Salvador & Salvador
[2023] FedCFamC2F 1521
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Salvador & Salvador [2023] FedCFamC2F 1521
File number(s): PAC 103 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 1 December 2023 Catchwords: FAMILY LAW – PARENTING –Where it is conceded that the parties’ short relationship was marred by family violence – Where the mother is the uncontested resident parent – Where the father has perpetrated family violence including intentionally damaging and destroying property - Where it is found that the father has engaged in a deliberate pattern of coercive and controlling behaviour both during the relationship and post separation – Where such behaviour included threats by the father to harm himself and the mother, exerting financial pressure upon her and the disposal of property in contravention of court orders – Where the mother’s conduct must be seen in the context of the family violence perpetrated by the father - Where the father had spent regular day-time only periods of time with the child until the conclusion of the final hearing when such time was suspended– Where there is an unacceptable risk of the child being exposed to family violence at the hands of the father and such risks cannot be ameliorated – Where it is found that the parenting capacity of the mother will be negatively impacted should the father continue to spend time with the child – Orders made for the father to spend no time with the child. Legislation: Evidence Act 1995 (Cth) s 140;
Family Law Act 1975 (Cth) ss 4AB (1), 4AB (2), 4AB (3), 4AB (4), 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(3), 61DA (1), 65D, 65DAA, 65DAC, 117(1), 68B, 68C, 117(4)(a), 117(5);
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.11(5)(a).
Cases cited: A v A [1998] FamCA 24;
Amador & Amador [2009] FamCAFC 196;
B & B [1993] FamCA 143;
Blanch & Blanch & Crawford [1998] FamCA 1908;
Blinko & Blinko [2015] FamCAFC 146;
Carter & Wilson [2023] FedCFamC1A 9;
De Roma & De Roma [2013] FamCA 566;
Gahen & Gahen (No 2) [2013] FamCA 936;
Gillen & Lindo (No 2) [2021] FedCFamC1F 211;
Gorman & Huffman & Anor [2016] FamCAFC 174;
Helbig & Rowe [2016] FamCAFC 117;
Illgen & Yike [2018] FamCA 17;
In the Marriage of McDonald [1994] FamCA 110;
Isles & Nelissen [2022] FedCFamC1A 97;
Keane & Keane [2021] FamCAFC 1;
Keating & Keating [2019] FamCAFC 46;
Legal Aid ACT & Westwell [2021] FamCAFC 50;
M v M [1988] HCA 68;
Mazorski v Albright [2007] FamCA 520;
McCall & Clark [2009] FamCAFC 92;
Moose & Moose [2008] FamCAFC 108;
R & C [1993] FamCA 62;
Ramzi & Moussa [2022] FedCFamC2F 1473;
Whisprun Pty Ltd v Dixon [2003] HCA 48;
Zuen & Lhao [2020] FamCAFC 84.
Division: Division 2 Family Law Number of paragraphs: 303 Date of hearing: 28-30 August 2023 Place: Sydney Counsel for the Applicant: Mr Longworth Solicitor for the Applicant: John Stonham & Co Counsel for the Respondent: Mr Ang Solicitor for the Respondent: Sexton Family Law Counsel for the Independent Children’s Lawyer: Ms Hayward Solicitor for the Independent Children’s Lawer: Legal Aid NSW Table of Corrections 1 December 2023 Paragraphs 49 and 293 in their totality have been inserted into the Judgment and the total number of paragraphs now updated to 303. ORDERS
PAC 103 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SALVADOR
Applicant
AND: MS SALVADOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for making decisions in relation to X born in 2020 (“X”).
2.X live with Mother.
3.X spend no time with the Father.
4.Pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the Court makes the following injunctions for the personal protection of the child, X born 2020 and the mother, Ms Salvador (Hastings) born 1994:
(a)That the Father, Mr Salvador, be restrained from attending within 100 metres of any school, day care or preschool that X may attend;
(b)That the Father, Mr Salvador, be restrained from attending within 100 metres of any residence where the child, X, and the mother, Ms Salvador, may reside;
(c)That the Father, Mr Salvador, be restrained from attending within 100 metres of any place where the mother, Ms Salvador, may work or study;
(d)That the Father, Mr Salvador, be restrained from collecting or causing a third party to collect the child, X, from his day care, his school or any other location;
(e)That the Father, Mr Salvador, be restrained from communicating, approaching or attempting to communicate or approach the child, X.
5.Pursuant to section 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the Father has breached Order 4 the police officer may arrest the Father without warrant and the Father be brought before the Sydney Registry of the Federal Circuit and Family Court of Australia (Division 2) or any other court exercising jurisdiction under the Family Law Act 1975 (Cth), on the first day on which the Court sits after the arrest, or as soon as possible after that date, AND IT IS NOTED that pursuant to section 122AA of the Family Law Act 1975 (Cth) a person who is authorised or directed by a provision of the Family Law Act 1975 (Cth), to arrest another person may use such reasonable force as it is necessary to make the arrest or to prevent the escape of the person under the arrest.
6.X born 2020 is permitted to have an Australian travel document and to travel internationally.
7.The Mother may apply for an Australian travel document (passport) for X born 2020 without first obtaining the consent of the Father and shall be the only person with ‘parental responsibility’ of the child X for the purposes of applying for, and being issued with, an Australian passport for X.
8.That within 28 days, the father shall pay the sum of $5,471.50 to Legal Aid NSW on account of a half share of the costs of the Independent Children’s Lawyer, subject to any waiver of costs by Legal Aid NSW.
9.That all extant Applications and Responses thereto are otherwise be dismissed and the matter is removed from the pending cases list.
THE COURT NOTES THAT:
A.Pursuant to Rule 3.11(5)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the appointment of the Independent Children’s Lawyer is discharged upon the determination of an Initiating Application.
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 MURDOCH
INTRODUCTION
This matter relates to the parenting arrangements for the child X (“X”) born 2020, currently aged 3 years.
The parties separated when X was only one month of age. Subsequent to the parties’ separation X spent short periods of time with the father on a regular basis. Interim orders were made in April and August of 2021 for the father to spend daytime only with X. All time between the X and the father was suspended on the final day of the hearing pending further order.
The mother is the uncontested resident parent. For determination is the allocation of parental responsibility and what time, if any, X shall spend with the father.
The mother alleges that the father occasioned serious family violence upon her including the perpetration of coercive and controlling family violence. She asserts that X spending any time with the father presents a risk of unacceptable harm of X being exposed to the father’s continued perpetration of family violence that cannot be satisfactorily mitigated. The mother further alleges that X spending time with the father would adversely impact upon her parenting capacity.
The father denies to a large extent that he was the perpetrator of coercive and controlling family violence and alleges that he was in fact the victim of family violence occasioned upon him by the mother. The father does not dispute that X should remain living with the mother but asserts that X should spend regular unsupervised and eventually overnight time with him.
For the reasons that follow, orders will be made for X to live with the mother who will be allocated sole parental responsibility. It is further found that on balance it is in X’s best interests for orders to be made that he spends no time with the father, as any orders for time would place X at an unacceptable risk of harm that cannot be sufficiently ameliorated.
BACKGROUND
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties. The standard of proof with respect to such findings is the balance of probabilities: see s 140 of the Evidence Act 1995 (Cth). When considering X’s best interests, it is not necessary to make findings of fact on every factual dispute of the parties.
A brief uncontested chronology is as follows:
·The father was born in 1991. He is currently 32 years of age.
·The mother was born in 1994. She is currently 30 years of age.
·The parties commenced a relationship in 2016. In 2018 the parties married and commenced cohabitation in accommodation in Suburb B owned by the mother’s relatives (“the flat”).
·In mid-2019 the parties’ separated for the first time for a period of approximately seven months. The mother was in the early stages of her pregnancy with X at the time.
·In early 2020 the mother ceased paid employment and suspended her tertiary studies.
·X was born in 2020. The father was present during the birth of X, and he was taken to neo-natal ICU (NICU) immediately following his birth.
·The parties reconciled for a short period subsequent to X’s birth before separating on a final basis in early 2020 following an argument. On this date the father moved out of the flat and returned to his parents’ home in Suburb C. The mother has remained living with X in the flat since this time.
·In early 2020 the father withdrew approximately $60,000 from the parties’ joint savings.
·In the month following the parties’ separation the father attended the flat to spend time with X every second day for between two and six hours. Thereafter the father attended the flat on a regular but ad hoc basis to spend time with X.
·In late 2020 the parties reached an agreement following a private mediation that X would spend time with the father each Monday, Wednesday, and Friday from 4:00pm to 6:00pm and each Saturday from 11:00am to 2:30pm.
·On 12 January 2021 the father commenced these proceedings seeking orders on a final basis that X live with each parent on a week-about basis and interim orders for increasing graduated time with X. X was an infant at the time the father filed this application.
·In early 2021 the father attended a Parenting after Separation course through D Family Services.
·On 16 March 2021 the mother filed her first Response seeking that X spend time with the father on not less than three occasions each week.
·On 13 April 2021 the matter was listed before a Senior Judicial Registrar for the purposes of an interim hearing. Interim orders were made by consent providing for X to spend time with the father each Monday and Wednesday from 4:00pm to 6:00pm and each Saturday from 11:00am to 3:00pm. Such time was to be supervised by E Family Services.
·On 21 May 2021 the mother joined property issues to the proceedings and filed an interim application seeking injunctive relief against the father subsequent to her becoming aware of withdrawals and transfers the father had made from their joint savings. Such application sought that the father transfer to the mother the sum of $16,500, being half of the funds the mother was aware the father held in his personal bank accounts, together with orders restraining the father from selling or otherwise dealing with the cryptocurrency and shares held by him.
·On 28 July 2021 the mother’s Application in a Case was listed for hearing. Orders were made by consent pending determination of the mother’s interim application that the father transfer to the mother the sum of $16,500 and restraining the father from dealing with any shares held by him in both his F Investments account ending #...83 and his G Investments account ending #...11.
·On 5 August 2021 the matter was listed for an interim hearing as to both parenting and property matters. Interim orders were made by consent that:
·X spend time gradually increasing unsupervised time with the father, so that by March 2022 X would spend time with the father each Monday and Wednesday from 4:00pm to 6:30pm, each Saturday from 10:00am to 6:30pm and the last Sunday of each month from 9:00am to 5:30pm.
·The father be permitted to sell his H Investments cryptocurrency in the sum of $20,000 and thereafter the sale proceeds to be distributed as to $10,000 to the father and $10,000 to the mother.
·The father was otherwise restrained from selling, transferring or otherwise dealing with any shares or cryptocurrency held by him in his F Investments account #...83, his G Investments account #...11 and #...89 and H Investments account #...09. All parties were present at court on this day and legally represented.
(“the 5 August 2021 orders”)
·From mid-2021 to late 2021 the father attended an anger management course facilitated by D Family Services.
·In late 2021 the father was made redundant from J Company. He commenced working for K Company in that same month. From late 2021 the father made no child support payments for a period of more than four months. In late 2021 the mother requested that the Child Support Agency collect child support payments from the father on her behalf.
·In mid-2022 after significant difficulties, including the father threatening to file an Application-Contravention, X was enrolled and commenced attending pre-school one day per week.
·In mid-2022 the father disclosed to the mother that he had disposed of the majority of the remaining cryptocurrency and shares held by him notwithstanding the injunctive orders restraining him from doing so.
·On 11 November 2022 the father did not attend the Compliance and Readiness Hearing and the matter was listed for a possible undefended hearing on 21 November 2022.
·On 21 November 2022 the father attended the listing of the matter for possible undefended hearing. On this date final property orders were made by consent resolving all outstanding financial issues between the parties.
·The parenting issues were heard over a period of three days commencing 28 August 2023. At the conclusion of submissions an oral application was made by the mother and supported by the Independent Children’s Lawyer for orders to be made pending further order that X’s time with the father pursuant to the interim orders of 5 August 2021 be suspended. Such application was opposed by the father. Leave to make an oral application was granted. After hearing submissions from all parties, the application to suspend X’s time with the father pending further order was granted.
THE PARTIES’ PROPOSALS
At the commencement of the final hearing the father sought orders on a final basis in accordance with the Amended Initiating Application filed on 24 April 2023 broadly that:
·The parties have equal shared parental responsibility.
·X live with the mother.
·X spend time with the father on an increasing graduated basis so that by the time X commences Year 1 of school such time is from Friday afternoon to Wednesday each alternate weeks during school terms and for one half of all the school holidays.
·X further spend time with the father on special occasions including Christmas, Easter, Father’s Day, X’s birthday and the Father’s Birthday.
·The changeover of X between the parties occur at the Suburb B Shopping Centre at the commencement of X’s time with the father and at the Suburb C Town Centre at the conclusion of such time.
·X have liberal and flexible telephone/Skype/Facetime communication with each of the parties.
·Each of the parties keep the other advised of their residential address and telephone numbers including providing the other party with no less than 21 days written notice of any intention to change address.
·Both parties be permitted to obtain the usual information and communications from X’s school, treating medical practitioners and attend all school events to which parents are invited.
·Both parties advise the other of any illness or medical emergency X may experience.
·Both parties be restrained from denigrating the other party within X’s hearing.
·Both parties be at liberty to travel overseas with X during periods of time X is in their care subject to X attaining the age of five years and the provision of notification and details.
Prior to final submissions the father tendered an amended Minute of Order which mirrored the orders sought at the commencement of the hearing save that:
·The father consented to the mother having sole parental responsibility in relation to the issues of health, education, and passports.
·The timetable for the increasing graduating of the time X spent with the father was amended slightly.
·The father no longer sought an order that X have liberal and flexible telephone/Skype/Facetime communication with each of the parties. [1]
[1] Exhibit F5.
At the commencement of the final hearing the mother sought orders on a final basis in accordance with the Minute of Order annexed to the Case Outline document filed on 21 August 2023 broadly that:
·The mother have sole parental responsibility.
·X live with the mother.
·X spend time with the father at a commercial contact centre on four occasions each year as agreed between the parties and failing agreement from 10:00am until 1:00pm on the last Saturday of each month of February, May, August and November.
·The father be at liberty to send to X gifts and cards at Christmas and X’s birthday, with the mother at liberty to inspect the items sent by the father and determine whether they are appropriate to be given to him.
·The father be restrained from attending within 100 metres of where X and/or the mother may work, live, attend school or study and further that the father be restrained from approaching or contacting X.
·The mother notify the father in writing as soon as practicable in the event that X suffers a significant illness or injury and authorise the provision to the father of school and medical newsletters and information.
·Each party to notify the other within 24 hours of a change to their residential address, mobile telephone number and email address.
·Non denigration orders.
·The mother only be entitled to travel with X overseas and be solely appointed to give consent to the issue of his passport.
Prior to submissions on the final day of the hearing a joint Amended Minute of Order of the mother and the Independent Children’s Lawyer was tendered without objection. [2] On a final basis the mother and the Independent Children’s Lawyer seek broadly that:
·The mother have sole parental responsibility.
·X live with the mother.
·X spend no time with the father.
·The father be restrained from attending within 100 metres of where X and/or the mother may work, live, attend school or study. Further that the father be restrained from approaching or contacting X.
·Non-denigration orders and orders restraining the parties from discussing these proceedings or showing X any documents relating to these proceedings be made.
·The mother only be entitled to travel with X overseas and be solely appointed to give consent to the issue of his passport.
·The parties’ competing applications be otherwise dismissed.
[2] Exhibit M35
The Independent Children's Lawyer advised during submissions that she sought orders for each party to contribute one half of the costs of the Independent Children’s Lawyer in the sum of $5,471.50. The Independent Children's Lawyer submitted that she would be content that any such costs order be subject to the parties making an application to the Legal Aid Commission New South Wales for their portion of the fees to be waived.
THE ISSUES
Thus the primary issues for the Court to consider and determine are: -
·The allocation of parental responsibility in relation to discrete matters;
·what time, if any, X shall spend with the father;
·whether either of the parties perpetrated family violence upon the other;
·whether there is a need to protect X from harm arising from abuse, neglect or family violence;
·whether there is any benefit to X in maintaining a relationship with the father; and
·whether the anxiety to the mother inherent in executing any time arrangements between X and the father would exceed any identified or presumable benefits of such time.
THE EVIDENCE
A direction was made at the commencement of the hearing that no annexures to affidavits or exhibited documents would be read in the matter until they were individually tendered.
The father relied on the: -
·Amended Initiating Application filed 24 April 2023;
·father’s affidavit filed 24 April 2023 and 3 August 2023 (with leave);
·affidavit of Ms L filed 1 May 2023;
·Case Outline filed 3 May 2023; and
·documents tendered during the course of the hearing.
The mother relied on the: -
·Mother’s affidavit filed 15 November 2022 and 31 July 2023;
·affidavit of Mr M, filed 4 May 2022 (with leave);
·Case Outline filed on 21 August 2023; and
·documents tendered during the course of the hearing including Exhibit M33 which was adopted by the mother as the amendments to her sworn evidence filed on 15 November 2022.
The Independent Children’s Lawyer relied on the: -
·Family Report of Ms N dated 23 March 2022 (“the Family Report”);
·The Child Dispute Conference Memorandum of Ms N dated 22 March 2021l (“the CDC memo”);
·Case Outline filed 2 May 2023; and
·documents tendered during the course of the hearing.
Whilst I have read and considered all of the material relied upon by the parties and the Independent Children’s Lawyer in these proceedings, I do not propose to traverse all of the evidence in these reasons but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon [2003] HCA 48.
THE FAMILY
X is currently three years of age. The father reported to the court child expert that X is “very talkative” and is meeting all of his developmental milestones. X is orientated toward playing with jigsaw puzzles and becomes excited when he accomplishes tasks such as putting on his own seatbelt.[3] The mother reported to the court child expert that X is a “communicative” little boy although deposing that he is a little shy at first. He loves being outdoors and engaging in activities such as visiting the local river and playing in the park. X also has a love for all things construction and enjoys sensory play and board games. He attends sports lessons and interacts well with other children and adults.[4]
[3] Family Report of Ms N dated 23 March 2022, paragraph 32 (“Family Report”).
[4] Family Report, paragraph 43.
Both parties reported to the court child expert that they are of the Christian faith and each would like X to have an understanding of O Language and culture.
The father gives little evidence as to his current circumstances. He was born in Australia and is currently 31 years of age. He commenced a relationship with Ms L in 2022 and they married in 2023. They reside together in Suburb P. The father is currently employed on a full‑time basis as a manager.
The mother is currently 29 years of age and resides with X in the flat which has two bedrooms and a large living area and kitchen. X’s maternal relatives together with their three children live on the same property. The mother is of Country Q and Country R heritage and can speak some Language O but not fluently. She is a student and is not engaged in paid employment.
THE HEARING
Having regard to the allegations made by each of the parties an order was made that the parties would not be permitted to personally cross-examine the other party. The father’s legal representation at the final hearing was funded by the Legal Aid Cross-Examination Scheme.
I had the opportunity to carefully observe both the parties during the three days of final hearing and took contemporaneous notes of my observations as to their evidence.
In the course of his evidence I observed that the father would not make appropriate concessions, even when confronted with irrefutable documentary evidence. His evidence was at times inconsistent. I find that the father would simply assert that he could not recall any incident that he perceived would not assist his case. On many occasions the father asked the questions of him in cross examination to be repeated. The questions were not lengthy. The father did not appear to have any difficulty in understanding their meaning; he did not ask for them to be re‑worded or explained, nor did he ever suggest that he did not hear the question when first asked. I am satisfied that this was a tactic used by the father to provide him with more time to think about his answer to the court. He was occasionally non-responsive and evasive in his answers. The father’s evidence at times was inherently implausible and unbelievable. I make specific findings in this regard later in these reasons. I accept the mother’s submissions having regard to the specific factual findings made later in these reasons that the father had a casual, if not delinquent, attitude to his evidence.
I found the mother’s evidence in cross examination to be considered and responsive. She was frank and made appropriate concessions. She was not evasive in her responses in any way. I found her to be an impressive witness.
Accordingly, where there is a factual dispute requiring determination and where there is no other corroboration or rational process to assist then I will prefer the evidence of the mother. The mother is still required to meet the requisite evidentiary burden to ground each specific finding and the relief sought by her.
The father’s current wife Ms L gave evidence on the father’s behalf. Her evidence in cross examination was mostly non-responsive and defensive. She was not an impressive witness.
The mother’s treating psychologist Mr M was cross-examined by the Independent Children’s Lawyer only. His expertise and experience were not challenged, and I found him to be an impressive witness. I accept his unchallenged evidence which is discussed later in these reasons.
THE FAMILY REPORT
A Family Report was prepared for the purposes of the final hearing by Ms N, a court child expert of some four years’ experience (“the court child expert”). She has multiple tertiary qualifications. The court child expert has had extensive relevant experience. There was no challenge to her expertise and I am satisfied she is suitably qualified to provide her opinion to the court.
The court child expert interviewed each of the parties on separate occasions on 8 February 2022. Observations of X with each of the parties took place in person in the counselling section of the court Registry on 11 February 2022. Prior interviews with each of the parties had taken place with the court child expert for the purposes of the Child Dispute Conference on 17 March 2021. There were no limitations to the assessment process identified by the court child expert and I accept this is so. The court child expert had access to and read a wide range of material including the updating trial affidavits of each of the parties.
Neither party challenged the recording by the court child expert of what they had said to her during the course of their interviews.
The court child expert broadly recommended in the Family Report that: -
·X live with the mother who shall be allocated sole parental responsibility.
·If the court finds that the father has perpetrated family violence there be no orders for X to spend time with the father.
·In the event the court finds that the father has not perpetrated family violence but there is a high level of conflict between the parties then X is to spend increasing graduated time with the father so that: -
·until X is three years of age he spend time with the father for six hours in a block on the weekend and for two hours two evenings during the week;
·once X is three years of age this time be increased so that it is for eight hours in a block of a weekend;
·once X attains the age of four years this time be increased again to one overnight stay of a weekend;
·upon his being in his second term of his first year at school X to then spend one night during the week with the father and on the other week from Friday afternoon to Monday morning with half of all the school holidays in addition once X is in his second term of his second year at school.
The court child expert attended court and was cross-examined by all parties. Having read the updating material the court child expert affirmed her continued support of her written recommendations noting that such recommendations clearly pivoted on the findings made by the court as to family violence.
I found the court child expert’s oral evidence to be clear, thoughtful and reasoned. It was clear from her oral evidence that she had given careful consideration to the preparation of her report and her oral evidence. She was an impressive expert witness. The court child expert was not successfully challenged on her evidence and I give it significant weight.
THE LEGAL PRINCIPLES
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. This is confirmed in s 65DAA. A child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act.
The primary considerations as set out in s 60CC (2) 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.
In balancing these considerations, the court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence.
In these proceedings there are a number of specific contentions about matters relating to X’s best interests that depend in part upon findings as to the allegations of family violence including the allocation of parental responsibility. Findings should be made in relation to abuse or family violence if “they are available and necessary to determine what is in the best interests of the child”: Amador & Amador (2009) 43 Fam LR 268, 282 at [88]; [2009] FamCAFC 196. Proof to the reasonable satisfaction of the court “should not be produced by inexact truths, indefinite testimony, or indirect references”: M v M [1988] HCA 68.
Family violence is defined in s 4AB (1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.”
Examples of behaviour that may constitute family violence include (but are not limited to): -
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.[5]
Such behaviour must still meet the definition as contained within s 4AB (1).
[5] Section 4AB (2) of the Family Law Act 1975 (Cth) (“the Act”)
Section 4AB (3) provides that a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence.” Section 4AB (4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes seeing or hearing an assault of a member of that child’s family.
The terms “coerce” and “control” are not defined in the Act. Justice Gill analysed the terms “coerce and control” in Illgen & Yike [2018] FamCA 17 at [123]-[125] as follows:
123. Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as
1.To restrain or constrain by force, law or authority; force or compel, as to do something.
2.to compel by forcible action
124. Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
125. The phrase “coerces or controls” is expressed disjunctively. However, it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command…
Judge Beckhouse in Ramzi & Moussa [2022] FedCFamC2F 1473 stated at [45] that:
generally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member.
In Carter & Wilson [2023] FedCFamC1A 9 Deputy Chief Justice McClelland and Justice Campton sitting as the Appellate Division stated at [10] that:
The assessment of whether conduct that falls within one of the provided examples constitutes family violence as defined in s 4AB (1) of the Act necessarily requires that conduct to be considered in the context in which it occurred.
A party does not require their evidence as to family violence to be corroborated before it can be accepted by the court: Keating & Keating [2019] FamCAFC 46.
I am conscious of the serious consequences of the orders sought by the mother and the Independent Children’s Lawyer that there be no time between X and the father. As stated by the Full Court in Blinko & Blinko [2015] FamCAFC 146:
[30]…Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
Injunctions for the welfare/protection of X are also sought and in that regard my decision will be informed by the provisions of s68B of the Act.
In reaching my decision I have considered all the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
MEANINGFUL RELATIONSHIP
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: Mazorski v Albright [2007] FamCA 520.
The Full Court in McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119]; [2009] FamCAFC 92 adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the Court:
…should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
Thus, I am not to assume that there is a benefit to X in having a meaningful relationship with the father but rather am required to ascertain whether there is a positive benefit to X in the circumstances of such a relationship.
The Full Court continued in McCall & Clark (2009) FLC 93-405, 83,476 that:
[122]…No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The father’s proposal would mean that X would share a meaningful relationship with both of the parties. The proposal of the mother and the Independent Children’s Lawyer would mean that X would have no relationship with the father at all.
FAMILY VIOLENCE
The parties are united in the assertion that their short relationship was marked by family violence.
The father deposes in his affidavit and alleges to the court child expert numerous complaints and allegations that the mother has perpetrated family violence. The mother concedes in her trial affidavit that she has at times become distressed as a result of the parties’ arguments and has struggled to articulate her distress. She has attended regular appointments with Mr M who gave evidence on the mother’s behalf.
The Case Outline filed on behalf of the father notes that both parties allege domestic violence but seeks no finding that X is at risk of harm in the mother’s care. No such findings were sought by the father during final submissions. The mother is the uncontested resident parent. Thus whilst the father’s allegations will be considered, the focus of my determination is what risk, if any, the father presents to X.
The mother alleges that the father has engaged in family violence characterised to a large degree by coercive and controlling behaviour, including threats of harm to both himself and the mother – at times in the presence of X. She asserts such behaviour has continued post separation.
The Father’s Firearm Ownership
The mother deposes that throughout the relationship the father owned firearms which he used recreationally and for hunting. The mother’s written evidence is that she is unsure whether the father has transferred ownership of his firearms to another person. The father’s affidavit evidence is completely silent as to his ownership or possession of firearms.
The father was cross examined extensively about this issue. It was the father's oral evidence that he obtained his firearm licence in 2014 and owned two firearms throughout the relationship. The mother had accompanied him to a shooting range on one occasion.
The father’s further oral evidence was that: -
·He was aware that the issue of his ownership of firearms had “loomed large” since the commencement of the proceedings in 2021.
·He was aware that in the mother’s affidavit of November 2022 she deposed that she was fearful of the father and that he owned firearms during the course of the relationship, but it was her understanding that following the first interim hearing the father sold the firearms upon the police becoming increasingly involved in their relationship breakdown. The mother was aware that the father had been shooting with his mutual friends as recently as late 2020.[6]
[6] Affidavit of Ms Salvador filed on 15 November 2022, paragraph 17 (“Mother’s affidavit”).
·He read the CDC memo to the court dated 27 March 2021 following the parties’ interviews with the court child expert on 17 March 2021. He recalls that the memo recorded that the mother told the court child expert that the father owned firearms and would make threats to take his own life. Whilst it is recorded that the mother did not have concerns as to filicide, she was concerned about the father’s tolerance level and the possibility that the father could harm X physically and/or emotionally. He recalled reading the court child expert’s opinion at this time that the risk of filicide could not be ruled out. The father confirmed that he understood the risk the court child expert was referring to.
·That some three – four months after the mother’s affidavit and the CDC Memo the father attended upon a psychiatrist, Dr S. The report prepared by Dr S correctly states that the father was a member of an association and since 2014 has held a firearm licence with his firearms stored in a safe at a friend’s house in City T. The father does not have the key or code for the safe and told Dr S that he was transferring the firearms to a friend and would then cancel his firearm licence. In the witness box the father stated that he understood that Dr S was talking about the issue of firearms in the context of them being a risk regarding family violence and filicide.
·In his second affidavit of 21 July 2021 the father deposed that the firearms were stored in a safe at his friend’s home in City T – Mr U’s residence. Mr U is not on affidavit.
·In his Financial Statement filed on 21 July 2021 the father deposed that he was still the owner of firearms, but they were not in his possession. This Financial Statement deposed that he had disposed of other items of property but not his firearms. In his affidavit filed at this time he deposed that he was going to allow his firearms licence to lapse and dispose of his firearms – the person to receive them was waiting on the relevant permit. Such transfer would be arranged through the New South Wales Police.
·He was aware that in her affidavit of November 2022 the mother again deposed that she was fearful of the father and that the father owned firearms during the course of the relationship. She had again deposed that it was her understanding that following the first interim hearing the father sold the firearms upon the police becoming increasingly involved in their relationship breakdown.
·There is nothing in the father’s trial affidavit at all as to the issue of firearms despite the father knowing for the past two and a half years that: -
·the mother has consistently expressed fears as to her safety;
·the mother has consistently expressed fears as to how the father would react;
·the mother has consistently expressed her fear that the father would harm himself; and
·her fears were connected to the firearms and the father’s access to them.
It was the father’s oral evidence during cross examination that he was aware that New South Wales police had produced documents to the court. He was not aware as to the contents of the documents produced, namely that no application was made to the police by the father's friend to acquire his firearms. When the father was asked whether he had provided any evidence of the name of the person to whom he intended on transferring his firearm ownership to, or any evidence that he had ever transferred the firearms, he was unsure. The following further exchange took place: -
COUNSEL FOR THE MOTHER: One reason you might have deliberately remained silent is because you know it sparks fear in [the mother] don’t you?
FATHER: No, that’s not true.
COUNSEL FOR THE MOTHER: You could have allayed that fear, couldn’t you, by a simple paragraph in your affidavit drawing a close to the issue of [firearms] if they’d been transferred.
FATHER: I wasn’t sure that was the best thing to do.
There was no explanation given by the father as to why he was not sure that deposing as to the current status of his firearm possession was “the best thing to do.” I accept and find that the father is still the legal owner of firearms. I accept on the father’s own evidence that he did not place this evidence before the court despite the knowledge that this was an issue that caused fear for the mother. I do not accept having regard to multiple times the mother raised this issue in her evidence that the father’s failure to give this evidence was simply an oversight – the father himself did not assert this. I accept that the father’s actions in this regard have caused the mother fear. I am unable to make a finding as to whether the father made the decision to not do so to install fear in the mother or in an attempt to not disclose his current firearm status to the court. In any event the father’s wilful non-disclosure of the status of his firearms is a cause for concern for the court and does him little credit.
General Findings as to the Father’s Behaviour
The mother’s unchallenged evidence in cross examination was that the parties argued frequently during the course of their relationship and the arguments increased in frequency after the parties were married. The mother deposes that throughout the relationship the father threatened to harm himself or take his own life “as frequently as every couple of weeks and almost every time we argued…. Particularly if I was not acquiescing to his demands”[7] She deposes as to several specific examples of this alleged conduct. It is the mother’s evidence that the father would also lock himself in the bathroom on many occasions during the course of their arguments. It is her evidence that she had contacted the police out of fear for her safety and the father’s possible reaction to doing so, including that he may harm himself.
[7] Mother’s Affidavit, paragraph 18.
The father’s trial affidavit is completely silent as the mother’s allegations of his threatening to self-harm despite it being filed some five months after the mother’s trial affidavit. It does however specifically deny that he has ever been physically violent towards the mother. The father did not seek leave to adduce any oral evidence in reply during the course of the trial.
The father was firm in his oral evidence during cross examination that he did not ever threaten the mother with self-harm or suicide. Counsel for the mother asked the father on no less than four occasions whether he continued to deny the mothers allegations as to his self-harm and suicidal threats to the mother. The father firmly denied each and every specific incident as to a threat of self-harm alleged by the mother. He unequivocally denied ever threatening self-harm.
In evidence is a copy of a letter the father conceded in cross examination he had written to both the mother and to his God. The letter reads:
You created me and [Ms Salvador] and you authored our marriage. It was created under your blessing and we both committed to live by your rule. I have failed. I am sorry.
I’m sorry for:
•Losing my temper and living for myself
•Creating an environment where [Ms Salvador] feels unsafe, unloved and constantly hurt.
•Raising my voice when I want to be heard.
•Saying hurtful words that I know will pierce [Ms Salvador’s] heart and gain a reaction.
•Being irresponsible with our finances and treating your creation with contempt by being destructive with our belongings.
•Making [Ms Salvador] feel inadequate (mentally, socially, physically).
•Making promises to my wife and breaking them instantly.
•Caring what other people think of me before I care about what is right for our family and what honours you.
•Hiding my sin from you.
•Treating you like you don’t exist and living for my sinful self.
•Rejecting all the good godly people you’ve put in my life.
•Threatening [Ms Salvador] with self-harm or making her feel anxious because of threats to take my life.
•Having such a small view of the value of life and for thinking it is acceptable to dishonour you this way.
•Cursing you and your name.
•Shirking my responsibilities as a man, husband and leader being caught up in worldly desires and not Kingdom oriented desires.
•Manipulating situations to get my way and making [Ms Salvador] feel bad for not submitting to my sinful desires.
All of these things point to a deep spiritual problem where I have...[8]
[8] Exhibit M5.
The father was cross examined in relation to this letter. It was the father's evidence that:
·The letter was handwritten by him and given to the mother during the relationship.
·The mother was not present when the father wrote the letter.
·The father wrote about his threats of self-harm and suicide only because he was encouraged by his church to “say and do what I needed to do to repair a marriage.”
·The fathers’ threats of self-harm and suicide were often a topic in the breakdown of their relationship, so the father wanted to address the mother’s concerns by way of the letter and accordingly the letter was purely drafted to address the mother’s concerns and was the father's attempt to “catalogue issues” he understood the mother had with their marriage.
The father conceded that in this letter he expresses sorrow for losing his temper and creating an environment where the mother felt unsafe and unloved. He further conceded that he expresses sorrow for suicide threats and self-harm. Despite these concessions, the father still maintained that he had never made threats of self-harm and suicide. The father’s evidence in effect is that he wrote down what he felt the mother wanted to hear.
I find the father’s evidence inherently unbelievable and implausible. He clearly concedes during the course of the relationship to both his God and the mother that he has threatened the mother with self-harm and his threats to take his life and this has caused the mother anxiousness. This document, together with the evidence of both parties as specifically set out below, satisfies me that I am able to accept and find that the father did threaten the mother with self-harm and that he was aware that such actions caused the mother to be anxious.
The court child expert’s opinion is that overall this letter could be seen as manipulative as it presents the father in a certain way which may not reflect reality. She opined that whilst it is an apology letter, it does not include any information as to what the father would do to make changes or address the issues - acknowledging issues does not translate to changed behaviour. I accept this unchallenged evidence.
During the course of cross-examination the father conceded that he had perpetrated family violence upon the mother including calling her names, raising his voice and breaking things. He conceded that these actions would have been frightening for the mother.
I accept as submitted by both the mother and the Independent Children’s Lawyer that this letter could be understood as a checklist of the father’s behaviour. Whilst specific findings will be made later in these reasons, I accept and find that by way of this document the father concedes that in addition to threatening self-harm, he has: -
·lost his temper;
·created an environment where the mother felt unsafe;
·raised his voice;
·destroyed property, including two or three phones thrown in anger in the mother’s presence as conceded by him and his wedding ring which he broke;
·made the mother feel inadequate; and
·manipulated the mother into feeling bad for not giving into his wants.
All of the above listed actions are forms of family violence as defined in the Act.
Specific Findings as to the Parties’ Behaviour
The mother deposes that on a number of occasions during their arguments the father said, “I am going to leave and drive off [a cliff] and kill myself.” It is the mother's evidence that the father said this so often and locked himself in the bathroom on so many occasions that she cannot recall specifically how many times the father behaved in this way.[9] The father’s affidavit is silent as to this allegation. In cross examination he denied making this threat to the mother. The mother’s evidence was not successfully challenged in cross examination – she was firm and unequivocal that this incident occurred and having regard to the totality of the evidence I am satisfied that the father made threats to the mother to self-harm in this manner.
[9] Mother’s Affidavit, paragraph 20.
The mother deposes that during an argument between the parties in late 2018 the father tied a piece of clothing around his neck and locked himself in the bathroom. The father was yelling “I am going to take my own life” through the bathroom door. The mother was upset and feared that the father was going to harm himself. She managed to calm the father down and when he eventually came out of the bathroom, he had red marks around his neck. The mother and father both began to cry and had the following conversation:
MOTHER: That really scared me [Mr Salvador]. I’m so worried about you.
FATHER: I would never really hurt myself. I just did that to get your attention.
The father denied this specific incident during his oral evidence. The father conceded that he went into the bathroom during this argument and that during the course of arguments generally he would engage in behaviour specifically designed to be “attention grabbing” by saying things to the mother like “I hate you, I don’t want to be married to you, I would rather not be married to you.” He otherwise denied the mother’s version of this event.
The mother was firm in her cross examination that she did not make this incident up as put to her. I accept the mother’s firm and detailed evidence which was not successfully challenged.
In late 2018 the mother had left the property at Suburb B and was staying at her parent’s home after an argument. The following day the father attended at the maternal grandparent’s home seeking a reconciliation. The mother met the father outside where he had parked near the driveway and said to him words to the effect of: “I am not going to leave my parents until you start addressing your anger management issues and mental health.” The father became angry and started yelling at the mother words she cannot recall. The mother walked back inside her parents’ home but returned outside after hearing smashed glass. She observed smashed glass all over her parents’ driveway and the back of the father's car skidding on the road as it drove away. The father conceded in cross examination the conversation with the mother as alleged by her but denied the balance of her evidence as to this event. The mother was not challenged on her evidence. I accept and find that on this date the father smashed the windscreen of his motor vehicle subsequent to an argument between the parties.
The mother deposes that in early 2019 the father locked himself in the bathroom after the parties had an argument. The mother could hear the father making noises and punching himself in the head. The mother was fearful that the father was going to seriously harm himself and she called the maternal grandmother for assistance. The mother deposes that she was eventually able to calm the father down and he voluntarily exited the bathroom. Whilst things were tense for the next couple of days they eventually returned to normal.[10] Again the father’s written evidence is silent as to this incident. The mother was not challenged as to her evidence in any way and I accept it.
[10] Mother’s affidavit, paragraph 19.
In mid-2019 the father deposes that the mother took a knife and slashed approximately twelve of his work shirts. The father believes that the mother did this as a result of an argument they may have had that day, but he does not recall the context of such argument.[11]
[11] Affidavit of Mr Salvador filed 24 April 2023, paragraph 12 (“Father’s Affidavit”).
The mother deposes as to the context of the parties’ argument on this day. The parties were arguing whilst the mother was ironing the fathers work shirts. It is the mother's evidence that the father had woken the mother up early that morning and asked her to drop him off at the train station for work. She deposes that the father appeared frustrated and was raising his voice and yelling to her: “You are going to make me late!” and “Hurry up! Get ready!” The mother felt stressed and pressured, particularly given that he was raising his voice. She told the father she was doing her best and asked him to stop yelling. Upon the father continuing to shout at the mother she became extremely upset and said to the father words to the effect of “You are rude like your mother.” The mother deposes that the father then threw the iron on the ground, smashing it into a number of pieces. He approached the mother with a piece of the broken iron in his hand and said: “If you say one more word, I will cut your throat.” The mother deposes that she was terrified and upset by the father's threat. Upon the fathers return from work that evening the parties discussed what had happened earlier that day and the father apologised for his behaviour.
The mother deposes that shortly after the father broke the iron, she cut up a number of his shirts. The father asserts that this incident occurred in mid-2019 and the mother asserts that it occurred in early 2019. Having regard to the mother’s better recollection of the events I accept that it is more likely that this occurred in early 2019. The mother deposes that she felt very distressed and extremely powerless and acknowledges that she should not have acted this way. The mother asserts that in retaliation following this incident the father cut up a number of her clothes, including one of her sister’s pieces of clothing. [12] During the course of cross‑examination, the mother readily conceded that this act was an example of the mother perpetrating family violence against the father. The mother accepted that this could be interpreted as a threat to the father’s physical safety but denied that threatening the father was her intention. It was suggested to the mother that the father needed to use his work shirts to earn a living for the parties and the act of cutting up his work shirts may have created an impression that the mother did not value money. The mother agreed.
[12] Mother’s Affidavit, paragraph 25.
It was put to the mother that the father did not throw the iron on the ground as alleged by her. The mother was firm in her evidence that it had. No alternate version of events was put to the mother as to the argument on this day, presumably as it is the father’s written evidence that he could not recall the context of the argument. I am satisfied having regard to the totality of the evidence and the father’s lack of memory as to this incident that the father threw the iron on the ground on this day breaking it into pieces. I am further satisfied for the same reasons that the father threatened to cut the mother’s throat as alleged by her. I am satisfied that the father’s behaviour made the mother feel threatened and unsafe. In circumstances where the mother’s evidence that the father cut up her clothes in retaliation was unchallenged by the father, I am satisfied that this occurred.
The mother deposes that in early 2019 the mother was upset at the father due to the way he had been treating her and she refused to go to the father's family Easter celebration. She was sitting down drinking a cup of tea when the father came and intentionally knocked it onto her lap and stormed out of the home to attend the family lunch by himself. The mother deposes she was required to take off her jeans and run cold water on her thigh where the hot water had landed. The area was red but she did not suffer from any serious burns. The mother cannot precisely recall whether the father apologised to her upon his return to the home.
This incident is not in the father's affidavit. He denied such an incident in cross examination. It was simply put to the mother in cross examination that this incident did not happen. No alternate version of events was put to the mother. I am satisfied having regard to the mother's detailed evidence that this incident occurred as alleged by her.
The mother left and stayed with her parents in early 2019 after an argument between the parties. Upon her return to the flat two days later the father demanded that the mother talk to him, shouting: “I'm rational! Let's talk! I've been patiently waiting for you for two fucking days!” The father then proceeded to lock himself in the bathroom and through the bathroom door the parties had the following conversation:
FATHER: I don't care anymore! This is done! If it means I lose my Christianity, I don't give a fuck! I am done!
MOTHER: Please come out! I am sorry for leaving! I am sorry I didn't speak to you over the last 2 days!
FATHER: I've asked you to talk 5 times over the last 2 days and you still don't want to do it! For fucks sake! I don't want this. I'm struggling at work, I'm struggling with my marriage, I'm struggling with my family and I'm struggling at church. I do not want to live.
The father denied this incident during his cross-examination. The mother was not successfully challenged as to her detailed evidence and on balance having regard to all of the evidence before the court, I accept it.
The mother deposes that six days later, the father was driving the parties to their local shopping centre. They started arguing and during the course of the argument the father sped up to approximately 120 kilometres per hour. Upon the mother urging the father to slow down as she was scared the father slammed the brakes suddenly, causing the car to spin before coming to a halt next to a fence. The mother got out of the car. She was in shock and unable to speak properly. Two women came up to the car and asked if everything was okay. After the father told them everything was fine they left but continued watching from across the street. The mother refused to get back into the car and the father drove off. He called the mother approximately five minutes later saying “My car… what have I done? I don’t want to live. What is wrong with me. I swerved into a tree on the bend.” The mother was concerned for the father’s safety and went looking for him, finding him down the road with the car damaged. The parties were unable to drive the car home and the car was sold shortly after for less than $2000 for spare parts.[13]
[13] Mother’s Affidavit, paragraph 29.
The father was cross examined as to this incident. He conceded that the parties were shouting at each other but denied the balance of the mother’s assertions. The mother’s evidence as to this alleged incident was not challenged in any way. The father at no time has given any evidence as to his version of this incident. I accept this incident occurred as deposed to by the mother.
The mother deposes that in early 2019 the mother shared with the father her opinion about a Bible passage the parties were reading together. The father started kicking doors and punching walls and ran out of the home after breaking the wardrobe door. The father conceded in cross examination breaking the door but stated this incident occurred during the course of an argument where the mother alleged she was going to call the police to say the father raped her.
It is the father’s written evidence that the mother has alleged that the father raped her. He denies ever sexually assaulting the mother.[14] The father told the court child expert that it was common for the mother to threaten calling the police and tell them that the father had raped her. The father told the court child expert that the mother would say, “I can call the police right now and say that you raped me; that you hit me; I know they will believe me because I am a woman.”[15]
[14] Father’s Affidavit, paragraph 24.
[15] Family Report, paragraph 37.
The mother in her written evidence denies the allegations made by the father that she ever accused him of raping her throughout the relationship.[16] The mother was cross examined as to these allegations and her oral evidence was that she does not recall ever stating that the father raped her. The mother denied saying to the father that the police would believe her because she is a woman, but conceded that “potentially, in a heated argument, I may have said something along those lines.” The mother was adamant however that she did not use the word rape. I do not accept that the mother has made any allegation that the father has sexually abused her. I accept that during the course of arguments the mother has threatened to make an allegation in this context. I accept that at a minimum, on this particular occasion the father intentionally damaged the wardrobe door.
[16] Mother’s Affidavit, paragraph 201.
The mother found out that she was pregnant in approximately mid-2019. It is uncontested that at this time she began experiencing bleeding and fevers and was taking extra precautions as she was worried about the risks of a miscarriage. The mother deposes that at approximately 2:30am on a day in mid-2019 she was feeling extremely unwell and asked the father to get a thermometer for her to check her temperature. The mother deposes that the father became extremely angry and started yelling at her:
This baby is going to die because of your spitefulness.
You have been put in charge of a baby and you're doing a horrible job of it.
You are stressing for no reason, which is harming the baby. It's as if when the baby is born, you're just grabbing a knife and stabbing it.
If there was the technology available to take that tiny little pea 3mm baby out of your belly. And grow it in someone elses, or grow it in a freaking Petri dish, I would do that in a heartbeat.
The mother deposes upon the father then throwing the thermometer at her, she left the home and went to her parents house. It was approximately 3:00am at this time. The next day the mother was taken to hospital and kept there for several hours because of the bleeding and her fever. Shortly after this incident the father left the home and the parties commenced living separately.
The father’s affidavit is yet again silent as to this alleged incident. He denied the entirety of the incident as alleged by the mother in cross-examination. The mother was not cross-examined as to this alleged incident at all and in light of the detailed evidence I am satisfied that this incident occurred as alleged by the mother.
During their separation the parties’ church bishop assisted the parties with couples counselling. The mother deposes that in mid-2019 the parties started arguing in the car following a counselling session. The father began speeding and driving erratically whilst yelling “I’m sick of this. I want to die! I’m done!” This caused the mother to become very upset and when they arrived at the mother's residence she began vomiting, shivering and was unable to breathe. She deposes that she was terrified and distraught at the thought of being a single mother. The father then left the mother alone at the property. He did not contact any of the mother’s family or friends to ask them to check on the mother, nor did he contact her the following day to check on her welfare. The mother believes that she suffered a panic attack.
The father’s affidavit is again silent as to this alleged incident. In cross examination the father denied the incident in the motor vehicle. He conceded that upon arriving back at the flat the mother was vomiting, shivering and unable to breathe and that he left the mother in the flat. The father did not provide any possible reason as to why the mother was exhibiting these symptoms. The mother was not challenged as to her version of events and I accept the mother’s version of events is correct.
In mid-2019 the father deposes that the mother sent the father a text message stating “I don’t care anymore. I want to die. I want this baby dead.” The text messages from the mother to the father read:
Hey [Mr Salvador], please call me back ASAP. Otherwise, I’ll try […] to get through to you. Thanks
…
I am applying for an AVO. I’ll see you in court.
…
I have nothing to lose. I don’t care anymore. I want to die, I want this baby dead, I want to disappear out of your life for good.[17]
[17] Exhibit F2.
The father alleges the mother then rang the father and stated:
I am on my way to abort our child and then I am going to kill myself. This is your fault … I am going to expose you at work. I will ruin you and there will be nothing left of you when I am done. You will be burnt to a crisp.
The father deposes that on the same evening he reported the incident to the police at a local Police Station. The police noted the father’s report and informed him that they intended to visit the mother at her house that evening. The father asked the police to refrain from visiting the mother that night as ‘things could potentially escalate and get worse.’ The police agreed not to visit the mother and recorded the father’s report.[18]
[18] Father’s Affidavit, paragraph 13.
In relation to this event the mother in her written evidence concedes sending a message to the father as deposed by him. The mother’s evidence is that she was seven weeks pregnant at this time, she was in a vulnerable place, living in a constant state of fear of the father and was incredibly upset and frustrated with the way in which the father was treating her. The mother deposes she sent this message to the father as the father continuously made threats of self-harm and she wanted the father to understand how she felt when he made such threats. The mother’s oral evidence was that she never received a visit from the police and that she had no idea that the father had contacted them until the police records were produced for these proceedings.
In evidence is the report made to NSW Police in mid-2019 listing the mother as the ‘PN’ and the father as ‘Victim1’ and states:
At the above time and date the victim attended [Suburb C] Police Station to report a verbal argument that occurred with the PN. He wished for a record to be made. The victim stated they argued due to the Pn gamily getting to involved in their relationship. Police spoke with the PN who agreed with the victim. Nil offences disclosed. Nil injuries obtained. Verbal only.[19]
[19] Exhibit M4.
The father was cross-examined about the above incident. The father’s oral evidence was:
·He received the first text message from the mother at 10:37am that day.
·The text message from the mother caused him concern.
·The father was at a conference in the city when he received multiple missed calls from the mother. When he answered a phone call the mother made the abovementioned comments. The father then stated he may have walked out of the conference and called the mother.
·The father stayed at the conference for the rest of the day. He then caught the train to the closest train station to his home and proceeded to drive from the train station to Suburb C Police station to make a report to police at 7:30pm that evening. The father’s oral evidence was that he did so not because he was concerned about the mother, but X.
·The father told the police everything about the text message received from the mother and the subsequent phone call. The father agreed that the information he provided to the police would have raised concerns about the mother’s welfare. The father accepted that the mother was fragile, and the police could have summoned urgent assistance for her.
·He conceded that whilst he alleges he told the Police as to the mother’s threats to kill herself and abort the baby, this is not recorded in the police notes. The police made no record of the father preventing the police from attending upon the mother’s residence. The only record in the police notes is the alleged oral argument between the parties. The father is unsure why this is.
·The police were not the only people he spoke to in relation to this incident and his concerns, but there is no evidence as to the other people the father allegedly spoke to.
·The father denied making a report to the police as a strategy for litigation.
Having regard to the significant delay in the father attending upon the police station to make a report I am satisfied that his purpose in attending the police station was not to obtain any assistance for the mother but for there to be, as is recorded, a written record of the father’s version of events on this date. I am satisfied that if the Police had been told by the father that the mother had threatened self-harm it is more probable that they would have arranged a welfare check. I am satisfied that this did not occur as the Police documents record what was reported to them by the father that day. I am satisfied that the father engaged in this course of conduct for an ulterior purpose and was not concerned with the safety and welfare of the mother, nor of X.
The father deposes that on this same day the mother threatened to send an email to the father’s boss alleging that the mother was a victim of the father’s physical, verbal and sexual abuse. He deposes that he was ignoring the mothers attempts to communicate with him and she threatened to send such an email if he did not respond to her. The father deposes that the mother boasted about using this as a tool to “get her way” and said, “this is fun.”[20]
[20] Father’s Affidavit, paragraph 15.
In evidence is a copy of the email drafted by the mother which was sent to the father via text message. The email reads:
Dear [J Company],
I am the wife of [Mr Salvador] who works as an assistant […].
As a company that stands for just causes, it should be known that I am a victim of [Mr Salvador’s] physical, verbal, and sexual abuse. Many times, I have been verbally abused by him during his work hours at [J Company], over the phone or via text message. His work phone has also been used to perpetrate abuse. The abuse has been particularly apparent during my recent pregnancy.
I am taking this case further with him. But it should be brought to the company’s attention that as a representative of [J Company], the infliction of abuse caused by their staff member [Mr Salvador] during business hours was horrific.
I will need to take this further if nothing further is done about it.[21]
[21] Exhibit F4.
The text message of the draft email was followed by two further messages from the mother to the father stating:
Please don’t make me do this
If I don’t hear from you in the next 5 mins I will have to send.
The mother concedes by way of her written evidence that she drafted and threatened to send this email. Whilst I cannot make a finding of fact as neither party was specifically questioned as to the timeline of these events in relation to each other, the father asserts that this occurred the same day as the above event and the mother asserts that it was “in or around the same day.” I note that the message as to self-harm was sent at 10:37am. The time stamp of the message to J Company appears to have a time stamp on it of 8:59am. It is possible that this message was sent by the mother to the father prior to her sending the message threatening self-harm. In any event, the mother concedes the message being sent to the father but deposes that she never sent the email, nor did she have any intention of doing so. The mother again deposes that she did so in response to the father’s constant threats and insults to her family including the father calling the maternal grandfather a “fucking […] deadbeat” and telling the mother he would “burn your family to the ground.” The mother deposes that she wanted the father to feel and understand her distress however she immediately regretted her actions.[22] In cross examination the mother did not recall whether she stated “this is fun.” I am unable to make a positive finding in this regard.
[22] Mother’s Affidavit, paragraph 35.
The father deposes that during a mediation session with the bishop the mother said abusive things to him including that she would raise the baby to hate him, that she wished another man had impregnated her and that she wanted him to turn his back on his family for six months to prove that he loved her. The father deposes that the bishop heard these things said by the mother. The mother denied saying this in cross examination. The bishop is not on evidence. I am unable to make a finding in this regard.
The father deposes that in mid-2019 the mother became hysterical during an argument and held a weapon to the father’s head. The mother refused to let the father leave the flat and hid his keys. The father deposes that the mother punched him in the chest and said “it’s either me or the baby… I don’t want this baby and I want to die.” The father deposes that when he told the mother he was going to call the police she called him a “pussy.” The father’s evidence is that the mother then stated she needed assistance with her mental health and that she was not stable. The father deposes the mother urinated on herself and refused to let the father take her to hospital.[23]
[23] Father’s Affidavit, paragraph 17.
The mother denies the father’s description of this event in her written evidence. The mother denies that there was a weapon involved or that she threatened the father. Instead, the mother suggests that the father may be referring to an occasion where she picked up a multi-tool to put it away in the drawer during one argument. The mother denies the words attributed to her by the father and denies that this incident occurred in mid-2019, noting the parties’ separated a month earlier.[24]
[24] Mother’ Affidavit, paragraph 203.
The mother was cross-examined as to this incident. She firmly denied holding a weapon to the father’s head or punching him in the chest. The mother conceded that she may have said ‘something along the lines’ of “it’s either me or the baby… I don’t want this baby and I want to die.” The mother could not recall calling the father a “pussy.” I accept that I can find having regard to the mother’s concessions that on one occasion during an argument the mother was holding a multi-tool and said words to the effect of: “it’s either me or the baby… I don’t’ want this baby and I want to die.”
The mother deposes that in late 2019 the father and the mother attended a different church to that which they normally attended. Following the service, they got into an argument and the father left the church grounds abruptly. He called the mother moments later from his car and said “I'm not going to see my dad this Father's Day. I'm going to get my [firearms] […], drive to the national park and kill myself.” The mother further deposes that the father said “I’m fucking done!... you’re fucking dead to me!... I hate you!” As a result of this conversation the mother messaged the father’s sister to make sure he was safe.[25]
[25] Mother’s Affidavit, paragraph 36.
The father provides no written evidence as to this specific allegation. He denied the events as alleged by the mother and it was put to the mother in cross-examination that it simply did not happen. The mother affirmed her written evidence that it did. The father did concede that following the church service he had left abruptly and called the mother from his car as he drove off and that whilst he does not think he said, “I’m fucking done!... you’re fucking dead to me!... I hate you!” it was possible that he recalled saying those words in the context of an argument. I accept the mother’s detailed evidence in relation to this specific incident which was not successfully challenged by the father.
Such observations and opinion of the court child expert is consistent with the father’s presentation during his oral evidence. The father appeared incapable of acknowledging and taking responsibility for his own actions. Rather than simply conceding that he broke an object for example, his response was: “things were getting broken.” He told the Independent Children’s in cross examination that he has never had an anger management problem, but he did the anger management course as he thought he might learn something. The father’s explanation for his conceded actions of breaking things, raising his voice and name calling demonstrates his inability to take responsibility for his actions: “ A lot of the behaviours that I did and regret came about as a result of the circumstance, but a lot of them came in the heat of arguments and they weren’t to get her to act in a certain way it was me responding out of fear or just unsure what to do.” The father agreed that the mother would have felt scared when he was yelling and breaking things but still denied that he had an anger problem.
Despite the father having had the benefit of undertaking several courses post separation and sessions with a psychologist he has been unable to obtain any insight into his choice to perpetrate family violence upon the mother. He submitted that the family violence perpetrated by him was reactive to the mother’s perpetration of family violence upon him. The father’s continued view of himself as the victim and the mother the perpetrator was the evidence of not only the father but Ms L, whose evidence was that the father has overcome a lot of challenges including “leaving an abusive marriage, the legal proceedings and challenges to see his own child.” She did not believe the father was abusive – “maybe heated words and my experience is that she’s the aggressor.”
Of further significant concern is the changing nature of the coercive control exhibited by the father. During the parties’ relationship it manifested itself in behaviours designed to manipulate the mother by way of threats of harm, physical and verbal assaults and damaging property. During the parties’ separation the father engaged in a pattern of more subtle but equally concerning conduct designed to manipulate the mother’s behaviour so that it was acceptable to him by decreasing her ability to self-determine through exerting financial pressure and control and attempting to isolate her from her support networks including the bishop and her legal representatives. Having regard to the continuing nature of the perpetration of coercive and controlling violence by the father post separation I reject the father’s submissions that his actions were simply reactionary in nature and that it occurred in the backdrop of litigation and that because this litigation will soon conclude that the risks “fall within the rear-view mirror of risks.”
A further consideration for me in determining X’s best interests is any anxiety the mother, as the uncontested resident parent, may suffer from X spending any time with the father where such anxiety is likely to impact on her ability to parent: see the Full Court in R & C [1993] FamCA 62 referring to the decision of the Full Court in B v B (1993) FLC 92-357. The Full Court in Keane & Keane (2021) 62 Fam LR 190, 209 stated:
[81] Importantly, the Full Court in Marra held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be “discernibly impaired”. ‘Discernibly’, or similar expressions that have been used in the relevant authorities to which we have referred, means no more than being an evident or detectable impairment in parenting capacity such that there is an unacceptable risk that the child’s welfare will be adversely impacted.
The Full Court cited the summary of the relevant principles in Blinko & Blinko [2015] FamCAFC 146 as follows:
83. It may be taken as well established by a line of authorities generally acknowledged to commence with [R & C [1993] FamCA 62] that the following are correct statements of principle:
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
•Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
The Full Court decision of Helbig & Rowe [2016] FamCAFC 117 cited with approval the case of A v A (1998) FLC 92-800, 84,996 at [3.29]:
…The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance…
The mother submits that any court ordered time between X and the father would detrimentally impact her parenting capacity. She clearly deposes that she continues to find the father’s communication and behaviour towards her distressing. She reported to the court child expert that she finds the father’s tone to be “condescending and belittling” which causes her fear. The parties are rarely able to reach agreement on alternate arrangements and in order to avoid conflict she agrees to the father’s requests. She deposes that she is fearful as to how she will be able to manage the father’s behaviours following the conclusion of these proceedings. “In some respects, I have found these family law proceedings a comfort and felt the court has provided some security and oversight into the father’s behaviour and kept him accountable.” [73]
[73] Mother’s affidavit paragraph 15.
The court child expert opined that the father’s perpetration of family violence found above raises the possibility of X being negatively impacted through the compounding adverse effects of the father’s family violence on the mother’s mental health. [74] She opined:
Should the Court find that [Mr Salvador] is perpetrating family violence against [Ms Salvador] and that this family violence is creating, or increasing anxiety, for [Ms Salvador], [Ms Salvador’s] anxiety could have secondary affects for [X]. Anxiety can affect a parents’ capacity to be in tune with their children’s thoughts, feelings, and needs. In this way, parental anxiety can affect the parent-child relationship in ways that impact a child’s health and development across multiple domains, including their self-concept, self-esteem, their performance at school, and their relationships with their peers. Children may also be at greater risk of developing anxiety of their own. [75]
[74] Family Report, paragraph 19.
[75] Family Report, paragraph 70
The mother’s treating psychologist, Mr M gave evidence for the mother. He deposes that he has been treating the mother since mid-2020; subsequent to the separation between the parties. At this time X was five months old. A Depression, Anxiety and Stress Scale test undertaken by the mother indicated that at this time:
her distress had placed her depression levels into the moderate range of severity, her anxiety within the severe range of anxiety and her stress levels appeared to remain within the normal range (severity moves on a continuum from normal to moderate, severe an finally extremely severe). [76]
[76] Affidavit of Mr M filed 4 May 2023, page 9.
He deposes that the mother initially presented for therapy with moderate levels of depression and severe levels of anxiety. The mother was engaged with therapy and showed intermittent levels of progress. He records that: -
·Therapy progress was usually hindered by negative encounters with the father.
·She has in recent months made good progress with her therapy but with each mediation or court date her stress and anxiety levels would elevate;
·The mother’s interactions with the father post separation as to X’s time with the father would at times re-ignite her anxiety and depression;
·She has grown considerably through therapy.
In his oral evidence Mr M gave evidence that his engagement with the mother has been consistent since mid-2020 and that such engagement has been around the mother managing her own anxiety with respect to the father together with working on developmental issues for X. The sessions have involved him assisting the mother to moderate her anxiety when dealing with the father. At her initial engagement the mother was quite emotionally heightened, but she is now quite able to regulate her emotions arising from her encounters with the father and other situations such as these proceedings. Mr M was asked his opinion as to whether the mother would be able to cope with X having overnight time with the father. His response was that, whilst it is difficult to state categorically, he believes the mother will learn to cope, but her anxiety will be heightened, and she will potentially require increased therapy were orders to be made that X spend overnight time with the father. I accept Mr M’s unchallenged evidence. I further find, having regard to the findings made above, that there is a significant possibility that orders requiring the mother to interact with the father in any way will cause her anxiety and stress which may negatively impact her parenting of X. This is of considerable significance in circumstances where the mother is the uncontested resident parent.
The father reported to the court child expert that whilst for the past twelve months he has not had any concerns about X’s welfare or the mother’s mental health, should the mother experience stress in the future he would be concerned about her ability to manage her anxiety.[77] Thus the father appears to accept the mother experiencing stress and anxiety would impact upon her parenting capacity. He does not appear to be able to accept that his actions may be the cause of such stress and anxiety for the mother.
[77] Family Report, paragraph 33.
I accept and find that X spending any time with the mother may negatively and impact the mother’s ability to parent X. I accept and find that there is a risk that X’s safety will be compromised as a result. I am satisfied that the father is unable or unwilling to regulate his behaviour and resorts to the perpetration of physical violence. I am satisfied that the father places his own need to control above his ability to prioritise X’s best interests and comply with authority. I am satisfied that were X to spend time with the mother her parenting capacity will be negatively impacted. I am satisfied and find having regard to my findings made above that X is at risk of both physical and psychological harm were he to spend time with the father and this risk of harm is unacceptable.
I am thus required to consider now whether such unacceptable risk of harm to the child could be sufficiently ameliorated.
Whilst the making of orders for supervised time is an exercise of discretion, the Full Court has given specific guidance where such orders are to be made for an indefinite or indeterminate period: see Moose & Moose [2008] FamCAFC 108. Clear reasons are to be provided when such an order is made: Gorman & Huffman & Anor [2016] FamCAFC 174.
The court child expert opined that where there is a coercive and controlling dynamic present, the difficulty with a child having time with the perpetrator is that such dynamic is embedded in the interactions between the parties. The impact of this dynamic does not go away simply because time is occurring at a contact centre; the concerns still exist. The detriment to the mother and X in spending even “identity” time would be the mother and X continuing to be exposed to the father’s coercive and controlling behaviour. X would experience such detriment if he was exposed to it in a contact centre and through the dynamics of himself and the mother outside contact.
When the court child expert was asked to provide her opinion as to the preference for X to spend no time with the father or “identity time”, the court child expert was firm that in the event the court finds that the father has perpetrated coercive and controlling family violence, then no time is in her opinion to be preferred, even in circumstances where there will be challenges for X as he is likely to experience negative emotional states in the short term. She opined that there is a risk that X may believe that the reason he is not seeing the father is something to do with him and thus he will require a narrative to explain why the change has occurred. I accept that the mother’s parenting capacity is such that she will action the court child expert’s strong recommendation that this narrative should be delivered to X once the mother has obtained the assistance of a counsellor.
There is no evidence as to the practical nature of how any long-term supervision time would occur. There is no evidence as to the practical long-term effects on X of such an order. Based on my findings made above I am satisfied that even X spending supervised time with the father would negatively impact on the mother’s parenting capacity. Having regard to all of the above findings and the father’s inability to acknowledge his actions I cannot be satisfied that long term supervision of X’s time with the father, even for “identity contact” is in his best interests.
Ultimately, I agree with the submissions of the Independent Children’s Lawyer that a no time order is appropriate and the only order that can be made – this is the end recommendation of the court child expert if findings are made as I have made. If I make orders for time, they will inevitably expose X to an unacceptable risk of harm.
Overseas Travel and the Issue of Passports
The mother seeks orders that she have sole responsibility and the ability to obtain a passport for X. In circumstances where an order for no time has been made in this matter, I am satisfied that it is in X’s best interests that such an order be made so that the mother does not have to communicate with the father with respect to this issue.
Injunctive Orders
Having regard to the findings made above, I am satisfied that it is appropriate for the welfare of X that injunctive orders be made restricting the behaviour of the father as sought by the mother and the Independent Children’s Lawyer. In light of the orders to be made there is no need for the father to be approaching X or the mother.
The Costs of the Independent Children’s Lawyer
The Independent Children's Lawyers seeks an order that each party contribute one half towards the costs of the Independent Children's Lawyer in the sum of $5,471.50. The father did not wish to be heard with respect to this application. The mother submitted that the mother would suffer financial hardship were she ordered to pay such costs.
The general rule in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) that each party bear their own costs does not apply to cost applications involving other persons or the Independent Children’s Lawyer, even though an Independent Children’s Lawyer is somewhat analogous to a party: see In the Marriage of McDonald (1994) FLC 92-508 and Gahen & Gahen (No 2) [2013] FamCA 936.
The Act makes specific provision in s 117 for orders as to the costs of an Independent Children’s Lawyer:
(3)To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4)However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
Therefore, the court must not make an order as to costs in favour of an Independent Children’s Lawyer if the party has received legal aid in the proceedings, or if the court considers the party “would suffer financial hardship” as a result of an order to bear a proportion of the Independent Children’s Lawyer’s costs.
As enunciated by Justice Gill in the matter of Gillen & Lindo (No 2) [2021] FedCFamC1F 211 at [16] in regard to the application of s 117(4)(a):
[16]In construing the subsection it should be observed that the operative circumstance is unqualified. It does not suggest that the party must currently be in receipt of legal aid, or in receipt of legal aid for a particular portion of the proceedings. It is expressed simply in the past tense.
It has been held that the intention of section 117(5) of the Act is to provide protection to the public purse, and parties who can contribute towards the costs of the Independent Children’s Lawyer should do so: De Roma & De Roma [2013] FamCA 566. The provision of a lawyer under a s 102NA order is distinct from a grant of legal aid and does not render a party immune from an order to pay the Independent Children’s Lawyer’s costs: Legal Aid ACT & Westwell (2021) 62 Fam LR 546; [2021] FamCAFC 50.
The father is engaged in full time employment. He has been legally represented on a private basis for portions of these proceedings. The mother is not engaged in any form of paid employment and is a student. I accept that whilst the mother’s legal representatives are privately funded, such funding will come from the financial settlement the mother received in the property proceedings between the parties and loans from friends and family, not savings.
I am not satisfied where the father is engaged in full time paid employment that I can be satisfied that the father would suffer financial hardship if an order for costs as sought by the Independent Children’s Lawyer was made. I am satisfied however that the father should have the opportunity to seek a waiver from the New South Wales Legal Aid Commission having regard to his particular financial circumstances and will afford him this opportunity. I am satisfied in circumstances where the mother is not engaged in paid employment that she will suffer financial hardship were an order be made to contribute towards the costs of the Independent Children’s Lawyer and refuse the application in this regard.
CONCLUSION
It was submitted on behalf of the father at the conclusion of the hearing that the question must be asked as to why the mother would change her position as to X spending time with the father at the “last minute”. I do not accept this proposition. It was uncontested that the mother reported to the court child expert in her assessment in February 2021 that she was uncertain about what orders she would be seeking on a final basis as there remained a number of unresolved issues for her, including the father’s anger and the nature of the communication between the parties. In any event, the findings I have made above clearly resolve this question.
The father has perpetrated coercive and controlling family violence. This conduct continued both during the relationship and periods of separation. Despite the father’s engagement in various programs, he has not acknowledged or taken responsibility for most of his actions – indeed he continues to deny many of them despite clear evidence to the contrary. The court child expert described some of his behaviour as quite dangerous. As I am satisfied that X is at an unacceptable risk of harm were he to spend time with the father and that such risk cannot be adequately ameliorated, I will make orders as sought by the mother and the Independent Children’s Lawyer that there be no time between X and the father.
I certify that the preceding three hundred and three (303) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 1 December 2023
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