Sheenan and Sheenan - [2012] FamCA 383

FAMILY COURT OF AUSTRALIA

SHEENAN & SHEENAN

[2012] FamCA 383

FAMILY LAW – CHILDREN – Extreme violence culminating in imprisonment – Relevance and importance of sentencing remarks – Absence of cogent evidence by violent party to justify making contact orders – Contact refused except for cards and letters.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

KMB and PRL and Child Representative [2005] FamCA 1202
Marsden and Winch (No 3) [2007] FamCA 1364

APPLICANT:

Ms Sheenan

RESPONDENT:

Mr Sheenan

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

10568

2007

DATE DELIVERED:

24 May 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

8 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Goddard

SOLICITOR FOR THE APPLICANT:

Hughes Watson Marks Kennedy

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Combes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Agricola Wunderlich & Associates

Orders

That the wife have sole parental responsibility for the children L born … February 2000, M born … September 2001 and S born … September 2004.
That the children live with the wife.
That the husband be restrained from communicating with the children or coming into their presence except with the written agreement of the wife.
That the husband be at liberty to send to the children cards, letters and presents provided they are age-appropriate and relate to what he and his family are doing in their respective lives but the responsibility for the delivery of those communications to the children shall be that of the wife who shall satisfy herself that such communications fulfil the criteria in this order.
For the purposes of paragraph 4, the wife is required within 30 days of the day of these orders to set up a postal box address at a post office of her choice but at the expense of the husband.
That for the purposes of the foregoing two paragraphs, upon setting up the postal box address, the wife shall send the details to the husband in a letter requesting that he provide a refund of the costs of that setting up and initial rental of the post office box and if the wife does not receive a payment from the husband at the post office address no later than one month after she has sent to the husband that address and cost detail, she may cancel the post office box.
That annually, the wife use the same operation as referred to above for the purposes of any renewal and if the husband fails to make the payment within the month, she may cancel the post office box.
For the purposes of s 60CG of the Family Law Act 1975 (Cth), this order is consistent with the existing family violence order and does not expose the affected persons under that order to an unacceptable risk of family violence but for the sake of clarity, the husband is not to attend at any post office referred to in these orders and approach the wife whilst she is collecting any communications from him nor is it expected that Australia Post would provide the details of the wife’s address for the purposes of the details concerning the postal box referred to in the orders.
That the application filed 2 March 2012 by the wife and the response of the husband thereto filed 10 December 2007 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheenan & Sheenan 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 MELBOURNE

FILE NUMBER: MLC 10568 of 2007

Ms Sheenan

Applicant

And

Mr Sheenan

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In this application for final parenting orders, Mr Sheenan (“the husband”) after over two years of not seeing his three children, a daughter L aged 12 and his two sons M aged 10 and S aged 7, asked the Court to allow him to see them at a contact centre to show that they still loved him and desired to spend time with him. On the evidence, I could not find that to be in their best interests. The vexed question is what is in their best interests?
This case revolves around the violence of the husband. Although the husband gave the appearance of disputing the most significantly violent incident, I am satisfied he is a violent man and his wife and children have a reasonable apprehension for their expressed fear.
Although the husband denies he would ever hurt his children, there is a serious risk here of that occurring if there is exposure of the children to his behaviour towards their mother. The hurt to the children includes emotional harm. In addition, the children are now expressing ambivalence if not resistance to contact.
On the evidence, I find it is not in the best interest of the three children to have face to face contact with the husband but that is not to say that should he radically alter his views and establish, by behavioural change that he is not a risk to them, the wife would not reconsider her opposition to contact. Even though she may not then agree to his proposed contact, if he could establish a significant change had occurred, a court should consider his application. I am satisfied that we are a long way from that position. However, there has previously been a relationship between the husband and the children and they should have the opportunity to know that he still exists. That can be met by the husband sending cards and letters and presents appropriately vetted. One issue is who should be doing the vetting.
The husband said that he had changed and he apologised to the wife in the courtroom yet (as will be seen from my reference to the sentencing remarks of County Court Judge below) the clinical analysis of statements in the courtroom needs to be matched by the reality of what happens in the real world: actions speak louder than words.

Background

The parties began their relationship in 1998. It did not get off to a good start. There was a violent incident prior to the marriage which is disputed by the husband. I do not need to make a finding in respect of that incident because in the sentencing remarks of his Honour Judge Mason, reference is made to problems with the relationship from the very beginning. That information could only have come from the husband.
The parties married in 1999 and the three children followed. There were plausible assertions by the wife of a dysfunctional household including recreational drug usage.
The wife made numerous allegations of violence which were denied by the husband.
The parties separated in July 2007 but even that did not conclude the aggression of the husband.
For the time that the parties were together, the evidence overwhelming supports the conclusion that the wife was the person most responsible for the care of the children and it occurred in difficult circumstances.

Procedural matters

It is necessary to digress at this point and deal with the litigation pathway that this case followed.
On 21 September 2007, the wife began the litigation by seeking parenting orders and a recovery order in circumstances where the husband had taken the children to Sydney. I am satisfied that he had acted unilaterally and inappropriately.
On 8 October 2007 I ordered the husband to return the children to Melbourne. Three days later, there having been no appearance on behalf of the husband, I issued a recovery order. I gave reasons at the time that I was satisfied that the various documents relevant to the proceedings had been brought to the husband’s attention through his family.
By agreement between the parties, the recovery order was cancelled and on 19 October 2007 a contested hearing at which both parties were represented before the Senior Registrar occurred. Senior Registrar FitzGibbon made orders that the children live with the wife on an interim basis and that the husband’s time be limited with changeovers occurring at a police station. An Independent Children’s Lawyer was appointed.
On 10 December 2007, after a contested hearing, the husband was permitted significant time with the children on each alternate weekend from Sunday at 5.00pm until Tuesday at 5.00pm save for the youngest child S who was three years of age at that time. The husband’s response seeking final orders was also filed on 10 December 2007. He sought that the children live with him and that they spend time with the wife as determined by the Court. No subsequent amended response was ever filed.
The state of the relationship between the parties can be seen in the order made on 6 March 2008 whereby the changeover of the children was not only to take place at a police station but inside the foyer. A specific order was made that the husband immediately leave the police station and its car park upon the completion of the changeover. That is an order to which the husband consented. That situation changed in June 2008 when Senior Registrar FitzGibbon made an order that changeovers occur at school or the childcare centre unless otherwise agreed. The picture was clear that the parties had to be separated by court order.
At the hearing on 2 June 2008, the Court directed the Independent Children’s Lawyer to write to the husband to advise him about parenting courses and drug screens. That was because an order had been made in December 2007 that both parties attend an appropriate post-separation parenting program. That was also the time at which a first order for a family report was made.
In April 2008, an intervention order was made by a State magistrate against the husband. He subsequently breached that order.
In August 2008, the husband was arrested on charges to which I shall return. He was refused bail and remained in custody for the ensuing eight months. There was no court activity during that time and the husband did not see the children.
In April 2009, the husband was released from prison and represented himself in a hearing before a registrar on 5 June 2009. That hearing subsequently brought the matter back before the Senior Registrar on 1 July 2009 at which stage, with reasons given, contact was resumed but altered so that it was to be supervised to a contact centre for two hours per fortnight. The reasons for judgment that day indicated that the husband opposed time being supervised and wanted it to return to what it had been prior to his imprisonment on remand. He had not filed any material that would have enabled the Court to understand what his position was (other than an affidavit by his brother) but importantly, the offences for which he had been on remand, had not been heard.
On 16 September 2009, Young J ordered the husband to attend counselling and a parenting course to assist him in “responding more appropriately to the children” but it is also clear that his Honour intended the husband to commence spending time with the children under supervision at the contact centre as previously ordered by the Senior Registrar. Two visits did occur, the last in November 2009.
In October 2010, the husband filed an application in a case. This was the first time he had filed material for many months. He sought orders that contact occur at a different contact centre to the one he had previously attended or alternatively that his time be supervised by a privately contracted supervisor. This hearing occurred on 18 November 2010 and on its face, the husband was successful. All parties were to enrol at a contact centre for some supervised time. The evidence shows that the wife did what she was required but the husband did not. This was six months after the husband had been sentenced in the County Court of Victoria for an assault on the wife. The Senior Registrar also ordered that the husband forthwith enrol in, attend and complete a men’s behavioural change course.
I find the husband did not attend the behavioural change course or if he did, there was no evidence of that and certainly no indication that he had complied with the order of the Senior Registrar to provide proof to the Independent Children’s Lawyer. The second order was required because in November 2009, the first or earlier contact centre refused to continue allowing the use of its facilities for reasons to which I shall return.
Between the end of 2010 and October 2011, the case remained dormant. That was overcome by an application filed by the wife on 20 October 2011 in which she sought to proceed with her parenting application on an undefended basis. In her material in support of the application, she referred to the fact that the husband had not complied with orders relating to the men’s behaviour change course nor endeavoured to re-enrol in the contact centre. The husband did not file any material in response to that application but attended on 29 November 2011 before me represented by counsel. The husband’s counsel opposed the undefended hearing indicating that the husband wanted to spend time with the children. I refused the application of the wife to proceed on an undefended basis making it clear that the husband had a further chance to get ready for trial. I fixed the matter for final hearing on 25 January 2012.
On 25 January 2012, the trial date, the parties attended before me and all agreed that the case was not ready to proceed despite the orders of 29 November 2011. Nothing had been done about a family report and the Independent Children’s Lawyer felt that it was a matter that needed to be reviewed. That was particularly so because the Independent Children’s Lawyer had interviewed the children and they had expressed certain views inconsistent with the husband’s view that they wanted to see him. The husband’s position was that the 2009 family report was “ancient” in the life of the children and his counsel supported an up-date. Importantly, between 29 November 2011 and 25 January 2012 the husband filed three affidavits. A summary of those affidavits shows as follows.

The husband’s evidence

In his first affidavit filed 5 December 2011, the husband focused on the two and only supervised contacts in late 2009. He explained his version of the dispute with the staff of the contact centre as well as how successful his time with the children had been. I have indicated to the parties that I would not make my determination in this proceeding based upon any factual dispute as to what brought the supervision arrangement to an end. I have not done so.
The husband explained that he had been suffering from substance abuse and said “but I have subsequently addressed those issues”. How and what had been done still remains unsaid. He said he was happy to comply with court orders and exhibited a letter indicating that he had enrolled in a men’s behavioural change program but in the proceedings before me, he asked me not to send him to such a program. It will be remembered that an order was made for his attendance. That was in November 2010. The husband produced a letter to show he enrolled one year later. Whether he attended what he enrolled in is unclear but I have concerns that he must do much more than just attend a program.
In his affidavit, he expressed fears about the treatment of the children by the wife and her family saying he was concerned about what they were being exposed to. He spoke of the youngest child being brainwashed and how the children complained of being “physically mentally and verbally abused”. Despite the affidavit being drawn by his lawyer, it did not set out any detail that might have probative value. It is incumbent on lawyers to ensure that evidence in affidavit form is that which satisfies ss 55 and 56 of the Evidence Act 1995. This affidavit did nothing of the sort.
In his subsequent affidavit filed on 12 December 2011 arising out of the hearing before me in late November, the husband defended his actions concerning the assault on the wife in August 2008. That affidavit too was drawn by his lawyers. For the reasons which will become apparent below, that evidence has little merit because of the sentencing remarks of the County Court Judge.
In this second affidavit, the husband said he had been denied time with his children at the discretion of the wife and that she would not communicate with him. He repeated again his concerns about the behaviour of the wife and her family towards the children based upon what they had told him. At the time he swore that affidavit, he had not seen them for over two years. In the two visits at the contact centre, he was supposed to have been closely supervised. How he could have engaged in those conversations with the children is unclear. Prior to the contact centre visits, he was in prison for 8 months. Thus, how this evidence came about was unclear and in any event, well out of date.
He commented that he was “kicked out” of his own parents’ home just before the incident referred to as the Axe incident in 2008 because they were also unhappy with his behaviour. That comment would suggest his evidentiary focus should very much have been on what he had done to address his issues as he described above. He did not. He went on to say that he had repaired his family relationship because he had ceased using drugs. That comment was supported by a drug screen that was later produced showing that in January 2012, his screened results were clean.
In respect of the future, the husband said he would offer the children his experience by teaching them about their Lebanese heritage and culture, exposing them to the Christian faith and being involved in their education and extracurricular activities. He said he had his own house and rooms for the children. He said he wanted to be a strong role model in the lives of the children.
A third affidavit was filed on 24 January 2012 in response to the wife’s affidavit filed 19 December 2011. This evidence which I have taken into account, gives some insight into the husband’s views about the past and what he has to offer the children for the future. It consisted largely of a repetition of the denial of the allegations of violence and abuse made by the wife as well as explanations about his attempts to comply with Court Orders. For reasons which follow, it is unnecessary for me to make specific findings in relation to all of those matters.
His evidence was that he did not want supervised contact with the children at the contact centre that had refused to deal with him. He said the centre misunderstood him and his mother and that they were stereotyped and treated poorly. His solution was to go to a private supervision arrangement but having regard to the opposition of the wife, lack of support of the Independent Children’s Lawyer along with the absence of evidence as to the husband’s insight into the problems he caused, it is not something that I could give any weight.
The husband’s evidence even without being tested by cross-examination was largely unhelpful.

The January 2012 hearing

On 25 January 2012, having agreed that the matter was not ready to proceed because of the paucity of evidence, orders were made setting the matter down for hearing as a three day case in May, requiring a family report to be prepared which was not to be commenced until after the parties had filed all of the affidavit material upon which they intended to rely. I set out in the order the various things that I wanted the family consultant to consider. The husband was ordered to serve any further affidavits or amended response by 17 February 2012 and the wife her affidavit material and amended application by 2 March 2012. The husband filed nothing further. As such, his only application before the Court for orders was set out in his response from years before. In reality, the husband’s evidence, such as it was, has been taken into account.

The April 2012 hearing

I had the matter listed for mention on 26 April 2012 at which point, the family report had been released notwithstanding the paucity of evidence as to the position of the husband. The husband’s position was that he simply wanted to see his children and he was not intending to file anything more. Having regard to his failure to comply with previous orders, the absence of an amended response and any affidavit material that might have assisted with his future proposals, I directed that subject to any order on the hearing date, the matter could proceed as an undefended hearing.

The final hearing date

On 8 May 2012, the husband appeared unrepresented. In the course of discussions, he indicated that he wanted to cross-examine the wife, her sister and someone from the contact centre. No notice had been given of any such requirement. Appreciating that the husband was without legal representation, counsel for the wife was required to make inquiries of the ability to call these witnesses. The husband indicated that he wanted to cross-examine the contact centre manager about an incident which had involved his mother. I indicated that I would not be determining the matter on the basis of that issue and that it was therefore not relevant to cross-examine. He also indicated that he had concerns that the supervisor at the second of the two contact periods did not speak English and he wanted to cross-examine her about something but again, that issue was not relevant unless it went specifically to the question of his behaviour. Counsel for the wife told me that he understood a subpoena had been issued but having regard to the fact that the matter was expected to proceed on an undefended basis, no indication had been given to the witness to attend. No indication had been given by the husband that he required any particular person to attend and the only evidence before the Court was that of a Ms W upon whom the wife relied.
I made it clear to the husband that I would not determine the future of his children on the basis of what occurred at that contact centre. The evidence of the contact centre from Ms W in relation to the relationship between the husband and his children was relevant to the question of what they were like in 2009. Having regard to the evidence of the family consultant, any cross-examination by the husband of the representative of the contact centre would not have advanced his position at all.
The family consultant had not been put on notice of being required but he made himself available because the husband wished to cross-examine him. I shall deal with that evidence below.
I explained to the husband the process that I would follow and the transcript will record not only what he was told but his response.
I have already set out what the husband said he wanted. I pointed out to him at the conclusion of the case that I felt I only had three options and he reluctantly agreed. None of those options would have given me the opportunity to allow him to spend significant time with the children other than in a supervised arrangement and nothing he said indicated that there was any other evidence he would call to assist his case. No mention was made of the relationship between his mother and the children. I gleaned his view about his mother from the evidence of the contact centre manager. The husband conceded that he had not undertaken the courses that he had been ordered to do. He made clear that he did not want to do them.
I was concerned because the husband was unrepresented to ensure that I understood whether there was any material he had filed which might have assisted him to argue that something other than the three options I had given him were open to me. Accordingly, I have carefully considered the three affidavits to which I have earlier referred, none of which was open to cross examination by either the wife or by the Independent Children’s Lawyer. None of that material assists me in determining the outcome of this case. The two critical pieces of evidence that do assist me to determine the matter are the evidence of the family consultant and the sentencing remarks of his Honour Judge Mason of the County Court of Victoria which I admit into evidence pursuant to s 69ZX(3) of the Family Law Act 1975 (Cth) (“the Act”).

The respective applications

The wife’s position

The wife’s position was that the children live with her, she have sole parental responsibility for them and that the father be restrained by injunction from communicating with them or coming into their presence except with her written agreement. That position did not alter during the hearing.

The husband’s position

It was difficult to obtain precise details of what the husband wanted as a long term proposition. At times he said that he wanted to be reintroduced to the children and expand the time with them as the relationship developed but at other times his position was that all that was necessary was for the children to be put into a contact centre with him for ten minutes and they would run to him and show that they wanted to be with him. As I have earlier indicated, I have taken the view that his position was that he wanted some contact with them albeit under supervision despite the complexities of that occurring having regard to his problems with the contact centre.

The Independent Children’s Lawyer’s position

The Independent Children’s Lawyer supported the position of the wife save that the husband should be given an opportunity to send cards, letters and presents to the children so long as they were vetted as being appropriate by the wife.

The other evidence

The documents relied upon by the parties, including the husband (doing the best I can) are set out in the Annexure to these reasons.
I have already set out the overview of the husband’s evidence. There was very little in that evidence that was helpful in terms of what I have to decide. It was obvious from the husband’s evidence however that he was denying any violence by him and by implication, it was all the fault of the wife. That was still the case in his affidavit filed in December 2011 where he referred to the axe assault incident upon the wife which resulted in his appearance before Judge Mason in the County Court of Victoria. In his affidavit filed in December 2011, 18 months after pleading guilty and being convicted, he described the incident as an “alleged” incident.
Having regard to the fact that the husband did not challenge any of the assertions of the wife when given an explained opportunity to cross-examine her, I find on the balance of probabilities that those incidents did occur. What strengthens that view is that in her evidence, the wife referred to an incident in 2006 in which the husband fired a gun towards her whilst she was holding the child M. Curiously, in his affidavit, the husband replied that he would never harm the children in that way. As to harming the wife, he was silent. Of serious concern however was a statement the husband made to psychologist Ms F who saw the parties in March 2008. This was pursuant to a court order for a family report. When Ms F questioned the husband about the incident, he replied “I wish I’d shot her in the head”. That could not have been a throw-away line and, it cannot simply be ignored as the rantings of an emotionally upset person. I can only conclude that he meant it. The husband must have known at the time that Ms F was preparing a report for the Court. That report was not in the list of documents relied upon by the wife but was certainly referred to by the parties during the hearing.

The Axe Incident

The wife gave evidence of an incident in August 2008. She was sitting on the couch having put her children to bed. She said she heard a male voice and looked out of a window and saw the husband crouching by the window and staring at her. She picked up the telephone to call the police and the husband broke into the house and chased her into the bedroom. The child M who was then not quite seven years of age was asleep in the bedroom. The wife said she saw the husband had an axe in his hand and the child M awoke and said “Don’t hurt my Mum”. She said she was hit by the husband hard with the axe on the head and he grabbed her telephone and ran out. She then spoke to the police.
Despite having pleaded guilty, the husband’s version before this Court as indicated in his affidavit and also in his discussion with the Family Consultant was that he went to where the wife was living because he was concerned as to how she was treating the children. He maintained he was very depressed, virtually homeless and had turned to drugs and alcohol. He said he was under the influence of drugs at the time. When he arrived at the house, the door was open and he went in. When the wife saw him, he said she disappeared into a room and tried to shut the door. He said he panicked and slammed the door as the wife was shutting it and tried to grab the mobile telephone from her to stop her calling the police. He said ‘at no time did I hit the applicant with an axe’. He was however aware the wife was injured and while sorry for his action, said it was not intentional and importantly, he did not think she had suffered any permanent damage.
As for pleading guilty, he told the Family Consultant that he did so because he did not want to return to jail as the family had been through enough.
It is unnecessary for me to comment on the respective versions because the remarks of the sentencing judge are set out below.
Two days after the incident, the police arrested the husband at a time when he was attending the school of the children to collect them. The children had not been taken to school. According to the evidence of the police, the husband was found with a knife.
Having been charged with the offence of aggravated burglary which in Victoria carries a maximum sentence of imprisonment of 25 years, the husband was remanded in custody where he remained for eight months. I have already referred to the fact that during that period there was no litigation activity. At the conclusion of the eight month period, a contested committal hearing occurred and the husband was sent for trial in the County Court of Victoria. He pleaded not guilty before a magistrate. He was then released on bail.
There can be no controversy about this incident because in May 2010, the husband having been on bail since the committal hearing, appeared before Judge Mason in the County Court at which time he was represented by counsel. The sentencing remarks of his Honour are in evidence. I quote from them extensively.
4.On … August 2008 … your wife saw a man crouching outside her house. She recognised him as you. She picked up the phone to call police. She heard you say, "I dare you to call the police." She dialled 000 and ran to the bedroom terrified and shut the door.
5.You entered the home and went to the bedroom. You forced the door and entered. You were carrying an axe. The blade of the axe was facing her. The two of you struggled. Your wife was hit on the head with the axe. It was likely that it was the handle that struck her. Your six-year-old child was present. You then ran away.
…
8.As a result of the assault your wife suffered injury. She had a 2cm x 2cm bruising and swelling to the left side of her head above the left ear and was prescribed oral analgesia.
9.Your wife had previously obtained an intervention order against you on 28 Apri1 2008. That order includes prohibiting you:
(1)from attending at or within 200 metres of [D Property];
(2)from assaulting; harassing molesting, threatening or intimidating your wife and her children.
10.Police initiated a search for you and arrested you two days later near to your children's school. At the time of arrest you had a knife beside the front passenger seat of your vehicle. It has been described by police as a "knuckle knife".
11.Your wife's victim impact statement was tendered on your plea. In it she expresses her physical pain, the fear that she felt, her loss of confidence being in her home and the impact on your young son who was present during the assault.
12.You were interviewed and chose to exercise your right to silence.
…
16.After legal argument and further discussion between your counsel and the prosecutor, you have pleaded guilty to the current offences.
17.Your plea of guilty is a responsible recognition of the reality of your position, has spared the complainant further stress and anxiety and the community the expense of a protracted trial.
His Honour then set out the background of the problem that gave rise to the proceedings in this Court and said:
It [sic] apparent that your behaviour on the day of this incident has occurred in the context of an emotional reaction to the access arrangements and your perception of your wife’s attitude and actions.
In this Court, the husband said there were no problems of alcohol and drug abuse but the following paragraph is disturbing from his Honour’s sentencing remarks:
20.You have a history of alcohol and illicit drug abuse. You have described episodes of binge drinking which might include drinking a whole bottle of whiskey in one day. Illicit drug use has included marijuana, "ice", ecstasy, cocaine and heroin.
21.In his psychological report, Mr [J] did not discern any personality disorder but maintained a diagnosis of depression. In an earlier report very close in time to the offences (September 2008), Mr [B], psychologist diagnosed Paranoid Personality Disorder with observations of thought disorder with examples of tangential and circular speech pattern. This accords .with the anecdotal observation of your counsel, Mr Casey, following his contact with you throughout the trial and plea instruction period. It is perhaps speculative but observable that your more settled phase corresponded with you having spent eight months in custody and less likely therefore to have been capable of using dangerous drugs.
22.I note in this context that in giving your drug consumption history to Mr [B], you stated that you had been using "ice" heavily since the start of 2008 and had reduced your consumption to half a gram per day approximately two or three months before the incident. Your dangerous, violent and bizarre actions on the day of the incident are not atypical of a person on "ice" or amphetamine. . I note that in your interview for the pre-sentence report, you disclosed that you were under the influence of drugs at the time of offending. It seems to me that it is probable that you were on drugs at the time and it is abundantly clear that you need urgent and continued assistance with drug therapy.
His Honour described the offence as a terrifying experience and he accepted the wife’s victim impact statement. He then said:
27.Your assault is very much bound up with your entry into the home and contemporaneous intention, but you carried your intention into effect. The assault compounds the fact of illegal entry, as does the fact that you acted in breach of a court order by even being at the premises.
28It is a disturbing feature of these circumstances that you also possessed a prohibited weapon in the face of a previous conviction and penalties for related offences.
His Honour Judge Mason said that he considered it essential that a period of close supervision was required with specific attention to the husband’s drug and alcohol problem. None of that evidence was produced by the husband. His whole approach was not to be involved in a program associated with behavioural change.
His Honour Judge Mason sentenced the husband to 18 months imprisonment on the most serious charge but suspended all but the eight months. That had already been served in custody on remand. He was then released.
The sentencing remarks reflect the community’s concern not only about violence but also the impact of drugs and alcohol on behaviour.
The evidence of the husband before this Court was that he was now doing renovation work on homes for a church organisation. That work helps young people get a better price for their homes so that they can be sold. If that is an indication of his rehabilitation, so much the better. He further said that he was liked by everybody and could go anywhere and get anything that he wanted. That was a statement made from the bar table but it does not assist me in working out the needs of his children.
The impression given from the sentencing remarks was that the husband’s plea of guilty was an indication of remorse. The difficulty with that is that subsequently, the husband has filed an affidavit denying the events to which he pleaded guilty. The sentencing remarks refer to the fact that the physical injury to the wife was not serious but the emotional injury was. The evidence of the wife before me indicates nothing has changed for her. The husband was dismissive of that. The sentencing remarks indicate that the judge was looking for an explanation and was satisfied that this behaviour occurred as a result of depression and drug usage and that subsequently during his period of imprisonment on remand, the husband undertook rehabilitation courses. Yet the evidence of the contact centre encapsulated in the affidavit of Ms W is concerning. The husband did not have an opportunity to cross-examine that witness because no notice had been given requiring her attendance and initially, her evidence was not even to be relied upon by the wife. The husband disputed the negative things recorded as having occurred at the contact centre but wanted in evidence details about his relationship with the children at the contact centre to show that the family consultant was wrong about the views of the children. The husband also said he disputed a number of the things that were recorded as being said at the contact centre but there can be no dispute that the centre declined to have anything further to do with the case because of the husband’s behaviour. When the matter came back before the Senior Registrar a year later, a request was to be made for a reconsideration of an entry back into the program and the wife complied but the husband did not lodge the relevant papers.

Intervention order

In June 2010, the local Magistrates’ Court made an intervention order against the husband which named the wife and three children as affected family members. The husband was recorded as being present at court and agreeing to the order without admission.
Apart from the usual terms, the order provided for this Court to make contact orders. Importantly, there was no sundown clause on the cessation of the order.
The June 2010 order had been preceded by an order made in 2007. It was the wife’s evidence that the husband had ignored the order and as will be seen above, his Honour Judge Mason accepted that at least the axe incident was such an occasion. The husband did not challenge the wife’s evidence about breaches of the orders in 2008 and 2009.
The husband’s response was to simply deny that he had ever abused the wife or children. I do not have to make findings about the specific incidents alleged by the wife in 2008 and 2009 because a magistrate of the State of Victoria was sufficiently concerned about the protection issue to make the indefinite intervention order in 2010 even taking into account the husband’s denial of responsibility.

The husband’s view of the wife

The husband cross-examined the wife about whether she was telling the truth. He asked her did she “swear to God” that she was truthful. She said she was. It was only after the wife left the witness box that the husband, with some prompting, remarked that he apologised to her. Having regard to his general and consistent position that he had done nothing wrong, his apology, like his plea of guilty as a sign of remorse, had a hollow ring about it. His evidence in the affidavit filed 24 January 2012 which was settled by his then lawyer seems to encapsulate his view as I understand it. He said:
48.I have already referred to the fact that the applicant and I are Lebanese descent and the applicant and her family are of the Muslim faith. The applicant has previously told me that in her religious culture once a woman is married, women are not to leave their husband without a good excuse. If a woman leaves her husband without good excuse she is shunned and rejected within her community
49.The applicant’s excuse in leaving me was because she wanted to “be free”, this is not seen as a good reason and in order to protect her reputation she told her family that I had been abusing her. When the applicant and I first separated in 2007, my family held a meeting. The applicant, her father, mother and her sisters were in attendance with me, my aunty and my uncle.
50.The applicant was insisting she wanted a divorce because I had been physically abusing her. I asked her directly in front of all the family members in attendance if I had ever physically abused her and she admitted she had never been physically abused in our relationship. The applicant put her head down and started crying, and all her family were upset that she had lied to everyone.
51.I say that the accusations made by the applicant are unfounded, untrue and misleading to this Honourable Court.

The husband clearly has no respect for the wife either as a person or as a mother of the children. I find there is little prospect that that situation will change. Had the husband undertaken the behavioural change courses and shown a genuine desire to parent the three children, he might have something to offer the children for the future. On all of the evidence, I could not find that he is a suitable role model. He treated the wife with disdain and as the evidence of the family consultant shows, the exposure of these children to violence has serious consequences. It is of concern that the husband does not acknowledge the prospect of developmental problems for his children. His view is that by simply allowing him to have them, things will go on as normal. The evidence of the family consultant which I have accepted, is completely contrary to that.
It is clear therefore that the husband is a violent man.

The family consultant’s evidence

Mr V is a Family Consultant attached the Family Court of Australia. His qualifications and experience were set out in his report. I accept his expertise.
The Family Consultant first prepared a Children and Parents Issues Assessment for the Court dated 5 August 2009. At that point the husband was on bail and had not seen the children since August 2008. It was then noted that the husband was dismissive of issues relating to the assault but became distressed when talking about his children. The children all indicated a desire to see the husband. At that time, the recommendation of the Family Consultant was that there should be some supervised time at a contact centre and the husband attend counselling and a parenting course. It was also recommended that ultimately, a comprehensive family report be done.
In January 2012, I ordered a further report. The children were not interviewed with the husband as all three indicated they did not want to see him, either for the assessment or at any time. The Family Consultant also felt that due to the length of time since their last contact, it was not the right context to reintroduce the children and the husband to each other. Understandably, the wife refused to be interviewed with the husband.
The Family Consultant concluded from the assessment that the children should live with the wife and she should have sole parental responsibility. He felt that it would not be in their best interests for them to see the husband at this stage but that he might be able to communicate with them through cards and letters providing the content was monitored.
A major difference from the 2009 assessment was that none of the children wished to see the husband. The child L recalled incidents of a negative nature. M appeared positive about life but was adamant that he did not want to see his father ‘because of all the bad stuff’. S expressed similar negative feelings.
When the husband was interviewed and was told of the children’s views, he expressed disbelief and felt that they had been ‘brainwashed’ by the wife. During the hearing the husband was given the chance to cross examine the Family Consultant and he asked him if he could be wrong in his assessment. The Family Consultant replied “no” and explained that he felt the children were now more confident and open about talking about their world because they were now in a safer environment, whereas previously they were closed. He said he had a range of explanations in the back of his mind when dealing with such a situation and ruled out the possibility the children had been coached.
The Family Consultant’s opinion was that children who have been exposed to trauma or violence will often be withdrawn and develop mechanisms to protect themselves. Once they are removed from that environment they may begin to feel emotionally and physically safe. He felt these children had been in such a situation and that it would be detrimental for their well being and development to reintroduce them to that. He also noted that the parents had had virtually no communication since 2008. Their respective opinions of each other were low.
The Family Consultant said that the wife had no confidence that the husband could change or had the capacity to be a positive parent and was still fearful of his violent nature. He concluded that her ability to parent the children would be adversely affected if contact between the children and the husband was resumed. He found the husband’s attitude towards the wife very negative, both in regard to her capacity as a parent and how he saw her as a person. That is a conclusion which is clearly open on other evidence.
Given how each parent felt about the other and the background of alleged violence and abuse, which I accept is largely correct, the Family Consultant expressed no confidence in the parents’ ability to consult on any issues in relation to the children’s upbringing. In light of this, he concluded it may be best for one parent to be given primary responsibility for decision making. With that conclusion, I agree.
The Family Consultant based his conclusions on events such as the assault by the husband with the axe, to which all the children referred and which the husband attempted to minimise, despite his conviction. The children referred to other incidents such as the husband having a gun, hitting them and their mother with sticks and also arguments between their parents. He concluded that if the court determined that the account given of the violence and abuse by the wife was accurate then the children’s attitudes were in keeping with such a regime. He felt that they may have been aligned with the husband in the past because of fear but now felt safe to express their feelings. This was consistent with how children react in an environment of family violence. In my view, it is unnecessary for me to make specific findings about all of the events for the reasons I have outlined. The absence of specific findings however does not undermine the conclusions of the Family Consultant because the major incidents of violence are matters upon which I accept the wife’s general version of facts.
The evidence of the Family Consultant in this case was powerful and persuasive. I have accepted it.

Other possible evidence?

In KMB and PRL and Child Representative [2005] FamCA 1202, the Full Court said the obligation on a trial Judge was to “fully evaluate the competing proposals, to weigh up the pros and cons of each circumstance and to then dispassionately make the decision that the trial Judge concludes will best advance the welfare of the child.” The Full Court went on to point out that where the evidence led by the parties does not provide the court with sufficient material to make such an evaluation, it becomes incumbent upon the Judge to draw his or her concern to the attention of the parties and, in particular, a child representative where one has been appointed, so that the Court has evidence of a specialist nature upon which it can properly act.
I have the factual evidence which underpins the specialist evidence. I have pondered what else the husband could bring forward which might alter the only conclusion I can find. The husband’s view about his own behaviour is perplexing and the Family Consultant was of the view that it was unlikely to change. Unsurprisingly, the wife held a similar view but at least in cross-examination, she acknowledged that if there was substantial change, she could contemplate a parent and child relationship. She was pessimistic about the prospect of it ever happening.
At a time when the husband had lawyers acting for him, he filed no affidavit material other than that to which I have referred. The sentencing remarks of His Honour Judge Mason refer to the husband having a loving and supportive family. No material was filed by them and no person attended court with the husband to support him. The husband said that he was respected and could get whatever he wanted but no suggestion was made that these people would come forward even if they might have something to say about the husband’s parenting skills. Even if they did, the major hurdles facing the husband are his violence and the responses of the children which I know he does not accept.
This case was as much about the protection of the children from exposure to family violence as it was about protecting the parenting capacity of the wife. The evidence supports the conclusion that the wife’s fear of the husband is real and that exposure of her to the husband will affect her capacity as a parent. The children do not deserve that.
I am satisfied there is no further evidence available that would assist me.

The legal principles

The law governing an application for parenting orders is set out in Part VII of the Act.
Section 60B(1) provides that the objects of Part VII are to ensure that the best interests of the children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives. That object is repeated as a consideration in s 60CC(2). However, s 60B requires the court to ensure that wherever possible that benefit for the children, is to the maximum extent, consistent with their best interests.
Section 60B also sets out as an object, the requirement to ensure that the best interests of children are met by protecting them from physical and psychological harm arising from being subjected to or exposed to abuse, neglect or family violence. That aspiration too is repeated as a primary consideration in s 60CC(2).
In addition to the two objects just mentioned, the Act sets out that Part VII is to ensure that children receive adequate and proper parenting to help them achieve their full potential and also ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. There is little prospect of that here.
The objects above and the principles underlying them are a guide when considering how to assess each of the matters set out in s 60CC.
Section 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the children as the paramount consideration. Section 60CC sets out how to determine what is in the best interests of the children.
Section 60CC(1) requires a court to consider the matters set out in s 60CC(2), s 60CC(3), s 60CC(4) and s 60CC(4A). Section 60CC(2) sets out primary considerations. Those are then followed by additional considerations in s 60CC(3).
The primary considerations as indicated above are the importance of the benefit to the child of having a meaningful relationship with both parents and, the need to protect the child from the harm which I have also mentioned in the objects above.
The Full Court in Marsden and Winch (No 3) [2007] FamCA 1364, (Warnick and Thackray JJ) said that a meaningful relationship should be accorded particular importance in determining what order would best promote the interests of the child and that it was of the utmost importance in determining that outcome but it was necessary to take into account all of the relevant considerations identified in the Act and give them such weight as the Court thinks appropriate. In other words, all of the circumstances must be considered.
In this case, if there is a clash of considerations between protecting the children from psychological harm and them benefiting from a meaningful relationship with their father, the former must hold more significance.
Section 60CC(2)(b) refers to exposure to abuse and family violence. Family violence is defined in s 4 of the Act to mean:
Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
In this case, not only have I the wife’s evidence including under cross-examination about her fears of the husband, I also have the unusual benefit of the sentencing remarks of His Honour Judge Mason both as to the behaviour of the husband and what his Honour considered was the wife’s reaction to that violence.
I accept without any reservation that the wife is reasonably apprehensive about her personal wellbeing or safety and there is a real prospect that the children would be exposed to that family violence (as earlier defined) if the parties were near one another.
Section 65D(1) of the Act provides that the Court may make such parenting order as it thinks proper. The discretion therefore is extremely wide and must focus on what is best for the children.

Supervision generally

Whilst the Independent Children’s Lawyer and the wife both rejected any suggestion of supervised time, it is something that I must consider.
No evidence was forthcoming as to an alternative to a contact centre. The extended families would not seem to be an option because of the assault. The contact centre rejected the husband and importantly, that rejection happened during the period of time that His Honour Judge Mason seemed to think that the husband had undertaken rehabilitation and was not affected by drugs and alcohol.
Even if a contact centre environment could be found, all of the evidence would suggest that it would be difficult having regard to the obvious resistance of the husband. The husband commented that the centre that had undertaken two visits was too small and inhibiting. He expressed concerns about their staff.
Supervision is not appropriate as a long term measure. The best that one would expect from it in the long term is that the parent and child relationship would remain alive. In this case, the Family Consultant was of the view that it was important for that to occur but that it could be achieved by cards and letters. The continued attendance at a contact centre would expose the wife to heightened anxiety which was a concern for her parenting capacity. The husband’s view was that if the children were exposed to him at a contact centre, all would be well because they would express their wish to see him. Unfortunately, the views of the children are only one aspect of their welfare and development. It is clear from the evidence of their progress over the last two years that they have settled and prospered. I find that any contact would place that at risk.

The Section 60CC factors

Children should benefit from having a meaningful relationship with both parents. I am satisfied that the children benefit from having a meaningful relationship with their mother. I cannot see any benefit from contact with their husband on this evidence and at this time.
The views expressed by the children are not accepted by the husband. In cross-examination of the Family Consultant, the husband asked whether he could be wrong about his opinion. In final address, the husband said something to the effect that you could look into the eyes of the Family Consultant and know that he was wrong. I have accepted the expert opinion evidence of the Family Consultant. I think the children’s views as expressed to the Family Consultant have significant weight.
The nature of the relationship between the children and their mother is extremely important. For the reasons I earlier articulated, that must be protected. The wife is the primary parent in the lives of these children. The sentencing remarks of His Honour Judge Mason support the conclusion that the husband did not have a significant role in the lives of the children before the family breakdown.
Section 60CC requires that I consider the impact of any changes in the children’s circumstances as a result of being separated from either of the parents. The obvious difficulty here is the impact of separation by contact on the wife’s parenting. For the reasons above, that should not be risked.
A significant consideration is the capacity of each of the children’s parents to provide for the needs of the children including their emotional and intellectual needs. No acceptable evidence was put forward by the husband as to what he would provide for the children other than time. The wife however has fulfilled her responsibilities under considerable difficulty and on all accounts unchallenged by the husband. She is providing appropriately for the children.
Section 60CC also says that a court is obliged to consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents. This particular consideration overlaps that concerning family violence and the protection of children from harm. Responsible and caring parents do not expose their children to the violence that occurred here. This was a dysfunctional household until the husband left and the post-separation conduct of the husband referred to in the sentencing remarks about extensive drug usage exposes him to criticism as a parent. A responsible parent does not commit serious crimes because to do so would risk imprisonment and being parted from children who most need their love and support. A competent parent makes a choice between protection of the welfare of their children and their own aberrant lifestyle. The husband made that choice here.
The husband’s views about the assault and his attitude that it did not happen or that his entry into the house was somehow justified are clear examples of poor parenting. Regardless of whether or not parents are affected by illness or drugs, children have a right to be protected from exposure to the violent consequences. The husband has to face the fact that this is a position of his own doing. He abdicated his responsibility as a parent but I stress again that he can change all of that. At the moment, I am not convinced he understands the dilemma.
Section 60CC also requires the court to take into account family violence and family violence orders. I need say no more than what is mentioned above and that an enormous amount of damage has been done to these children.
I am also very conscious of the need to bring these proceedings to an end. I have considered all options and can see no point in interim orders because the husband has made clear that he will not comply with orders and from his perspective, the solution he proffers is the only one.
Section 60CC(4) and (4A) require the Court to consider whether a party has fulfilled their responsibilities in participating in the lives of their children. Again, the facts above speak for themselves. The wife has been supportive of the husband’s relationship with the children and I consider would do so in the future.
In his evidence, the husband said the wife was responsible for controlling the times he saw the children after separation and before the axe incident. However, Judge Mason referred to the cocktail of drugs the husband was taking during that period. The husband’s evidence was he had no home then and was depressed. He said his own behaviour caused his extended family problems. It is inconceivable that the husband’s absence in the lives of the children was her fault. She said in evidence that she understood that the children had a love for their father. This is about protecting them from harm.

Communication

The wife’s case was that there should be no communication of any sort. It was suggested that having to vet correspondence from the husband would lead to anxiety and capacity difficulties for the wife not to mention to exposure of the wife’s whereabouts.
In my view, the balance favours ongoing communication and the wife is the person best suited to undertake the task of vetting what the children receive. If the husband behaves inappropriately, his conduct may amount to a breach of the intervention order but at least the correspondence will speak for itself. The husband would need to get advice from a specialist counsellor about what to write in the difficult circumstances and what presents to send. The purpose behind such an order is keep open and alive the dream of the children having a loving and responsible parent. If he behaves contrary to that, the wife will act accordingly.

The difficulty is how the communication should occur and how often. To limit the number of contacts is unnecessary because the communications may lead the wife to accept that change is in the wind. If it is not, the communications can be declined. If the husband inappropriately persists, the consequences may amount to a breach of the intervention order and for that purpose, I propose to frame orders so that any court contemplating that dilemma will understand the boundaries.
To expose the wife’s address is unreasonable but to cause her to retain solicitors or to retain the Independent Children’s Lawyer is also a financial burden that should not be borne by the community. In my view, the husband should provide the wife with the specific funds separate from child support in each year to enable her to maintain a post box. To the extent that he or any agent on his behalf approached her whilst collecting any delivery, that would amount to a breach of the intervention order.

Summary

The only orders open to me which are in the best interests of the children are that the wife have sole parental responsibility, they live with her and that the husband be restrained from contacting them. The one important exception to absolute exclusion is that the husband should have an opportunity to send appropriate letters, cards and presents under the watchful eye of the wife.

ANNEXURE

DOCUMENTS RELIED UPON

Applicant Wife

Amended application filed 2 March 2012.
Affidavit of the wife filed 25 January 2012.
Affidavit of Ms W filed 5 November 2010.
Affidavit of MC filed 2 March 2012
Affidavit of SA filed 2 March 2012.
Affidavit of Ms F filed 4 August 2008
Reasons for Sentence of his Honour Judge Mason dated 14 May 2010.

Respondent Husband

Affidavit of the husband filed 5 December 2011
Affidavit of the husband filed 12 December 2011
Affidavit of the husband filed 24 January 2012

Independent Children’s Lawyer

Family report of Mr V dated 30 March 2012

I certify that the preceding One Hundred and Twenty One (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 May 2012.

Associate:

Date: 24 May 2012