurate, as the father has repeatedly threatened suicide in the past);
(b)Denied sending the mother threats that he would commit suicide after separation and said his messages had been taken out of context (the father’s messages could not be said to have been taken out of context. The plain meaning of the words by the father indicated an intention to take his own life);
(c)Denied that any physical abuse took place during the relationship (it seems the father does not view his behaviour as constituting domestic or family violence because he did not physically assault the mother, or at least not severely);
(d)Denied ever threating to take the child away from the mother (this is not an accurate statement as the father did threaten to take the child);
(e)In mid-2021, he sent an email to the mother in which he apologised for his harassment and asked her to tell the child that he loved him (no such email was produced by the father, but even if such an email exists, his threatening and abusive conduct continued after this date, albeit not directly to the mother);
(f)Denied that he had encouraged the child to blame the maternal grandmother for the parents’ separation or to feel angry towards her (given the child’s adult style comments I am in little doubt that the child was repeating comments made by the father);
(g)“People may think I am a bad person, but I only did it because I love my son” (I find it extraordinary that the father would seek to use his son as an excuse for his appalling conduct);
(h)“The whole system is biased because I got locked up […] because [the mother] was ignoring me” (the father has a long way to go in addressing his behaviour if he truly believes this statement);
(i)He “got nasty” towards the mother and called her “an evil mother and a bitch” when she “alienated” him from the child by ceasing their visits (the father has a very inaccurate view of the reasons for his predicament);
(j)The “magistrate at the DVO hearing was biased” (this is yet another example of the father blaming everyone other than himself for his predicament);
(k)Denied stalking the mother (this is an inaccurate statement e.g. the police recovered CCTV footage corroborating the father stalking the mother in late 2020);
(l)If he were going to act on any of his threats, he “would have done that by now” (I really do not know how the father can seriously think such a statement reduces the magnitude of the risk he poses given the history of this matter);
(m)“After serving […] (in prison), I know that I was stupid to do what I did” (if only the father thereafter engaged in extensive therapy to address his attitudes and conduct. Alas, his behaviour and attitudes after being released from prison give me little cause for optimism that the father truly acknowledges the problems he has and the need to address them).
During the family report interview, the child depicted his family as comprising “Mum, Dad and me” and when asked if he still lived with both of his parents he said he did. When gently informed by Ms O that she knew that not to be the case, she asked why he thought his parents did not live together and he said “Because they fighted all the time”.
Ms O identified three risks to the child:
(a)A risk to the child’s relationship with his father;
(b)A risk to the child being exposed to conflict and family violence; and
(c)Several risks associated with the father’s threats to several people including the mother and her partner.
In relation to those identified risks, Ms O’s opines:
(a)The child’s relationship with the father is “valuable and important to him” and the mother has “successfully kept [the father’s] role as [the child’s] father alive for the child”.
(b)While a certain level of pain, grief and anger is to be expected upon the breakdown of a relationship, the father’s “abuse, harassment, and threats, have been not only extreme in number, but at times, their content has been sickening and disturbing, in nature”;
(c)If the mother’s evidence is to be accepted, the father exposed the child to his anger and abusive and sexualised language at changeovers and questioned the child inappropriately during telephone calls;
(d)“While [the father] acknowledged that his actions were mistaken, he seemed to brush over this” and his comment that he “got nasty” after the mother withheld the child from him, indicates that any expression of regret “amounts to a justification of sorts and may indicate that this regret is more likely to be about the consequences his actions caused him, than the actions themselves”;
(e)The risk of the father’s abusive behaviour recurring in the future, poses a risk to the child arising from:
(i)The likely psychological impact on the mother i.e. the “unbearable emotional burden”, caused by the fear created by the father, would diminish her functioning and emotional availability to the child;
(ii)The father exposing the child to his anger either during visits or telephone or video calls;
(iii)The father being an unhealthy role model for the child of “aggression and male entitlement to judge, abuse, intimidate, and control women”;
(iv)Given the history of abuse and threats, if the father were to act on any of his threats this “would clearly have devastating life-long effects on [the child] and his family”;
(v)Exposure to the conflict and abuse would affect the child’s ability to trust people and would cause confusion for him in his family relationships.
Ms O’s insights and opinions are very helpful and I place considerable weight upon them.
Informing her opinions, Ms O referred to published research in the area of coercive and controlling conduct including:
118. … research has identified coercive control as a significant predictor of intimate partner homicide. Coercive control has been defined as a pattern of behaviours used in a relationship to gain control and power by eroding a person's sense of identity, independence, and self-worth. [Mr HH] has described coercive control as a pattern of domination involving behaviours designed to "isolate, degrade, exploit and control," a victim. These behaviours have been found to physically and socially isolate a family, and include verbal abuse and threats, emotional abuse, social abuse in the form of surveillance and stalking, financial domination and control, and sexual abuse. Research has also found that these behaviours can be triggered or escalated at various points, when control is threatened…
Ms O suggested that there were some features of the coercive controlling dynamic absent in the present case in that the father did not appear to rob the mother of her autonomy or independence as an individual, or isolate her from her friends or family, or control her everyday behaviour during the relationship. While that may be so, there were certainly features of the coercive controlling dynamic present during the relationship, as described by the mother, and there most certainly was coercive and controlling behaviour by the father after separation.
In Ms O’s view the father presented as a “forceful person with narcissistic tendencies, who is passionate, lacks self-restraint, and acts out a “macho” and immature sense of pride and entitlement through abuse, harassment and the issuing of ultimatums and threats”. While, in my view, Ms O’s assessment is accurate, the intensity, duration and escalation of the father’s abusive and threatening behaviour increases the risk of harm posed by him.
The family report writer recommended that the father undertake therapy with a psychologist who works with men who use violence and intimidation, in order to assist him, not only to deal with his ongoing feelings of grief about the loss of his son in his life, but even more importantly to “challenge him to feel empathy for those he has abused, intimidated and threatened”.
Other than the father’s inconsistent evidence about what therapy (if any) he has undertaken, there is no evidence from any psychologist or therapist. Certainly, nothing in the father’s presentation during the trial caused me to conclude that he had developed empathy or remorse. If anything, the father continues to seek to brush off responsibility for his conduct.
Conclusion – does the father pose an unacceptable risk of harm?
The father has engaged in family violence. The extreme nature of the threats and abuse to which the mother and others have been subjected by the father is sickening. The father admits that his conduct after separation was intended to terrorise the mother, and it did. The father also admitted that the mother’s friend, Ms M, was so terrified of him that she provided information about the mother to him. Quite gratuitously during his cross-examination, the father referred to Ms M as “a prostitute”. That comment, whether true or not, says more about the father that it does about Ms M. As a consequence of the father’s conduct, the mother lost her friendship with Ms M.
The child has been exposed to the father’s disgraceful behaviour e.g. in late 2020 the mother was collecting the child from school and the father drove past the mother and child together and called out in a menacing manner. The child was fearful of the “scary man”. When the child spent time with the father or spoke to him on the telephone, the father involved him in the dispute and encouraged the child to think ill of the maternal grandmother, to whom the father attributes blame for his predicament.
The father has no regard for court orders as evidenced by his frequent contravention of the protection orders and bail conditions.
Nothing in the evidence persuades me that the father truly regrets his appalling conduct and the impact it has had on others, including the child, or that the father has gained any insight into why he needs to change his behaviour.
I conclude that the father poses an unacceptable risk of future harm to the child.
WHETHER THE FATHER SPENDING TIME WITH THE CHILD WOULD IMPACT ON THE MOTHER'S PARENTING CAPACITY
I have absolutely no doubt that the terror created by the father’s conduct is likely to have a long lasting impact upon the mother. I accept that the mother lived in extreme fear from shortly after separation until the father was arrested in mid-2021 and I have no doubt that her fear returned upon learning that the father was released from prison in early 2022.
The mother has had difficulty sleeping. She has been afraid to go out. When she did go out she was constantly looking over her shoulder. The father taunted her with suggestions that he would turn up when she least expected it and take the child. The mother has developed obsessive compulsive behaviours involving constantly checking that doors are locked and that she is not being followed.
Just reading the reams of abuse tendered into evidence is enough to cause one to feel physically ill. Yet this is what the mother had to read day in day out. The responsibility the mother felt for the threats involving her friends, lawyers and family would only have added to the burden felt by the mother. Of course, the mother should not feel any responsibility for the father’s conduct. The mother sought to involve the father in the child’s life after separation, and but for the father’s conduct, he would probably still have a relationship with the child.
In the absence of any evidence that the father has changed I find that any reintroduction of the father’s time with the child be it in person or on the telephone would cause ongoing emotional and psychological harm to the mother which in turn would detrimentally affect her parenting of the child.
WHETHER THE MOTHER HAS THE CAPACITY TO SUPPORT A RELATIONSHIP BETWEEN THE CHILD AND THE FATHER
While the mother may have the ‘capacity’ to support a relationship between the father and the child, if ordered, in my view it would come at significant cost to her such as not to be a realistic option.
WHETHER THE PARENTS HAVE ANY CAPACITY TO CO-PARENT
The fact that the father continues to press for an order for equal shared parental responsibility demonstrates his lack of insight. Such an order would require the parents to communicate and reach joint decisions about major long term issues. Given the history of this matter, i.e. the father’s abuse and threats, the parents do not have the capacity to co-parent.
WHETHER THE CHILD’S SURNAME SHOULD BE CHANGED
The Full Court in Chapman and Palmer (“Chapman”)[13] emphasised that each case involving a change of surname for a child, “should be approached in an even-handed manner with the object of making a decision that will promote the welfare of the child”. Chapman and subsequent cases[14] have identified various factors that may be considered relevant in each particular case including the following:
(a)Any short or long term effects of any change in the child’s surname;
(b)Any embarrassment likely to be experienced by the child if his/her surname is different to that of the members of his/her immediate family with whom he/she lives primarily;
(c)Any confusion likely to be caused for the child if his/her surname is or is not changed;
(d)The effect which any change may have on the child’s relationship with the parent whose surname the child bore during the parent’s relationship;
(e)The effect of frequent or random changes of name;
(f)The contact that each parent is likely to have with the child in the future;
(g)The degree of the child’s identification with the surname sought to be changed and with the proposed new surname;
(h)The child’s wishes.
[13] (1978) FLC 90–510 at 77,675–77,676.
[14] Beach & Stemmler (1979) FLC 90–692; Pylarinos & Reklitis (1979) FLC 90–609; Fooks & McCarthy (1994) FLC 92–450; Reynolds & Sherman (2015) FLC 93–659.
While I do not have a copy of the child’s birth certificate, (and regrettably it is no longer a requirement for an applicant to file a copy of a child’s birth certificate), it seems common ground that the child’s surname was registered as ‘Ressel’. At that time, it seems the mother’s surname was ‘…’ or she may have changed it to ‘Morath’ (her mother’s birth name) by then. I am unclear what the father’s surname was at that time.
The father’s birth name is …. The father has thereafter been known by various names. In or about 2017, the father changed his surname to ‘Ressel’ (a name derived from the mother’s great grandmother’s surname from her Country KK heritage). The mother was intending to also change her surname to ‘Ressel’ but did not do so.
The application by the mother to change the child’s surname is of recent origin and incorporated for the first time, it seems, in her amended Response filed 23 February 2023. The mother contends that her application came about because when she and Mr L were registering the birth of their child (who is now 12 months old), the child in this case expressed a wish to have the same name as his sibling. His sibling has two surnames but they are not hyphenated. His surname is ‘Morath L’. The mother is not seeking to change the child’s name to ‘Morath L’ but to ‘Morath’. The mother and Mr L have discussed marriage and the mother indicated that she may change her surname upon marriage to ‘L’ or perhaps ‘Morath L’. Mr L is from Country JJ and the mother contends that it is common in that culture for the mother’s and father’s surname to be used for children.
The mother does not advance a strong case for the child’s surname to be changed. At its highest, the mother contends that she wants the child “to have the option if he really, really persists and wants to change his name”. The mother conceded that the child is certainly not yet mature but that she just wanted him to have the option if he is “really passionate about it and … it makes him feel included in the family”.
The father opposes a change in the child’s surname at this time but suggested that should the child wish to change his surname when he is “a little bit older”, he would not object.
Given the circumstances of this case and, in particular, the uncertainty about what the mother’s surname may be in the future, it seems to be premature for the child’s surname to be changed.
If the mother has sole parental responsibility for the child, she would have sole decision making power in relation to major long term decisions including a change of name for the child, although it seems that formal recognition of the change by changing his birth certificate with the Registrar of Births Deaths and Marriages would require an order of a court.[15]
[15] See s17 of the Births, Deaths and Marriages Registration Act 2003 (Qld).
WHAT PARENTING ORDER SHOULD BE MADE?
I have found that the father poses an unacceptable risk of future harm to the child. In those circumstances, it might be possible for the risk to be ameliorated by professional supervision at a contact centre. However, the mother’s past offer for the father to spend supervised time at a contact centre did not eventuate, and there was no suggestion, during the trial, that long term supervision was an option in the circumstances of this case.
Given the extreme nature of the father’s threats and continued abusive communications after his release from prison, I do not consider long term supervision to be in the child’s best interests. In addition, the prospect of the child having an ongoing relationship with the father, even in a supervised setting is likely to have a detrimental impact on the mother’s emotional and psychological functioning and as a consequence make her less available to meet the child’s needs.
In addition, the child appears to have a number of behavioural issues that are yet to be finally diagnosed, and the child’s behaviour during and after the supervised video call in May 2022 (referred to a [17]) suggests that even video or telephone calls are unlikely to be in the child’s best interests.
The child told Ms O in April 2022 that he missed his father and estimated that this feeling was eight out of ten (where ten is missing him most). The child said he would like to spend “3 hours” with his father. The child also said that if he had a magic wand he would wish “for my Dad to come back, to have a car, and to have loads of money”.
During the observed video call between the father and the child on 18 May 2022, the father was noted to speak lovingly to the child and several times assured him that he loved him. In Ms O’s view, the father managed the call extremely well although it was noted that he persisted with the call despite the child becoming agitated and when Ms O suggested that the call come to an end after about 18 minutes (the father contends it was closer to 40 minutes), the father complied but said he wanted to talk for longer and would talk all day but agreed to end the call. Prior to ending the call the father promised the child that he would speak to him again “very soon”. Given the circumstances, there was no basis upon which the father could make such a promise. It may well have raised expectations for the child which were then unmet.
When the father did speak to the child by telephone in the period up to mid-2020 he made comments that were argumentative and not child focussed. That fact is that comments made by the father even during supervised communications cannot be ‘unsaid’ thus I conclude that video or telephone calls are not in the child’s best interests.
Regrettably for the child, he cannot safely have a relationship with the father and priority must be given to the child’s safety.
One can only hope that upon reading these Reasons, the father will immediately engage in intensive, long term therapy with a skilled psychologist to address his personality vulnerabilities which seemingly have left him unable to contain his anger and abuse and have caused significant harm not only to the mother and the child but also to himself. If he does so engage, it would be helpful for his therapist to have a copy of these Reasons and the family report.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 15 March 2023
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