Rogers and Mooney

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROGERS & MOONEY

[2016] FCCA 1951

Catchwords:
FAMILY LAW – Parenting – Father’s application for orders concerning spending time with five children – where the father has numerous convictions for offences of violence against third parties and pleaded guilty to charges arising out of a siege at the parties home but otherwise denies committing extensive violence during the relationship as alleged by the mother – court satisfied the mother’s allegations are true – no remorse, insight or empathy demonstrated by the father – where the father’s extremely poor attitude to the mother has manifested itself in Facebook posts by his partner in recent months – where the two youngest children do not know the father, the next child does not want to see him, the next child is ambivalent and the eldest child does want to see him – weight to be given to the children’s views – where the Independent Children’s Lawyer proposed that the three youngest children spend no time with the father but the two oldest children spend time with him on four occasions each year in the presence of the paternal uncle and his partner – where the paternal uncle and his partner do not accept that the father was violent to the mother and have provided no support to the mother since separation – where they are not suitable supervisors even if an order for time was otherwise appropriate – order made for no time and no communication for all the children.

Legislation:

Family Law Act (Cth) 1975, ss.22. 60CC, 61DA

Federal Circuit Court Rules r.11.01

Cases cited:

Mazorski & Albright [2007] FamCA 520

Applicant:

MR ROGERS

Respondent:

MS MOONEY

File Number:

NCC 2983 of 2014

Judgment of:

Judge Terry

Hearing dates:

26, 27 & 28 April 2016

Date of Last Submission:

28 April 2016

Delivered at:

Newcastle

Delivered on:

4 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:

Brennan Garrick Lawyers

Counsel for the Respondent:

Mr Wilkinson

Solicitors for the Respondent:	Hadden Kemp Solicitors
Solicitor Advocate for the Independent Children’s Lawyer:	Ms O’Rourke
Solicitors for the Independent Children’s Lawyer:	Legal Aid NSW

ORDERS

The children V born (omitted) 2003, W born (omitted) 2004, X born (omitted) 2006, Y born (omitted) 2011 and Z born (omitted) 2012 (“the children”) shall live with the mother.
The mother shall have sole parental responsibility for the children.
The children shall spend no time with and have no communication with the father.
Pursuant to section 68B of the Family Law Act 1975 the father is restrained and an injunction is granted restraining him from removing the children from any school, day care centre, extra-curricular activity or from the care of any person in whose care the mother has placed the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2983 of 2014

MR ROGERS

Applicant

And

MS MOONEY

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amendable to being read.
These proceedings concern parenting arrangements for V, 12, W, 11, X, 8, Y, 5 and Z, 3.
Subject to information about V which I will refer to in a moment the children have lived with the mother since their parents separated in July 2013.
In the first four months after separation the children spent some time with father but as of mid-November 2013 the mother refused to make the children available to spend time with him and save for seeing V and W on some isolated occasions, he has spent no time with the children since then.
In November 2014 after not seeing the children for twelve months the father filed an application seeking an order for equal shared parental responsibility and orders that the children spend time with him on alternate weekends and during school holidays.
The mother filed a response seeking an order for sole parental responsibility and orders for no time and no communication. She alleged that there was serious family violence in the relationship and that the father was a man of violent propensities and that it was not appropriate for the children to be spending time with him.
A complication in the matter is that eldest child V has been living with the paternal grandmother Ms M since February 2016 and has not seen his mother since then.
The father's solicitor informed the Court at a mention of the matter about a month before the hearing that the paternal grandmother was seeking legal advice about applying to intervene but she did not do so and not only that, neither party sought to join her and the application of both parents when the hearing commenced was that V should live with the mother.
Pursuant to 11.01 of the Federal Circuit Court Rules the Court can of its own volition require a person to be included as a party if that is necessary so that the court can completely and finally determine all matters in dispute but it was not necessary for the paternal grandmother to be joined for this reason given the orders the parents sought and why should the Court consider making an order that a child live with a grandparent if the grandparent does not themselves seek such an order?
The orders sought by the father during final submissions were that the parties have equal shared parental responsibility for the children, that the four younger children live with the mother and spend time with him on alternate weekends and during school holidays and that no orders be made in relation to V.
I agree with the submission by the mother's counsel that this was nothing more than a de facto application for V to live with him, in circumstances where he must have been aware that given his criminal history including his convictions for offences of violence this application would have had little prospect of success if openly made.
The orders sought by the mother were that she have sole parental responsibility and that the children live with her and spend no time with and have no communication with the father.
The orders proposed by the Independent Children's Lawyer at the end of the hearing were that the children live with the mother and that the mother have sole parental responsibility for them. She proposed that X, Y and Z spend time with the father as agreed by the mother and that V and W spend time with the father on four occasions each year, overnight Saturday to Sunday provided that they slept at the home of the father's brother Mr A and that Mr A and his partner Ms T were in general attendance at all times.
When the trial commenced there was another live issue, namely whether the mother should be able to relocate from (omitted) to (omitted) with the children. (omitted) is about 145 kilometres and about an hour and twenty minutes from (omitted).
The father indicated his opposition to that proposal every time it was mentioned during the course of the proceedings, including to the family report writer and in his trial affidavit and when I asked the father's solicitor at a mention of the matter only a month or so before the hearing commenced whether the father still opposed the relocation she told me that he did.
However when the father was asked during cross-examination about the mother moving to (omitted) he astonishingly replied "I don’t have a problem with the mother moving to (omitted). I might move there myself."
It was accepted at the end of the trial that the mother would be moving to (omitted).

The evidence

The father gave evidence in his case and he called his brother, Mr A, his sister-in-law Ms T and his partner Ms N to give evidence.
The person the father did not call was the paternal grandmother Ms M.
The father was aware because of the mother's affidavit, that the mother alleged that the paternal grandmother had threatened her on the father's behalf and had given her back items such as keys stolen from the mother's home which the mother suspected the father had stolen. He was aware that the mother alleged that the paternal grandmother had made threats to the mother after V returned to live with the mother in December 2015 but chose not to call her.
The Independent Children's Lawyer sought to introduce evidence from the paternal grandmother by way of a proof of evidence but that is a separate matter. The father could have called the paternal grandmother in his case and he chose not to and it is open to me to find that this was because he knew that her evidence would not have assisted him as far as the allegations the mother made that she was acting as the father's agent to harass the mother were concerned.
The mother relied on the evidence of herself and her partner Mr B.
After the mother's case concluded the Solicitor Advocate for the Independent Children's Lawyer sought to call the paternal grandmother who was at court and sought to rely on a 99 paragraph proof of evidence she had obtained from her. The mother's counsel opposed this. The father's counsel was neutral.
I had a look at the proof of evidence. It contained extensive allegations about the mother's treatment of V and information about the paternal grandmother taking V to the Department of Family & Community Services and the police. It would have required, if admitted, the mother to be given the opportunity to go back into the witness box.
I refused to allow the Independent Children’s Lawyer to call the paternal grandmother. It would have been unfair to the mother to allow this evidence to be introduced at that late stage and the paternal grandmother had made a conscious decision not to intervene and the father had chosen not to call her.
The other evidence in the case was the family report prepared by Ms K, a Regulation 7 Family Consultant.
All of the witnesses were cross-examined.

Credit issues

The father’s counsel submitted that there were some credit issues in respect of the mother. I will refer to those matters later when making findings about the family violence allegations but it is important to note that there were serious credit issues in respect of the father.
The father denied any knowledge of the particulars of his convictions for a series of violent offences. As the mother's counsel pointed out even if he did not remember what happened he would know from the criminal proceedings what he had been accused of but he chose not to tell the Court.
This is a credit issue but it also had this result. The father's counsel asked me to find that the siege incident which occurred in 2011 was an outlier compared to other offences but as I remarked to him at the time, compared to what? Compared to the allegations the mother made which the father denied and wanted me to accept his refutation of, or compared to his other convictions which he told me nothing about? The father's counsel could not enlighten me about that.
The only other thing I could compare it to in the father's case is the intimidation incident in November 2014 but the father made no admissions of culpability for that and the flavour of his evidence about that was that he had been picked on by the police.
Perhaps more seriously in relation to the father's credit, he not only denied to the family report writer that he was violent to the mother, he told her that it was the mother who destroyed the house on the day of separation, that the mother punched the paternal grandmother in front of the children and that the mother assaulted him on multiple occasions and that he rang the police.[1]
[1] Family Report paragraphs 2, 3 & 4
There were no allegations of this nature in the father's affidavit and his counsel put no such suggestions to the mother in cross-examination which informs me that his counsel was not instructed to that effect and for reasons I will explain later, these untruths told to the family report writer seriously undermine the weight I can give to her recommendations. They are also a serious indictment of the father's credit.

The evidence about V

There is a gap in the evidence available to me in relation to V.
The Independent Children's Lawyer said that V was currently expressing a wish to live with the father or paternal grandmother but this is not something I can place weight on given the child's circumstances.
The Independent Children's Lawyer suggested that if this troubled me an arrangement could be made for the family report writer to ring V (from Melbourne) and ask him his views but this would not have provided satisfactory evidence. Only a supplementary report which involved the child and all of the relevant parties would have done that and no application was made before the commencement of the hearing for such a report to be obtained.
V has had problems for some years and in an ideal world a comprehensive report about him from a paediatrician and/or a clinical psychologist would also have been obtained for the hearing.
I want to stress however that in making those comments I am not intending to be unduly critical of the Independent Children's Lawyer. We do not live in an ideal world and I am sure the Independent Children's Lawyer did the best she could.
The development of V living with the paternal grandmother only occurred after the matter was listed for trial. There was some urgency about the trial proceeding because until the father went into the witness box relocation was in dispute. The case did not only involve V, it involved the mother and father and four other children and the welfare of all of the children would have been impacted on if the hearing had been delayed.
Another problem is that the parties live in a remote New South Wales town. The Legal Aid Commission has limited resources. The mother I would assume is on Legal Aid. The father while he appears to be privately funded is a (occupation omitted). There was a conspicuous lack of obvious resources to obtain an expert's report or any sort of additional report. It would also have taken considerable time to obtain such a report and we could not afford to have the trial delayed. V is only one child out of five and I am simply going to have to do the best I can in the circumstances.

Background

The mother and father met in (omitted) in mid-2002. The father comes from (omitted). The mother is from (omitted) and moved to (omitted) not long before she met the father.
The father had not long got out of jail when the parties met. They quickly formed a relationship and the mother quickly fell pregnant and the parties now have five children: V, born (omitted) 2003, W born (omitted) 2004, X born (omitted) 2006, Y born (omitted) 2011 and Z born (omitted) 2012.
The mother alleged that the father was violent to her throughout the relationship and that the violence took the form of physical violence and verbal abuse. She also alleged some physical abuse of the children.
The father admitted to only one occasion where he was violent and that was an occasion when the police were called and he was charged.
The mother also alleged the father drank heavily and that violence often occurred when he had been drinking.
I will consider the mother’s allegations about violence in detail shortly. However there was no dispute that prior to and during the relationship the father was seriously violent to others, often associated with drinking. His first violent offence occurred in 1997.
The relationship ended in June 2013. The mother said that the father left after smashing up the house and menacing and threatening her and assaulting her and I will return again to that later as well.
The children remained with the mother after separation. Some arrangements were made for the father to spend time with the children during the next few months and in October 2013 the parties attended a Legal Aid conference and reached an agreement about orders to this effect but shortly afterwards the mother withdrew her consent to the orders being made and as of mid-November 2013 she has refused to agree to the children spending any time with the father.
The father did nothing for twelve months but in November 2014 he filed an application seeking orders for time and an order that the parties have equal shared parental responsibility.
The mother filed a response seeking sole parental responsibility and proposing no time and in due course a family report was prepared. This did not lead to an agreement and the matter was listed for hearing in Moree in September 2015. Unfortunately it could not be reached and it was finally heard last week.

The parties circumstances

The father is 34. He is a (occupation omitted) and he works for his brother Mr A who does (work omitted) for the (employer omitted).
The father has a large extended family in (omitted). His mother and brother live there and he has a grandmother there and many cousins and other extended family members.
In December 2013 the father commenced a relationship with Ms N and they have lived together since May 2014. Ms N is 27 and has children aged 6 & 3. She works at (employer omitted).
Ms N has strong connections with (omitted). She currently spends every weekend there and the father said in his affidavit that he frequently went to (omitted) on weekends as well.
The mother is 33. In addition to the five children of the relationship with the father she has a son, A born on (omitted) 2014 and twins B and C who were born on (omitted) 2015.
The mother had a short term relationship with A's father, Mr H, after her relationship with the father ended. It is her case that her relationship with Mr H ended because of harassment by the father. I will deal with that to a small degree again later but it was a short relationship and Mr H no longer lives in the (omitted) area and does not see much of A.
Mr W is 24. He lives in (omitted) with the mother but his connection is with (omitted). Mr W attended the family report interviews.
Mr W’s connection to (omitted) is one reason the mother wants to move to (omitted) but she also said that it would assist her and the children to be away from harassment she says she is experiencing from the Rogers family in (omitted) and that (omitted) offers better facilities to deal with W's issues.
There is no longer any dispute that the mother should be able to live in (omitted) with the children, or at least four of them.

The allegations of family violence

The mother’s case

The mother's allegations about family violence are a central issue in the case.
Some of her allegations were very general, for example, that physical violence occurred nearly every day but she gave several specific examples of violence.
She gave the following evidence about an incident in January 2008:
Prior to separation, I had been the victim of numerous incidents of abuse by Mr Rogers. In early January 2008, Mr Rogers was drinking heavily and listening to music during the late night. At that time, the children were asleep and I went downstairs to tell Mr Rogers to turn down the music as I did not want the music to wake up the children. Instead of turning down the music, Mr Rogers asked me for a cigarette. When I told him that I did not have a cigarette, Mr Rogers became violent. He punched the stereo in anger and when he realised he had punched the stereo, he said words to the effect of: “If you made me break my stereo, it is on.” Mr Rogers then threw a can of rum at the dryer.
As I was feeling fearful, I went upstairs and locked the door behind me. I then began to call the police. Mr Rogers was still downstairs and he was smashing items inside the house. He also ripped the door off the dryer. Mr Rogers then followed me upstirs and smashed the front door open. He then threw a bloodied towel and the dryer door inside the room. Mr Rogers left after a while and when police arrived, they began to look for Mr Rogers. However, they could not find him.[2]
[2] Mother’s affidavit, paragraphs 9 & 10.

The next incident the mother gave detailed evidence about was the extremely serious incident that was referred to during the trial as the siege incident. It occurred in April 2011 two days after Y was born.
The mother said that two days after she gave birth to Y the father came to the hospital and demanded that she come home and that he brought the other children to the hospital and left them there.
The mother checked herself out and went home. She said she found the father was “paralytic drunk” and he began abusing her and threw Y’s bassinet with two day old Y in it.
The mother went downstairs and called the police who attended. The father armed himself with an axe. Ultimately the children were taken out of the house but before they left the area the father came out of the house with two gas bottles which he tucked under his chin and he began flicking a cigarette lighter and threatening to blow himself up.
The police backed off and arranged for siege negotiators to come from (omitted) and (omitted) and there was a prolonged siege. At one time the father came out and got into his car and behaved threateningly with it before going back inside.
The father was eventually removed from the house at about 11.00pm. He was arrested and charged with Armed with Intent to Commit an Indictable Offence and Assault Police Officer in the Execution of Duty and released on $20,000.00 bail. He was later found guilty of these offences and was sentenced to 150 hours community service. He unsuccessfully appealed against his conviction and sentence.
An Apprehended Domestic Violence Order (ADVO) was made for the protection of the mother after the siege incident and the father was convicted of a breach of the ADVO in 2012. He was asked about this in cross-examination and said, "I think there was a bit of a heated argument." The mother did not provide any evidence about what happened and all I can record is that the father was convicted of breaching the ADVO.
The mother described in considerable detail the incident that occurred on the day of separation in June 2013. She said as follows:
On the day we separated in June 2013, Mr Rogers had woken up at 6am to go to work. However, as he had been addicted to poker machines for the majority of our relationship, he started to demand money from me. He said words to the effect of: “Give me some money you dog.”
When I replied that there was nothing left, Mr Rogers became angry and began to smash up the house. He smashed the TV cabinet and ripped the doors off, put holes in the walls, and also kicked a hole in my bedroom door. Mr Rogers also threw the baby’s bassinet around. Due to the commotion, the children woke up and started to scream and cry.
When the children began to scream and cry, Mr Rogers left. He came back half an hour later while I was cleaning up and began to demand where the money was. He used words to the effect: “where’s all the money gone, where’s it gone?” Mr Rogers then picked up a long piece of wood (about a foot long) that had been broken off the TV cabinet. He then swiped all the frames and vases off the hallstand.
Mr Rogers then came up to me and screamed words to the effect: “Where’s the money? You spent it all, I didn’t spend it!” He then headbutted me and knocked me to my knees. When I was on my knees, Mr Rogers took the piece of wood and hit me five or six times to the head.
I sustained a massive bruise egg in the middle of my forehead, down to the side of my head. I took a photo of my injuries on my phone and camera in order to record the abuse by Mr Rogers. This was not the first time I recorded the damage and abuse inflicted by Mr Rogers whenever he was violent. Mr Rogers was aware that I as photographing the violence and damage and shortly after separation, as he still has keys to the house, he came and took my phone. When V visited Mr Rogers later during contact, Mr Rogers then asked V to take the camera for him.[3]
[3] Mother’s Affidavit, paragraphs 25-29.

The father’s case

The father denied all the allegations the mother made against him save for making admissions about some of his behaviour during the siege incident which led to him being charged.
The father’s counsel submitted that for a number of reasons I should prefer the father's denials and disbelieve the mother's allegations about the violence.
First, he submitted there were credit issues with the mother.
Second, he submitted that the mother’s allegations were inconsistent with the fact that she agreed to the children spending time with the father immediately after separation when she had the benefit of legal advice.
Third, he pointed to the fact that the mother signed a statement in July 2013 admitting that she had lied to police when making an allegation of property damage against the father shortly before.
Fourth, he pointed out that the police recorded that they did not believe the mother when she blamed the father for an incident of physical abuse after separation.
Fifth, he pointed out that the mother resorted to numerous generalisations about violence, such as, "The father hit me every day."
Sixth, he said that there was evidence that the mother had not only speculated about things but had wrongly speculated about things.

Conclusion about the allegations of violence

There were some credit issues with the mother, there is no doubt about that, although one I will first mention one matter that the father's counsel raised which does not cause me concern. The mother said that she had taken pictures of her injuries on a mobile phone and the phone was taken and that she had also lost another phone. The father's counsel said to me that she was unlucky to lose two phones, implying that this was a fabrication.
I am not sure even on a commonsense basis I would agree with that but it was interesting that when I was going through the subpoena material which was tendered, there was mention of the mother making a complaint to police about the father having taken her phone, so there is some independent evidence that the mother was not just making up the loss of a phone for these proceedings; she complained about it to the police at the time.
That is therefore not a compelling credit point and I also do not consider that the fact that the police recorded that they did not believe the mother about the back-yard incident is a credit point.
The mother told police that she was hit on the head from behind and did not see who did it. She did not go beyond that. If she had really wanted to get the father into trouble she would have said that she had seen the father. However she did not, she simply named him when the police asked her if she could think of anyone who might have done it. The police then recorded that they did not believe the mother.
I cannot draw a conclusion from the fact that the ambulance drivers apparently saw no sign of injury, or that the police said they did not believe the mother that the father had done something, that the mother somehow must have been lying about the incident or that she had made a false complaint to try and get the father into trouble. The comment by the police must also be considered in the context of the police needing to have some justification for taking no further action.
Some of the other credit points had some validity. The mother insisted in cross-examination and in her affidavit that she was never in a relationship with a man called Mr P, they were simply friends. However she was shown a document in which she had referred to having been in a relationship with Mr P and finally admitted that she was briefly in a relationship with Mr P.
The mother did make some assumptions in the affidavit and she did overstate things such as the issue of whether V's school situation had got worse since he had stopped living with her.
However another matter which is not a strong credit point is the issue of the letter the mother signed retracting the allegation about property damage.
The mother said that she retracted the allegation because the paternal family threatened her about what would happen if she got the father into trouble and he went back to jail. I will discuss this further later but I do not consider that a strong credit point.
In summary there are some little credit points about the mother but for numerous reasons I accept the mother's evidence about the three specific incidents she described. I am also satisfied on the balance of probabilities that the violence the mother experienced during the relationship was far more extensive and included much more physical violence than what occurred during those three incidents, although I cannot make precise findings about exactly what occurred.
The reasons I come to that conclusion are these.
First, the father is a violent man. He has convictions dating back to 1997 when he was 15 for assault, resisting police, assault occasioning actual bodily harm more than once; malicious wounding; intimidating police; affray; further assaults and breach of an apprehended domestic violence order. The father has been to jail for violent offences and has also been sentenced to two lengthy periods of community service for violent offences, so he is a violent man and the mother's description of his behaviour to her and to the children during the relationship is consistent with his behaviour outside of a domestic setting.
Second, in relation to the submission that I should doubt the veracity of the mother's claims about family violence because she agreed to the children spending time with the father immediately after separation, it is not uncommon for that to happen, even when people have legal advice.
It is also not uncommon for victims to retract statements even when they should not retract them.
It is also not uncommon for victims of violence to remain in violent relationships for a very long time and the mother gave evidence in her affidavit which I accept about why she did not leave the relationship. She said as follows:
Even though I was terrified of Mr Rogers and wanted to leave the relationship prior to June 2013, whenever I wanted to leave, he would threaten me. Among many other threats, Mr Rogers would threaten to tie me up and make me watch as he killed all the children in front of me. He would also threaten to kill my grandmother.[4]
[4] The Mother’s Affidavit, paragraph 16.
Third, the father's denials that family violence occurred mean nothing when he could not remember the circumstances of any of the violent offending which led to his convictions; when he was untruthful to the family report writer about the mother having been violent to him and when he minimised what occurred in the incident in November 2014, which I will refer to again later.
Fourth, another reason why the mother's evidence is credible is that she alleged the family violence often occurred after the father had been drinking; for example, she said he was paralytic drunk before the siege incident. The father admitted that the violent offending that he had been convicted of was often accompanied by drinking and pre-sentence reports which were tendered confirmed this.
Fifth, another reason for preferring the mother's evidence is what two of the children said to the family report writer.
The family report writer said as follows about V:
V says when his father was in a bad mood he could be scary but otherwise not. He says he remembers when his father threatened to blow up the house. He says he was in Year 4 or early Year 5. He said:
“It was a bit scary … but the only thing – it wasn’t scary – we went to his sisters – but if he blew the house up when he was in there and hurt himself – that was scary …”
He was not sure why his parents are not together but thought it was because they were fighting. He did not know why he could not see his father. He says his father did smash up the house. He said:
“He only gets angry if you do really bad things …I think Mum just wants us to stay with her … she might have got sick of having stuff thrown at her – that kind of stuff.”[5]
[5] Family Report, paragraphs 75-77.
The family report writer said as follows about X:
[X] says she has not seen her father for a long time and does not want to because he smashed the house up.[6]
[6] Family Report paragraph 86.
Yet another reason for accepting the mother's evidence about the family violence is that she has acted consistently with her allegations. It is true that she agreed to time immediately after separation but she stopped it in late 2013 and she has accessed domestic violence support in (omitted).
I am satisfied that the specific occasions the mother described occurred and I am satisfied that there was much more extensive violence although I cannot make findings about specific instances.
I then come to the timeline after separation which is also relevant in this matter because the events after separation give considerable support to the mother's claims that the father is an aggressive, antisocial man.
The father in his affidavit suggested that in June/July 2013 the parties amicably discussed arrangements for the children and certainly in August and September parenting plans were made which allowed for time to occur and in October 2013 an agreement was reached at a Legal Aid conference.
However other evidence suggests that there was certainly not a smooth path from separation until the end of 2013.
On 19 June 2013 the mother complained to police that the father had threatened her and damaged her car window. She later withdrew the complaint and told police she had lied about it but I accept her evidence that she did that because the paternal grandmother said she had to or the father would go back to jail.
In the context of this case I consider on the balance of probabilities that the mother's explanation for what she did should be accepted. I do not accept that the complaint was false.
Between 9 and 12 July 2013 there was an extremely serious set of incidents between the parties which are described in considerable detail in the police report which is exhibit E.
Notwithstanding that there was an ADVO in place the father made a multitude of telephone calls to the mother and sent her a multitude of text messages and he made threats in the text messages. In her affidavit the mother said that the father threatened to set her car on fire and burn the house down with her and the children in it. The police report refers to a threat to come around and slit the mother's throat. The father was ultimately charged with breaching the ADVO and was convicted.
In his affidavit the father said that he denied being responsible for the text messages but he did not deny being responsible for the telephone calls, of which there were an absolute multitude and there were also, of course, the threats which I am satisfied were made.
On 29 August 2013 Mr H made a complaint to the police that he had been harassed and threatened by the father, the father's brother and the paternal grandmother. I cannot make a finding about whether this occurred.
In August 2013, the father made a complaint to the DoFACS about the mother neglecting the children by not providing food for them, not sending them to school, not bathing them and hitting them.
In August 2013 the father asked his brother Mr A to go out late at night and chase up Mr H. There is no doubt this occurred because his brother admitted it but I cannot make any findings about exactly what happened on that occasion.
On 17 September 2013 the father called the police alleging that the mother had been seen with cuts to her wrists. The police investigated and found that the complaint was false.
In September or October 2013 the father talked to the school about the children being sent to school without lunch.
In October 2013 the father was convicted of breaching the ADVO in relation to the telephone calls and the text messages and was fined $1000.00 and placed on a two year bond. The ADVO was extended to include the children and to include an order which prohibited the father contacting or approaching the protected persons except through a legal representative.
At Christmas 2013 there was a complaint to the police about the mother hitting V.
The mother's complaints to the police continued into 2014. She made complaints in the middle of the year which led to the father being charged again with breaching the ADVO but these charges were dismissed by the Local Court. The mother said that this was because it was one person's word against the other. The father said that it was because of something a witness said in the witness box but no transcript was produced to verify this.
The mother alleged there was other harassment such as handbags, keys and car keys being stolen from her home. She said that the father was not seen stealing the items but that it must have been him because the paternal grandmother later gave the items back to her and I note as I said earlier, that the paternal grandmother was not called to contradict this, so I accept the mother's evidence that this is what happened.
There is reference in the police records in 2014 to the father calling them in the early hours of the morning trying to insist they go around and do a welfare check at the mother’s home. They refused.
In November 2014, the same month the father filed his application for parenting orders, he was charged with stalk intimidate following an incident in (omitted) unconnected with the mother. He was ultimately convicted of that offence in August 2015 and what he says about that offence in his affidavit is gravely concerning. All he said was as follows:
In November 2014, some men I did not know ran Ms N off the road. I was charged with intimidating them. The matters were dealt in the Local Court at Moree but were not finalised until August 2015. I was sentenced to a 12 month suspended sentence.[7]
[7] Father’s affidavit paragraph 75
There is not a skerrick of acknowledgement of wrongdoing in there.
In cross-examination the father also brushed off the seriousness of the incident. He alleged that he threw a plastic cup at the car.
The police records suggest that he threw a beer can and that it hit the car and beer sprayed around. In my view that is much more consistent with what the father was charged with. The charge suggested that there was something thrown which caused damage to property.
The police records and the father's answers in cross-examination make it clear that the father was the aggressor in that incident. He followed the other car, he yelled abuse and he threw something. He was abusive to a person who came out of a house. He was the aggressor. He was the cause of that incident.

Conclusion about post-separation matters

I cannot make findings that all of the mother's allegations about the father’s post-separation behaviour are correct. For example there was the charge dismissed in the Local Court and there is a possibility that some things which happened were misinterpreted or misstated by the mother but in my view it is open to me to find that there was a level of harassment of the mother by the father after separation.
There is also the fact of the father moving into a house down the street from the mother for a period of time after separation.
The father said that this was coincidental and that he simply happened to be offered a house in that street. It was exceptionally unwise of him to take up that offer if that is all there was to it but I am satisfied was some other harassment of the mother after separation and I struggle to accept the father's explanation of why he moved into a house in the mother's street.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and the matters to which I must have regard in order to determine the children’s best interests are set out in s.60CC(2) and (3) of the Family Law Act.
S.60CC (2) contains the primary considerations and s.60CC (3) the additional considerations and I am going to start in this case with the additional considerations.

The first additional consideration is the views of the children and the weight I can place on those views.
V told the family report writer that he wanted to live with the mother but see the father.
The mother does not accept that this was necessarily V’s true view at the time. She said that V told her that he said this because he was scared of upsetting the father.
However while the mother might be right and what V told her might have been true it might also be that V said something to the mother which was not true because he knew she would be upset if he said he wanted to see his father.
The Solicitor Advocate for the Independent Children's Lawyer submitted and the parties accepted that V's current expressed wish was to live with the paternal grandmother or the father.
I cannot place weight on that for a number of reasons.
The mother said that V had been won over by offers of brand name clothing and gifts from the paternal grandmother and that could be true.
A reason V might genuinely be expressing this wish is because as the family report writer pointed out there have been numerous changes in the mother's household since separation. There are some new young siblings and children often struggle with that at the best of times. The family report writer said that V might be feeling displaced.
The other difficulty with forming a settled view about what is right for V is that he has been a troubled child for many years and I will refer to that in detail later on and he is caught in an extremely high conflict situation. He has had to deal with numerous changes in his life since separation. His views appear to have changed between the family report interviews and now.
I cannot place weight on V’s current views. They may be genuine but they may have been influenced by where he is living at the moment. They may be liable to change as soon as where he lives changes.
The only way to get to the bottom of what V is feeling and what is going on for him would be to obtain a comprehensive report but I do not have one and I did not have the luxury of waiting around to get one before conducting the hearing.
When W was asked by the family report writer if he wanted to see the father he said "Sort of."
X told the family report writer that she did not want to see the father.
Y and Z were too young to express a view to the family report writer.
The next additional consideration is the nature of the children’s relationship with each of their parents and any other relevant person.
The family report writer did not have the opportunity to observe the any interaction between the children and the father at the family report interviews because of the ADVO in place.
The family report writer made a positive observation of the children's relationship with the mother and saw nothing of concern in the way they interacted with Mr W.
I am satisfied that the four younger children have a good and strong relationship with the mother. She is their primary attachment figure.
I cannot make any findings about V's relationship with the mother. At present he does not have one because he is not seeing her but she has otherwise always been a part of his life. I cannot make a finding about what their relationship would be like tomorrow or the next day if I ordered that V return to live with the mother.
The father has no relationship with the four youngest children. He has not seen them since November 2013, save perhaps for one or two brief interactions with W. Y and Z do not know the father at all.
On the father's evidence he also has no relationship with V. He said that he has only seen V on a few occasions since November 2013.
The children have extended family in (omitted); Mr A, Ms T; the paternal grandmother and numerous cousins.
I cannot be sure about the nature of the children’s relationship with them. I suspect from something the mother said in the witness box that it was probably a good relationship before separation.
There was nothing to suggest that the four younger children did not have a good relationship with Mr W. The mother gave detailed evidence in her affidavit about things Mr W did with them and how he related to them and she was not challenged about that.
As for child support, the mother is the sole financial supporter of the children.
There is no child support assessment in place because the mother has been exempted from making an application because of the family violence.
The father has not offered to pay periodic child support He said during cross-examination that he had paid the mother $13,000.00 after separation. The mother disputed this and the father produced no evidence of it and I cannot make any findings that this occurred.
I must consider the extent to which each parent has taken, or failed to take, the opportunity to spend time with the children or be involved in decision making about them.
The only issue to mention here is that the mother has not applied for a recovery order in respect of V. I consider that this is because it is her view that unless she moves to (omitted), V is likely to keep running away. I do not accept that she has taken that decision because of a lack of interest in V and she knew the trial was coming up fairly shortly.
I must consider the likely effect of any change in the children's circumstances.
If the children commence spending time with the father that will be a really big change for them. The youngest two children do not even know him.
The children may adapt to that change if the father has the capacity to provide for their needs and is not a violent person and they are not exposed to family violence or a negative view of the mother while they are with him but I am yet to make findings about those matters so I cannot be sure at the moment of the effect on the children of the change the father proposes.
However X is opposed to seeing the father and W is ambivalent.
It was the family report writer's view that any reintroduction of the three younger children to the father should only occur in the context of family therapy.
In relation to the likely effect on V of commencing to spend time with the father and also on W because that was a serious proposal although the father wants to see all the children, that again, is a complex issue.
If the father can do some father things with V and W such as fishing and camping it may be of benefit. Spending time with their father will also keep them in touch with the paternal family if they move to (omitted). Whether it would be a beneficial outcome for W and V however will depend on other findings I make about capacity, family violence and so on and I cannot make any findings at the moment about the likely effect of a change of arrangements on these children.
I must consider the practical difficulty and expense of the children spending time with a parent.
That is not really relevant. The mother will be living in (omitted) but it is only 145 kilometres from (omitted), so regular time can be organised even if the mother lives in (omitted) and the father remains in (omitted).
The father suggested during cross-examination that he might also move to (omitted) but it does not seem to me that this is highly likely to happen; the father is working for his brother in (omitted). However even if the father is in (omitted) and the mother is in (omitted) the children can still see the father if that is considered appropriate.
I must consider the capacity of each parent to provide for the needs of the children.
This is a very important issue in this case and I am going to start with the father because he is the applicant.
It was the father’s case that he had a good capacity to provide for the children’s needs but I do not accept that this is correct.
First, the mother gave some evidence about the effect on the children of spending time with the father immediately after separation:
From approximately July 2013 to September 2013, Mr Rogers and I were having discussions through our solicitors for him to spend time with the children. Although some agreements were reached, Mr Rogers would constantly breach these agreements and there were lots of times when he would fail to pick the children up. On some occasions when he did pick up the children, he would just ring me a couple of hours later and say: “Come pick them up slut, I don’t want them.”
Whenever the children returned from visits with Mr Rogers, they would return in an agitated and traumatised state. In addition when the children returned home, they would not eat because Mr Rogers had been telling them that I was trying to poison them. The children would also become uncontrollable after spending time with Mr Rogers and would swear at me and call me a ‘dog’. I verily believe that Mr Rogers had been denigrating me in front of the children whenever they spent time with him and had encouraged them to do the same. In addition, I verily believe that Mr Rogers had also been encouraging V to swear at his teachers and assault other children at the school.[8]
[8] The Mother’s Affidavit, paragraph 43-44.
I accept the mother's evidence set out above because I found her generally a witness of credit, so I am not necessarily convinced, even in broad general terms, that the father has capacity to provide for the needs of the children.
There are other issues to do with the father which raise a concern. One that does not appear to be a current issue is that he has a long history of using cannabis. He has a conviction in 2011 or thereabouts for a drug-related offence or offences but there was no allegation that cannabis use was currently a problem for him.
The father has a long history of having issues with alcohol. Alcohol use has been part of the scenario in relation to his violent offences since he started committing violent offences and this has continued right to the present date. Both the father and Ms N admitted that the father was not sober when the November 2014 incident occurred. There was no evidence that the father had beaten his alcohol problem.
The father’s brother Mr A and Mr A's partner Ms T said that he had, but they also admitted that they did not socialise with him and on their evidence, they do not drink and do not go to pubs and clubs, so they cannot provide any evidence that the father has beaten his alcohol problem.
Another concern about the father's parenting capacity is that he has a long history of violent offending.
I will come to the issue of family violence as a discrete issue in a later section of the judgment but the father also has a long history of violent offending outside of that and one of the problems in relation to that - and it is a problem in relation to the family violence as well - is that he accepts absolutely zero responsibility for his actions.
The mother's counsel tendered some pre-sentence reports. One was from 2004 and one was quite recent about ten years later. In both reports it was noted the father attributed blame to others for what had occurred.
In August 2015 the father was sentenced to 12 months' imprisonment, suspended, for the November 2014 incident in which he followed another driver and abused and threatened a member of his family.
The Local Court Magistrate obviously thought it was sufficiently serious to impose this sentence but the father referred to the incident at paragraph 75 of his affidavit without a skerrick of recognition of culpability by him for it.
Nowhere in the father’s evidence did he suggest that he had done anything wrong and his brother Mr A suggested during cross-examination that the father had been picked on because of his history. The father, supported by his family, is simply failing to accept responsibility for his actions and that is gravely concerning.
Part of the concern is the sort of role model it makes him for his children. Another concern is what it says about the likelihood of him committing further offences of that nature or of a similar nature in the future.
The family report writer expressed the opinion that the father had stabilised his behaviour since late 2013 but that is clearly not correct given the offence in November 2014.
The father's brother said that the father had matured but I cannot place any weight on that opinion when the father's brother does not accept that the father has been violent to the mother.
The father is living with Ms N and there was no evidence that there was any problem with her parenting capacity. She has two young children. However Ms N has been posting pictures on Facebook containing messages referrable to the mother that are singularly offensive and I do not accept the submission by the father’s counsel that this is simply something that happens in a lot of cases. It does not. They are singularly offensive messages.
One is a picture of a Kathy Bates figure holding an extremely large knife with a caption under it, "We all know a person like Ms Mooney," which was posted only weeks before the commencement of this trial.
There is an ultrasound photo with a comment which was posted about ten days after the twins were born which is highly offensive. There are also numerous posts from Father's Rights websites suggesting that the mother is preventing the father spending time with his children for purposes of her own.
I accept that there is no evidence that the father is aware of these posts even though the posts appear on a webpage which has both the father and Ms N's name on it. However in my view the content of those posts has to be indicative of the father's own views of the mother or Ms N would not be doing this on a Facebook page with her and the father's name on it.
Ms N is very much under the father's control. Her evidence about what happened on the day of the November 2014 incident was, "He said drive, so I did."
The Facebook posts suggest that Ms N buys into the father's story that he is a victim of his poor reputation in (omitted) and that the mother is lying about the family violence and that he is not guilty of any poor conduct himself and if that is Ms N's view of the mother then she is not in a position to provide appropriate care for these children if they are in the father's home.
The mother is properly feeding and clothing the children. She has eight children now so she certainly has her hands full and I expect money is tight. However the positive things about the mother are that she does not drink, she does not use drugs and there is no evidence that she has ever committed any acts of violence.
If there is a criticism to be made of the mother it is that she allowed her children to be exposed to a domestic violence situation for far too long but she has been doing some domestic violence counselling and she is certainly not the first person to have found herself in that situation.
There is no evidence that there is family violence in the mother’s current relationship but anyone who has been in a family violence relationship for that long is at risk of getting into another one, so it is really good that the mother has been doing family violence counselling.
I must consider any family violence committed by a party or a member of a party’s family.
I am satisfied that the father committed repeated acts of family violence during the relationship. I also have no reason to doubt the mother's evidence of occasional violence to the children that she described. The father was affected by alcohol on at least some of the occasions when he committed serious acts of family violence. As a result of the family violence the mother has been injured and although not seriously that is more due to good luck than good management. The children could have been injured.
The father made minimal admissions about the violence. He only made admissions about the siege incident because he was arrested, charged and found guilty of offences arising out of it although I note that after he was found guilty he appealed against his conviction and his sentence. The conviction was confirmed although the sentence was varied.
In the father's affidavit, in relation to every single one of the convictions he has for violence, in relation to the convictions arising out of the siege incident and in relation to the November 2014 incident, there is not a single word of explanation, apology, remorse or insight.
In cross-examination (although not in his affidavit) the father blamed the mother for the siege incident starting. He said she terrorised him. She had been home for an hour prior to the incident with a two day old baby. He said she terrorised him so a siege occurred which continued until 11 o’clock that night.
The father suggested to the family report writer that the mother was violent to him, which is clearly false because he did not run that argument at trial. He accepts no responsibility for his actions and that is consistent with the presentence reports about his violent offending outside a domestic situation.
The fact that the father accepts no responsibility and expresses no remorse and shows no empathy for the mother has several implications in this matter.
First, it means that he is an appalling role model for his children.
Second, it is likely to cause extreme psychological confusion for children to spend time with him when they have experienced, as they told the family report writer a couple of them at least, about this violence and yet the father makes no admissions about it.
Third, because the father makes no admissions about his culpability for violence and expresses no remorse or insight, there is a much higher risk than normal that he may be violent again, especially if he is drinking.
The family violence allegations and the findings that I have made about family violence have numerous implications in this matter and they raise a considerable concern about whether there is a benefit to the children in spending time with the father.
One of the other problems in this matter is that the father's family are either covering up for him or do not want to know. I consider it unbelievable that his sister-in-law has no knowledge of the siege incident. (omitted) is a small town and the Rogers family are a close family. I do not accept that Ms T does not know about it but she refused to admit that she did and Mr A straight out said he did not believe that the father had been violent to the mother.
So the family violence has numerous implications. It has implications because it occurred. The mother was injured. The children were exposed to it. The children were victims of it on a few isolated occasions. The father makes no admissions about it. He accepts no responsibility for it and that in turn has implications for the matter.
The other concern in the matter is this. The father's two oldest children both have problems with violence. That is described in the school records.
W has autism and that could be a reason for his violence. However the children were exposed to the father's violent behaviour throughout their lives until 2013. I cannot rule out the possibility that part of the reason for their behaviour is what they have been exposed to. The family report writer made a comment about that as well. She said about V "He has learnt about problem solving from the people around him."
If violence is modelled to children then that is the sort of behaviour children copy.
I cannot make any definitive findings about where the older children's violence is coming from but there is a real possibility that it is the result of seeing their father behave in this way when he becomes frustrated and upset.
During cross-examination the family report writer gave evidence about other effects on children of having been exposed to family violence; about how children who have been exposed to it can suffer from depression and anxiety, can copy violent behaviour; can turn against the victim and can form bad relationships when they get older.
I must consider the children's maturity, sex and background.
Z and Y are very young and do not know their father. As the family report writer said if any attempt was made to reintroduce them to the father it should be done in a therapeutic setting.

V has been unsettled since separation. He ran away to the father in October 2013, went back to the mother a month or so later, ran away in February 2014, went back and ran way in June/July and went back. In November 2014 he ran away to the paternal grandmother, stayed away for a month, went back to the mother and then two weeks into the 2016 school term ran away again and remains with the paternal grandmother.
V has some problems of long standing. In a document prepared by the school headed Risk Management Plan for V and dated 1 February 2015, V is referred to as a complex young man in a complex family setting. [9]
[9] Exhibit X
It is noted in that document that V has had frequent suspensions since year 4 for aggressive behaviour and continued disobedience; is embarrassed about having a brother in special needs class; has low self-esteem and low academic ability; and exhibits extreme anger resulting in physical violent outburst towards staff and other students.
V is a child who is in trouble. Whether anyone will be able to pull him out of the trouble I do not know but he is a child in trouble and the post-separation issues would not have helped; the mother re-partnering almost immediately and another three children being born.
The other child with special needs is W who has a diagnosis of autism. He is also having difficulties at school.
The father admitted that he knew nothing about autism, as did Ms N. The family report writer pointed out that in appropriate circumstances they could learn about it if they wished but it is concerning that the father has not taken the trouble to learn anything about it up till now given that he has come to this court asking for orders that W spend time with him.
If there are any family violence orders I must consider the conclusions that can be drawn from those orders.
There have been several family violence orders going back to 2011. The last order expired in November 2015. In December 2015 the mother filed a further application but the father is defending it and it was unresolved at the time of the hearing.
I must consider the parties' attitudes to the children and the responsibilities of parenthood.
The father has shown a poor attitude to the duties and responsibilities of parenthood.
I am concerned about the father’s refusal to agree to the mother moving to (omitted). He said in his affidavit that his partner was from (omitted) and that he and his partner had been spending nearly every weekend in (omitted). He did not explain why the mother should not be able to live there and then he went into the witness box and said that he did not oppose the mother relocating after the matter had been in court for eighteen months.
The mother told the solicitor for the Independent Children’s Lawyer in cross-examination that she did not see any benefit in the children having a relationship with the father. In some cases that might reflect poorly on the mother and it was certainly the father's case that the mother was denying him time with the children for no good reason. It is a matter for me of course if I do exactly what the mother wants about time but I do not accept that she is mindlessly denying the father time with the children for no reason.
I consider that the mother has a valid reason for being concerned about the children spending time with the father. I accept that she believes that she is acting protectively of the children in opposing time.
I must consider whether I should make the order least likely to lead to further proceedings.
That is always a very difficult one. A spend time with order for any of the children could easily lead to further proceedings if the children do not cope. However a no time order for all the children, including V, could also lead to further proceedings especially if V does not accept that.
I must consider any other relevant matter.
A relevant matter is the conspicuous lack of support the paternal family have offered to the mother since separation.
The mother was left with five children. They are this family's nieces, nephews and grandchildren. At the father's behest the paternal family have fallen in behind the father and have rejected the mother and the children. Mr A has gone out in the night to follow a car and to check up on the mother. The paternal grandmother has supported V in remaining away from the mother and has made no proposal for him to spend time with the mother.
The paternal family, who must have knowledge of the father's history of violent offending and the 2011 incident even if they do not accept anything else, have fallen in behind the father and rejected the mother and the children.
I do not accept that the mother has a blanket view that the children should not see the paternal family. That was the position put to me in submissions by the Solicitor Advocate for the Independent Children’s Lawyer but I do not accept that it is that black and white. I referred to a passage I had noted in my bench book where the mother said that she felt that the paternal family had rejected her and felt some loss at not being able to mix with people she had previously mixed with.
I have concerns about the attitude of Mr A and Ms T in this matter. Mr A said that he did not accept that the father had ever been violent to the mother. Ms T, who has known the mother for more than a decade, professed to have no knowledge of the siege incident and when asked about her work as a (occupation omitted) at the (employer omitted) she was initially resistant to answering the question and said "What has my work got to do with it?"
There is a real possibility of a negative impact on these children if they spend time with the paternal family who all simply accept the father's version of events that he is the victim in this matter and not the perpetrator of violence and that the mother is mindlessly and unreasonably refusing to allow him to spend time with the children.
I then have to turn to the primary considerations which are the benefit to the children of having a meaningful relationship with each of their parents and the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
S.60CC (2A) says that I have to prioritise the second consideration, in other words the need to protect the children, over the first.
If the children live with their mother and spend no time with the father they will not have a meaningful relationship with the father. However they may not have a meaningful relationship with him, in other words a relationship which is significant, valuable and important to them,[10] if they spend time with him and he is in denial about having committed acts of family violence, he does not respect and indeed denigrates the mother and he does not accept responsibility for his actions.
[10] Mazorski & Albright
A relationship with the father in those circumstances would be detrimental to the children, not valuable to them.
I have to consider the risk of the children being exposed to family violence in the father's care.
The high point of the father's case in that regard was that there was no evidence of any violence in his relationship with Ms N, so from the father's perspective, that risk simply did not exist.
There might not be a risk to the children of exposure to family violence, if the father is not violent in his relationship with Ms N but there is a risk of them being exposed to violence because of what happened in November 2014. The definition of family violence includes behaviour which causes a family member to be fearful.
There is always a risk of this man simply exploding and losing his temper and behaving in a violent way and the father has not ever let the presence of children deter him from acting in a violent way. The eldest four were exposed to the siege incident, although Y was only two days old. The father was completely and utterly out of control on that occasion.
The father was also out of control during the November 2014 incident, which was not an incident of family violence but was an incident of violence. He led himself into trouble. He was unable to stop himself and in my view there is a risk of these children being exposed to family violence and in a wider sense to violence if they spend time with the father. Given the father's convictions he cannot possibly deny that there is that risk.
The issue is whether there is an unacceptable risk; in other words, whether the risk is worth taking, given other issues in the case.
The high point of the father’s case was that there had only been one incident of violence since separation, the one in November 2014.
The Independent Children’s Lawyer's position, given the orders that were tendered to me, was that there was an unacceptable risk of the children being exposed to violence if they spent time with the father on their own with nobody else present. The Independent Children’s Lawyer proposed that the two older children spend time with the father under the auspices of the paternal uncle and his partner.
I agree that there is an unacceptable risk of these children being exposed to family violence in the sole care of the father, although there has only been the one incident in November 2014 and that not family violence. Although there has only been that, even one further incident like that would be one too many and given the mother's descriptions of some of the incidents and what happened during the siege and what happened during November 2014, if there is another incident of violence, it is likely to be one that is quite severe and that involves alcohol.
In my view there is an unacceptable risk of the children being exposed to violence if they spend time with the father without somebody else being present.

The family report

The family report writer recommended that the children live with the mother and that V and W spend time with the father on the first weekend of each month, overnight Saturday to Sunday, with Mr A and Ms T to be present on the first four occasions. She also recommended that these children have telephone communication with the father and otherwise spend time with him as agreed. She recommended that the matter as a whole be reconsidered in nine months.
There are some serious problems with the family report however and it is not the family report writer's fault.
The family report writer came to her conclusion and formed her views on the basis of finding that the father presented to her as friendly and appeared to be candid. But he was not candid. He did not tell her about the November 2014 incident. The family report writer was also misled by the father's claims that the mother was violent during the relationship. That is very clear if you have a look at paragraphs 89 and 91 and also 93 of the report.
In paragraph 91 of her report she said as follows:
It is difficult to assess the extent to which the family violence was part of the dynamic between Mr Rogers and Ms Mooney that became a feature of that situation in which they found themselves. Alternatively, it may be an entrenched pattern of behaviour for both of them, which could be generalised across different circumstances.[11]
[11] Family Report paragraph 91
She also said:
It is likely that both parties have understated their participation in hostilities.[12]
[12] Family Report paragraph 93
The evidence before me does not support such findings.
Given that the father was untruthful to the family report writer about the mother's participation in the violence, an untruth which he did not seek to continue during the hearing, the family report writer was misled about the situation in the relationship and as a result it undermines her recommendations.
The family report writer also commented that she felt that the father had changed. She said that:
Mr Rogers appears to have stabilised his behaviour in the past 18 months -
which would take it back to late 2013. [13]
[13] Family Report paragraph 92
That is simply not correct. We know about the November 2014 incident. The family report writer did not.
There are some other problems with the report. The family report writer suggested that Ms T would be a force for good as she had training in relation to domestic violence. However Ms T said in cross-examination that she knew nothing of the father being violent to the mother and even said that she knew nothing of the siege. She is not in a position to be protective of the children if that is her state of belief and Mr A also does not accept the father was violent to the mother.
The family report writer did say in cross-examination that if the court was satisfied that there had been serious family violence and that the father had shown no empathy and no remorse, then it may be a situation where he would be a token father and would perhaps see the children once a year.

Parental responsibility

The presumption in s.61DA of the Family Law Act does not apply because of the violence and I intend to make an order that the mother have sole parental responsibility for the four younger children. I will consider the appropriate order about V after determining where V should live.

Conclusion

These children, the whole five of them, need peace after years of exposure to family violence while the parents were together.
The mother has had two short term post-separation relationships. She now has three additional children and so has eight children altogether. But the mother has no issues with alcohol, no issues with drugs and no mental health issues. The children or at least the youngest four all relate well to her. They want to live with her. She is coping. She accesses supports when necessary.
The mother’s current relationship appears stable and it is not a violent one and there is absolutely no doubt and the father did not contest this, that the four younger children should live with the mother.
The only issue that remains then is what should happen with V.
As previously noted, in an ideal world I would have more information about V but even if I did, what other option is there than for me to order that he lives with the mother?
The father suggested that I make no order about V but I could not remotely consider doing that. It would result in V living with the father and the father is an appalling role model. He may commit further acts of violence. He is hostile to the mother so V living with him could alienate V from the mother. I would be condemning V to an exceptionally poor future if I allowed that to occur.
I cannot order that V live with the paternal grandmother even if I was enthused about it because she is not a party and has not sought to be joined and in any event to do that would very likely be to make a de facto order that V live with the father.
At present V is saying that he does not want to live with the mother. The mother has confidence she can turn that around. That confidence could be misplaced but I cannot order that V live with the paternal grandmother, I certainly cannot order that he live with the father and I cannot make no order about him.
V is currently cut off from his siblings and his mother and the only order I can make is that V live with the mother.
I will give the mother a chance to see if she can turn the situation around. It may not work. I hope for V's sake, from the bottom of my heart, that it does because he has got a bleak future if he remains in (omitted) separated from the mother but I cannot work miracles.
I intend to order that V lives with the mother and the Independent Children’s Lawyer supported that.
In those circumstances I will order that the mother also has sole parental responsibility for V.
The remaining issue is whether any order should be made for the children or any of them to spend time with the father.
The father wants time with the children and he proposed that they spend time with him on alternate weekends and during school holidays.
The Independent Children’s Lawyer accepts that there is no benefit to the three younger children in ordering that they spend time with the father and I wholeheartedly concur in that but she did propose that an order be made for V and W spend time with the father on four occasions each year.
I am certainly not prepared, for reasons which I think emerge clearly enough from these reasons, to make orders that any of the children spend time with the father each alternate weekend or during the school holidays but the proposal by the Independent Children’s Lawyer concerning V and W needs to be given proper consideration. It was carefully thought out and good reasons were advanced for it. However although I consider the proposal was carefully thought out and put forward for good reason, I am not going to do as the Independent Children’s Lawyer proposed.
In my view, these are the relevant considerations in this matter.
The father was extremely violent to the mother during the relationship. He accepts no responsibility for his actions. He showed not a shred of remorse or empathy for the mother in his evidence. He has been hostile to her since separation. He still shows a complete lack of respect for her and is hostile to her. He is an appalling role model for his children in accepting no responsibility for his actions and in having that attitude to the mother of his children and there is no sign that his attitude is ever likely to change.
There is also no sign that the risk that he will commit acts of violence has abated given what occurred in November 2014.
The Solicitor Advocate for the Independent Children’s Lawyer submitted that the proposal would ensure that V and W maintained a connection with the paternal family. This is true but the submission by the mother's counsel that this case is about the father's time with the children, not the paternal family’s time with them, has merit. The paternal family could separately bring an application to spend time with the children.
It is true that the Independent Children’s Lawyer's proposal would minimise the risk of V and W being exposed to a violent incident if they spent time with the father but the problem is that the time would be spent in the company of a paternal family who also do not respect the mother, who also do not accept that she was a victim of violence at the father's hands and it would include Ms N, whose Facebook postings make clear that she shares the father's hostility to and beliefs about the mother.
Even if W and V only saw the father four times a year and certainly if any of the children saw him more frequently, there is a serious risk of the children's relationship with the mother being undermined if they spend time with the father, even in the company of the paternal family.
And I go back here to the evidence the mother gave about what happened in late 2013, for example, about the children coming home and saying that the mother was trying to poison them.
Time with the father with the paternal family present may protect the children against any immediate risk of the father engaging in violent conduct and giving way to a violent antisocial impulses but it would not protect the children from being exposed to the father's views of the mother, his denial of violence and the paternal family's and Ms N's views of the mother. It has the risk of causing harm to any of the children: V, W, X, Y or Z.
I also take into account that X does not want to see the father; Z and Y do not know him and W did not express a wish to see him. His view was “sort of” at its highest.
The child who is likely to suffer most if I do what the mother proposes and what I consider is the only order the court can make, that is a no time and no communication order, is V.
V wants to spend time with the father. I accept that. He told the family report writer that in May 2015. He is aware of things the father has done and he has found the father scary but he wants to spend time with him. V may struggle to accept an order of this court that he not be allowed to see the father.

However I cannot bring myself to make an order which will facilitate that occurring when there is a serious risk that if it occurs, V's placement with the mother might be undermined.
I accept that if I make an order for no time and no communication in relation to V it may make the mother's task of integrating V back into her family more difficult because he might grieve over not being able to see the father. The only solution I can suggest to that is that the mother urgently gets V into some counselling in (omitted). The family report writer had made some inquiries about some places where that could occur.
It would be better for V if he could spend a little bit of time with his father but unless and until the father changes his attitude and his belief system and the paternal family and Ms N do the same, the risk to V of spending time with the father is that his relationship with the mother will be undermined; that he might be induced to resist her further; and I simply not prepared to make the order because there is no benefit to V in having a relationship with his father unless his father does change his belief system and his attitude to the mother.
If V does not settle with the mother then it is highly likely the matter will come back to court. I may then need to obtain a more targeted report, targeted just on V and we will have to see what we can do about that. But I cannot bring myself to make an order that V spends time with the father and I do not intend to do it. I also bear in mind that the mother strongly opposes the children seeing the father. He has no respect of her. He expresses no remorse and I am not going to ride roughshod over what she believes is best for her children.

I certify that the preceding two hundred and ninety two (292) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 29 July 2016

[2016] FCCA 1951

4 May 2016

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Legal Concepts

Injunction