Smale and Smale

[2017] FCCA 3351

FEDERAL CIRCUIT COURT OF AUSTRALIA

SMALE & SMALE [2017] FCCA 3351

Catchwords:
FAMILY LAW – Family violence – failure to recognise the seriousness of conduct – need to prevent further harm to children and mother – orders made restraining the father from making further applications without leave.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 64(B)(2)(g)

Evidence Act 2008 (Cth), s.104(2)

Applicant: MR SMALE

Respondent: MS SMALE

File Number: MLC 10252 of 2016

Judgment of: Judge McNab

Hearing dates: 11, 12, 13 December 2017

Date of Last Submission: 13 December 2017

Delivered at: Melbourne

Delivered on: 13 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Barton

Solicitors for the Applicant: Portfolio Law

Counsel for the Respondent: Mr Carne

Solicitors for the Respondent: Rayner Song Family Lawyers

Counsel for the Independent Children’s Lawyer: Ms Kildea

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for the child, Z born (omitted) 2015 (“the child”).

3. The child live with the mother.

4. The father spend no time with the child.

5. The father be permitted to send cards and gifts to the child for the children’s birthday and Christmas with such communication to be addressed to the mother at a P O Box or Postal address nominated by the mother within 14 days from the date of these orders.

6. The mother send by post the child’s school reports and photographs to the father in late July and mid-December each year.

7. Pursuant to section 64(B)(2)(g) of the Family Law Act 1975 (Cth) (“the Act”) the father be restrained from making any application under Part VII of the Act in relation to the child without first making an ex-parte application seeking and obtaining leave of a Judge of the Federal Circuit Court of Australia and for that purpose:

   (a)the father must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking these orders;

   (b)unless otherwise ordered such application is not to be served on the mother or any other person; and

   (c)if possible, any such application for leave be listed before Judge McNab.

8. The appointment of the Independent Children’s Lawyer be discharged.

9. All extant applications be dismissed.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Smale & Smale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10252 of 2016

MR SMALE

Applicant

And

MS SMALE

Respondent

REASONS FOR JUDGMENT

1. Orders were made by Judge Bender on 15 June 2017 that the proceeding Smale & Chamley be consolidated with Smale & Smale. The proceeding in Smale & Chamley was brought before the court on a contravention application filed by the father on 21 March 2017. The mother responded by seeking orders that time between the father and the children, X and Y be suspended. Both matters were heard together and a family report was obtained which canvased issues in both matters. An Independent Children’s Lawyer was appointed who represented all of the children. In these circumstances, the reasons in each matter are in the same terms. The facts of each matter have been canvassed in these Reasons and consideration of s.60cc matters apply to both matters.

Summary of orders sought and evidence relied upon

1. The father sought the following orders in his amended initiating application filed on 8 December 2017 in relation to the Smale & Chamley matter:

   1)All previous Orders in respect of parenting arrangements for the children X born (omitted) 2009 and Y born (omitted) 2011 and (“the children”) be discharged.

   2)The mother have joint parental responsibility for the children.

   3)The children live with the mother.

   4)The children spend time and communicate with the father as follows:

   a.commencing on 1 January 2018, each week on Sunday at a professional supervision contact centre for up to 2 hours;

   b.commencing on 1 April 2018, each alternate weekend on Sunday from 10:00 AM until 2:00 PM;

   c.commencing on 1 July 2018, each alternate weekend on Sunday from 10:00 AM until 6:00 PM;

   d.commencing on 1 October 2018, each alternate weekend from Saturday from 10:00 AM Saturday until 6:00 PM Sunday;

   e.(i)father to be allowed to meet and spend time with the children at Christmas for 1 hour on 25 December 2017 to exchange gifts in the presence of a family supervisor.

   e.(ii)commencing on 1 January 2019, each alternate weekend from Friday after-school (or 3:00 PM if a non-school day) Saturday until 6:00 PM Sunday;

   f.commencing on 1 January 2019, also each Tuesday and Thursday after-school (or 3:00 PM if a non-school day) until 6:00 PM same day;

   g.commencing on 1 December 2019, also for two weeks in each long summer vacation period at times to be agreed, and failing agreement for 2 weeks commencing at 5:00 PM on 5 January 2020;

   h.commencing 1 February 2020, also for one week in each school term vacation period at times to be agreed, and failing agreement for 1 week commencing at 5PM on the middle Saturday of the term school holiday;

   i.commencing on 24 December 2018, from 6:00 PM on Christmas Eve until 12.00pm on Christmas Day in 2018 and each alternate year thereafter;

   k.commencing on 1 March 2019, for Easter in each alternate year commencing in 2019, from 6:00 PM on Easter Saturday until 6:00 PM on Easter Sunday; and

   l.such further or other time as may be agreed between the parties.

2. The orders sought by the father in relation to the Smale & Smale matter mirror those sought above, save that they relate to the child, Z born (omitted) 2015.

3. Ms Smale sought the following orders:

   1.That the Mother have sole parental responsibility of the child of the marriage, Z, born (omitted) 2015 (“the child”).

   2.That the child live with the Mother.

   3.That pursuant to Section 11 of the Australian Passports Act 2005, the Mother is permitted to apply for a passport to be issued, renewed, or replaced for the child without needing to first obtain the Father’s consent.

   4.That the Mother is permitted to travel outside of the Commonwealth of Australia with the child at any time without needing first to obtain the Father’s consent.

   5.That the Father is permitted to correspond with the child by post or email and the Mother is at liberty to read and monitor such correspondent and, upon the Mother’s receipt of the correspondent, provide the correspondence to the child, if the Mother deems its consents to be appropriate.

   6.That the Mother notify the Father of any change to her telephone number or email address within 48 hours of such change occurring.

   7.That the Father notify the Mother of any such change to his telephone number or email address within 48 hours of such change occurring.

   8.That the Mother notify the Father as soon as practicable if the child is seriously ill, hospitalised, or involved in a serious accident.

   9.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of these 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 Attachment A and these particulars are included in these orders.

4. Ms Chamley sought the following orders:

   1.The Mother have sole parental responsibility of the children X born (omitted) 2009 and Y born (omitted) 2011 (“the children”).

   2.The children live with the Mother.

   3.The Father have no time with the children.

Evidence relied upon by Ms Chamley

1. Ms Chamley relied on the following documents:

   a)Application in a Case filed 22 May 2017;

   b)Affidavit of Ms Chamley sworn 30 November 2017;

   c)Affidavit of Ms Smale sworn 26 May 2017;

   d)Section 11F report of Ms B dated 15 June 2017; and

   e)Family Report of Ms S dated 15 November 2017.

Evidence relied upon by Ms Smale

1. Ms Smale relied on the following documents:

   a)Amended Response to initiating application filed 30 November 2017;

   b)Trial Affidavit of Ms Smale filed 30 November 2017;

   c)Financial Statement of Ms Smale filed 30 November 2017;

   d)Affidavit of Ms E ((omitted)) filed 29 November 2017;

   e)Affidavit of Dr G filed 25 October 2017;

   f)Affidavit of Ms D filed 22 May 2017;

   g)Affidavit of Ms Chamley filed 5 December 2016;

   h)Notice of Risk of Ms Smale filed 25 November 2016;

   i)Response to Initiating Application filed 25 November 2016;

   j)Affidavit of Ms Smale filed 25 November 2016; and

   k)Financial Statement of Ms Smale filed 24 November 2016.

Evidence of Ms B (11F report and oral evidence on 15 June 2017)

1. Ms B conducted a Child Inclusive Conference in both matters on 15 June 2017. In relation to the mental health of both parties in the Smale & Chamley matter, she noted that:

   During the course of the morning the mother observed the father in the waiting area and appeared to have a significant physical response in the situation, with a rash appearing across her chest which was present throughout the remainder of the interview.

   
   

   The mother identified that this appears in situations where she is highly anxious. This is known to be a common physiological response in individuals who have experienced trauma, which would be consistent with the mother’s allegations of family violence by the father.

2. In relation to the father’s ability to accept responsibility for his actions, she noted:

   In discussing the allegations of family violence with the father he demonstrated extremely limited responsibility/insight into one incident whereby he has pled guilty in the criminal courts (having pushed the mother in ager into a glass door causing her to fall through the door). The father demonstrated little to no remorse in discussions of this incident, and similarly limited empathy into how this may have been experienced by the mother.

3. Ms B gave evidence that she terminated the interview with Mr Smale after he became “emotionally heightened and raised his voice and threw paper” in her direction upon discovering that he would not be observed spending time with the children during the course of the interview.

Family report of Ms S dated 15 November 2017

1. In her family report dated 15 November 2017, Ms S makes similar remarks in relation to Mr Smale’s significant lack of insight into his actions. At paragraph [28] Ms S notes:

   Mr Smale presented as pleasant and cooperative answering all questions put to him. However, he demonstrated a significant lack of insight into the situation he finds himself in and could not provide any reasons for the break down in his relationship with Ms Smale or any actions on his part. He is now well aware that both Ms Smale and Ms Chamley have made allegations of serious violence perpetrated by him, yet he could not provide any details of why they might say that, while steadfastly maintaining his innocence. He said despite his innocence and the absence of any convictions he had enrolled in a Men’s Behaviour Change program. When asked what he had learnt, he rather dismissively commented that he hadn’t needed the course as he was not violent. He seemed more focussed on providing his certificate than articulating learnings.

2. Ms S made the following recommendations in the family report:

   79.It is recommended that Ms Chamley have the sole parental responsibility for X and Y.

   80.It is recommended that Ms Smale have the sole parental responsibility for Z.

   81.It is recommended that X and Y live with their mother.

   82.It is recommended that Z live with his mother.

   83.It is recommended that there are orders for no time between X, Y, Z and Mr Smale.

Finding

1. The issue in each of these cases is whether there should be orders made that the father spend no time with each of his children, X born (omitted) 2009 and Y born (omitted) 2011, and Z born (omitted) 2015.

2. Having heard the evidence of each of Ms Chamley and Ms Smale,

   
   

   I accept:

   a)that they are both genuinely terrified of Mr Smale;

   b)that there is good reason for them to feel terrified; and

   c)there has been no evidence given by Mr Smale to suggest that he has any understanding or appreciation of the effect of his behaviour, or that he ought to modify his behaviour and attitude towards these women such as to give any sensible person confidence that he is presently capable of modifying his behaviour.

3. My strong impression from hearing the evidence is that both of these women are deeply disappointed to find themselves in the situation where they are advocating for orders that their children spend no time with their father, but they have done so through absolute necessity and in my view, for very good reason. Both Ms Chamley and Ms Smale gave detailed evidence of very severe family violence occurring over extended periods of time.

Evidence of family violence

1. In relation to Ms Chamley, Mr Smale pleaded guilty to offences involving serious violence inflicted on Ms Chamley on 7 September 2013 in circumstances where on the basis of Mr Smale's own evidence he and Ms Chamley had separated in August 2012. I refer to Mr Smale's affidavit filed on 28 August 2013.

2. The violence was extreme. Paragraphs [19] and [20] of the affidavit of Ms Chamley sworn 30 November 2017 sets out what occurred.
   In circumstances where the children were either in the house, or the father thought the children were in the house, he entered the property at approximately 1:00 am on 7 September and as Ms Chamley says:

   …the father appeared at my residence unannounced. The children were not at home and were spending the night with my parents.  The father was banging loudly on my front door and I was worried he would break a hole through the door. I heard the father yelling out that if I did not open the door he would kick it in. I was concerned about the commotion the father was making and opened the front door and asked him to leave. The father proceeded to barge into my home despite me asking him to leave. The father appeared to be in a very angry and agitated state and yelled at me for not responding to his text messages. He smelt strongly of alcohol.  The father proceeded to push me into a wall and swung me around into a glass door. The glass door shattered and my right shoulder was cut when the father pushed me against the broken glass. The father then held me against a wall with his forearm against my neck. I screamed and became more and more terrified as the father increased the pressure of his forearm against my neck making it harder and harder for me to breathe.  The father then grabbed my neck with both hands in a choking manner.  He was squeezing so hard that I could not scream. The father let go of me and dragged me into my bedroom. I was terrified that he might kill me.

   Once in the bedroom the father released me and yelled, "Where are the fucking kids?" and proceeded to search the house for the children. It was clear that the whole time the father was assaulting me he believed the children were in the home. Clearly the father was unconcerned about the prospect of the children seeing him assaulting me. While the father was searching the house I tried to find my phone. He came back into the bedroom, grabbed me by my shoulders and again shouted, "Where are the fucking kids?" He slammed me against one wall and then another so that blood from the cut that I had suffered earlier was smeared on the walls.  He then put his forearm against my throat and when he released his hold of me I was able to run outside and telephone the police. The father left home when he saw I was speaking with a 000 operator.

3. That description matches the summary that was given by the prosecutor before the Magistrates' Court when Mr Smale pled guilty and was convicted of offences relating to that violence on 10 January 2014. Notwithstanding that experience of violence, which I accept without hesitation occurred as outlined in the affidavit of Ms Chamley and notwithstanding instances of violence over a period from 2007 until 2013, Ms Chamley consented to orders made in the Court in 2014 for the children, X and Y, to spend time with Mr Smale.

4. In my view, that indicates a willingness on her part for the children to maintain a relationship with their father notwithstanding the terrible treatment that she had received at the hands of Mr Smale over a long period of time. The evidence in relation to Ms Chamley is that, even following the orders of 16 October 2014, there was sustained conduct towards her which was hostile, derogatory of her abilities as a parent and clearly showing a disregard for the circumstances.

5. Paragraph [39] of the affidavit of Ms Chamley sworn on 30 November 2017 set out how concerns in relation to the conduct of Mr Smale. That provided:

   (a)November 2014 Y informed me that his father would smack and kick him and call him a baby during contact visits. On the 9^th October 2014 after a contact visit I noticed that Y had bruising to his upper right thigh. I took a photo of this and annexed herewith and marked with the letters “C-4” is a true copy of the photograph taken on the 9^th November 2014.

   (b)21^st December 2014 I asked the boys if they had a good time with their dad that weekend. X responded “no, Dad and Ms Smale were fighting again.”

   (c)On the 19^th February 2015 the father had spent time with the children for his wedding rehearsal. The following day Y looked as though he was getting a bruise on his right eye and had a scratch on that cheek. When I asked him what happened how did he get a sore eye he replied “dad smacked me over the head”. The Father cancelled having the children that weekend due to the children’s “bad behaviour” at their wedding rehearsal. I took a photograph of Y’s face after the visit. Annexed herewith and marked with the letters “C-5” is a true copy of the photograph taken of Y’s face after this contact visit.

   (d)On 10^th April 2015 I received a text message from the Father informing me that Y had been continually requesting to come home to me. The Father threatened to leave Y in his bedroom for 2 days if the behaviour continued.

   (e)22^nd April 2015 I received a telephone call from Y's Kindergarten informing me that Y seemed distressed that his father was going to collect him from kinder that day. I immediately attended the kindergarten to calm Y down. This occurred quite often on Wednesday evenings when the father would collect the children for his weekly dinner.

   (f)In April 2015 I attended to collect the children at the conclusion of time. The children informed me that the Father and Ms Smale had been arguing and the Father had hurt Ms Smale. Ms Smale was yelling and ran out of the house crying.

   (g)8^th May 2015 I received a phone call from the Father at approx. 6.30pm demanding I come get Y. The Father seemed very agitated on the phone so I didn’t ask any questions as to why. I arrived at the Father’s house at 7.01pm and my husband Mr S went to the front door to collect Y while I waited in the car and text Mr Smale “I’m out the front”. When the door opened the Father pushed Y in his back causing him to fall over the door jam and slammed the door just as he had fallen forward. Y was very upset about something but would not open up to us. All he said was “I love you, I’m happy to be coming home.”

   (h)12^th December 2015 the Father text me saying Y was vomiting in the morning and then again at 3pm asking me to pick him up. Y seemed distressed when I picked him up, again he said he was happy to be home with us.

   (i)25^th December 2015 until 7^th January 2016. The children were to spend holiday time with the father. The father contacted me on Boxing Day informing me the children wanted to come home. The children also spoke with me that day and confirmed they wanted to come home. I tried to reassure them that I would see them soon. The Father subsequently informed me that X had been wetting his pants during this visit. This is so foreign to X as I’ve never witnessed him wetting his pants ever since being toilet trained. When I collected the children X began sobbing and crying saying “I never want to go back to my dad’s ever again. He was mean and made me do things every day that I didn’t want to do”.

   (j)22^nd January 2016 Y was crying at drop off, not wanting to spend time with his father. The father saw Y’s reaction and said he didn’t want to deal with Y. Only X spent time with the father that weekend.

   (k)25^th January 2016 the Father text me saying he no longer wanted Y to come around.

   (l)12^th February 2016 Ms Smale called me in the morning upset, voicing her concerns that Mr Smale was prepared to leave X along, unattended at the football ground whilst he played football.

   (m)19^th February 2016 I dropped X off to spend the weekend with the father. Y was in the car with me and said “my dad doesn’t want me. I don’t want to be with him anyway he makes me sad.”

1. In my view, the concerns which are outlined in paragraph [39] of that affidavit of Ms Chamley have been established, and were genuine concerns, and are indicative that, notwithstanding the fact that orders were made in the hope that things might settle down, clearly they did not. In that regard I refer to the continued denigration of Ms Chamley in front of her young children by Mr Smale.

2. I also refer to the very powerful evidence given by Ms Chamley on this day to the Court where she referred to a drop-off in 2016 when

   
   

   Mr Smale referred to Ms Chamley as a “slut” in front of the children and, indeed, in front of Mr Smale's grandmother. This is notwithstanding the fact that Mr Smale pleaded guilty to a serious criminal offence on 10 January 2014, was sentenced to a community corrections order and underwent a number of anger management courses. A truly troubling aspect of this matter is that once he had established a relationship with Ms Smale the terrible treatment that he was subjecting women to who were close to him continued unabated and without restraint.

Evidence of family violence in relation to Ms Smale

1. I accept the submissions of counsel for Ms Chamley and Ms Smale, that Mr Smale was not a credible witness in relation to his disavowal of any responsibility for family violence. Ms Smale gave evidence that throughout the course of her relationship with Mr Smale, she endured “frequent verbal, emotional, sexual, and physical abuse” from Mr Smale. She outlines in her affidavit sworn 30 November 2017 that he frequently made derogatory comments towards her in relation to her appearance and parenting skills, and that often these comments were made in front of Z, Y and X.

2. She outlines two instances of family violence, at their engagement party in (omitted) 2014 and at the (omitted) in September 2014.

   
   

   In relation to the former, she states at paragraph [21]:

   At our engagement party in (omitted) 2014, Mr Smale drank heavily and became very inebriated. By approximately 4.00pm that afternoon, all the guests had left our home, where the party was held, except for Mr Smale’s friend Mr N (“Mr N”). Mr Smale and Mr N continued to drink alcohol by themselves. X and Y were in Mr Smale’s care that day and they were to spend the night at our home. At approximately 6.00 pm, the children were fed, bathed, and settled into bed, as was their routine at the time. At approximately 7.30pm, I quietly asked Mr Smale if he could please end the day with Mr N so the children could sleep. Mr Smale immediately became irate and shouted at me “Shut up slut, you’re such a whore! Leave us alone!” I was shocked that Mr Smale would speak to me like that in front of another person. To avoid escalating the situation, I returned to our bedroom. A short time later, I heard Mr N leave, and Mr Smale then walked into our bedroom, grabbed a pillow and threw it at my head. He said to me “You’re such a fucking slut, you whore!”

3. Paragraphs [22] and [23] of the affidavit of Ms Smale sworn 30 November 2017 sets out the events at the (omitted) in September 2014:

   [22] Several months later, on 27 September 2014, Mr Smale and I attended the (omitted) together. Mr Smale began drinking beer heavily at breakfast. After we left that event, we then went to the house of his friend, Mr J, where Mr Smale continued to drink heavily. He had already had more than ten drinks by that time. We then went to the pub, where he drank approximately three more beers. Mr Smale was extremely intoxicated at that point. He was talking loudly, becoming impatient with me, slurring his words, and struggling to stand straight. I was getting concerned that we would never make it to the actual (omitted). I asked Mr Smale if we could leave the pub so we could make it to the (omitted). Mr Smale immediately lost his temper. He accused me of being controlling. He told me that I was embarrassing him in front of his friends. When we eventually left the pub Mr Smale walked several metres in front of me. Every few minutes, he turned around to yell abuse at me. He called me a “slut” and a “whore” and he said that “You think you’re so much better than me”. Throughout the (omitted), Mr Smale continued to drink excessively, purchasing four drinks every time he went to the bar and he continued to verbally abuse me even though we were in public. He said to me “You think you’re so fucking good. You’re such a slut!” and “You think you’re a fucking rock star. Look at you. Slut.” I felt humiliated. By (omitted), I could no longer take the abuse and so I left the (omitted). I rang my father and told him what had happened. My father told me to go home immediately. I got into the nearest cab and returned home. My parents were at their holiday home in (omitted) at that time, but they told me they were concerned for my wellbeing and that they would return to Melbourne immediately lest I needed them to come help me.

   [23] Later that day, Mr Smale arrived home at approximately 11.00pm. I was already asleep, but I woke from the noise of him thumping on the front door and demanding that I let him in as he did not have his keys. After I opened the door for him, he stormed in and grabbed me hard on the upper right arm. It hurt. He said to me “You think you’re so fucking good.” I was very scared of him. He was clearly still heavily intoxicated. He looked enraged, he stunk of alcohol, he was slurring his words badly and he struggled to focus his eyes on me. He then walked towards X’s room at the back of the house. I took that opportunity to grab my dog and I left to go to my parents’ house.

4. Ms Smale also gave evidence of family violence following their marriage in February 2015. That evidence is given in affidavit of 30 November 2017. In March 2015 after some Mr Smale got into an argument about Y not wishing to spend time with Mr Smale, Mr Smale grabbed Ms Smale by the throat and thrust his head into the wash basin causing her head to hit a tap. She gave evidence about that incident as follows:

   “I was unable to brush my hair for approximately 8 week because of the pain. I told Mr Smale that he was hurting me and I pleaded with him to let go. After he let go, he picked at a pimple on his face until it started to bleed. He then took a photo of himself in the bathroom mirror, turned to face me, and said "now I can say you attacked me". I did not see a doctor about my injury as I was afraid the doctor would report Mr Smale to the police. I did not want Mr Smale to get into trouble with the police when we were about to have a baby.”

5. Ms Smale in her 30 November 2018 affidavit describes in detail her treatment by Mr Smale between March 2015 the date of separation in July 2016. These include an instance in July 2015 when Ms Smale was a experiencing complications with the pregnancy and had been admitted to the (omitted) Hospital as an emergency patient and had been in hospital had been hospitalised for three days. She had been advised to be on bed rest, wear a strap around her lower belly to help stabilise her pelvis and do prescribed exercises. At about that time she and Mr Smale needed to move house and Ms Smale describes:

   …after spending the day moving house with friends, he (Mr Smale) came home and called me a ‘lazy fucking bitch’ and that he was, ‘embarrassed by me because he had to ask friends to help you move house.

6. After giving birth Ms Smale experienced complications for which she required surgical treatment which meant that sexual intercourse was a painful experience. She gave evidence she was subject to pressure to have sex not long after all the birth but that Mr Smale was not happy about the frequency with which she was willing to participate and that sometimes after sex, there would be significant bleeding causing her to hobble into the bathroom and curl up in pain. Mr Smale dismissed her pain and said "you are putting on an act to make it all about you.”

   
   

   Ms Smale gave evidence that Mr Smale would casually refer to her in derogatory terms referring to her as a “lazy bitch” and “cunt,” that he would abuse verbally her if he experienced difficulty in his work. She gave evidence of examples of this verbal abuse. Ms Smale also gave evidence [at 31] that Mr Smale would have temper tantrums where he abused her in front of all the children. Ms Smale stated:

   "When Y used to come to our house, he and X would stick close to each other when Mr Smale had a tantrum and they stayed quiet even after Mr Smale stopped raging. But, after Y started to refuse to spend time with Mr Smale in around January 2016 and X came to our house alone, he stayed silent and placed his hands on his head when Mr Smale was behaving in an abusive manner and he once urinated in his pants.”

7. In February 2016 an argument occurred between Ms and Mr Smale regarding the frequency of sex. Ms Smale gave evidence that:

   "…during that argument, Mr Smale put his face close to Z’s  face, who was lying on his tummy on the floor, and said ‘you'd be better off if your mum was dead.’ I told Mr Smale to get out of Z’s face and got down on the floor to shield Z from Mr Smale. Mr Smale grabbed me by the shoulders flipped me over my back, causing my head hit the floor hard, hurting my head. He then pinned my shoulders down. I screamed at him to get off me and after approximately one-minute he eventually did. I immediately went to comfort Z who had started screaming when Mr Smale threw me to the ground. X was also in the house during this altercation, but he was in his bedroom so did not witness the incident.”

8. Ms Smale gave evidence that in around June 2016 that whilst Mr Smale was washing dishes (which was something that she said that he did not do as a matter of course), Ms Smale asked him if he was okay. She stated:

   "…he just stood there watching the same pot over and over. I asked again if he was okay and what he was thinking and he responded "I'm thinking about how much I would love to bash you over the head with this pot."

9. On 30 July 2016 after Ms Smale had told Mr Smale that he should get some help to deal with his anger after in a drunken state he had started criticising Ms Smale’s father, Mr Smale started making threats.  She gave evidence that in the middle of that night after he had been drinking red wine all night he entered the room where she was sleeping and shone a torch light on her face and told Ms Smale, "I don't care, don't tell me what do.” He started taking photos of furniture in the room saying "that's mine.” She gave evidence that the following day after she had got up, Mr Smale had demanded that she talk to him and that:

   …as his wife I had to talk to him. He repeatedly swore at me when I refused to engage. I asked to him leave me alone and when he refused I asked him to leave the house. He said ‘I’ll go when I'm good and ready.’ He then told me that he would leave us alone if

   
   

   I paid $150,000 but that otherwise he could do what he wanted, including cutting into our deck.

10. This exchange occurred at about the time of the Z’s first birthday party and in circumstances where a party had been organised to be held at the house. Mr Smale sent Ms Smale a text message (attachment S 2) dated 30 July 2016, which stated:

    "Until my money is in my account Z’s party will not be held here. This is my house to until then. I also don't appreciate you telling lies to your parents about me. If this continues I will show them photos of the physical abuse from you. Moving forward

    
    

    I would appreciate you not being here on Tuesday nights and every second weekend. I will be leaving tomorrow. Returning Tuesdays and each second weekend until the $150,000 has cleared. Do not respond to me.”

11. Having seen Ms Smale in the witness box I accept the evidence that she is given in relation to the family violence committed by Mr Smale. In addition to the matters which were dealt with in Ms Smale affidavit material, I also accept that at a medical appointment which was attended by Mr and Ms Smale in relation to Z not settling at night Mr Smale referred to Ms Smale in the waiting area of the medical clinic as a ‘shit mother.’ For good reason this made Ms Smale upset and she described ‘losing it’ in the waiting area of the medical clinic.

12. Mr Smale’s response to the affidavit material filed by Ms Smale was that he generally denied the allegations or claimed that Ms Smale was exaggerating. Having regard to Mr Smale admitted conduct towards Ms Chamley and the compelling evidence of Ms Smale in relation to his conduct towards her, I prefer the evidence of Ms Smale. I accept that she has been subject to persistent and ongoing family violence of a serious nature. Mr Smale sought to explain or justify his behaviour by stating repeatedly in his oral evidence: “it takes two to tango.” I do not accept that Ms Smale was in any way interested in engaging in a violent relationship and any violence on her part was in order to defend herself against a large physically imposing man.

13. Ms Smale gave evidence that she applied for and obtained an intervention order against Mr Smale on 3 August 2016 that order was persistently breached and he has been charged and convicted of breaching the intervention orders on two occasions. Mr Smale’s evidence in relation to the explanation for these breaches was that he breached the orders, because he thought he was trying to do the best for his son and he and "he just wanted to see his child".

14. I accept the evidence of both women that Mr Smale has a problem with alcohol consumption and that he has a tendency to become belligerent and violent when he has been drinking. He does not accept that he has such a problem and until there is a clear recognition by him that he has such a problem and has addressed it in a measurable way, he will continue to be a danger to those who live with him. There is the added concern that he has persistently breached intervention orders.

Evidence of family violence in relation to Ms Chamley

1. In respect of the events on 7 September 2013 Mr Smale sought to minimise his conduct, and it is evident that he has done so by the evidence of his new girlfriend Ms A. She referred to the incident as was told by Mr Smale to her, that he pushed Ms Chamley into a door and in her words, “…it takes two to argue” and that “there are two sides to every story" was the repeated refrain both of Mr Smale and Ms A.

2. Notwithstanding the fact that Mr Smale has faced criminal charges, that he has had counselling, and has had every opportunity to reflect on his behaviour, there is no credible evidence that he has learnt anything from his conduct. He was unrelentingly negative and derogatory in relation to Ms Smale, going to the extent even of advocating that she be subject to an intervention order in respect of the other two children.

3. The Court asked Mr Smale what he had learnt as a result of the experiences of counselling, and asked him to describe in detail the events of 7 September 2013, he was simply apparently unable to do so. The position of Mr Smale is that he has had counselling, that he has learnt from the experiences and he gave evidence that he regarded himself as being completely different. He said that he had “acted wrong” and that he had learnt breathing techniques and, in his words, he had “learnt a lot of different things and he had had umpteen sessions” but he could not recall in detail the lessons that he had learnt but he had gone through a lot of exercises.

4. Compelling evidence of Mr Smale's volatility and dangerous behaviour was his conduct at an s.11F conference on 15 June 2017 before Ms B. This occurred in circumstances where he was clearly aware that an issue in this case was his incapacity to control himself. Evidence was given by Ms B, both in her written report and in her oral evidence before the Court. Although she was not present in Court, I could clearly discern that she was affected by having experienced Mr Smale’s conduct where he got progressively angrier, his voice changed, he was unable to moderate himself and he then threw papers across the table at the consultant.

5. I accept the evidence of Ms B that she is an experienced social worker who has dealt with many matters involving distressed parents, including distressed fathers who have been accused of having anger issues, but her evidence was that she was extremely concerned and left the room in order to protect herself. Her evidence was unequivocal that there should be no contact between these mothers and Mr Smale, and that there should be no contact between Mr Smale and the children of these mothers, and that ongoing contact is going to be a source of stress and anxiety for both of them, if orders of that kind were made which would impact on the children. I am not prepared to subject these children to that risk.

6. In terms of the evidence of Ms S, she provided a very comprehensive account of the affidavit evidence that had been filed when she prepared her report. She gave a detailed account of the interviews that she had with all of the participants and gave a very considered and, in my view, manifestly sensible recommendation that the risk to these children through further contact, without very convincing evidence of a change of attitude from Mr Smale, would not be in the best interests of these children.

7. I do not accept the evidence of Dr T that there should be some immediate move to supervised time, whether it be by private supervisor or otherwise.  In my view, that witness went beyond the scope of the report that she was asked to prepare by the Court. She has made recommendations about the children spending time without meeting the children and, in my view, there is a significant failure in her report, in relation to her opinion regarding the mental health of the father, to take into account the significant family violence. In referring to family violence she did not actually refer to what it was said to be in the this case and then she referred to it as “alleged family violence” when in the case of the treatment of Ms Chamley it clearly not alleged as it has  proven and accepted. For those reasons I do not accept the recommendation contained in her report.

8. The notion that these women have to now go through counselling or mediation with Mr Smale in circumstances where he has behaved so atrociously over an extended period of time, where he has come to the Court with no evidence of any credible kind that he has any insight whatsoever into his behaviour would be perverse.  It would be an act of callous indifference on the part of the Court to require these women to have an ongoing relationship with this man through their children. I accept the evidence that was given by Ms B and Ms S who provided a family report that Mr Smale should not currently spend time with these children. 

9. In relation to the evidence given by Ms A that Mr Smale has his drinking under control and is in effect a model partner, she is in a position of being in a very new relationship with Mr Smale and the Court has heard evidence that he is a charming person when he wishes to be and clearly he has been successful in commencing relationships with two clearly intelligent people and I have no reason to believe that Ms A is not also an intelligent person. However the Court cannot accept without some independent verification the matters that she refers to in terms of alcohol and risk. The Court would not accept her as a supervisor on the basis of the evidence that she has given. Things might change, of course, over a period of time, but at present as the evidence presently stands, the Court does not accept on the basis of her evidence there is no significant risk posed by Mr Smale.

10. In making these findings against Mr Smale I have regard to the provisions of the s.140(2) of the Evidence Act 2008 in relation to the standard of proof where dealing with matters where allegations of criminal conduct are made in civil proceedings. The matters upon which I have found to have been proved have been established by credible direct evidence of the people who have in fact suffered the violence.

Section 60CC factors

1. In terms of the matters that I must have regard to under s.60CC of the Family Law Act 1975, it is now properly and appropriately conceded by Mr Smale that each of the respective mothers shall have sole parental responsibility so that is not an issue to be determined. In relation to the benefit of the children having a meaningful relationship with both of the children's parents, in both these cases the mothers have been the primary carers for the children, and certainly in the case of Ms Smale she has been solely responsible for the child Z for about 18 months.

(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents

1. In the circumstances where I have made a positive finding that the father has consistently subjected these mothers to family violence, in my view, the protection of these women and in turn the wellbeing of the children in by not being exposed to family violence is more important than the children having a meaningful relationship with the father at this stage.

(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. I refer to the matters I have referred to earlier.  It is manifest that the orders protect against, in one case admitted family violence, but in the other case family violence against Ms Smale, which I have found to have occurred.

(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. In relation to additional considerations Z, who is a little over two years old, obviously is not in a position to express his views, but the children X and Y have expressed their view to the family report writer, and I think it is a sadness that a little boy says that he might see his father again if he was brave enough.  These children have had to experience some awful behaviour by the father and in my view, they should be protected for the reasons I have stated earlier.

(3)(b) The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

1. In terms of the children's relationship with each of the children's parents and other persons, I was genuinely heartened to hear evidence from Ms Chamley of the family that she now has with the two older boys and her husband. It is a protective environment with older children at university and younger children. She described the older boys looking out for the younger ones. She is in a loving family relationship and which was something she appeared to be stoically proud of and described that family in a measured way to the Court.
   In the case of Ms Smale she is in a position of having assistance from her parents. She has not repartnered.

2. These children will not be bereft of having access to positive male role models in circumstances where all these children have had the experience of having a father and where they will not be seeing him unless further orders are made or they decide to see him as they get older.

(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

1. In the case of Ms Chamley she has made all the long term decisions concerning the children. The evidence is replete with examples of trying to involve the father, to be met with naked aggression and negativity.

2. In terms of Ms Smale, she is in a situation of being a sole parent, without support from the father of any kind, and has made decisions for her son on her own and I have got no doubt that she will act in his best interests.

(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. In relation to the contributions made to support the children, I note the evidence of the father that there has been no meaningful attempt by him to support any of these children, notwithstanding his volunteering to pay very substantial amounts of money to pay for supervised time if orders were made for same. In my view, in the event that any application is made in the future in relation to the father seeing these children, the Court would have significant regard to any contributions made by the father and if there is no contributions, or no meaningful contributions, in my view that would be a very significant factor to take into account.

(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. In relation to the effect of changes in the children's circumstances and the effect on the children when separated from either parent, the evidence is before the Court that when Y and X were spending time with their father post the orders being made in 2014 he suffered from significant anxiety. There is written evidence by the father of his suggestion to deal with X when he experienced stress by locking him in his room for a weekend. This was not an on/off turn of phrase; it was a comment made in text messages to the Ms Chamley about four times. When X was thought by the father to be not doing so well at school the father’s reaction was to suggest that he might report the mother to DHHS. One wonders what DHS could do to assist in the numeracy of a four year old?  The evidence is to the effect that Mr Smale was an impatient and not particularly committed parent who caused all the children in his care to become stressed particularly when he was angry.

(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I have dealt with that in my reasons already.

(3)(j) Any family violence involving the child or a member of the child’s family

1. The family violence is a matter I have already dealt with and will not traverse that further, save that in relation to family violence I repeat that the family violence which has been inflicted in the most horrendous way upon Ms Smale was done in circumstances where orders had been made against Mr Smale for violence against his previous partner.

2. He is prepared to repeatedly breach intervention orders, and has been convicted twice of that, on the basis that he feels that it was appropriate to do so because he “just wanted to see his kids”. He has shown no respect for orders which might protect the mothers.

(3)(m) Any other fact or circumstance that the court thinks is relevant

1. Another circumstance under subsection (m) is the effect of these proceedings on parties and the risk of further proceedings. In my view, it is an emotional hardship, probably on all the parties but, in particular on the mothers, who really are just trying to effectively do the best they can and are living with the decision to have a relationship and children with Mr Smale that they have made, probably for all sorts of reasons but they have to continue to live and deal with that.

2. But to be subjected to ongoing litigation, in circumstances where the applicant has had 18 months to put himself in a position where he could demonstrate in an objective way to a third party that he has effectively put past behaviours fully in the past and is fully able to behave like a reasonable person, it is simply not tenable to allow these people to go through this again without evidence of a proper basis for bringing the application. It is for this reason that I make the order in the terms of order 7 of the orders attached to these reasons.

3. Throughout the evidence filed by him and in his oral evidence before the Court, the father tried to cast Ms Smale in a way that in fact she was the one who was physically violent and he was responding to her violence and her aggravation. When asked in the witness box what she had done or said, his major complaint was that she had called him fat. Both of these mothers have been subjected to significant and terrifying violence and I am not prepared to have them be required to come back to Court, without a proper application being made which puts new material before the Court which would persuade the Court that it is in the interests of the children to re‑open the proceedings. Such evidence would include evidence of:

   ·financial contribution to the support of the children;

   ·evidence of treatment for anger and aggression;

   ·evidence of contrition and insight in relation to what has occurred;

   ·evidence of treatment for dependence on or the effects on Mr Smale of alcohol; and

   ·evidence that there have been no further breaches of intervention orders or conduct which may put these mothers at risk or cause them to fear risk.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  31 January 2018