Rowlinson & Bradford - [2023] FedCFamC2F 1484

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rowlinson & Bradford [2023] FedCFamC2F 1484

File number(s): NCC 4623 of 2020

Judgment of: JUDGE BETTS

Date of judgment: 20 November 2023

Catchwords: FAMILY LAW – Parenting – two (2) boys aged 9 and 8 living with Mother since separation in September 2020 and spending very limited time with the Father – each parent seeks primary care – consideration of risks and best interest – children to live with Mother and spend time with Father on a limited basis..

Legislation: Family Law Act 1975 (Cth), Pt VII

Cases cited:
Harridge and Anor & Harridge and Anor [2010] FamCA 445

Isles & Nelissen [2022] FedCFamC 1A 97

M & M (1988) FLC 91-979

MRR & GR (2010) FLC 93 – 424

Division: Division 2 Family Law

Number of paragraphs: 224

Date of last submission/s: 3 July 2023

Date of hearing: 27, 28 & 29 September 2022, 16 & 17 February 2023, 3 & 4 April 2023, 3 July 2023

Place: Newcastle

Counsel for the Applicant: Mr Dura

Solicitors for the Applicant: Rossi Simicic Lawyers

Counsel for the Respondent: Mr Mooney

Solicitors for the Respondent: Access Family Law

Counsel for the Independent Children’s Lawyer: Mr Dean

Solicitors for the Independent Children’s Lawyer: Nls Law

ORDERS

NCC 1609 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ROWLINSON

Applicant

AND:
MS BRADFORD

Respondent

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

20 NOVEMBER 2023

THE COURT ORDERS THAT:
PARENTING:
1.All prior parenting Orders and injunctions are discharged.

Parental responsibility:
2.The mother has Sole Parental Responsibility for the decisions relating to the children X born in 2014 and Y born in 2015 (the children). As soon as possible after making any decision in the exercise of her parental responsibility pursuant to this Order, the mother is to notify the father in writing of the decision as well as providing him with any written directions/instructions in the event the father is required to implement any aspect of the decision while the children are in his care.

Children live with mother:
3.The children live with the mother.

Children spend time with father:
4.The children spend time with the father as follows:
Stage 1:
(a)for a period of two (2) months from the date of the Final Orders, the children spend supervised time with the father on one (1) occasion a fortnight for two (2) hours on a day and time available to the father and the B Contact Service or another registered contact service agreed to by the mother. Such time is to occur after school or on the weekend (providing that it does not occur when the children have extra-curricular activities).

Stage 2:
(b)at the expiration of order 4(a) and continuing until the commencement of NSW School Term 2 in 2024 (including during school holiday periods):
(i)the first Sunday of each month from 10am until 5pm supervised by the paternal aunt Ms C at a location determined by Ms C and the father;
(ii)the third Sunday of each month from 10am until 4pm supervised by the paternal aunt Ms C in the Region D area;
(iii)on each of the children’s birthdays for a period of two (2) hours from 4pm until 6pm if the birthdays fall on a day that the father is not already spending time with the children, supervised by Ms C;
(iv)on 24 December 2023 (Christmas Eve) from 10am until 7pm, supervised by Ms C.

In the event that Ms C is unavailable to supervise any of the above visits, then the father’s time is to be supervised by another person as agreed in writing between the parents and failing agreement by a professional supervisor (or organisation) with the father to be responsible for the supervision costs.

Stage 3:
(c)upon the commencement of NSW School Term 2 in 2024, the children spend unsupervised time with the father as follows and PROVIDING THAT the father has satisfied the conditions set out in Order 7:
(i)during school term – each alternate Sunday from 10am until 7pm, commencing the first Sunday in terms 1 and 4; and in term 2 commencing on the Sunday which avoids a clash with Mother’s Day; and in term 3 commencing on the Sunday which aligns with Father’s Day;
(ii)on 24 December 2024 (Christmas Eve) from 10am until 7pm;
(iii)during the end of term 1, end of term 2 and end of term 3 NSW school holiday periods, the father’s weekend time with the children in order 4(c)(i) will be extended such that the children spend time with the father from 5pm Friday until 7pm Sunday on that weekend, providing the children stay at Ms C’s residence overnight or that Ms C stays overnight at the location of the children for that period of time;
(iv)during the end of term 4 NSW school holiday period, order 4(c)(i) is suspended and the children will spend time with the father on the first weekend of the school holidays and then the second weekend of January each year from 5pm Friday until 7pm Sunday, providing the children stay at Ms C’s residence overnight or that Ms C stays overnight at the location of the children for that period of time. The children will also spend time with the father from 10am until 5pm on the last Sunday before school recommences;
(v)on Christmas Day from 3pm until 7pm in even numbered years and from 10am until 7pm in odd numbered years;
(vi)on each of the children’s birthdays, if the birthday falls on a day that the father is not already spending time with the children then from 3pm (or immediately after school if a school day) until 6pm.
(vii)at other times as determined by the mother at her sole discretion;
(viii)for the purposes of Orders 4(c)(iii) and 4(c)(iv), “overnight” is defined as commencing at 7.30pm and concluding at 7.30am.

5.To facilitate the time referred to in Order 4(a) wherein the children spend with the father supervised by the contact service, the following is to occur:
(a)the father is to pay all associated costs with the supervision except for any requested reports;
(b)should either parent seek any reports from the contact service that parent is responsible for payment for those reports requested;
(c)the mother and father shall comply with all intake procedures and policies and follow the reasonable directions of the supervised contact services whilst ever the children spend time with the father at the supervised contact service.

Changeovers:
6.All changeovers to facilitate the time that the children spend with the father will occur as follows:
(a)when it is supervised by the contact service - as directed by that contact service;
(b)When it is supervised by Ms C, she will collect the children from Suburb E McDonalds, F Street, Suburb E or at another place agreed to between she and the mother;
(c)for the purposes of order 4(c)(vi) – at the children’s school/s;
(d)and all other times by the mother delivering the children to the playground at Suburb E McDonalds, F Street, Suburb E and the father collecting the children from the playground at Suburb E McDonalds unless otherwise agreed in writing by the parties;
(e)At any other places as agreed by the parents in writing by either SMS messages or email or other forms of written communication.

Preconditions to the operation of order 7:
7.Order 4(c) is only to operate PROVIDED THAT:
(a)the Father first undertakes a hair strand test for illicit substances and alcohol to cover a period of six (6) months usage. The test is to be conducted by an Australian Workplace Testing Clinic or such other testing organisation/service and such test must show a negative result for all illicit substances and a result for alcohol showing a moderate consumption (or less). This Order provides authority for Australian Workplace Testing Clinic or such other testing organisation/service to provide a copy of the results of the hair strand test directly to the mother’s email address;
(b)there has been no Final AVO made against the father;
(c)the father has not been charged with any criminal offence/s after the date of these orders.

8.If the father fails to meet the requirements of order 7(a), order 7(b) or order 7(c), then his time with the children is to revert to that provided for in order 4(a) unless at her sole discretion the mother otherwise agrees in writing. In the event that the father is charged with any criminal offence/s and subsequently acquitted or the charge/s dismissed or dropped, IT IS NOTED THAT the fact of the acquittal, dismissal or dropping of the charge/s may be sufficient to overcome the rule in Rice & Asplund, depending on the circumstances.

Education and extra-curricular activities
9.At the children’s school the father is at liberty to:
(a)upon the commencement of unsupervised time, attend the events the parents are usually invited to attend and to approach the children and have contact with the children with permission of the school principal.
(b)attend parent/teacher interviews providing that the father attend a separate parent/teacher interview to the mother.
(c)at the commencement of unsupervised time, attend end of year assemblies/concerts and have contact with the children at these events.
(d)only collect the children and remove the children from the school as provided for in these Orders or as agreed in writing with the mother.

10.These Orders authorise any of the schools attended by the children to provide to each of the parents copies of the children’s school reports and school photographs at their own cost and they authorise the schools to include the father on any school App, and to enable him to receive school newsletters and to communicate with the school, teachers, school counsellor and principal and other staff about the progress of the children. To facilitate this, the mother is to provide a copy of these Orders to any school that the children attend.
11.The mother is to provide a copy of these Orders to the children’s extra-curricular activity providers or any sporting association or services that the children may attend from time to time.
12.The father has authority to obtain directly from the extra-curricular activity service or sporting association copies of photographs at his own cost.

Communication:
13.The father is only at liberty to communicate with the mother when he is spending time with the children unsupervised, providing that:
(a)the communication is in relation to the children as a result of any issue that has arisen during the time he is spending with them; and
(b)such communication is to be by SMS message only unless in an emergency in which case it can occur by telephone call.

Contact details:
14.The father is to provide the mother with his residential address, phone number and email address, and advise her of any change of those details within seven (7) days. If the father is not spending time with the children in the Region D area he is to advise the mother in advance in writing as to where he and the children will be located.

Health:
15.The mother will notify the father within seventy-two (72) hours upon any of the children being involved in an accident or serious injury or in an emergency that requires hospitalisation.

G Program:
16.The mother is to do all acts and things to ensure that the children are referred to the G Program with H Centre within seven (7) days of these Orders and the mother shall provide a copy of these Orders to H Centre for that purpose.
17.As soon as a place becomes available in the G Program for the children the mother must facilitate the children attending.

Restraints:
18.The father is restrained and an injunction issues restraining him from:
(a)spending time or communicating with the children except as provided for in these Orders;
(b)communicating with the mother except as provided for in Order 13;
(c)approaching the mother at changeovers;
(d)removing the children from the mother’s care or from the care of any other person or organisation with whom she has placed them, except for the purpose of spending time with the children as provided for in these Orders;
(e)approaching, attending or remaining within one hundred (100) metres of the mother’s home;
(f)approaching, attending or remaining within one hundred (100) metres of the children’s schools – subject to orders 4(c)(vi), 6(c) and 9 herein;
(g)consuming or being in any way affected by alcohol when he is spending time with the children;
(h)consuming, possessing or being in any way affected by illicit drugs when he is spending time with the children.

19.The mother is restrained and an injunction issues restraining her from:
(a)while the children are in her care - consuming alcohol to such extent that she could not lawfully drive a motor vehicle;
(b)while the children are in her care - consuming, possessing or being in any way affected by illicit drugs;
(c)allowing the children to remain in the care of her brother Mr J, unless she or another adult is personally present at all times.

20.Both parents are restrained, and an injunction issues restraining them from:
(a)behaving violently to any other person in the presence or hearing of the children or from knowingly exposing the children to “family violence” as defined in section 4AB of the Family Law Act 1975, a copy of which section is attached to these Orders;
(b)physically disciplining the children;
(c)denigrating the other parent, or a member of the other parent’s household or family, while in the presence or hearing of either child, or permitting the child to remain in the presence or hearing of any other person engaged in such denigration;
(d)discussing with the children, or with any other person in the children’s presence or hearing - these Court proceedings or any family law issues (including the children’s views as to the parenting arrangements);
(e)consuming any illicit substance while the children are spending time with them, or in the twelve (12) hours prior.

Suspension of time:
21.The Father’s time with the children is suspended as follows:
(a)on one occasion each year, if the mother provides fourteen (14) days’ notice by SMS message or email to the father that she intends to take the children on a holiday and in that event she will provide make up time on another occasion for the same period of time on a date nominated by the mother within a month of the children and mother returning from the holiday.
(b)on the Mother’s Day weekend;
(c)on each of the children’s birthdays for a period of two (2) hours from 4pm until 6pm if it falls on a day that the mother is not already spending time with the children.

International travel & passport orders:
22.Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the mother is authorised to apply for and retain a passport for the children without the father’s written consent or approval and without him having to sign any documents.
23.Pursuant to section 65Y of the Family Law Act 1975, the mother is at liberty to travel outside of Australia for holidays with the children without the consent of the father during which visits the father’s time with the children is suspended.
24.At least twenty-eight (28) days prior to overseas travel, the mother is to notify the father by email, at his last known email address, of the dates of departure and return date and the country or countries to which she and the children are travelling.

Costs:
25.Subject to any written waiver from the Legal Aid Commission NSW, within six (6) months of the date of these Orders each parent is to pay one half of the costs of the ICL, fixed in the amount of $8,094.94 (less any contribution fee the parent has already paid). Such payment is to be made to the Legal Aid Commission NSW.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
INTRODUCTION:

These are parenting proceedings arising out of the breakdown of the de facto relationship between Mr Rowlinson (“the Husband”) and Ms Bradford (“the Wife”).
The parties commenced their relationship in 2010 and finally separated on 23 September 2020. The proceedings relate to their two (2) boys:
·X born in 2014, who is presently nine (9) years old; and
·Y born in 2015, who is presently eight (8) years old.
The parents’ relationship was characterised throughout by regular conflict, arguments separations and reconciliations. Each parent perpetrated family violence on occasions although the Husband’s violence was at a higher level and of a coercive nature. Further complicating matters, each parent abused alcohol during the relationship and each parent used illicit drugs.
At separation the Husband assaulted the Wife and broke her mobile phone, as a result of which he was criminally charged and later fined. Police also took out an Apprehended Violence Order (“AVO”) to protect the Wife and the boys. They stayed living in the former matrimonial home in Region D; the Husband moved in with the paternal grandparents in Region K (some 2 hours’ drive away).
The practical effect of the AVO, and subsequent interim Orders of this Court, is that the Husband did not spend any time with the boys from separation until 11 March 2023 – a period of nearly 2 ½ years. His time resumed by consent pursuant to an interim Order, with a requirement that it be professionally supervised. The supervised visits have gone well; the boys clearly missed him.
The Husband seeks that the boys live with him and spend regular time with the Wife on alternate weekends and school holidays as he says that the Wife cannot promote the father/son relationships. In this respect, he points to the Wife’s allegations of physical family violence against him – contending that they have all been confected. He denies ever perpetrating physical violence against the Wife, save for restraining her in order to defend himself. His problem is that she did not confect the allegations; as a general statement he was the violent man she portrays him as. That the Wife too could be volatile and at times violent towards him does not change that fact.
If unsuccessful in changing the boys’ primary care arrangements, the Husband’s “fallback” proposal is that the boys continue to live with the Wife but spend unsupervised time with him graduating to five (5) nights per fortnight and half holidays.
Both the Wife and the Independent Children’s Lawyer (“ICL”) contend that the Husband poses a high risk to the boys essentially by reason of his family violence, his drug and alcohol abuse, and his ongoing negativity towards the Wife and the maternal family which would be damaging and de-stabilising to the boys if he exposed them to it. At the end of the hearing, the ICL proposed that the Husband spend time with the children on a regular, but limited basis. The ICL’s proposal involved a graduating regime, commencing with professionally supervised time, then moving to supervision by his sister and culminating in unsupervised but limited time with his sister to be present during overnight periods. The proposed graduation to unsupervised time is also subject to various proposed safeguards.

Though the Wife had initially pressed for a “no time” order or a “time as agreed” order, she ultimately adopted the ICL’s proposal.
The parenting dispute requires the Court to weigh up multi-faceted risks to the boys. In this respect the Wife has an older son Mr L born in 2003. Now an adult, Mr L was also a victim of the Husband’s family violence and the parental conflict in general. His experiences under the parents’ roof are relevant and require consideration.
There are various other disputed issues, including as to who should have parental responsibility for the boys and whether there should be an injunction prohibiting the Wife from leaving them in the care of her brother Mr J who has a significant criminal history.
Ultimately, for the reasons which follow, I have concluded that the parenting orders should be largely – though not entirely - in accordance with those proposed by the ICL and the Wife. I have also arrived at property orders that I consider to be “just and equitable”.
THE HEARING & MATERIAL RELIED UPON:
At the hearing, Mr Dura of counsel (now Mr Dura SC) appeared for the Husband. Mr Mooney of counsel appeared for the Wife. Mr Dean of counsel appeared for the ICL.
The Husband relied upon:
(a)Case Outline Document filed 23/09/22;
(b)Amended Initiating Application filed 23/09/22;
(c)Husband’s trial affidavit filed 16/09/22;
(d)Husband’s Financial Statement filed 26/09/22;
(e)Affidavit of the Husband’s sister Ms C filed 23/09/22;
(f)Affidavit of the paternal grandmother Ms M filed 23/09/22.
The Wife relied upon:
(a)Case Outline Document filed 23/09/22;
(b)Amended Response filed 06/09/22;
(c)Wife’s trial affidavit filed 06/09/22;
(d)Wife’s ‘response’ affidavit filed 21/09/22;
(e)Wife’s Financial Statement filed 06/09/22. [1]
The ICL relied upon:
(a)Case Outline Document filed 21/09/22;
(b)Family Report prepared by Family Consultant Ms N on 11/10/21; [2]
(c)Updated Family Report by Ms N on 24/03/23. [3]
Numerous exhibits were tendered which will be referred to as relevant.
The parenting hearing commenced on 27 September 2022. Although listed for four (4) days, it was ultimately heard in three (3) tranches:
·27, 28 & 29 September 2022;
·16 & 17 February 2023; and
·3 & 4 April 2023.
At the conclusion of the second tranche (17 February 2023), the Court made interim consent Orders providing (amongst other things) for the Husband to spend professionally supervised time with the children. The parties also consented to attending mediation to try to resolve the property dispute in the meantime.
At the conclusion of the third tranche of the hearing, the parties needed more time to exchange proposals and documents in relation to property issues. The Court made Orders for that to occur promptly, but in the end it took until 3 July at which point judgment was formally reserved in respect of both parenting and property issues.
CHRONOLOGY & RELEVANT FINDINGS OF FACT:
In what follows, statements of fact should be read as findings. I do not propose to recount each and every competing version of events. I have read all of the evidence, including subpoenaed records, and I have had the benefit of seeing and hearing the witnesses give their evidence in the witness box. I am mindful that there are other witnesses the Wife could have called to corroborate her evidence where it conflicts with that of the Husband, particularly Mr L, the maternal grandmother and the parties’ next door neighbours. I am mindful of the Wife’s stated reasons for not calling them, ie. that she did not want to put them through the stress of it. I am also mindful that Police had only limited involvement with the parties and of the decision of the Full Court in Amador & Amador (2009) 43 Fam LR 268.
The parties:
The Husband, a tradesman, was born in 1974 and is presently 49 years old. The Wife, a professional, was born in 1982 and is presently 41 years old.
Prior to commencing their relationship, the Husband had already been in trouble with the law for offences. In 1993, at age 19, he was fined by the Local Court for possession of an illicit substance. In 2007, he was again fined by the Local Court for possession of an illicit substance, and for other offences. In 2007 he was fined by the Local Court for assault. This arose out of some sort of ‘road rage’ event when the Husband was driving his motor vehicle.
The Wife had not been in trouble with the law. She had the primary care of Mr L; her relationship with his father was somewhat acrimonious.
The relationship:
In the period from 2010 to 2012, the Wife had her own rented accommodation in Sydney and the Husband was living with the paternal grandparents. The parties lived together from 2012, initially in rental accommodation and from 2015 in the former matrimonial home.
The relationship was initially a happy one. But it was also volatile from very early on. Both parties used illicit drugs recreationally and both abused alcohol. The Husband also used an illicit substance.
The Husband was moody. He was quick to anger over minor matters and at other times would fly into a rage, physically standing over the Wife, verbally abusing her and sometimes pushing or shoving her around, pulling her hair or breaking things. He also perpetrated some high level physical violence against her to which I will turn later. When he was angry, his verbal abuse of the Wife could be quite extreme – calling her such things as “putrid cunt”, “stupid slut”, “such a cunt of a thing”, or telling her that he wished her ex-husband (Mr L’s father) had killed her. A few days after such behaviour, the Husband would almost always apologise to her and the relationship would continue.
At other times the Husband adopted a passive-aggressive approach by withdrawing emotionally and giving the Wife the ‘silent treatment’. There were many times when the Wife felt like she was “walking on eggshells” when the Husband was around.
But the Wife too could be moody, verbally abusive towards the Husband and at times physically aggressive – particularly when intoxicated. I reject the Wife’s evidence that she never hit the Husband. On occasions she did push or shove him - often apologising later on. She also punched him on a few occasions.
On a date in 2010 or 2011, while intoxicated, the Wife damaged the Husband’s laptop computer in anger when she thought that the Husband was cheating on her. She later paid for it to be repaired. I reject her evidence that it was ‘accidental’ damage caused by her shutting the computer screen too hard. The Husband accuses her of carving deep scratches into his car at or about the same time. Though she denies doing so, I prefer the Husband’s evidence.
In 2012 while the parties were living in Sydney, the Wife had a motor vehicle accident. She had been drinking beforehand and the Husband suggests she admitted to him later that she was over the drink driving limit and had had to sort the matter out quickly before she could be apprehended by Police. The Wife admits drinking a glass of wine at lunch before the accident occurred but denies she was over the limit, suggesting that the other driver was at fault and apologised to her afterwards. The Wife had issues with alcohol; I prefer the Husband’s evidence particularly given the Wife’s admission that she had been drinking earlier in the day.
On an evening in early 2012, very serious family violence occurred between the parties. The parties had been out drinking and after they arrived home they got into an argument. The Husband became very angry at the Wife, grabbing her by the arms and shoulders, shaking her and pulling her hair. She got away from him and went to the bedroom shaking and crying, where she then barricaded herself in by putting a ‘tallboy’ against the bedroom door. While the Husband was screaming at her and bashing on the door, the Wife lit up a cigarette and grabbed a knife that she kept in her drawer. (The Husband says she kept the knife under the mattress. The difference does not matter; the fact that the Wife kept a knife in the bedroom at all speaks to the nature of the relationship she had with the Husband. Notwithstanding her own at-times aggressive behaviour towards him, she did physically fear him to some degree. The Husband, in contrast, did not fear her.)
The Wife was sitting on the end of the bed, cigarette in one hand and knife in the other when the Husband barged in. In so doing, he damaging the door. He was screaming at her and shaking her by the shoulders; she stabbed him in the arm with the knife.
I reject the Husband’s evidence that the Wife lunged at him with the knife or that she was actively threatening him with it. I also reject the Wife’s evidence that the stabbing was accidental. Though events no doubt happened very quickly and the Wife was intoxicated at the time, I consider that she did stab the knife at him. She had grabbed the knife to defend herself if necessary; she used it for that purpose. Though a disproportionate response on her part, the Wife did not make any second or repeated attempts to injure the Husband with the knife.
Bleeding, the Husband drove himself to a nearby hospital. He had a jagged wound on his arm. Medical staff cleaned the wound, which required sutures. [4]
Following this event, the parties separated for about six (6) weeks during which time the Husband moved back to live with the paternal grandparents.
Despite the passage of years, it was obvious that the Husband still feels significant angst about this event; in the witness box he said he had been left “scarred for life and never fully recovered”.
In late 2012, at a time when the parties were again separated, the Wife wrote an email to the Husband apologising for her attitudes and behaviours up to that point. Though she claimed in the witness box not to remember this email, I am satisfied that she sent it. The subject of the email was “Sorry” and it relevantly stated:
More than anything in this world I would love to be secure in the knowledge that you love me and we are a team. I would love to know we can live happily ever after, I would love to have a family.
I am not happy with the person I have become. I am not happy with the way I handle my emotions, and I’m not happy with things that have happened that make me feel like this.
I know I am an amazing person inside and could make a great mother and wife one day. I am upset with myself for the way I have treated you. No matter what I may think you are like or what you may have done, there is no excuse for my behaviour. I think that is what hurts the most.
I am sorry for the hurt and issues I have caused. I think there is too much water under the bridge to resurrect our once loving and beautiful relationship. I am sure you carry much resentment and dislike for me to ever get back to what we had. That is what hurts a lot and makes me so disappointed because I did this. I’m sorry.
I will always love you, I’m sorry.
[Ms Bradford] xxx
While the Wife’s email expresses remorse for her actions, it hints at some of the Husband’s actions as well. (“No matter what I think you are like or what you may have done…”). Notably, although the Husband was himself a perpetrator of family violence, no such letter of apology was ever written by him.
The Wife was in fact in pregnant when she wrote this email.
The Wife says that in late 2012, some three (3) weeks or so after her ‘apology’ email, the Husband perpetrated a serious act of family violence against her, following which she miscarried the baby.
The Wife’s evidence is that she and the Husband informed his parents about the pregnancy over dinner. The Wife says that they were happy for her. She says that about three (3) days after, she arrived home to find the Husband drunk and angry. Mr L was away at his father’s home and the Wife says she went into Mr L’s empty room to remove herself from the situation. She says the Husband followed her, shoving her and grabbing at her clothing and that she fell to the ground. He then kicked her in the stomach. She started bleeding a few days later, suffering a miscarriage which required a medical procedure at a nearby hospital.
Subpoenaed documents corroborate the fact of the miscarriage and the procedure in late 2012. There is no question as to these particular matters.
The Husband denied the assault; he also denied any knowledge of the pregnancy.
There are some problems with the Wife’s version. Both the Husband’s sister and the paternal grandmother denied any knowledge of being told about the pregnancy at the family dinner. I accept their evidence; they genuinely did not remember being told about it because they weren’t. Moreover, the Wife was wrong as to the year in question; she said the event occurred in 2011 whereas the subpoenaed records clearly establish that the miscarriage was in 2012.
In the witness box, the Wife changed her evidence about the family dinner; faced with the affidavits of Ms C and the paternal grandmother she said that only the paternal grandfather – who was not on affidavit - had been at the family dinner. But if so, why wouldn’t he have at least told his wife (the paternal grandmother) about it?
Another difficulty for the Wife is that she referred to this event for the first time in her trial affidavit. She had never mentioned it in her Notice of Risk, in earlier affidavit material, or in her Family Report interviews where family violence issues were explored and where family violence was a major plank of her case. The Wife explained the omission by saying that she must have put the event out of her head, as she accepted that the miscarriage was not necessarily caused by the assault.
The Husband denied the event in its totality and suggested that it was an example of the Wife confecting an event that never happened. But the Husband’s version has difficulties as well. The miscarriage certainly did happen and I accept the Wife’s evidence that the Husband was the person who drove her to the hospital for the procedure. I do not accept that the Husband forgot about the miscarriage or that he forgot that he drove her to hospital. Moreover, the Husband did have a propensity for physical violence against the Wife, particularly when intoxicated. He also had the additional angst of recently being stabbed by her.
Weighing the evidence, I do not believe that the Wife confected her evidence. If she was confecting it, then why would she add the extra ‘detail’ about the paternal family having been told about the pregnancy beforehand? The paternal family were ‘hostile’ witnesses likely to be called by the Husband; she could hardly have expected to weave them into a knowingly false narrative and expect them to simply go along with it. In my view, the Wife thought that they would corroborate or at least not dispute the pregnancy announcement.
Ultimately, when weighing up the evidence I consider that the Wife has in fact confused this particular pregnancy announcement with one of her other pregnancies (ie. X and Y.) She is wrong about the paternal family being told about the pregnancy. I am satisfied that the Husband did assault the Wife in the manner that she suggests and that she suffered the miscarriage a few days later. Though the assault may have caused the miscarriage, it is not possible to positively find that it did – which is why the Wife did not mention the event earlier. She should have.
I am satisfied that neither of the parents ever told the paternal family about the pregnancy or the assault. The pregnancy was in its early stages; the parents’ relationship was tenuous at the time and the Husband did assault the Wife. It was an event that neither parent wants to remember.
Another alleged incident of family violence occurred in 2013 when the parents were in City O for a wedding. They had both been drinking and, when they got back to their hotel room, they got into an argument. The Wife went into the next room, which was occupied by the maternal grandmother who had also travelled with them. The Wife says that the Husband came into that room, becoming enraged and grabbing her leather jacket and ripping it into pieces. When it was pointed out to the Wife in the witness box that this would seem to require Herculean strength, she clarified that the jacket was “vinyl” rather than leather. The Husband accepts that they had an argument but denies ripping the jacket. Ultimately I am satisfied that the Husband damaged the jacket but did not rip it to pieces as the Wife suggests.
Further family violence occurred that same year when the parties were on holiday in Country P. The parties were again drinking and I accept the Wife’s evidence that they got into an argument at the hotel in the course of which the Husband grabbed her by the hair and dragged her around the floor, kicking at her and pulling her hair. She was upset and scared, ending up with a bruised and bleeding lip. When she tried to grab her passport from the room safe, he snatched it off her and put it under his pillow before falling asleep. She pretended to be asleep, before retrieving the passport and leaving, whereupon she checked into a different hotel for the night. The Husband found her there the next day, apologised, and the relationship continued on.
The children:
Following X’s birth in 2014, the Wife became his primary carer.
The parents’ relationship remained fractious and dysfunctional. When the maternal grandfather died around 2014, the Wife took a ‘time out’ for a few days, spending that time with her brother Mr J and his girlfriend. Mr J was an illicit drugs user and upon her return to the home the Wife admitted to the Husband that she had used illicit drugs with him during this period.
In 2015, when the Wife was pregnant with Y, the parties purchased their Suburb Q home. Around that time the Wife was diagnosed with a medical condition. This did not help her mood. On one occasion in 2015 she smashed the Husband’s headphones, likely in anger. (He later found them down the side of the bedside table.)
Following Y’s birth in 2015, the Wife became his primary carer as well.
Mr J:
Mr J attended the parties’ home on a few notable occasions in 2015, which fuelled further conflict and tension. On one occasion he came over with his girlfriend and they proceeded to a bedroom where they loudly had sex. The Husband suspected Mr J was using illicit drugs as well. Later on his girlfriend left and Mr J’s wife arrived. The Husband resented having to keep this secret from her.
On another occasion, the Husband arrived home to find the Wife and Mr J using illicit drugs. The Wife later asked him to give Mr J a lift to and from a brothel, which he reluctantly did.
On another occasion, Mr J visited the home with his two (2) children. The Husband was cooking dinner – only to put all the food on his own plate when he finished. Mr J then went downstairs with his children. The Wife asked the Husband why he had only cooked for himself and he told her to “fuck off” before himself going downstairs and threatening Mr J, telling him to “Stand up, I’ll punch you out cunt! Get out the front, come on cunt!” Mr J de-escalated the situation, leaving with his children soon after.
Further violence:
I turn now to another allegation of serious family violence. The Wife deposes that:
89.In around 2016 [Mr Rowlinson] strangled me in the living room. It was late at night and [X] and [Y] were in bed.
90.[Mr Rowlinson]’s anger had been escalating and, he was moody and stomping around. [Mr Rowlinson] just seemed to snap and he put his hands around my neck and started to squeeze. I was terrified that I was going to die.
91.[Mr L] came out of his room while [Mr Rowlinson] was doing this and said “leave her alone”.
92.[Mr L] and I went downstairs and I later rang [Mr Rowlinson]’s mother, I told her what [Mr Rowlinson] had done. I didn’t want to leave [Mr Rowlinson], but I hoped that maybe someone could talk to him about his behaviour. [Mr Rowlinson]’s mother didn’t seem to be too concerned.

The Husband admits there was an argument where Mr L had intervened. But he denies choking the Wife. But while the paternal grandmother’s affidavit denied having any such conversation with the Wife, she did admit in the witness box that she did remember getting a concerning phone call from the Wife at one stage. Though she “did not remember” and “did not believe” the Wife telling her about being choked, she did remember the Wife saying that the Husband was staying in his bedroom and refusing to come out. The paternal grandmother also agreed that, whatever the Wife in fact told her, it was sufficiently serious that the paternal grandmother left her home that same night and drove straight to the parties’ home some 2 hours away. She said she remembered talking to the Husband through the bedroom door, but was unable to get him to come out.
I accept the Wife’s evidence as to the assault and consider that the paternal grandmother’s attendance at the home was a direct response to the Wife’s phone call.
Mr L:
By 2016, Mr L was displaying increasingly defiant behaviour both at home and at school. The parties simply did not have the emotional resources to manage him effectively, particularly given the backdrop of their own toxic relationship, their ongoing mutual abuse of alcohol and their ongoing obligation to care of X and Y who were still both very young.
The Wife was obviously struggling. In late 2016 she confided to her GP that she was “drinking too much”; they discussed reducing her intake, and possible medication and psychological assistance. [5]
Neither party took Mr L’s defiance well. The Wife largely left it to the Husband to act as the disciplinarian who was content to oblige; he resented Mr L’s behaviours.
In late 2016 Mr L went to a venue despite the Wife telling him not to. When she went there to get him to leave, he gave her the middle finger. She then contacted the Husband, who went there to collect him. Mr L was resistant; after attempting to reason with Mr L, the Husband used force to physically drag him to the car kicking and screaming. Mr L protested to such an extent that a third party called Police to report it as a possible abduction. Police later attended the parties’ home and spoke to them all about it; no further action was taken as the parties both told Police about Mr L being disobedient.
The Wife’s affidavit sought to portray the Husband as aggressive to Mr L on this occasion, and to some extent he was. But she had sent him to retrieve Mr L because she couldn’t. Plainly some force was likely to be required. While the Husband was forceful with Mr L I do not consider it amounted to ‘abuse’ or ‘family violence’ as defined in s 4 and s 4AB of the Family Law Act respectively. Even if it did constitute an assault, I do not regard it as a weighty matter in all the circumstances of the case.
In late 2016, a third party made a notification to the NSW child welfare authority as a result of Mr L making some disclosures about what was going on in the family home. According to the notifier, Mr L disclosed being subject to violent and physically abusive parenting from the Husband, while the Wife was standing by and not intervening. Mr L had also witnessed a lot of fighting between them, reporting that the Wife was angry due to her medical condition. I accept that these disclosures reflected Mr L’s life experience. [6]
In response to that notification, a departmental case worker rang the Wife in late 2016 to ask whether she was a victim of family violence in the home and whether she felt safe. The Wife covered for the Husband, talking about Mr L’s challenging behaviours and finishing the call by reiterating that the Husband was “a good, gentle man” and that she, Y and X “are very safe”. [7]
In early 2017 Mr L was suspended from school. Later that day, the home situation finally came to a head:
(a)the Wife was crying in the kitchen and Mr L came out of his room to get himself a cup of water. He saw her there and asked her why she was upset. She told him not to worry and then stepped outside;
(b)the Husband then “had a go” at Mr L, telling him he had made the parents argue, that it was his fault and to go to his room;
(c)Mr L responded by telling the Husband: “Don’t blame it on me, I’m only a 13 year old kid and you’re an adult. Take responsibility”;
(d)the Husband was infuriated by this, storming into Mr L’s room behind him. Mr L asked the Husband what he wanted and the Husband pushed Mr L down onto the bed, causing Mr L to spill some of the water. The Husband asked Mr L “What are you going to do, tell your friends I hit you again?”;
(e)Mr L replied “Bloody oath I am” at which point the Husband grabbed Mr L’s cup off him. Mr L tried to punch the Husband who was able to subdue him by holding his arms tight and pinning him down on the bed. In the ensuing struggle Mr L got a hand free and managed to hit the Husband before again being subdued – this time the Husband grabbing Mr L’s arm and twisting it painfully;
(f)In response to the commotion, the Wife had come into the room and she got between them and told the Husband to get off Mr L;
(g)as the Husband moved away from Mr L, who again picked up his cup. The Husband pushed the Wife aside and grabbed Mr L again, asking if he was “trying to fucking glass me or something, look at the scars […], I’ve already been scarred by a dickhead like you […].” Mr L replied “I don’t really fucking care.” The Husband then left the room; the Wife was crying. [8]
The Husband did not handle things in the orderly way he deposes to, wherein he portrays Mr L as the primary aggressor. Save for the very end of the melee when I accept that the Husband genuinely thought Mr L might hit him with the cup, his actions had been an excessive use of force, constituting both an assault and family violence against Mr L.
It is telling that the Husband ‘snapped’ on this occasion (as he had done previously) and that what made him ‘snap’ this time was Mr L’s statement that he needed to “take responsibility”. Mr L was right and his comment struck a raw nerve.
After this event Mr L moved to Sydney to live with his father. Police took out an AVO to protect him from the Husband. While contending that the AVO application was malicious and false, the Husband ultimately consented to a twelve (12) month AVO without admissions after discussions with the Wife who supported that decision. Despite witnessing violent altercations between the Husband and Mr L, the Wife had not given Police a statement. By the same token she did not want the AVO to be contested as she did not want Mr L cross-examined.
Thereafter, Mr L spent sporadic but infrequent time at the family home.
The parents’ relationship continues to be toxic:
In mid-2017 the Wife saw her GP about her ongoing medical issues, her cigarette use (she was trying to quit), and she again raised the issue of her alcohol use. She admitted drinking half a bottle of wine daily, diluted with ice. She was conscious of her need to cut down, and said she would try to do so – but declined a formal drug and alcohol referral.
On an evening in late 2017 there was another altercation between the parties, this time involving the Police. The Wife was cooking dinner at around 7.00pm and, having unsuccessfully called out to X, she went downstairs looking for him. She found him asleep in the care of the Husband. Both parties had been drinking and an argument ensued in the course of which the Husband was verbally abusive to the Wife, calling her a “fat cunt” and telling her to “go on, fuck off”. She went upstairs and called Police.
Police attended very late that night, or early the next morning. When they spoke to the parties, each of them blamed the other for starting the argument. In her affidavit the Wife deposed that at the time Police arrived she was packing bags and literally “shaking” with fear. I accept the former, but not the latter. According to Police, they:
had to tell both parties to stop arguing.
(emphasis added)
Police observed the Wife to start packing Y into the car to leave. When they asked her if she was planning to leave for the night:
she ignored Police and walked out the front door to put the child in the car.
(emphasis added)
The Wife then came back into the house to get X, at which point Police witnessed the parties start arguing again. The Husband let the Wife wake up X and she then left with him. Before leaving, Police asked the Wife if she felt any fears for her safety and she said she did not. They offered to take out an AVO for her protection, which she declined.
The Wife was more angry than afraid of the Husband that evening, at least when Police were present.
Both parties were continuing to struggle with their mood, exacerbated by their mutual alcohol abuse. For a time the Wife experimented with prescribed medication to help manage her medical condition and she also briefly trialled the use of another prescribed medication to help manage her mood.
By 2018, the parties’ relationship had crumbled to such a degree that the Husband started sleeping in the downstairs area of the house in a lockable room.
In 2018 there was another incident of family violence when the Husband became angry at home, kicking X’s bedroom door with such force that it partially came off its hinges (though the Wife exaggerated somewhat by saying the door was entirely off its hinges). The Husband then went on to ‘trash’ the Wife’s bedroom and some of the house. The Wife annexes various photographs of the mess that he left behind. The Husband denied this event and says that the Wife ‘staged’ the photographs but I accept the Wife’s evidence that these events occurred.
In late 2018 the Husband had another altercation with Mr L who happened to be visiting. The Husband went into Mr L’s room, standing over him, clearly angry and pointing his finger at him. The Wife was in the kitchen at the time and the Husband threw a plastic bottle in her direction which landed in the sink and broke some glasses. This was another act of family violence.
In late 2018 the Wife alleges that the Husband again ‘snapped’, perpetrating serious violence against her including, for the second time, choking her.
The Wife’s evidence is that the Husband was drinking and shouting at the Wife about something. She says that he walked into the bedroom and ripped photos of herself and the children off the wall, as well as pulling flowers out of her vase. According to her:
119.[Mr Rowlinson] then turned and grabbed me by the hair and was flinging me around the lounge room. I landed on the couch and [Mr Rowlinson] pinned me down.
120.I recall that our dog tried to attack [Mr Rowlinson] while [Mr Rowlinson] was assaulting me.
121.I was kicking and trying to fight to get out from under [Mr Rowlinson] and he put his hands around my neck and started squeezing.
122.I was panicking as I could not breathe and it felt like everything in me went “soft”. Everything went black and I briefly blacked out.
123.When I came to I was laying on the lounge on my back. [Mr Rowlinson] was standing at the end of the lounge. [Mr Rowlinson] was still ranting and screaming.
Contained at pages 9 – 12 of annexure “A” are photographs I took of my hair that [Mr Rowlinson] had pulled out and the items thrown by [Mr Rowlinson].
124.A neighbour asked me the next morning if I was okay, as they had heard a lot of noise from our house. I said I was fine but started crying. My neighbour nodded and said:
“If you ever need anything let me know.”
The Husband admitted throwing some flowers on the floor in the course of an argument but denied everything else. He suggested that the photographs of the Wife’s hair were ‘staged’. He also pointed to the absence of any photograph showing either red marks on the Wife’s neck, or redness or blood on her scalp from where the hair was said to have been pulled out.
It is true that the photographs could be ‘staged’. A photograph of the Wife’s scalp showing some blood and obvious inflammation would have been better evidence than the photographs simply showing the hair itself. But I accept the Wife’s evidence that the event occurred as she described, and in my view it was a heinous act of family violence.
On another occasion in 2019 Mr L was again visiting and the parties were having a barbeque. The Husband was drinking and became verbally aggressive to Mr L. Later when the parties were upstairs he threw an object at Mr L which missed and hit the kitchen splashback.
It is apparent that the Husband was struggling to manage his mood, particularly his frustration and anger. Although the Husband denies it, I accept the Wife’s evidence that the parties spoke about his ongoing anger issues and that she told him to get some help. I also accept her evidence that later that day when the parties were sitting on the couch, she discussed whether he had a mental illness, pointing out that he was “so up and down” all the time and that she was worried about him. Although the Husband denies it, I accept the Wife’s evidence that he confided to her “I think I have a mental illness”. There is no medical evidence to suggest that the Husband has a mental illness; the bigger point is that the Husband knew that there was something amiss with his mental health and his anger management.
Unhelpfully, in 2019 the Husband seems to have decided to self-medicate with illicit substances. In combination with alcohol, this was not a good mix. The Husband said that he only used illicit substances a couple of times per week; the Wife said he used essentially every day. The truth is most likely somewhere in the middle.
The Husband’s volatility was on display a few months later when he was at the R Hospital with Y. By way of background, Y had previously passed out at daycare and in late 2019 he underwent a precautionary test at the hospital under general anaesthetic. The Husband was at the hospital with him. Y returned to the ward at around 2.20pm and by 3pm the Husband was wanting to have Y discharged. A nurse advised him that Y needed to stay a little longer given the general anaesthetic but the Husband walked off and instead spoke to the nurse in charge. He was abrupt and degrading with her, leaving with Y shortly afterwards contrary to her recommendations. [9]
In late 2019 the Wife received a promotion at work, increasing her work hours to five (5) days per week. This coincided with the Husband deciding to quit full-time work and drop back to working on a casual basis. The parties agreed at that time for the Husband to take on the role of primary carer - although she still insisted on transporting the children to school herself at times when she considered that the Husband was under the influence of illicit substance.
Later in the year the parties went on a brief holiday to Country S together. I accept the Wife’s evidence that the Husband was generally somewhat agitated and out of sorts during the holiday; this may be because he was unable to maintain his regular illicit substance habit while they were away.
Spiralling towards final separation:
Notwithstanding the change in primary care arrangements, the parties’ relationship remained toxic.
In late 2020 the Husband gave the Wife the ‘silent treatment’ – leaving the home for around three (3) weeks during which time he essentially ‘disappeared’. In the witness box the Husband accepted that he had done so, reasoning that it was due to the Wife’s emotional abuse of him; that nothing he did was ever good enough. Certainly I accept that the parties were regularly arguing; the Wife admits that she disapproved of the Husband’s regular illicit substance use and I have little doubt she told him so. But again the bigger point is that the Husband’s decision to simply ‘disappear’ was itself a form of emotional abuse of the children. It was evident in the witness box that the Husband had not reflected on this; he displayed no empathy whatsoever.
I accept the Wife’s evidence that at one point during this three (3) week period, the Husband and a friend (“Mr U”) came to the house one day, at which point the Husband was verbally abusing her and calling out to the children before ripping an object off the bench and taking it with him on his way out. He threatened the Wife that he was going to tell her work that “you’re stealing money, I’m gonna get you fired!” as well as telling her to “expect a visit from Police”. (This was a reference to the Wife incurring a Centrelink debt as a result of some overpayments, which will be referred to in the context of the property settlement proceedings.)
I accept the Wife’s evidence that in late 2020 when the boys were in the shower, the Husband again threatened to call her work to have her sacked. He accused her of stealing his money and said he would tell Centrelink that she was defrauding them. In the witness box the Husband admitted saying these things to the Wife. Although he said that from his perspective they were merely “idle threats” the Wife certainly did not take them that way. Whatever the Husband’s subjective intentions, his words were threatening and coercive. When the Wife put the children to bed that evening, the Husband said to her “I’ve told both the neighbours you’ve stabbed me, everyone will think you’re mental and will hate you”. In the witness box the Husband again did not dispute saying these things.
The Wife later telephoned the maternal grandmother for some support and, while they were talking, the Husband came up to the Wife and said “if that’s your brother, I’m going to wipe the fucking floor with him. My grandfather was a champion athlete and I trained with him.” The Husband admitted saying these things also, but reasoned that the Wife has threatened him first by saying that Mr J would “sort him out” or words to that effect. Though the Wife denied it, I accept that she had said this to him on a previous occasion, likely in anger after she had been drinking. It was a threat on her part and something the Husband was ruminating over.
In late 2020, the Wife took the boys to sports in the morning. As they were leaving, the Husband came to the front door and said to the children words to the effect “sorry I can’t come boys, I couldn’t stand to be near your mother”. When the Wife and children returned home that day, the Wife saw that the Husband was asleep with beer bottles around him. It was 11.30am. Later that night the Husband came upstairs and said to the Wife “I just told everyone you stabbed me with a knife, I told everyone you’re fucked, I have photos and they know you’re mental”.
Alarmingly, Y showed the Wife a picture that Y had drawn of her. The Wife was depicted as being behind bars (in gaol) and holding a knife. Above the picture was a sarcastic phrase the Husband used to deploy against the Wife on occasions.
The Husband denied putting Y up to doing this drawing, and says he has never seen the drawing himself until he saw a copy of it attached to the Wife’s Affidavit. I reject that evidence and am satisfied that, in his rage and anger at the time, the Husband did put Y up to the drawing. Doing so was both highly emotionally abusive of Y and denigrating of the Wife.
Final separation:
On the evening of late 2020 the Wife was on the balcony smoking cigarettes and drinking wine with her next door neighbour Ms T whilst the Husband was in the garage working on his car. The Husband heard some yelling at the front of the house and went to investigate where he saw a car parked across their driveway with two (2) teenage girls in the back seat and a half empty bottle of alcohol in the centre console. Ms T also came to investigate and, when the Husband told them they had to move the car, the girls said they couldn’t as they were underage and had no licence. The girls instead directed them to two (2) young men standing nearby, one of whom had his shirt off. The Husband told them that they had to move the car whereupon one of the young men physically attacked. A melee ensued, which the Husband got the better of. He was able to subdue the young man on the ground, although Ms T was yelling at him to let the young man go as she said that he was using too much force.

The Wife did not get a good look at the event herself; she suggests that the Husband was aggressive but she only saw a fraction of what happened. I place little weight on her evidence.
Police attended the property the next day but the Husband was at work. Police spoke to the Wife. Later that day, the children saw that the Husband had some facial injuries and X asked him what happened, to which the Husband responded “I got beaten up by a drunk guy in our front yard”. X was taken aback and seemed to be worried and the Wife then told the Husband to stop the conversation as it was inappropriate. The Husband unhelpfully and reactively told her to “just fuck off” which Y then echoed, saying “yeah mum just fuck off”. Unhelpfully, but also reactively the Wife then said to the Husband that “you need to stop [using drugs], or I’ll call the Police” to which the Husband responded, “you wouldn’t…you’re so fat”.
Tempers flaring, the Husband came upstairs looking for some Dettol, and when the Wife told him that there wasn’t any, he said “Great mum you are, I don’t give a fuck about you, you’re done you’re done, you stupid fucking slag”. The Wife asked him to leave and he refused telling her that she was the one who had to leave. He said he had spoken to his family and that his brother would be moving into the home, that they would be living downstairs and his family would be looking after the children while the Husband worked two (2) days a week. He was bluffing; it was nothing but angry bluster.
The Husband went downstairs and the Wife heard some doors slamming before the Husband then drove off in his vehicle. The Husband admitted in the witness box that he left because he could see that the children were upset. No wonder.
After leaving the home, the Husband texted the Wife numerous times, concluding with “fuck with me and I’ll ruin your life”. The Wife became anxious; she did not know what was going to happen when the Husband returned and so she packed some bags for the children and went with them next door. She also called her brother Mr J who said he would try to call the Husband to calm him down. Mr J did so; he later sent the Wife a series of ‘ranting’ text messages the Husband had sent him in response.
The neighbours called the Police but when they had not arrived by around 9.30pm the Wife asked Ms T to come home with her so she could put the children to bed. The Husband was home and he came upstairs. He verbally abused Ms T, calling her “a drunk” and telling her that she was “the lowest form of life, such a dumb cunt.” He also attacked her partner by saying “I earn in one day what your partner earns a week.”
The Wife began filming the Husband on her mobile phone while asking him to leave. The Husband began to walk down the steps but, faced with the Wife’s mobile phone, he then grabbed her wrist and got hold of her phone which he then threw, breaking it.
Although the children were meant to be in their room, they certainly overheard (and perhaps witnessed) some of this physical altercation and they were certainly well aware of the conflict. At one point the Wife heard the children crying “no, no, don’t, don’t!”
Ms T called her partner over and he came and removed the children. The Police arrived soon after and the Husband was removed from the scene and charged with assaulting the Wife and damaging her phone. Police took out a provisional AVO against the Husband for protection of the Wife, X and Y.
Finally, and mercifully, the relationship was at an end. The Husband did not return to live in the home. As it happened the children would not see their father, or receive any birthday or Christmas gifts from him, for about the next two and a half (2 ½) years.
Events leading up to these proceedings:
With the Husband gone from the home, the Wife was able to access his room downstairs. She observed many empty beer cans and bottles, as well as illicit substances and drug paraphernalia. She took photographs of what she says she saw.[10] The Husband again suggested that the photographs were ‘staged’. The Husband queried how the Wife had been able to get into the room which was apparently locked and by that stage she no longer had a key. But I accept the Wife’s evidence that the door was flimsy and she had been able to “jimmy it open” with a screwdriver.
The Wife’s affidavit is however somewhat misleading in that it reads as though the photographs of the beer bottles was taken after separation when in fact the Wife admitted that the photographs were taken before separation in around July 2020. But the photographs were not ‘staged’; they speak for themselves as to his alcohol use at that time. As for the photographs of the illicit substance, these were also genuine.
In late 2020 the AVO protecting the Wife, X and Y was made final for a period of two (2) years. The AVO was cast in broad terms; the Husband was prohibited from going to any place where they lived, including the Suburb Q home.
The Husband made arrangements for the paternal grandmother to attend the home to collect his clothing. The Wife asked for the key to the downstairs room but the paternal grandmother would not give it to her. As a result, the Wife’s attitude towards the paternal grandmother considerably hardened.
Notwithstanding the AVO, the Husband made some attempts to try to continue a relationship with the children. He would call them on the telephone, but at times became emotional or called out to the Wife to speak to her. Sometimes the Wife chimed in to their calls; it was a difficult situation for the boys.
By late 2020 the Mother had created a separate email address for the Husband to message her in relation to the children. She asked him to stop texting her but he continued to do so.
In late 2020 the Husband’s sister Ms C came to the Suburb Q home to collect some of the Husband’s remaining belongings. After she left, the Wife found a plastic bag amongst the Husband’s shelving. In the bag was one of each of her favourite pairs of shoes which had hitherto been missing. Once again the Husband says the photograph was ‘staged’ but I accept the Wife’s evidence and am satisfied that the Husband had been deliberately stowing her shoes away in the leadup to separation - a rather petty, albeit needlessly cruel, form of family violence.
Not long after this, the Wife started regularly seeing a family violence counsellor, Ms V, who worked for the Region D Health Service. Ms V gave the Wife support in relation to her past experiences of family violence, as well as advocating for the Wife in her ongoing dealings with Centrelink concerning her debt.
In late 2020 the paternal grandmother had emergency surgery. Shortly before, the Husband was talking to X on the phone and he told X about the surgery and that both he and the paternal grandmother wanted to see the children on the weekend prior. The Husband became upset, yelling at the Wife “[Ms Bradford], when can I see them? I want them to see her in case she dies.” This upset X who said “Oh I hope grandma will be okay and not die”.
In late 2020 the Husband breached the AVO by driving past the Wife’s home. He claims he did so only because he heard that the Wife was throwing away his property, but accepted that it was no excuse. Moreover, I accept the Wife’s evidence that he also went on to follow her in her car for a short period, for which there is absolutely no excuse. The Husband was charged with breaching the AVO.
Both the Husband and Ms C were regularly messaging the Wife at this stage to try to make arrangements to see X and Y but the Wife was unwilling to facilitate any time. When Ms C asked W Contact Centre to conduct a mediation in order for her to be able to see the boys, the Wife refused to participate.
In late 2020 the Husband pleaded guilty to all of his outstanding offences, as well as the breach of AVO. He received fines and a Community Release Order. He was also fined for breaching his bail conditions, presumably arising from his breach of the AVO.[11]
In late 2020 the Wife telephoned the Husband, suggesting an informal meeting at Suburb Z Hotel to try to sort out their family law issues. Coincidentally, Ms C was with the Husband in his car when she rang and she was able to listen to the Wife on speaker phone. They did in fact meet at the hotel as arranged and Ms C offered to be present, but the Wife declined. Nothing was resolved.
The Wife’s Affidavit refers to the fact that the Husband was texting her regularly in the following days – while at the same time omitting to mention the meeting at the Suburb Z Hotel. Like the photographs of the beer cans in the Husband’s room, this was somewhat misleading because it was obviously relevant background context to the Husband’s messaging.
In late 2020 the Wife referred the Husband’s texts to Police to explore a possible breach of AVO. They noted that he was sending her three (3) to seven (7) messages per day but did not think that he was breaching the AVO.[12]
These proceedings:
In late 2020 the Husband filed these proceedings. He sought that the boys stay living with the Wife and that he spend time with them on alternate weekends and half school holidays.
On Christmas Day 2020 the Wife facilitated a video call between the Husband and the children. The Husband opened the Christmas presents he had bought for the children over the video while wishing them Merry Christmas. At one point he said to them “I should be seeing you but apparently I’m too dangerous” before raising his voice and telling them “It’s because your mum is a psycho nutcase!” At that point the Wife hung up the phone and afterwards the maternal grandmother attempted to distract the children and defuse things by generating a ‘joking’ song with lyrics of “la la nutcase we are all little nutcases la la”.
In early 2021 the Husband complained to Police about the 2012 stabbing event, some nine (9) years after the event. It was ‘tit-for-tat’ in response to his perception that the Wife was trying to use the AVO against him as a sword rather than a shield. In the result Police did not lay any charges.
Obviously ruminating again, some three (3) days, the Husband, unprompted, sent a series of extremely abusive texts to Mr J. They referred to Mr J dealing illicit drugs, including such comments as:
·“Hope you die of a heart attack after all the [drugs] you’ve done in the last 25 years”;
·“Hope that you miss [AA]” (being a reference to Mr J’s son who he was apparently not seeing at the time); and
·“Your mum can’t see your dad [hurt her] in front of her face HAHAHAHAAH! FUCK YOU CUNT”
The latter was a disparaging reference to the maternal grandmother who it is common ground has suffered some vision loss as a result of the late maternal grandfather either accidentally injuring her by using a tool near her face (Wife’s version), or using a more dangerous tool close to her face (Husband’s version). Whichever version is true doesn’t really matter; it was a needlessly cruel and hateful slur - and to some extent ‘unhinged’.
In the witness box the Husband admitted sending the texts. He admitted to his lack of impulse control when angry.
Mr J went to Police after this event, not for the purposes of having the Husband charged, but rather to ensure that his sister (the Wife) was better protected. Police did not charge the Husband with any criminal offences but did take out an AVO against the Husband for Mr J’s protection.
On 16 February 2021 the Wife filed her Response material. She sought interim orders that the children spend no time with the Husband and that he undertake drug testing and CDT testing (somewhat hypocritically given her own alcohol abuse). She also sought that the Husband enrol in an eighteen (18) week course in order to address his anger management issues. On a final basis she sought that the children spend time with him as determined by her and that she have sole parental responsibility.
Perhaps because of the Wife’s proposed order for drug testing, or perhaps because of his own desire to change, the Husband stopped working at his employer around that time as it was a hotbed of illegal drug use (particularly illicit drugs).
On the first return date, 18 February 2021, the Court ordered the Husband to submit to hair strand testing within seven (7) days and that he provide 3.8cm of hair for such testing. An ICL was appointed and the proceedings were adjourned to a date to be advised for a priority interim hearing.
In early 2021 the Husband undertook the hair strand testing although he only provided 3.2cm of head hair which I presume was all that he had at the time. The results were positive for illicit drugs and illicit substances.
The competing interim applications were later listed for interim hearing before a Senior Judicial Registrar at 10am on 25 May 2021.
On 16 March the Husband completed the ‘Parenting after Separation’ course and on 19 March he completed the ‘BB’ course. The Wife facilitated the Husband speaking to the children on his birthday and on X’s birthday but baulked at Ms C’s proposal (via Facebook) that she facilitate the Husband meeting the children at a public place to drop off birthday presents.
On 25 May 2021 the interim hearing was adjourned to 24 August 2021.
Pending the interim hearing, the Husband’s solicitors invited the Wife’s solicitors to nominate professional supervisors to supervise the Husband’s time with the children. The Husband offered to pay the costs of the supervisors as well as inviting the Wife to make any proposals she had to facilitate the children’s relationships with the paternal family – who had not seen the children since separation. The Wife demurred.
In mid-2021 the Husband undertook further hair strand testing, this time providing 5cm of underarm hair. There was no illicit drugs present and only a very low illicit substance level. His subsequent hair strand test of mid-2021 was entirely clean.
In the meantime, the Wife was continuing to use alcohol as a crutch. She told her counsellor about drinking wine at night and feeling like she was starting to rely on it and wanting to address the issue.[13] A few weeks later when she met with her counsellor, the notes record that the session was working on ‘breaking the habit’ of a couple of wines at the end of the day.
On 13 August 2021, frustrated by the Wife stonewalling his proposals for supervised time, the Husband decided to ‘up the ante’ by filing an Amended Initiating Application which sought that the boys live with him and that the Wife spend time with them on alternate weekends. He maintained this formal position all the way through to the final hearing.
On 23 August 2021, the Husband returned a normal CDT test.
Interim Orders of 24 August 2021:
Following an interim hearing on 24 August 2021, the Senior Judicial Registrar ordered (amongst other things) that the Husband have no time and no communication with the children. Both parents were ordered to undertake hair strand testing in respect of illicit drug and alcohol use, with each party to make an appointment with the testing authority within 24 hours and each party to provide no less than 4cm of head hair. The Husband was to meet the costs of the testing in the first instance although the Wife was to reimburse him for her testing costs if she failed to provide the hair sample in accordance with the orders or if she returned a positive illicit drug result or an elevated alcohol reading. There were various other injunctions imposed on the parties, including that the Wife not leave the children in the sole care of her brother Mr J. The Father also was ordered to attend individual counselling for six (6) months, an order that he himself had proposed in an endeavour to show his genuine desire to improve himself.
Neither party attended for the hair strand test in the timeframe required by the order. The Husband attended on 6 September, some 12 days late, but to be fair to him the results were clear and nothing turns on his delay.
On 8 September 2021 the Court ordered the preparation of a Family Report.
The Wife was stonewalling in relation to the hair strand test because in my view she was anxious what the alcohol result might be. She was also anxious about the proceedings in general, preferring to put them at the back of her mind, which also didn’t help. Given her failure to undertake the test, the Husband’s lawyers put the pressure on, writing to her lawyers about it on 1 October 2021.
Family Report:
Ms N conducted the Family Report interviews on 5 October 2021. Despite his criticisms of the Wife in his Court material, the Husband admitted to Ms N that he did not think that the children were at unacceptable risk in her care. Moreover, he said he wasn’t really pursuing an order that the children live primarily with him but would be content that they spend equal time with both parents. He also said he would like equal shared parental responsibility.
The Wife told Ms N that she wanted the Husband’s time with the children to be determined by the Court. The Wife was anxious about the Husband seeing the children and Ms N considered that the children were anxious as well. In the circumstances Ms N did not conduct any direct observations of the Husband with the children.
X told Ms N that he didn’t really know how much time he wanted to spend with the Husband. Y told Ms N that the Father had left the home because the parents were “arguing too much and his father was the loudest”, but he felt sad when the Husband left and was worried and sad that he may not see him again.
The Family Report was finalised on 11 October 2021 and released by the Court on 13 October. Ms N recommended, inter alia, that the Wife have sole parental responsibility for the children, that they continue living with her, and that:
127. If the Court finds it is in the children’s best interests to spend time with the father then it is recommended this be facilitated by a professional supervisor on six occasions per year around special events/occasions such as family birthdays and Christmas.
128. It is recommended that a restraint be placed on the parties allowing the children to be left alone with [Mr J].
In the meantime the Husband’s solicitors continued to pressure the Wife in relation to her hair strand test. Generously, the Husband even offered to pay for the Wife to have 8cm of hair tested in order to compensate for the delay.
The Wife finally undertook the hair strand test on 5 November, some 72 days late. The results were clear for illicit drugs but, despite the significant delay, her alcohol consumption was still at the upper end of the moderate range.
Over the ensuing couple of months, the Husband’s solicitors continued to write to the Wife’s solicitors asking that she agree to providing a longer hair sample. She did not offer any substantive reply beyond asserting that the Husband could raise the matter at the final hearing.
Leadup to the final hearing:
Y began to experience medical issues and was referred to a paediatrician for review. On 17 February 2022 the paediatrician reported that anxiety was either a causative or at least a contributing factor given the breakdown of the family unit.
The Husband was being counselled by a clinical psychologist, Ms CC, in relation to mental health and family law issues. On 1 March 2022 an Order was made by consent that the Family Report be released to Ms CC on her undertaking not to disseminate it.
In mid-2022 Ms C, her husband and their children turned up at the Wife’s home for an unannounced visit with the boys; the paternal grandmother was also with them. The Wife was somewhat shocked by their arrival but agreed to Ms C, her husband and children coming inside the house but not the paternal grandmother. The visit was brief.
Each party subsequently undertook further hair strand testing which was clear. The Wife undertook the test in mid-2022 which produced low to moderate alcohol results and nil illicit drugs. The Husband’s hair strand test of late 2022 was entirely clear.[14]
Interim consent orders of 17 February 2023:

The interim orders made by consent at the conclusion of the second tranche of the hearing on 17 February 2023 represented a significant de-escalation of the parenting dispute.
Pursuant to the orders, the Husband was to spend time with the boys for two (2) hours per fortnight, professionally supervised by ‘B Contact Centre’. He was restrained from discussing the family law proceedings with the boys, questioning them about the Wife’s living circumstances or approaching or contacting the Wife at changeover or directly after visits. The children were to be enrolled in the G Program. The Husband was authorised to obtain school reports and photographs. The Family Report was to be updated (to include observations of the children with the Husband) and the ICL was to let the children know that they would be seeing the Husband again.
From the boys’ perspective, the orders were an enormous step in the right direction.
Supervised visits:
The first supervised visit took place on 11 March 2023 from 9.30am to 11.30am at Suburb DD. Both boys were nervous but very happy to see their father. The Husband did say a few regrettable things, such as saying that he had not seen them for “870 days” and asking if his boat (which was still at the Suburb Q home) was okay “as it had not been covered for the last two years”. But to be fair to the Husband, these were minor matters in the grand scheme of the day. The Husband and children clearly enjoyed each other’s company. At one stage X saw a gaming app on the Husband’s phone and invited the Husband to say “hi” to him in the game, which was a way of reaching out to the Husband for further contact. X was disappointed when the visit was ending and was keen to see the Husband again soon. Y called out to X “Never use the code that we said we would make us have to go away from dad.” The ‘code’ is unknown; the bigger point is that the children wanted to have no obstructions in their relationship with the Husband.
The second visit occurred on Monday 20 March 2023 at a Suburb Q venue. It was again a very positive visit. Y in particular wanted to know the Husband’s address so that when he got his driver’s licence he could drive over and see him whenever he wanted. He even asked if he could ever live with the Husband, though he sounded a bit flat at the time. As the visit was coming to an end, X seemed to be somewhat anxious and a little flat. Y asked X who he wanted to live with and X said he wouldn’t want mummy to be hurt and the supervisor reassured them that they did not have to make a choice. At the end of the visit, both boys were obviously excited about seeing the Husband again soon.[15]
On 24 March 2023 Ms N conducted her observation of the Husband and the children together. The Husband told her that everything had “turned around” since he saw the children on a supervised basis and that the children were happy to see him. Importantly, the Wife also presented as upbeat and supportive of the children spending time with the Husband.
The boys were much more relaxed than previously observed and they happily engaged with the Husband throughout. The session lasted thirty (30) minutes but the boys would have happily spent longer time with the Husband if it was available. The boys told Ms N that the recent supervised visits had gone very well. Asked to elaborate, X said “just everything – we finally get to see him” and Y said he had been nervous for a few weeks about seeing the Husband again but that “it has been very good actually”.
At the conclusion of the session X told Ms N that he would “love to keep seeing dad” and Y agreed. X said he wanted to see the Husband for two (2) hours every week rather than every fortnight. Y agreed.
Ms N’s addendum report offered the following updated opinions and recommendations:
18. The father demonstrated a child focused approach throughout the session and was warm and engaged with the children. It should be noted, however, that the observation session was for a limited period of time in a contained and controlled environment.
19. The observation session demonstrated the mother is willing and able to support the children to have a relationship with their father in the context of a supervised session.
20. Given the children wish to continue to spend time with the father and given the observation demonstrated the children felt happy after spending time with their father, it is likely to be of benefit for the children to continue to spend time with the father. Whether that time should be supervised or unsupervised would depend on whether the Court found that supervision was necessary to mitigate any unacceptable risk in relation to the father.
On 1 April 2023, ‘B Contact Centre’ conducted another supervised visit - this time at a Suburb Z venue. Despite heavy rain the Husband and children again had a good time together. The only negative was that the Husband asked the boys about one of their old toys and the boys told them it no longer worked because the Wife had been “too lazy to put batteries in it”. Helpfully, the Husband did not affirm their criticism of the Wife in any way; he merely raised his eyebrows at the supervisor which was a good response on his part.
THE LAW
Parenting proceedings such as these are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Pursuant to s 60CA of the Act, the Court must make parenting orders which are in the ‘best interests’ of the child/ren concerned. In arriving at a ‘best interests’ determination, s 60CC of the Act prescribes ‘primary’ and ‘additional’ considerations to which the Court must have regard:
Primary considerations
(2)       The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both 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.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)       Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)       the nature of the relationship of the child with:
(i)        each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)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;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)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
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)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;
(f)       the capacity of:
(i)        each of the child’s parents; and
(ii)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;
(g)the maturity, sex, lifestyle and background (including 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 are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
Section 60CC(2)(b) and s 60CC(2A) clearly highlight the need to assess and prioritise risks to children. In M & M (1988) FLC 91-979, the High Court of Australia held that a parenting order cannot be made if it exposes a child to an ‘unacceptable risk’ of harm. Though the Act is now worded somewhat differently, the ‘unacceptable risk’ test remains good law. Determining whether or not a risk is ‘unacceptable’ requires the Court to consider both the likelihood and magnitude of future risks. It is not a discretionary assessment but an evidence-based conclusion. [16]
In the unreported decision of Harridge and Anor & Harridge and Anor [2010] FamCA 445, Murphy J helpfully reviewed a number of relevant authorities relating to ‘unacceptable risk’, observing that the question of unacceptable risk directs Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, the facts could be said to raise an unacceptable risk of harm to the child.
Murphy J said it was extremely important in a parenting case to identify the nature of the risk or risks said to be present and how, and the extent to which, the identified risk or risks are said to impact on orders reflecting best interests. His Honour went on to observe that:
71.Frequently (I would venture, too frequently) “risk” is referred to as an all-embracing term, a “general” finding of which can (purportedly) be seen to have some form of “ipso facto consequences” for the orders made. Yet, “risk” is, without more, but a convenient description; orders must, surely, address its constituent components which must, axiomatically, vary according to the circumstances of each case.
Pursuant to s 68B of the Act, the Court may impose injunctions where ‘appropriate’ for the child’s welfare. They may include injunctions to protect the child, the child’s parent or caregiver.
I will briefly touch on the concept of ‘parental responsibility’ and the related statutory pathway.
Section 61B of the Act defines parental responsibility in relation to a child as meaning ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’ Pursuant to s 61C of the Act, each of the child’s parents has parental responsibility subject to Court Orders. When making a parenting Order in relation to a child, the Court is to apply a presumption that it would be in the best interests of the child for the parents to have equal shared parental responsibility: s 61DA(1). That presumption does not however apply if the Court has reasonable grounds to believe that a parent has, amongst other things, engaged in ‘family violence’: s 61DA(2).
If an Order is made for equal shared parental responsibility, then s 65DAA of the Act is engaged and the Court must follow the statutory pathway set out therein. That is, the Court must consider making an equal time Order as the first option. Section 65DAA also requires the Court to consider the ‘reasonable practicability’ of any proposed parenting Orders: see MRR & GR (2010) FLC 93 - 424.
BEST INTERESTS
Many of my factual findings directly engage one or more of the ‘best interests’ considerations set out in s 60CC. In what follows I will endeavour not to be unduly repetitive and to proceed by way of summary as much as possible.
Details aside, the major competing proposals are:
·the Husband’s primary proposal - that the children live with him and spend weekend and holiday time with the Wife, and that the parties share parental responsibility;
·the Husband’s ‘fallback’ proposal – that the children continue to live with the Wife, but that he spend immediate unsupervised time with them graduating to five (5) nights per fortnight and half holidays. The Wife would have sole parental responsibility but with the obligation to advise him in advance of decisions;
·the ICL’s proposal adopted also by the Wife – that the children live with her and spend limited time with the Husband, graduating from supervised time to unsupervised time with various restraints and safeguards. The mother would retain sole parental responsibility simpliciter – ie. with no requirement to notify the Husband of decisions in advance.
I am aware of, and have considered, all of the relevant s 60CC considerations although I do not intend to refer to those of little or no significance. [17] Given the manner in which the hearing was conducted, it is logical to begin with the issue of risk.
The Husband perpetrated coercive and at times high level family violence against the Wife. The violence included serious physical assaults and choking her – which on one occasion caused her to briefly black out. Choking carries with it the real risk of lethality and associated devastation to all concerned. It is an extremely serious matter.
The Husband also has issues managing his mood; when he ‘snaps’ he can behave in a very aggressive and even unhinged manner as evidenced by, for example, his texts to Mr J in early 2021.
Rather than accepting responsibility for, and addressing, his propensity for family violence, the Husband has chosen to deny it. He has also failed to address his anger issues in any meaningful way. Although he has consulted a clinical psychologist on a number of occasions (Ms CC), the Husband’s evidence in the witness box was that he had not seen her since mid-2022 and, most significantly, that there were no further appointments booked as she had told him he was “okay”. I am not critical of Ms CC for taking that view; no doubt it was informed by the Husband’s strenuous denials of practically all of the violence and aggression which he perpetrated.
The Husband has longstanding drug and alcohol issues, though to be fair he has actively addressed them and his hair test results show that he has made real progress. Nonetheless, there is always a risk of relapse and history has shown that alcohol in particular contributes to the Husband’s moodiness and violence.
Ms N raised concerns about the potential risks posed by the Husband to the children. In the witness box she said that it was ultimately a matter for the Court to determine the level of risk, although she was also quite clear that it was in the best interests of the children to spend time with the Husband in some form. Ms N said that physical risks are easier to manage but coercive and controlling family violence is more nuanced and difficult to manage.
Ms N also said that it was critical that the Husband not de-stabilise the children’s primary care arrangements by undermining the Wife as a parent, including for example by denigrating her or placing loyalty demands on the children. I see these as very real risks given the Husband’s longstanding animosity towards the Wife and the maternal family who he describes as all being violent, drug dealing liars. I am particularly troubled that the Husband may denigrate the Wife to the children or otherwise undermine her if he is given a significant opportunity to do so – particularly when his time graduates to unsupervised.
What of the risks posed by the Wife?
Like the Husband, she too has perpetrated family violence but at a much lower level. Like the Husband, she too fails to accept responsibility for it. That said, although the stabbing event was obviously serious, her violence against the Husband was not generally coercive in nature. The Husband did not fear the Wife; in contrast she did fear him to some degree.
The Wife also has longstanding drug and alcohol abuse issues, alcohol being the much more significant. She knows it is a problem; although her most recent hair strand test result was good, it will be a long road ahead. Like the Husband, her alcohol use increases her volatility and therefore her risk of behaving in an aggressive or violent manner.
In short, the Wife’s care of the children does expose them to some risks. The Husband does not however contend that the children would be at unacceptable risk of harm in her care. Moreover, I do not accept that the Wife has a ‘malicious’ desire to remove the Husband from the children’s lives or that she has confected her evidence of family violence to achieve that end. (Another example of alleged confection which was cited by Mr Dura, and not referred to previously, was that X told Ms N about the Husband throwing some glass at the Wife: Family Report, paragraph 102. But while there was no evidence of that specific event ever having occurred, I do not consider that it is evidence of the Wife confecting it and telling X about it. The most likely explanation is that X was mis-remembering an earlier violent event.)
In the end, only one parent can have primary care. Although the Husband formally seeks it himself, my strong impression is that this is aspirational rather than a realistic goal or expectation. In the witness box the Husband said that the children would “possibly be surprised” by the making of such an order. Asked how the children would cope, he admitted that he wasn’t sure saying “I’d hate to shock the system”. He had no plan in place to manage the transition. Indeed he quickly conceded in the witness box that his preference would be shared care – consistent with what he told Ms N though not a realistic option here.
I assess the risks to the children in the Husband’s care as being substantially greater than in the Wife’s care. Those risks can be managed by his sister supervising; while the Husband spends time with the children I do not consider that Ms C would willingly allow him to perpetrate family (or other) violence, use drugs or alcohol or denigrate or undermine the Wife as a parent. She is a protective factor. But the family violence is at such a high level here that the children’s time with the Husband needs to be limited – even with Ms C available. Asked about the impact on the children of the family violence and the possible need for them to have counselling, the Husband said he didn’t think the children had witnessed family violence. This was a most troubling answer and demonstrated a real lack of insight. (I acknowledge that the Wife has not arranged for family violence counselling for the children herself.)
The children must not be exposed to the Husband’s angry and/or violent outbursts, or family violence toward future intimate partners. Quite apart from the risks of physical and emotional harm to the children, such behaviour puts them at risk of inappropriate role modelling.
Moreover, while in recent times the Wife has ‘come a long way’ in terms of facilitating a relationship between the children and the Husband, she does remain anxious as a result of the past family violence and the children will no doubt pick up on that anxiety. Limiting the Husband’s time with the children will commensurately limit the Wife’s anxiety, thereby making the co-parenting arrangements work more smoothly for the children. They will be much happier with seeing the Husband if the Wife is able to support it; she will be best able to support it if it broadly accords with the ICL’s recommendations.

I am mindful of the children’s relationship with both parents. They clearly love both parents and their primary attachment is to the Wife. They also want to have a relationship with the Husband. The wishes of the children however must be weighed against the risks of harm; the truth is that these children have already seen and heard too much violence and family conflict.
The Husband was a more ‘hands on’ parent than the Wife concedes during the relationship; the children fondly recall playing with him.
I am mindful of the benefit to the children of spending time with the broader paternal family, including grandparents, uncles, aunts and cousins.
The children have a relationship with the maternal family as well, including the maternal grandmother and their uncle Mr J and his children. Mr J does however pose some risk to the children and an injunction is necessary and appropriate in his case. I will return to that issue shortly.
The Orders I propose to make will constitute a change in circumstances for the children, but change is unavoidable and in my view the changes will be for the better.
There are no practical difficulties and expenses relating to the parenting proposals save for the availability of the Husband’s sister to supervise (which she is willing to do) and/or a professional supervisor if needed. The Orders allow for some potential flexibility as to the identity of the supervisor. Overall, these issues are manageable.
Each parent has requisite parental capacity to implement the Orders I propose to make.
The children are currently well-adjusted and are progressing well at school; both are in generally good health. The Wife and children identify as Aboriginal through the late maternal grandfather. The Wife has involved them in appropriate cultural activities and will continue to do so; the Husband is also supportive of the children’s right to enjoy their Aboriginal culture.
I am concerned about each party’s attitude towards the responsibilities of parenthood as demonstrated by their various behaviours over the years which I will not repeat again. That said, the Husband has maintained a commitment to maintaining a relationship with the children and the Wife, albeit belatedly, has decided that maintaining a relationship would be in the children’s best interest. Both parents deserve credit for that.
The making of any Orders for the Husband to spend time with the children creates the potential spectre of future litigation; this is regrettable but unavoidable and it is factored into the Orders that I propose to make.
Parental responsibility:
The presumption that equal shared parental responsibility would be in the best interests of the children does not apply here by reason of the past family violence: s 61DA(2). In the witness box the Husband conceded that he had not spoken to the Wife in over a year. While he also said that he “hopes” things can improve, the making of such an Order would be a triumph of hope over experience. In my view, the parental responsibility of the children should vest in whomever is the primary carer – which will be the Wife.[18]
CONCLUSION & ORDERS
After weighing up all of these matters, I have ultimately come to the view that the ICL’s proposed Order, with various amendments, would be in the best interests of the children.
As the time with the Husband increases (particularly to overnight), the relationship becomes more meaningful but also more risky. The risk to the children must be prioritised. The time that I propose to order that the children spend with the Husband is limited but as meaningful as can be facilitated given the need to weigh up those countervailing risks. Importantly, on my proposed Orders the children will find their relationship with the Husband meaningful.
The Orders contain numerous injunctions all of which I consider to be ‘appropriate’ as required by s 68B taking into account the risks to the children and practical considerations.
The Orders will include machinery clauses which are self-explanatory.
There will be an injunction in relation to Mr J.
Mr J presently sees the children weekly or fortnightly, often in the company of his three (3) children who are a little older than the boys. I have before me as Exhibit 8 the criminal history of Mr J which runs for ten (10) pages. It reveals that:
·in 1992 he was fined for drug offences;
·in 2018 he was charged with assault presumably against an intimate partner;
·in 2019 he was charged with assault (again, presumably an intimate partner). At that stage Mr J appears to have gone into custody;
·some six (6) months later, the Local Court sentenced Mr J to imprisonment for his 2018 offence and imprisonment for the 2019 offences;
·following a successful Court appeal in late 2019, Mr J was released from custody and given intensive corrections and community corrections Orders.
The Wife says that Mr J’s imprisonment in 2019 came as a shock to his system, that he changed his lifestyle and now poses no risk. Nonetheless, it is appropriate on the basis of his criminal history (and his drug use) that there be an injunction imposed.
I will briefly turn now to some of the specific Orders, including the amendments that I have made to the ICL’s proposal.
Order 2 is a sensible and workable amalgam of what the Husband proposed and what the ICL and Wife proposed. It should reduce, rather than add, to the risk of future conflict.
I have revised the timeframes in order 4 somewhat, as well as including a specific definition for “overnight” time when Ms C will be required to be present. I have also made some minor, but appropriate, alterations to the Husband’s time as well as specifically providing for an extra weekend on Christmas holidays. I have clarified the Order so as to remove any doubt (or conflict) as to what happens to the Husband’s weekend time during holiday periods.
Order 8 is an attempt to ameliorate the potentially harsh ‘guillotine’ effect of the Husband’s failure to meet the requirements of order 7.
The alcohol injunction on the Husband is of an absolute nature; this is appropriate given that he will only be spending limited time with the children. The alcohol injunction on the Wife is crafted more liberally to reflect the fact that she will have the children’s primary care – though she would be wise to limit her consumption as much as possible.
I have made various other ‘tidying up’ amendments to the ICL’s draft Order which are self-explanatory. I include the specific overseas travel and passport orders so as to limit the risk of future dispute and it is also appropriate to allow the Wife the opportunity to suspend the Husband’s time provided she ‘makes it up’ as required by the order.
In closing, the Orders I propose are in the best interest of the children but are necessarily imperfect. They can work very well - if the parents comply with them. Both will need to do their best to make them work.

I certify that the preceding two hundred and twenty-four (224) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts.
Associate:
Dated: 20 November 2023

[1] The Wife had also filed an affidavit on 12/09/22 objecting to the lateness of the Husband’s trial material. The affidavit does not address any substantive issues.
[2] Exhibit 1
[3] Exhibit 14
[4] Husband’s trial affidavit, annexure “A”
[5] Exhibit 5
[6] Exhibit 20
[7] Exhibit 7
[8] See exhibit 10
[9] Exhibit 19
[10] Wife’s Affidavit, annexure “B”.
[11] Exhibit 16.
[12] Exhibit 18.
[13] Exhibit 12.
[14] Exhibit 4.
[15] Exhibit 15.
[16] See the decision of the Full Court in Isles & Nelissen [2022] FedCFamC 1A 97.
[17] Such as s 60CC(3)(ca) for example
[18] See also paragraph 44 of the Family Report (exhibit 1)

File number(s):	NCC 4623 of 2020
Judgment of:	JUDGE BETTS
Date of judgment:	20 November 2023
Catchwords:	FAMILY LAW – Parenting – two (2) boys aged 9 and 8 living with Mother since separation in September 2020 and spending very limited time with the Father – each parent seeks primary care – consideration of risks and best interest – children to live with Mother and spend time with Father on a limited basis..
Legislation:	Family Law Act 1975 (Cth), Pt VII
Cases cited:	Harridge and Anor & Harridge and Anor [2010] FamCA 445 Isles & Nelissen [2022] FedCFamC 1A 97 M & M (1988) FLC 91-979 MRR & GR (2010) FLC 93 – 424
Division:	Division 2 Family Law
Number of paragraphs:	224
Date of last submission/s:	3 July 2023
Date of hearing:	27, 28 & 29 September 2022, 16 & 17 February 2023, 3 & 4 April 2023, 3 July 2023
Place:	Newcastle
Counsel for the Applicant:	Mr Dura
Solicitors for the Applicant:	Rossi Simicic Lawyers
Counsel for the Respondent:	Mr Mooney
Solicitors for the Respondent:	Access Family Law
Counsel for the Independent Children’s Lawyer:	Mr Dean
Solicitors for the Independent Children’s Lawyer:	Nls Law

NCC 1609 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ROWLINSON Applicant
AND:	MS BRADFORD Respondent

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	20 NOVEMBER 2023