SELLERS & TALLIS

FAMILY COURT OF AUSTRALIA

SELLERS & TALLIS

[2013 ] FamCA 241

FAMILY LAW – CHILDREN – where the parties have a significant history of violence – where the father has threatened to kill the mother – whether the father poses an unacceptable risk to the children – where it was in the children’s best interests to live with their mother and not spend time with or communicate with their father – where the father was restrained from living or coming within 15 kilometres of the town in which the mother and children live – where the father was restrained from coming into contact with the mother’s new partner and the maternal grandparents

Family Law Act 1975 (Cth)

APPLICANT:

Mr Sellers

RESPONDENT:

Ms Tallis

INDEPENDENT CHILDREN’S LAWYER:

Ms Lehmann

FILE NUMBER:

BRC

5382

2011

DATE DELIVERED:

15 April 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Cairns and Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

7 - 9 November 2012 (Cairns); 11 February 2013 (Sydney); 13 March 2013 (Cairns)

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Victoirre

SOLICITOR FOR THE RESPONDENT:

Northern Beaches Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wilson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lehmann Featherstone Lawyers

Orders

Orders made 13 March 2013

All prior parenting orders be discharged.
The mother have sole parental responsibility.
B born … May 2001, C also born on … May 2001, D born on …July 2002, E born on … April 2005 and F born on … June 2006 (“the children”) live with the mother.
The father is hereby restrained from spending any time with the children and from having any communication with the children.
For the personal protection of the mother and the children, and pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth), the father, Mr Sellers born (… August 1976) is prohibited and restrained from:-
5.1.harassing molesting or stalking the mother, Ms Tallis and the children;
5.2.causing or threatening to cause bodily harm to the mother and/or the children;
5.3.approaching the mother and/or the children or their place of residence from time to time, their place of employment from time to time or coming within 100 metres of those places;
5.4.spending time with or attempting to contact or approach the children or attending the children’s school or any of the children’s extra curricular activities from time to time;
5.5.living or coming within a 15 kilometre radius of K Town, apart from driving a motor vehicle at normal speed through K Town in order to get from one side of K Town to the other side;
5.6.attending any sporting event at either G Club or H Club.
It is noted that pursuant to s 68C and s 122AA of the Family Law Act 1975 (Cth), where a police officer (Federal or State) believes, on reasonable grounds, that the father, Mr Sellers, has since the injunction was granted, breached the injunction by:-
6.1.causing or threatening to cause bodily harm to the person or persons referred to in order 5; or
6.2.harassed, molested or stalked any one or other of those persons,
the police officer may arrest Mr Sellers without warrant and may use such reasonable force as is necessary to make the arrest or to prevent his escape after arrest.
Pursuant to s 114(3) Family Law Act (Cth) the father, Mr Sellers (born … August 1976) is prohibited and restrained from:-
7.1.harassing molesting or stalking Mr J, the maternal grandmother or the maternal grandfather;
7.2.causing or threatening to cause bodily harm to the persons referred to in order 7.1;
7.3.approaching to the persons referred to in order 7.1 or their place of residence from time to time, their place of employment from time to time or coming within 100 metres of those places.
It is noted that pursuant to s 114AA and s 122AA of the Family Law Act 1975 (Cth), where a police officer (Federal or State) believes, on reasonable grounds, that the father, Mr Sellers, has since the injunction was granted, breached the injunction by:-
8.1.causing or threatening to cause bodily harm to the person or persons referred to in order 7; or
8.2.harassed, molested or stalked any one or other of those persons,
the police officer may arrest Mr Sellers without warrant and may use such reasonable force as is necessary to make the arrest or to prevent his escape after arrest.
I request the presiding Magistrate, State Magistrates Court in K Town, give consideration, in any proceedings which have been commenced for the purpose, to making protection orders under State Legislation providing similar protections to those that I have provided in these orders.
The mother deliver the five back packs to the Cairns Registry Manager who is to notify the father that the back packs are in the Registry. Should the father not make an arrangement at his own cost to have those back packs delivered to him within a period of one month, then the Registry Manager shall contact the mother and the mother will be at liberty to pick those back packs up again and retain them.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sellers & Tallis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: BRC 5382 of 2011

Mr Sellers

Applicant

And

Ms Tallis

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 13 March 2013 when I made final orders in this matter, I indicated I would provide reasons at a later time. These are the reasons for making those orders.
The parties to these proceedings were in a highly conflictual relationship characterised by intimidation, coercion, and family violence perpetrated by the father. The father continues to exercise a degree of control over the mother. The main issues are whether the children should continue spending time with and communicating with their father and what limitations should be placed upon the father coming near the children and those persons who are close to the children.

APPLICATIONS

The mother changed her position as a result of hearing the evidence. She maintained her application for sole parental responsibility and that the children live with her. Initially in her Amended Response filed 16 October 2012, the mother sought that the children spend time with the father in accordance with the recommendations in the Family Report. Those recommendations were that the children have supervised time and supervised telephone communication with the father only once he had attended Focus on Kids and completed a parenting program, such as Triple P. The mother indicated that she was happy for the children to see their father so long as it was in a safe environment.
At the end of the first period of the final hearing, the matter was adjourned, part heard. The mother’s position changed when the matter came back before me on 11 February 2013. She sought that the children spend no time with the father and do not communicate with him. Her application was supported by the Independent Children’s Lawyer.
The mother also sought injunctive orders that restrained the father from living or coming within 10 kilometres of the town where she and the children lived (K Town), and restrained him from coming within 100 metres of her, her partner, the children, and the maternal grandparents. The Independent Children’s Lawyer supported the mother’s application, but sought that the restraint in relation to the town where the mother and children lived be widened to 15 kilometres. At the final stage of the hearing on 13 March 2013, both the mother and the Independent Children’s Lawyer sought that the restraint be 15 kilometres.
The mother and the Independent Children’s Lawyer also sought injunctive orders to restrain the father from approaching the children’s school, or places where they attend extra curricular activities. The mother and the Independent Children’s Lawyer both sought an order that prevented the father from attending sports facilities at K Town, particularly G Club and H Club.
The father sought shared parental responsibility. He sought that the children live with him and be with the mother during the school holidays, subject to the children not coming into contact with the mother’s partner or the maternal grandmother. The father also sought the children have unlimited phone contact with their mother. In his Initiating Application, the father proposed that the mother spend time with the children on alternate weekends, however in his oral evidence he clarified that would only be in circumstances where the mother permanently moved back to the Brisbane area (where the father was residing during the first part of the hearing).
The father failed to participate during part of the second last day of the hearing or at all on the final day of the hearing.

DOCUMENTS RELIED UPON

The applicant father relies on the following:
9.1.Initiating Application filed 23 June 2011
9.2.Father’s affidavit filed 6 November 2012
9.3.Father’s affidavit sworn 21 June 2011
The respondent mother relies on the following:
10.1.Amended Response filed 16 October 2012
10.2.Mother’s affidavit sworn 19 September 2012
10.3.Affidavit of Mr L sworn 15 October 2012
The Independent Children’s Lawyer relies on the following:
11.1.Family Report written by Ms M dated 26 March 2012

SHORT HISTORY

The father was born in 1976. He is currently aged 36 years.
The mother was born in 1982. She is currently aged 31 years.
The parties commenced cohabitation in January 2000.
The parties’ twin girls B and C were born in May 2001. They are currently aged 11 years.
The parties’ child D was born in July 2002. He is currently aged 10 years.
The parties’ child E was born in April 2005. She is currently aged 8 years.
The parties’ child F was born in June 2006. He is currently aged 6 years.
In November 2009, the parties separated.

CREDIT

Father

The father has an extensive criminal record in two States and the Northern Territory involving, inter alia, many offences of dishonesty.
The father’s presentation during the first part of the hearing varied between subliminal anger and barely suppressed fury. He was fidgety throughout, jumpy and seemed at any moment likely to vent his aggression. His posture both in the witness box and at the bar table was at times defiant and disrespectful, for example laying back in his chair with his hands locked behind his head. These observations go to the credibility of the mother’s assertion in relation to family violence and the intimidation that she felt being with the father.
The father’s denials of aggression were inconsistent with the way he presented himself in the witness box.
The father said he never used speed in his entire life. There is evidence, which I accept, that the father had previously admitted he had done so.
The father on occasions appeared brutally honest but on other occasions his version and recollection of events did not accord with the objective records that have been tendered in evidence.

Mother

The mother gave compelling and cogent evidence about particular events in respect of which I accept she has an indelible memory. She gave her oral evidence in a consistent and forthright way.

Conclusion on the credit of the parties

Where there was a difference in the evidence given by the mother and the father, I accept the evidence given by the mother.

Mr L

Mr L, the mother’s partner, appeared initially nervous in the witness box. At first he mumbled and spoke with a slight stutter although he gained confidence after a while. When cross-examined by the father, he did not react to the father’s belligerence.
When the father attempted to impugn Mr L’s credit and put to him that Mr L had once called him a wanker, Mr L acknowledged that he said that (that insult is nothing compared to the abuse directed by the father towards Mr L). Mr L gave his answers without any hint that those answers were confected or coloured by some other greater emotion. Where there is a difference in the evidence between Mr L and the father, I accept the evidence given by Mr L.

DETAILED CHRONOLOGY

The father was born in 1976. He is currently aged 36 years.
The mother was born in 1982. She is currently aged 31 years.
The mother’s new partner Mr L was born in 1984. He is currently aged 28 years.
The father’s new partner Ms N was born in July 1990. She is currently aged 22 years.
The parties commenced cohabitation in K Town in January 2000.
In May 2000, the father hit the mother in the face, punched her in the stomach, and slammed her against a wall.
Around June or July 2000, the parties moved to the Northern Territory.
The parties’ twin girls B and C were born in May 2001. They are currently aged 11 years.
In 2001, the father barricaded himself in his bedroom with the baby girls, refusing to allow the mother into the room. The police were called to the home.
Around July 2002, the father punched the mother in the stomach while she was 7 months pregnant. The mother’s waters broke two days later.
The parties’ child D was born in July 2002. He is currently aged 10 years.
In March 2004, the father threatened to take the children. The mother threatened him with a knife to stop him.
The parties’ child E was born in April 2005. She is currently aged 8 years.
In 2005, the father was incarcerated for three months for Centrelink fraud.
The parties’ child F was born in June 2006. He is currently aged 6 years.
On 17 December 2007, the father had been verbally and physically abusing the mother. The mother threw a can of Mortein at the father’s head and the father sustained an injury. The father retaliated by pinning her against the wall by her throat and hitting her head against the back of the wall. The mother fell to the ground. The father continued to kick the mother when she was in the foetal position.
In November 2009, the mother questioned the father over a text message he had received from Ms N. The father “king hit” the mother and she fell against the mirror in their bedroom. B witnessed the assault.
In November 2009, the parties separated. The mother relocated with the children to North Queensland. Around this time, the father commenced a relationship with Ms N.
In May 2010, the mother commenced cohabitation with Mr L.
In September 2010, C and B went to Brisbane to spend time with the father and Ms N.
On 29 November 2010, the father rang the mother and threatened to kill her and the maternal grandparents. As a result of this incident, a domestic violence order was made in favour of the mother against the father.
On 17 February 2011 the father was convicted for breach of a domestic violence order.
On 7 July 2011, the father sent the mother a text message which said “It’s that [referring to the parties reconciling] or I put a bullet in him [Mr L] so no-one has you.” In her statement to police, the mother says she also spoke to the father on the phone later that day and he “gave [her] two options”; either she ended her relationship with Mr L and rekindled her relationship with the father or the father would “put a bullet in [Mr L’s] head and if that didn’t work he was going to put a bullet in [her] head and his own because if he couldn’t have [her] then no-one can.”
On 13 September 2011, consent orders were made providing that the children live with their mother and have supervised time with their father, although this never occurred. The orders also provided that the father have telephone contact with the children on alternate weekends.
The hearing commenced before me on 7 and 8 November 2012. The hearing was part heard, because the Family Consultant became unable to give evidence on either of those days.
The hearing continued on 11 February 2013. The father did not appear until late in the afternoon. I made interim orders, inter alia, preventing the father from spending time with or communicating with the children until the hearing recommenced on 13 March 2013.
On 13 March 2013, the hearing continued in Cairns. The father did not appear. Despite being afforded the opportunity to file further material, he did not do so. I made orders and reserved my reasons.
The current domestic violence order expires in April 2013.

THE FATHER’S PARTICIPATION IN THE FINAL STAGES OF THE HEARING

The father was in court on 8 November 2012 when the matter was adjourned part heard to 11 February 2013.
It had been expected on 11 February 2013 that the evidence would be finalised by the parties, particularly the father, asking questions of the Family Consultant. The father was to participate by video link from the Brisbane Registry and for that purpose arrangements had been made for the father to attend the Brisbane Registry. The Family Consultant attended via video link from Townsville, the mother and the Independent Children's Lawyer in the Cairns Registry, and I in Sydney.
At 10am Queensland time there was no appearance by the father. The interim orders that had been previously engrossed had been forwarded to the father’s address and returned marked “RTS”. The mother informed the court that she was not aware of the current whereabouts of the father, although she suspected he may have moved to K Town because of things that he had said to her. Evidence was given both by the solicitor for the mother and the mother relating to the contact they had had with the father since the matter had been adjourned. Absent any explanation as to why the father had not attended (when he clearly was aware the matter was listed for the completion of the part heard matter), and absent any knowledge about his current whereabouts, the matter proceeded to the conclusion of the evidence and submissions by the Independent Children's Lawyer. The Family Consultant gave evidence and answered questions asked of her by counsel for the Independent Children's Lawyer and by counsel for the mother.
Having heard that evidence, the mother changed her application for final orders seeking the father have no contact with the children (as opposed to the potential for supervised contact). The Independent Children's Lawyer also suggested to the court it would be in the best interests of the children for them not to have any contact with their father.
I was subsequently informed by counsel for the mother that the father had made contact with the mother during the lunchtime break to make a fairly innocuous inquiry as to whether or not he could receive a copy of a photograph of the children that appeared on the mother’s Facebook page. The mother told him that she was at court and terminated the conversation.
The mother’s lawyers were unable to track the telephone number from which the father rang the mother’s mobile because it was a private number. They did however leave the mobile switched on in court.
Given that there had been a significant change in the application made by the mother and the Independent Children's Lawyer, any orders that were crafted would have to afford the father procedural fairness and would be conditional upon him having an opportunity to provide the court with any further information and submissions in relation to the mother’s and Independent Children's Lawyer’s changed proposals.
While in court, the lawyer for the mother received a telephone call on the mother’s mobile from Ms N and had a conversation with her and as a result contact was made with the father. He was able to participate in the hearing thereafter by telephone.

The father indicated to the court that the reason he had not participated in the proceedings on 11 February 2013 was because he had formed the view that he had reached agreement with the mother on a final basis in relation to arrangements in respect of the children. He asserted that in a conversation he had had with the mother, she had indicated that she had no objection to him moving to O Town, a town which is approximately 7.8 kilometres from K Town (see exhibit 6), as long as he stayed right away from her and Mr L and the maternal grandparents.
The father’s position was that once he moved to O Town he would have as much unsupervised time with the children as he wanted. The mother indicated that she did not want to agree to that.
In any event, that agreement was before she heard the oral evidence from the Family Consultant.
The father confirmed that he was in the process of packing up and moving to O Town. He said O Town was the only place that he could find a caravan. The father said that he had left his previous job the week before (that was a secure job about which evidence had been given during the first part of the hearing). He said he had secured a job with a man named Mr P in Q Town in a similar position to his previous position.
As a result of the father re-engaging in the process of the hearing, it was clear that:
69.1.The father needed to be afforded an opportunity of obtaining a transcript of the evidence that had been given by the Family Consultant earlier in the day;
69.2.The father should have another opportunity to do what had previously been arranged, namely:
69.2.1.for Ms N to put on some evidence and be available to be questioned on that evidence;
69.2.2.to consider receiving into evidence a tape recording of a conversation the father said he made when he “set the mother up”. The father asserted that that tape recording contained an admission by the mother that he never hit the children at any time;
69.3.The father had previously indicated that he wanted to ask questions of the Family Consultant and that opportunity needed to be given to the father.
The matter was subsequently relisted in the Cairns Registry and directions were made to facilitate all that happening.
At the conclusion of the day I made interim orders based on the evidence (as yet not fully tested) from the Family Consultant. Based on that evidence, orders were made restraining the father from going within a 15 kilometre radius of K Town (apart from being able to drive through the town) and other complementary restraining orders in relation to the father approaching the mother, her partner, the maternal grandparents and the children.
The father’s response to the mother’s application and the interim orders was extreme. On more than one occasion he became so angry he was unable to continue:
HIS HONOUR:   All right. Well, what I’m going to do, [Mr Sellers], is I’m going to give you an opportunity to put on an affidavit, if you want to, about why you weren’t here today and what you – what arrangements you say you had entered into with the mother. I’m going to make an order that you not ‑ ‑ ‑
[MR SELLERS]:   [speaking to Ms N] You deal with him. You deal with him.
HIS HONOUR:   Hello?
[MS N]:   Hello?
HIS HONOUR:   Is that [Ms N]?
[MS N]:   Yes, it is, your Honour. He has just stormed out.
… [after the father returned]
HIS HONOUR:   [Mr Sellers], I am going to make some interim orders based on what I’ve heard today. I haven’t made any final determination about whether or not they will become final orders and that’s what I will hear on 13 March but the orders are to the effect that the – any time or any communication between you and the children will be suspended until 13 March. You are not to live or come within a 15 kilometre radius of [K Town] apart from driving a motor vehicle at normal speed through [K Town] in order to get from one side of [K Town] to the other side of [K Town] if you need to. You are not to come within 100 metres of any place where either the mother, [Mr L] or the children are. Obviously, that order applies to anywhere outside the 15 kilometre radius I have just spoken about. The order obviously would prevent you from going anywhere near the children’s schools or ‑ ‑ ‑
[MR SELLERS]:   Fuck you. [The father left again]
[MS N]:   Are you there?
HIS HONOUR:   [Ms N], are you there?
[MS N]:   Yes.
HIS HONOUR:   Can you, when [Mr Sellers] calms down can you explain to him ‑ ‑ ‑
[MS N].:   Yes.
HIS HONOUR:   ‑ ‑ ‑ that I’m making some orders.
[MR SELLERS]: [in the background] I want that stuff [referring to back packs he had sent to the children] sent back today.
When the hearing resumed in Cairns on 13 March 2013, the father did not appear. He did not file any additional affidavit material. He did not send the tape recording to the registry. The father’s absence was unexplained. The matter proceeded. Counsel for the mother made final submissions and I made orders, reserving my reasons.

MAJOR ISSUES

The paternity of F

The father conceded that he had at times denied the paternity of all of the children.
During cross-examination the father indicated that he doubted that he was F’s father. He said that he doubted F’s paternity because he believed he was in gaol at the time of conception. He also said that shortly after he got out of prison he was having a sexual relationship with his “ex-boss’ ex-wife” and that as a result a child was conceived at that time. That child and F are about the same age. When I calculated for the father the likely conception date of F (given that he was born four weeks prematurely), that date was about a month after he had been released from prison. The father conceded he had intercourse with the mother at about that time. The mother said she had no doubt that F was the father’s child and was prepared to have DNA testing if necessary. It is not necessary. There is a presumption that F is the father’s child and there is no basis for finding that that presumption is rebutted.
Apart from the five children who are the subject of this application, the father also has another son who lives in R Town whom he visits from time to time (the father, I think flippantly, said he was not entirely sure as to how many other children he had).

Family violence and the father’s aggression

The history of some of the major incidents of family violence are summarised in the chronology above. The history is important. It has led to a position where the mother, I accept, is still significantly fearful of the father. I accept that the mother is genuinely of the belief that had she not left the relationship when she did, she would no longer be alive.
The mother commenced a relationship with the father when she was 17 years and 8 months old. She said the relationship had been in existence five months when the father first punched her.
The father conceded that he had physically hit the mother during their relationship.
The mother gave evidence of a number of incidents of violence in a very compelling way and I accepted that she was being truthful in her recollection of what had happened. During their relationship, the mother was at risk when she questioned the father’s judgment and sometimes just when he came home from work in a bad mood. The mother gave particularly compelling evidence when she said that she pleaded with the father not to hit her in the head because if she was hit in the body it was easier to conceal the bruises. She said if she cried when struck, that would only make matters worse. He would tell her to “shut the fuck up” and “get over it”. She said she just learnt to “suck it up”.
I accept the mother’s evidence that the children were aware that the family violence was happening. I accept the mother’s evidence that they definitely heard it. I also accept that it was mainly the three elder children who saw the father hit the mother.
There was an incident early in the parties’ relationship (2001) where the father had gotten upset that the maternal grandmother and maternal aunt had bought dresses for the twins. He took the view that if the twins needed clothes he would buy them. He barricaded himself in his bedroom for a considerable period of time with the twins in with him. Exhibit 1 includes subpoenaed material from the Northern Territory Police. On this incident, the police recorded:
[The mother] reports her defacto [the father] has barricaded her 4mth old twin daughters inside the house in [S Street, T Suburb] & refuses to let anyone in or out. [The mother] is concerned for the welfare of her daughters… [Ms U] from child welfare contacted… FACS [Department of Family and Community Services] to attend station & follow up…. Members attended & stood by whilst matter was sorted btwn [sic] [the mother], [the father] & FACS representative. [The father] states that he will be leaving the premises & travelling to Qld. [The maternal grandfather] (who has lease on house) will return from out bush tonight. He will enforce that [the father] leave. [The mother] advise [sic] as to her rights & informed of options re restraining order.
The mother gave compelling evidence about the occasion in March 2004 when she had to defend the children with a knife in circumstances where the father was attempting to take the children. The mother described how the father was “off his head” on drugs. She formed the view that it would have been highly dangerous for the children to be alone with their father in his drug affected state. The mother said that she has seen the father use marijuana over a long period of time and is able to tell when he has been taking a substance other than marijuana.
The mother freely admitted that she threw a flea bomb at the father in December 2007. She said that she didn’t mean to hit him but that it struck him on the temple and he had a small graze on his head. In his oral evidence, the father asserted it was not a small graze. He said his face was covered in blood. Although he asserts the injury required stitches, he said he did not seek medical attention because he does not like needles (despite his numerous tattoos). The police report on this incident (Exhibit 1) records “Although the agg[rieved father] had received a minor graze to the head he did not wish to seek medical attention.” However the note also records “[the mother] …threw a can of Mortein at the Agg[reived father] hitting him in the head and causing an inch long cut.” I accept the mother’s version of that event. The mother says after the father had sustained the injury to his head he pinned the mother against the wall by her throat and hit her head against the back of the wall and then after she had fallen to the floor, continued to kick her while she was in the foetal position. He then threatened to kill her. The father told the Family Consultant “I have admitted I punched her in the head”. I accept the mother’s version of the events that took place after the father was injured. I also accept that when the police came she did not tell the police how sore she was because she believed that if she had told the police it would have only made matters worse for her (particularly in circumstances where the father was sitting next to her while she was being interviewed).
At separation (November 2009) the parties had an argument over money but also over a text message the mother found on the father’s phone from Ms N. In oral evidence the father seemed to deny that he “king hit” the mother during this argument but seemed to concede that he hit her. The following exchange occurred:
THE FATHER: …I do remember that because it was her left hand side of the face that was all bruised because I was sick of her shit going through my phone.
COUNSEL FOR THE MOTHER: The incident you referred to as the king – when she was king hit, that was the last occasion which led to the separation?
THE FATHER: That’s right.
COUNSEL FOR THE MOTHER: That’s correct?
THE FATHER: And why was the reason for doing it? Because I was sick of paying for everything…
…
COUNSEL FOR THE MOTHER: So you considered that that – your reaction to that incident in terms of the argument over the money and the text messages, you think that reaction of yours was appropriate?
THE FATHER: If I was getting punches thrown at me too, hands getting thrown at my way, why shouldn’t I react?
I accept the mother’s version about what happened in this argument and that she was in fact “king hit” to the side of the face.
The father denied B witnessed him king hit the mother. He reasoned that she could not have witnessed anything because “there were no kids inside, the kids were outside.” The father denied the children had ever witnessed any physical altercation between the parties. He conceded the children had witnessed the parties verbally arguing. I accept the mother’s evidence that B witnessed the father king hit the mother during the argument that led to separation.
In November 2010, a domestic violence order was made in favour of the mother against the father. That order was a result of the father phoning the mother and threatening to kill her, kill the maternal grandparents and take the children. In July 2011, the father made further threats to kill the mother and Mr L. In oral evidence, the father conceded that in the past he had threatened to shoot the mother and her partner. He said that he had done this in anger. He also conceded that when he made the threats he was serious. The fact that the father was in Brisbane and the mother and her partner were in Cairns meant that there was time for the father to cool off. I have no doubt however that this whole series of threats was quite distressing for both the mother and her partner.
The father claims that he no longer has any thoughts of killing the mother or Mr L and that he has subsequently participated in an anger management course. It is possible that the anger management course did the father some good because he was able to manage not to totally lose it during the first part of the hearing (although as I indicated above, the level of his subliminal anger was palpable). The father was not however able to control himself on 11 February 2013.
In cross examination, the father agreed the children have overheard him on the phone threatening to kill the mother. When asked what effect he thought that had on the children he said “I know, it hurts… it hurts them. ‘Oh we won’t see our mum.’ But it’s alright for them to not see their dad?!” This is a serious admission made by the father but which frames what he had said to the children in terms of his own anger and pain rather than any effect it might have had on the children.
During the hearing there was a moment that gave some insight into the pattern of coercive violence that existed during the parties’ relationship. The mother had become distressed about giving evidence about a particular matter. The father gently told the mother that things were okay. The mother turned away and asked him not to talk to her. That particular moment was an example of the method of control by the father over the mother during the period of time they were together and is indicative of the cycle of coercive family violence in which the mother enmeshed with the father for a long period of time. The cycle included gentle and affectionate behaviour by the father following intimidating conduct.
The mother gave evidence that the father had tried to reconcile with her. The father conceded that in 2010 (at a time when he had broken up with Ms N) he called the mother and suggested they get back together again. At that time he was prepared to go back to K Town to reconcile, if the mother would leave Mr L.
The current domestic violence order expires in April 2013 but the mother has indicated that she intends to get it renewed.
The father denied being aggressive towards the Family Consultant as set out in the family report and said that if he wanted to be aggressive he would have been aggressive and that if that had happened, the police would have been called. I do not accept the father’s denial. I accept the Family Consultant has accurately reported the father’s level of aggression on the day of the interviews.
I accept the mother is still significantly fearful of the father.
I agree with the Family Consultant’s assessment that “while physical violence may have ended when the couple separated… the pattern of emotional coercion and parental control has continued past separation.”

The father’s aggression towards the children

The father denied that he had laid a hand on the children. Specifically he denied that he had ever twisted the ear of any of the children. The mother gave sworn evidence that the father had physically disciplined the children and I accept her evidence about that.
The mother gave evidence that the father was most physically aggressive to D who is the elder boy. I accept the mother’s evidence that the father was rough with D and twisted his ear.
I also accept the mother’s evidence about how the father would withdraw his emotional affection from the children saying to them “come and give me a cuddle” and as they came near saying “fuck off” and that the children got used to it and that it had become second nature to them and what daddy did.
The mother described how the father “destroyed” D every time he was on the phone. I accept that D would curl up in a foetal position in a corner when his father yelled at him.
At one point in his evidence, the father indicated that if supervised time was ordered in Cairns, he would not see the children.

Family violence between the father and his current partner

The father’s relationship with Ms N commenced in October or November 2009.
Exhibit 1 includes documents from the Queensland Police. In those documents there is a record of an incident of domestic violence between the father and Ms N. Under the heading “Previous DV incidents”, the police have recorded “[b]oth persons stated that whilst they resided in [R Town], [the father] actually hit [Ms N[1]], however Police were not called.”
[1] I note Ms N’s name is redacted in Exhibit 1 but, as I discuss, it was clear from the father’s evidence that the person being referred to was Ms N, his partner.
In oral evidence, the father denied that he hit Ms N. He said “I’m just saying, [Ms N] put that in there when we were breaking up… I never hit her”. I do not accept that the police would write “both persons stated” without receiving information from both the father and Ms N. I accept the police have accurately recorded the father’s admission. I do not accept the father’s denial to me.

The mother’s relationship with Mr L

The mother’s relationship with Mr L commenced in early 2010.
The mother describes her relationship with Mr L as a very positive one. She said that she would be lost without him. The mother used the expression “he is the dad that they [the children] haven’t got” (the father became visibly agitated when the mother used this phrase) but the mother quickly added that she tells the children that Mr L is not dad and that they’ve got a dad. It is clear that the mother believes that Mr L is a positive role model for the boys in particular. I accept that Mr L helps the children with their homework.
Up until recent times Mr L had been in full time employment and intended to go back to work as soon as he found a new job. I accept the evidence of the mother and Mr L that there has not been any physical family violence between them although in the early days they did argue on occasions. Their relationship seems now far more settled and they plan to marry when this case is behind them.

Drug use

The father said during oral evidence that he used to be a drug dealer and informant for the police and that he knew a large number of people at K Town who were part of the drug scene.
Exhibit 1 includes documents from the Department of Child Safety. In those documents, there is a record of interview between a departmental worker and the father. The departmental worker has recorded “the father indicated that he is not abusing speed or other drugs however he admitted that he had done so in the past.” The father asserted in his oral evidence that he had never used speed in his entire life and only “smoked a bit of weed”. I do not accept that evidence. That is not consistent with the admission by the father recorded in Exhibit 1 or with the mother’s evidence he “used cannabis throughout the relationship” and that he was on something stronger than “weed” when she felt compelled to defend her children with a knife in March 2004.

The father conceded that he once had a big drug habit and smoked amounts of marijuana every two to three days. The father first commenced smoking marijuana when he was 10 or 11 years of age and smoked the drug for about 20 years. He says he has not smoked since he was about 31 years of age (about 5 years ago).
The father smoked cannabis openly in front of the mother in the house throughout their relationship. The mother described the father as becoming aggressive quickly after he had been using marijuana. The mother believes the reason the father committed Centrelink fraud was to fund his drug habit.
The mother admitted smoking cannabis up until the time the twins were born.
Mr L gave evidence that he had used marijuana for a period of about three months, more than five years ago. He denied the father’s assertion that he bought marijuana from the father. I accept that Mr L smoked cannabis for a limited time and was a member of a general group of friends to whom the father supplied drugs. I accept the mother’s evidence that Mr L no longer uses marijuana and that she would not continue the relationship with him if he did.

Criminal history of the father and Mr L

The father said he had not been in trouble since 2003. The father did not seem to recognise that breaching a domestic violence order (for which he was convicted in 2011) is a criminal offence. The father held some animosity towards the maternal grandmother who he blamed for “dobb[ing] him in” for Centrelink fraud (for which he went to gaol for three months).
The father has an extensive criminal record prior to 2003. In New South Wales, he has been charged and fined in relation to stealing. In the Northern Territory, the father has been convicted for driving an unregistered vehicle and driving in an unsafe/disorderly manner. He also received a community service order for stealing. The police records (exhibit 1) also indicate the police have been involved when the father barricaded himself and the children in the house, and when the father was allegedly harassing the mother. In Queensland in addition to breach of domestic violence orders, the father has a criminal history in relation to stealing, false pretences, possession and production of drugs and drug utensils, receiving stolen property, entering a dwelling with intent, driving a defective vehicle, speeding, and breach of fines.
During the first part of the hearing, the father said he never wanted to come back to the Cairns area ever again because if he did he would fall back in with bad company that had previously led him astray. By 11 February 2013, the father had resolved to do so.
Mr L has only one item on his criminal record; a public nuisance offence from 2005 which involved him hooning around the streets in a motor vehicle.

The father’s attitude to Mr L

The father has a high level of antipathy towards the mother’s partner Mr L. He believes that Mr L is usurping his role in the children’s lives and he has a strong view that Mr L is not part of the “kids’ blood” and should not be with them. The father agreed that he does in fact want Mr L away from the children.
The father objected to having to look at photographs on the mother’s Facebook page displaying the children with Mr L.
The father showed barely restrained rage when talking about Mr L’s role in the children’s lives. The father claimed that D only speaks to him about Mr L or Mr L’s father and the father said he does not want to hear D speaking about them.
The father alleged that the mother and Mr L had sex in front of the children. The mother concedes that on one occasion C walked into their bedroom at around 1:00 am or 2:00 am, having awoken from a bad dream, and saw the mother performing fellatio upon Mr L. Although the mother’s bedroom door was shut it did not have a lock on it. C had gone to bed at about 8:00 pm. The father was greatly disgusted by what had happened. His feelings about the incident were magnified by the negative feelings he has for Mr L. It is something for which the mother could be criticised. However, it is not a matter in respect of which I place great weight. I accept the mother has taken precautions to secure her bedroom door after this incident took place.
There is an issue in relation to what the children call Mr L. Mr L’s own attitude to this issue is less than ideal. He does not seem to discourage the kids from calling him “dad” if they so choose. It clearly has been an unnecessary source of irritation for the father.

The mother’s earlier proposal that the children go and live with their father

The mother agreed that at one point in time she had decided that the children could go and live with their father for a twelve month period. She said that she was heavily indebted at that time and she did not know what else to do. She was paying off $1500 per month in bills and had about $50 000 outstanding. She told the children that this was what was going to happen. E “freaked out”, the twins were unsure and D in particular reacted very badly to the proposal and did not want to go, nor did F. She only decided not to follow through with the plan when Ms N called and told the mother that the father had been abusive towards her. At that time the mother realised that Ms N was then in exactly the same position as she had been, namely in a pattern of cyclical family violence with the father.
The father called the mother because he had heard Ms N had phoned her and asked her whether or not the kids were still coming down. The mother told him it wasn’t going to happen. The father then threatened to kill her.

Telephone communication between the father and the children

The father conceded that he has difficulty in telephone communication with the two boys and conceded that in about August 2012 he had yelled at D over the telephone.
The father denied that he had sworn at the children during the telephone call that he had on Christmas Day 2011. He did however agree that he had spent about five minutes during that telephone call swearing at and abusing the mother. I find that it is likely that the children overheard some, if not all, of that happening. The father accepted in cross-examination that his behaviour during this telephone call on Christmas Day would have been upsetting for the children.
Mr L estimated that the overall average time that the children spend on the telephone with their father on each occasion is only about five minutes.
C reported to the Family Consultant that telephone contact with her father occurred “every second Sunday” and that the father “only speaks to us for about two minutes”. She further commented that the father “asks us weird questions”.
The mother gave evidence that the twins are apprehensive about talking to their father because they are not sure when they will be chastised and for that reason telephone calls are not all that successful.
If supervised telephone calls were to continue, the mother supported a professional service monitoring telephone calls. She herself wanted to relinquish the role of supervisor. In the family report, the Family Consultant opined that “the need for [the mother] to monitor and supervise the children’s phone calls would be a risk to her future mental health.”
The father agreed that he had difficulty with the mother monitoring and supervising the calls between him and the children. He nominated the maternal grandfather as being somebody who might be suitable to carry out that role. The mother, however, subsequently gave evidence that her father had indicated to her that he had no desire at all to involve himself in that role.
When it was suggested during the first part of the hearing that a service might be available to carry out that role, the father somewhat inexplicably and lamely said that he would be unable to make a telephone call at 4:00pm because of work rules at the place he worked at that time. He said that those work rules had been put in place because a younger employee had abused telephone privileges. I find that the father was a valuable employee to his then employer. That employer was (and maybe still is) providing assisted accommodation to the father. The father obviously worked very hard for them. I have no doubt whatsoever that the father would have been able to make arrangements to have a short break in his working day to speak to the children (even if he made up that time at the end of the day).
The father has difficulty communicating with D. The father at one point in his oral evidence said “[D] is [D]”. I accept the mother’s description of D’s normal demeanour and the negative effect that the father’s interaction on the telephone has on D. The father conceded that D curls up into a ball when he is yelled at (this corroborates the mother’s evidence about D doing this after his father had yelled at him on the telephone and more generally as to D’s sensitive nature). I have no doubt that the father is often belligerent when talking to D. As I have said earlier, D often wants to speak about what he’s done with Mr L and the father is highly antagonistic if he receives any information from D about what he had been doing with Mr L. The father’s attitude to Mr L is very much getting in the way of him being able to have conversations with D about what he does on a day to day basis. The father’s attitude to conversations with the children on the phone was also demonstrated when he talked about B talking about riding horses with her friend. The father conceded that he was not interested in listening to that topic because he tried to buy horses for the children and the mother had sold them.
The mother claims the father used telephone communication with the children as a way to continually monitor the mother’s whereabouts. The mother claims that the father made numerous telephone calls to persons at K Town to ascertain her whereabouts. The father said that he had not made numerous telephone calls to ascertain the whereabouts of the mother at K Town. His explanation was that he was simply attempting to find places to stay on an occasion when he wanted to race his motor vehicle at K Town. He subsequently did not race his motor vehicle at K Town. I am unable to accept the father’s explanation about the telephone calls that he made which led to him finding out where the mother lived at K Town. In addition, the father indicated that he knew about the mother’s movements at K Town at all times because he maintained contact with friends at K Town.
The mother gave evidence that the father’s telephone time during November and December 2012 and into January 2013 was reasonable. Some of these phone calls have been supervised by the K Town Community Services Centre. The father was initially having 40 minute conversations with the children. She says that telephone communication started to wane towards the end of that period and by the end of January it was down to about 8 minutes in length.

The father’s assertions that the children are at unacceptable risk

Annexure B to the father’s affidavit was a photograph Ms N had downloaded from the mother’s Facebook page. The mother had taken the photograph. It is a photograph of F being suspended in the air by a chain which was looped back on itself. F’s legs were either side of the chain and he was holding on to each side of the loop by his hands. There was debate during the trial as to how high F was off the ground but I am satisfied by the photograph that he was about two metres off the ground. The father indicated that he thought this was an incredibly dangerous activity and he was critical of the mother and Mr L for allowing the child to partake in that activity. The father said he didn’t need to know about his kids being killed by some idiot.
I inferred from the evidence that the father made a complaint to the Queensland Department of Child Safety. I accept from Mr L that there was an investigation and no action was taken by that department. Mr L volunteered that all five children have actually had a go at being elevated by the chains.
Whilst there were some inherent dangers in this activity (and it seems to have been a rather silly thing to have done) the father’s reaction to the actual level of risk involved is itself an over-reaction. The father’s reaction was coloured by the view that the children are at high risk in Mr L’s care to such a degree that they might in fact lose their life in his care. There is no unacceptable risk that this is the situation.
Exhibit 1 includes documents from the Department of Child Safety. On 27 September 2010, the Department received a notification that Mr L had “nearly hurted [sic] [D] on the bike by not putting on a helmet.” I accept Mr L’s evidence that the children have always worn helmets whilst they were with him on an adult quad bike.
The father also complains that the maternal grandmother is an alcoholic and that she has “deadbeats” hanging around her house. The mother concedes that the maternal grandmother does have a problem with alcohol. It seems that the maternal grandmother will drink an amount of alcohol once or twice a fortnight which changes her personality in a way that would lead the mother not to leave the children in her care. The mother believes that the maternal grandmother would never hurt the children. I accept the mother would not entrust the children to the maternal grandmother if she had been drinking or if the mother thought that the maternal grandmother might drink whilst the children were in her care.

Section 128 certificates

The father, the mother, and Mr L were all given certificates under s 128 Evidence Act 1995 (Cth) in relation to the evidence that they gave. The father gave evidence relating to supplying drugs and tax offences, and the mother and her partner gave evidence which might tend to indicate that there may be difficulties with their dealings with Centrelink.

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII Family Law Act 1975 (Cth) (“FLA”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)

The children, particularly B, are attached to their father. The Family Consultant opined that this attachment might be “based in fear”. In her oral evidence, she further explained the children’s attachment to the father is “not secure in that they don’t see him as a stable and safe person to be with.”
There is limited scope in the circumstances for the children to benefit from having a relationship with their father.
The children benefit from a meaningful relationship with their mother.

The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

The father’s volatility and inability to control his frustrations is extreme. This is a powerful consideration to be weighed against the fact that the children, particularly B, are fond of him.
There is clearly a need to protect the children from physical and psychological harm from being subjected to abuse and family violence.
The father’s relationship with Ms N is characterised by escalating aggression and recurring violence. I agree with the Family Consultant’s assessment that “this is a clear risk to the children spending time with their father and Ms N, both physically and emotionally.”

The additional considerations

Children’s views (s60CC(3)(a))

The Family Consultant noted that B said “its really hard not seeing [the father]” and that she “miss[es] him a lot”. C also said to the Family Consultant that she wished “Dad [would come] down to see us… and him being a nice guy.”
D told the Family Consultant that he was “kinda [sic] scared of Dad”.
The weight to be placed on the children’s views, particularly on the wishes of the twins (aged 11), has to be tempered by the potential psychological damage that contact with their father might cause them.

Relationships of the children with the parents and other persons (s60CC(3)(b))

The mother’s evidence is that B in particular is easily manipulated by her father.
The mother said the twins love their father but understand what he is like.
The mother conceded that E (aged 8) idolises the father and the father speaks in similar glowing terms about E. The mother describes the youngest child F as a mummy’s boy. She says that although D loves his father he does not want to speak to him and he is scared of him.
The Family Consultant commented that the children were “relaxed and happy” when they were observed with the mother, Mr L and the maternal grandmother.
I accept Mr L has a good relationship with the children.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))

On D’s last birthday, D had a choice as to whether or not to go to a sporting event (where I infer he knew he would have seen his father) or to a friend’s house. He chose the friend’s house. Upon returning home that night, he went to bed. The father did not receive a telephone call from D on D’s birthday. The mother and Mr L, perhaps understandably given the other matters to which I have referred, were not particularly diligent in ensuring that D spoke to his father on his birthday and they might have been more proactive in attempting to facilitate the call.
The father openly conceded that he had encouraged the children to call their mother a bitch. He denied that he encouraged them to call her a slut. He said that he encouraged them to call her a bitch because he asserted that she encouraged the children to call him an arsehole. The father displayed a lack of insight as to whether that was appropriate when he said “is that a problem?”

Likely effect of any change in the children’s circumstances (s 60CC(3)(d))

The father had complained about the number of moves the mother had made. The problem with that complaint was that predominantly the moves the mother made had been when she was living with the father (particularly moves that related to change of school). On some occasions, when the mother was living with the father, the parties had only spent six or eight weeks in that particular location. The mother said that normally the three month inspection by the landlord was in fact the final inspection prior to them moving out. When with the father, the moves had always been at his insistence.

The mother sees stability as something of paramount importance. In the first part of the hearing commencing 7 November 2012, the mother indicated she had been in the same residence for approximately nine months. She said she just signed a new twelve month lease for that property. (I pause to note that on 11 February 2013, the father asserted the mother and the children had moved again to a different residence in K Town, but I do not have any evidence of that.)
The father initially said in oral evidence that the children were failing at school.
The father had formed the view that B’s progress at school had been very poor and blamed the mother’s moves. I was satisfied that the majority of the moves that B had made in her schooling had happened whilst the parties were together. B’s first semester 2012 school report is Annexure “SAT11” to the mother’s affidavit filed on 19 September 2012. Although it does indicate that B is struggling particularly in English Mathematics and “Studies of Society and The Environment”, it records that B’s behaviour and attitude towards others was excellent. She is an interested learner making satisfactory progress in all areas. The overall comment is that:
[B] enjoys group work, but sometimes requires support to participate successfully in co-operative activities. Even though she experiences difficulties with the work at this level, [B] is working hard to overcome these difficulties and very pleasing improvement is being seen.
The father seems to have failed to recognise that part of the report.
The mother sees it as no coincidence that the improvement in B’s school report at K Town School coincides with the time at K Town School being the longest time that the children have been at any one school. I accept the mother’s assessment that all the children have made improvements at K Town School and that their social skills have also improved.
I find that any more moves for the children would be detrimental for them and any change of school by sending them to live with their father would be a change which is not currently in the children’s best interests in terms of their academic performance. I accept the mother’s assessment that it is in the children’s best interests to keep them as stable as possible.
The mother has also said that she has become far more relaxed herself as a result of being able to be in the one place for what was for her, a significant period of time.

Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))

In the first part of the hearing, counsel for the Independent Children’s Lawyer successfully deescalated some of the father’s anger by discussing with him a possible proposal for supervised time (at a time when the father proposed to live at V Town) at a contact centre in W Town. W Town is about half way between where the father lives and where the mother lives. It is about an eight to ten hour drive for the mother and the children to get there from Cairns. The mother at that time indicated that she was prepared to undertake that trip. The mother however was apprehensive about her safety given that she would have to stay overnight in W Town before she went to the contact centre and she was also concerned about the logistics of getting from the contact centre and out of town and back on the road to Cairns. The proposal for the mother to attend W Town would have been at an expense to her of about $2000 each time. The mother was not in a good financial position. At that time (and at the current time) she was entirely dependent on social security. On the father’s new proposal, he intends to move to K Town and, if he did that, the practicality of him spending time with the children would have been significantly improved. Given that the father did not participate in the final part of the hearing, I am unaware as to whether or not the father still intended to move back to K Town.
On the mother’s new proposal (as supported by the Independent Children’s Lawyer), the children would have no time with the father, and in those circumstances, practicability is not a relevant consideration.

The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f))

Although the Family Consultant observed the children to be “happy and excited to see their father”, she also observed that “[D] and [C] appeared reluctant” to sit on the father’s lap. She also observed “[C] ducked away from her father when he attempted to put his arm around her.” The Family Consultant opined that neither the father, nor Ms N, “appeared to detect anxiety or hesitance in the children during the family observation.”
I find that the father does not have the capacity to provide for the children’s emotional needs. I have earlier commented on the father’s view regarding the impact on the children if the mother were to be killed.
Mr L denied, and I accepted his evidence, that the mother routinely slept in of a morning and that he took the children to school. He said that he and the mother shared that responsibility.

The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))

Not applicable.

If the children are Aboriginal or Torres Strait Islander (s60CC(3)(h))

Not applicable.

The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))

The father conceded that when the mother left him he almost immediately donated all the children’s things to charity leaving no opportunity for the children to be able to recover some of their personal toys. In relation to D’s pushbike and scooter which the father gave away to the Salvation Army, the father indicated that he told D at the time that he had done that. The father indicated that he would buy another one for D if D comes to live with him.
The father asserted that he was not allowed to talk to the children’s school. Although there was no order that positively allows him to contact the school, there was however no order prohibiting him from doing so. The father is not an unintelligent man and I found his initial evidence about being prohibited from contacting the school disingenuous. The father seemed then to shift to saying that the mother was well-connected with the school and that the school simply would not talk to him.
The father agreed that B had to give up gymnastics because the mother had insufficient funds to enable B to continue that activity. The father’s attitude was that he should not have to send money for that purpose when he was unable to see B. The father’s view was that he was not punishing B but he certainly intended to punish the mother.
On the occasion the father last had the elder children (the twin girls) he conceded that when he dropped the girls off at the airport he told the girls to kick Mr L “in the nuts” and give the mother a big cow licking. The twins were about 9 years of age at that time.
The father also was of the view that if the Court chose not to place the children with him, it would be better for the children to be in foster care than with the mother (the father spent a considerable period in foster care during his own childhood). The father’s overall attitude is however that if he could not have the children then the mother should not have them either because 90 percent of what came out of her mouth was lies.
The mother described the incident where D had set B’s skirt on fire. The mother reacted in a responsible manner in seeking medical attention for B’s injury.

Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))

I have detailed the incidents of family violence above.
The mother has benefited from therapeutic counselling and has some reasonable insight into the cyclical pattern of family violence to which she was subjected when with the father. The mother still benefits from regular professional intervention and speaks to her counsellor regularly. B also sees the same counsellor.
The current family violence order is due to expire in April 2013.

Likelihood of order leading to further proceedings (s60CC(3)(l))

Any orders made which involve continuing contact between the father and the mother to facilitate the children’s time or communication with the father are likely to spawn further proceedings.

Extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (s60CC(4))

The father took a belligerent and confrontational attitude in relation to the payment of child support. The father claimed that his income was $550 net per week from the job that he had working for V Town Pty Ltd. The father says he has obtained a new job working at Q Town Pty Ltd. The father currently has a child support arrears liability of approximately $800 which he says he simply is not going to pay whilst he does not see the children.
The father also gave evidence that he had a second job. He said he could earn up to $1000 per week in that activity.
The father said he had recently received an inheritance. He was very guarded in relation to information he would give about that and in fact refused to disclose how much money he was entitled to as a result of that inheritance.
The father said that he also had a trust account for the children that he had been putting money into, but when tested on that, it is only an account of some recent origin and he said it was in joint names with Ms N and he did not have total control over it.
The father proposes that the children go to V Town School. The father conceded in oral evidence that he had not obtained enrolment forms yet for the children to attend at that school.
The father, in a fairly grandiose proposal, said that he was quite prepared for all the children to go to either X Town Girls School or X Town Boys School. He understood that that would cost $10,000 per child per year, a total of $50,000 per year and he asserted that he was more than able to afford that payment. This is in stark contrast to his evidence in relation to his earning capacity and his attitude towards the payment of child support whilst the children are in the mother’s care.

EQUAL SHARED PARENTAL RESPONSIBILITY

The mother and the Independent Children’s Lawyer propose the mother have sole parental responsibility for the children. The father proposes equal shared parental responsibility.
Given the history of family violence, I am satisfied that the presumption of equal shared parental responsibility does not apply in this matter. Having regard to the relevant factors, I am of the view that equal shared parental responsibility would not be in the children’s best interests.
In light of matters previously discussed, I find the father poses an unacceptable risk of physical and psychological harm to the children. The mother is to have sole parental responsibility.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

Given that I do not propose to make an order for equal shared parental responsibility, I am not mandated by the statute to consider making orders for equal time or substantial and significant time.

CONCLUSION ABOUT BEST INTERESTS

The father seeks unsupervised time with the children. I have already commented on the father’s level of aggression towards the children, and the risk the children would be exposed to further family violence between the father and Ms N and between the father and people close to the children. I find it is not in the children’s best interests to spend unsupervised time with the father.
Counsel for the mother and counsel for the Independent Children’s Lawyer submitted that it was not in the children’s best interests to spend supervised time with the father.
The father has asserted he would not attend supervised contact in Cairns. Even if long term supervised time was an available option (and I have no evidence that it is), I accept the Family Consultant’s evidence that there is a risk that the father’s history of impulsivity would result in the father’s non attendance (particularly in circumstances where the father would not be moving towards unsupervised time), and that would be a great disappointment to the children. It is also unlikely that the father would be able to restrain himself from openly denigrating the mother.
Further, I accept the Family Consultant’s assessment that there is a risk the father would not accept the authority of the supervisors, and would not follow directions from those supervisors.
I find it is in the children’s best interests to spend no time with their father.
The children have been communicating with their father every alternate weekend. As I have detailed above, telephone communication, whilst providing some benefit to the children, has been fraught with difficulty. I am of the view that any benefit the children receive from communicating with their father is outweighed by the risk of psychological harm from the father denigrating the mother and/or Mr L, and abusing the children.
I find it is in the children’s best interests not to communicate with the father.

INJUNCTIONS AND OTHER ORDERS

I have detailed above the nature of the father’s uncontrollable anger and aggression and the serious intentions (including murder) which the father has at times seriously harboured. But for the distance he was from his potential victim, he may have carried out his intentions.
Pursuant to s 68B FLA, it is appropriate in those circumstances to restrain the father from approaching the mother or approaching her place of residence or her place of future employment from time to time. The father is to be restrained from attempting to contact or approach the children or attending the children’s school or any of the children’s extra curricular activities from time to time.
Counsel for the mother and the Independent Children’s Lawyer proposed that the father be restrained from:
205.1.approaching Mr L and the maternal grandparents; and
205.2.living or coming within a 15 kilometre radius of K Town; and
205.3.attending any event at G Club or H Club.
Mr L is a significant figure in the children’s lives. He lives with the children. The father continues to harbour serious ill will towards Mr L. The mother gave evidence that the maternal grandparents are also closely connected to the children. I accept the mother’s evidence that the maternal grandparents take the children to their extra curricular activities from time to time and regularly spend time with the children. I have already commented on the father’s animosity towards the maternal grandmother, and his threats to kill the maternal grandparents.
The father gave evidence that he was moving up to O Town. On 11 February 2013, I made interim orders that, inter alia, the father not live within a 15 kilometre radius of K Town, which would prevent him from living in O Town. I have no evidence as to the father’s current location. Counsel for the mother and the Independent Children’s Lawyer sought that that injunction be made on a final basis.
Given that the mother and children live in the environs of K Town, they regularly visit the town centre. It is likely that if the father is present in the town centre, there will be occasions where the mother and/or the children encounter him. The Family Consultant described in her evidence what she would expect would happen in those circumstances. I accept her opinion that that type of encounter should be avoided. In order to achieve this, the father should be prevented from coming into the K Town centre other than for the purposes of driving from one side of K Town to the other.
Pursuant to s 68B and/or s 114(3) FLA, I find it is just and convenient, and appropriate for the welfare of the children, to make injunctive orders restraining the father from coming within 100 metres of Mr L and the maternal grandparents or from coming within a 15 kilometre radius of K Town (apart from driving through it).
Both the father and the mother are heavily involved in sport. The father participates in sporting events. The mother gave evidence that she is an official at H Club. I accept her evidence that in that role she has direct contact with the participants, including disciplining participants if there is a problem with their performance. The mother also gave evidence that she is an official at G Club. I have found that the mother is still significantly fearful of the father, and the father still exercises control over the mother. I have little confidence that the father would be able to restrain himself from approaching the mother at these sports events. On the evidence it seems the parties’ interaction at these events would be inevitable. In the circumstances, I consider it appropriate to restrain the father from attending events at both H Club and G Club.
Whilst the FLA sets out the powers that police officers have in circumstances where they become aware that injunctive orders have been breached, it is useful in the circumstances of this case to incorporate those essential provisions into the orders themselves. Consequently, the effect of ss 68C, 114AA and 122AA FLA are incorporated into the orders.
The mother has indicated she intends to renew the domestic violence orders. Division 11 of Part VII FLA sets out a regime applicable to circumstances where there are inconsistencies between family violence orders and certain orders, injunctions, and arrangements made under the FLA. No difficulties arise under that Division where it is suggested that orders are made under State legislation that mirror orders made under Federal law. There may be advantages in the mother applying to the State Court for mirror orders given that it is more likely that the police force of Queensland will be the police force asked to intervene if the father breaches the orders. If there are mirror orders, the State police can elect to deal with the circumstances that have arisen under a set of legal rules with which they have a greater familiarity. I request that any State Magistrate presiding over such proceedings give consideration to making protection orders similar to those I have made affording similar protection under State legislation. If proceedings are brought under State law, s 70NFH FLA allows any proceedings under Division 13A of Part VII FLA to be adjourned until the prosecution has been completed, or dismissed, with the aim of not punishing a person twice in respect of the same act or omission.
The father sought that the children’s school backpacks (which he purchased) be returned to him, in circumstances where he was restrained (on an interim basis) from spending time with or communicating with the children. The mother agreed to return the backpacks to the father. I will make an order that the mother deliver the backpacks to the Cairns Registry, and the Registry Manager contact the father to inform him the backpacks have been delivered. If the father does not arrange for the backpacks to be returned to him within one month, the mother shall be at liberty to collect the backpacks from the Registry and retain them.

I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 15 April 2013.

Associate:

Date: 15.4.2013

[2013] FamCA 241

15 April 2013

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Jurisdiction

Remedies

Procedural Fairness

Costs