Schulz and Hagen
[2011] FMCAfam 484
•2 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCHULZ & HAGEN | [2011] FMCAfam 484 |
| FAMILY LAW – Parenting – appropriate arrangements for five young children – where the relationship between the parents involved illicit drug use and serious family violence – where the children were neglected during the relationship – where the children have been living with the mother since the separation two years ago and are now being adequately cared for – where the possibility of the mother relapsing into illicit drug use or reconciling with the father or forming a relationship with another male prone to violence is a concern – where the father has spent no time with the children for twelve months and only supervised time during the nine months prior to that – where the father’s propensity for violence in a range of circumstances is a particular concern – where the father conceded at the end of the hearing that an order that he only spend supervised time with the children on three or four occasions each year was appropriate – whether orders should be made giving the father the opportunity to spend more extensive time with the children if he is able to meet certain benchmarks set by the court – where each parent sought an order concerning the children’s surnames. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| McCall & Clark (2009) FamCAFC 92 |
| Applicant: | MS SCHULZ |
| Respondent: | MR HAGEN |
| File Number: | NCC 1005 of 2009 |
| Judgment of: | Terry FM |
| Hearing dates: | 8, 9 & 10 March 2011 |
| Date of Last Submission: | 10 March 2011 |
| Delivered at: | Newcastle |
| Delivered on: | 2 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Davies |
| Solicitors for the Applicant: | Sharon Moore, Solicitor |
| Counsel for the Respondent: | Mr Gorton |
| Solicitors for the Respondent: | Armstrongs Solicitors Pty Ltd |
| Counsel for the Independent Children’s Lawyer | Mr Duane |
| Solicitor for the Independent Children’s Lawyer | Grant & Co |
ORDERS
That all previous parenting orders concerning [V] SCHULZ born [in] 2004, [W] SCHULZ born [in] 2004, [X] SCHULZ born [in] 2005 [Y] HAGEN born [in] 2007 and [Z] HAGEN born [in] 2008 are discharged.
That the children live with the mother.
That the mother shall have sole parental responsibility for the children.
That the children spend time with the father for two hours once each four months supervised at a contact centre.
That time pursuant to Order (4) take place at [L] if a contact centre in that town is able to offer the service but failing that the time take place at a contact centre in [D].
That the mother’s solicitor shall as soon as reasonably practicable notify the father’s solicitor about whether the time is to take place in [L] or [D] and each parent shall thereafter do all acts and things required to complete the intake procedures at the designated centre.
That the time shall take place on a day and at a time convenient to the contact centre.
That for all purposes the child [V] SCHULZ born [in] 2004 be henceforth known as [V] HAGEN-SCHULZ, the child [W] SCHULZ born [in] 2004 be henceforth known as [W] HAGEN-SCHULZ, the child [X] SCHULZ born [in] 2005 be henceforth known as [X] HAGEN-SCHULZ, the child [Y] HAGEN born [in] 2007 be henceforth known as [Y] HAGEN-SCHULZ and the child [Z] HAGEN born [in] 2008 be henceforth known as [Z] HAGEN-SCHULZ.
The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the names of the children [V] SCHULZ born [in] 2004 to [V] HAGEN-SCHULZ, [W] SCHULZ born [in] 2004 to [W] HAGEN-SCHULZ, [X] SCHULZ [in] 2005 to [X] HAGEN-SCHULZ, [Y] HAGEN born [in] 2007 to [Y] HAGEN-SCHULZ and [Z] HAGEN born [in] 2008 to [Z] HAGEN-SCHULZ.
The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order 9 above is to do all acts and things to register the change of names of [V] SCHULZ born [in] 2004 to [V] HAGEN-SCHULZ, [W] SCHULZ born [in] 2004 to [W] HAGEN-SCHULZ, [X] SCHULZ born [in] 2005 to [X] HAGEN-SCHULZ, [Y] HAGEN born [in] 2007 to [Y] HAGEN-SCHULZ and [Z] HAGEN born [in] 2008 to [Z] HAGEN-SCHULZ pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.
That notwithstanding Orders 8, 9 and 10 the mother is permitted to enrol the children at school and in extra-curricular activities as “Schulz”.
That the mother is restrained and an injunction is granted restraining her from:
(i)using or being under the influence of any illicit drug (including but not limited to amphetamines and cannabis) while the children are in her care or permitting the children to remain in any place where any other person is using or is under the influence of illicit drugs.
(ii)using physical discipline on the children or allowing any other person to do so.
(iii)allowing the children to spend time with, come into any contact with or have any communication with the father except in accordance with these orders.
That all outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Schulz & Hagen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1005 of 2009
| MS SCHULZ |
Applicant
And
| MR HAGEN |
Respondent
REASONS FOR JUDGMENT
Introduction
Until their parents separated in April 2009 the lives of [V], 7, [W], 6, [X], 5, [Y], 3 and [Z], 2 were blighted by poor parenting and exposure to drug use and family violence.
Since separation the children have lived with their mother and their lives have slowly but surely taken a turn for the better.
None of the children have spent any time with the father since April 2010, save for seeing him during the report interviews in November 2010.
At the commencement of the final hearing the issues in dispute were:
·Whether the mother should be required to live with the children on the Central Coast or in Newcastle rather than in [U] where she currently lives.
·Whether the mother should have sole parental responsibility for the children or whether the parents should have equal shared parental responsibility.
·Whether the father should spend time with the children and if so the nature and extent of that time.
·Whether the children’s surnames should be Schulz or Hagen.
During the hearing the father conceded that the mother should have sole parental responsibility.
At the end of the hearing there was a general consensus that the mother’s residence in [U] should not be disturbed and that the father’s time with the children should be limited to supervised time on three or four occasions each year.
The issues which remained in dispute were:
·Whether the children’s surnames should be Schulz or Hagen
·Whether the father should have telephone communication with the children.
·Whether there should be provision for the father’s time with the children to increase and/or change to unsupervised time if he was able to demonstrate that he had done something about his drug use, problematic alcohol consumption and propensity for violence and no longer posed a risk to the children.
The Evidence
The mother relied on her amended initiating application filed on
23 June 2010, her affidavits filed on 24 April 2009, 23 June 2010,
9 July 2010 and 27 October 2010 and the affidavits of Mr S filed on 24 April 2009, Ms M filed on 27 October 2010 and Ms E filed on
2 November 2010.
Mr S is the paternal grandfather, and Ms M and Ms E are social workers from [U].
The father relied on his amended response filed on 22 October 2010, his affidavits filed on 22 October 2010 and 24 February 2011 and the affidavits of Ms R filed on 9 November 2010 and Ms D filed on
2 March 2011.
Ms R is the father’s (and formerly the parties’) neighbour and Ms D is the father’s (and formerly the parties’) friend.
The remaining witness in the case was Ms S, a clinical psychologist with considerable experience in child protection matters, who prepared two reports about the family, one in November 2009 and the other in November 2010.
All of the witnesses were cross-examined.
An assessment of the witnesses
The mother’s answers during cross-examination were convincing and she appeared frank and open. She made admissions about her own past drug use and about her contribution to the violence which had occurred during the relationship, and she seemed to appreciate the challenges which lay ahead of her.
There was corroboration for some of the mother’s evidence about recent events. Her description of [W] and [X]’s reaction to telephone communication with the father on their birthdays for example was corroborated by Ms M.
However the mother successfully deceived Ms S in October 2009 about the state of her relationship with the father (the mother was secretly seeing the father at this time while maintaining that her relationship with him had completely ended in April 2009) and Ms S was not the only person deceived. In her 2010 report she said as follows:
…as events have unfolded it appears that [the mother] has indeed deceived many people in a major way – her parents; the Court, the Department of Community Services; her previous solicitor; her previous D.V. Counsellor; Relationships Australia; and myself. Her deception was very devious and carried out with skill and plausibility.[1]
[1] Affidavit of Ms S filed 17 November 2010.
The mother’s evidence therefore needs to be treated with some caution.
Mr S’s evidence was generally consistent and plausible, but I cannot accept his denial that he ever hit any of the children with a belt, given the independent reports by the children to Ms S that this occurred.
Ms M and Ms E were pleasant and co-operative witnesses who gave evidence about their dealings with the mother in their professional capacities.
The father was a poor witness who was always ready with excuses and justifications for his violent behaviour. He often resorted to saying that he could not recall or vaguely recalled when asked to admit the details of his violence, while claiming to recall minor details about the incidents which were exculpatory of him.
The father did not attempt to directly deceive Ms S about the state of his relationship with the mother during the October 2009 interviews, but he made no attempt, during the brief period he spoke to her, to tell her the truth.
Ms S suspected that the father was telling untruths when she interviewed him for the second report.
The father’s evidence also needs to be treated with caution.
The father’s friends Ms R and Ms D were not seriously challenged during cross-examination. Ms D’s evidence was important because it corroborated the father’s evidence that in 2009 he and the mother not only rang and texted each other but also met face to face on occasions. I shall deal with this matter further later in the judgment.
Ms S prepared two very thorough reports. There was no challenge to the factual accuracy of the information in her reports and her conclusions and recommendations were soundly based on that information.
General History
The mother is 31 and the father is 34. They commenced living together in 2002.
At the commencement of cohabitation the mother’s son [B], born in 2001, was living with her and the father’s son [M], born in 1995, was spending regular time with him. [B] lived with the parties until early 2007, when he went to live with his own father. [M] spent time with the parties until an incident on 29 September 2003 after which the father was only allowed to see him on a supervised basis and time dwindled away.
The mother and father have five children:
[V] born [in] 2004, now 7
[W] (a boy) born prematurely [in] 2004, now 6
[X] (a girl) born [in] 2005, now 5
[Y] born [in] 2007, now 3[2]
[Z] born [in] 2008, now 2
[2] Ms S used the name [Y] for this child in her reports and a number of different spellings of the child’s name appear in various documents. The mother called the child [Y] in the handwritten application she filed on 24 April 2009 and I have used that name.
During the first few years of the relationship the parties lived in many different locations on the Central Coast and they also lived in [omitted], NSW for a time. In late 2005 they went travelling and visited the Northern Territory and Queensland.
They returned separately to the Central Coast from Queensland in early 2007 after an incident in [A] but soon reconciled. They thereafter remained on the Central Coast for a few months before obtaining Housing Commission accommodation in [P], a suburb of Newcastle.
During the relationship the parents both used illicit drugs, the father’s alcohol consumption was sometimes a problem and serious family violence occurred.
The mother and father separated in April 2009 when the mother left the [P] home taking [V], [W], [X] and [Z] and went to her parents’ home on the Central Coast. The father prevented her taking [Y]. The mother immediately applied for a recovery order, which was made, and [Y] has also lived with the mother since April 2009.
On 25 June 2009 interim orders were made by consent providing for the children to live with the mother on condition that she remained at her parents’ home and for the father to spend supervised time with the children at the [omitted] contact centre.
The father was ordered to undergo drug screening, undertake an anger management course and attend a parenting course, and the mother was ordered to undergo drug screening and attend a parenting course.
In August 2009 the father commenced spending supervised time with the children at the contact centre.
Ms S was appointed to prepare an experts report and she conducted interviews in October 2009. The mother was co-operative with the process but the father “presented as challenging and aggressive” and after a very short period told Ms S that he would not be co-operating and was “out of there.”
The father asked the court not to judge him too harshly for his behaviour in October 2009. He said that he had struggled to take the interviews with Ms S seriously because at the time he and the mother were still seeing each other behind everyone’s back and the mother was leading him to believe that they would eventually reconcile.
The father said that not only did he and the mother speak on the phone and text each other between separation and October 2009, they also met up and continued a sexual relationship. He said that the children were sometimes present when he and the mother met. He provided detailed evidence of numerous text messages he received from the mother and their content is certainly encouraging of his attentions and provocative.
The mother admitted messaging the father and phoning him but denied that she (or the children) met him face to face.
The mother’s evidence was contradicted by Ms D who said that she witnessed meetings between the mother and father and who said that the youngest two children were present. Ms D’s evidence was not substantially challenged and I accept it.
There is also force in Ms S’s observation in her second report that:
It is difficult to believe that Ms Schulz kept up a relationship of such intensity with [Mr Hagen] [as evidenced by the text messages], yet never chose to see him face-to-face. [Mr Hagen]’s account of their meetings seems more consistent with the other aspects of their communication.[3]
[3] Ms S’s report November 2010 p30
The following comment by Ms S lends weight to the father’s claim that some or all of the children were present on occasions:
I was concerned [during the interviews in October 2009] that some of the children still seemed to be suffering acute symptoms of trauma despite apparently not having contact with their father – except at Relationships Australia.[4]
[4] Ms S’s report November 2010 p. 28-29
I am satisfied that during 2009 and into early 2010 the mother and father were in regular contact with each other by telephone and text message, met on occasions and had sexual relations and that the mother encouraged the father to believe that the parties would reconcile.
On 17 February 2010 the parties attended court and their matter was listed for final hearing for three days commencing on 23 June 2010.
On 19 February 2010, the mother unilaterally relocated from the Central Coast with the children.
Very little communication between the parties occurred after
19 February 2010 and there were no alleged meetings, and I am satisfied that from this point on the mother intended that there would be no reconciliation.
The mother said that she relocated out of fear because after court on 17 February 2010 the father threatened that if she did not come back to him once court was over he would “finish her Dad.” The father denied making this threat, but I accept the mother’s evidence that it was made. The father made a very similar threat on 29 June 2010.[5]
[5] It is important to note that the mother made the allegation about the 17 February 2010 threat in an
affidavit filed on 23 June 2010, prior to the 29 June 2010 threat being made.
The mother’s relocation remained undetected until 23 June 2010 when she appeared at court for the final hearing unrepresented and informed the court that her grant of legal aid had been withdrawn because she had unilaterally relocated.
At court on 23 June 2010 the mother was reluctant to publically reveal her new location and given the serious allegations of violence which had been made she was not required to do so. She was however ordered to inform the Independent Children’s Lawyer of her address.
The hearing dates were vacated and new hearing dates allocated. An updated experts report was ordered due to the significant change in circumstances.
On 29 June 2010 the father made a threatening telephone call to the mother and sent her a threatening text message. The mother’s evidence about this was as follows:
On the 29 June 2010 at 6.33pm I received a telephone call from mobile number [omitted]. The voice on the other end of the phone I recognised to be the respondent’s voice and he said to me words to the effect “[U], you cunt. You can’t hide. No matter what rock you hide under because I’ll find you! You don’t know where I am. I’m in town. Hope daddy is covered. I hope you said goodbye to daddy.”
On 29 June 2010 at 6.50 pm while I was talking on the phone to my father I received a text message from the mobile telephone number [omitted] which read:
U IN MORE SHIT THEN FAGOTS FINGER AT THE PRADE COW BOY UP CUNT U DON’T KNOW WHERE I AM NOT A ROCK U CAN HIDE UNDER U BEST BET IS 2 LEAVE THIS COUNTRY.[6]
[6] Affidavit of the mother filed 9 July 2010
The mother reported the communications to the police and the father was charged with two counts of using a carriage service to menace/harass/offend. He pleaded guilty and was placed on a good behaviour bond, ordered to participate in a Domestic Abuse program and ordered to do 41 hours of community service.
The telephone call and the text message to the mother were also in breach of an order made by this court on 23 June 2010.
At the same time the father also made a threatening phone call to the maternal grandparents. They applied for an Apprehended Violence Order (AVO) which was ultimately made by consent and without admissions.
It remains uncertain how the father discovered the mother’s whereabouts.
Save for the report interviews on 2 November 2010 the father has not seen all the children together since February 2010 and had not seen any of the children since April 2010. He had telephone communication with each of the children on their birthdays in 2010 and early 2011.
The parties’ current circumstances
The mother and children live in a rented four bedroom house in [U]. [V] is in Grade 1 at the local primary school and [W] (who is repeating) and [X] are in kindergarten. [Y] and [Z] attend day care for three and two days a week respectively.
The mother is engaged in home duties and has not re-partnered.
Barnardos assisted the mother to obtain housing in [U] and they have provided her with a good deal of ongoing support. When she first arrived they helped her obtain medical appointments and childcare places and through them she has been able to access domestic violence counselling, drug and alcohol counselling and parenting and personal development courses for herself and counselling for [V] and [W].
Barnardos will continue to support the mother in the future, although the amount of support is likely to decrease as the mother gains confidence.
The father lives in the townhouse in [P] which was the parties’ home prior to separation. It has 3 bedrooms and is close to schools and on a local bus route.
The father said in evidence that he was renting out a room in the townhouse to a third party, and he also said that in 2009 he lived on the Central Coast rather than in the townhouse for some months. How he has been able to retain this Housing Commission accommodation under these circumstances is something of a mystery.
The father is not currently employed although he has had a variety of employment in the past. He said that he was looking for employment and one of his hopes was that he might be able to obtain a job in [omitted].
The father has not re-partnered.
Violence and Aggression
The mother admitted that she had been violent to the father on occasions during the relationship and had pushed, punched and hit him.
There was no evidence of the father being injured and no allegation that the mother was a violent person outside her relationship with the father.
It was the mother’s case that any violence she committed paled into insignificance when compared with the serious violence she had suffered at the father’s hands.
A starting point in assessing the mother’s claim is to consider the occasions on which the father’s violence has brought him to the attention of the police.
The father’s first convictions for offences of violence were in 1998 before he met the mother and they arose out of incidents at the home of Ms C, the mother of his son [M].
Police were called to Ms C’s home in August 1998. It was alleged that the father had damaged the front door of the home and had been seen in the street carrying a machete. The police took out an AVO for the protection of Ms C.
In October 1998 police were called to Ms C’s home again. The father was accused of attending at the residence and arguing with Ms C and then breaking a window and reaching in through it to open a door.
The father was charged with breaching the AVO and with two counts of destroying and damaging property. He was convicted and placed on a bond one condition of which was that he attend 3 AA meetings a month for 3 months.
During cross-examination the father denied that he was carrying a machete and said he had no memory of breaking the window. However the father was not a witness of credit and the police notes suggest that he was intoxicated on each occasion which may go some way to explaining his inability to remember the incidents. Given the father’s later involvement in incidents involving the use of a spear gun and a hammer, and the overwhelming evidence about his propensity for violence, I am satisfied that there are reasonable grounds to believe that he was armed with a machete in August 1998 and broke the window in October 1998.
In about 2002 the father commenced living with the mother and her son [B].
At about 11.00 am on 29 September 2003 the father, the paternal grandfather and Mr K, a friend of the father’s began drinking home brew at the property in [omitted] where the parties were living.
[B], 2 ½ and [M], 8, were present in the home as was the mother, then about five months pregnant with [V].
In the afternoon the mother went out to do some shopping and when she returned at 4.30pm she found that the father had vomited on the kitchen floor and that [B] was playing in the vomit. The mother upbraided the father who verbally abused her, pushed her, grabbed her by the jacket and dragged her across the floor.
The mother retreated to the bedroom and some time passed. Later she got up and tried to leave the home. The father grabbed her by the throat, shoved her back into the bedroom and punched her in the face and head.
The father picked up a spear gun and it was the mother’s evidence that he held it to her head and threatened to kill her. The mother, [B], [M] and Mr K managed to lock themselves in a bedroom and the father walked around the house threatening to kill everyone present. The police were called. By the time they arrived the father had put the spear gun away behind a cupboard. He was arrested and charged with assaulting the mother.
The father pleaded guilty to the assault charge and was given a suspended sentence and ordered to attend some personal development courses.
During cross-examination the father professed to have little or no recollection of assaulting the mother, although he claimed to remember other minor details which had occurred at the time such as going to get towels to clean up his vomit.
The father downplayed the seriousness of the incident when describing it to Ms S and left her with the impression that he had never actually handled the spear gun, rather it was at all times behind a cupboard.
In affidavits filed in these proceedings the father admitted that he had held the spear gun during the incident, but he claimed that he did not threaten the mother with it and said he intended to use it to bludgeon Mr K.
I do not accept the father’s minimisation of his wrongdoing during this incident and I am satisfied on the balance of probabilities that the mother has accurately described what occurred. Her evidence was consistent with the information in the police records and once again the father was heavily intoxicated which makes his evidence about the incident suspect.
The Department of Community Services (DOCS) was notified about the incident and from this time on the father was only permitted to spend supervised time with [M].
The next relevant entry in the police records is an entry in July 2004 recording that the father’s sister Ms A had rung the police and complained that the father had threatened her after an argument with the words “You’d look funny with a knife hanging out of your throat.”
Ms A told the police that she wanted the incident recorded but did not want the father charged. It does not appear that the police spoke to the father about the incident.
During cross-examination the father said that he did not remember this incident. Given the father’s propensity for violence and the fact that he is a person prone to uttering serious threats (as he did in June 2010 to the mother and the maternal grandparents for example) I consider it more likely than not that this incident occurred as described.
The mother alleged that the police were called to an incident in [A], Queensland when the parties were staying there during their extended interstate trip. She alleged that the father became drunk and punched and slapped her and that the police helped her to go to a motel with the children.
No documents from the Queensland police were tendered at the hearing but I accept the mother’s evidence about this incident. Her evidence about many other incidents of violence was credible and it strains credulity that she would have gratuitously made up a claim that the father assaulted her in [A].
In April 2007 the parties were back on the Central Coast and staying with the paternal uncle and the police were called after an incident at the paternal uncle’s home.
On the day in question the paternal uncle rang the father from work and asked him to clean up the shed. The father took considerable offence to the request and when the paternal uncle returned home a fight erupted. The father picked up a claw hammer and struck the paternal uncle on the head, knocking him unconscious.
The mother and [V], [W] & [X] were present during this incident.
Conflicting accounts about this incident were given to the police by the father and the paternal uncle. The father claimed that he had struck the paternal uncle in defence of his family after the paternal uncle kicked the door in. The mother supported the father’s story and ultimately nobody was charged.
The father was however arrested on a warrant which had been issued because he had failed to complete the personal development courses he was ordered to do following his plea of guilty to assault in 2003. He was convicted of the original offence of assault and ordered to do 100 hours of community service.
The police who attended at the paternal uncle’s home in April 2007 were concerned about the conditions in which the children were living and notified DOCS. DOCS records tendered at the hearing contained notes stating that workers who saw the mother at this time observed that she had bruising on her face and that the mother told them it had been caused by the paternal uncle.
In October 2007 police were called to an incident between the father and a neighbour at [P]. The neighbour alleged that the father had threatened her and punched the paling fence, breaking the top off a couple of palings. The father was charged with damaging property and was convicted and fined $250.00.
It was clear during cross-examination that the father did not really accept that he had done anything wrong on that occasion. He said that he had been “accused of stuff he wasn’t doing” and that his neighbour had mental health issues.
On 10 September 2008 police were called to an incident at the parties’ home.
Earlier that day the mother had brought [Z], aged three weeks, home from hospital. The father had gone out drinking and he and three friends arrived home at about 10.30pm and continued drinking in the car port.
It was the mother’s evidence that she upbraided the father about the noise he and his friends were making and he threatened to punch her in the head.
Ms R called the police at the mother’s request. The father was not charged over this incident but the police took out an AVO for the protection of the mother.
The father denied that he had threatened the mother and claimed that he was the victim and that the mother had punched him. The father’s denials of violence generally lacked credibility and I prefer the mother’s evidence about this incident. It is difficult to accept that the mother would have asked Ms R to call the police if nothing had happened to her and she had been guilty of some wrongdoing.
The most recent incidents of violence reported to the police were the threats made by the father in June 2010 to the mother and the maternal grandparents.
It was the mother’s evidence that the incidents reported to the police were the tip of the iceberg, and that the father had assaulted her on many occasions throughout the relationship.
One incident to which the police were not called and which definitely did occur happened when the parties were living in [omitted], NSW in 2005.
The background to the incident was that [W] was in hospital for a prolonged period following his premature birth and the mother was visiting him regularly.
On the day in question the mother was about to go to the hospital and the father grabbed her by the throat in the presence of DOCS workers and held her up against a wall. The mother said that her feet were lifted off the ground, although the father denied this.
The father justified his behaviour by asserting that the mother was intending to go to the hospital to breast feed [W] while high on “ice”. He said that he “tried to get [her] to come to her senses by holding her in the throat region and shaking her.”
The mother said that she was not high on ice at all but rather the father was angry because she was intending to go back to the hospital after she had been home for only a short time.
The father had a habit of minimising his responsibility for violent incidents and was not a witness of credit, so I am sceptical about his explanation for what occurred, but even if every word that the father said is true nothing can excuse this appalling violence.
The DOCS workers asked the mother if she wanted them to call the police and when she said she did not they did nothing further.
Another assault to which the father admitted occurred in about 2004 or 2005. The mother, father and children were staying in emergency accommodation at a motel and the father grabbed the mother and applied pressure to her throat making her pass out.
In his affidavit the father justified this assault by saying that the mother was high on ice or crystal meth and wanted him to get more. He alleged that after he said no because he only had $50.00 and needed it to buy food for the children the mother started punching him in the head and stomach. He said that he was scared that they would be evicted from the motel or the police called so he had ‘no option but to do this.’
During cross-examination the father said “I grabbed her…I wasn’t thinking.”
The mother said that this was not an isolated incident and that the father had a habit of taking her by the throat and “making her go to sleep.” During cross-examination she described an occasion when the father had taken her by the throat and she had collapsed and had shortly afterwards found herself sitting on the lounge.
The father admitted that when he was a teenager he and a friend had learned how to make a person pass out by putting pressure on their throat and had practised doing it to each other. He insisted however that he had only done this to the mother once, at the motel.
Somewhat in contradiction to this, it was put to the mother during cross-examination by the father’s counsel that she was a willing party to the father taking her by throat and making her pass out, and it was put to her that the father did it to help her sleep when she was having trouble doing so because of her drug use.
The mother denied this and said that being ‘put to sleep’ by the father was a frightening experience as the blood was cut off to her brain.
I am satisfied on the balance of probabilities that the father did this to the mother much more than once and that on each occasion it constituted a serious assault.
The mother made other allegations of violence which the father did not admit. Some were very general allegations, but one specific claim she made was that she lost one of her front teeth as a result of an assault by the father. The father denied that he was responsible for the mother losing her tooth, saying that it happened when she was nursing [W] and [W] threw his head back and knocked her tooth out. The mother was not cross-examined about this issue and I prefer her evidence about how she lost her tooth.
The father asked the court to find that the mother was overstating the extent of his violence toward her during the relationship. In support of his claim that things were not nearly as bad as the mother would now like the court to believe he pointed to the fact that the mother had made few complaints to the police, had supported him in court in 2003 when he was charged with assaulting her and had tried to get the charges dropped, had not sought treatment from doctors or hospitals for injuries (or if she did had not disclosed that her injuries were the result of family violence) and had reconciled with him after separations.
None of these behaviours by the mother assist the father. There are many reasons why victims of family violence fail to report violence to the police, fail to press charges when the violence comes to light and fail to seek medical assistance or alternatively fail to disclose the true reason for their injuries. These reasons include shame, fear of retribution, misplaced guilt for somehow ‘provoking’ the behaviour and a desire not to lose the relationship. Ms E who is a domestic violence counsellor and who has been a social worker for thirty years gave evidence that in her experience it was not unusual for victims of family violence to go back to a relationship seven or eight times before finally leaving it.
The maternal grandfather provided some corroboration for the mother’s claims that she had suffered a good deal of violence at the father’s hands. Mr S said as follows:
…I have seen Ms Schulz with black eyes and bruises on her body but she does not speak to me about any family violence. Even though Ms Schulz did not say anything I had serious concerns that Mr Hagen was violent towards Ms Schulz. Ms Schulz would say things such as, “I fell down the stairs”, “I have a crook back”, but the children would say words to the effect of, “Daddy hit mummy in the back” or “Daddy fights with mummy and he hits her” and Mr Hagen or Ms Schulz would stop the kids from talking.
Mr S was not successfully challenged about this evidence during cross-examination.
Most importantly Ms S’s first report provided ample evidence that the children were aware of the violence in their parents’ relationship and witnessed it on occasions, making it more likely than not that it had occurred frequently.
Ms S reported as follows about her interview with [V]:
When asked why she thought her parents were no longer living together, [V] replied:
“Because Mum wants to go to another house. (Q. Why?) Cause Daddy gets angry. (Q.) He yells at Mum. He calls her rude names ([V] was too embarrassed to tell me these)… and he hurts Mum. (Q. How?) Mum had teeth and Daddy pushed them out of she’s mouth. (Q.) I didn’t see him (do it). Mum told me and now she can’t talk.”
[V] said her mother had to go to the doctor about her teeth and injuries to her cheek ([V] points to her own cheek).
When asked why she thought her Dad had done this, [V] told me:
“Because he gets angry all the time. (Q. Does he get angry like this with you children?) No, he sends us to bed. He won’t let us stay up and watch the cartoons.”
……………………
When asked whether anything made her feel frightened, [V] said she is scared at night that someone will break into their house. She is worried that her father will come in and take her mother away. When asked why she thought this, [V] said she had heard [X] crying for her mother and it made them all frightened. [X]’s crying had made her cry too.
[V] was not as anxious as [W] was when talking of these negative things, but was subdued when talking of these.[7]
[7] Affidavit of Ms S sworn 17 November 2009
Ms S reported as follows about her interview with [W]:
When asked to “tell me about your Daddy”, [W] replied with some anxiety:
“I still live in his house but he almost broke my Mum’s fingers. (Q. How?) he was being nasty last time at that house. And I’m not going to his house now.”
I asked [W] to tell me about Mum’s fingers almost being broken and he replied:
“Mum punched him in the gut. Daddy’s dead. He’s still not dead. (Q.) She (de)cided to punch him in the eye. (Q.) And she punched him in the eye. And he punch her in the gut. That’s nasty. (Q. You saw it?) Yes, but before I went to [omitted] School.”
When asked how he felt to see this, [W] said:
“I was feeling sad and I cried. Dad broke my heart when he punched Mum. (Q.) They fight each other. Dad did it to my Mum and she almost died. (Q.) Because Dad punched her in the gut. She fall down but she didn’t die. She almost did.[8]
When asked whether he was frightened when he saw his parents fighting, [W] said with anxious affect:
“Yes. I just said to Dad and Mum not to fight. I said to Dad ‘Don’t kill Mum’ but he wouldn’t listen. Now he does listen now. (Q. How come?) He started to punch mum and she almost died. And I punched Dad and he punched me. And I kicked him because he punch my Mum in the mouth and she got blood on her.”
[8] Affidavit of Ms S sworn 17 November 2009
When asked where the blood was, [W] told me:
“When Mum died she couldn’t fight. She had blood on her. I said to Dad ‘Grr…” (adopting angry look). He said ‘It’s alright’. And I said to him ‘It’s not alright to kill my Mum’. And he said ‘I don’t like you’. (Q.) He tried to punch Mum on her back. He punch Mum everywhere, in the leg. Mum said to me ‘Don’t cry’.”
Ms S said as follows:
It was indeed most alarming to hear this child describe life with his parents purely in terms of their physical violence to each other but particularly his father’s violence. Most children of this age would not even conceive of a loved parenting (sic) hurting another like this. [W]’s level of anxiety and agitation when describing these incidents and his attempts to stop them and protect his mother, indicate that these are traumatic memories for him. They are not consistent with the “coached” allegations of violence sometimes seen in conflicted Family Court situations. As well, given his young age, it is unlikely that he would be able to sustain any such “fabrications”.[9]
[9] Affidavit of Ms S sworn 17 November 2009
Ms S reported as follows about her interview with [X]:
Later when I asked [X] what she remembered when they lived with their Daddy, she replied:
“Dad will bang Mummy with a hammer. It hurts. (Q. What will Mummy do?) And Mummy got the hammer and bang him”[10]
[10] Affidavit of Ms S sworn 17 November 2009
Even if the only violence proved against the father was the violence reported to the police or not disputed by the father, every single one of those incidents involved violence of the most serious nature, which alone would cause the court to have serious concerns about the father’s parenting capacity.
However I am satisfied that the violence was much more extensive, as the mother claimed.
I am satisfied on the balance of probabilities that the father is a violent and aggressive man who frequently and seriously assaulted the mother during the relationship and who has committed serious acts of violence against third parties.
Counsel for the Independent Children’s Lawyer submitted that the father showed some glimmer of recognition while in the witness box that some of his past acts of violence were inappropriate. I do not share this view.
The fact that the father answered ‘yes’ when asked during cross-examination if he understood that he might have killed his brother by hitting him on the head with a claw hammer and if he recognised that there might have been a more appropriate way to deal with a dispute with his neighbour than punching the top off some of the boards on the paling fence does not in my view demonstrate that the father has any insight into the fact that his past violent actions have been inexcusable, dangerous and frightening to others.
The father minimised the seriousness of and made excuses for his role in every violent incident: his brother was threatening his family, his neighbour was being unreasonable and must have a mental illness, the mother was planning to breast feed [W] when high on ice, the mother was high on ice and making too much noise in a motel room, the mother deceived him into thinking reconciliation was possible and then rejected him. There was no glimmer of recognition by the father that on every single occasion his violent behaviour was inexcusable and was a totally disproportionate and totally unacceptable response to the situation he found himself in.
Regrettably the father’s counsel, in the course of doing his job representing the father, made submissions which sought to portray some of the father’s actions as excusable. He submitted for example that the father coming home well affected by alcohol at 10.30pm and drinking with friends in the car port (which led to an incident where the mother was threatened with violence) should be viewed indulgently as the father had taken the all too human course of celebrating [Z]’s arrival home by ‘wetting the babies head’ and had just carried on drinking a bit too long.
He also submitted in effect that the father should not be judged too harshly for threatening the mother’s life in June 2010 because the mother had deceived him about the possibility of reconciliation.
In criminal proceedings it is common to put forward excuses such as these during pleas in mitigation, but putting them forward in family law proceedings does the father no favours.
It is of great concern that the father did nothing but make excuses and that he expressed no regret for the serious physical and emotional harm which he has caused to others. It is of great concern that he apparently has no inkling of how people’s experience of him as a person prone to violent outbursts is likely to shape their responses to him and affect their relationship with him.
As a result of his conviction for sending menacing messages using a carriage service the father is required to take part in a Domestic Abuse program and he had done one session prior to the commencement of the hearing. Given his long history of violence and aggression, his inability to accept responsibility for his violent behaviour, his lack of insight into the effects of his behaviour on the people around him and the fact that his attendance at the program is involuntarily, I am not convinced that he will gain anything from the program.
Illicit drug use
During the relationship both parties used cannabis and they were both intravenous amphetamine users.
When questioned by counsel for the Independent Children’s Lawyer the father denied that the parties had any money problems or any personal difficulties when they were using drugs, and he told Ms S that:
[the] drug use did not affect [our] parenting capacity and we were happy.[11]
[11] Ms S’s report released November 2010 paragraph 6
These are absurd claims and the father cannot believe them. Among other things he relied on the mother’s use of ice as justification for a serious assault he committed on her at a motel, and [W] and possibly [Z] were born prematurely because of the mother’s drug use.
It is beyond doubt that the parents’ drug use affected their parenting capacity and the mother acknowledged that the children were neglected when both she and the father were on drugs.
The mother admitted that she continued to use cannabis until separation, but maintained that she ceased using speed some time before. This claim is suspect. In her affidavit filed on 17 June 2009 she said that she had not used speed for four years,[12] but during cross-examination said that she had given up using speed when she was about four months pregnant with [Y] in other words in about April 2007 after she had a ‘light bulb moment.’
[12] Paragraph 2
Hospital notes made at the time of [Z]’s birth in August 2008 referred to the mother having fresh track marks and scabbing on her arms. The mother denied during cross-examination that these notes were accurate, and said that the track marks referred to may have been old track marks.
The father alleged that he saw the mother use amphetamines two weeks prior to separation and the mother told Ms S that she had been thin and ‘looked like death warmed up’ at the time of separation.
Ms S commented that amphetamine users were frequently thin and gaunt.
I consider it more likely than not that the mother continued to use amphetamines on at least some occasions up until April 2009.
She may also have used them afterwards. Ms D gave evidence (about which she was not challenged) that the mother asked her to ask the father to obtain speed for her in mid-2009.
The mother claimed that she was no longer using illicit drugs of any kind and there are some positive indicators which support this claim.
The mother returned a number of clean drug test results after orders for drug testing were made, although none of the tests were done within the time limit prescribed in the order and they do not exclude the possibility of continuing amphetamine use. However Ms S commented that the mother looked healthy in October 2009 and she made no adverse comment about the mother’s appearance in November 2010.
The mother commenced drug and alcohol counselling after she moved to [U] in February 2010 and continued to take part in this counselling until December 2010 when she was told that she did not need to come again. Ms E confirmed that this decision had been the counsellor’s, not the mother’s.
Ms E and Ms M gave evidence that they saw the mother regularly and visited her home and had not seen anything to suggest that she was currently using illicit drugs.
The mother is of course at risk of relapse. She has some advantage over the father in that she has voluntarily attended drug and alcohol counselling and there are people in the [U] who are likely to be vigilant for signs of resumption of drug use, but it would be foolish to think that all the mother’s difficulties are behind her. The mother showed some recognition of this herself in the witness box.
The father also claimed that he was not currently using illicit drugs.
When Ms S first saw the father in November 2009 she commented on his thin and gaunt appearance. He failed to comply with drug testing orders between June 2009 and August 2010, citing cost as the reason for his non-compliance. He had a blood test on 3 August 2010 which showed negative for drug use, but the test result contained the following comment:
Serum is NOT an appropriate method for Drug Screening as the concentration of drugs and their metabolites is lower than in urine. We recommend a urine sample for confirmation of these results.[13]
[13] Annexure C father’s affidavit filed 24 February 2011
There is strong reason to be suspicious that the father continued to use illicit drugs well into the second half of 2010, in other words during the period when he continually failed to comply with the drug testing orders.
There are some things which tend to support the father’s claim that he has now ceased using drugs. Ms S commented that his appearance was much improved in November 2010 and he has in recent times returned some clean drug screen results.
The father has not however had any drug and alcohol counselling and his appearance and the drug test results are rather thin evidence on which to base a finding that he has completely ceased using illicit drugs.
There was no independent evidence in the father’s case such as that provided by Ms E and Ms M in the mother’s case. Ms R’s evidence about this issue, such as it was, is not the equivalent of evidence from two social workers acting in a professional capacity.
There is considerably less reason to be confident therefore that the father has ceased using drugs, and even if the father has ceased using drugs, he also remains at risk of relapse.
The mother claimed that the father dealt in drugs during the relationship. This issue was not explored at the hearing and there was no evidence to corroborate the mother’s claim.
The father’s alcohol consumption
Excessive alcohol consumption was a factor in some (although not all) of the father’s brushes with the law.
The police records about the father’s attendance at Ms C’s home in 1998 state that he was heavily intoxicated on each occasion, and after he was convicted of damaging property at Ms C’s home he was placed on a bond and ordered to attend 3 consecutive AA meetings.
The spear gun incident in 2003 occurred on a day when the father began drinking home brew at 11.00 am with the paternal grandfather and a friend and continued drinking all day.
The incident in September 2008 between the father and the mother occurred after the father had been out drinking for many hours and returned home with friends and continued drinking in the car port.
All these things certainly point to the father’s alcohol consumption as being a matter of concern.
The father somewhat grudgingly conceded in cross-examination that he might have had a problem with alcohol in the past, but said that he could no longer afford to buy much alcohol and had become a moderate social drinker.
This evidence is not credible, especially in the light of the incident in June 2010. The father has had no drug and alcohol counselling and there was not a shred of evidence to support a finding that the father’s difficulties with alcohol are behind him.
There were no allegations that the mother had a problem with alcohol.
The children’s health & welfare
Ms S expressed the following concerns about the children following the October 2009 interviews:
·[W], who had been born four months premature, had not received any paediatric care since his release from hospital at 6 months of age. [W] had speech difficulties, a severely turned eye for which he was not receiving any treatment, was extremely small for his age and looked frail.
·[V] and [X] looked small and frail for their age.
·[V] had not attended pre-school.
·[X] had speech difficulties.
·[W] and [X]’s dental needs had been seriously neglected.
·[Z] showed abnormal attachment behaviour.
Ms S noted a marked improvement in the children when she saw them in November 2010. She commented that:
The three older children in particular looked healthier, sturdier and much less frail than previously….[W] now wore glasses.[14]
[14] Affidavit of Ms S sworn 17 November 2010
[W] has now had treatment for his turned eye and the mother said that she was on a waiting list to take [W] to a paediatrician, although it appeared that she had followed up on the paediatrician’s appointment because Ms S recommended it rather than because she herself considered that [W] needed it.
Ms S said that:
The most dramatic change was in the youngest child, [Z] (2). Previously there had been concerns about his attachment behaviour – a year ago he was avoidant in interactions; prematurely self sufficient; showed no appropriate separation/reunion responses; and was inappropriately undemanding. In contrast, when seen recently [Z] was clingy to his mother; demanding of her; constantly seeking attention/affections; and showing separation distress when away from her. [Z]’s improvement in this was very gratifying.[15]
[15] Affidavit of Ms S sworn 17 November 2010
The children’s best interests
In deciding whether to make particular parenting orders about the children I must regard the best interests of the children as the paramount consideration. Sections 60CC(2) & (3) of the Family Law Act set out the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations are contained in s.60CC(2) and are as follows:
a)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
During final submissions the father’s counsel conceded that given what had emerged during the hearing about the issue of violence in particular, an order that the father spend supervised time with the children on three or four occasions each year was all that the father could hope for at present.
If this order is made the children will not be able to develop a meaningful relationship with the father, but as the Full Court said in McCall & Clark[16] :
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. [17]
[16] McCall & Clark (2009) FamCAFC
[17] McCall & Clark (2009) FamCAFC 92
Regrettably this is such a case.
The father’s counsel urged the court not to shut the door completely on the possibility of the father having a meaningful relationship with the children and to make orders which would allow him to spend increased time with them if he was able to demonstrate that he had changed.
I will consider this submission after making findings about the remaining s.60CC(2) & (3) matters.
The second primary consideration is the need to protect the children from being subjected to or exposed to abuse neglect or family violence.
Provided that the mother does not commence another relationship involving violence and provided that she remains drug free I am satisfied that the children will not be subjected to abuse neglect or family violence in her care.
The mother has never been a violent or aggressive person outside her relationship with the father and there was nothing to suggest that the children were likely to be subjected to abuse by the mother in the future.
There was an allegation that both the mother and the father had hit the children with a belt, but insufficient evidence for me to be satisfied on the balance of probabilities that this constituted abuse.
Aspects of the children’s care were neglected when the parents lived together and were both using drugs, but since separation and particularly since February 2010 the mother has been doing a very good job of caring for the children.
The situation with the father is less clear cut.
The mother alleged that during the relationship the father threw a doll at [W] which hit him in the face causing a 2 centimetre cut which bled profusely. The mother alleged that the father threw the doll in anger.
The father denied that he had thrown the doll in anger. He said that he threw it at the lounge while tidying up and it hit [W] accidently. The father said that the mother had told a neighbour this at the time.
The mother and father were cross-examined at some length by Counsel for the Independent Children’s Lawyer about this issue. The mother remained steadfast in her evidence that the father had thrown the doll in anger, but even on the mother’s evidence I cannot be satisfied that the father did throw the doll intending to hit [W], and I cannot be satisfied on the balance of probabilities that the father assaulted (abused) [W] on that occasion.
An allegation in the mother’s affidavit that the father lifted [V] off the ground by her ears when the family were in [A] was not explored during the hearing.
The fact that there was no evidence that the father had abused the children in the past is not however the end of the matter. The father has a propensity for violence. He has seriously assaulted and threatened the mother, hit his own brother on the head with a hammer, threatened his sister and the maternal grandparents and damaged the property of his former partner and his next door neighbour.
The fact that the father has not yet harmed the children does not give me the smallest confidence that the children would not be at risk of harm from him in the future.
Even if the father does not harm the children and even if he does not repartner there is an unacceptable risk of the children being exposed to violence in his unsupervised care. The father has been violent to third parties and has never allowed the presence of children to act as a brake on his conduct. The spear gun incident took place in the presence of [B] and [M] and the hammer incident in the presence of [V], [W] and [X].
Provided that the father is not using illicit drugs or abusing alcohol the children should not be subjected to neglect in the father’s care.
I must also have regard to the additional considerations in s.60CC(3).
I must consider any views expressed by the children and any factors (such as the children’s level of understanding) that the court thinks are relevant to the weight to be given to those views.
There was no evidence that any of the children had a view about the particular parenting arrangements proposed for them.
I must consider the nature of the relationship of the children with each of the children’s parents and any other persons (including grandparents).
The father said that he was heavily involved in the children’s day to day care prior to separation and that he had a good relationship with them. He said that when he saw the children at the contact centre between August 2009 and early 2010 they were excited to see him and related well to him.
In support of his claim the father relied on the records from the contact centre.[18] In those records there is mention of [V] hugging the father and sitting on his lap, [W] seeking him out and [X] and [Y] being happy to see him. [Z] hardly knew the father at separation but according to the records [Z] became used to the father after a period of time. The notes refer to the father playing with the children and responding to their needs.
[18] Exhibit F
The maternal grandfather’s evidence casts doubt however on the father’s claim that he had a good relationship with the children prior to separation. The maternal grandfather said as follows:
I have heard Mr Hagen yell at the children and send them to bed even if it’s the middle of the day. Whenever [Mr Hagen] is around I’ve noticed that the children appear very on edge, when he’s not around they are relaxed.
I accept the grandfather’s evidence, which was bolstered by the following evidence from Ms S:
When asked about anything that made her feel angry, [V] said when her father sent them to bed during the day and would not let them out. Her mother would come up and tell them to ‘Stay there and look out the window’.
The mother informed Ms S (and was not challenged on this evidence) that:
[W] was very quiet when [the father] lived in the home as he was scared of making a noise and angering his father.
Ms S’s evidence also casts doubt on the father’s claim that the children were happy to spend time with him after separation.
During the report interviews in October 2009 [V] was asked about seeing her father at the contact centre and said that she was “a bit scared because maybe her father would smack her.” [W] said that he did not like seeing the father at the Centre. [X] said that she felt frightened when her father smacked her.
Ms S expressed concern about a number of things which occurred during the observation session between the father and the child in October 2009 including the fact that the children were always instantly obedient to the father’s instructions, that the older children (with the exception of [Z]) were alert and highly responsive to their father’s cues, and that the older children were assiduous in trying to win their father’s approval.
[Z] was present at this session but showed no recognition of the father and while he accepted his father’s presence did not initiate contact with him.
Ms S expressed the following opinion in her November 2009 report:
Although the children – with the exception of [Z] – have an attachment to their father, this attachment is deviant and is fraught with fear.[19]
[19] Ms S’s report November 2009 page 46
I place weight on Ms S’s opinion. She is a clinical psychologist who has considerable experience in child protection matters. She gave her opinion in light of her observations of the children interacting with the father (and the accuracy of her account about that was not challenged) and in light of the other information available to her including the older children’s recollections of violence.
The children’s behaviour at the contact centre, on which the father relied, is not inconsistent with what Ms S observed in October 2009.
Ms S conducted another observation of the four older children and the father in November 2010. [Z] could not be separated from the mother and did not take part.
Ms S said that when the father entered the room and asked for a cuddle [V] stiffened, [X] stopped playing and looked anxious and [W] hid under a table, soon to be joined by [X]. [Y] went to the father with enthusiasm and constantly approached him for attention and affection.
[V] remained unresponsive for most of the session although at the end she spontaneously went up to the father and asked for a cuddle. [X] and then [W] emerged from under the table and sought the father’s attention. However Ms S observed that [W] hit the father and [Y] began to punch his arm and their behaviour became quite chaotic.
The session lasted forty five minutes and it was only during the last minute of the session that the father asked any questions about the children’s lives activities and interests. Ms S observed that the children showed “contradictory and disorganised behaviour toward their father.”
I do not accept that the children have a good and straight forward relationship with their father and there is force in Ms S’s observation that:
Common sense would attest to children being fearful of such a person who displays such repeated aggression.
As to the children’s relationship with the mother, in November 2009 Ms S observed that with the mother the children were “much less well behaved and more chaotic than they had been with the grandparents…”[20] [Z] showed no response to the mother leaving the room briefly and no appropriate reunion reaction.
[20] Affidavit of Ms S sworn 12 November 2009
All this had changed in November 2010 and Ms S said as follows:
The four older children were animated and chatty and all approached their mother and later their grandparents for affection or approval of their work. None was over familiar with me.
Ms S also commented, as detailed earlier, on the secure attachment [Z] now showed to the mother.
Ms M and Ms E, who have visited the mother and children at their home in [U], commented that during recent visits the family appeared “like a normal family.”
I am satisfied that the children have a good relationship with the mother.
I must consider the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent.
The mother is not willing or able to facilitate and encourage a close and continuing relationship between the children and the father. I accept that this arises out of the mother’s concern for children’s physical and emotional well-being and is an appropriate response by the mother to the risk the father poses to the children.
The father’s willingness and ability to facilitate and encourage a close and continuing relationship between the mother and the children was not an issue in the proceedings.
I must consider the likely effect of any change in the children’s circumstances.
An order that the father spend time with the children on three or four occasions each year will be a change for the children because they will commence seeing the father again after not having seen him for a year (save at the report interviews in November 2010).
Being required to see the father again, even in a supervised setting for a limited time, could be unsettling and traumatic for the children if they have ambivalent feelings about the father and remember him as a violent person.
One reason why it might be better however for the children to see the father occasionally in a safe setting rather than not at all is to keep the reality of him in the children’s minds, so that they do not fantasise about an absent father.
The father proposed that he have regular telephone communication with the children, which would also represent a change as he has had only one phone call with each of the children in the last twelve months.
Ms S’s view was that telephone communication should not occur, because if it would be traumatic for the children to see the father frequently having frequent telephone communication with him would also be traumatic.
Ms S was also concerned that it would not be possible to effectively monitor the telephone communication if it occurred regularly while the children were at home. There is considerable merit in Ms S’s concerns.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
There will be a practical difficulty and expense involved in the children spending supervised time with the father on three or four occasions each year.
There is no contact centre in [U] which can offer supervised time. There is a contact centre in [D], but there is no public transport between [D] and [U], and the mother has neither a car nor a licence. She has found it difficult historically to arrange help to transport all five children at the one time. The family does not fit into one normal family car.
The parties were hopeful that a venue for supervised contact could be sourced in [L], which is about the same distance as [D] from [U] but is on a public transport route.
I will draft orders so that preference is given to supervised time taking place in [L], but if there is no appropriate venue in [L] the mother will have to call on whatever assistance she can find to get the children to [D]. This should be feasible if the mother only needs that assistance three or four times each year.
I must consider the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs.
The mother is providing capably for the children’s needs at present.
The children and the mother live in suitable accommodation in [U]. The eldest three are attending school and the youngest two spend a few days each week in day care. Steps have been taken to deal with [W]’s turned eye. The mother has attended a Triple P parenting course.
In her November 2010 report Ms S said as follows:
The mother seemed far more ‘in control’ as a parent than a year ago, and the grandfather seemed to have withdrawn from his ‘parent’ role, and was just enjoying the children’s company. Generally the children were well behaved, though relaxed.[21]
[21] Affidavit of Ms S sworn 17 November 2010
Ms M and Ms E, who have regular contact with the mother and have visited her home, both commented that they could see no signs that the mother had relapsed as far as drug use was concerned, and no signs that she had re-partnered.
The mother has had domestic violence counselling since moving to [U] in 2010 and Ms E and Ms M both commented on the improvement they had observed in her self-esteem and self-confidence.
The mother has a difficult road ahead of her however and it is possible only to be cautiously optimistic about the future. She was involved in a violent relationship with the father for seven years and she began communicating with him and seeing him again not long after she broke off the relationship in April 2009, supposedly for good. The mother deceived a number of people, including the court, her parents and Ms S about the status of her relationship with the father during 2009 and early 2010.
Ms S stressed that there was a risk of the mother getting into another violent relationship unless she received counselling which confronted her about her contribution to the violence and did not allow her to simply see herself as the victim.
The mother was an intravenous drug user for a number of years, and the risk of her relapsing into drug use is a clear and present risk.
I am satisfied however that absent the mother relapsing into drug use or becoming involved in another violent relationship she has the capacity to provide for the needs of the children.
I am not convinced that the father has that capacity.
I am unconvinced that the children would be safe in the father’s unsupervised care given his past history of violence.
The father also has a long history of using intravenous drugs, and is at risk of relapse. He has in the past had serious problems with alcohol, and while he said that he now only drank socially, he has not engaged with a drug and alcohol counsellor nor has he had any assistance with moderating his drinking.
I must consider the maturity sex lifestyle and background of the children (including the lifestyle, culture and traditions) of the children and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
Matters relevant to this consideration have been dealt with elsewhere in the judgment.
I must consider the attitude of each parent to the children and to the responsibilities of parenthood.
Each parent showed a truly appalling attitude to the children and to the responsibilities of parenthood during the relationship, when their children were exposed to drug use, family violence and neglect.
The father showed a poor attitude to the responsibilities of parenthood when he threatened the children’s mother in June 2010.
I must consider any family violence involving the children or a member of the children’s family.
The children were exposed to family violence between their parents during the parties’ relationship and I do not accept the father’s denial that he ‘never hit the mother in front of the kids.’ Some of the children were exposed to the father committing violent acts against others.
The father’s propensity for violence has many ramifications.
There is a serious risk of the children being exposed to, or even subjected to, violence if they spend unsupervised time with the father.
As a result of the father’s past violent behaviour the children have an ambivalent relationship with him, part of which is governed by fear.
The father’s propensity for violence and aggression makes him an unsuitable role model for the children. The mother’s evidence (again unchallenged) was that while the family lived together [W] would hit her and tell her he hated her, saying
Dad hates you and I hate you[22]
[22] Ms S’s report November 2009 see also mother’s affidavit filed 17 June 2009 paragraph 24
After separation the mother experienced challenging behaviours from [W] which included hitting her and glaring at her in the way the father used to do.
I place weight on Ms S’s opinion that:
The father’s behaviour during family life has been extremely damaging for his children. This has especially been the case for [W], who has the propensity without radical change in his situation to grow up into an Anti-Social and violent person like his own father. He has already in the past ‘mimicked’ his father’s violent behaviour to his mother, in ways which are quite deviant. [W] especially from now on, needs a strong male role model who can provide him with appropriate moral development. In my opinion [the father] will be unable to provide this and will likely provide deviant role modelling for him if there is prolonged and unsupervised contact between them.[23]
[23] Ms S’s November 2009 report paragraph 46.
Supervised time might protect the children from any risk of being subjected to actual physical violence by the father or exposure to his violence to others, but Ms S’s opinion, on which I place weight, was that even spending supervised time with the father was likely to be traumatic for the children because of its potential to revive their memories of violence and because of their ambivalent relationship with him.
I must consider any family violence order concerning the parents or any member of the family.
There is a current family violence in place for the protection of the mother, taken out after the threats made by the father in June 2010, and an order in place for the protection of the maternal grandparents taken out following the threats made by the father to them in June 2010.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
An order providing some way forward for the father is perhaps the order least likely to lead to further proceedings.
Parental Responsibility
The presumption in s.61DA of the Family Law Act concerning equal shared parental responsibility does not apply, because both parents have committed acts of family violence.
The mother sought an order for sole parental responsibility and during the hearing the father agreed that this order should be made, subject to asking the court to rule on the issue of the children’s surnames.
I am satisfied that an order that the mother have sole parental responsibility would be in the children’s best interests. It is undesirable that there be any excuse for the mother to contact the father and in addition the father will not be seeing the children very frequently in the immediate future.
Conclusion
During final submissions the father’s counsel conceded that in the light of the evidence all his client could hope for at present was an order that he spend supervised time with the children on three or four occasions each year as recommended by Ms S.
The father’s counsel asked the court however to consider making provision for the father’s time to increase and perhaps move to unsupervised time if the father was able to demonstrate that he had made some changes.
The father’s counsel was not able to suggest a suitable order, and I have some sympathy with his predicament.
This is not a case where it would be appropriate to reconsider the father’s time if he completed a six session anger management course. The father has committed many serious and in some cases potentially life threatening acts of violence. He showed no recognition during the hearing of the enormity of his past conduct and no recognition of the effect that it had had on his children. He made excuses about and tried to justify most of his violence and there was no evidence on which I could find that the father was even motivated to try to change his behaviour.
The father’s past drug use and the connection between alcohol consumption and some of his offences is also a concern. The father has not been motivated to date to undergo any drug or alcohol counselling.
If the father stayed out of any trouble with the police for years, rather than months, this might be a basis for a reconsideration of his time, but any reconsideration of the father’s time would have to occur in conjunction with a further assessment of the children and of the impact on them of an order that they spend increased time, or unsupervised time, with the father.
I concur with Ms S’s view that it would not be protective of the children to make an order that the father spend increased or unsupervised time with the children if the mother considered it appropriate, because the mother has not demonstrated good judgment in past concerning the children’s interaction with the father.
I do not intend to give the father a “get out of jail card”. He retains however the right to bring an application in the future if he considers that he can present evidence that his attitudes and propensities have changed and that he no longer poses a risk to his children and would be a positive role model for them.
In my view it would have been open to the court to make an order that the father spend no time with the children. Ms S recommended however that time occur on three or four occasions each year “for recognition purposes” and as the mother’s Counsel and Counsel for the Independent Children’s Lawyer both supported this then it is the order I will make.
I intend to order that the time occur on three occasions rather than four each year given the significant difficulty the mother will face in getting all five children to a contact centre.
During final submissions the father’s counsel pressed for an order for telephone communication. He said that there was reason to be concerned about the mother’s parenting as well as the father’s and that if the father had telephone communication with the children he might be alerted to any problems and thus be able to do something about them.
Ms S did not support this proposal, and there is merit in the view that the children are as likely to find regular telephone communication as difficult as regular face to face communication.
In any event while I accept that there is some risk of the mother relapsing into drug use or making another poor choice concerning a personal relationship, I am not convinced that any problems with the mother’s care of the children are likely to reveal themselves during telephone communication or that an order for telephone communication should be made simply to allow the father to keep tabs on the mother.
I therefore do not intend to make an order for telephone communication.
The surname issue
On their birth certificates the children have different surnames. [V], [W] and [X] having the surname Schulz and [Y] and [Z] having the surname Hagen.
This has occurred because the births of [V], [W] and [X] were only registered after separation and the mother, who applied for the registration, requested that the children’s surnames be Schulz.[24] The births of [Y] and [Z] were registered during the parties relationship and by agreement they were given the surname Hagen.
[24] See mother’s affidavit filed 17 June 2009 paragraph 21
Until separation all five children were known as Hagen. The mother used this surname (with some misspellings) for all of the children when she filed her initiating application in April 2009. However [V], [W] and [X] are now known as Schulz at school.
It was common ground that the children should all have the same surname.
The mother pressed for the surname to be Schulz and in favour of the mother’s position are the facts that the mother will continue to be known as Schulz and pursuant to the orders I make the children be living with her and spending very limited time with the father.
Although the children were known as Hagen until the parties separated in April 2009, [V] and [W] were enrolled as Schulz when they commenced at [U] school in February 2010 and they have been known by that name at school for twelve months. [X] is also known as Schulz at school. It is reasonable to assume that [V] and [W] in particular have become used to that name.
The father pressed for the surname to be Hagen but during final submissions his counsel indicated that the father would be content for the children to be called Hagen-Schulz.
In favour of the father’s position is that by agreement Hagen was the children’s surname until separation.
The father will not be having much contact with the children, but through him the children are connected to a larger paternal family and their connection to this family is part of their background and heritage. If the children continue to use the Hagen surname they will not lose sight of this connection, even if they do not see the father frequently.
As Ms S pointed out when asked about this matter in cross-examination the children’s surnames is one of the least important issues in this case.
The order I intend to make is that the surnames of all five children be Hagen-Schulz, but that the mother be permitted to enrol them at school and in extra curricular activities under the surname Schulz. This will cause the least disruption for the school age children and may make the mother’s life a little easier on a day to day basis, but will ensure that the children do not lose all connection with the Hagen part of their background.
For all of the above reasons the orders of the court are as set out at the beginning of this judgment.
I certify that the preceding two hundred and ninety-six (296) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate:
Date: 2 June 2011
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