Stanley and Stanley

FAMILY COURT OF AUSTRALIA

STANLEY & STANLEY	[2016] FamCA 1130
FAMILY LAW – CHILDREN – Application by father to spend time with children – History of long term family violence - impact on mother and children – father in denial about the violence – whether the children are unacceptable risk in the future care of the father – Orders that father spend no time with or communicate with the children.

Family Law Act 1975 (Cth)

Mauldera & Orbel (2014) FLC 93-602
Blinko & Blinko [2015] FamCAFC 146

Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016)
APPLICANT:	Ms Stanley

RESPONDENT:

Mr Stanley

INDEPENDENT CHILDREN’S LAWYER:

Ms Higgens

FILE NUMBER:

LNC

697

2011

DATE DELIVERED:

14 December 2016

PLACE DELIVERED:

Hobart

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

10, 11 & 14 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Eaton

SOLICITOR FOR THE APPLICANT:

Philip Welch

SOLICITOR FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Higgins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Bishops

Orders

Ms Stanley (‘the mother’) have sole parental responsibility for M born …1999, C born … 2000 and J born … 2006 (‘the children’).
The children live with the mother.
The mother be permitted to relocate with the children to E, Tasmania or any other place within the Commonwealth of Australia without the consent of Mr Stanley (‘the father’).
The father shall spend no time and have no communication with the children.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) (‘the Act’), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications be dismissed except costs applications, if any, which are to be dealt with in accordance with the Family Law Rules 2004 (Cth).
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 697 of 2011

Ms Stanley

Applicant

And

Mr Stanley

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

Family violence can cause terrible physical and psychological harm, particularly to women and children. It destroys families and undermines communities. Sometimes children who have directly experienced family violence or have been exposed to it go on to be victims or perpetrators of violence in later life, so that the effect of family violence is passed on to the next generation.[1]
[1] Victoria, Royal Commission into Family Violence, Summary and Recommendations, March 2016.

Mr Stanley (‘the father’) subjected Ms Stanley (‘the mother’) and their four children to years of family violence; unsurprisingly, he is now estranged from his former wife and elder two children.
The father wants orders to spend time, communicate and be involved with his two younger children.
The above words of the Royal Commissioners,[2] contained in their report and recommendations on family violence in Victoria, resonate in the context of this family and that which they have endured in the past and in the decision making process to deal with the future arrangements for the children.
[2]Ibid at page 1, Honourable Marcia Neave AO, Patricia Faulkner AO and Tony Nicholson.
The mother and the father were in a relationship from about 1995 until May 2013. There are four children of the relationship: A aged 20, M aged 17, C aged 16 and J aged 10 almost 11.
The proceedings relate to the parenting arrangement for C and J.
The father has endeavoured to minimise the violence, normalise the violence. At times he blamed the victims. He has little or no insight into the impact of his violence upon the mother and children and (perversely) sees himself as being victimised by reason of the mother restricting and then preventing his contact with the children.
Apart from the physical injuries visited upon her, the mother has suffered serious mental health trauma as a consequence of the many years of violence which she has endured.
It is for the reasons set out below that orders have been made providing that the children live with the mother, that she have sole and exclusive parental responsibility and that the father have no contact with the children.
Sadly, the father, members of his family and a member of the mother’s family have treated the violence as little more than modest vicissitudes of life and have, at times, conspired to place the children in the father’s care contrary to the wishes of the mother.
Unsurprisingly, given the levels of violence alleged, an Independent Children’s Lawyer was appointed. These proceedings were initially commenced in the Federal Circuit Court, but were later transferred for hearing in the Family Court.
The Independent Children’s Lawyer supports the mother in terms of sole parental responsibility, relocation to E, and a residence order. The issue from her point of view is what time, if any, the children should spend with the father and what communication, if any, the children should have with the father.
The father sought orders primarily in relation to J spending unsupervised time with him and permission for C to spend time with him as she chooses. The father sought some parental responsibility of the children, but it was not his primary concern.
The father did not dispute that some violence had been perpetrated by him on the mother and the children; he took issue with the extent and impact of that violence and he disputed the mother’s concerns that it would continue into the future.
The mother lives in F and wishes to relocate the residence of the children to E.

BACKGROUND

The mother is aged 47 and works as a cleaner. She is in fair physical health, but has psychological health issues to which I will refer later in these reasons.
The mother has formed a relationship with Mr W who is aged 47 and lives in E. Thus the geographic conundrum. Mr W has four children from a previous marriage, two of whom reside with him. Those two are aged 19 and 16 years.
The mother wishes to move from F to E and commence living with Mr W at either the end of 2017, once M has finished Year 12. Alternatively, to move at the end of 2018 when C completes Year 12. I have accepted the evidence of the mother that she will reflect carefully on this transition given the particular nature of each of the children and the circumstances of the three younger children.
The father is aged 44 and has formed a relationship with Ms Y with whom he has lived for approximately the last three years. The father and Ms Y have a child of their relationship who was born in mid-2015 and is now aged about eighteen months.
The father works in the transport industry. He, Ms Y and their child reside in the F area.
The father and mother met and commenced cohabitation in 1995. They married in 1996. The oldest child, A, was born in 1996, M in 1999, C in 2000 and J in 2006.
The parties had various separations over the years and the mother sets those out in paragraph 30 of her affidavit sworn and filed 12 October 2016 (‘the mother’s trial affidavit’). The father has poor recollection of the various separations, but admits there were a number of them and does not seriously contest that asserted by the mother in her trial affidavit. I accept the mother’s evidence in that regard.
The mother asserts, and I accept, that the final date of separation was May 2013.
The mother has been the primary carer of all four children for the whole of their lives to date with the exception of a period of about five weeks when the child C lived with the father in September/October 2015.
From the findings in these reasons family violence commenced in August 1995 and has continued in one form or another to October 2016. The later date was when the father sent a text to the mother on 3 October 2016 saying:-
I have a message for you to pass on yo [sic] [A], if she is going to affidavits, legal documents, I would be telling her if I was you, that lying is a criminal offence in this case, although you should know that, you seem to be good at it yourself.[3]
[3] Mother’s trial affidavit filed 12 October 2016 paragraph 86, Annexure E (page 46).
The father has a criminal history relating to violence, primarily against the mother.[4] The father was convicted of assault in July 2002.
[4] Exhibit M3 pages 1 to 7 – this was sent about one month prior to the commencement of the trial.
A series of family violence orders have been made against the father protecting the mother and at times the children, these include:-
a)restraint order made 1 October 2004;
b)interim family violence order 12 January 2005;
c)restraint order made 18 February 2005;
d)police family violence order made 13 May 2009;
e)police family violence order made 8 November 2010;
f)police family violence order 23 August 2011;
g)police family violence order made 23 June 2013; and
h)family violence order made 23 June 2013 for a period of twelve months.
On 23 August 2011 the father pleaded guilty and was convicted of offences of assaulting the mother and two breaches of a police family violence order in April 2011. He was fined $750.
On 29 November 2013 the father pleaded guilty and was convicted of common assault on the mother on 23 June 2013. He was fined $1,500.
On 26 March 2014 the father was convicted of about 27 counts of breaches of family violence orders. These related to text messages that the father sent to the mother in the month following separation.[5] These messages included what only could be described as appalling abuse of the mother and one of the children, a threat to destroy the mother’s life, a threat of self-harm by the father and an implicit threat to one of the children including:-
You want to play your selfish little head-fucked games. Well I can too. He will be here alone. Your [sic] one selfish cunt [mother] and you will pay![6]
[5] Ibid Exhibit M3 pages 89 to 98.
[6] Ibid at page 103.
That was followed with a text on the same night:-
[[J]] and I are going for a drive. I have done nothing wrong : )
You are nothing short of a lying selfless heartless bitch.[7]
[7] Ibid.
In November 2013 the father commenced seeing the children on a supervised basis at a children’s contact service. There were four visits until February 2014 when the father ceased seeing the children on the basis that he felt ‘uncomfortable’ seeing the children on a supervised basis. The father said he believed his time with the children should have moved to unsupervised time at that stage.
In mid 2014 the mother commenced a relationship with Mr W.
In mid 2015 the father’s youngest child was born.
In April 2015 a family consultant saw the parties and the children and prepared a report. The family consultant did not have full details of the mother’s mental health concerns arising from the violence of the marriage and I am satisfied that she did not have a complete history of the family violence asserted by the mother.
Consequently, the family consultant had recommended that the children spend time on an unsupervised basis with the father. The mother endeavoured to accommodate this recommendation by way of interim orders in the context of the Court proceedings. She arranged for C and J to resume spending time with the father and this was on an unsupervised basis. That time ceased in September 2015.
There was an argument between the mother and C in September 2015, at which time C was aged 14, almost 15. C asked to live with the father and went and lived with him for five weeks before returning to live with the mother.
In January 2016 the parties’ adult daughter, A, moved to Sydney for her further education as she had completed her secondary education.
In March 2016, after a particularly difficult event, which included an argument between the mother and C, this child telephoned the father and spent a night at his household.
The father has not had any meaningful communication with M or A since May 2013.
Proceedings under the Family Law Act 1975 (Cth) (‘the Act’) were commenced by the mother by application filed in the Federal Circuit Court on 13 November 2013. The proceedings were initially for financial matters, which were subsequently settled. The father filed a response seeking parenting orders.
In August 2014 orders were made for the appointment of an Independent Children’s Lawyer. A family report was subsequently ordered and released on 25 May 2015. Interim parenting orders were made on 30 July 2015 which provided that C and J spend time with the father.
In November 2015 an order was made in the Federal Circuit Court requesting a report from Mr D as a court expert. That report was released by order made 2 February 2016.
An order was made to transfer the proceedings to the Family Court on 24 May 2016 and directions were made for hearing the matter as soon as practicable.
In these reasons any statement of fact is to be regarded as a finding of fact unless it is otherwise clearly indicated by the context of the statement.

WITNESSES

Mr D

Mr D is a psychologist in private practice in Town T. He has significant academic and practical experience as a forensic psychologist and his qualifications were not put in issue.
Mr D has prepared two reports in relation to this family. The first was dated 14 January 2016[8] and followed interviews conducted in December 2015.
[8]Exhibit ICL4.
Mr D prepared a second report dated 19 September 2016,[9] following interviews with the parties, and the parties’ three children. As a consequence of that second report Mr D opined:-
70.There seem to be primarily two ways to proceed forward at this point: (a) for the children to not spend any time or communicate with the father in order to preserve the stability of the household in which they live; or (b) a resumption of limited time with the father in the form of brief day visits each fortnight to preserve and strengthen a functioning relationship and a more realistic perception of the father. The latter proposal would see some inevitable disruption in the mother’s well-being and the children’s behaviour in response to that. It is reasonably likely, but not certain, that such disruption would resolve with time as the parties all become accustomed to the new parenting arrangement. It is not expected that the children’s time with the father could progress to overnight time in the foreseeable future given the current acrimonious circumstances.
[9] Exhibit ICL5.
In his earlier report Mr D opined that J should spend limited time with the father. At that time he suggested a one hour visit fortnightly before a two hour visit is contemplated.
He reflected on this between the two reports before giving evidence and said that his preferred view now, if the Court considered time appropriate, was that it should be two or three hours once per month given all of the factors.
Mr D was concerned that C and J had views of their father which reflected the violent events which they had witnessed. It was his view that it may be a way to enable the father to be seen in a more positive light.
In terms of C that is already the case[10] and Mr D was concerned about a worry expressed by J that he may have his father’s temper.
[10] Exhibit ICL 4, Mr D’s first report, paragraph 77.
The problem with this approach is that if the father acts out, as he has done over the last 20 years in terms of this family, it may well work in exactly the opposite way.
I generally accept the evidence of Mr D to be reliable and I have given it significant weight. I have made some findings arising from his evidence considered in the light of all of the other evidence.
In paragraphs 145 and 146 of his first report he observed that the mother was a very emotionally vulnerable woman who became distressed and tearful when the difficulties of a relationship with the father were discussed and further she was considered to present with Post-Traumatic Stress Disorder.
He went on to say:-[11]
Whether this [the post-traumatic stress disorder] arises substantially from childhood trauma or family violence perpetrated by the father is difficult to say and probably not relevant in considering future care planning.
[11] Ibid Paragraph 146.
I accept that finding although I am satisfied, on the evidence, that the family violence had a significant impact on the development of the symptoms of that disorder. Mr D said that this particular disorder in the mother can have a fluctuating course and is generally not chronic, however, in cases such as this where there are multiple causes it is likely to be enduring.
He went on to say that the post-traumatic stress disorder is unlikely to resolve. To him the mother seemed somewhat better on the second interview, but still fragile particularly when dealing with the father. He described her reaction when pressed further in relation to time with the father and the father generally:-[12]
52.Asked how she saw her parental responsibilities in the event the Court made an order for the children to spend time with the father, the mother said she would have no choice but to comply but added that she would not see the children go through the difficulties they endured in the past. Asked what she could do to make such spending time or [sic] workable, the mother struggled to think of ways in which she could do things to help them. When this issue was pressed further the mother was quite resistant and seemed unwilling to contemplate taking action in support of the children’s time with the father. Rather than focus on the difficulties the children might experience being caught in the middle of acrimony between their parents, [the mother] emphasised the stress that she herself would suffer. She said she really did not know how she would deal with the prospect of the children spending time with the father. She said she could not deal with [the father] in any capacity; even facilitating the children’s time with him.
53.At this point [the mother] became pressured in her speech and clearly upset just as she had done in the first assessment when these issues were discussed. She went on to recall threats the father had made in the past when the children were still young, threats that she still considered to be a risk now. Her belief is the father is simply waiting for the right time to act on his threats. She said that the things he has done have had a lifelong effect that she will never forget and never change.
[12] Exhibit ICL 5, Mr D’s second report, paragraphs 52 and 53.
Mr D’s evidence was that the discussion of time with the children had a profound impact on the mother. I accept that the experiment of the children C and J spending time with the father in 2015 failed and that this had a significant adverse impact on the mother. Over the period of time from his first report to the second report the household became more settled, Mr D said because the children were not spending time with the father and that had, on the evidence of the mother, reduced the conflict between the siblings.

He said that the mother has no more willingness or ability to support any time the children spend with the father and she was likely to be affected adversely with any resumption of time between the children and the father and her parenting capacity/judgment would be commensurately diminished.
Mr D went on to say that he had less confidence that the mother could change in this regard and that her mental health is the primary barrier to the children resuming a meaningful relationship with the father.
Having heard all of the evidence I am satisfied that this is one of the serious barriers to any time.
The other barrier is my concerns about the risk to the children in the father’s care.
Mr D said that these children seem to be well adjusted and are doing well at school. They have fears, however, they have lived with their mother all of their lives and the children are careful to manage their relationship with the mother.
They are aware of her fragility and anxiety in so far as the father is concerned and in many ways J and C are ambivalent to a relationship with their father having regard to their need to have a relationship with their mother.
Mr D said that there needs to be arrangements which ensure that the family can function and that C needs stability.
Mr D said that the relationship between the two older children (M and A) and C was somewhat apart at the time of the first report, but that had repaired itself or seemed to have repaired itself by the time of the second report.
Mr D was concerned about the recent text message sent to A.[13] He said that it shows the father’s continued willingness to be coercive and controlling and not sensitive to the impacts of his violence on the mother.
[13] Mother’s trial affidavit, Annexure E.
He also gave evidence that the father had an exaggerated sense of entitlement and those factors would be a trigger to the mother’s post-traumatic stress disorder given the previous history.
Mr D was concerned that the father had not undertaken the abusive behaviour course recommended by the family consultant and by him. The father expressed to Mr D his belief that the mother was largely to blame and Mr D says this shows a lack of insight.
In his evidence, Mr D observed the children with the father and said that when C and J went to him it was positive and they went easily, but they are aware of the negative views of the mother.
He said, and I accept, that he does not believe the mother has intentionally alienated the children, although the mother has likely unintentionally done so. The father’s behaviour, given his violence throughout the course of the relationship, would also have alienated the children from him.
There was cross-examination of Mr D in relation to cards, pictures, letters etcetera and telephone communication between the father and the children.
I accept his evidence and my overall assessment that the father has little or no empathy for the mother and blames the mother for the circumstances that he does not see the children.[14]
[14] Exhibit ICL4, Mr D’s first report, paragraph 42.
At one stage the father said to Mr D that he is sometimes physically sick at the sight of the mother. The father needs to understand the impact it would make if he had acknowledged his violence and had undertaken the course, but because he has persisted so long, such a change now would unlikely to have any meaningful change.
I accept his evidence that there is a persisting unresolved anger by the father to the mother and consequently there is a risk he could undermine the mother’s parenting capacity.
The mother knows of his unresolved anger and that increases her anxiety and distress and symptoms of post-traumatic stress disorder to which I have alluded.
I accept the evidence of this witness and other witnesses that the mother has a genuine fear although I do not, in all of the circumstances, believe that the fear is exaggerated.
In his first report Mr D said of the father:-
137.This assessment found that the father has a clear history of poor frustration tolerance and impulse control giving rise to angry outbursts that have caused marked distress to others. Documents subpoenaed from Tasmania Police show that Police attended some 15 family violence related matters involving the mother and father and children between 2003 and 2013. The father has four convictions for assault that occurred in 2002, 2009, 2011 and 2013. Two restraint orders were made in 2004 and 2005, and four Police Family Violence Orders were made in 2009, 2010, 2011, and 2013. Further evidence of his propensity to poorly controlled anger and resort to verbal abuse and physical violence came from the mother and the children. Each of the children identified the father as more prone to violence than the mother. Of particular concern is the fact that the children were direct witness to the father’s aggressive behaviour, the fact that [A] and [M] felt it necessary to intervene to protect the mother, and that [A] was herself subject to physical violence and denigrating verbal abuse by the father.
The father’s emails since separation up to the October 2016 show that this behaviour has continued following separation.
I accept that the evidence of Mr D and the evidence generally that the children have no relationship with their half sibling. I have had regard to that circumstance in this determination.

Family Consultant

Ms S (‘the family consultant’) prepared a child dispute conference memorandum dated 22 October 2014[15] and a family report dated 25 May 2015.[16]
[15] Exhibit ICL2.
[16] Exhibit ICL3.
In her Family Report released to the parties in mid-2015 the family consultant recommended that the subject children live with the mother and spend time with their father, such time to be re-introduced over a period of time.
Part of the recommendations included one that the father undertake further counselling relating to his perpetration of family violence. There is no evidence that the father undertook that course.
The family consultant gave evidence in terms of her reports. Her qualifications were not in issue.
The family consultant has not seen the parties or the children since April 2015 but has read Mr D’s reports. The family consultant had no independent evidence as to the mother’s mental health. She confirmed that the mother opposed the children’s relationship with the father.
This was on the basis that the mother expressed to the family consultant that she was concerned about the children coming to harm in the care of the father.
The family consultant said that the mother was anxious and stressed. This was exhibited at the time of the interview and that was obvious at the time. The mother said that she did not believe the father was genuine and her view was that he was trying to ‘get back at her’.
The family consultant said that the children knew about the violence and had independent recollections of it.
The family consultant did not interview the elder child A. The family consultant concluded said that the father, at times, endeavoured to blame the mother, which the family consultant said was an ‘attack on the victim’.
She observed that the father was:-
…Genuinely critical of [the mother’s] parenting stating she favoured [A] …[17]
[17] Exhibit ICL3, Family Report dated 25 May 2015, paragraph 23.
The family consultant conceded that in retrospect she may have been a little optimistic as to the mother’s ability to cope, bearing in mind she did not have full details of the mother’s health issues, and that any time was based upon the father’s involvement with an anger management course.
The recommendations made by the family consultant should be seen in a historical context and ought now to be judged in the light of the full details of the violence and the impact of that upon the mother and the children.

The mother

The mother gave evidence in terms of her trial affidavit sworn and filed 12 October 2016 and a short amended affidavit filed 14 October 2016. Those two affidavits were read into evidence.
The mother was careful and thoughtful in giving evidence.
The father was self-represented and no legal aid was provided to him, which is more than just unsatisfactory. The mother was left in a situation where she was going to be cross-examined by the father, who had perpetrated violence upon her.
Prior to the hearing I raised with the parties how this process could be dealt with and had suggested that the mother could give evidence remotely on a video-link. The mother (who was legally represented) indicated she would prefer give evidence in court in person. To manage this process in the cross-examination by the father, the parties agreed that the father would direct each question of the mother to me. I then, if necessary, rephrased and reframed the question and had the father confirm that it reflected that which he wanted to ask then I asked that question of the mother. That process was applied.
The mother was cautious and thoughtful in giving her evidence and at times gave evidence against interest.
One example was in respect of some evidence when C went to spend time her father some years ago. It was clear that the father had not informed the mother, but the mother made clear that M had informed her that C had gone to her father’s. This was an admission, at some levels, against her interests.
Another example was in respect of when she took A to a show and left the children at home for a short period of time.
The mother gave evidence set out in her affidavit a history of some of the physical, emotional and psychological violence perpetrated on her and the children by the father. This is set out in the mother’s trial affidavit at paragraphs 37 to 42.
I explained to the father that if he disagreed with those alleged facts he ought to ask questions about them. In respect of a number of the mother’s claims of violence, he conceded that they occurred, but said the events were exaggerated by the mother.
Given all of the evidence, the police reports and the other extrinsic evidence, I am satisfied that the mother has provided a frank account of the terrible violence inflicted upon her and the children over many years, as set out in the her trial affidavit.
The mother gave evidence of an argument between her and C in March this year over C’s attendance at a party and behaviour which did not meet her expectations, nor to be fair the father’s expectations. The father was, in questioning, critical of the mother that this occurred. I reject that criticism given that the mother made enquiries of a person she thought was a parent who was taking C and her friend out for a meal and that was not in fact the case when it occurred.
I accept that the mother is appropriately protective of the children.
The children have had significant absences from school in the last year or two. Part of this is as a result, in the case of C, of her illness earlier in the year and part of it (the mother concedes against her interest) arises from the mother’s inability to cope from time to time and she stays in bed. She said that she has kept J at home on a number of occasions because of her stress and that J, at times, would see that she is stressed and would say that he felt unwell.
The impact of these proceedings and the involvement and the children spending time with the father in 2016 have had a negative impact upon her.
This year has been particularly hard for the mother as the elder child A is studying in Sydney and she had previously provided significant physical and emotional assistance to her including the day to day care of the three younger children.
The mother is managing in her role as primary carer, but she is struggling under the weight of these proceedings and her fears for the children in the care of the father, whether supervised or not.
The mother gave evidence of the father standing beside her car on one occasion after a court hearing and on another occasion coming into a barber’s shop when J was having a haircut. The father said these were innocuous events (I do not believe him).
In his cross-examination of the mother, the father showed little insight into the impact of his violence upon the mother.
The mother endeavoured to start a parenting after separation course but after the events of C moving out for five weeks in September/October 2015 she was, on her evidence, unable to continue with that course.
The mother gave evidence that in March 2014 or 2013 the father had contacted J and took him into his unsupervised care without the mother’s knowledge or consent. The father notified the mother through Tasmania Police and delayed the return of the child to the mother. This is yet another example of the father’s lack of insight and self-focus.
The mother’s evidence was considered and careful. I am satisfied, having considered that against other objective evidence, that it was generally reliable.

Mr W

Mr W gave evidence in terms of his affidavit filed 12 October 2016. He was not challenged in relation to any material in that affidavit and it was read in unopposed. I accept the reliability of that evidence. In some ways it supports and confirms the evidence of the mother.

Adult child, A

The parties’ eldest child, A, provided evidence in terms of her affidavit filed 29 September 2016. That affidavit was prepared and/or settled by the Independent Children’s Lawyer and was read into evidence without objection. The mother was not involved in the process of taking instructions for the affidavit, it completion or its filing.
Neither parent chose to cross-examine A in respect of her affidavit.
A has not seen her father since 2003 and describes her relationship with the mother as ‘very close’. She gave evidence of violence and unhappiness to which she was exposed during her life with the family. She was subject to verbal abuse and physical abuse by the father.
A has strongly identified with the mother and given her demeanour and the general consistency of her material to other evidence, I have treated her evidence as reliable, albeit from her subjective point of view.

The father

The father gave evidence in terms of his three affidavits filed 11 August 2014, 20 October 2014 and 14 October 2016 (the latter affidavit being his trial affidavit). From time to time the father had had legal assistance, however these affidavits appear to have been prepared by him.
Consequently, I gave leave for the father to address the serious allegations set out in the mother’s affidavit. He said as to some allegations; he could not remember and as to some allegations; the mother had exaggerated. He gave evidence about standing near the mother’s car, but cannot recall that event and evidence about the barber shop visit. He prevaricated and dissembled on that about violence.
The father was asked about the time it took him to complete the anger management course required of him from the criminal justice system when he was convicted in November 2013 in relation to his violence against the mother. He endeavoured to shift the blame to his probation officer and dissembled on this issue. The course was not completed until May 2015 some 20 months later.
This evidence as to his approach to his understanding of his violent behaviour needs to be seen in the context of his treatment of the recommendation by the family consultant, the order in the Federal Circuit Court and the recommendations by Mr D that he undertake some sort of anger management course. When cross-examined in relation to this the father said he did not go ahead as he was not seeing the children. He said he saw it as a ‘passage to see the children’ rather than as a necessity to him. He thought it unnecessary. He indicated he would do so if ordered by the Court. This is an example of the father’s inability to recognise his anger and the impact of it upon others.
The father said that C had lived for him and his present partner for about five weeks in September/October 2015.
The father was not an impressive witness. He used lapsed memory to avoid confronting the years of violence that he visited on the mother and children. He exaggerated and prevaricated about these violent events. He tried shifting blame from himself.
Assessing his demeanour, the objective evidence, such as police records and the like, it is clear that his evidence is unreliable and fashioned to avoid the consequences of his violent behaviour.

Ms R

Ms R is a psychologist who has been assisting the mother in terms of her mental health following the breakdown of the marriage. She has seen her on numerous occasions between September 2015 and September 2016.
Ms R was not challenged as to her qualifications. She observed that the mother presented with symptoms of Post-Traumatic Stress Disorder and that the mother regularly re-lived incidents of family violence. She concluded that if the children spend any time with the father, there is a strong potential for the mother’s Post-Traumatic Stress Disorder to re-surface and for her anxiety to resume.
Further, that such events are likely to adversely impact on her capacity to parent the children, including the ability to show love, warmth and emotional support for her children.
In addition to providing therapeutic counselling for the mother; between September 2015 and September 2016, Ms R also provided psychological counselling and assistance to M, C and J. I accept her evidence that in September 2015 she observed that J was presenting as highly anxious and emotionally drained. That observation was not unexpected given that C had moved to live with the father a short time before.
Ms R said that she did a formal assessment of the mother on 14 September 2016 using a Trauma Symptom check list which confirmed her diagnosis of Post-Traumatic Stress Disorder. She said of that disorder:-
It cannot be cured but it can be treated and managed.
Her evidence was that the events of the past will be with her and that the mother believes that the children will not be safe in the care of the father. There is a risk of relapse and that will significantly and adversely impact on the mother’s ability to parent. Whom I am satisfied is otherwise a good parent of the children.
She said that the mother could not cope with the children spending time with the father. Given the events that occurred over that year and the mother’s history of being the subject of long term violence, that outcome is unsurprising.
I accept the evidence of Ms R as being reliable and accurate.

The maternal grandmother, Ms H

Ms H is the children’s maternal grandmother. She provided an affidavit[18] for the father. Much of that affidavit was struck out for being of little or no relevance given the prejudicial value.
[18] Filed 12 October 2016.
It otherwise gave evidence as to some of the events between the father and mother since separation. It provides no probative evidence apart from the poor relationship between the mother and maternal grandmother.

The paternal grandmother, Ms P

Ms P is the children’s paternal grandmother. She provided evidence in accordance with her affidavit filed 12 October 2016 which was read into evidence. She clearly misses seeing the children, but she is caught up in the conflict between the parents. She believes the father’s version of the events. She is not fully aware of the violence inflicted upon the mother and children by the father over a period of time and is, not unexpectedly, supportive of her son.
She was deeply saddened by not seeing the grandchildren and that is reflected in both her written and oral testimonies. She was not seriously impeached in cross-examination.

Ms Y

Ms Y is the partner of the father, she provided evidence contained in her affidavit filed 14 October 2016. She has not had any formal meeting with the mother nor have they communicated. All of her information comes from the father.
She says, and I accept, that there is and has been no violence in their relationship at this time. I accept that her evidence, albeit it given through the prism of her close relationship with the father, is reliable.

FINDINGS

As I have said earlier, I accept the evidence of the mother in terms of the long history of physical, psychological, emotional and verbal violence that the father inflicted upon her.
The father has little insight into the violence. His decision to stand near the mother’s car after a court hearing and to go into a barber shop where the mother and J were present are indicative of that lack of insight.
The father’s failure to heed the recommendation of the family consultant to undertake further counselling relating to his perpetration of family violence[19] and his continued denigration of the mother are indicative of that circumstance.
[19] Exhibit 3, Family Report dated 25 May 2015, paragraph 65.
An example of his endeavours to minimise his violent conduct is set out in paragraphs 1, 2 and 3 of his affidavit filed 11 August 2014.
The mother’s evidence was set out in paragraph 41 of her trial affidavit:-
41.On 22^nd June 2013, [the father] via text message partly organised to take [J] to the movies on 23 June. On the morning of 23 June 2013 at approximately 9:20am I was sitting on the couch and sent [the father] a message to ask if he was taking [J] that day. [The father] replied with a number of text messages but it was unclear whether he was having [J]. [The father] then attend [sic] at the former matrimonial home expectantly and came in the unlocked front door without knocking. I said to [the father] “what the hell are you doing here, get out” and he said “I came to get my fucking son”. I told [the father] to wait outside in the car while I got [J] dressed as [J] was in bed asleep. [The father] refused to leave and I picked up my phone to try and call his mother so she could tell him to get out. [The father] came at me to grab my phone. He grabbed me in kind of a bear hug from behind trying to get my phone and slammed me into the wall in the lounge room. [A] was present when this occurred and tried to get [the father] off me. [The father] was swearing at [A] and while still holding me, he flung her into the wall. [A] was screaming at [the father] to leave and he let go of me to try and get to [A]. I managed to grab him from behind and pulled him back shoving him towards the front door. I was able to push him out the front door while yelling at him to get out. He turned around to try and come back inside and I shut the door. [The father] then put his hand through the glass panel of the door and smashed it. Police attended and [the father] was charged with the assault upon me but not with the assault upon [A]. Police also made [the father] subject to a Police Family Violence Order, … In October 2013, [the father] pleaded guilty to the assault upon me and I received a letter from Police Prosecution advising that [the father] had received a fine of $1,500.00 and was made subject to a 12 month Probation Order.

Even on the father’s evidence it is not in issue that:-
·The father entered the mother’s home without invitation and without notice;
·The mother asked the father to leave; and
·The father refused to leave.
As I said elsewhere in these reasons, I prefer the mother’s evidence to that of the father. This was an example of the father exerting power and, at best, having little understanding of his violent and abusive behaviour or at worst having understanding of it and doing it anyway.
In paragraph 42 of the mother’s trial affidavit the father, who had previously made threats of self-harm and, by implication, harm against the children, had J in his care. He sent a text message to the mother stating that ‘he would make me feel pain and that he had been feeling and saying ‘do you want to say goodbye to your son’.
The father concedes that texts such as that were sent and sought to minimise his contact by saying:-[20]
…I was simply stating that I was going to keep him with me as I always have the children kept from [me] when [the mother] is not happy with an arrangement.
[20] Father’s affidavit filed 11 August 2014, paragraph 3.
The mother quite rightly took this as a chilling threat and called the police. This is bearing in mind that this action is in breach of a family violence order.
The father complained that after February 2015 he expected to see the children on an unsupervised basis. He did not have any insight or any meaningful insight into the impact of his violence or the children.
Nothing has changed. In March of 2016, as I discussed earlier, C engaged in some unsafe behaviour. The mother had taken careful steps to ensure the place to where C was going, was appropriate. This included talking to someone she had believed was C’s friend’s father and in circumstances where she believed C was going to a dinner party with her friend and the friend’s family. The mother is not the first and will not be the last parent who was deceived by a teenage child endeavouring to do things of which they know their parents would not approve. Given what happened the mother was justifiably angry and there was an argument between her and C. C went to her father to escape the consequences of her adolescent behaviour. The father could and should have supported the mother, but chose to put his need to see this child above the need for the child to understand the appropriate boundaries put in place by the mother to protect the child. The mother on forwarded a text she found on C’s telephone, which was not the mother’s cleverest move, but in the context of her evidence was understandable. Yet the father, with a history of violence and abuse, endeavoured to cross-examine the mother as to her capacity as a parent in terms of those events. That reflected poorly on him.
The father’s threatening conduct continues, in relation to the message he sent to the mother on 3 October 2016, to which I have earlier referred.
The father asserts in his trial affidavit that:-[21]
[The mother] claims to be scared of me, I have seen her around [F] many times and at the [N Building] and have never made any attempts to make contact or harass her in any way.
[21] At paragraph 7.
Given his history and continuing history of violence, abuse and dominating behaviour that evidence and the mother’s mental health; such evidence by the father can only be regarded as risible.
He asked the question that if the children, in particular C, is able to see him if she chooses to after eighteen, why should she not see him over the next two years.
The answer to that question is relatively clear. The evidence before me is that C is a bright, intelligent and articulate, but somewhat headstrong girl. The mother’s evidence, which I accept, is that she reacts well to structure.
It is likely that if structure is in place this child will attend school and have an opportunity of reaching her full potential. If on the other hand she is able to spend time with the father it is likely that she will be exposed to violence (physical and emotional), demeaning and abusive language in respect of her mother and at least one of her sisters.
I am satisfied that making an order would more likely than not protect the child from that influence.
C went to live with the father for five weeks in September/October 2015. That experiment did not work out.
I accept the accuracy of that which C said to Mr D in relation to her views.
However, given the violent conduct of the father and his inability to accept or acknowledge that conduct, it seems to me that orders would make life safer for this young woman.
Mr D endeavoured to categorise the violence as is set out earlier. He also said:-
139.… The father seemed superficial and remorse he expressed for exposing the children, especially [A], to his verbal abuse and physical anger and his statements to the effect showed little meaningful understanding of possible impact upon them. The fact that it took twenty months for the father to complete a twelve session offenders family violence program, and that he failed to act on an undertaking to participate in a similar program with Catholic Care, may indicate he has little motivation to a meaningful change in his behaviour.
I accept this assessment by Mr D as to the superficiality and little understanding of possible impact.
The mother deposes that in August 2013 she received a letter from the father’s then solicitor and commenced negotiations. At that time she discovered that the father was communicating with C via Facebook and in that he sent messages to C about her sister A which included:-[22]
And tell your sister [A], if she ever comes near me ever agsin ill spit in the selfish bitchs face. Spoilt little brat. I hate het guts the family ruining 2 faced slag. Have a nice life [C]. I won’t be seeing you or anyone no more. Enjoy your new dad. Im [sic] sure he will look after you. Tell [J] thst [sic] he is a champ. Bye. – sent 27^th July 2013 at 5:20pm.
Your mum went out last night I hear. With her new boyfriend. She picked him over you kids. It’s sad. – sent 27^th July 2013 at 9:42am.
I need my family back …, I need your help. Sent 17^th September 2013 at 1:53pm.
I guess you don’t care bout me at all … c ya whenever then … enjoy your nee dad and your life. – sent 17^th September at 6:43pm.
What your mother is doing is absolutely disgusting and wrong… if you don’t love me, which is pretty obvious, then im [sic] sorry for whatever ive [sic] done … I feel sick [C] and you don’t understand how big this is. – sent 20^th September at 6:50pm.
Obviously you don’t care and you are as fake as [A] and your mother… there leaches and users and sounds like there teaching yoy [sic] well ... have a happy life, but when you fall flat on your face, don’t come to me and expect anything because ill laugh in your face … Good luck – sent 20^th September at 4:52pm. [Errors as in original]
[22] Mother’s trial affidavit filed 12 October 2016, Annexure C.
This was an exchange between an adult father and his then twelve year old daughter. It was, and remains, appalling conduct. The father said he apologised to the child sometime later.
This was not ‘reactive violence’ from the mother; it was abuse of his then seventeen year old daughter. This ought to be seen in the context of the text messages he sent A in June 2013 shortly after A’s seventeenth birthday.
The father said to his then 17 year old daughter:-[23]
I am going to do something silly [A] and it is all your fault. Hope your happy and proud of yourself. You have gutted and ruined my life. You can tell [J] that he doesn’t have a father anymore you selfish rude little girl. You have ruined everything and I will show you exactly what you have [A].
[23] Affidavit of [A] filed 29 September 2016 paragraphs 26, 27 and 28.
The father then sent her a further text message:-
What have you got to say [A]. Nothing, cause your weak and selfish. You have cost me everything and I never want to lay eyes on your ugly, pimply head as long as I live.
The next message he added:-
I wish you were never born, you weren’t planned and it should have stayed that way. Me and your mother would have been right then.
The father accepted that this was the exchange that occurred. In addition he has said to A by using awful demeaning and degrading terms in a message to C that he hoped A would ‘get molested by mum’s new boyfriend’.
This is verbal violence and abuse at a high level, it was by a parent whose role it was to protect and shield his children from such behaviour rather than inflict it out of uncontained anger. It was put to the father that the exchanges was disgusting, I can only but agree with that assessment of the messages.
From a very early age, A has witnessed violence against her mother by her father. This includes recollections about the father punching the mother and the father driving the car at the mother, her and M. A remembers being frightened and not understanding what had happened.
The father has told Mr D that he looks back at disgust at his own behaviour saying he had no awareness then (emphasis added) of the harm it caused other people, in particular the children.
As I said earlier in these reasons the Independent Children’s Lawyer, in her role as representing the interests of the younger three children, obtained a statement from A which she provided by way of affidavit.
Yet this father, who says he now understands the impact of anger sent a message to the mother on 3 October 2016 to which I have earlier set out.
In the father’s evidence he blamed the mother.[24] It seems to be his evidence that it was the way that she started matters and that it lead to family violence. I have rejected that evidence and the premise upon which it is based, that is it is okay to be violent in response to argument.
[24] Exhibit ICL4, Mr D’s first report paragraphs 40 and 47.
The father met with C on a number of occasion in 2013, 2014 and early 2016 and in circumstances where C misinformed the mother as to where she was. He encouraged or facilitated this misinformation to the mother to enable this time. This has the impact of undermining the boundaries set by the mother and her parental authority.
The father still has a temper. In his statement to Mr D he said of his relationship with Ms Y that they have their disagreements but these have never escalated to the point of violence.[25]
[25] Ibid paragraph 55.
Ms Y, in the same report, told Mr D:-[26]
She [Ms [Y]] said that there had been some arguments and some name calling; but nothing more serious.
[26] Ibid paragraph 107.
The father had denied any name calling.
During the course of his on and off relationship with the mother the father had an on and off relationship with Ms O for five years. That relationship also ended in 2013. The father conceded that Ms O complained to the police about harassing and threatening emails (the threats seemed to be by the father to self-harm) and on one occasion sent some two hundred text messages. He was spoken to in a car in April 2012 and he conceded that Ms O made a complaint to him in May 2013 about text messages.
A series of emails were exchanged between the father through Ms Y and C from July 2014. Part of that involved an acquaintance or relative of Ms Y suggesting that the mother ‘needs a bullet’ a complaint by the father, a suggestion by a relative of the father that the mother is given ‘a good old flogging one day’, and discussion about these proceedings.
It finishes with a rant about the mother, including assertions that she is a ‘dead set mole’ and that she is an ‘unfit mother’. All of this is likely to have been available to at least one or other of the children.

THE LAW

The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The torturous terminology of the section is thus that the court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)      The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)      Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)      the capacity of:
(i)      each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i)      the nature of the order;
(ii)      the circumstances in which the order was made;
(iii)    any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v)      any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.

The Full Court set out the principals in terms of the consideration of risk, factors which impact upon or ameliorate the risk and those principals were set out by the Full Court in Blinko & Blinko [2015] FamCAFC 146 where at paragraphs 82 and 83 they said:-
82.His Honour then went on to refer to an earlier unreported decision of the Full Court in Russell & Close (Unreported Full Court, 25 June 1993) and the recent decision of the Full Court in Slater & Light (2013) 48 Fam LR 573.
83.It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
·   If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
·   If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
·   Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
Those are the principals to which I will apply in relation to the assessment of the facts in this case.
Section 60CC of the Act sets out the factors which the Court must consider in terms of determining parenting disputes under the Act (where the factors are relevant).

The relevant factors pursuant to s 60CC of the Act

The task of the Court is to consider the facts, and in that respect I have not endeavoured to repeat or reiterate all of the evidence, in the context of the orders sought by the parties and according to law. These proceedings commenced after June 2012 and as such the current iteration of the section applies.
In terms of those considerations I have had regard to both of the primary considerations. In that context, I have endeavoured to do so consistent with the objects set out in ss 60B(1)(a) and (b) of the Act and I have given greater weight to the consideration set out in section 60CC(2)(b) of the Act.

Primary Considerations

60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;

The children have a loving and meaningful relationship with their mother and neither the parent nor the Independent Children’s Lawyer are seeking to upset that arrangement. The children are very close to the mother and she has been their primary carer throughout their lives. These children are well adjusted and functioning with no special needs apart from that associated with the history of the family breakdown and violence.[27]
[27] Exhibit ICL4, Mr D’s first report, paragraph 149.
The child M has no meaningful relationship with the father and does not seek such a relationship.
The child C has a closer relationship to the father than her siblings as she was shielded from some of the more serious family violence incidents. She has said she wanted to spend time with him. In the most recent report she expressed the view that she did not think overnight visits were workable or realistically achievable into the future. She was resigned not to see the father.
The child J knows who his father is and is inquisitive about him. He was concerned that he spent time with his father:-[28]
59.[J] at first said the thought it best that he did not spend time or communicate with the father out of concern that he would again become angry and upset in his behaviour. [J] was burdened by a belief that he has inherited his father’s problem anger and that such anger would have a negative impact on other family members, and so indicated a sense of obligation to shield other people from such strong emotions. Having spent time with the father, however, and being surprised by how easy it was and that he enjoyed doing so, [J] was less sure as to what he should do in this regard. The overall impression is that [J] would like to spend time with the father if he could be reassured that other family members were not adversely affected.
[28] Exhibit ICL5, Mr D’s second report, paragraph 59.
C and J have a relationship with the father and it is likely that C has had positive experiences with her father.[29]

Section 60CC(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;

[29] Exhibit ICL4, Mr D’s first report, paragraph 171.

There are two areas to which the children may be exposed to abuse, neglect or family violence. The first risks are those arising from the father’s violence. The second risk is the mother’s ability to parent the children if they spend time and/or communicate with the father.
The Independent Children’s Lawyer says she does not accept that there is an unacceptable risk of harm to the children if they spent time with the father if strict conditions are put in place.
The submission of the father is that he ought to have unsupervised time.
The evidence is that the father is a violent and abusive man who explodes in rage and anger from time to time and has little regard for the impact of that rage and anger on others. To that end, I refer to the evidence and findings I have made elsewhere in these reasons.
He will be dealing with C who is in the middle of her adolescence and at a significant time of her life where she is testing boundaries. Given that if she spends time with the father there is a serious risk of confrontation and anger and given the father’s explosive temper I determine that she is at risk of unacceptable harm both physically and emotionally in either the supervised or unsupervised care of the father. There is also a risk that the father will explicitly or implicitly undermine the mother’s parental authority.
The child J has been described as a sweet natured boy who loves his mother and is inquisitive about his father. He is likewise soon to head into puberty. The time he spent with the father in 2015 was unsatisfactory for him. I accept the mother’s evidence in that respect.
The father has made direct threats to the mother to use J against her; this by at best retaining him and at worst harming him. When violent parents make serious threats, the time is well past that they should be glossed over.
Whilst the level of violence waxed and waned over almost all of the eighteen years of the parties’ relationship, it was a constant. There was certainly a high degree of violence at around the time of separation.
The father complained that the mother knew the buttons to push and pushed them, but I do not accept that explanation. From the evidence of A and the various statements made by the children, the mother and children were subjected to what could only be described as a reign of terror.
The childhood and adolescence of all four children was scarred by the constancy of the father’s violence to them and to their mother.
I am confident that even now the father has little understanding or insight into his violence and how it damaged his children and the mental health of the mother
The father is, in the words of Mr D:-[30]
The overall impression is of a man who is situationally reactive with recurrent verbal and behavioural outbursts representing a failure to control aggressive impulses. The information available is that even where there has been provocation the magnitude of his aggressiveness has been excessive. There is little indication his aggressive behaviour has been premeditated to achieve some tangible objective, although it is noted that the mother may say his encroachment onto her property is intended to intimidate her.
[30] Ibid paragraph 140.
Given the history of abuse, violence and behaviour between the parents, any interaction between them would erode the mother’s ability to care for the children. This household has a need for tranquillity. The impact on the relationship between C and J and the mother in 2015, the undermining of her role as a parent with C including encouraging C to lie or supporting C’s untruths are troubling. This household has been much more peaceful since the cessation of time between C, J and the father.
These children have been exposed to incidents of family violence and all of them have memories, to various degrees, of that violence.
Mr D says the father would benefit from the Challenging Abusive Behaviour Program provided by Catholic Care. I do not accept that approach. That choice was available to the father and he did not take it. If this Court were to force him to undergo counselling, I am not satisfied that it would give rise to any satisfactory outcome. The course that the father undertook as a result of the criminal justice system has clearly made little difference in terms of his understanding of his violent behaviour.
The solution to the violence was in his hands; if, as between he and the mother, the relationship was as toxic as he asserted, then leave. It is not acceptable to deal with that by the emotional, psychological and physical battering of the mother nor is it acceptable to take it out on his young and vulnerable children.
Alternatively, the father could have reflected on his behaviour and undertaken anger management and violence treatment. He chose not to do so and continues in the deluded belief that it is unnecessary.
The only course he undertook was that forced upon him by the criminal justice system and even then it took him almost two years to complete that course.
Even with that delay he sought to blame others; he blamed the probation officer for not organising it fast enough. If the father had genuine insight to his violence and the impacts upon it, he would have completed that course much faster and taken something from it. He would have undertaken the courses recommended by the family consultant, ordered by the Federal Circuit Court and recommended by Mr D. He has not done so.
For him it was a means to an end: if he could not see his children then there was no point in undertaking the self-reflection that such courses demand of participants.
A telling part of his evidence was when during his cross-examination he was asked if he had ever apologised to the mother about some of the violence. He acknowledged that he had not. The Independent Children’s Lawyer asked him if he wished to apologise at that time. He was unable to do so claiming that it was the wrong place.
The father has exhibited controlling and stalking behaviour to previous partners. He acknowledges sending text messages to the extreme and threatening self-harm to another partner and the twelve months prior to his separation from the mother.
Fortunately, his relationship with his present partner is not, at present, marked by serious arguments or violence and in that respect.
I have great sympathy for the paternal grandmother. She desperately wants to continue a relationship with her grandchildren. However, at the same time, she has wholly aligned herself to the father and has acted as a surrogate in his crusade to have the children spend time with him. She has facilitated the removal of the children from the mother from time to time and has undermined the boundary setting provided by the mother for some of the children. This is based upon her lack of full knowledge of the father’s violence and her view that the blame rests primarily with the mother.
J is at unacceptable risk of physical and emotional harm in the unsupervised care of the father and I am satisfied that he is at unacceptable risk in the supervised care of the father.
I am satisfied that to put either of these children into the supervised or unsupervised care of such a person who is superficial in his remorse and has little insight into it, exposes these children to that risk in the future. On the evidence I have concluded that both are at unacceptable risk of abuse and violence in the supervised or unsupervised care of the father.
The mother can and has protected the children from harm, abuse, neglect and family violence.
The mother and the children have endured years of physical, psychological and emotional violence from the father. The father has little insight into the impact of this violence upon the mother or the children.
His approach seems to be that they will ‘get over it’. His explosive anger which has been described by Mr D was on show as recently as 3 October 2016 when he sent an email to the mother in regard to A’s affidavit.
Mr De Jong’s evidence was that it would be of value for J and C to see the father so that they can gain positive experience of him. Given his denial of violence, minimisation of violence and his endeavour to shift the fault for the violence from himself to the mother and at earlier times to the children, combined with his rejection of undertaking any meaningful treatment, make it clear that the violence which this family endured during the relationship and after the break-up is still a real and likely possibility.
I am therefore satisfied that the father presents as an unacceptable risk of harm to the children through his anger, his physical, psychological and emotional abuse.
Is that then able to be ameliorated by some form of supervision? The supervised time, which the father had earlier in separation, was rejected by the father as he wanted to move to unsupervised time. He now says he will accept supervised time.
Unsupervised time was tried in 2015 and, on the evidence before me, it is clear that this time failed. The mother did not cope and the family unit of the mother and the children began to disintegrate.
I am not satisfied that supervision, even at a contact centre, will protect the children from the explosive nature of the violence and abuse to which the father has exhibited over such a long period of time.
If I am wrong in that respect I am satisfied that the mother is suffering from symptoms of post-traumatic stress disorder and that any interaction with the father has a significant debilitating impact upon her. She fears that the children will be harmed in the father’s care. That view is genuinely held. It is not an irrational fear; it is well based given the history of this family.
The father would likely undermine the mother’s ability and capacity to parent these children. Her evidence of the effect of these proceedings upon her and consequently the family over the past few years has been quite significant and difficult. The mother is unwell and I generally accept the evidence of Mr D and the evidence of Ms R in that respect.

Section 60CC (3) Factors

Section 60CC(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;

The child M has expressed a clear wish not to spend time with the father and the father accepts that this view should be respected. The child C wishes to see the father and also her young brother. That view has been consistent throughout the proceedings and was acted upon by C, who is now aged 16, in 2015 when she spent about five weeks with the father and after an incident in March of 2016.
The child J’s wishes are clear. He would like to see his father provided it did not upset his mother. J is concerned that his father’s temper might have passed down to him and at present he is a little unsure about what he wishes. I am satisfied that if the mother gave him permission or emotional permission to spend time with the father he would welcome that opportunity.
I am equally satisfied that the mother, given her health and the other matters to which I have alluded elsewhere in these reasons, would be unable to give such consent whether emotional or otherwise.

Section 60CC(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);

As indicated earlier, the children have a close and loving relationship with the mother. J and C are interested in a relationship with the father although it could not be said to be close, albeit C’s is closer than her sisters’ and perhaps J’s.
When J saw his father in Mr D’s presence it was a warm and happy meeting.
The children are very close to each other. In his first report Mr D observed that there was some schism between the approach adopted by M and A on one hand and C on the other hand. In his subsequent report he said that the relationship between the elder sisters and younger sister had improved.
The children are close and have a very close bond given the history of what they have endured over many years.
The father wants the children to have a relationship with their sibling X. He wants that relationship to be such that they can attend the father’s wedding with his now partner in 2017.
M has rejected contact with her young brother. It seems clear that C likes the contact with X, but it is not that clear with regard to J at this stage.

Section 60CC(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;

At least since separation the mother has been the primary care giver of the children and has made all of the long-term decisions. The father says that he would like to be part of that. The mother has not accommodated that request.
The father was given the opportunity to have supervised time with the children in late November 2013 until early February 2014, however, from that time the father refused to accept supervised time. He submitted that he would accept this if it was an order of this Court.
He had unsupervised visits in the second half of 2015 which was unsuccessful. He made it clear to Mr D that he did not want supervised visits but during the course of the hearing said he would take whatever opportunity was made available to him.
The father clearly wants to communicate and spend time with the children.
The mother finds that almost impossible to deal with. She becomes anxious and almost unable to undertake basic communication.

Section 60CC(3)(ca) the extent to which the child’s parents have filled or failed to fill their obligations to maintain the child;

The mother supports the children from Centrelink benefits and receives child support from the father. It is through this that the mother meets the financial costs associated with the children’s lives.

Section 60CC(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;

The effect of the children spending time with the father will be profound upon the mother and I refer to comments and findings made elsewhere in these reasons.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

The mother proposes to relocate to E and whether she is living in E or F there are no practical difficulties. These two locations are about two and a half hours apart by car at any time, given the evidence of Mr D, is likely to be of limited compass. I do not see that as an impediment to the spending of time.

Section 60CC(3)(f) the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

The mother has a demonstrated ability to provide for the needs of the children in every sense. This need is significantly damaged and has the capacity to be lost if C and J spend time and/or communicate with the father.
The mother’s stress and anxiety increases and she struggles to function as a parent and to cope with the children’s needs and demands.
The family consultant says the father has a ‘permissive parenting value’. Given his anger to the mother, I am satisfied that if the children spend time with him it is probable that he would undermine the mother’s primary parenting authority and hence the mother’s capacity.
The father’s capacity to meet the emotional needs of the children is questionable given the violence upon the mother, the children, the text messages and his emotional abuse of the children and the mother over the years.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

and

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;

This was not a subject of direct submissions. The father has an Aboriginal background. That was raised with him during the course of the trial. It was not a part of his case to which he sought to adduce evidence or which he expressed any interest. The children are aware of their Aboriginality. Otherwise no submissions were made in that respect.

Section 60CC(3)(i) the attitude to the children, and the responsibility of parenthood, demonstrated by each of the children’s parents;

I reiterate the comments made elsewhere in these reasons. The father’s attitude to the children and responsibility to parenting is deeply troubling given the matters to which I have alluded to throughout the substance of these reasons.

Section 60CC(3)(j) any family violence involving the children or a member of the children’s family; and

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;

These proceedings have been about violence and it is set out in these reasons and in the evidence of the mother, A, Mr D and the family consultant. It has been constant throughout the lives of the children and has impacted detrimentally upon them and the mother.
In terms of family violence orders there have been four past family violence orders and two restraint orders made for the protection of the mother against the father.
The father has been convicted of a breach of a number of family violence orders which are set out in the evidence. I have had regard to that material.

Section 60CC(3)(l) whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the children;

I had considered making orders that the father spend short periods of time with C and J. For the broader reasons discussed earlier I determined that this was not to be the case given the concerns for the children and the impact on the mother.
In any event if any time were given or any arrangements made, on the evidence before me, it would simply lead to more litigation and impose more emotional hardship and stress upon this family. Particularly in circumstances where M is undertaking her final year of high school in 2017 and C her final year in high school in 2018.

Section 60CC(3)(m) any other relevant facts or circumstances the court thinks is relevant;

I have considered all of the facts and factors individually and collectively.

SUMMARY

In terms of parental responsibility the presumption set out in s 61DA is clearly rebutted by the evidence of violence to which I have earlier discussed.
In addition, given the mother’s mental health and diagnosis of PTSD and given the evidence as to the impact of any contact with the father to put in place some form of joint or shared parental responsibility would undermine the mother’s ability to parent these children and undermine her health.
I considered ordering the mother to provide some form of notice to the father informing him of the detail of any exercise by her of parental responsibility. However, I find that such an order would likely to adversely impact upon the mother’s mental health. Given the father’s pre-disposition to abusive, threatening and violent emails, it would not be in the children’s best interests to make such an order.
The mother has demonstrated good parenting in terms of these children and has made reasonable and rational decisions. An example of this is her decision to allow the younger children to spend unsupervised time with the father following the recommendation of the family consultant in 2015.
That the younger children still have a positive view of the father reflects more on the mother’s parenting than any behaviour on the part of the father.
In all of those circumstances I am satisfied that the mother ought to have sole parental responsibility for these children.
Following these comments I am also satisfied the mother should have parental responsibility to determine where the children should live, whether that is F, E or any other place within the Commonwealth of Australia.
I acknowledge that that parental responsibility extends to obtaining passports for the children. The mother has no plans to travel out of Australia with the children and did not ask for such an order.
As to residence there is no issue that the children should continue to reside primarily with the mother. There are some concerns in her parenting in terms of the children’s attendance at school however, I am satisfied that at least part of that related to these proceedings and the father’s interaction with the children.
The effect of the finalisation of these proceedings will, hopefully, deal with both of those concerns.
The father is not a serious contender as a resident parent and sensibly did not pursue that application.

SPEND TIME AND COMMUNICATE

The options available to me were over a wide range from unsupervised time and generous communication to no time and no communication.
The suggestion that there be unsupervised time was, in all of the circumstances, not an outcome which is reasonably open to this Court.
As to supervised time the impact of that upon the mother in 2015 and the continuation of the violence and anger by the father, referred to earlier in these reasons, continues.
I repeat that I am satisfied that there ought not to be any time whether supervised or unsupervised given all of the matters to which I have alluded here and elsewhere in these reasons.
The father submitted that C should be able to contact him if she chose to do so. The evidence of the mother is that C needs boundaries and given the difficulties over the last two years I am satisfied that this is a reasonable concern of the mother and accordingly, I will make the order that there is no time.
This will enable C to have the last two of her school years in relative peace. Should she decide, in all of the circumstances, to spend time with her father after her eighteenth birthday, that is a matter for her, as an adult, not a matter for this Court.
As to J, I am concerned that this sensitive boy will be exposed to the violence to which I have earlier referred and the undermining of his close relationship with his mother.
Given all of the discussion contained in these reasons I am satisfied that it is not in the best interests of these children to have any time or any communication with the father.
Consequently, it is also appropriate for the mother to be able to travel with the children and live wherever it best meets her and the children’s needs and aspirations. The mother was careful and sensible in terms of her thinking about travelling to F. In doing so she put the interests of her children ahead of her interests in moving.
There was some criticism of the mother’s approach in leaving before C completed her higher school certificate. The mother made it clear that if it significantly impacted upon C she would not move however, she went on to say that C is easily adaptable in terms of friends and she does not believe it would be such a major problem.
I am confident the mother would use common sense in the future as she has mostly done so in the past.
At the commencement of these reasons I set out the impact of family violence on families. In this family the father has visited violence upon the mother and the children in various fashions over a period of about eighteen years. He has not taken any serious steps to address his violent and abusive behaviour.
The mother’s mental health has been damaged by the father’s behaviour and his endeavours to derogate his responsibility in that respect cannot be permitted to stand. His violence and abuse of and to his children (of which I have given an outline in these reasons and not detailed fully) are deeply troubling.
I had significant regard to the importance of a parent in the lives of children however, with the father the risks are so great that there ought to be the orders sought by the mother and I will so order.

I certify that the preceding two hundred and eighty nine (289) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 December 2016.

Associate:

Date: 14 December 2016

[2016] FamCA 1130

14 December 2016

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