Riggio & Cowper
[2023] FedCFamC2F 1
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Riggio & Cowper [2023] FedCFamC2F 1
File number(s): WOC 1334 of 2019 Judgment of: JUDGE ELDERSHAW Date of judgment: 10 January 2023 Catchwords: FAMILY LAW – PARENTING – INTERIM ORDERS – Where the father seeks non-supervised time with the children – Where the mother seeks a continuation of supervised time between the father and the children – Where there is issue as to if the children are at risk of harm in the father’s care – Where both children present with developmental difficulties –Where there are allegations of family violence –Where the father discontinued visits with the children for over a year – Where the father’s capacity to meet the children’s emotional and psychological needs remains unclear –Where the risk posed by the father continues to warrant supervision – Where the children would be assisted by regular consistent engagement with the father – Where the children shall live with the mother – Where the children shall continue to spend supervised time with the father –Where the children shall spend time with the paternal grandparents Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 62B, 65DA Cases cited: Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel v Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
SS v AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 179 Date of hearing: 12 December 2022 Place: Sydney Counsel for the Applicant: Mr Fermanis Solicitor for the Applicant: CA Williams Legal Pty Ltd Counsel for the First Respondent: Ms Tabbernor Solicitor for the First Respondent: Rafton Family Lawyers The Second Respondent: The Second Respondent appeared in person Counsel for the Independent Children's Lawyer: Ms Ingenito Solicitor for the Independent Children's Lawyer: Legal Aid NSW Town C Family Law ORDERS
WOC 1334 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR COWPER
Applicant
AND: MS RIGGIO
First Respondent
MS COWPER
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE ELDERSHAW
DATE OF ORDER:
10 JANUARY 2023
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.In these Orders, “the children” mean X born in 2015 and Y born in 2017.
2.The interim orders made on 17 July 2020 be amended as follows:
THE COURT ORDERS THAT:
1.The matter be listed on 6 October 2020 at 9:30AM for mention before Judge Altobelli.
2.Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.3.[X], born [in] 2015 and [Y], born [in] 2017 (“the children”) shall live with the mother.
Children’s time with the father
4.Except as agreed between the parties in writing, the father shall spend supervised time with the children as follows:
(a)For
two (2)three (3) hours each alternate Saturday for a total of six (6) visits supervised by [B Contact Service]at [E Contact Centre, Town C](or other supervised contact service as agreed between the mother and father in writing) at times as specified by the contact servicecentrein consultation with the mother and father;(b)At the expiration of Order 4(a) herein, each alternate Sunday for six (6) hours except for Mother’s Day supervised by [B Contact Service]
at [E Contact Centre, Town C](or other supervised contact service as agreed between the mother and father in writing) at times as specified by the contact servicecentrein consultation with the mother and father; and(c) On Father’s Day for six (6) hours supervised by [B Contact Service] (or other supervised contact service as agreed between the mother and father in writing) at times as specified by the contact service
centrein consultation with the mother and father.
5The paternal grandparents, [Ms Cowper] and [Mr D], are entitled to attend at any supervised visit.
6Until such time that[E Contact Service]is available, the father may spend, at his election, two (2) hours each alternate Saturday with the children so long as it is supervised through an appropriate supervision service.
Children’s time with Paternal Grandparents
7.Independent of any time with the father, the children are to spend time with the paternal grandparents once per month at the home of the maternal grandmother (or as agreed between the maternal grandmother, paternal grandmother and mother), and the mother is to do all things reasonably required to facilitate this time. The father is not to attend at this visit.
Supervision service
8.To facilitate the father spending time with the children
at[E Contact Service]or other agreed supervision servicepursuant to these Orders, the mother and father shall do all things and sign all documents necessary to register with and complete all required intake and assessment documents and processes required by [B Contact Service] (or other such supervised contact service as agreed between the parties)for the purpose of facilitating the father’s time with the children pursuant to these Orders.9.The
mother shall pay up to $50 dollars per fortnight towards the cost of supervision, so long as that is no more than half of the cost, and thefather shall pay theremainingcosts of the [E Contact Service] supervised contact service(or other such agreed supervised contact service)(at the relevant concession or non-concession rate), including, but not limited to, any costs associated with the initial intake assessment,any intake assessment or appointments attended by the children and the costs of the father and the children’s attendance at the servicefor the purpose of the father spending supervised time with the children.10.In the event that the supervised contact service
Contact Centreoffers servicessupervised time onlyat times which are less regular than or different from specified in these Orders, then the contact shallmayoccur at the times that are offered by the serviceContact Centre.11.The father must not attend at or be outside of his car in the vicinity of the changeover venue
Contact Centrebefore the time with children is to start and must promptly leave the changeover venueContact Centreand the vicinity at the time with the children is to end.12.The parties must comply with all reasonable directions and requests of the contact service, including as to the dates, place and/or times of each visit.
13Within 3 months of these orders, the father shall attend and complete the an appropriate parenting course, such as Keeping Kids In Mind, and shall provide the mother with evidence of completion of the course undertaken.
Telephone communication
14The father shall communicate with the children every Tuesday and Thursday
in week 1 (week 1 shall coincide with the week the children spend time with the father) and on Tuesday, Thursday and Sunday in week 2 (in the week the children do not spend time with the father)and for this purpose the communication:(a) Can be by telephone, Facetime and/or Skype;
(b) Shall occur between 6:00 pm until 6:30 pm;
(c)Shall be initiated by the father contacting the children on a number and/or Skype address provided by the mother; and
(d)This communication can be monitored by the mother, including by her placing the phone on loudspeaker and/or being present with the children during such communication.
Ancillary matters
15.The mother and father shall do all things necessary to authorise the children’s day care/school to provide to the other parent, on a regular basis, copies of all school reports, school newsletters and other information regarding the children’s school activities.
16.The mother and father be entitled to obtain directly from any day care/school attended by the children or any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose the mother and father shall immediately notify each other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
17.The mother and father shall immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the children when the children are in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the children.
18.The mother and father be restrained from speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the children’s presence or hearing.
19.The father be restrained by injunction from consuming any alcohol 24 hours prior to or whilst the children spend time with him.
Other matters
3.All extant interim applications are dismissed.
4.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders 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 these Orders.
5.Each party’s costs of, and incidental to, the interim application be reserved.
6.The matter is otherwise transferred to the Sydney Registry of the Federal Circuit and Family Court of Australia (Division 1) AND IT IS NOTED THAT the parties will be contacted directly confirming the next listing date.
THE COURT NOTES THAT:
A.The reason for the transfer to the Federal Circuit and Family Court of Australia (Division 1) is that the final hearing is estimated to require five to six days, based on witnesses as follows: the mother, maternal grandmother, maternal grandfather, mother’s partner, children’s treating psychologist; the father, paternal grandmother (who is also the Second Respondent), the father’s adult daughter, father’s partner, father’s friend and the Court-appointed Expert.
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 a pseudonym Riggio & Cowper has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE ELDERSHAW:
INTRODUCTION
These Reasons concern interim parenting arrangements for the children, X born in 2015 (“X”), currently seven years of age, and Y born in 2017 (“Y”), recently five years of age ( collectively “the children”).
The mother is Ms Riggio (“the mother”) born in 1985. The father is Mr Cowper (“the father”) born in 1982. X and Y are the only children of the parties. The Second Respondent is Ms Cowper, who is the paternal grandmother (“the paternal grandmother”).
The parents commenced living together in 2011 and separated on a final basis on 25 April 2019.
Pursuant to the Orders made on 17 July 2020, the children live with the mother and spend supervised time with the father for two hours each fortnight. These Orders also confer time on the paternal grandparents once per month at the home of the maternal grandparents.
There is no dispute the children should continue living with the mother. The real issue is whether the children are at risk of harm in the father’s care and whether the time should continue to be supervised.
Documents
The Court has the assistance of a Family Report dated 21 October 2022.
The father relies on his affidavit filed 18 November 2022, the affidavit of the paternal grandmother filed 18 November 2022, the affidavit of his adult daughter, Ms F (“Ms F”) filed 18 November 2022, the affidavit of his partner, Ms G (“Ms G”) filed 22 August 2022, and the affidavit of a friend, Ms H (“Ms H”) filed 18 November 2022.
The mother relies on her affidavit filed 6 December 2022, the affidavit of her mother Ms J (“Ms J”) filed 22 August 2022, and the affidavit of the children’s treating psychologist, Ms K (“Ms K”) filed 25 October 2022.
The paternal grandmother, in her capacity as Second Respondent, participated in the interim hearing but did not file an Application for Interim Orders.
Applications
The father seeks that the children spend time with him from 10.00 am to 5.00 pm on alternate Saturdays for six visits, then alternate weekends from 10.00 am Saturday to 4.00 pm Sunday until March 2023, then alternate weekends from Friday afternoon to Sunday afternoon pending further order. He also seeks time in the school holidays as two nights in the Term 1, 2023 holidays, increasing to a full week by Term 4, 2023 holidays. The holiday time would be shared equally in 2024 and thereafter. He also seeks twice-weekly telephone time and changeover to occur at Suburb L McDonald’s near City M. He says that Y’s attendance at the time would be subject to Y feeling comfortable and that Y would be returned to the mother if there is a problem.
The mother seeks that the children spend time with the father under professional supervision for three hours every third Saturday and that the children communicate with the father by telephone or other means on two occasions per week. The mother’s affidavit refers to once weekly telephone time, however, her counsel moved on the Orders sought in the Response filed on 6 December 2021, as was confirmed in the Case Outline Document. I have proceeded on the basis of her last-in-time counsel’s representations. The mother also seeks an order for the preparation of a Single Expert Report.
The Independent Children’s Lawyer adopts the mother’s proposal.
Contentions
The father’s case is that, while there were disagreements and inappropriate behaviour in the past, since 2020 there have been no issues that warrants the supervision of his time with the children.
The father deposes that the children overheard “disagreements” between the parties and that both parties raised their voices, and that the parties:
…verbally argued in which it was [sic] both our faults and should never have happened, but I vehemently deny any physical harm as [the mother] alleges. I am now more mindful of the fact that the children should never be placed in that position to hear adults argue.
The father deposes:
61.I have now taken responsibility for my actions and I have attended various courses and counselling. On 21 July 2020 I started counselling with [Mr N] Clinical Psychologist at [O Group] at [Suburb P] for Anger Management. This was completed on 9 December 2020 and he has since advised me that I no longer require counselling.
62.On 1 October 2020 my psychologist wrote a letter in relation to my treatment of Anger Management and Cognitive Behavioural Therapy. I attended 5 sessions from July 2020 and feel that I have made significant changes to the way I deal with conflict and stress in my life. My last session was on 9 December 2020. On 9 December 2020 my psychologist wrote an updated report in relation to my progress with counselling. my last session was on 12 December 2020 in which I attended a total of 10 sessions.
63.I completed 5 sessions in another program called the “Men’s Behaviour Change” program with [Q Counsellors] under the Correctional Officer’s instructions and I completed that program in December 2020.
64.On 22 September 2020 I completed the “Keeping Kids in Mind” program. I learnt so much from that program as it helped me understand the emotional challenges of parenting after separation. I was the only one in my group to get the gold star certificate for the high level of my engagement in the program.
(As per the original)
In support of the father, the paternal grandmother deposes:
35.I do support [Mr Cowper] in unsupervised time with his children. I have seen a dramatic change in his behaviour. [Mr Cowper] is now partnered with [Ms G], a wonderful person who has three children of her own and she works as a [allied health worker] [Employer AB].
36.[Mr Cowper] has gone to Counselling sessions and has completed various courses. I have noticed how he handles situations that may arise. Due to now being educated his attitude towards any problem and how to manage it is very different from the past.
(Emphasis added)
The mother contends that the father perpetrated family violence against her, and that the children were exposed to this. She cites examples of verbal abuse and degrading statements made by the father and episodes of physical violence, including an incident on 25 April 2019. She contends that the evidence continues to indicate that the father poses an unacceptable risk of harm to the children as to warrant supervision.
BACKGROUND
April 2016 car parking incident
The mother deposes that in April 2016, when she was parking the car, the father said “You’re so fucking dumb, you should park next to the fucking pole”. When the mother said “OK, I just need to get X out of the car first”, he replied “you should fucking listen to me when I talk. When I talk to you it’s like I’m talking to a brick wall. You’re just a cunt and I’m sick of you”.
The father deposes that he asked the mother “Please park next to the pole, it won’t get damaged there with people opening doors on it”.
March 2017 cruise incident
The parties, X and Ms Cowper, went on a cruise in 2017. The mother deposes that the parties were on the deck with other passengers. At about 10.00 pm, the mother decided to take X back to the cabin to put him to bed. Ms Cowper was also present. The father yelled at the mother in front of others “If you’re going to the fucking room, don’t come back and you can get fucked. No kids will ever come on a cruise with us again”. The mother left with X and Ms Cowper and returned to the cabin. The father followed and said “Go get fucked, you’re nothing but a boring cunt of a Mrs. You are never coming with me you boring cunt. Just get fucked”. The father left the room and returned ten minutes later with similar comments.
The father deposes that the parties were going to have a “date night” while on the cruise. The mother went to the room to put X to bed and the father believed that Ms Cowper would babysit him. The father deposes that when he arrived in the room to check on them, the mother was in bed already. He said to her “Why are you in bed? We are supposed to be having a night out for the adults”. He deposes the mother became defensive and they got into a verbal argument.
Ms Cowper says she heard both parents yelling but could not hear what was said, and that X was crying.
10 September 2017 money transfer incident
The mother deposes:
26.[In] 2017, I was in hospital with [X]. I transferred my mother $40 that I owed her. [Mr Cowper] then called me and started screaming: “You’re such a dumb fuck. You transferred $40 from the wrong account. You’re a cunt”. I responded: “[Mr Cowper] I’m at the hospital with [X]”. He replied: “I don’t fucken care”. [Mr Cowper] then sent me a text message: “Jam your aquarium day up your ass tomorrow”.
27.When I arrived home, [Mr Cowper] ran up to me. I had [X]in my arms. “Listen you are not to touch or do anything with our finances. If you want to purchase anything, you have to call me first. You are a shit lazy Mrs who doesn’t even do anything at all. You just sit on your ass and watch [X]”.
(As per the original)
Of the same incident, the father deposes:
16.…[Ms Riggio] transferred $30 to her parents from the wrong account so that it left insufficient finds in to account or the mortgage repayment the next day. She did not say that she was at the hospital with [X]. I asked [Ms Riggio] “Check the accounts properly, we need to avoid unnecessary fees living on one income. We both argued as [Ms Riggio] always accused me of being controlling when she wanted me to organise the finances and pay the bills and she was not good managing money…
October 2017: Mother’s mental state
On 26 October 2017, the mother attended her General Practitioner and was provided with a Mental Health Treatment Plan. This document was adduced in the father’s case, noting the mother is recorded as having told the doctor that she was never physically abused by the father and that the father had not abused X. The document, once admitted, is admitted for all purposes.
The same document records that the mother reported the father being verbally abusive, rarely apologises and that there was “a major issue in 2017 at [the] cruise”. The mother was described as presenting with “relationship issues”, low self-esteem, “low mood”, and with “stress in [the] relationship”. Her mental state examination recorded “very good” insight. The diagnosis/formulation was:
[Ms Riggio] has long term issues with her partner that is [sic] escalating. She had a very good childhood and very good extended family and group of friends. She wants to do the correct thing by family, trying to find out how to deal with current situation.
She has features of adjustment disorder due to relationship issues.
She is a very positive lady and not having any ideas to hurt self or others. She enjoys herself as a mother and is currently 35 weeks pregnant in her second pregnancy.
4 March 2018 breastfeeding incident
The mother alleges that on 4 March 2018, while she was breastfeeding Y and X was sitting with his head in her lap, the father grabbed her face and said:
I have been thinking about it and all the blood, sweat and tears I have put into this place and money I have put in is so much more than you. I have worked it all out and you would not even get half of this house and if you think of taking half, I will get violent and no cop will stop me, so you better be careful.”
The father denies threatening the mother. He deposes that the mother “threatened me she will take the kids and never let me see them”.
December 2018 barbeque incident
In December 2018, the family were preparing for a barbeque. The mother deposes that the father handed her a tray of meat, which she dropped and the meat fell on the floor. When the father saw this, he yelled at her “You’re fucking useless, and I swear you’re a fucking dumb cunt”. The mother responded “I’m sorry, I didn’t mean to, it just slipped out of my hands”. The father replied “You’re so fucking retarded, you’re a cunt”.
The mother deposes that she took the children inside and the father followed her, grabbed the tray of food and smashed it down on the sink, smashing a glass and mug in the process. He went back outside and kicked X’s toy barbeque several times until it broke. X saw this and said “Oh no, my barbeque” and was crying. The mother further deposes that the father continued to throw items in the sink, near to X. He smashed two wine glasses and the glass flew around the kitchen. The mother said “Please stop it, you could have hurt X” to which the father responded “I don’t fucking care about X”. The father left the home and went out to buy food for himself. When he returned, X ran up to him saying “food”. The father said “this is my food, you guys can have fucking toast”.
The father deposes:
20.On 16 December 2018, I recall we were having a BBQ and [Ms Riggio] was affected by alcohol and was stumbling. I made a comment about how much she had to drink which enraged her. She stumbled and dropped the tray of meat all over the floor. She fell over [X]’s toy BBQ damaging it. She slammed the tray down on the sink which fell on some glasses in the sink and shattered them. We argued about what she had done but I did not say anything negative about the children…
(As per the original)
The mother adduces a copy of a text message from the father date stamped 18 December 2018 which reads:
Words cannot describe how sorry I am for the other night … Don’t ask why I snapped in such a way. I should have got pissed off but not like that. I’m drained! So drained. Sometimes the pressure and events build up in a way which causes me to act like a dick when something goes wrong or doesn’t work out, a build-up of negatives and thing not working out cause me to snap like a firecracker!
I’m just so sorry you guys … the loves of my life have to see me like this … it’s tearing me apart inside and us as a family.
I do love you with all my heart. Please forgive me as I am so regretful of all my actions.
(As per the original)
March 2019 movie night incident
The mother deposes that, on 23 March 2019, the father and X set up a tent in the garden to have a movie night. The father was trying to set up the movie when he started screaming “It’s not fucking working, what a fucking cunt of an Arab”. The mother said “Can you please watch your language around X” to which the father replied “Shut the fuck up, you retard”. According to the mother, X changed his mind about wanting to watch the movie, and the father screamed “I spent all afternoon wasting my time setting that up for nothing, never again”. The mother said “Don’t be so hard on him, he’s only three”. The father replied “I don’t fucking care. This is fucking bullshit, a waste of my time. I’m never doing that again for that dopey cunt of a kid. He’s just a mumma’s [sic] little boy shit”. The father walked off and returned and yelled in the mother’s face “You’re a boney face cunt. I can’t stand you and I fucking hate my life and this house”.
The father deposes:
21.…[Ms Riggio] and I did have an argument after she encouraged [X] to come back inside and I accept that I did say something about “hating my life and this house” and “going off to bed”…
Ms Cowper reports that she “vaguely recalls” the incident, and that there was an argument. She deposes the father was frustrated about being unable to fix the movie box.
25 April 2019 incident
The mother deposes that on 25 April 2019, the father became violent towards her, the paternal grandparents and Ms Cowper. X and Y were present, as were two other children:
43.On 25 April 2019 we visited the paternal grandparents home. [Ms F] was also there.
44.On this day, I saw [Mr Cowper] and his father having an argument outside. When [Mr Cowper] came back in [Mr Cowper] started swearing and being verbally abusive towards me, including calling me a “Cunt”. [Mr Cowper]’s father [Mr D] immediately said to [Mr Cowper]: “Don’t speak to her like that”. [Mr Cowper] started yelling at his father: “Shut the fuck up, it’s none of your fucking business”.
45.I later saw [Mr Cowper] pinning [Mr D] against a wall and using his left hand to squeeze his chin. [Mr Cowper] was close to [Mr D]'s face and continued screaming at [Mr D]. I screamed out: "[Mr Cowper], don’t". I was horrified that he was going to hurt his father. [Ms Cowper] observed this event and took no steps to intervene.
46.When I said this, [Mr Cowper] then turned to me. I started walking backwards and he shoved me using his hands on my upper torso.
47.I then heard the back door slam multiple times and [Mr Cowper] went outside. [Mr Cowper] came back in and again started yelling. I saw [Ms Cowper] pick up the home phone. [Mr Cowper] grabbed the home phone from her hand and forcefully threw it on the ground. I then heard [Mr Cowper] run towards the front door and force it open, causing the screen door to detach from its wooden frame. It shattered into several large pieces.
48.Five children witnessed this incident: [Ms F], [X], [Y], and [Mr Cowper]’s niece and nephew. [X] hid under the table during this incident.
49.When the police arrived, [X] came up to the female officer that was sitting with [Ms F] and myself at the table and said: "Daddy was cranky at Poppy and I was hiding under the table and mummy was over there crying and daddy smashed the front door and there is glass all over the floor". I then reassured [X] that there was no glass on the floor.
50.[Ms F] took a video of this event who later sent the video to me. She also sent me a text message of what occurred.
51.I am concerned about the long-term effects witnessing [Mr Cowper]’s behaviour on this occasion and generally has had on the children. Both children are in the care of a psychologist. Both children are defiant and oppositional, and [Y] still struggles with separation anxiety, as set out below.
52.I am aware that [Mr Cowper] has offered an explanation about this behaviour at the time being that he was distressed about [Ms F] being sexually assaulted. At the time, [Ms F] was 15 and in a relationship with the son of a family friend who was 18. When [Mr Cowper] found out about the relationship, [Mr Cowper] was very angry and yelled at [Ms F] “I will kill him. I will put him in jail”.
53.At the time, [Ms F] and her mother [Ms R] spoke to me about their concern that [Mr Cowper] would cause [Ms F]'s boyfriend to be arrested for Statutory Rape. [Ms F] was distressed when she spoke to me about this.
(As per the original)
A video clip filmed on Ms Cowper’s phone on 25 Aril 2019 was adduced as Exhibit M1. The video has been viewed. It shows a six second clip of one man dressed in a pair of dark shorts and a white singlet holding another man against the wall and pointing into his face at very close proximity. There is a woman dressed in dark trousers and a dark jumper who stands to one side and does nothing, then walks towards the men.
I have understood the man in the shorts and singlet to be the father, the man against the wall to be the paternal grandfather and the woman to be the paternal grandmother. The finger pointing appears to be threatening and aggressive and it appears that the man who is held to the wall is trapped.
The paternal grandmother deposes:
9.On 25 April 2019, [Mr Cowper], [Ms Riggio] and their 2 children [X] and [Y] came over along with [Ms F] to our house for a swim and a family BBQ. When [Mr Cowper] and [Ms Riggio] first came, I observed [Ms Riggio] was in a mood, you could tell, the atmosphere when she walked in, [Mr Cowper] was okay, but [Ms Riggio] wasn’t, she appeared agitated. I was in the kitchen and [Mr D] and [Mr Cowper] were outside cooking on the BBQ’s having a discussion. [Ms Riggio] was at the dining room table cleaning up after the children. The children went into the family room to play. [Mr Cowper] had just bought some food into the kitchen and left it on the bench and went back outside to help his father. [Ms Riggio] stood there pointing her finger at [Mr Cowper] through the window when she saw him standing in front of the BBQ eating a kebab. [Ms Riggio] was glaring at [Mr Cowper] through the window, I saw that [Mr Cowper] misinterpreted her gestures as [Ms Riggio] stood there staring at him with her arms crossed. [Mr Cowper] then bought some of the meat in, and [Mr Cowper] said: “What’s your problem, What’s up with you?” [Ms Riggio] said: “Why are you eating before us?” [Mr Cowper] said: “Open your eyes it’s on the bench”. [Ms Riggio] and [Mr Cowper] started to argue, both equally yelling at each other. [Mr D] bought the rest of the meat in and told them to stop arguing.
10.[Mr Cowper] and [Mr D] started having words as [Mr Cowper] said he hadn’t done anything wrong he was just standing there eating. Because [Mr Cowper] and [Mr D] were yelling at each other I decided to call the Police. I said to the lady on the phone: “My son and husband are having a bit of an argument. Don’t worry, all is good he is going”.
11.After the call I had the kitchen phone in my hand when [Mr Cowper] grabbed it and threw it on the floor saying: “Don’t bother, I’m leaving”. [Mr D] told [Mr Cowper] to leave the house.
12.[Mr Cowper] turned and walked out of the kitchen area through the dining area past [Mr D] towards the front door. I saw [Mr Cowper] stop and engage in a verbal conversation with [Mr D] pointing his finger at him. I came from kitchen area, and I saw that [Mr Cowper] had his hand up on [Mr D]'s chin, and his other hand was pointing his finger at [Mr D]. I saw that [Mr D] was verbally provoking him and he did not look scared of [Mr Cowper]. As this was happening, I walked up the hallway towards our bedroom. When I got into the bedroom the phone rang and it was the police. I said to the lady: “It’s alright he’s leaving, it’s all good all done and dusted”. The lady said: “We are in the next street, and we will come and check”. I said: “Why? it’s all good there’s no need to”. The lady said: “Because we had a call, we got to check the place”. I hung up and then went and stood in the hallway outside our bedroom. [Mr Cowper] walked up the hallway then turned and went back to get his keys. As [Mr Cowper] went to leave, I saw [Ms Riggio] stand in front of him in the hall area. I saw that to avoid contact whilst passing [Ms Riggio], [Mr Cowper] put his hand up across the front of his body. In doing so there might have been some slight contact with his arm and [Ms Riggio]’s upper body but from the angle I was looking I cannot confirm this as my view was obscured by an ornate column in the hallway.
13.[Mr Cowper] proceeded up the hallway towards the front door. I then heard the wooden front screen door crack. I came out of our bedroom, and I saw that [Mr Cowper] could not open the door. [Mr Cowper] was standing in front of the screen door stunned. [Mr Cowper] could not get out as bits of wood were dangling, I heard [Mr Cowper] say: “Are you kidding me?” to himself. The door had a sliding latch which was still locked at the top of the timber screen door into the door jam. The timber door surrounds were broken dangling there still attached to the screen.
14.I found out later from [Mr D] that [Mr Cowper] tripped on his thongs with the mat, which caused him to go forward into the door. [Mr D] was cleaning up bits of door and talking about it. I saw [Mr Cowper] push the broken bits to the side as there were splinters. I saw [Mr Cowper] then get into his car and drive off.
15.[Mr Cowper] apologised to me not long after for the accident with the door and what happened as to his behaviours. [Mr Cowper] replaced the screen door with a sturdy aluminium security door not long after. At no time did [Mr Cowper] physically or verbally assault me.
(Emphasis added)
The father deposes at paragraph 114 of his affidavit filed 22 August 2022 that:
…On Anzac Day [Ms Riggio] and I were at my parent’s house, and we were having a barbecue, there was a verbal argument between my father and I, so I decided to leave the house and go home. My mother called the Police with the belief they would talk to me about my behaviours. I did attempt to take the phone out of my mother’s hand, and it knocked on the floor and smashed. I pleaded guilty to Destroy Property in relation to the phone. I pleaded not guilty to the Common Assault against my Father and [Ms Riggio]. At hearing I was found Not Guilty. As I was leaving the house I tripped on the front mat as I was trying to leave, and I fell into the front flyscreen door which shattered as it was a thin door however I did not intentionally damage the door. I was found Not Guilty for damaging the door.
Of the same incident, the father deposes in his affidavit filed 24 November 2022 that:
24.In early 2019, a work colleague and good friend committed suicide. I was sad and devastated. A week before Anzac Day 2019, I discovered that [Ms F] had been sexually abused by a close family adult male friend when she was just 15 years old. I was distraught, devastated and felt I had failed her as a father. I was still feeling like a failure when I had an argument with my father at a family BBQ on Anzac Day.
25.As a result of the incident on 25 April 2019, I was charged with 4 offences. 2 counts of Destroying or Damaging Property and 2 counts of Common Assault. These charges arose out of an incident on Anzac Day when [Ms Riggio], myself and the children were at my parent’s house for a BBQ. During a verbal argument between my father and I about my mother’s sister, he was yelling at me and he grabbed my arm first, so I grabbed him on the chin with two fingers so he would listen to me. While I was speaking to him about this time I was pointing my index finger in his direction. I then decided to leave the house and go home because I knew the children and [Ms F] were present and I did not want it to escalate any further. I did attempt to take the phone out of my mother’s hand, and it fell on the floor and was smashed. I was charged with assaulting [Ms Riggio] but what had happened was an accident when she attempted to stand in my way to stop me leaving and I inadvertently brushed past her to get out the door. I pleaded guilty to Destroy Property in relation to the phone. I pleaded not guilty to the charges of assaulting my father and [Ms Riggio]. I was found Not Guilty in relation to the assault charges. [Ms Riggio]’s evidence in paragraphs 61-70 of her trial affidavit filed on 22 August 2022 does not accurately reflect what was done or said on that occasion.
(As per the original)
On 30 April 2019, the father was charged with one count of common assault of the mother, one count of assault against the paternal grandfather, and two counts of property damage. He pleaded guilty to malicious damage relating to the damage to the paternal grandmother’s phone for which he was fined $500. The father was found not guilty to the assault charges and the second property charge.
A finding of not guilty assessed against the standard of proof in a criminal matter and the evaluation of risk in a parenting matter are different.
On 26 April 2019, the Court made a provisional Apprehended Domestic Violence Order (“ADVO”) naming the mother and each of his parents as the protected persons. A final ADVO was made for the protection of the mother and the paternal grandparents, and any person with whom they were in a domestic relationship for a period of two years commencing on 30 May 2019.
The parties separated on a final basis on 25 April 2019.
10 August 2019 breach of the ADVO
The mother deposes that she attended the former matrimonial home with the children on 10 August 2019. The parties began talking about their property settlement. In the presence of the children, the father allegedly said:
I want you gone. I want to give you the money and you must fucking disappear. I’m going to drain your bank account, girl. I don’t give a fuck. If I live in this again, I will come back 10 times fucking stronger and I will fucking show you I want to burn every bit of profit that you fucking think you have put into this house because it was all fucking me, all my fucking income …I fucking hate you with a passion. You are not welcome back in this house.
The mother deposes that she walked towards her car to leave with the children and the father blocked her access to the car. He yelled at her “I want you to die and I want you to have a car crash”. She says the children were crying and Ms Cowper said to the father “Just stop”. The father went back into the garage and began punching a boxing bag. The mother left with the children and Ms Cowper, and drove to her sister’s home. The mother reported the matter to the police in November 2019.
The father deposes that the mother attended the home without warning and let herself in through the garage door. He deposes that the parties spoke for a few minutes before the mother saw a message on his phone from the Tinder dating application. The father deposes the mother became hysterical and screamed loudly “Who the fuck are you talking to”. The father deposes that he tried to cause the mother to calm down but she continued to be hysterical. The father deposes that the mother then threw a half empty water bottle in his direction, which landed near to him. The children witnessed this. The father deposes he continued to try to speak calmly to the mother about the property settlement and she continued to be hysterical and profane. Ms Cowper said to the father, who was standing out the front of house “Come on dad, come inside, it’s not worth it”. The father deposes that the mother left the property.
The father deposes:
44.On 10 August 2020 I appeared at the [Town S] Local Court for a hearing in relation to a charge of Contravening and ADVO and Intimidation of [Ms Riggio] on 10 August 2019. The hearing commenced and I chose to change my plea to guilty after hearing [Ms Riggio] give evidence and realising how she have felt [sic]. I was sentenced to a Community Corrections Order for 16 months. I have since learnt to take ownership of my behaviours and how it affected [Ms Riggio] and the children. I recognise it impacted on [Ms Riggio] and have taken large steps forward to educate myself to not do any of those behaviours moving forward.
45.At sentencing, I provided a letter to the Court in relation to my behaviours. I wanted to make the apology in writing to the Court, [Ms Riggio] and most importantly, our children. I made a promise to the Court that I would never do that type of behaviour again. I have learnt a very hard lesson, but it has also helped me recognise my inappropriate behaviours and educate myself with the knowledge to be a better person. Sometimes I say the wrong thing without thinking about the consequences it has on others. Through my Counsellor and educational programs such as “Keeping Kids In Mind” I have been able to learn how to react differently and control myself in emotional situations and think of others. This is evident in my current relationship with [Ms G] and all the relationships I have with family and friends.
(Emphasis added)
12 August 2019 alleged incident at T Centre
On 12 August 2019, the mother and Y were admitted to the T Centre organisation (“T Centre”) to assist with Y’s sleeping and behavioural needs. While there, the mother deposes that the father called her about the fact she had reported the incident on 10 August 2019 to police, and said “I fucking hate you. You’re such a cunt of a mother”. The mother responded “Mr Cowper, you can either talk to your daughter or I’m going to hang up.” The father replied “I won’t be talking to her from now on, they are your fucking children, not mine”.
The father’s affidavit filed on 24 November 2022 is silent as to this incident.
11 October 2019
The mother deposes that she delivered the children to the home of the paternal grandparents on 11 October 2019 to spend time with the father. When the father arrived, he told the mother that “I have taken tomorrow off, and I’m taking the kids and you won’t get them back for 48 hours”. Y was still being breastfed and was unsettled at night. The mother deposes that the father became angry and said “You are denying me the kids. Just do me a favour and fuck off. Get out of here! Stop playing the victim. I’m going to call the police”. The mother says that the paternal grandmother was present and said nothing. The mother deposes that the father turned to X and said “I’m sorry this is happening, it’s your mother’s fault, she is the one stopping you from coming with me”.
The police arrived. While the mother was speaking to the police, the father began talking over her. The police officer gave the father a verbal warning.
The father deposes that:
47.I had [X] for an overnight visit on 11-13 October 2019 but [Ms Riggio] would not allow me to have [Y] overnight too. [Y] was not being breastfed at the time and I accept that [Ms Riggio] had not wanted me to have [Y] overnight. We had another argument, and I called police and was told that, as there were no orders in place, three was nothing stopping me from having my daughter overnight, particularly as [X] was going to be staying as well. Having regard to how she was coping with daytime visits, I thought she was ready to try an overnight visit. However, I gave in to [Ms Riggio]’s demands and returned [Y] to her and just had [X] overnight. [Ms Riggio] was okay to separate the children overnight.
(Emphasis added)
Exhibit F3 is the Computerised Operational Policing System (“COPS”) record for 11 October 2019. This document indicates police attended an incident but there is otherwise very little probative material in the document.
13 to 25 October 2019
The mother deposes that X spent time with the father on 13 October 2019. On the way home, X was unsettled and began making loud noises and screaming “I want to get out of the car! Stop the car! Stop the car and get out!” and “Take me to the hospital, I’m hurt”.
The mother deposes this behaviour escalated over the next few days and he began throwing his hands around near the mother and Y. X told the mother “Daddy said he wasn’t cranky any more [because] Daddy went to the doctors, but Daddy got cranky at Mummy and told her to get out of the house the other day at Poppy’s. This makes me so upset, Mummy”.
The mother deposes that on 25 October 2019, X’s behaviour was problematic. He was pushing Y and putting rocks in his mouth. The mother asked him to stop. X said to the mother “I’m going to call the doctors and they will take you away. I will call the police and they will come, they will take you away”.
3 to 5 November 2019
The mother deposes that the parties agreed to Y spending time with the father on 3 November 2019 from 11.00 am to 6.00 pm, on 4 November from 10.00 am to 6.00 pm and on 5 November from 10.00 am to 6.00 pm. It was agreed that X would spend overnight time with the father from 3 to 5 November 2019. The mother delivered the children to the father on 3 November 2019. She deposes that a few minutes after the father had left with the children, he phoned her to say that now he had the children, he did not need to hand them back while there was no court order in place.
The mother further deposes that the father did return Y at 6.00 pm as arranged. The mother made Y available to the father the next day at 10.00 am. Rather than return Y at 6.00 pm as arranged, at about 6.10 pm, the father told the mother that he would not be returning her that night. The mother says she could hear Y in the background crying hysterically. The father retuned the children on the evening of 5 November 2019.
Ms Cowper deposes that she received a distraught phone call from the mother on 4 November 2019, saying that the father had retained Y overnight.
The father deposes:
51.From 3 to 5 November 2019 [X] stayed with me and I had [Y] during the day on 3 November 2019. At handover, I asked if I could have [Y] overnight because [X] was staying with me but [Ms Riggio] refused. In a phone call later that day I did ask her again but not as [the mother deposes]. I did not threaten to keep [Y] as alleged by [Ms Riggio] but I did explain I felt she was ready to spend longer with me. I accept that [Ms Riggio] did not want me to keep [Y] overnight on the night of 4 November [2019] and that my keeping her against [Ms Riggio]’s wishes would have been distressing for [Ms Riggio] and I should have handled it differently rather than listening to what police said on 11 October 2019 and the advice of others.
(Emphasis added)
Exhibit F3 contains the COPS record for 4 November 2019. This document indicates police attended an incident. The mother is the “victim” and the father is the “person named”. The record notes that the father was calm when police spoke with him and the mother was yelling at the father.
February 2020 U Club incident
A COPS entry dated 29 February 2020 suggests the father and another person were at a U club. The father acknowledges that he was with his then partner. According to the COPS record, the club supervisor told police that s/he asked the father and the other person to move the table at which they were seated to accommodate a safe and comfortable passage of other people at the venue. The father is alleged to have become abusive towards the other person and was saying to the supervisor “I’m not fucking going anywhere, you can’t make me do anything. This is fucking ridiculous. We’re fucking paying patrons”.
According to the COPS entry, police directed the father and his partner to leave the venue but they refused. Police then escorted them from the U club, during which time the father was abusive. Police issued the father with an Infringement Notice for failing to leave the premises when directed and for use of offensive language. According to the father, these Infringement Notices were withdrawn.
Since July 2020
On 17 July 2020, interim orders were made for the father to spend supervised time with the children each alternate Saturday for two hours at E Contact Centre in Town C. The first visit occurred on 11 September 2020. X attended the visit but Y refused to be separated from the mother.
Visits continued on 25 September 2020 (X only); 9 October 2020 (X only); 23 October 2020 (X and Y, with Ms Cowper’s assistance); 6 November 2022 (X and Y, with Ms Cowper’s assistance); 20 November 2020 (X and Y, with Ms Cowper’s assistance); 4 December 2020 (X only); and 21 December 2020 (X and Y, with Ms Cowper’s assistance).
On 9 December 2020, the father’s counsellor reported:
…It is recommended that [Mr Cowper] continue with psychological therapy and intervention to further consolidate appropriate anger management strategies. There has been significant improvement for [Mr Cowper] and to not continue with psychological treatment would potentially result in him reverting to pre-treatment symptomatology affecting his mental well-being negatively. I am confident that with continued psychological sessions, [Mr Cowper] may be better able to cope with upcoming stressors.
(Emphasis added)
The father ceased attending visits with the children between December 2020 and March 2022.
On or about 8 April 2021, the father informed E Contact Centre that the service was no longer required. On 7 October 2021, the father appears to have told the consultant he did not consider that supervision was required.
On 24 November 2021, the father’s counsellor reported:
… [Mr Cowper] attended ten sessions from 21 July 2020 to 12 December 2020. He attended a 12-month follow up on 22 November 2021 to review his skills use and progress to date after a number of stressors.
…
At follow up [Mr Cowper] demonstrated continued skills use and overall improvement in mood and anger management for 12 months. He reported successfully navigat[ing] many of the highly distressing events of the past 12 months including court cases and working on a mutually beneficial custody agreement of his children with his ex-partner. [Mr Cowper] has demonstrated his ability to recognise and manage his anger so that it is expressed in healthy ways. Given these improvements have remained over the past 12 months, at this point there is no clinical need for [Mr Cowper] to continue psychological therapy…
(Emphasis added)
On 26 November 2021, the father undertook an intake process for the “Facing Up” behaviour change program. In response to the question or prompt:
(a)“Main thoughts on his behaviour and is effect on his (ex) partner and children”, the assessor recorded “The client offered limited insight as to the impacts of his behaviour on others”;
(b)“His ideas for stopping his violence right now”, the assessor recorded “Recognizing conflict, taking a ‘step back’ rather than escalating, managing his own ‘short fuse’ without harming others, dealing with past resentment to ex-partners, ‘change direction in life’, be a better dad”; and
(c)“Barriers to change”, the assessor recorded “Blaming his ex partner for his use of abuse (verbal), limited personal accountability for his use of abuse and violence”;
The form is marked “-”; in response to “Strategies for behaviour change that he has already tried”, “Things the man would like to change in himself participating in the program”, and “What will your life look like if you don’t make your desired changes”.
The family re-engaged with B Contact Centre in February 2022.
According to Exhibit M3, B Contact Centre emailed the mother on 21 February 2022 to arrange time. The supervisor wrote:
…Saturday 12/3/22 is the earliest I can book and the only time I have that day is 3-5pm. [Mr Cowper] would like to do the following fortnight as well and then probably go monthly. I need to check this with him again.
(Emphasis added)
The father spent time with X on 12 March 2022 and 26 March 2022. On both occasions, after 20 minutes, Y was unable to separate from the mother and did not attend the visit. These visits with X were positive. X re-engaged with the father without incident despite not seeing him in person since December 2020.
The father next spent time with X on 14 April 2022. The father’s arrival was delayed due to holiday traffic. While waiting, Y climbed back into the mother’s car and would not get out again. The visit proceeded with X and was positive. Ms Cowper and her partner were also present.
The father next spent time with X on 11 June 2022. Y did not attend, despite numerous attempts to have her do so. The visit with X was positive.
The father next spent time with X on 2 July 2022. Efforts were made to encourage Y to attend the visit but she was too distressed. The wider paternal family attended this visit. The visit with X was positive.
On 2 August 2022, B Contact Centre emailed the father as follows:
[Ms Riggio] has just called me, she wants to try something different to try to get [Y] to stay for the visit.
Would you be agreeable to a park in [Suburb V] (I will advise once I know). [Ms Riggio] is hoping that if [Y] goes to a park, she knows she may well stay. We will also try getting [Ms Riggio] to leave and [Y] to stay with the supervisor and hopefully she will start to settle, and we will call you. If she does not settle, then we will need to return her to [Ms Riggio].
On 2 August 2022, the father responded:
So lets drop her off to a stranger...
Never going to work,
And doesn't make sense...
Familiar faces " [Ms F] and my mother will be there" as per past visits...
Trust me your supervisor doesn't have a hope in hell in getting [Y] to stay.
[Ms Riggio] just needs to drop the kids off,
Let them go play turn around and go,
No talking, no goodbyes, just go, very easy
That way [Y] will not be faced with a decision...
[Ms Riggio] saying ill see you soon or good bye makes [Y] upset and forces her to be the way she is, its not rocket science.
But the balls not in my court i have no say, no power, zilch...
Just the same senario she will have to do in 3 months when i get all this rubbish amended...
Once again balls in [Ms Riggio]’s and your court,
You need to make it work.
(As per the original)
On 4 August 2022, B Contact Centre emailed the father as follows:
As discussed, I have emailed [Ms Riggio] to advise that your parents would be at the changeover.
[Ms Riggio] has advised that with [Y] and her anxiety issues she really wants her to be comfortable to go with the [W] as there will be times it will only be her. And that maybe for this particular visit as she is going to be leaving [Y] with [W] and then departing. She wants to see how she goes and that it is just be [W]. All going well and moving forward she said she would be happy to have them attend at the next change over.
Are you agreeable for us to try with just [W] on Saturday.
(As per the original)
On 4 August 2022, the father responded:
Sorry i think its better to have my parents there as [Y] has anxiety issue's.
This woman gives [Y] anxiety issues!!!!
And everyone else in the picture lol...
Honestly you can't put brains in statutes.
[Y] has this issue so let put her in strangers hand's.
It doesn’t make sense.
Please let her know my parents will be there for the changeover...
My parents can take her and go play in the park or bike track.
That's called “distraction”
Whilst [Ms Riggio] slips away with [W].
She is not to lead onto [Y] she has departed. So no goodbyes!!!
Just disappear...
When i come on the scene she will be sweet.
Kids cry. than they stop.
If need be she is that upset one of my parents can take her back to [Ms Riggio]...
This is the only way...
[Ms Riggio] has failed 20 times now and will continue to do so if we leave her in charge...
Its pretty simple...
My parents aren't on supervised visits...
Its me...
[Ms Riggio] needs to to compromise with my decision for once...
How many visits have gone by and i don't see my daughter...
I believe [Ms Riggio] has the condition which she is relaying through our daughter...
It's sad how she is using these children to her own benefits...
All I want is spoil and love these children with all my might and well being..
(As per the original)
The father next spent time with both children on 6 August 2022. Y was able to remain with the worker and the mother left her with an alarm on the worker’s phone that would sound when it was time to return to the mother. At the end of the visit, Y asked whether she would see the father again the next day, was happy and smiling when he said he would see her in a couple of weeks and hugged him goodbye. This was the first time Y had spent time with the father since 20 November 2020, i.e. about 22 months.
The father next spent time with the children on 20 August 2022. Y was anxious at first but settled and was able to sit on the father’s lap, and was observed to affectionately snuggle into his arm. The visit with X was also positive.
The father next spent time with the children on 3 September 2022. Y was described as being much more comfortable with the visits and was displaying unprompted affection and less apprehension towards the father and paternal grandparents.
The father next spent time with X on 15 October 2022. Y refused to stay for the visit. The time with X was positive.
Children’s characteristics
X attends Suburb V School and will enter Year 2 in 2023. He meets the diagnostic criteria for attention deficit hyperactivity disorder (“ADHD”) and attends on a paediatrician and psychologist for this.
Y has experienced significant difficulties separating from the mother. This affects multiple aspects of Y’s life, including going to preschool and spending time with the father. The distress to Y from being separated from the mother while at day-care resulted in Y needing to be removed from day-care in the second half of 2021 to instead be cared for by the maternal grandmother.
Y has been attending a different day care four days per week during 2022. Y attends on a psychologist and paediatrician to assist with her anxiety. She will start Kindergarten in 2023.
The mother opines that Y’s behaviour has become “more dysregulated” “in the last few months” and that the week of the intended final hearing in early November was especially difficult for Y.
Ms G
Since early 2021, the father has been in a relationship with Ms G (“Ms G”), born in 1977. Ms G is employed by the Employer AB as an allied health worker. She has three children, aged 13 years, 10 years and six years. Ms G’s children are in her care from Sunday to Wednesday and each alternate Saturday. They live with their father on Thursday and Friday and every other Saturday. When her children are not in her care, Ms G stays at the father’s home.
Ms G deposes that her relationship with the father is respectful and caring. She describes being able to reach mutually compromised decisions and she has never felt fearful or worried in his presence. Ms G appears to be aware of the father’s ADVO history.
Ms H, a friend of the father and colleague of Ms G, gave evidence to the effect that she has not observed any behaviour by the father that causes her concern. I am unable to place any weight on this evidence because there is no indication that Ms H is aware of any background to the matter.
EXPERT EVIDENCE
The Regulation 7 Family Consultant and Family Report writer (“the Expert”) conducted her assessment on 7 October 2021. Face to face observations of the children with each parent could not be facilitated due to COVID-19 restrictions. The Expert accepts that this is a limitation in her Family Report (“the Report”). All parties urge the Report to be read with a view to its limitations.
The age of the Report, the possibility that the children are at different developmental stages, and the change in circumstances are also limitations to the weight to be applied on the Report. The Report is untested, which itself imposes a limitation.
The recommendations in the Report, as at October 2021, were set against a background that Y would not be starting school at the same time as any change of arrangements may occur. This is another reason to approach the recommendations with a level of circumspection in that there is an additional variable to consider.
In relation to risk factors, the mother is reported to have told the Expert:
49.… [Ms Riggio] alleged an extensive history of family violence perpetrated by [Mr Cowper]. [Ms Riggio] described ongoing verbal and emotional abuse, particularly after [X] and [Y] were born. She stated that [Mr Cowper] frequently swore at her, yelled excessively and called her degrading names. [Ms Riggio] described that [Mr Cowper] would “go into fits of rage” in which he would damage furniture and throw things around the house. She spoke about [X] and [Y] witnessing the abuse and described taking [X] and [Y] to their bedroom and covering [X]’s ears. She reported that she noticed that [X] started to cover [Y]’s ears when [Mr Cowper] became abusive, as a way to protect his sister. [Ms Riggio] further alleged that [Mr Cowper] was financially abusive in that he controlled her spending and became angry when she spent above her allowance. [Ms Riggio] spoke about the incident that occurred on 25 April 2019 and stated that [Mr Cowper] physically pushed her and acted in an abusive manner towards his parents also, which resulted in the Police being called and an AVO enforced. [Ms Riggio] stated that they separated soon after this incident. She reported that the verbal and emotional abuse continued post separation, particularly after relocating to [Suburb V] with the children. [Ms Riggio] stated that [Mr Cowper] would harass her with phone calls and speak in an aggressive and intimidating manner. She reported that [Mr Cowper] breached the AVO on 10 August 2019, which resulted in further charges and an extension of the AVO until July 2021. [Ms Riggio] described the support that she accessed after leaving the relationship including domestic violence victims’ services, [Region AC] family counselling service, group work through [E Contact Centre] and individual counselling with [Ms AD] at [Town AE] Counselling Services. [Ms Riggio] described this past year as being ‘easier’, however, reported that she has been more anxious since the AVO has expired, and sometimes worries that [Mr Cowper] could ‘just show up’. [Ms Riggio] described having boundaries in place, particularly with scheduled phone calls. She stated that if [Mr Cowper] is speaking abusively, she gives a warning, then hangs up the phone. [Ms Riggio] stated that she “feels stronger and more capable of recognising behaviours that are not ok”.
50.In relation to child safety and well-being, [Ms Riggio] alleges that [Mr Cowper] is unable to put the children’s needs before his own, which in turn affects their well-being. She gave the example of when [Mr Cowper] withheld [Y] on 4 November 2019, despite their agreement that [Y] would return to her care at 6:00 pm as she was still breastfeeding at night. [Ms Riggio] stated that [Mr Cowper] put his own needs above [Y]’s needs, as he wanted the children with him on his birthday. [Ms Riggio] expressed further concern about [Mr Cowper]’s inability to cope with [X] and [Y]’s behaviours. She alleged that historically when [X] or [Y] have displayed challenging behaviours, [Mr Cowper] responded by yelling at the children, throwing things around and ‘losing it’. [Ms Riggio] spoke at length about [Y]’s separation anxiety and related meltdowns. She further stated that [X] has unpredictable and aggressive behaviours. [Ms Riggio] expressed concern about how [Mr Cowper] would cope with these behaviours and indicated her belief that [Mr Cowper] would not respond in an appropriate or patient way.
51.In relation to the risk factor of drug and alcohol use, [Ms Riggio] alleges that [Mr Cowper] has a history of drinking alcohol excessively, which in turn led to increased aggression and verbal abuse. [Ms Riggio] stated that she is unsure about [Mr Cowper]’s current alcohol use and stated that she hopes he would never drink while [X] and [Y] are in his care.
In relation to risk factors, the father is reported to have told the Expert:
60.… [Mr Cowper] denies the extent of family violence allegations made by [Ms Riggio]. He acknowledged that there was significant conflict between them but stated, “it went both ways”. When discussing the incident from April 2019, that resulted in the AVO, [Mr Cowper] stated “it was just an argument that went for a couple of minutes with everyone yelling”. [Mr Cowper] spoke about the incident that occurred in August 2019, in which he was charged for breaching the AVO. [Mr Cowper] took responsibility for his actions and stated, “I agree it was the wrong thing to do as a parent and as an ex-partner, I should have been the bigger person”. [Mr Cowper] admitted to saying some ‘horrible things’, which were recorded by [Ms Riggio]. He stated that he pleaded guilty for the charges and has completed the Community Corrections Order and related requirements, including anger management and domestic violence courses. In relation to the incident that occurred in February 2020, with his former partner [Ms AF], [Mr Cowper] denied being involved. He stated that there was a disagreement between [Ms AF] and a staff member at [AG Club]. He reported that his name got dragged in when he was ‘completely uninvolved’. The Family Consultant explored two historical incidences of alleged family violence that resulted in AVOs, from 2005 and 2002. [Mr Cowper] stated that the AVO from 2005 was in relation to his former partner, [Ms R], [Ms F]’s mother. [Mr Cowper] stated that they had an argument in which he said some “nasty words”. [Mr Cowper] stated that the AVO did not eventuate and that he and [Ms R] went on to have a very successful co-parenting relationship with open and respectful communication. In relation to the 2002 incident involving [Mr Cowper] and his parents, [Mr Cowper] stated, “I can hardly recall that incident”. He denied Police reports of attempting to choke his father. [Mr Cowper] stated that the Ambulance was called due to his father having a panic attack rather than related injuries. [Mr Cowper] stated that he was “just coming out of his teens at that time” and there was inevitable conflict between himself and his parents. [Mr Cowper] reported that he and his parents maintain a very close relationship and that “there are no grudges”.
61. [Mr Cowper] reported that it is no risk of current family violence in any of his relationships. He stated that he tries to be respectful with [Ms Riggio] during phone calls and does not raise his voice with her. [Mr Cowper] spoke about his relationship with [Ms G] stating that their communication is very respectful and free from any conflict. [Mr Cowper] spoke in interview about the anger management and domestic violence courses he has completed and the helpful communication strategies that he has learnt. [Mr Cowper] stated that he knows to ‘take a step back’ prior to engaging in an argument; and to be aware of his triggers and how to manage them to prevent escalating.
62.In relation to child safety and well-being, [Mr Cowper] denied allegations of swearing and yelling at [X] and [Y]. [Mr Cowper] acknowledged that [X] and [Y] witnessed the conflict between himself and [Ms Riggio] but stated that they were not involved directly. He commented that he has learnt a lot from his courses about the impact that exposure to conflict has on children and is determined to minimise arguments around them for their sake.
When the father was asked about the need for supervised time, the Expert reported:
58. [Mr Cowper] stated that he refuses to do any further supervised contact, because it is expensive and unwarranted. [Mr Cowper] explained that his last contact with [X] and [Y] was on 17 December 2020, supervised through [B Contact Centre]. [Mr Cowper] expressed frustration about the court ordered supervised contact visits, stating that it is not a natural environment for [X] and [Y] and that the whole process has been ‘degrading’. [Mr Cowper] expressed his belief that supervised contact should be reserved for parents with drug addiction or severe mental health where there are ‘actual risks’ to the children. [Mr Cowper] adamantly believes he is not in this category and that there is no need for his time with the children to be supervised. [Mr Cowper] stated that X was very excited to see him during the visits stating, “he ran up with open arms to have a big cuddle”. He described [X] as affectionate, comfortable and playful in interactions. [Mr Cowper] acknowledged that [Y] was resistant to attend some of the visits and had difficulty separating from [Ms Riggio]. However, he stated that on the occasions she did attend, she settled quickly and had a great time with him.
The Expert evaluated risk in the Report:
93.The main risk factor that needs to be assessed when considering care arrangements is family violence. [Ms Riggio] alleges being victim to ongoing verbal, emotional and financial abuse throughout her relationship with [Mr Cowper], and one incident of physical abuse. Subpoenaed material from Police confirm that [Mr Cowper] has an extensive criminal record, with incidences of domestic violence and AVOs not only during his relationship with [Ms Riggio] but also with his previous partner, [Ms R] and with his parents, [Ms Cowper] and [Mr D] . [Mr Cowper] denies the extent of family violence alleged and was observed to minimise abusive behaviours, for example when describing the incident that resulted in the AVO against him in April 2019 he stated, “it was just an argument that went for a couple of minutes”. The Family Consultant also observed the paternal grandparents to minimise and justify [Mr Cowper]’s behaviour towards [Ms Riggio] and themselves. There were significant discrepancies between each party and their interpretation of events. The accounts provided by [Mr Cowper] and the paternal grandparents contradicted the information recorded by Police, in relation to the incident that occurred in April 2019 and August 2002. Subpoenaed material from Police state that [Mr Cowper] threatened to stab his mother and attempted to choke his father in August 2002 during a family argument. The Police arrived, confirming choking marks and later called an Ambulance after [Mr D] collapsed. The Family Consultant acknowledges the historic nature of this incident, however finds it concerning that both [Mr Cowper] and the paternal grandparents minimised and denied its severity. In interview, [Ms Riggio] alleges that the paternal grandparents are ‘fearful’ of [Mr Cowper] and ‘enable’ his abusive behaviours. These incidences and the responses provided by [Mr Cowper] and the paternal grandparents appear to confirm [Ms Riggio]’s description of the dynamic between them. [Mr Cowper] took responsibility for one incident, in August 2019 in which he breached the AVO protecting [Ms Riggio]. It is noted that this was also the only incident that was recorded, making it difficult to deny.
94. In relation to the risk of current family violence, [Ms Riggio] alleges that [Mr Cowper] continues to be verbally and emotionally abusive, particularly during scheduled phone calls. [Mr Cowper] denies this and stated in interview that he always tries to speak respectfully with [Ms Riggio] and does not raise his voice. [Mr Cowper] has reportedly completed the requirements of the good behaviour bond. However, [Ms Riggio] stated that she received a phone call from [E Contact Centre] informing her that [Mr Cowper] had disengaged from the men’s behaviours change program. It would be helpful for this to be clarified by the court. [Mr Cowper] spoke positively about the parenting programs, counselling and anger management courses that he has completed. He appeared to demonstrate some sense of awareness into his behaviours and the impact they have had on [Ms Riggio], [X] and [Y]. [Mr Cowper] spoke in interview about the insight he has gained in relation to recognising triggers and developing strategies to remain calm. It is difficult to assess the extent of ongoing family violence between [Mr Cowper] and [Ms Riggio]. It appears that [Ms Riggio] has developed helpful boundaries and strategies in minimising [X] and [Y]’s exposure to verbal abuse during phone calls. [Ms Riggio] stated that she gives a warning to [Mr Cowper] and proceeds to end the call if [Mr Cowper] is speaking inappropriately. To minimise the risk of family violence and conflict between the parties, it is recommended that [Ms Riggio]’s home address remain undisclosed and that any handovers for contact occur in a neutral location.
95.In relation to child safety and well-being, subpoenaed material from DCJ confirm that there is an extensive child protection history with multiple reports made between 2017 and 2020. The majority of these reports are in relation to [X] and [Y]’s exposure to family violence, documenting concerns of psychological harm. [Mr Cowper] acknowledged that [X] and [Y] were exposed to conflict between himself and [Ms Riggio] but denies that the yelling was directed at them. The risk of the children’s exposure to family violence has lessened considerably now that [Ms Riggio] and [Mr Cowper] have separated. Both parents identified that there are no other adults in their home. [Mr Cowper] is in a relationship with [Ms G] however the risk of family violence is considered low. [Ms G] resides separately in her own home with her three children. Furthermore, [Ms G] demonstrated a thorough insight into the dynamics of family violence and appeared confident in her ability to identify any red flags, particularly considering her professional experience.
(Emphasis added)
The Expert opined the risk of drug and alcohol use by the father was minimal.
As to behaviour within the paternal family, the Expert opined:
69.[Ms Cowper] and [Mr D] spoke about the incident that occurred in April 2019, describing it as the “Anzac Day fiasco”. [Mr D] stated a conflict broke out between [Mr Cowper] and [Ms Riggio] and as a result he asked [Mr Cowper] to leave the home. [Mr Cowper] stated that she went to call the Police but was ‘bluffing’ in an attempt to get [Mr Cowper] to leave. She stated that the Police arrived and she explained that it was not a purposeful call. [Ms Cowper] stated that it was all “blown out of proportion” and that the AVO protecting them and [Ms Riggio] was not necessary. She explained that the door that [Mr Cowper] broke was very flimsy and fell down easily, when [Mr Cowper] tripped. She stated that he did not smash it as the Police reported. [Mr D] described that [Mr Cowper] was “only yelling and swearing and never laid a hand on any of us”.
70.The Family Consultant explored the incident that occurred in 2002 between [Mr Cowper] and his parents. [Ms Cowper] and [Mr D] were both surprised when it was raised and denied the extent of the Police reports, stating “they blew it out of proportion”. [Ms Cowper] described that it was a very difficult and emotional time for [Mr Cowper] because [Ms F]'s mother “did the dirty and cheated with his best friend”. [Mr D] denied that [Mr Cowper] attempted to choke him. He stated, “it was all talking, yelling and pointing fingers – nothing more”. He reported that it was the Police that put the AVO on, not them. [Ms Cowper] denied that she felt threatened or fearful in any way and acknowledged that it was a long time ago and in the past.
[…]
80.[Mr Cowper] described his relationship with his parents as close. He acknowledged that he and his father were both “stubborn back in the day” and “were like two bulls locking horns”. He reported that they have not had any conflict since the incident that occurred on Anzac Day 2019. He commented that if a disagreement were to arise between himself and his parents, he would communicate calmly and respectfully. [Mr Cowper] stated that he has learnt to “take a step back and be the bigger person”.
81.[Ms Cowper] and [Mr D] spoke about their current relationship with [Mr Cowper] and described it as ‘really good’. They indicated that they speak most days on the phone and maintained close contact during the lockdown. [Mr D] stated that [Mr Cowper] sent around a take away meal recently for his birthday as they were unable to celebrate in person due to COVID restrictions. [Ms Cowper] acknowledged that [Mr Cowper] often “has an opinion and that’s it”. She described him as a ‘typical bloke’ in that he often swears and occasionally yells. However, she stated that he has attended numerous courses and programs lately that have taught him how to handle situations better. [Ms Cowper] commented that he seems to have more control over his emotions. She described his [sic] as “a really good kid”. [Mr D] acknowledged that he and [Mr Cowper] have had their “ups and downs as father and son”. Yet he stated that they continue to have a really good relationship.
As to the each parent’s understanding of the children’s needs, the Expert opined:
41.[Ms Riggio] demonstrated a thorough understanding around [X] and [Y]’s varying personalities, interests and needs…
[…]
54.[Mr Cowper] demonstrated a limited insight into [X] and [Y]’s personalities, interests and needs. He acknowledged that he does not know much about the children’s day to day lives due to the minimal contact he has with them. [Mr Cowper] expressed disappointment about the lack of information he is given about [X]’s education, commenting that he has never been sent a school report or update. [Mr Cowper] stated that [X] is quite sporty and enjoys riding his scooter and bike. He also likes playing with trains and toy dinosaurs. [Mr Cowper] stated that [X] would often follow him around, copying what he would be doing and that they had a close relationship when they lived together.
There is no evidence of the children’s views. The Expert’s interaction with X was described as:
82.[X]was very resistant to speak with the Family Consultant. [Ms Riggio] was observed setting up the screen and encouraging [X] to come and ‘say hello’. [X] was heard to speak with his mother agreeing to ‘say hello’ but stated in an angry tone that he would not say anything else.
83.[X]was observed to come onto the screen and say ‘hello’ to the Family Consultant. He then left promptly despite the Family Consultant’s attempt to engage with him.
84.[Ms Riggio] attempted once more to encourage [X] to speak with the Family Consultant, yet he responded with anger and threw a toy at the screen. He then proceeded to push chairs around the lounge room out of frustration.
85.The Family Consultant was unable to interview [X] due to his strong resistance. It is acknowledged that the online format may have been a barrier. It is unknown how much [X] understood about the purpose of the interview. A face-to-face discussion may have helped to relieve some of his anxieties and concerns.
Y was not formally interviewed given her age.
As to the nature of the children’s relationship with the father, the Expert opined:
90.[X] and [Y] have had limited contact with their father since their parents’ separation in April 2019 including significant periods of no contact. Current court orders stipulate that the children spend two hours per fortnight with [Mr Cowper], however this has not occurred since December 2020 due to [Mr Cowper]’s refusal for supervised visits. This lack of contact has undoubtedly impacted upon [Mr Cowper]’s relationship with his children. It is unknown how [X] and [Y] interpret the lack of contact with their father or what their views are around spending time with him. It would have been beneficial to hear their perspectives, particularly [X]’s, at age six. However, this information was unable to be obtained due to [X] being resistant to speaking with the Family Consultant online. Furthermore, interactions between the children and [Mr Cowper] were not able to be observed, limiting the ability to comment on their relationship.
91.Subpoenaed contacts reports from [B Contact Centre] described that [X] was eager to spend time with his father and engaged in a playful and interactive manner. Reports commented on [X] being affectionate towards [Mr Cowper] and seeking out his attention and proximity. Contact reports commented on [Y] being hesitant about separating from [Ms Riggio] and refusing to attend on multiple occasions. [Y] appeared more willing to attend when [Ms F] was also present. On the few visits that [Y] did attend, reports commented that she settled relatively quickly and ‘appeared to enjoy her time’. There were no concerns noted in [B Contact Centre] reports about [Mr Cowper]’s presentation or parental capacity. Interactions between the children and [Mr Cowper] were described as ‘comfortable’, ‘positive’ and ‘appropriate’. Considering the positive nature and description of contact visits, particularly for [X], it is disappointing that they discontinued…
As to the father’s parenting style and capacity, the Expert opined:
56. [Mr Cowper] spoke about his parenting style, stating that authority and boundaries are needed for [X] and [Y]’s benefit. He described his approach towards them as ‘assertive but calm’. [Mr Cowper] commented that he would not yell at the children or smack if they had done the wrong thing but rather, would talk it through and encourage them to “use their words”. [Mr Cowper] spoke about how helpful the parenting courses have been in emphasising the importance of communication. [Mr Cowper] stated that if a consequence was needed, he would he would use the ‘time out chair’ or take a toy away for a short period. [Mr Cowper] commented that [X] and [Y] did not have behavioural difficulties when they all lived together, prior to separation. He expressed his belief that their behaviours have regressed and attributes this partly to [Ms Riggio]’s lack of boundaries and control. [Mr Cowper] stated that if [X] or [Y] were to have significant meltdowns while in his care, he would give them an environment to calm down and would sit with them and offer a cuddle.
As to the children’s maturity and subjective characteristics, the Expert opined:
92. [X] and [Y] both appear to be struggling with emotional regulation and behavioural difficulties. [Ms Riggio] demonstrated a proactive approach in seeking support for their additional needs, including regular counselling and paediatric appointments. [Y]’s separation anxiety is considered to be significant and will need to be taken into account when considering care arrangements. It appears that [Y] struggles separating from [Ms Riggio] in multiple contexts including, contact visits with [Mr Cowper], day-care and counselling sessions. It is noted that [Y] becomes highly distressed and is at times inconsolable, as documented in subpoenaed material from [AH Preschool]. Having a familiar person present, such as her sister [Ms F], appears to be of some assistance, as noted in contact reports.
In October 2021, the Expert recommended:
(a)The time the children spend with the children needs to increase gradually with two hours each alternate Saturday at a familiar venue in Suburb V;
(b)After two months, the time could increase to six hours (i.e. 10.00 am to 4.00 pm) on alternate Saturdays in the local area, including the paternal grandparents’ home at Town AG. The paternal grandparents’ home will give the children a home base to allow for bad weather, rests and meals. The paternal grandparents should not be present at this time in light of the past conflict between the adults; and
(c)After a further six months, the time could increase to alternate weekends (Saturday to Sunday) with the time able to occur at Suburb AJ. The Expert suggested there be a review before overnight time starts, by reference to the children’s psychologist and an addendum report prioritising observations of interactions and face to face child interviews.
Ms K
Ms K is the treating psychologist of X and Y. She has been treating X since January 2020 and Y since mid-2021. The only source of information available to Ms K appears to be the mother.
According to Ms K’s report dated 20 October 2020, the mother described X being very “full on”, having a short attention span, being hyperactive, fidgety and easily distracted. The mother reported that X makes loud roaring noises in the house often towards Y, is easily frustrated, is angry and anxious, has quickly elevating emotions, and is aggressive and defiant. It is not clear from the report whether these behaviours were reported at the start of, during, intermittently or continuously since treatment began.
The goals of X’s treatment are to assist him to be able to identify, regulate and express his emotions, especially at home, to develop co-operative behaviours at home and to develop positive relationships with others. The mother has been involved in sessions with X and Ms K to learn various techniques in this regard.
According to Ms K’s report, the mother said that Y has difficulties separating from the mother, has extreme “meltdowns”, is anxious, has difficulty sleeping in her own bed, is demanding and defiant and has difficulties in social settings and at preschool where she can be so distressed as to not respond to any attempts to calm her down.
Again, it is not clear from the report whether these behaviours were reported at the start of, during, intermittently or continuously since treatment began. For instance, while Y was withdrawn from preschool in late 2021 due to extreme difficulties, she has been attending a new day-care four days per week in 2022.
The goals of Y’s treatment are to assist her to identify her emotions and communicate these to the mother, regulate her emotions, separate from her mother, do what is asked of her and develop co-operative behaviours at home. Part of this work includes practicing separating from the mother.
Ms K’s report notes that:
Sessions have also focussed on developing ways [Ms Riggio] can set up contact time so [X] and [Y] will be more likely to engage in contact calls.
…
[Ms Riggio] notes she has continued to encourage [X] and [Y] to engage in the contact sessions. They continue to show distress associated with the contact with their father, displaying behaviours to avoid contact ( [X] tries to hang up the phone, or throw things at the phone, run away and go behind the door in his room while [Y] screams/cries, runs away) and are saying they do not want to have contact.
[Ms Riggio] notes [X] is displaying aggression towards his father during phone contact and he can have difficulties after contact visits (emotional and behavioural challenges). … These have also occurred following contact when [X] has been with friends and their parents.
Ms K has postulated a diagnosis for both children of post-traumatic stress disorder (“PTSD”) relating to past exposure to family violence. I am uncertain of what to draw from this without the benefit of cross examination of the treating and Court-appointed experts because some of the behaviours that have been attributed to the children are not confined to their interactions with the father. For example:
(a)X’s problematic behaviour occurs after spending time with his friends and was observed by the Court-appointed Expert during his assessment; and
(b)Y’s inability to separate from the mother also occurred in the context of day-care.
Both children are described by Ms K to have progressed in their treatment. X was described as being able to better regulate his emotions, was lashing out less, and being less aggressive. The report describes X settling into kindergarten well. Again, I pause to question the currency of some of the observations given X began kindergarten in early 2021 and the report is dated October 2022. Y has been observed to be more settled and able to separate better from the mother.
LEGAL FRAMEWORK
As this matter concerns parenting arrangements for a child the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) apply. Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration. The factors for consideration are contained in s 60CC of the Act. I will address these in due course.
The procedure for conducting interim hearings was explained in Goode & Goode (2006) FLC 93-286 (“Goode & Goode”) at [68]:
[T]he procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In Salah & Salah (2016) FLC 93-713, the Full Court of the Family Court of Australia (“the Full Court”) set out an instructive summary of the law relating to interim hearings, located at paragraphs 33 to 41 of their Honours’ Reasons: .
33.Before turning further to the arguments of counsel, it is of assistance to set out the relevant statutory provisions, in particular, s 61DA which provides for the presumption of equal shared parental responsibility and, it is to be recalled that his Honour made such an order only in relation to Laila and Saade. It is also important to consider the section relevant to interim hearings.
34. Section 61DA is as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
35.Section 61DA and in particular, subsection (3), was discussed in Treloar & Nepean (2009) FLC 93-417 (Coleman, May & Dawe JJ) where the Full Court stressed its importance, and gave particular emphasis to what was said in Goode and Goode (2006) FLC 93-286 (at 83,750). The following paragraph from Goode (supra) was emphasised in the decision of Treloar:
78.The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.…
36.Section 60CG requires a court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Had the trial judge referred to s 61DA(3), the interim orders provision, his Honour would have applied a cautious approach, absent any need for findings as to family violence, and applied s 60CG.
37.It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
68.… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In Eaby & Speelman (2015) FLC 93-654 (“Eaby & Speelman”) the Full Court observed the following at paragraph 18 about Goode & Goode in disputed facts in interim hearings:
…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
The Full Court went on to say (citing Marvel v Marvel No 2 (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
In SS v AH [2010] FamCAFC 13, the majority of the Full Court, being their Honours Boland and Thackray, said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence, was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue”.
CONSIDERATION
Primary considerations
The primary considerations in determining what parenting arrangements are in the best interests of the children are:
(a)The benefit to the child of having a meaningful relationship with each of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, with primacy given to this consideration.
It is common ground the children will benefit from a meaningful relationship with both their parents.
The mother contends there is an unacceptable risk of harm associated with the children spending unsupervised time with the father by reason of violence.
As to risk, on an untested basis, I cannot make findings of fact about contested matters, of which there are many. That said, the father accepts that he needs to take responsibility for his past actions and expresses remorse for the impact he has had on the mother and the children. He deposes that he is now more aware of this and has completed parenting and counselling programs which have assisted him. The paternal grandmother’s evidence about the “dramatic” change that she has observed in the father suggests that his past behaviour was problematic.
From the concessional remarks in the father’s and paternal grandmother’s material, it is clear that the father’s behaviour towards the mother, which occurred in the presence of the children, was significantly problematic.
Turning to the events on 25 April 2019, the father’s account lacks specificity. His account of the day changed from his August to November 2022 affidavits, by the introduction of a new context, namely the death of his friend and confronting news about Ms F, upon whom a serious matter was perpetrated by a “close adult male friend”. This context is concerning because it is explained for the first time in the proceedings which began in 2019, and also because, for the first time, the Court is told that there is a “close adult male friend” who sexually assaulted Ms F when she was “just 15 years old”. Ms F was born in 2003, making her 15 years of age in 2018, as to place the assault between July 2018 and April 2019. The Court is not told the identity of the perpetrator, nor given an assurance that he will not come into contact with X and Y, despite the father’s application that the children spend liberal time at the father’s home. Of itself, this presents a risk to the children.
Next, the father’s August 2022 account of the 25 April 2019 incident does not accord with the video clip as marked Exhibit M1 depicting the paternal grandfather being held against the wall and pointed at in close proximity in a threatening manner. In the August 2022 affidavit, the father says he had a “verbal argument” with the paternal grandfather, but does not say that he held his father to the wall and pointed in his face. In his November 2022 affidavit, the father concedes that he grabbed the paternal grandfather by the chin “so he would listen to me” and pointed his finger in the paternal grandfather’s direction. “So he would listen to me” is a not a justification but rather an indictment.
Unlike the August 2022 affidavit, in the November 2022 affidavit, the father concedes he “inadvertently brushed past” the mother “when she attempted to stand in my way to prevent me from leaving”. The father’s August 2022 affidavit makes no mention of coming into any contact with the mother. The father, in his August and November 2022 affidavits, denies ever physically assaulting the mother. I am unconvinced by the nuance within the distinction between not physically assaulting the mother and “inadvertently brush[ing] past” her “when she attempted to stand in my way to prevent me from leaving”.
The father places emphasis on the letter he wrote to Town S Local Court in August 2020 in which he said:
… I have since learnt to take ownership of my behaviours and how it affected [Ms Riggio] and the children. I recognise it impacted on [Ms Riggio] and have taken large steps forward to educate myself to not do any of those behaviours moving forward.
The father tells this Court that he provided the letter to Town S Local Court at the sentencing hearing of the breach of ADVO and that he:
…made a promise to the Court that I would never do that type of behaviour again. I have learnt a very hard lesson, but it has also helped me recognise my inappropriate behaviours and educate myself with the knowledge to be a better person. Sometimes I say the wrong thing without thinking about the consequences it has on others. Through my Counsellor and educational programs such as “Keeping Kids In Mind” I have been able to learn how to react differently and control myself in emotional situations and think of others. This is evident in my current relationship with [Ms G] and all the relationships I have with family and friends.
As I understand his case, the father is saying that mid-2020 is a turning point in that:
(a)Prior to that time, his behaviour was inappropriate but it is an historic matter; but
(b)Since that time, he has reformed his behaviour and gained new awareness and insights about the impact his behaviour has on others.
Counsel for the father submitted that there have been no adverse events between the parties since the July 2020 Orders, and this would give the Court confidence that the spend time with arrangements can progress.
The evidence indicates there have not been any adverse events between the parties since July 2020. However, the mother and children relocated to the Region AK, about two hours’ drive from the father’s home. Her address is undisclosed. Any contact with the children has occurred through a professional service. There has been minimal opportunity for a situation of conflict between the parties to arise.
In evaluating the father’s proposition that he has gained new insights since mid-2020, it is useful to return to that time and look backwards and then forwards.
In looking back from mid-2020, the father deposes to various incidents between the parties in the period 2016 to 2019. The mother’s version of the parking incident in April 2016, the cruise ship incident in 2017, the September 2017 money transfer incident, the March 2018 breastfeeding incident, the December 2018 barbeque incident, the March 2019 movie night incident, the 25 April 2019 incident and the breach of the ADVO in August 2019 suggest the father was violent. The father’s letter to the Local Court Magistrate and this court concedes past inappropriate behaviour and tells this Court of his new insight into the effect of his behaviour on others. It follows that the father would give a revised narrative in his affidavit which concedes that behaviour in respect of the various incidents.
However, the father’s account of these matters does not acknowledge his part in the incidents. Instead, he either denies any wrong doing or advances a narrative that criticises the mother. There is no cogent connection between the narrative of the events and the general concession of wrong doing. This leads me to question the substance of the concession and the insight it contains.
Looking forward from the mid-2020 turning point, on 9 December 2020, the father’s counsellor reported:
…It is recommended that [Mr Cowper] continue with psychological therapy and intervention to further consolidate appropriate anger management strategies. There has been significant improvement for [Mr Cowper] and to not continue with psychological treatment would potentially result in him reverting to pre-treatment symptomatology affecting his mental well-being negatively…
Despite the recommendation, the father did not engage in psychological treatment to consolidate anger management strategies.
At the November 2021 follow up, the father appears to have told the counsellor that he was:
…working on a mutually beneficial custody agreement of his children with his ex-partner. [Mr Cowper] has demonstrated his ability to recognise and manage his anger so that it is expressed in healthy ways. Given these improvements have remained over the past 12 months, at this point there is no clinical need for [Mr Cowper] to continue psychological therapy.
However, there is no evidence of any work towards a “mutually beneficial custody agreement” in the 12 months prior to the November 2021 follow up. On the contrary, within two weeks of the 9 December 2020 appointment with the counsellor, the father had ceased all visits with the children. The counsellor appears to have discharged the father from treatment on an incorrect premise that was supplied to him by the father.
The intake assessment for the “Facing Up” behaviour change program dated 26 November 2021 is such that the father was considered to offer limited insight as to the impacts of his “behaviour on others”, and that he continued to blame the mother for his use of verbal abuse and displayed limited personal accountability for his use of abuse and violence.
The father’s interactions with B Contact Centre and his remarks about the mother contained in the email correspondence at Exhibit M3 suggest he has no insight in to the effects of his behaviour on the mother or the children. Although deposing that he recognises his behaviour “impacted” the mother, the tone of his emails to B Contact Centre do not suggest this. The mother appears to have made various suggestions about how to encourage Y to attend visits, which were met with criticism by the father, rather than with co-operation and compassion which might have been more consistent with an awareness that his past behaviour may have impacted Y.
Positively, the father has re-partnered with Ms G, who appear to be a pro-social connection for him. The father has not been further involved with police since February 2020.
The Expert opined the risk of family violence has lessened now that the parties have separated and that there are no other adults in their home and reflected on the positive association with Ms G. That said, the Expert opined that it was difficult to assess the extent of ongoing family violence between the parents by reason of the boundaries that are in place between them.
Any view expressed by a child and any factors (such as the child’s maturity or level of understanding) that the Court considers relevant to the weight that should be applied to the child’s views
The children’s views are not known and would, in any case, attract no weight having regard to their ages.
The nature of the child’s relationship with (i) each of the child’s parents and (ii) other persons (who may include grandparents or other relative of the child)
There is no issue as to the closeness and primacy of the children’s relationship with the mother.
The contact reports indicate that X is eager to spend time with the father, engages with him easily and the time is positive.
Y has spent time with the father a very small number of occasions since 2020 and often refuses to separate from the mother. It is notable that when Y spent time with the father in August 2022, after 22 months of not seeing him in person, she was keen to see him again and asked about whether she would see him the next day. Two weeks later, Y sat on the father’s lap and snuggled into his arm.
The extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
The father refused to continue with supervised visits between December 2020 and February 2022 as he did not believe they were warranted. This meant that X did not see him for over a year and it was almost two years in Y’s case. The father’s engagement in 2022 has been inconsistent.
The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The father has not paid the mother any child support since May 2019. The costs of maintaining the children have rested with the mother. The father deposes he paid the home mortgage in lieu of child support. This does not reflect well on the father. The father had the sole benefit of the property, and child support and mortgage repayments are different species of financial obligations.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The evidence of the Expert suggests that X would enjoy spending more time with the father. The Expert had access to the 2021 reports but the 2022 reports are also positive. That said, X’s ADHD and other challenging behaviours, as both reported by the mother to Ms K and described in Ms K’s report, and observed by the Expert in her report, suggest a conservative approach to the arrangement of time.
It is common ground that Y may have difficulty attending visits with the father. Y is also to start school in Term 1 of 2023, which will be an adjustment of itself. In my opinion, this speaks against introducing changes to her parenting arrangements while she adjusts to school.
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 resides at Suburb AJ and the mother lives at Suburb V. The distance between the homes is 166 kilometres by road with an estimated travel time of two hours and 10 minutes. This travel time assumes no disruptions to ordinary traffic flow.
The paternal grandparents own a property at Town AG, which is about 30 minutes’ drive from Suburb V. Plans to sell the property are presently unformed. That property could be used as a base for the father if he does not wish to undertake a lengthy drive.
The capacity of (i) each of the child's parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The mother’s capacity to meet the children’s needs is not in issue.
The father’s capacity to meet the children’s emotional and psychological needs, and to manage any challenging behaviours in a constructive manner, remains unclear having regard to the difficulties in his evidence about past violence, and the circumspection that I have applied to the opinion of his counsellor in November 2021.
The maturity, sex, lifestyle and background (including any lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks relevant
Y is five years of age with vulnerabilities associated with her anxiety. X is seven years of age and, while his relationship with the father is more robust compared to Y, can present behavioural challenges. Both children present with developmental difficulties.
A diagnosis of PTSD has been postulated for both children and this requires further expert evidence.
Y may also need to undergo assessments relating her learning needs as she transitions to formal education.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
One of the primary responsibilities of parenthood is to demonstrate to the child that the other parent is to be respected and to nurture and support the child’s relationship with the other parent. The evidence establishes that neither party has discharged this responsibility.
The father’s disengagement from spending time with the children between December 2020 and February 2022 reflects poorly on him.
Family violence orders
There are no current family violence orders in place for the protection of the children or member of the children’s family.
CONCLUSION
On an interim basis, I cannot be satisfied that the risk to the children posed by the father’s abusive and aggressive behaviours which warranted the imposition of supervision has materially changed from July 2020.
While there have not been episodes of violence between the parties and the father has not been involved in third party police matters since August 2020, and he has re-partnered with Ms G, his evidence when viewed in the round is unconvincing. He expresses contrition for his past actions, but does not identify the actions to which that contrition is said to attach. This gives a hollowness to the general concession he makes about his past behaviour. The father’s account of the incident in April 2019 and the paucity of detail is a weighty matter in this regard.
Overlaying this are the children’s own characteristics and circumstances. X appears to be more robust than Y and re-engaged easily and eagerly with the father. That said, X’s behaviour is problematic at times and his dysregulated state during the Expert assessment is noted in this regard.
Y has a complex confluence of factors operating on her which need to be addressed conservatively. Firstly, she has anxiety of long standing which has been disruptive for her in terms of pre-school engagement in 2021. Secondly, she is to transition to Kindergarten in 2023, which presents a significant developmental milestone for her. There has been very limited success in persuading Y to spend any time with the father despite skilled workers attempting to devise strategies for this.
In the circumstances, the risk posed by the father continues to warrant supervision.
As to the frequency of time, I will make orders for fortnightly time. I have considered monthly time as the mother proposes. The father has spent inconsistent time with the children at intervals that vary from two weeks to two months. The visits on 3 August, 20 August and 3 September 2022, at fortnightly intervals, included Y and she was observed to become more relaxed on each visit. The next visit was not until 15 October 2022 and Y refused. It appears that Y will be assisted by regular, consistent engagement with the father.
The time will be for three hour periods for six visits and then six hours. This will enable the father to undertake a more fulsome activity with the children in the time which may be more advantageous to them. If Y finds it too difficult to stay for the whole time, then the mother may be able to collect her part way through the visit with X continuing for the remainder of the time.
I will require the father to meet the cost of supervision given he does not pay child support.
The parents are in agreement that Order 7 of the Orders made on 17 July 2020 for the paternal grandparents’ time with the children should not be disturbed. The paternal grandmother filed no Application to alter that Order but, before submissions commenced, identified that she would prefer that the time could occur at a park. Order 7 suggests that the time can only occur at the home of the maternal grandmother. I will include the same order in these Orders (to have a consolidated set of interim orders) but will include the words “except as otherwise agreed between the paternal grandmother, maternal grandmother and mother” as to the venue, to make it clear that they are at liberty to make their own arrangements. Even though the paternal grandfather is not a party to the proceedings, I was not invited to limit its scope to the paternal grandmother. For this reason, I have continued to express the Order in favour of both paternal grandparents.
TRANSFER TO DIVISION 1
The matter warrants a transfer to the Federal Circuit and Family Court of Australia (Division 1) on the basis that the likely time required for a final hearing will be at least five days, if not longer. The likely array of witnesses are proposed to be five lay witnesses in the father’s case, including himself, four to five witnesses in the mother’s case including herself and a treating expert for the children, and a Court-appointed Expert. There may be experts who treat either or both of the parents.
SINGLE EXPERT REPORT
The mother seeks orders for the appointment of a Single Expert. The Application lacks specificity and there is no evidence adduced by the mother as to who the Single Expert should be or what particular qualifications they should have. There may or may not be future diagnoses for the children. Ms K, as the children’s treater, is already a witness. This issue can be revisited with the Judicial Registrar who will case manage the proceedings.
I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 10 January 2023
0